J-A15002-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

CHANDLER P. SMITH,

                          Appellant                   No. 3152 EDA 2014


         Appeal from the Judgment of Sentence September 26, 2014
               In the Court of Common Pleas of Bucks County
            Criminal Division at No(s): CP-09-SA-0000426-2014


BEFORE: BOWES, MUNDY, AND FITZGERALD* JJ.

MEMORANDUM BY BOWES, J.:                                FILED JULY 13, 2015

       Appellant Chandler P. Smith appeals from the September 26, 2014

judgment of sentence of a $100.00 fine imposed after the trial court found

him guilty of the summary offense of disorderly conduct. For the reasons

set forth herein, we reverse and remand for a new trial.

       The trial court related the following underlying facts, which were

adduced by the citing officer during trial:

              [Morrisville Borough Police Officer John Aspromonti] was
       on patrol and observed [Appellant] on South Delaware Avenue in
       Morrisville, Bucks County, Pennsylvania, in an agitated state and
       loudly screaming profanities in public.       Officer Aspromonti
       testified that when he stopped to investigate, Smith charged at
       him in a violent and menacing manner and Officer Aspromonti,
       fearing for his safety, hit Smith with his car door and knocked
       him back. He said Smith then appeared to try to unstrap his
       prosthetic leg which Officer Aspromonti thought Smith was going
*
    Former Justice specially assigned to the Superior Court.
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       to use as a weapon. When Officer Aspromonti asked Smith what
       was the problem, he testified that Smith accused him and his
       partner of “giving him the finger” that morning, although he had
       never had any contact with Smith prior to this incident. Officer
       Aspromonti said he pulled out his taser and warned Smith to
       calm down. When two additional officers arrived on the scene,
       Smith “stopped,” and after several refusals finally provided
       identification to Officer Aspromonti who then issued Smith a
       citation for disorderly conduct.

Trial Court Opinion, 12/10/14, at 1-2.           Appellant was found guilty of

disorderly conduct at a June 24, 2014 hearing in magisterial district court,

and appealed to the court of common pleas thereafter.          The events at his

September 26, 2014 de novo trial before the Honorable Clyde W. Waite give

rise to the instant appeal.

       Officer Aspromonti testified to the above facts on direct examination

and then was briefly cross-examined by Appellant.          At the conclusion of

cross-examination, the following discussion ensued:

       Commonwealth: The Commonwealth has no further evidence at
                     this time, Your Honor.

       Court:               All right. Any evidence, Mr. Smith?

       Appellant:[1]        Not at this time.

       Court:               All right, then.    You were charged with
                            disorderly conduct. The officer testified that
                            you approached him in an aggressive manner;
                            that you continued to go after him to the point
                            where he had to push you away, and it got to
____________________________________________


1
   Though presumed to be Appellant’s response, this statement was
attributed to the Commonwealth.



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                         the point where he pulled his taser. You don’t
                         believe that that’s – if that is true, and you
                         haven’t presented anything to say that it was’s
                         [sic] not true.

N.T., 1/12/15, at 14-15.

      After this exchange, Appellant expressed “significant doubt” that the

events transpired as Officer Aspromonti testified and that it was “[h]is word

against my word.” Id. at 15. Reminded by the court that Appellant “didn’t

say anything” and that “there is nothing on the record that says that that

didn’t happen,” Appellant offered to testify on his own behalf:

      Appellant:         I could testify as to what happened.

      Court:             You decided not to testify.

      Appellant:         I decide[d] not to testify?

      Court:             I asked if you had anything to present and you
                         said no.

      Appellant:         I just, what is it that I said – you asked me if I
                         had any questions.

Id. at 16. Instead of granting Appellant’s request, the court turned to the

Commonwealth and asked if counsel wanted “to allow [Appellant] to testify

at this time.”     Id.     The Commonwealth responded that it would be

procedurally improper to allow him to do so unless the court permitted

Appellant to reopen his case.

      Agreeing with counsel and declining to allow Appellant to reopen his

case, the court again engaged Appellant:



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     Court:            But are you suggesting that there is something
                       that you were not given the opportunity to tell
                       your side of the story?

     Appellant:        Well, you know, when I called the lawyer that
                       represented me at first, he thought that
                       probably what would happen is that the officer
                       would go ahead and take the stand and then I
                       would be given a choice to do that.

     Court:            Yes, and you were given that choice to either
                       testify or not. And my understanding is that
                       you decided not to.

     Appellant:        Well, at this point you know, there [was] a
                       hearing and I had an attorney. I know what
                       was said and I know there was two officers
                       there. I know that the lady at Dairy Queen
                       heard me say those words, and I know he
                       asked me to approach him. And he said, “You
                       called me?”

     Court:            Well, based on the evidence of the record at
                       this point, the officer’s testimony is more than
                       sufficient to establish all of the elements of
                       disorderly conduct. The defendant is found
                       guilty with a fine of $100. That’s all.

Id. at 16-18.

     Appellant appealed to this Court on October 20, 2014.          He then

complied with the trial court’s order to provide a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal, and the trial court filed its

responsive Pa.R.A.P. 1925(a) opinion shortly thereafter.      In his timely

appeal, Appellant presents just one issue for our consideration: “Was it

wrong that I wasn’t given the opportunity to testify?” We therefore look to

whether Appellant knowingly, voluntarily, and intelligently waived his

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fundamental right to testify on his own behalf when he said he had no

evidence to produce “at this time.”

         It is axiomatic that Appellant had a fundamental right to testify at trial,

which is explicitly protected by Article I, § 9 of the Pennsylvania

Constitution. Commonwealth v. Nieves, 746 A.2d 1102, 1105 (Pa. 2000).

“Waivers of constitutional rights not only must be voluntary but must be

knowing, intelligent acts done with sufficient awareness of the relevant

circumstances and likely consequences.” Brady v. United States, 397 U.S.

742 (1970).       Importantly, “the presumption must always be against the

waiver of a constitutional right,” and we are bound to “place the burden of

proving waiver on the Commonwealth.” Commonwealth v. Robinson, 970

A.2d 455, 458 (Pa.Super. 2009) (citations omitted).

         This Court has recognized that a trial court is not required to conduct a

colloquy to determine whether a party has knowingly, voluntarily, and

intelligently waived his right to testify on his own behalf. Commonwealth

v. Todd, 820 A.2d 707, 711 (Pa.Super. 2003).               Those cases, however,

clearly indicate that a criminal defendant must understand his decision not

to testify if not by colloquy, then by the presumed competent advice of

counsel in order to have knowingly, intelligently, and voluntarily waived that

right.     See, e.g., Commonwealth v. Baldwin, 8 A.3d 901, 909-10

(Pa.Super. 2010) (finding waiver where Appellant “was clearly advised of his

rights and what testifying in his own defense would entail” and “was given

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ample opportunity to consider his decision and discuss the matter with his

attorney”); Todd, supra at 712 (relying upon counsel’s testimony that he

advised his client of client’s right to testify in holding that waiver of that

right was “knowing, voluntary, and intelligent”).

      Appellant, appearing pro se, plainly argues that he was denied his

constitutional right to testify on his own behalf.         The Commonwealth

responds by contending that, in telling the court that he did not have any

evidence “at this time,” Appellant waived his right to testify and that the

court did not abuse its discretion in disallowing Appellant to reopen his case

so that he may do so. We agree with Appellant.

      Herein, the court also did not engage in a colloquy to determine

whether Appellant knowingly, voluntarily, and intelligently waived his

fundamental right to testify on his own behalf when he answered “not at this

time,” despite Appellant’s obvious confusion at the court’s finding that he

had waived that right.   Instead, the court, while seemingly acknowledging

Appellant’s misunderstanding, refused to permit Appellant to present the

testimony due to his purported waiver.

      The   Commonwealth’s     argument    that     “Appellant   was   given   the

opportunity to testify, but he decided to not exercise that right” is

misguided. The record does not support a finding that Appellant’s purported

waiver was knowing, voluntary, and intelligent. In fact, the record reflects

the opposite.    Specifically, Appellant clearly indicates that he did not

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understand that his response of “not at this time” equated to a rejection of

his right to testify at all.   N.T., 1/12/15, at 14-16.         Appellant’s alleged

waiver   was    not   given    “with   sufficient   awareness    of   the   relevant

circumstances and likely consequences” as to be understood as a knowing

and voluntary waiver of a fundamental constitutional right. Brady, supra.

      Having found that the trial court denied Appellant his constitutional

right to testify on his own behalf, we need only turn briefly to the

Commonwealth’s concomitant argument regarding a trial court’s significant

discretion in determining whether to reopen the evidence for further

testimony. While reopening the matter may have been a curative measure

to afford Appellant the opportunity to testify, the trial court’s decision not to

reopen the matter does not excuse its initial denial of Appellant’s rights. The

Commonwealth’s reliance on Baldwin, supra, is therefore mistaken.

      In Baldwin, our High Court affirmed the trial court’s decision not to

reopen the evidence after the counseled criminal defendant offered,

following colloquy, a valid waiver of his right to testify. Id. at 902. In that

case, the trial court obtained a knowing, intelligent, and voluntary waiver

from the defendant. There, unlike here, the trial did not violate the criminal

defendant’s constitutional right to testify, as he had been afforded – and

properly waived – that opportunity.         The Commonwealth cannot rely on

Baldwin to assert that the trial court had discretion to lock the door that it

had already closed on Appellant’s testimony. Whether the trial court abused

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its discretion in declining to reopen the matter is irrelevant in light of the

trial   court’s      silencing   of    Appellant   during   the    September      26,   2014

proceeding.

        The Commonwealth reminds us that we “may affirm the trial court’s

decision       on     any   basis      supported    by   the      record.”       Barren   v.

Commonwealth, 74 A.3d 250, 254 (Pa.Super. 2013). It urges us to affirm

since    the    record      contains    evidence    sufficient    to   sustain   Appellant’s

conviction.         In light of the trial court’s denial of Appellant’s fundamental

constitutional right to testify, we reject that invitation.              The infringement

warrants a new and complete trial.

        Judgment of sentence reversed.              Matter remanded for a new trial.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/13/2015




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