J-A30008-16
                             2017 PA Super 123


COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                   v.

RICKY TEJADA

                        Appellant                   No. 403 MDA 2016


          Appeal from the Judgment of Sentence October 6, 2015
           In the Court of Common Pleas of Huntingdon County
           Criminal Division at No(s): CP-31-CR-0000389-2014


BEFORE: BOWES, OLSON AND STABILE, JJ.

OPINION BY BOWES, J.:                               FILED APRIL 26, 2017

     Ricky Tejada appeals from the judgment of sentence of twenty-one to

forty-two months of incarceration imposed following his conviction for

aggravated harassment by prisoner. We affirm the conviction but vacate the

judgment of sentence, and remand for further proceedings.

     The facts are simple. While housed at the state correctional facility on

another matter, Appellant spit in the face of a corrections officer who was

attempting to remove Appellant from the law library. On January 23, 2015,

shortly before trial was to begin, the parties appeared before the court to

address Appellant’s attire. The prosecutor informed the judge that Appellant

wished to appear in his Department of Corrections jumpsuit instead of a suit.

N.T., 1/23/15, at 2.    The judge advised Appellant that the choice was his

and asked what he wished to do, but Appellant failed to respond to the trial
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judge’s inquiry. Id. Thereafter, Appellant’s counsel informed the court that

Appellant had instructed him to tell the judge that Appellant simultaneously

wished to represent himself and that he was incompetent to proceed to trial.

Appellant’s counsel stated that he had attempted to speak to Appellant in

person upon his appointment, but those efforts were fruitless.                Id. at 8.

Appellant   argued     with   the   trial   judge,   informing   him   that    he   had

irreconcilable differences with his attorney, and insisted that he did not

understand what was happening. When informed the case would proceed to

trial, Appellant claimed that counsel was forced upon him and that the court

lacked jurisdiction.    Id. at 14.     The judge informed Appellant that if his

behavior continued he would be removed from the courtroom. Id. at 15.

      The trial court then brought in the jury.           During opening remarks,

Appellant attacked his lawyer.

      THE COURT: . . . . Ladies and gentlemen, you and I are about to
      embark upon the trial of a criminal case brought by the
      Commonwealth of Pennsylvania against Ricky Tejada.

      Mr. Tejada, I want you to keep your voice down. It’s appropriate
      for you to talk to –

      THE COURT: Let the record reflect that the defendant has struck
      his defense attorney. We are going to take a recess and make
      some determinations.




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Id. at 17. Appellant was thereafter removed from the courtroom. Counsel

then moved for mistrial and asked to withdraw, both of which were granted.1

One week later, the judge recused and the matter was reassigned.

       At some point, the court ordered that Appellant was not permitted to

attend the retrial.     On April 29, 2015, the Commonwealth filed a motion

seeking a pre-trial determination of the matter. “The [c]ourt has since [the

mistrial] indicated that [Appellant] is not to be brought, in person, to the

Huntingdon County Courthouse.”             Motion, 4/29/15, at 1. The court later

issued an order scheduling a hearing.

       On July 1, 2015, five days before jury selection, that hearing was

conducted via videoconference link to the state correctional institute where

Appellant was housed.          The transcript of this proceeding is not in the

certified record. The trial court characterized what occurred as follows:

       The [c]ourt held a hearing before the second trial in this matter
       in order to give Appellant the opportunity to rehabilitate himself
       and demonstrate his ability to conduct himself appropriately in
       the courtroom. At this hearing, Appellant only continued to
       display a disruptive demeanor and inability to allow court
       proceedings to continue in his presence.



____________________________________________


1
  Following the mistrial, the Commonwealth requested that “[Appellant] only
be able to participate by video surveillance” for safety reasons. N.T. First
Jury Trial, 1/23/15, at 19. The court indicated that it would rule at a later
date.




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Trial Court Opinion, 4/22/16, at 3.            Appellant does not dispute this

assessment.      “[T]he trial court accurately labeled his behavior at the pre-

trial hearing as disruptive[.]” Appellant’s brief at 20-21.

       As a result of Appellant’s behavior at this hearing, the court refused to

permit Appellant to physically attend jury selection or trial.        However, the

court arranged for Appellant’s attendance at trial via videoconference. The

jury found Appellant guilty and he received the aforementioned sentence.

He filed post-sentence motions for relief, which were denied by operation by

law.    Appellant timely appealed and raises the following issues for our

review.

       I.    Whether the trial court erred and/or abused its discretion
             in sentencing Appellant without benefit of Pre-Sentence
             Investigation?

       II.   Whether the trial court erred in conducti[ng] Appellant’s
             Jury Selection, Trial, and Sentencing via video-
             conferencing?

Appellant’s brief at 8.

       We    first   address   Appellant’s   second   issue   since   an   erroneous

deprivation of the right to be present warrants a new trial. Commonwealth




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v. Vega, 719 A.2d 227 (Pa. 1998) (waiver of right to be present at trial was

defective; new trial awarded).2

       Appellant claims that the trial court violated his constitutional rights by

denying a purported right to physically appear in court prior to his retrial.

       [I]t cannot be overlooked that the hearing referenced by the trial
       court also occurred via video conferencing and Appellant’s
       behavior is easily attributable to the fact that his constitutional
       rights were being actively violated by his exclusion from the
       courtroom. The record in this matter certainly reflects the
       loquacious nature of Appellant and the trial court accurately
       labeled his behavior at the pre-trial hearing as disruptive,
       however, Appellant had already been removed from the
       courtroom and told he would not be permitted to return. Had
       the trial court properly conducted a hearing on the issue
       of Appellant’s appearance at trial and allowed Appellant
       to attend that hearing in person, thereby giving him an
       opportunity to rehabilitate his disruptive behavior; the
       outcome may have been different.

Appellant’s brief at 20-21 (emphasis added).

       Instantly,    Appellant    does    not    claim   that   the   court   erred   in

presumptively barring him from the courtroom due to his attack on counsel

that precipitated the mistrial.3       We do not doubt that the act of attacking

____________________________________________


2
  We acknowledge the distinction between waiver, forfeiture, and implicit
waiver through misconduct. See Commonwealth v. Lucarelli, 971 A.2d
1173 (Pa. 2009).
3
   There is a significant distinction between the forfeiture of the right to be
present, which occurred following Appellant’s attack upon counsel, and
reclamation of that right. Instantly, Appellant’s sole claim regarding this
matter is that the trial court failed to give him an adequate opportunity to
demonstrate his rehabilitation. In other words, the current claim is not that
(Footnote Continued Next Page)


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counsel justified the trial court’s finding that Appellant forfeited his right to

be present at his retrial. See Illinois v. Allen, 397 U.S. 337, 343 (1970)

(“We    believe    trial   judges    confronted   with   disruptive,   contumacious,

stubbornly defiant defendants must be given sufficient discretion to meet the

circumstances of each case. No one formula for maintaining the appropriate

courtroom atmosphere will be best in all situations.”).

       Instead, Appellant claims that, notwithstanding his removal, he should

have been permitted to appear, in person, prior to the retrial in an attempt

to convince the judge that he was willing to behave. Appellant suggests that

the court was required to do so as a component of due process and the

Confrontation Clause of the Sixth Amendment to the United States

Constitution.     We apply a de novo review to both theories.            “A question

regarding whether a due process violation occurred is a question of law for

which the standard of review is de novo and the scope of review is plenary.”

Commonwealth v. Smith, 131 A.3d 467, 472 (Pa. 2015) (citation

omitted).    “[W]hether a defendant ‘was denied his right to confront a

witness under the confrontation clause of the Sixth Amendment is a question

of law for which our standard of review is de novo and our scope of review is

plenary.’” Commonwealth v. Milburn, 72 A.3d 617, 618 (Pa.Super. 2013)

                       _______________________
(Footnote Continued)

Appellant was automatically entitled to be present for the retrial due to the
first trial ending in a mistrial.



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(quoting Commonwealth v. Dyarman, 33 A.3d 104, 106 (Pa.Super.

2011)).

      We begin by discussing the constitutional right to appear at trial. In

Allen, supra, the United States Supreme Court explained that a basic

constitutional right is “the accused’s right to be present in the courtroom at

every stage of his trial.”      Id. at 338.      This right comes from the

Confrontation Clause of the Sixth Amendment to the United States

Constitution, which states that “In all criminal prosecutions, the accused

shall enjoy the right . . . . to be confronted with the witnesses against

him[.]” U.S. Const.Amend. VI.

      In Allen, the trial judge had removed William Allen from the

courtroom due to his behavior. The Court of Appeals for the Seventh Circuit

held that the Confrontation Clause granted an absolute right to be physically

present, and granted him a new trial. That court opined that a trial judge

could deal with unruly defendants through restraints, up to and including

shackles and a gag. Id. at 342. The Supreme Court reversed, finding that

the Sixth Amendment right is not absolute.

      [A] defendant can lose his right to be present at trial if, after he
      has been warned by the judge that he will be removed if he
      continues his disruptive behavior, he nevertheless insists on
      conducting himself in a manner so disorderly, disruptive, and
      disrespectful of the court that his trial cannot be carried on with
      him in the courtroom.




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Id. at 343.       The Court identified removal from the courtroom as one

mechanism to maintain decorum.4                However, the Court further stated that

there is a limitation upon that power:             “Once lost, the right to be present

can, of course, be reclaimed as soon as the defendant is willing to conduct

himself consistently with the decorum and respect inherent in the concept of

courts and judicial proceedings.”         Id. at 343.     Allen did not explain what

form those reclamation procedures must take. Building off this statement in

Allen, Appellant assumes that, since he has a constitutional right to be

present for his trial, it follows that he has the right to physically appear to

regain the right once lost, either as a component of the Confrontation Clause

right or as part of due process. We disagree on both counts.

       First, we do not find that the Confrontation Clause right extends to this

situation.   That right’s “functional purpose [is] in ensuring a defendant an

opportunity for cross-examination.”             Kentucky v. Stincer, 482 U.S. 730,

739 (1987).      However, there was no cross-examination to be achieved at

the hearing to regain the forfeited right. Furthermore, the purpose of the

right is to confront witnesses against the accused; it does not confer any

right to present one’s own testimony.                 That right is rooted in other

constitutional provisions. See Rock v. Arkansas, 483 U.S. 44 (1987) (right

____________________________________________


4
   The Court also identified contempt in addition to shackles and a gag,
expressing great disapproval for the latter.



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to offer own testimony is a component of due process, Compulsory Process

Clause of the Sixth Amendment, and the Sixth Amendment right to jury

trial).     Hence, to the extent Allen requires the physical presence of a

defendant in the courtroom as a component of the Confrontation Clause, the

case is inapposite.

          Next, we examine whether Appellant had a due process right to be

physically present for this hearing.       The following principles govern our

review.

          The Court has assumed that, even in situations where the
          defendant is not actually confronting witnesses or evidence
          against him, he has a due process right “to be present in his own
          person whenever his presence has a relation, reasonably
          substantial, to the fulness of his opportunity to defend against
          the charge.” Snyder v. Massachusetts, 291 U.S. 97, 105–106,
          54 S.Ct. 330, 332, 78 L.Ed. 674 (1934). Although the Court has
          emphasized that this privilege of presence is not guaranteed
          “when presence would be useless, or the benefit but a shadow,”
          id., at 106–107, 54 S.Ct., at 332, due process clearly requires
          that a defendant be allowed to be present “to the extent that a
          fair and just hearing would be thwarted by his absence,” id., at
          108, 54 S.Ct., at 333. Thus, a defendant is guaranteed the right
          to be present at any stage of the criminal proceeding that is
          critical to its outcome if his presence would contribute to the
          fairness of the procedure.

Kentucky v. Stincer, 482 U.S. 730, 745 (1987).

          We will assume arguendo that the trial court was required to afford the

accused an opportunity to demonstrate sufficient rehabilitation following the




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mistrial and subsequent relisting.5            However, we do not hold that due

process mandates physical presence as an element of that hearing.

Stincer, supra held that “a defendant is guaranteed the right to be present

at any stage of the criminal proceeding that is critical to its outcome if his

presence would contribute to the fairness of the procedure.”         Id. at 745.

Herein, Appellant was present, albeit not physically.       Thus, we can modify

the inquiry by asking whether Appellant’s physical presence would have

contributed to the fairness of the hearing.



____________________________________________


5
   Our research has not uncovered a case presenting the scenario herein,
where conduct of the accused simultaneously leads to the grant of a mistrial
and an ongoing forfeiture of the right to be present as applied to the retrial.
Unsurprisingly, the fact patterns in these cases generally involve the trial
proceeding to its conclusion following removal of the defendant.          See
Commonwealth v. Thomas, 879 A.2d 246 (Pa.Super. 2005) (trial
proceeded after defendant removed from courtroom); Commonwealth v.
Henderson, 418 A.2d 757 (Pa.Super. 1980) (same); Commonwealth v.
Howard, 471 A.2d 1239 (Pa.Super. 1984) (defendant removed during jury
selection, permitted to return); Commonwealth v. Basemore, 582 A.2d
861 (Pa. 1990) (defendant removed from courtroom during trial, returned to
hear closing arguments after agreeing to conduct himself properly).

Nor do cases from this Commonwealth discuss what opportunities must be
afforded a defendant seeking reentry to the courtroom. Presumably, the
five month gap from mistrial to retrial had some ameliorative effect on the
behavior. We note that the American Bar Association Standards for Criminal
Justice simply suggest that “there be a standing opportunity for the
defendant to return to the courtroom . . . the defendant periodically should
be offered an opportunity to return to the courtroom, conditional upon good
behavior.” ABA Standards for Criminal Justice 6-3.8.




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      We see no reason to believe that Appellant’s physical presence would

have made any difference to the reliability of the judge’s conclusion that

Appellant was not rehabilitated.     In Stincer, the question presented was

whether the trial court erred in holding an in-chambers hearing to determine

the competency of two child witnesses to testify. This hearing was held after

the jury was sworn and in the presence of the accused’s attorney, but not

the accused himself.   Id. at 732-33.     The court ruled that the girls were

competent to testify. Stincer rejected a due process claim because Stincer

“g[ave] no indication that his presence at the competency hearing in this

case would have been useful in ensuring a more reliable determination[.]”

Id. at 747.

      We find that the same is true here, as Appellant’s only argument to

the contrary is based on pure conjecture.       “Had Appellant appeared in-

person and engaged in disruptive behavior, the trial court’s decision would

be justified. Appellant was not afforded that opportunity and the trial court’s

decision to permanently exclude him was an error.” Appellant’s brief at 22.

We cannot see why Appellant’s physical presence would make the trial

court’s determination of whether Appellant reclaimed his right to be present

at trial any more reliable.   In sum, if Appellant could not behave at the

videoconference hearing, there is little reason to think his behavior would

have been any different in person.




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      Since we have concluded Appellant did not have a constitutional right

to be present for the challenged hearing, the question is whether the trial

court’s employment of videoconferencing technology for that hearing was

appropriate. Pennsylvania Rule of Criminal Procedure 119, “Use of Two-Way

Simultaneous Audio-Visual Communication in Criminal Proceedings,” states,

in pertinent part:

      (A) The court or issuing authority may use two-way
      simultaneous audio-visual communication at any criminal
      proceeding except:

            (1) preliminary hearings;

            (2) proceedings pursuant to Rule 569(A)(2)(b);

            (3) proceedings pursuant to Rules 595 and 597;

            (4) trials;

            (5) sentencing hearings;

            (6) parole, probation, and intermediate punishment
            revocation hearings; and

            (7) any proceeding in which the defendant has a
            constitutional or statutory right to be physically
            present.

Pa.R.Crim.P. 119.    We do not find that the catch-all of paragraph seven

applies, for the foregoing reasons. Hence, the Rule squarely authorized the

instant proceeding and the court committed no error.

      In reaching this conclusion, we note that Allen has been interpreted to

permit the drastic sanction of the forfeiture of the right to counsel based



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upon serious misconduct.     “[E]ven absent a warning, a defendant may be

found to have forfeited certain trial-related constitutional rights based on

certain types of misconduct.”    Gilchrist v. O'Keefe, 260 F.3d 87, 97 (2d

Cir. 2001) (holding, in federal habeas action, that state court did not

unreasonably apply federal law in concluding the defendant forfeited his

right to counsel based on one attack).        Violence is the type of misconduct

that has been held to justify the forfeiture of counsel. See Commonwealth

v. Staton, 120 A.3d 277, 286 (Pa. 2015) (physical assault of counsel in

presence of court establishes forfeiture of right to counsel for purposes of

PCRA proceeding);     Minnesota     v. Lehman, 749          N.W.2d 76, 81-82

(Minn.Ct.App. 2008) (collecting cases and upholding forfeiture where

defendant attacked and beat counsel).

      We are, of course, not presented with that sanction.        However, the

original trial judge granted a mistrial, which was caused by Appellant’s own

conduct, and this judge thereafter gave Appellant an opportunity to

demonstrate his willingness to behave.         We find that procedure struck a

more than adequate balance of Appellant’s constitutional rights against the

obvious threat of violence, especially when the court permitted Appellant to

participate in his trial via videoconference despite the poor behavior.

Indeed, the court’s solution was calibrated to avoid the draconian step of

total forfeiture of his right to be present, and complied with Allen’s directive




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that an accused be given an opportunity to reclaim his right. Accordingly,

we find no error.

       We now address Appellant’s sentencing claim. Appellant avers that he

is entitled to a new sentencing hearing because the trial court sentenced him

without the benefit of a pre-sentence investigation (“PSI”) report.           We

agree.6

       This claim implicates the discretionary aspects of the sentence. See

Commonwealth v. Finnecy, 135 A.3d 1028 (Pa.Super. 2016). Therefore,

this challenge is not automatically reviewable as of right. Commonwealth

v. Disalvo, 70 A.3d 900, 902 (Pa.Super. 2013).         Before we review such a

claim on the merits, we engage in a four part analysis to determine:

       (1) whether the appeal is timely; (2) whether Appellant
       preserved his issue; (3) whether Appellant's brief includes a
       concise statement of the reasons relied upon for allowance of
       appeal with respect to the discretionary aspects of sentence [see
       Pa.R.A.P. 2119(f)]; and (4) whether the concise statement raises
       a substantial question that the sentence is appropriate under the
       sentencing code. . . .

Id. (citation omitted). We decide the substantive merit of the claims only if

each requirement is satisfied. Id.



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6
  Appellant also asserts that the trial court violated his constitutional right to
be present for sentencing. Since we have concluded that Appellant is
entitled to re-sentencing on an alternative basis, we do not need to address
this argument.



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      This appeal was timely filed and includes a separate statement of

reasons as required by Pa.R.A.P. 2119(f). Additionally, Appellant specifically

objected to the lack of a PSI report at the sentencing hearing, preserving the

issue for our review. Finally, Appellant alleges that the court did not state

adequate reasons for dispensing with the report.        This claim presents a

substantial question.     Commonwealth v. Kelly, 33 A.3d 638, 640

(Pa.Super. 2011).

      We now review the merits of the claim.         Pursuant to Pa.R.Crim.P.

702(A)(2)(a), a judge is required to explain the reasons for dispensing with

a PSI report when, as here, incarceration for one year or more is a possible

sentence. Hence, the sentencing judge was obligated to explain why he did

not order a PSI report.

      In Commonwealth v. Flowers, 950 A.2d 330 (Pa.Super. 2008), we

held that Rule 702(A)(2) does not require a court to specifically document

the reasons for dispensing with a report.       Instead, the court has some

latitude in fulfilling that requirement, since the ultimate goal of a PSI report

is to ensure that the court is “apprised of comprehensive information to

make the punishment fit not only the crime but also the person who

committed it.” Commonwealth v. Goggins, 748 A.2d 721, 728 (Pa.Super.

2000) (en banc) (citation omitted). Thus, a court may sentence without the

benefit of a PSI report if it possesses the necessary information from another

source. Id.

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      In Flowers, supra, we stated that the harmless error doctrine might

apply “[if] the court elicited sufficient information during the colloquy to

substitute for a PSI report, thereby allowing a fully informed sentencing

decision.” Id. at 333. The trial court requests that we affirm the judgment

of sentence on this basis.      Trial Court Opinion, 4/22/16, at 4 (citing

Flowers).

      However, we cannot accept this conclusory statement.           Following

Appellant’s objection to the lack of a PSI report, the court immediately

imposed sentence with no further discussion or input from the parties.

Hence, we cannot credit the court’s conclusion that personal knowledge

sufficed, since the record fails to reveal the extent of that knowledge. Id. at

333, n.2 (listing factors that must be addressed in a PSI report).        See

Commonwealth v. Monahan, 860 A.2d 180 (Pa.Super. 2004) (“[W]hile it

is possible that the trial judge already knew [the defendant] from prior

contact, nothing in the record reveals to us the nature, quality, or extent of

that knowledge.”). Moreover, the sentencing transcript indicates that a PSI

report was ordered but it was not completed for unknown reasons, implicitly

suggesting that a report would be helpful. Order, 7/24/15, at 1 (directing

Huntingdon County Probation Department to prepare a PSI report).

      Therefore, we vacate the judgment of sentence and remand for further

proceedings. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/26/2017




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