J-S63001-17



                           2017 PA Super 388

COMMONWEALTH OF PENNSYLVANIA               IN THE SUPERIOR COURT OF
                                                 PENNSYLVANIA


                 v.

RICKY TEJADA

                      Appellant                 No. 24 WDA 2016


               Appeal from the Order December 18, 2015
              In the Court of Common Pleas of Erie County
          Criminal Division at No(s): CP-25-CR-0002407-2015


COMMONWEALTH OF PENNSYLVANIA               IN THE SUPERIOR COURT OF
                                                 PENNSYLVANIA


                 v.

RICKY TEJADA

                      Appellant                No. 119 WDA 2016


                Appeal from the Order January 11, 2016
              In the Court of Common Pleas of Erie County
          Criminal Division at No(s): CP-25-CR-0002407-2015


COMMONWEALTH OF PENNSYLVANIA               IN THE SUPERIOR COURT OF
                                                 PENNSYLVANIA


                 v.

RICKY TEJADA

                      Appellant                No. 170 WDA 2016
J-S63001-17



                Appeal from the Order December 17, 2015
               In the Court of Common Pleas of Erie County
           Criminal Division at No(s): CP-25-CR-0002407-2015


COMMONWEALTH OF PENNSYLVANIA               IN THE SUPERIOR COURT OF
                                                 PENNSYLVANIA


                  v.

RICKY TEJADA

                       Appellant                No. 872 WDA 2016


                   Appeal from the Order March 9, 2016
               In the Court of Common Pleas of Erie County
           Criminal Division at No(s): CP-25-CR-0002407-2015


COMMONWEALTH OF PENNSYLVANIA               IN THE SUPERIOR COURT OF
                                                 PENNSYLVANIA


                  v.

RICKY TEJADA

                       Appellant                No. 892 WDA 2016


                   Appeal from the Order March 9, 2016
               In the Court of Common Pleas of Erie County
           Criminal Division at No(s): CP-25-CR-0002407-2015


BEFORE:   BOWES, J., SOLANO, J., AND FORD ELLIOTT, P.J.E.

OPINION BY BOWES, J.:                    FILED DECEMBER 12, 2017

     Ricky Tejada appeals from the judgment of sentence of four to eight

years incarceration imposed following his convictions for two counts of

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aggravated harassment by a prisoner. Appellate counsel has filed a petition

to withdraw from representation and a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009). We deny the petition, and order the filing of a merits

brief.

         The factual history of Appellant’s crimes is straightforward. Appellant,

while incarcerated in SCI Albion, threw urine at corrections officers on two

separate occasions, and was charged with two counts of aggravated

harassment by a prisoner. He was found guilty of both counts following a

jury trial held in absentia, and received the aforementioned sentence. The

facts pertinent to our disposition of this matter largely concern what

occurred prior to trial, and we therefore review those facts in some detail.

         First, Appellant elected to represent himself at trial.       Appellant

appeared for a scheduled jury trial on January 11, 2016, and the

proceedings commenced with the trial court asking, “it’s my understanding

you are representing yourself; is that correct?”          N.T., 1/11/16, at 3.

Appellant confirmed that he intended to act as his own attorney.1 Following

____________________________________________


1
  During this hearing, Appellant stated, “I never moved for appointment of
counsel, so why do I have a waiver?” N.T, 1/11/16, at 3. The pertinent Rule
of Criminal Procedure provides:

         (A) Counsel shall be appointed:
         ....
(Footnote Continued Next Page)


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a waiver colloquy, the trial court concluded that Appellant validly waived his

right to counsel.

        At that juncture, Appellant argued that he was entitled to a

continuance, stating that the Commonwealth had failed to provide discovery

pursuant to a pre-trial order directing the Commonwealth to send discovery

to Appellant.2 The Commonwealth represented that it had complied with the

earlier order and had sent discovery to SCI Albion.           Based solely on that

representation, the trial court denied the continuance and suggested

Appellant’s recourse was to challenge any deviations from the discovery on

appeal.     “[Y]ou had time to prepare.           The Commonwealth has sent your




                       _______________________
(Footnote Continued)


        (2) in all court cases, prior to the preliminary hearing to all
        defendants who are without financial resources or who are
        otherwise unable to employ counsel;

Pa.R.Crim.P. 122. The Comment thereto states, “Ideally, counsel should be
appointed to represent indigent defendants immediately after . . .
preliminary arraignment in all court cases.” The certified record contains a
waiver of counsel form signed by the magisterial district judge, who
indicated that Appellant waived his right to counsel at the preliminary
hearing.
2
    We note that the January 11, 2016 proceeding was the first court listing.




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J-S63001-17



discovery. And as I said, if that is inconsistent with the evidence presented

at trial, you can challenge it on appeal.” N.T., 1/11/16, at 14.3

       Appellant then claimed that he was incompetent to proceed and

demanded a competency hearing, which the trial court denied on the basis

that Appellant’s behavior did not indicate any incompetency. Following that

discussion, the trial court informed Appellant that jury selection would

proceed “as soon as we get a jury panel available.” Id. at 15.

       Following a recess the trial court asked, “[Appellant], I need to know if

you are going to stay for your trial?”         Id.   Appellant claimed that he was

“not the defendant” and argued that the court “has no jurisdiction to

proceed.”    Id. at 16.      Appellant does not appear to have been otherwise

disruptive of the proceedings, as reflected by the fact that the trial court

stated, “I’m going to allow you to remain, but if you disrupt the proceeding,

in any way, you will be removed and the trial will go on without you.” Id. at

17.

       The jury panel then entered the room. Appellant requested to admit

into evidence the voir dire sheets, claiming that the sheets were “illegible

and incomprehensible because of the writing.”            Id. at 18.   Significantly,

Appellant followed that statement with the following request:
____________________________________________


3
  Left unexplained is why the trial court did not simply order the
Commonwealth to make another copy of the discovery, given the relatively
simple nature of this case.



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     The defense also makes it known for the record he requires
     counsel. I told you numerous times I don’t understand. You’re
     trying to push the trial on me. I got a 6th Amendment right to
     counsel. It’s not filled out and I told you, I’m asking for my
     constitutional 6th amendment right since you’re forcing the trial
     on me improperly.

     THE COURT: Mr. Tejada, you waived your right to counsel.

     MR. TEJADA: And I got a constitutional right to get it reinstated.

     THE COURT: Excuse me. Mr. Tejada, I’m speaking. I didn’t
     interrupt you and don’t interrupt me. You waived your right to
     counsel approximately one hour ago before this [c]ourt. I went
     over the rights waiver in detail with you. You answered the
     questions appropriately and waived your right to counsel. . . .

Id. at 18-19.     Appellant interjected, “The constitution doesn’t put no

restraints on when I can reinstate that right. I’m timely reinstating it.” Id.

at 20. Following more discussion, the trial court stated, “[Y]our outbursts

will not be tolerated, you will be removed from this courtroom, you will be

tried in absentia.” Id. at 21. Finally, the trial court stated that Appellant

could communicate with the court so long as he followed the rules, to which

Appellant replied, “Then appoint standby counsel to communicate with the

[c]ourt.” Id. The trial court repeated that outbursts would not be tolerated.

The following exchange occurred:

     MR. TEJADA: So are you saying I’m denied the right to standby
     counsel? If not, appoint me counsel. Is that what you’re saying
     for the record?

     THE COURT: I’m saying that we are going to begin voir dire.

     MR. TEJADA: If you conduct voir dire, then I need counsel.



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          THE COURT: You already waived your right to counsel.

          MR. TEJADA: And I’m petitioning to reinstate in accordance with
          the Pennsylvania Rules of Criminal Procedure 120.

          The COURT: Well, it’s too late at this point.

          MR. TEJADA: So you’re waiving my right to counsel or standby
          counsel?

          THE COURT: All right. Take Mr. Tejada out, please.

Id. at 22.

          Jury selection and the trial continued in Appellant’s absence, without

anyone representing Appellant’s interests.         Appellant was convicted of all

charges and received the aforementioned sentence.               Appellant timely

appealed and complied with the order to file a Pa.R.A.P. 1925(b) statement.4

This matter is ready for our review. In the Anders brief, counsel raised the

following three issues before concluding that the appeal was wholly

frivolous:


    I.       Whether the trial court erred and/or abused its discretion in
             failing to order a psychiatric examination in order to
             determine whether the Appellant was competent to stand trial
             and participate in his own defense?

    II.      Whether the trial court erred and/or abused its discretion in
             order[ing] the Appellant removed from the court room prior
             to trial and conduct[ing] the trial in absentia[?]

____________________________________________


4
 Appellant filed several premature notices of appeal, in addition to a timely
notice of appeal from judgment of sentence, which were consolidated.



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   III.   Whether [Appellant]’s sentence is manifestly excessive,
          clearly unreasonable and inconsistent with the objectives of
          the Sentencing Code?

Anders brief at 3.

      Since counsel has filed a petition to withdraw, we must first rule on the

request to withdraw without reviewing the merits of the underlying issues.

Commonwealth v. Blauser, 166 A.3d 428 (Pa.Super. 2017). In order to

withdraw    from   appellate   representation   pursuant   to Anders,   certain

procedural and substantive requirements must be met.             Procedurally,

counsel must 1) petition the court for leave to withdraw stating that, after

making a conscientious examination of the record, counsel has determined

that the appeal would be frivolous; 2) furnish a copy of the brief to the

defendant; and 3) advise the defendant that he or she has the right to retain

private counsel or raise additional arguments that the defendant deems

worthy of the court's attention. See Commonwealth v. Cartrette, 83 A.3d

1030 (Pa.Super. 2013) (en banc).

      The petition to withdraw sets forth that counsel has reviewed the

entire record, and concluded that there are no actual or potential non-

frivolous issues. The petition includes a copy of the letter sent to Appellant,

which informed Appellant that he had the right to retain new counsel, or

proceed pro se and raise additional arguments on his own behalf.




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Additionally, the letter states that Appellant was supplied with a copy of the

Anders brief.5 Therefore, the procedural requirements have been met.

        We   now     examine      whether      the   brief   meets   the   substantive

requirements as set forth by our Supreme Court in Santiago.                  The brief

must:

        (1) provide a summary of the procedural history and facts, with
        citations to the record;

        (2) refer to anything in the record that counsel believes arguably
        supports the appeal;

        (3) set forth counsel's conclusion that the appeal is frivolous;
        and

        (4) state counsel's reasons for concluding that the appeal is
        frivolous. Counsel should articulate the relevant facts of record,
        controlling case law, and/or statutes on point that have led to
        the conclusion that the appeal is frivolous.

Commonwealth v. Daniels, 999                   A.2d 590, 593 (Pa.Super. 2010)

(citing Santiago, supra at 361).

        We conclude that this brief complies with the first three prongs, but

fails with respect to the fourth prong as applied to the second issue on

appeal. The brief states:

        As to the first two issues presented by the Appellant questioning
        the discretion of the trial court regarding the denial of a request
____________________________________________


5
  Appellant filed a response, averring that counsel overlooked numerous trial
errors. However, since Appellant elected to represent himself, all of those
issues would be waived, presuming for the moment that the waiver and
Appellant’s absence from trial were valid.



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       for a competency exam and the Appellant's removal from the
       courtroom and subsequent trial in absentia, the reasons for
       doing so are well documented on the record and further
       supported by the trial court in [the] supplemental opinions.

Anders brief at 11.          This analysis does not constitute counsel’s own

articulation of controlling case law. While we do not dispute that, in some

circumstances, a well-reasoned and thorough trial court opinion can serve to

satisfy the fourth prong of Santiago, the analysis relied upon by counsel

likewise failed to articulate and explain the pertinent law:

       The [c]ourt stands by the record as to the basis for the
       Defendant’s/Appellant’s removal from the courtroom.         The
       Defendant/Appellant was warned of the consequences if he
       continued his disruptive behavior and chose to do so. And at no
       time after he was removed did he ever indicate to the [c]ourt he
       wished to return and would conform his behavior to a level of
       decorum     consistent    with    such     proceedings.     The
       Defendant’s/Appellant’s behavior and choices [were] entirely in
       keeping with his long-term history of behavior, both in and out
       of prison. No violation of the Defendant’s/Appellant’s rights
       occurred in light of the facts and circumstances of the
       Defendant’s/Appellant’s words and actions and counsel has
       pointed to nothing of record indicative of such.

Trial Court Opinion, 2/17/17, at 2.

       In the interests of judicial economy, we will not remand for a proper

Santiago analysis, as Appellant’s second issue presents a non-frivolous

claim.6 The trial court’s decision to proceed with the trial in absentia may be

____________________________________________


6
  With respect to the competency issue, we agree that this issue is frivolous,
and that the trial court did not abuse its discretion in finding that Appellant’s
request for a competency examination was a tactic designed to delay the
(Footnote Continued Next Page)


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justifiable in the abstract.        Indeed, this Court recently issued an opinion

involving Appellant, which included our review of a Huntingdon County trial

court’s decision to bar Appellant from the courtroom for his retrial after

Appellant attacked his appointed counsel during the prior proceeding. See

Commonwealth v. Tejada, 161 A.3d 313 (Pa.Super. 2017).                Appellant’s

behavior may well have rendered it impossible to continue in an orderly

fashion, and this Court recognizes that the written transcript cannot provide

crucial context, such as volume level, demeanor, or tone.

      However, the flaw in the trial court’s analysis, and by extension

appellate counsel’s adoption of that analysis, is that it fails to recognize the

significance of Appellant’s pro se status as it bears on his right to

representation at trial.          Accepting arguendo that the trial court was

authorized to bar Appellant from the courtroom as a result of his behavior, it

does not necessarily follow that those same principles permitted the trial to

continue without any representation of his interests. It does not appear that

any precedent from this Commonwealth has directly addressed this

particular scenario.      However, our research has revealed that the Court of

Appeals of Oregon recently confronted this exact issue:


                       _______________________
(Footnote Continued)

trial. Regarding the third issue, which concerns the discretionary aspects of
Appellant’s sentence, that issue is frivolous as Appellant did not request
reconsideration and the issue was therefore not preserved.



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     In [State v. Menefee, 341 P.3d 229 (Or.App. 2014)], we set
     forth the procedure that the Sixth Amendment requires a trial
     court to follow when a self-represented defendant's misconduct
     causes the court to remove the defendant from the courtroom.
     The issue was one of first impression in Oregon and, after
     reviewing the case law from other state and federal courts to
     have considered the question, we observed that a situation like
     that confronted by the trial court here raises “complex
     constitutional issues,” because it implicates three related but
     distinct Sixth Amendment rights: (1) the right to be present at
     trial; (2) the right to self-representation; and (3) the right to
     representation.     Persuaded by the Ninth Circuit's analysis
     in United States v. Mack, 362 F.3d 597 (9th Cir. 2004), we
     held that a defendant may forfeit the first two of those rights by
     misconduct, but does not forfeit the third: “although a defendant
     who acts out at trial may forfeit the right to be present and the
     right to self-representation in the proceeding, the defendant
     does not also forfeit the right to any representation at trial.”

     Consequently, because a criminal defendant does not forfeit the
     right to representation by misconduct (only the rights to self-
     representation and to be present), “after a trial court has
     removed a pro se defendant for his or her misconduct, the trial
     court cannot proceed in the defendant's absence unless
     and until the trial court has either secured the defendant's
     waiver of his or her right to representation at trial or has
     taken some other course of action that protects the
     defendant's right to representation, which may include the
     appointment of counsel.” . . . .

     As the Ninth Circuit recognized in Mack, one of the primary
     rationales for this approach is to protect the structural integrity
     of our criminal justice system. Where a criminal case is tried
     against a vacant defense table, the adversarial process has
     broken down, and cannot ensure that the convictions rendered
     are fair and reliable. Our system strives to be fair, even to those
     who, like the defendant in Menefee and defendant here, work
     the hardest to undermine it. And the Sixth Amendment imposes
     upon us, as courts, an obligation to do what we can to prevent
     them from succeeding. This does not mean that a court has to
     tolerate an obstreperous defendant's presence in the courtroom,
     but it does mean that the court may have to appoint counsel for
     a defendant who previously elected to proceed pro se,

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       notwithstanding the awkwardness of doing so mid-trial. For this
       reason, as we observed in Menefee, “it is advisable for a trial
       court to appoint advisory counsel for a defendant whom the
       court suspects will be disruptive so that the court can appoint
       that lawyer as counsel if the defendant can no longer represent
       himself.”

       In this case, after defendant forfeited his rights to be present
       and self-representation, the trial court continued the trial in
       defendant's absence without complying with the procedure set
       forth in Menefee. The court did not secure a waiver of
       defendant's right to representation, it did not appoint counsel,
       and it did not take other measures to protect defendant's right
       to representation after it removed him from the courtroom. As a
       result, defendant was deprived both of closing argument and the
       ability to participate in the trial on the sentencing enhancement
       factors.

State v. Lacey, 385 P.3d 1151, 1152–53 (Or.App. 2016) (emphasis added,

some citations omitted), review allowed, 393 P.3d 1176 (Or. 2017).

       We agree with our sister court that these factual circumstances involve

complex constitutional issues regarding Appellant’s Sixth Amendment rights.

Accordingly, we cannot conclude that there is no arguable merit to the claim

that the trial court erred by permitting the trial to proceed in absentia

without any adversarial testing whatsoever, especially when the trial had yet

to begin when Appellant was removed from the courtroom.7

       We recognize that Appellant appears, by all accounts, to be an

obstreperous and contumacious individual, as evidenced by, inter alia, the
____________________________________________


7
  We do not express any opinion on the merits of the Lacey analysis.
Rather, we invoke that precedent to demonstrate that Appellant’s claim is
not frivolous.



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fact that he attacked his court-appointed counsel in another proceeding.

Tejada, supra.    Additionally, a review of the January 11, 2016 transcript

reveals that Appellant engaged in absurd tactics; e.g. he repeatedly refused

to answer questions by insisting that he was not the defendant, demanded a

competency hearing, asked the trial court to charge the prosecutor with

perjury, and continually maintained that the courts lacked jurisdiction over

his person. However, we agree with the Oregon Court of Appeals that our

judicial system must strive “to be fair, even to those who . . . work the

hardest to undermine it. And the Sixth Amendment imposes upon us, as

courts, an obligation to do what we can to prevent them from succeeding.”

Lacey, supra at 1153.

      Similarly, Anders imposes upon this court an obligation to guard

against any further erosion of Appellant’s right to a direct appeal. In light of

the obvious constitutional issues raised by permitting a trial without any

representation of Appellant’s interests, we cannot agree that the second

issue is wholly frivolous, and we therefore must deny counsel’s request to

withdraw.

      Finally, we note that, due to our conclusion that the second issue

presented is not frivolous, we have no occasion to probe the record for

additional non-frivolous issues. See Commonwealth v. Blauser, 166 A.3d

428, 434 (Pa.Super. 2017) (requiring counsel to file merits brief due to a

finding that one of the issues set forth in the Anders brief was not wholly

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frivolous; panel did not proceed to independently examine record for

additional issues).8     Simultaneously, we wish to make plain that our order

directing a merits brief with respect to the second issue does not represent

sub silentio a conclusion that no other arguably meritorious issues exist.

       Petition to withdraw denied.            We grant appellate counsel thirty days

from the date of this decision to file an advocate's brief, and the
____________________________________________


8
  We are cognizant of the criticisms of reviewing the record for additional
issues not raised by counsel when an Anders brief has been filed, in that an
appellant represented by an attorney who files a merits brief is limited to the
issues raised. Since we have determined that one of the issues presented in
the statement of questions is arguably meritorious, we would exceed the
scope of our review by continuing to review the record for additional issues
that counsel did not identify.

Nevertheless, this case serves as a compelling example of the value in
independently reviewing the record. It is difficult to accept that this appeal
is wholly frivolous given that the trial court: (1) denied Appellant’s request
for continuance and forced Appellant to proceed to trial without even
ordering the Commonwealth to make an additional copy of the discovery;
(2) refused to entertain the notion of appointing counsel when Appellant
vacillated less than an hour after waiving his right to counsel and where jury
selection had barely commenced; (3) failed to appoint stand-by counsel; and
(4) permitted the Commonwealth to present a case entirely unopposed,
thereby all but assuring a guilty verdict. While this Court cannot insert itself
as an advocate, we urge counsel to conduct another review of the record
due to the misapprehension regarding Appellant’s rights to representation.

Relatedly, it is to the Commonwealth’s discredit that it likewise failed to
bring the arguably meritorious issue to our attention. “[P]rosecutors are to
seek justice, not only convictions. This obligation to seek justice includes
the responsibility to assure that the defendant receives a fair and impartial
trial.” Commonwealth v. Cherry, 378 A.2d 800, 803 (Pa. 1977) (citations
omitted). It is difficult to concoct a scenario that entails a higher risk of an
unfair trial than allowing trial to proceed with no one representing the
criminal defendant’s interests.



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Commonwealth thirty days thereafter to file a responsive brief. Jurisdiction

retained.




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