J-A08031-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                      Appellee             :
                                           :
                      v.                   :
                                           :
WILLIAM VAUGHN HOOPER,                     :
                                           :
                       Appellant           :     No. 1473 MDA 2014

         Appeal from the Judgment of Sentence Entered March 27, 2014
             in the Court of Common Pleas of Huntingdon County,
             Criminal Division, at No(s): CP-31-CR-0000006-2013

BEFORE:       SHOGAN, WECHT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                         FILED MAY 29, 2015

        William Vaughn Hooper (Appellant) appeals from the judgment of

sentence entered following his convictions for simple assault and terroristic

threats.1 We affirm.

        The trial court set forth the relevant factual history of this case as

follows.

        [O]n December 27, 2012, around 4:00 p.m., Appellant and his
        wife, Carol, engaged in a dispute at their residence located at
        10271 Fairgrounds Road, Huntingdon, Pennsylvania. The event
        that precipitated the fight was Mrs. Hooper’s belief that her
        husband had operated his vehicle while intoxicated with her
        granddaughter as a passenger. At their home, Mrs. Hooper
        testified, she told him to get out because she had had enough.
        He grabbed ahold of the back of her hair, she said, and yanked it
        down, and then grabbed her by the back of her neck. He kept
        trying to push her head down toward the sink, she said; and
        kept drawing his fist back saying he was going to hit her. Also,

1
    18 Pa.C.S. §§ 2701(a)(1) and 2706(a)(1), respectively.


*Retired Senior Judge assigned to the Superior Court.
J-A08031-15


     she testified, he told her he was going to burn the house down.
     He never hit her, she said, but the event aggravated existing
     medical conditions and caused her pain. Her granddaughter, she
     testified, was frightened by the fight.

            Sgt. Brian Ianuzzi and Trooper Bradley Clark of the
     Pennsylvania State Police were witnesses. Both men reported
     that both Mrs. Hooper and her granddaughter Madison were
     visibly upset, and both men opined that [Appellant] was very
     drunk. Sgt. Ianuzzi testified there were visible marks on Mrs.
     Hooper’s shoulder which he photographed.

Trial Court Opinion, 10/3/2014, at 3-4.

     This matter proceeded to a jury trial, following which Appellant was

convicted of the aforementioned charges.       On March 27, 2014, Appellant

was sentenced to an aggregate term of 9 to 23 months’ incarceration.

Appellant timely filed a post-sentence motion, which was denied by

operation of law on October 20, 2014. This timely appeal followed. Both

Appellant and the trial court complied with the mandates of Pa.R.A.P. 1925.

     Appellant raises four issues on appeal.

     1. Was the evidence presented at trial sufficient to convict
     [Appellant] of the offenses charged?

     2. Was [Appellant’s] right to the assistance of counsel at trial
     respected, when he was twice provided court-appointed counsel
     for jury selection, but then denied a court-appointed attorney for
     the trial itself, even though he demonstrated his inability to pay?

     3. Was [Appellant’s] right to confront the witnesses presented
     against him at trial respected, when he was not provided with
     counsel to assist him in cross-examination?

     4. Was [Appellant] provided an adequate opportunity to attend
     his trial, when he was removed from the courtroom partway
     through trial?



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Appellant’s Brief at 5-6.

      Appellant first challenges the sufficiency of the evidence presented at

trial, arguing that the Commonwealth failed to prove that he acted with the

requisite mens rea for each of the aforementioned offenses. Appellant’s Brief

at 12-15.

             The standard we apply in reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial in
      the light most favorable to the verdict winner, there is sufficient
      evidence to enable the fact-finder to find every element of the
      crime beyond a reasonable doubt. In applying the above test, we
      may not weigh the evidence and substitute our judgment for the
      fact-finder. In addition, we note that the facts and circumstances
      established by the Commonwealth need not preclude every
      possibility of innocence. Any doubts regarding a defendant’s guilt
      may be resolved by the fact-finder unless the evidence is so
      weak and inconclusive that as a matter of law no probability of
      fact may be drawn from the combined circumstances. The
      Commonwealth may sustain its burden of proving every element
      of the crime beyond a reasonable doubt by means of wholly
      circumstantial evidence. Moreover, in applying the above test,
      the entire record must be evaluated and all evidence actually
      received must be considered. Finally, the trier of fact while
      passing upon the credibility of witnesses and the weight of the
      evidence produced, is free to believe all, part or none of the
      evidence.

Commonwealth v. Knox, 50 A.3d 749, 754 (Pa. Super. 2012) (quoting

Commonwealth v. Brown, 23 A.3d 544, 559–60 (Pa. Super. 2011) (en

banc)).

      Appellant was convicted of simple assault and terroristic threats.

Under the Crimes Code, “[a] person is guilty of [simple] assault if he: (1)

attempts to cause or intentionally, knowingly or recklessly causes bodily




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injury to another….” 18 Pa.C.S. § 2701(a)(1).      18 Pa.C.S. § 2301 defines

“bodily injury” as “[i]mpairment of physical condition or substantial pain.”

      Our Crimes Code defines the offense of terroristic threats, in pertinent

part, as follows:

      § 2706. Terroristic threats

      (a) Offense defined.―A person commits the crime of
      terroristic threats if the person communicates, either directly or
      indirectly, a threat to:

            (1) commit any crime of violence with intent to
            terrorize another.

18 Pa.C.S. § 2706(a)(1). “Neither the ability to carry out the threat, nor a

belief by the person threatened that the threat will be carried out, is an

element of the offense.” Commonwealth v. Reynolds, 835 A.2d 720, 730

(Pa. Super. 2003) (quoting In re J.H., 797 A.2d 260, 262 (Pa. Super.

2002)).

      Rather, the harm sought to be prevented by the statute is the
      psychological distress that follows from an invasion of another’s
      sense of personal security. Section 2706 is not meant to penalize
      mere spur-of-the-moment threats which result from anger. In
      re J.H., 797 A.2d at 262-63. See also [Commonwealth v.
      Tizer, 684 A.2d 597, 600 (Pa. Super. 1996)] (indicating statute
      is not meant to penalize spur-of-the-moment threats arising out
      of anger during a dispute); Commonwealth v. Anneski, 362
      Pa. Super. 580, 525 A.2d 373 (1987) (concluding where
      defendant threatened to retrieve and use gun against her
      neighbor during argument, in which the neighbor also
      threatened to run over defendant’s children with her car, did not
      constitute a terroristic threat because circumstances of the
      exchange suggested spur-of-the-moment threat made during
      heated exchange and defendant lacked a settled purpose to
      terrorize her neighbor). However, [b]eing angry does not



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      render a person incapable of forming the intent to
      terrorize. [T]his Court must consider the totality of
      circumstances to determine whether the threat was a
      result of a heated verbal exchange or confrontation.

Reynolds, at 730 (some internal citations and quotation marks omitted)

(emphasis added).

      The record reveals that the Commonwealth presented sufficient

evidence to sustain Appellant’s convictions.      The victim in this matter,

Appellant’s former wife, testified that she confronted Appellant after

observing him driving erratically with her granddaughter in the car. N.T.,

1/22/2014, at 17-19.    She testified that Appellant was exhibiting signs of

intoxication, although he denied consuming alcohol that day. Id. at 19. The

argument escalated, with Appellant calling the victim derogatory names and

the victim ordering Appellant to leave the house. Id. at 21-22. Appellant

then rushed at the victim, grabbed the back of her hair and the back of her

neck, and attempted to push her head towards the kitchen sink. Id. at 22.

The victim testified that Appellant was screaming at her and “drawing his fist

back and saying he was going to hit [her].” Id. The victim testified that she

suffers from various ailments and Appellant’s use of force on her head and

neck caused her substantial pain. Id. at 23-24, 26-27. After releasing the

victim, Appellant sat in a recliner, placed a lit Zippo lighter on the carpeted

floor next to him, and informed the victim he was going to burn the house

down with the victim and her granddaughter inside.        Id. at 24-25.    The




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police arrived on scene shortly thereafter. At trial, the responding officers’

testimony corroborated the victim’s injuries, as well as Appellant’s angry

state and visible intoxication. Id. at 31-38.

      Instantly,   Appellant   argues    that   the   trial   court   erred   in   its

determination because he was “distraught [over his wife’s perceived

infidelity] and expressing his anger and frustration.” Appellant’s Brief at 15.

Appellant goes on to argue that his behavior was “more likely to hurt

himself” and “although he may actually have caused her harm, and may

actually have caused her fear” his actions were not accompanied by a

culpable mental state as required by the statute. Id.

      We are not persuaded by Appellant’s argument. Appellant’s act of

rushing the victim, grabbing her hair, head and neck and attempting to force

it onto a hard surface is sufficient for a jury to find him guilty of simple

assault.   The victim was Appellant’s wife.     He was obviously aware of her

various ailments, not to mention it is patently obvious that use of force to

another person’s head is likely to cause impairment or injury.

      With respect to his terroristic threats conviction, as discussed above,

even were we to consider Appellant’s comments as those made in the heat

of anger, being angry does not render a person incapable of forming the

intent to terrorize. Reynolds, 835 A.2d at 730. Moreover, the victim

testified that she took Appellant’s threats to punch her and burn the home

down seriously. Viewed in the light most favorable to the Commonwealth,



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J-A08031-15


the evidence is sufficient to prove that Appellant acted with the requisite

intent to terrorize. Accordingly, for all of the foregoing reasons, we find that

Appellant’s first claim is without merit.

      In Appellant’s second issue, he claims that he was denied his

constitutional right to counsel. Appellant’s Brief at 16-19. This issue raises a

pure question of law. Accordingly, we apply a de novo standard of review,

and our scope of review is plenary. Commonwealth v. Worthy, 957 A.2d

720, 724 (Pa. 2008).

      It is undisputed that Appellant was unrepresented at trial. The issue

presented is whether he waived or forfeited his right to counsel. Because

there is no record of the trial court engaging in a colloquy to ensure

Appellant had knowingly, voluntarily, and intelligently waived his right to

counsel, we cannot find waiver. Pa.R.Crim.P. 121.            However, as our

Supreme Court has held, Rule 121 and the colloquy requirements do not

apply to situations in which forfeiture is found. See Commonwealth v.

Lucarelli, 971 A.2d 1173 (Pa. 2009).

      After his arrest, Appellant’s bail was set at $25,000. By virtue of his

incarceration, the Office of the Public Defender (OPD) was appointed to

represent Appellant at his preliminary hearing on January 8, 2013.

Appellant waived his preliminary hearing that day in exchange for a bail

modification and was released from the Huntington County Jail on January 8,

2013. Appellant was still represented by the OPD at his formal arraignment



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J-A08031-15


on February 14, 2013.      However, Appellant appeared for his second

scheduled jury selection date without an attorney.       At that time, the

following exchange took place.

     THE COURT: All right, [Appellant], you want to come up and sit
     down? I have some questions I want to ask you. Obviously you
     are here without an attorney.

     [APPELLANT]: Public Defender decided he didn’t want to have
     my case for some reason.

     THE COURT: That’s not what I recall and I just spoke to the
     Public Defender. My recollection and his recollection is that you
     were asked to complete a new application [to determine if you
     qualified financially for the services of the OPD] and refused to
     do that.

     [APPELLANT]: I didn’t refuse to do that. I didn’t receive the
     applications till [sic] actually I got out from the courtroom and
     got home. Because I got home from -- that morning from out of
     town.

     THE COURT: Were you working at the time?

     [APPELLANT]: I was out of town. I wasn’t working.

     THE COURT: Didn’t -- [the Public Defender’s] recollection is you
     told him you were losing money by being here.

     [APPELLANT]: Yes, I had a job to do that morning, yes, but I
     was out of town.

     THE COURT: Did you receive an application for the [OPD]?

     [APPELLANT]: After I got home that day because I just got --

     THE COURT: Did you complete it?

     [APPELLANT]: No. I didn’t have time. I had been here in court.

     THE COURT: But when you got home did you ever complete --



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J-A08031-15



      [APPELLANT]: When I got home from court, no, because he told
      me he wasn’t going to be my attorney.

N.T., 11/21/2013, at 1-2. The trial court confirmed that Appellant wished to

proceed with court-appointed counsel, whereupon the court provided

Appellant with a new application for the OPD. A brief recess was taken to

allow Appellant to complete the application.

      THE COURT: All right, [Appellant], your application has been
      reviewed by the Public Defender and me and it was clear to me
      before I showed it to the Public Defender that you don’t qualify
      for a [p]ublic [d]efender. If your annual income in the past 12
      months, which you say is $18,000 --

      [APPELLANT]: That’s a guess.

      THE COURT: Well, the guidelines say for us to appoint counsel
      your income must be 10,000 a year or less. You’re indicating
      income almost double.

Id. at 3.    Appellant went on to indicate that he was a mechanic, had no

assets, and his weekly net income varied depending on the work he had

done that week, although he had not worked since August of 2013. Id. The

Public Defender indicated that he sent Appellant two applications, in July and

August,     and   called   and   left   messages   for   Appellant   regarding   his

representation. Id. at 7-8.

      Appellant acknowledged receiving both applications, but maintained

that he had been out of town and did not fill them out. Id. at 5, 8.

Nonetheless, Appellant reiterated his desire for the court to appoint counsel,

and repeatedly indicated that the $18,000 figure was pure speculation. Id.



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At the end of the hearing, the matter was continued to allow Appellant an

opportunity to provide to the OPD his tax returns for 2011 and 2012 and any

other records that would help the OPD determine Appellant’s eligibility for

counsel. Trial Court Order, 11/21/2013.       The order directed Appellant to

appear for jury selection on January 13, 2014 with a public defender, if he

so qualified, or with privately-retained counsel. Id.

      On January 22, 2014, the matter proceeded to trial. Because he did

not qualify for a public defender,2 Appellant was required to hire private

counsel to represent him at trial. N.T., 1/22/2014, at 9. He did not do so.

Accordingly, at trial, Appellant represented himself.3    However, Appellant

refused to participate in cross-examination or by calling witnesses on his

behalf because he was without counsel. Id. at 13, 27, 33-34, 38, 39.

      Appellant argues that he was denied counsel despite presenting proof

of his indigence. In fact, as the record demonstrates, Appellant was unable

to obtain representation because he did not meet the OPD guidelines.       In

Lucarelli, our Supreme Court held that “where a defendant’s course of

conduct demonstrates his or her intention not to seek representation by


2
  Attached to Appellant’s brief is a letter from the OPD, dated December 6,
2013, indicating that Appellant’s income exceeded the guidelines and he was
ineligible for representation by that office.
3
  The record indicates that Appellant had an attorney assist him during jury
selection. It is unclear whether this attorney was from the OPD, but it is
evident that his or her counsel extended only to jury selection.



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private counsel, despite having the opportunity and financial wherewithal to

do so, a determination that the defendant be required to proceed pro se is

mandated because that defendant has forfeited the right to counsel.” Id. at

1179. Instantly, because Appellant did not qualify for the assistance of the

OPD, it was incumbent upon him to hire private counsel.4 He failed to do so.



4
  This Court certainly does not consider an annual income of $18,000 to be
“well-off”. However, the determination of indigence and qualification for
representation is at the discretion of the OPD. The Public Defender Act
provides as follows.

     (a) The public defender shall be responsible for furnishing legal
     counsel, in the following types of cases, to any person who, for
     lack of sufficient funds, is unable to obtain legal counsel[.]...

     (b) The public defender, after being satisfied of the person’s
     inability to procure sufficient funds to obtain legal counsel to
     represent him, shall provide such counsel.

     Every person who requests legal counsel shall sign an affidavit
     that he is unable to procure sufficient funds to obtain legal
     counsel to represent him and shall provide, under oath, such
     other information as may be required by the court, the public
     defender, or the Pennsylvania Rules of Criminal Procedure.

16 Pa.C.S. § 9960.6. The process for obtaining representation by the OPD
was explained to Appellant multiple times before trial.           The record
demonstrates that Appellant was given at least four opportunities to address
that issue with the OPD. By his own admission, Appellant ignored the first
two letters from the OPD, as well as numerous phone calls. Despite
receiving the letters and requests for information, Appellant came to court
the day of his second trial listing without the necessary information and,
after being given a third opportunity to complete an application for the OPD,
he wrote down a “guess he pulled from thin air.” N.T., 11/21/2013, at 7.
After obtaining another postponement, and learning that he still did not
qualify for a public defender, Appellant appeared in court without privately-
retained counsel. Appellant has clearly forfeited his right to counsel under


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Accordingly, we find no error in the trial court’s determination that he had

forfeited his right to counsel. See Commonwealth v. Coleman, 905 A.2d

1003 (Pa. Super. 2006) (holding that there was no abuse of discretion where

Coleman, who had the financial means to retain counsel, appeared without

counsel on several occasions after having dismissed them or engaged in

conduct forcing them to withdraw); Commonwealth v. Wentz, 421 A.2d

796 (Pa. Super. 1980) (holding that there was no abuse of discretion where

Wentz, who was not eligible for court-appointed counsel, appeared without

counsel at his arraignment.).

      In his third issue, Appellant contends that, because he was not

provided with counsel, his right to confront witnesses presented against him

was violated. Appellant’s Brief at 19.

             Under both the United States Constitution and the
      Pennsylvania Constitution, the right to confrontation specifically
      guarantees a person accused of a crime the right “to be
      confronted with the witnesses against him.” United States
      Constitution, Sixth Amendment; Pennsylvania Constitution, Art.
      I, § 9. As the United States Supreme Court has explained, the
      right to confrontation is basically a trial right, and includes both
      the opportunity for cross-examination of the witnesses and the
      occasion for the jury to consider the demeanor of the witnesses.
      The central concern of the Confrontation Clause is to ensure the
      reliability of the evidence against a criminal defendant by
      subjecting it to rigorous testing in the context of an adversary
      proceeding before the trier of fact.



these facts. While it was within the trial court’s discretion to appoint
counsel, the court declined to do so and we discern no abuse of discretion.




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Commonwealth v. Williams, 84 A.3d 680, 684 (Pa. 2014) (some citations

omitted).

          Appellant’s claim is belied by the record, which indicates that he was

given the opportunity to cross-examine the Commonwealth’s witnesses but

refused because the court did not provide him an attorney. See e.g., N.T.,

1/22/2014, at 27 (“THE COURT: [Appellant], do you want to ask any

questions [of the victim]?; [APPELLANT]: I’m not participating because I do

not have counsel.”). As we have discerned no abuse of discretion in the trial

court’s decision not to appoint counsel, Appellant’s claim does not afford him

relief.

          Finally, Appellant argues that he was denied his right to a fair trial

because he was forcibly removed from the courtroom prior to the jury

charge. Appellant’s Brief at 20-22.

                Article I, § 9 of the Pennsylvania Constitution and
          Pennsylvania Rule of Criminal Procedure 602 guarantee the right
          of an accused to be present in the courtroom at every stage of a
          criminal trial. Such right, however, is not absolute. A defendant
          has a due process right to be present in his own person
          whenever his presence has a relation, reasonably substantial, to
          the fullness of his opportunity to defend against the charge.
          Accordingly, the 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.

Commonwealth v. Tharp, 101 A.3d 736, 762 (Pa. 2014) (citations and

quotations omitted). However, a defendant may forfeit the right to be

present by persisting in disruptive behavior threatening the court’s ability to



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conduct an appropriate hearing. Commonwealth v. Basemore, 582 A.2d

861, 867 (Pa. 1990). The court must first warn the disruptive defendant that

continued misbehavior will result in the defendant’s removal from the

courtroom and in the continuation of the proceedings in the defendant’s

absence. Commonwealth v. Abu- Jamal, 720 A.2d 79, 109 (Pa. 1998).

Thus, the defendant must be made to understand that misbehavior, while

resulting in the defendant’s expulsion from the hearing, will not cause the

hearing to cease but will cause it to proceed with the defendant absent

therefrom. Id. If the defendant continues disrupting the proceedings after

an appropriate warning, the court may then remove the defendant and

complete the proceedings. Id. The defendant can regain the right to be

present by demonstrating a willingness to act consistently with appropriate

courtroom     decorum.    Basemore,     582   A.2d    at   867.   See    also

Commonwealth v. Howard, 471 A.2d 1239, 1243 (Pa. Super. 1984)

(stating that the trial court possesses the authority to remove the accused

from the courtroom when his/her conduct disrupts the court’s ability to

proceed in an orderly manner and to conduct a civilized determination of

his/her guilt or innocence).

      During the course of his brief trial, Appellant made repeated disruptive

outbursts and interjections. See N.T., 1/22/2014, at 13, 32, 40, 41.      The

trial court informed Appellant that he would be removed from the courtroom

if his outbursts continued. Id.    When given the opportunity to make a



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closing argument to the jury, Appellant argued with the judge regarding his

lack of counsel and was removed from the courtroom before the jury charge.

Id. at 41-43. Based on the persistent vexatious conduct of Appellant during

his one-day trial, we discern no error in the court’s decision to remove him

from the courtroom prior to the jury charge.

     Accordingly, for all of the foregoing reasons, we affirm Appellant’s

judgment of sentence. Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 5/29/2015




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