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NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA                           1    IN THE SUPERIOR COURT OF
                                                                  PENNSYLVANIA
                                 Appellee

                          v.

JAMES WALTERS

                                 Appellant                       No. 735 MDA 2016


               Appeal from the Judgment of Sentence March 30, 2016
                   In the Court of Common Pleas of Berks County
                Criminal Division at No(s): CP- 06 -CR- 0002768 -2011

BEFORE:        LAZARUS, J., STABILE, J., and RANSOM, J.

MEMORANDUM BY LAZARUS, J.:                                    FILED JANUARY 17, 2017

         James Walters appeals from the judgment of sentence entered in the

Court of Common Pleas of Berks County following his conviction for fleeing

or attempting to elude           a   police officer' and driving while operating privilege

is   suspended or revoked.2 Upon review, we affirm.

         On June 4, 2011, at            approximately 3:00 a.m., Police Officer Peter

O'Brien saw Walters traveling south on State Route 222 in                     a   minivan.

Officer O'Brien observed Walters cross the fog line at least three times and

make      a   drastic overcorrection each time.            Officer O'Brien suspected that

Walter was intoxicated, and he activated his lights and sirens in order to



'    75 Pa.C.S.   §   3733(a).

2    75 Pa.C.S.   §   1543(b)(1).
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stop him.     Walters continued to drive at the same speed.          Officer O'Brien

used his spotlights and intercom system to direct Walters to pull over, but

Walters continued driving. Eventually, Officer O'Brien overtook Walters' van

and forced him off the road. Thereafter, criminal charges were filed against

Walters.

      On    February 16, 2016, after 32 continuances, four lawyers and

approximately four years, the trial court conducted           a   status hearing in

response to   a   motion filed by Walters' counsel, Kevin Wray, Esquire, seeking

to withdraw from the case.           The court denied the motion and advised

Walters that the case would go to trial on March 29, 2016. At trial, Walter

appeared without Attorney Wray. Walters indicated that Attorney Wray was

no longer associated with him and           that he had fired Attorney Wray.      The

court denied Walters' request for       a   continuance, finding that Walters had

forfeited his right to counsel.     Standby counsel was appointed and Walters

proceeded pro se.      Following the jury trial, Walters was found guilty of the

aforementioned offenses. The jury found Walters not guilty of driving under

the influence.

      On March 30, 2016, the court sentenced Walters to 133 days to 23

months' incarceration and     a   fine of $2,500 for the eluding police conviction.

On April 13, 2016, following a      timely post- sentence motion, the judgment of

sentence was modified to reduce the fine to $500.           Walters filed   a   timely
notice of appeal and court -ordered concise statement of errors complained



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of on appeal pursuant to Pa.R.A.P. 1925(b).        On appeal, Walters raises the

following issues for our review:

      1.   Whether the trial court erred in requiring Appellant James
           Walters to represent himself pro se at a jury trial when he
           had hired a private attorney, Attorney Kevin Wray, when said
           attorney failed to appear on the day of trial despite being
           instructed that his petition to withdraw was denied and that
           he was to continue to represent [Walters] through trial,
           unless another attorney entered his /her appearance and that
           any consent by [Walters] to the withdrawal of Attorney
           Wray's appearance on [the] day of trial was not knowing,
           intelligent and voluntary and a violation of his 6th Amendment
           right to counsel pursuant to the federal constitution and
           Article 1 Section 9 of the Pennsylvania Constitution.
      2. Whether the      trial court erred in failing to instruct the jury on
           the defenses to fleeing and eluding pursuant to 75 Pa.C.S.A.
           [ §] 3733(c)(1) and (c)(2), which are complete defenses and
           part of the standard jury instruction where there was
           testimony regarding the late hour, a single driver, that he was
           unsure that it was in fact an actual police officer, that there
           was glass and other items on the side of the road making it
           unsafe to pull over, coupled with his failure to evade the
           police and then coming to a stop when he felt there was a
           safe place to do so, making the defenses applicable subject to
           credibility and factual determinations for the jury to consider
           and then accept or reject.

      3. Whether the        trial court erred in failing to order a new trial
           upon post sentence motion[,] as the verdict shocked the
           conscience and was insufficient as a matter of law[,] since the
           evidence to support the conviction for [f]leeing and [e]luding
           was lacking in that [Walters] did not increase speed or exit
           the roadway at approved exits or [commit] any other evasive
           maneuvers, [and the evidence] did not establish that he
           willfully failed to respond to any signal to stop[,] coupled with
           his good faith concern for his personal safety.

Brief for Appellant, at 5.




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         We note that although a criminal defendant has the right to be

represented by counsel, the right can be waived or forfeited;                a    defendant

forfeits his or her right to counsel where his or her conduct results in                      a

sequence of dilatory dismissals of counsel and withdrawals of counsel. See

Commonwealth v. Coleman, 905 A.2d 1003, 1006 -08                        (Pa. Super. 2006)

(holding     right to counsel forfeited where defendant (1) continuously

dismissed and substituted counsel or appeared pro se; (2) was capable of

retaining counsel for his or her defense; and (3) refused to heed trial court's

warning that trial would commence on date certain, with or without

representation by counsel). Further, where the right to counsel                  is   forfeited

by   a   defendant, the trial court   is   not obliged to conduct   a   waiver of counsel

colloquy with the defendant before requiring the defendant to proceed to

trial pro se. Id. at 1008.

         The posture of the instant matter mirrors that of Coleman, in that

prior to his actual trial, Walters had proceeded to the eve of trial multiple

times, with multiple counsel, only to request          a   continuance each time.           As

the trial court noted,

         [Walters'] conduct can be described as nothing but dilatory.
         Before the case was assigned to this trial judge, [Walters'] had
         been granted more than thirty continuances and had been
         represented by four different attorneys.       [Walters'] modus
         operandi was to disagree with his lawyers to the point of
         prompting them to file a motion to withdraw, which allowed
         [Walters] to further delay the proceedings while seeking to hire
         another lawyer. [Walters] requested continuances for counsel
         status twenty times. His case had been listed for disposition six



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        times.   It was continued once due to [Walters'] request for                 a
        bench trial, and jury trials had been scheduled multiple times.

Trial Court Opinion, 6/7/16, at 3.                 Ultimately, the court informed Walters

that his trial would proceed on March 29, 2016, whether or not he had an

attorney. Walters appeared that day without his attorney and stated he had

fired him.       Thus, the trial took place with Walters representing himself and

with standby counsel appointed. Under the circumstances, we conclude that

the court did not err requiring Walters to proceed pro se. Coleman, supra.

        Next, Walters asserts that the trial court erred by not instructing the

jury   as to the defenses to fleeing or attempting to elude police, claiming             that
he was unsure       that he was being pulled over by an actual police officer, that
glass and debris were on the side of the road, and that he stopped when he

felt it was safe to do so.

        The record      reveals that the trial judge gave the standard jury

instruction regarding fleeing or attempting to elude police. No objection was

made to this instruction, nor was             a    request made for the judge to instruct

the jury regarding defenses to the crime. We note that the fact that Walters

was proceeding pro se is not relevant in this regard, since pro se defendants

are held to the same standards as licensed attorneys. See Commonwealth

v.   Blakeney, 108 A.3d 739, 766                  (Pa. 2014) ( "pro se status confers no

special benefit upon      a   litigant, and   a    court cannot be expected to become      a

litigant's counsel "). Accordingly, the court did not err            in not   instructing the

jury   as to the defenses to fleeing or           attempting to elude police.



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        Finally, Walters asserts that the evidence was insufficient to convict

him of fleeing or attempting to elude                              police.3   In considering sufficiency of

the evidence claims,

        we must determine whether the evidence admitted at trial, and
        all reasonable inferences drawn therefrom, when viewed in the
        light most favorable to the Commonwealth as verdict winner,
        support the conviction beyond a reasonable doubt.         Where                 .   .   .


        there is sufficient evidence to enable the trier of fact to find
        every element of the crime has been established beyond a
        reasonable doubt, the sufficiency of the evidence claim must fail.
        Of course, the evidence established at trial need not preclude
        every possibility of innocence and the fact -finder is free to
        believe all, part or none of the evidence presented.
Commonwealth v. Watley,                    81 A.3d 108, 113 (Pa. Super. 2013) (en banc).

A   driver   is   guilty of fleeing or eluding police when he "willfully fails or refuses

to bring his vehicle to           a   stop, or    .   .       .   otherwise flees or attempts to elude   a

pursuing police officer, when given                       a       visual and audible signal to bring the

vehicle to        a   stop[.]"   75 Pa.C.S.   §       3733.

        Here, Walters baldly argues that the fact that he did not increase his

speed or exit the roadway at approved exits demonstrates that he did not

willfully fail to stop or respond to                      a       signal from police.   However, Walters

fails to provide any legal authority to support his claim that the mere fact

that he did not speed up indicates that he did not willfully fail to stop.



3 In his brief, Walters asserts that the verdict shocks the conscience, which
implies a weight of the evidence claim. However, to the extent the claim is
developed, it is focused on a lack of evidence that he willfully failed to stop
his vehicle.



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Moreover, Officer O'Brien testified that that he used not only his lights and

siren to signal to Walters to pull over, but also used his spotlight and

intercom system to communicate to Walters to stop.              Officer O'Brien was

also in   a    clearly marked police vehicle.    Additionally, we note that Walters

continued to drive for at least two -and -one -half miles after Officer O'Brien

activated his lights and sirens and had to be forced off the roadway.

Accordingly, we find that sufficient evidence was presented to show that

Walters was guilty of fleeing     a   police officer. Watley, supra.

      Judgment of sentence affirmed.




Judgment Entered.




J:seph    Seletyn,
          D.
Prothonotary


Date: 1/17/2017




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