J-S62042-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

ERIC TODD AIKEY

                            Appellant               No. 100 MDA 2016


            Appeal from the Judgment of Sentence August 10, 2015
           In the Court of Common Pleas of Northumberland County
              Criminal Division at No(s): CP-49-CR-0000933-2013


BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.:                   FILED NOVEMBER 10, 2016

       Appellant, Eric Todd Aikey, appeals from the judgment of sentence

entered in the Northumberland County Court of Common Pleas, following his

jury trial conviction of two counts of corruption of minors and one count

each of aggravated indecent assault, statutory sexual assault, unlawful

contact with minor, obscenity, indecent exposure, indecent assault, and

open lewdness.1 We affirm.

       The relevant facts and procedural history of this case are as follows.

In August 2013, Appellant sent Victim sexually suggestive text messages,

which acknowledged Victim was underage and stated Appellant’s desire to

____________________________________________


1
  18 Pa.C.S.A. §§ 6301(a)(1)(ii), 3125(a)(8), 3122.1(b), 6318(a)(1),
5903(c)(1), 3127(a), 3126(a)(8), and 5901, respectively.
J-S62042-16


have sex with Victim.    On August 18, 2013, while Victim and her brother

were at Appellant’s house, Appellant and Victim engaged in sexual

intercourse.   Sometime during the evening of August 18, 2013, Appellant

also waved his penis in the face of Victim’s brother.      As a result, the

Commonwealth charged Appellant with two counts of corruption of minors

and one count each of aggravated indecent assault, statutory sexual assault,

unlawful contact with minor, obscenity, indecent exposure, indecent assault,

and open lewdness on October 4, 2013.

        The court subsequently appointed Attorney Suders to represent

Appellant. On March 7, 2014, Attorney Suders asked the court to appoint

conflict counsel after Attorney Suders discovered a conflict of interest with

one of his other clients. The court then appointed Attorney Schwartz, who

filed a Rule 600 motion on June 2, 2014.        On June 4, 2014, Attorney

Schwartz filed a petition for leave to withdraw as counsel due to a

breakdown of communications with Appellant. On June 5, 2014, the court

granted Attorney Schwartz’s motion, and appointed Attorney Best to

represent Appellant.    Attorney Best represented Appellant at a Rule 600

hearing on June 26, 2014, which resulted in Appellant’s release on nominal

bail.   Upon release from custody, Appellant regained employment as a

welder. Due to his income, Appellant no longer qualified for court-appointed

counsel. As a result, at a pre-trial conference on October 3, 2014, the court

ordered Appellant to retain private counsel within thirty days. Attorney Best


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subsequently filed a motion for a continuance, which stated Appellant

needed ninety days to obtain private counsel. The court granted the motion

on October 29, 2014, and Attorney Best filed a petition for leave to withdraw

as counsel on December 3, 2014.

     Over the next few months, the court repeatedly ordered Appellant to

obtain private counsel at monthly pre-trial conferences. The court ultimately

scheduled trial for the March 2015 term. On March 9, 2015, Appellant asked

the court for another continuance to obtain private counsel.       The court

continued Appellant’s trial to the April 2015 term. On April 10, 2015, the

next pre-trial conference date, Appellant again asked the court for a

continuance to obtain private counsel. The court granted Appellant’s request

and scheduled the pre-trial conference for May 8, 2015, with jury selection

to begin on May 11, 2015, and trial to begin on May 14, 2015. Appellant

failed to appear for the May 8, 2015 pre-trial conference or May 11, 2015

jury selection. On May 14, 2015, Appellant showed up for court after the

Commonwealth had begun its opening statement and proceeded to

represent himself. The jury convicted Appellant of all charged offenses.

     After trial, the court ordered Appellant to be taken into custody. As a

result, Appellant once again qualified for court-appointed counsel.        On

August 10, 2015, the court sentenced Appellant to an aggregate term of

eight (8) to sixteen (16) years’ imprisonment.        On August 20, 2015,

Appellant filed a counseled post-sentence motion, which asked the court to


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J-S62042-16


grant Appellant a new trial. Specifically, Appellant argued the court violated

his constitutional rights when it forced Appellant to proceed with trial without

the assistance of counsel.     The court held a hearing on the motion on

November 23, 2015, where Appellant informed the court that he had been

able to save only half the money necessary to obtain private counsel.

Appellant also told the court that he gave the money to his brother to help

him avoid a home foreclosure.      On December 17, 2015, the court denied

Appellant’s post-sentence motion. Appellant timely filed a notice of appeal

on January 11, 2016. On January 12, 2016, the court ordered Appellant to

file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b), and Appellant timely complied on January 29, 2016.

      Appellant raises the following issue for our review:

         WHETHER [APPELLANT]          FORFEITED     HIS      RIGHT   TO
         COUNSEL?

(Appellant’s Brief at 6).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Charles H.

Saylor, we conclude Appellant’s issue on appeal merits no relief. The trial

court opinion fully discusses and properly disposes of the question

presented.    (See Trial Court Opinion, filed December 17, 2015, at 1-3)

(finding: after Commonwealth charged Appellant, court appointed Attorney

Suders to represent Appellant; due to conflict with another client, Attorney

Suders withdrew from case, and court assigned Attorney Schwartz to

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J-S62042-16


represent Appellant on March 6, 2014; Appellant dismissed Attorney

Schwartz due to disagreements over how to proceed with case, and court

assigned Attorney Best to represent Appellant; Attorney Best argued Rule

600 motion, which resulted in Appellant’s release from incarceration in June

2014; upon release, Appellant regained employment and no longer qualified

for court-appointed counsel; at pre-trial conference on October 3, 2014,

court ordered Appellant to obtain private counsel within thirty days; on

October 24, 2014, Attorney Best filed motion for continuance, which

indicated Appellant needed ninety days to obtain private counsel; court

granted motion for continuance, and Attorney Best filed formal petition for

leave to withdraw as counsel on December 3, 2014; court subsequently held

monthly pre-trial conferences where it repeatedly ordered Appellant to

obtain private counsel; court ultimately scheduled jury selection to begin on

March 9, 2015; on March 9, 2015, court continued trial to April 2015; on

April 10, 2015, court granted Appellant another continuance and relisted

case for May 2015 criminal term; Appellant subsequently failed to appear for

pre-trial conference on May 8, 2015, and jury selection on May 11, 2015; on

May 14, 2015, Appellant arrived late for first day of trial and proceeded to

represent   himself;   importantly,   at   post-sentence   motion   hearing   on

November 23, 2015, Appellant testified that he saved approximately

$3,500.00 to secure private counsel; Appellant further testified that he

chose to give funds to his brother to help avoid foreclosure on his brother’s


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J-S62042-16


home; based on these circumstances, court concluded Appellant’s failure to

obtain counsel was dilatory tactic; Appellant had means to obtain private

counsel in Northumberland County for one day trial; court advised Appellant

to obtain private counsel at each monthly pre-trial conference since October

2014; despite court’s October 3, 2014 order to obtain private counsel within

thirty days, court afforded Appellant at least four additional months to obtain

counsel; Appellant cannot forestall Commonwealth’s presentation of its case

to jury indefinitely; thus, court properly determined Appellant forfeited his

right to counsel and proceeded to trial in May 2015).2        Accordingly, we

affirm on the basis of the trial court opinion.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/10/2016




____________________________________________


2
 Nothing in the record indicates that any mandatory minimum sentences
were imposed.



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                                                                                          Circulated 10/21/2016 03:20 PM




COMMONWEALTH OF                                             IN THE COURT OF COMMON PLEAS
PENNSYLVANIA                                                OF NORTHUMBERLAND COUNTY, PA

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            The background of this order is as follows:

            Defendant Eric Aikey was convicted of aggravated indecent sexual assault by a jury on

May 14, 2015 along with other related offenses. Defendant was sentenced to an aggregate of 8-

16 years in a state correctional institution. Defendant filed this post-sentence motion contending

his   6th   Amendment right to counsel was violated as he neither waived nor forfeited his right to

counsel.'

            It is well established that the 61h Amendment right to counsel is not absolute.

Commonwealth v. Randolph, 873 A.2d 1277, 1282 (Pa. 2005). "[T]he right of an accused

individual to choose his or her own counsel, as well as a lawyer's right to choose his or her

clients, must be weighed against and may be reasonably restricted by the state's interest in the

swift and efficient administration of criminal justice." Commonwealth v. Lucarelli, 971 A.2d

1173, 1178 (Pa. 2008). Furthermore, "while defendants are entitled to choose their own counsel,

they should not be permitted to unreasonably clog the machinery of justice or hamper and delay

the state's efforts to effectively administer justice." Id.

             The definition of forfeiture of counsel as adopted by the Pennsylvania Supreme Court

"does not require that the defendant intend to relinquish a right, but rather may be the result of



I The Commonwealth concedes Defendant did not waive his right to counsel; thus, only forfeiture of counsel will be
discussed. Defendant's post-sentence motion also challenged "the failure to consider his alcoholism as a mitigating
factor". However, counsel indicated this issue is no longer being pursued as the sentence imposed was in the
standard range.
the defendant's extremely serious misconduct or extremely dilatory conduct." Lucarelli, 971

A.2d at 1179 ( citing United States v. Goldberg, 67 F .3d 1092 (3d. Cir. 1995). The Lucarelli

court held that "where a defendant's course of conduct demonstrates his or her intention not to

seek representation by 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 his right to counsel". Lucarelli at 1179.

       The charges were brought on August 22, 2013. Defendant was initially appointed a

public defender to represent him. Due to a conflict with another client, the public defender

withdrew from the case whereupon on March 6, 2014 Defendant was assigned conflicts counsel.

Defendant dismissed conflicts counsel due to disagreements in how to proceed with the case. A

third attorney was assigned to Defendant who secured Defendant's release from incarceration on

a Rule 600 motion in June 2014. Defendant regained employment on his release and no longer

qualified for court-appointed counsel.

        This court issued an Order dated October 3, 2014, after a pretrial conference, directing

Defendant to obtain private counsel within 30 days. Subsequently on October 29, 2014,

Defendant's court appointed attorney filed a trial continuance indicating Defendant needed 90

days to retain private counsel as he did not qualify for a public defender. On December 3, 2014,

the court appointed attorney filed a formal petition for leave to withdraw as Defendant was

employed as a welder with sufficient income. Pretrial conferences were held monthly at which

time Defendant was mandated to promptly obtain private counsel by the undersigned. A pretrial

conference was scheduled for March 61\ 2015 with jury selection to commence on March 9th,

2015. On the day of jury selection the case was continued until the next criminal term in April

2015. At Defendant's pretrial conference on April 10, 2015, another continuance was granted to

Defendant and the case was relisted for the May 2015 criminal term. Defendant failed to appear
for both his pretrial conference on May 8, 2015 and jury selection on May 11, 2015. Defendant

arrived late for his trial on May 14, 2015 and proceeded to represent himself.

        It is of particular importance that this court held a hearing on the present motion on

November 23, 2015 at which Defendant testified he saved approx..imately $3,500.00 to secure

private counsel but instead chose to give the funds to his brother. In light of Defendant's failure

to obtain private counsel despite ample opportunity and financial means to do so, Defendant

forfeited his right to counsel. It was evident to the court that Defendant never followed through

to obtain counsel as a dilatory tactic. He certainly had the means to obtain private counsel in this

county ifhe had saved up over three thousand dollars, as this was only a one day trial. As noted,

he was repeatedly advised by this Court at each monthly pretrial conference since October, 2014,

to obtain counsel. A court order dated October 3, 2014, required him to do so within 30 days

thereof. He was afforded additional time over the next four months. However, a Defendant

cannot forestall the Commonwealth's presentation of its case to a jury indefinitely. "&pus, it was
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proper to proceed with the trial under these circumstances even though Defendant di~oaiave
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         Accordingly, this Court enters the following:                                g;;, riE                 fin
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                                                ORDER
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         AND NOW, this     t1       day of December, 2015, upon due consideration of briefs of

 counsel, Defendant's Post-Sentence Motion for a New Trial is hereby DENIED.

                                                 BY THE COURT:


                                                  Charles H. Saylor, J

 cc:     James Best, Esquire, 3 North 2nd Street, Sunbury, PA 178
         District Attorney
         Tiffanie E. Baldock, Esquire, Law Clerk
