J-S11018-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    CHAHON GILMORE                             :
                                               :
                      Appellant                :   No. 761 WDA 2016

           Appeal from the Judgment of Sentence February 25, 2016
                 In the Court of Common Pleas of Erie County
             Criminal Division at No(s): CP-25-CR-0003720-2013


BEFORE:      OLSON, J., RANSOM, J., and STEVENS, P.J.E*

MEMORANDUM BY RANSOM, J.:                                  FILED MAY 05, 2017

        Appellant, Chahon Gilmore, appeals from the judgment of sentence of

seven and one-half to twenty years of incarceration, imposed on February

25, 2016, following a jury trial resulting in his conviction for robbery,

criminal conspiracy, burglary, recklessly endangering another person, and

simple assault.1 We affirm.

        The trial court summarized the facts of the case as follows:

        On October 14, 2013, at approximately 9:00 p.m., Appellant and
        his two co-defendants, Devonte Duck and Adrian Shaw,
        participated in a robbery at Joshua Hughes’ residence located at
        119 West 21st Street, Erie, PA. Appellant and Duck, both of
        whom were wearing black masks, forced their way into Hughes’
        residence and were shot by Hughes’ friend Keyvon Silveus.
        Duck, who flaunted a firearm during the robbery, fled the
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. §§ 3701, 903, 3502, 2705, and 2701, respectively.
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      residence and was later found lying in an adjoining yard with his
      firearm nearby.      Appellant was shot in the head and
      apprehended while lying on Hughes’ floor. Shaw, who was
      stationed outside the residence and held two of Hughes’ friends
      at gunpoint, fled the scene after hearing gunshots from the
      residence.

Trial Court Opinion, 6/21/16, at 1 (citations and footnotes omitted).

      In November 2015, a jury trial commenced, after which Appellant was

found guilty of the aforementioned crimes.     He was sentenced as outlined

above. Appellant timely filed post sentence motions requesting modification

of his sentence and a new trial, both of which were denied by the trial court.

Appellant timely appealed and filed a court-ordered statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).         The trial court

issued a responsive opinion.

      On appeal, Appellant raises the following issues for review:

      A. Whether the Commonwealth violated the Appellant’s right to
         remain silent under Article 1, §9 of the Pennsylvania
         Constitution by eliciting testimony that the Appellant had,
         post-arrest, refused to speak with investigators?

      B. Whether the trial court errored [sic] when it denied
         Appellant’s pre-trial request to fire his trial counsel and have
         additional time to hire substitute counsel or prepare to
         proceed pro se?

      C. Whether the trial court denied the Appellant his right to self
         representation as guaranteed by the 6th Amendment to the
         U.S. Constitution and Article 1, §9 of the Pennsylvania
         Constitution?

      D. Whether the sentence imposed upon the defendant was
         clearly unreasonable and manifestly excessive.

Appellant’s Brief at 5.


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       Appellant’s first issue, that the trial court violated his right to remain

silent, is waived, as he failed to properly preserve this issue for appellate

review.    According to Appellant, the Commonwealth violated his right to

remain silent when it elicited rebuttal testimony from Detective Jason Triana

that Appellant refused to discuss the robbery with police following his arrest.

However, Appellant’s trial counsel failed to object to this testimony. Thus,

this issue is waived and cannot be raised on appeal. See Commonwealth

v. Tucker, 143 A.3d 955, 961 (Pa. Super. 2016) (“[T]he failure to make a

timely and specific objection before the trial court at the appropriate stage of

the proceedings will result in waiver of the issue.”); Pa.R.A.P. 302(a)

(“Issues not raised in the lower court are waived and cannot be raised for

the first time on appeal.”).2

       Appellant has acknowledged the claim is waived; however, he raises a

claim of ineffective assistance of counsel. Generally, such claims must await

collateral review.     See Commonwealth v. Grant, 813 A.2d 726 (2002)

(holding as a general rule, a defendant should wait to raise claims of

ineffective assistance of trial counsel until collateral review.)




____________________________________________


2
  Absent waiver, Appellant’s claim is without merit. Here, Appellant testified
at trial, thus waiving his right against self-incrimination. In response, the
Commonwealth presented rebuttal testimony to challenge his credibility. It
was free to do so. Commonwealth v. Molina, 104 A.3d 430, 447 (Pa.
2014).



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       Appellant relies on Commonwealth v. Holmes, 79 A.3d 562 (Pa.

2013), in support of raising an ineffectiveness claim on direct review.

Holmes provides that courts have discretion to consider ineffective

assistance of counsel claims raised on direct appeal in limited circumstances.

Holmes recognizes two exceptions, (1) extraordinary circumstances where a

discrete claim is obvious and requires immediate consideration; (2) multiple

claims where good cause is shown and there is an express waiver of PCRA

review.      Id. at 563-64.     Both exceptions are left to the trial court’s

discretion.    Id.    Here, Appellant suggests he is only relying on the first

exception.     Appellant’s Brief at 27.    However, the trial court declined to

address this claim. See Trial Court Opinion at 5. Further, Appellant’s claim

does   not    raise    extraordinary   circumstances   that   require   immediate

consideration.       Holmes, 79 A.3d at 577; see also, supra, n.2 (citing

Molina, 104 A.3d at 447). Accordingly, we discern no abuse of the court’s

discretion.

       Appellant’s second and third claims address his right to counsel. The

Sixth Amendment to the United States Constitution provides that in all

criminal prosecutions, the accused shall enjoy the right to the assistance of

counsel for his or her defense.        Rothgery v. Gillespie County, 554 U.S.

191, 198 (2008).         Similarly, Article I, Section 9 of the Constitution of

Pennsylvania affords a person accused of a criminal offense the right to

counsel.     Commonwealth v. Lucarelli, 971 A.2d 1173, 1178 (Pa. 2009)

(citing Commonwealth v. McDonough, 812 A.2d 504, 506 (Pa. 2002)).

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However, the constitutional right to counsel of one’s own choice is not

absolute. Id. (citing Commonwealth v. Randolph, 873 A.2d 1277, 1282

(Pa. 2005)).   The 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.         Id. (citing

Randolph, supra at 1282). “Thus, 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

      In his second claim, Appellant asserts that the trial court erred in

denying his pre-trial request to fire his privately retained counsel on the

ground counsel was not prepared for trial. According to Appellant, counsel

was “not representing [Appellant] to the best of his ability.”         Notes of

Testimony, 11/17/15, at 3. In response, the court inquired whether counsel

was prepared for trial. Counsel responded affirmatively, suggesting that he

had spoken with Appellant on numerous occasions before Appellant’s bond

had been revoked, had reviewed discovery in the case, and that he was

prepared to defend Appellant’s case. Id. at 3-5.

      Appellant’s last minute request for new counsel would have delayed

trial proceedings. It is well established that the decision to grant or deny a

continuance    is   within   the   sound   discretion   of   the   trial   court.

Commonwealth v. Flor, 998 A.2d 606, 620 (Pa. 2010). An appellate court

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will not disturb a trial court’s decision absent an abuse of discretion by the

court or prejudice.    Id.    An abuse of discretion is not a mere error in

judgment but, rather, involves bias, ill will, partiality, prejudice, manifest

unreasonableness, or misapplication of law. Commonwealth v. Bradford,

2 A.3d 628, 632-633 (Pa. Super. 2010).               Based upon the timing of

Appellant’s request and counsel’s response to the court’s inquiry, we discern

no abuse of the court’s discretion in denying Appellant’s request. Flor, 998

A.2d at 620.

      In his third claim, Appellant asserts the court erred in denying his

repeated requests to proceed pro se.          Again, no relief is due.     Here, the

court engaged Appellant in a lengthy colloquy to determine whether

Appellant wished to proceed pro se. Notes of Testimony, 11/18/15 at 3-14.

The court advised Appellant that he had three options: (1) plead guilty to all

charges; (2) proceed with current counsel; or (3) self-representation. Id. at

14.   Appellant chose to continue with his privately retained counsel.           We

discern   no   abuse   of    the   court’s   discretion   in   this   regard.   See

Commonwealth v. El, 977 A.2d 1158, 1165 (Pa. (2009) (“A request to

take on one’s own legal representation after meaningful proceedings have

begun does not trigger the automatic constitutional right to proceed pro se.

The decision is left to the sound discretion of the trial court.”)); see also

Commonwealth v. Vaglica, 673 A.2d 371 (Pa. Super. 1996) (holding that

meaningful trial proceedings begin once the process of jury selection is

commenced). Appellant’s case is analogous to Vaglica, Appellant’s request

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was made after jury selection, thus meaningful trial process had begun and

Appellant may not automatically proceed pro se.

      Appellant’s final claim challenges the discretionary aspects of his

sentence, a challenge which does not entitle him to review as of right.

Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011).              To

invoke this Court’s jurisdiction, an Appellant must satisfy a four-part test:

1) whether the appeal is timely; 2) whether Appellant preserved his issue;

3) whether Appellant’s brief contains a concise statement of the reasons

relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f); and 4)

whether that statement raises a substantial question that the sentence is

inappropriate under the Sentencing Code. See Commonwealth v. Austin,

66 A.3d 798, 808 (Pa. Super. 2013); see also Pa.R.A.P. 2119(f).

      Appellant timely appealed the judgment of sentence and filed timely

post-sentence motions raising claims that he received an excessive

sentence. See Defendant’s Post-Sentence Motion, 3/7/16 at 2. Appellant

failed to include in his brief a concise statement of reasons relied upon for

allowance of appeal pursuant to Pa.R.A.P. 2119(f).         However, as the

Commonwealth has not objected, we will consider whether Appellant has

raised a substantial question.

      The determination of a substantial question must be evaluated on a

case-by-case basis.   Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.

Super. 2013).     A substantial question exists only where the Appellant

advances a colorable argument that the sentencing judge’s actions were

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either inconsistent with a specific provision of the Sentencing Code, or

contrary to the fundamental norms which underlie the sentencing process.

Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000). A claim

that a sentence is manifestly excessive may raise a substantial question if

Appellant’s Pa.R.A.P. 2119(f) statement sufficiently articulates the manner in

which the sentence was inconsistent with the Code or contrary to its norms.

Commonwealth v. Mouzon, 812 A.2d 617, 627-28 (Pa. 2002).

      Essentially, Appellant asserts that the sentence imposed by the trial

court was excessive because it failed to adequately consider certain

mitigating factors. Appellant’s Brief at 38. (Appellant asserts that the court

failed to give appropriate consideration to fact that as a result of the

incident, he suffered physical, emotional and psychological pain. Id. at 38.)

This claim does not raise a substantial question.   See Commonwealth v.

Ladamus, 896 A.2d 592, 596 (Pa. Super. 2006) (holding that a defendant’s

contention that the trial court did not adequately consider mitigating

circumstances, without more, does not raise a substantial question.)

      Appellant also suggests the court relied on an impermissible factor.

Appellant’s Brief at 36-38. Here, Appellant implies the court increased his

sentence because Appellant opted to proceed with a trial.      This assertion

raises a substantial question. See Commonwealth v. Allen, 24 A.3d 1058,

1064-65 (Pa. Super. 2011) (recognizing a substantial question where

Appellant argues that the court relied on an impermissible sentencing

factor); Commonwealth v. Bethea, 379 A.2d 102, 105 () (“[A] demand for

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a jury trial is not a factor which warrants escalating the severity of a

sentence[.]”).

      However, Appellant has acknowledged that the court repeatedly

advised Appellant that it would not punish him for going to trial. Appellant’s

Brief at 37. Rather, the only evidence of record Appellant cites in support of

this claim are court statements indicating that Appellant’s trial testimony

was not credible.   However, Appellant further acknowledges that the court

referenced Appellant’s testimony to explain or support its conclusion that

Appellant lacked remorse for his crime, a permissible sentencing factor.

See, e.g., Commonwealth v. Bowen, 975 A.2d 1120, 1125 (Pa. Super.

2009).

      Accordingly, we conclude that while Appellant has raised a substantial

question concerning whether his sentence was excessive, a review of the

trial court’s analysis reveals that this issue has no merit.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/5/2017




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