J-S79021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :   IN THE SUPERIOR COURT OF
                                                :        PENNSYLVANIA
                                                :
                 v.                             :
                                                :
                                                :
    WILLIAMS DANIELS                            :
                                                :
                       Appellant                :   No. 1134 MDA 2018

       Appeal from the Judgment of Sentence Entered February 7, 2018
     In the Court of Common Pleas of Franklin County Criminal Division at
                       No(s): CP-28-CR-0002202-2016


BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.:                       FILED: JANUARY 30, 2019

       Appellant, William Daniels, appeals from the judgment of sentence

entered on February 7, 2018 in the Criminal Division of the Court of Common

Pleas of Franklin County. We affirm.

       At the conclusion of trial on January 12, 2018, a jury found Appellant

guilty of kidnapping (18 Pa.C.S.A. § 2901(a)(3)), reckless endangerment (18

Pa.C.S.A. § 2705), and firearms not to be carried without a license (18

Pa.C.S.A. § 6106(a)(1)).1 On February 7, 2018, the trial court imposed an

aggregate sentence of not less than 78 months to no more than 180 months’

incarceration.

       With the express permission of the trial court to file a post-sentence

motion nunc pro tunc, Appellant requested post-sentence relief on March 7,
____________________________________________


1  The jury acquitted Appellant of aggravated assault, 18 Pa.C.S.A.
§ 2702(a)(4).
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2018. See Commonwealth v. Dreves, 839 A.2d 1122 (Pa. Super. 2003)

(en banc). The court denied Appellant’s request for relief on June 4, 2018 and

Appellant filed a notice of appeal on June 26, 2018. Thereafter, on July 2,

2018, the trial court directed Appellant to file a concise statement of errors

complained of on appeal.       See Pa.R.A.P. 1925(b).       After two extensions,

Appellant timely complied on August 17, 2018.

       Appellant raises the following claim in his brief:

       Whether the [t]rial [c]ourt abused its discretion by reappointing
       counsel for [Appellant] mid-trial, thereby refusing to honor
       [Appellant’s] assertion of his right to represent himself during the
       entire trial?

Appellant’s Brief at 5.

       By way of background relevant to the issue Appellant raises on appeal,

the record shows that the parties appeared before the court for a pretrial

conference on January 4, 2018.         At that time, Appellant requested that

appointed counsel be permitted to withdraw and that the court allow Appellant

to represent himself at trial. The court conducted a colloquy of Appellant both

orally and in writing and Appellant executed a written waiver of counsel form

pursuant to Pa.R.Crim.P. 121. Accordingly, the court permitted counsel to

withdraw though he was appointed to serve as stand-by counsel for Appellant

at trial.

       During the first day of trial, the court observed that Appellant was either

unable or unwilling to question witnesses in conformity with the rules of



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evidence and that he otherwise experienced great difficulty in presenting the

evidence to the jury.   In view of these assessments, the court terminated

Appellant’s right to represent himself and directed stand-by counsel to resume

his position as counsel for Appellant. On appeal, Appellant maintains that the

trial court erred or abused its discretion in re-appointing stand-by counsel to

represent Appellant midtrial.

      This Court recently summarized the scope and nature of a criminal

defendant’s constitutional right to self-representation.

      In Faretta v. California, 422 U.S. 806[ (Pa. 1975)], the United
      States Supreme Court recognized that the Sixth Amendment right
      to counsel implicitly includes the right to self-representation,
      which applies to the States through the Fourteenth Amendment's
      guarantee of due process of law. Pennsylvania has recognized the
      same right under Article I, Section 9 of the Pennsylvania
      Constitution. See Commonwealth v. Szuchon, [484 A.2d 1365
      (Pa. 1984)]. The denial of the right to proceed pro se cannot be
      harmless, and a violation requires a new trial.              See
      Commonwealth v. Starr, [664 A.2d 1326, 1334–1335 (Pa.
      1995)] (citing McKaskle v. Wiggins, 465 U.S. 168, 177 n.8
      [(1984)]. Whether that right was violated presents a question of
      law, for which our review is de novo. See Commonwealth v. El,
      933 A.2d 657, 662 (Pa. Super. 2007), aff'd, [] 977 A.2d 1158 (Pa.
      2009)[.]

Commonwealth v. Tighe, 184 A.3d 560, 566 (Pa. Super. 2018), appeal

granted, 195 A.3d 850 (Pa. 2018).

      Appellant   argues   that   the   trial   court   violated   his   right   of

self-representation when it directed stand-by counsel to resume his

representation of Appellant in light of Appellant’s conduct at trial.            In

advancing this claim, Appellant suggests that the limits on stand-by counsel’s


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participation at trial without the consent of the pro se defendant is an open

question in Pennsylvania. Although we have not located a Pennsylvania case

that addresses the precise claim before us, we find the United States Supreme

Court’s decision in McKaskle helpful in resolving this issue.

      In McKaskle, the Court held that the primary focus in determining

whether a defendant's right under Faretta have been respected must be on

whether the defendant had a fair chance to present his case in his own way.

The McKaskle Court, however, also observed that Faretta's “logic ...

indicate[s] that no absolute bar on standby counsel's unsolicited participation

is appropriate or was intended.” McKaskle, 465 U.S. at 176. McKaskle itself

suggested circumstances under which the right to self-representation may be

terminated because of the defendant’s conduct at trial:

      A defendant does not have a constitutional right to receive
      personal instruction from the trial judge on courtroom procedure.
      Nor does the Constitution require judges to take over chores for a
      pro se defendant that would normally be attended to by trained
      counsel as a matter of course. Faretta recognized as much. “The
      right of self-representation is not a license to abuse the dignity of
      the courtroom. Neither is it a license not to comply with relevant
      rules of procedural and substantive law.” Faretta, 422 U.S. at
      834 n.46.

      Accordingly, we make explicit today what is already implicit in
      Faretta: A defendant's Sixth Amendment rights are not violated
      when a trial judge appoints standby counsel-even over the
      defendant's objection-to relieve the judge of the need to explain
      and enforce basic rules of courtroom protocol or to assist the
      defendant in overcoming routine obstacles that stand in the way
      of the defendant's achievement of his own clearly indicated goals.
      Participation by counsel to steer a defendant through the basic
      procedures of trial is permissible even in the unlikely event that it


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      somewhat undermines the pro se defendant's appearance of
      control over his own defense.

McKaskle, 465 U.S. at 183-184.

      The comments to Rule 121 (Waiver of Counsel) of the Pennsylvania

Rules of Criminal Procedure reflect the view that the trial court retains

authority to reappoint stand-by counsel to assume control of the defense

where the defendant’s conduct necessitates termination of the right to

self-representation. In relevant part, the comments state:

      With respect to trials in court cases, when the defendant waives
      the right to counsel and elects to proceed pro se, it is generally
      advisable that standby counsel be appointed to attend the
      proceedings and be available to the defendant for consultation and
      advice. See Commonwealth v. Africa, 353 A.2d 855 (Pa.
      1976). This is particularly true in cases expected to be long or
      complicated, or in which there are multiple defendants. See ABA
      Standards, The Function of the Trial Judge § 6.7 (Approved Draft
      1972). The ability of standby counsel to assume control of
      the defense will minimize delay and disruption of the
      proceedings      in    the   event     that   the    defendant's
      self-representation terminates, e.g., either because such
      termination becomes necessary as a result of the
      defendant's unruly behavior, or because the defendant
      seeks to withdraw the waiver and be represented by
      counsel.

Pa.R.Crim.P. 121, cmt (emphasis added).

      We have carefully reviewed the trial transcript in this matter. Based

upon our review, we conclude that the court did not err or abuse its discretion

in terminating Appellant’s right to proceed on his own behalf before the jury.

The transcript is replete with examples demonstrating Appellant’s complete

lack of understanding and familiarity with the basic rules of procedure and


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evidence, the filing and presentation of motions, the examination of witnesses,

the use of objections at trial, the methods of securing eyewitness appearances

at trial, and several other protocols relating to criminal trials and pretrial

proceedings. See, e.g., N.T. Trial, 1/11/18, at 70-73, 75-78, 114-125, and

152-157. Because Appellant’s conduct at trial necessitated the termination of

his right to proceed pro se, the trial court did not violate his right of

self-representation.

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 01/30/2019




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