J-S36002-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RASHEEM JAMES DRUMMOND                     :
                                               :
                       Appellant               :   No. 1219 MDA 2018

         Appeal from the Judgment of Sentence Entered June 13, 2018
               In the Court of Common Pleas of Dauphin County
             Criminal Division at No(s): CP-22-CR-0000984-2017


BEFORE:      PANELLA, P.J., SHOGAN, J., and PELLEGRINI, J.*

MEMORANDUM BY PANELLA, P.J.:                        FILED NOVEMBER 15, 2019

        Rasheem James Drummond appeals from the judgment of sentence

imposed following his jury trial conviction of robbery and possession of a

firearm without a license. We affirm.

        Appellant and his victim, Cheng You, a Ph.D. student at Penn State,

originally from China, met via the dating app Grindr. 1 They exchanged

messages via Grindr for several weeks, at which point they decided to meet.

Mr. You drove from State College to Harrisburg, where they met in a Rite Aid.

At Appellant’s request, Mr. You had brought sixty dollars in cash along to split

the cost of a hotel room if things went well.

____________________________________________


1 Grindr is a dating app which markets itself as “the world’s #1 FREE mobile
social networking app for gay, bi, trans, and queer people to connect.” See
Google                                                                 Play,
https://play.google.com/store/apps/details?id=com.grindrapp.android&hl=e
n, last accessed 10/24/19.

*   Retired Senior Judge assigned to the Superior Court.
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      Initially, the meeting went well; however, after Appellant attempted to

get a room at two hotels, and found both to be too expensive, Mr. You decided

to go home. Appellant gave Mr. You thirty dollars back, and told him that he

would return the rest after Mr. You drove Appellant home.

      When they arrived, Appellant went into the residence, then returned to

the car where Mr. You was waiting for the remainder of his money back.

Appellant climbed into the passenger’s seat of the car, aimed a gun at Mr. You

and demanded the remainder of Mr. You’s cash and his cell phone. After

receiving the cash and phone, Appellant exited the car and ran. Mr. You

attempted to chase Appellant to recover his phone for directions home;

however, when he approached, Appellant hit him in the head with the pistol

and fled. A bystander called 911, police arrived and ultimately arrested

Appellant.

      Prior to trial, Appellant challenged his competency to stand trial. At the

hearing, the competency evaluator stated that Appellant was able to

understand the charges against him, but concluded that he was incompetent

to stand trial because he was not able to participate in his defense. The trial

court however, found that Appellant was manipulative in order to receive what

he wanted and made conscious choices to act the way in which he did.

Therefore, the court found Appellant competent to stand trial.

      Appellant filed his first pro se correspondence complaining about the

performance of Erin Hayes, Esq., his court appointed attorney, in August 2017.

That next month, in September, the court granted Attorney Hayes’s petition

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to withdraw and appointed Jennifer Tobias, Esq., as conflict counsel. One

month later, Appellant sent a pro se correspondence to the court complaining

about the performance of Attorney Tobias. Three months later, in January

2018, the court granted Attorney Tobias’s petition to withdraw, and appointed

David Hoover, Esq., to represent Appellant.

       Three months after that, and shortly before trial was to begin, Appellant

claimed that he had irreconcilable differences with Attorney Hoover. After

calling Appellant’s sister and grandmother, at Appellant’s request, to inquire

as to whether they were coordinating retaining private counsel (they were

not), the trial court denied Appellant’s right to a continuance of the trial date

and appointed Attorney Hoover as standby counsel during trial.2

       The jury found Appellant guilty of robbery and carrying a firearm without

a license. The trial court denied Appellant’s post-trial motions. This timely

appeal followed.

       Appellant raises seven issues on appeal.

       A. Whether the [trial] court erred in allowing Appellant’s trial
       counsel, attorney David Hoover, to act as standby counsel after
       granting attorney Hoover’s motion to withdraw?

       B. Whether the [trial] court erred in denying Appellant’s request
       for new appointment of counsel at trial?

       C. Whether the [trial] court erred in denying Appellant’s request
       for a continuance of his trial date after Appellant’s appointed
       counsel was granted permission to withdraw?


____________________________________________


2The court appointed new counsel to represent Appellant for his post-sentence
motions and his direct appeal.

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        D. Whether the Commonwealth failed to present sufficient
        evidence to sustain Appellant’s conviction for carrying a firearm
        without a license?

        E. Whether the [trial] court erred in finding Appellant competent
        to stand trial at Appellant’s competency hearing?

        F. Whether the [trial] court erred in denying Appellant’s post-
        sentence motion where the Commonwealth failed to present
        sufficient and weighty evidence to sustain Appellant’s convictions?

        G. Whether Appellant’s waiver of his right to testify was not
        knowing, voluntary, or intelligent?

Appellant’s Brief, at 8 (questions re-ordered for ease of disposition;

unnecessary capitalization omitted).

        In his three first issues, Appellant challenges the trial court’s decision to

grant    Attorney    Hoover’s     request      for   permission   to   withdraw   from

representation.3 Specifically, he claims that granting counsel permission to

withdraw, without appointing a new, fourth counsel, or granting a continuance

of the trial date to permit him to retain private counsel, resulted in his being

denied his right to counsel. In addition, he claims that his waiver of his right

to counsel was not knowing, intelligent, or voluntary. See Appellant’s Brief, at

24-31. We disagree.

        “A question regarding whether a due process violation occurred is a

question of law for which the standard of review is de novo and the scope of

review is plenary.” Commonwealth v. Harris, 200 A.3d 524 (Pa. Super.

2018) (citation omitted). Appointment of counsel however, is within the


____________________________________________


3We discuss Appellant’s first three issues together for ease of disposition, and
note that Appellant likewise combined these issues in his brief.

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discretion of the trial court, as such we review such appointment for an abuse

of discretion. See Pa.R.Crim.P. 121(D). Finally, granting or denying a

continuance request is also within the discretion of the trial court. See

Commonwealth v. Sandusky, 77 A.3d 663, 671 (Pa. Super. 2013).

      “The Sixth Amendment to the United States Constitution provides that

in all criminal prosecutions, the accused shall enjoy the right to have the

assistance of counsel for his or her defense.” Commonwealth v. Lucarelli,

971 A.2d 1173, 1178 (Pa. 2009) (citations omitted). However, an accused

also enjoys the right to self-representation, and may either waive or forfeit

his right to counsel. See id. at 1179. “Waiver is an intentional and voluntary

relinquishment of a known right. By contrast, forfeiture . . . does not require

that the defendant intend to relinquish a right, but rather may be the result

of the defendant’s extremely serious misconduct or extremely dilatory

conduct.” Id. (citations and internal quotation marks omitted). Finally,

“Pa.R.Crim.P. 121(D) authorizes a judge to appoint standby counsel when it

determines that a defendant appropriately waives the right to counsel.” Pub.

Defender’s Office v. Venango Cty. Court of Common Pleas, 893 A.2d

1275, 1281 (Pa. 2006).

      In Commonwealth v. Thomas, this Court found that the appellant

forfeited his right to counsel through a pattern of misconduct including threats,

abuse, and failure to collaborate in his defense. See 879 A.2d 246, 258 (Pa.

Super. 2005). There the trial court had appointed five different attorneys to

represent the appellant. See id.

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       Presently, Appellant engaged in a similar course of misconduct and

dilatory conduct. Attorney Hoover, the third attorney appointed to represent

Appellant,    requested     to   withdraw      his   appearance   because   Appellant

repeatedly accused him of being a racist and refused to meet with him to

prepare for trial. See N.T. Hearing, 4/18/18, at 9-10, 13. In addition, based

on its observations of Appellant throughout the pre-trial process, the trial

court found that Appellant had a history of disruptive behavior as a method of

delaying proceedings. See N.T. Hearing, 1/23/18, at 10-11.4 Upon review, we

similarly conclude that Appellant forfeited his right to counsel based on his

misconduct and extremely dilatory conduct. Accordingly, the trial court did not

err when it granted Attorney Hoover permission to withdraw.

       We also conclude that the trial court did not abuse its discretion when it

appointed Attorney Hoover as standby counsel. Attorney Hoover was familiar

with the case, and ready to proceed to trial, whereas appointing a new standby

attorney would cause a lengthy delay for that attorney to become ready to

render assistance. Moreover, we note that the trial court appointed new

counsel immediately after trial for all post-trial representation.

       Finally, we conclude that the trial court did not abuse its discretion when

it denied Appellant’s requested continuance. Appellant demonstrated a history

of manipulative behavior to delay trial. Therefore, the court was well within
____________________________________________


4During the hearing, the Commonwealth explained that in one of Appellant’s
previous trials in federal court, Appellant had gone through eleven different
defense attorneys in a similar delay of proceedings. See N.T. Hearing,
4/18/18, at 4.

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its authority to deny Appellant’s continuance requested on the eve of trial.

Appellant’s first three issues are meritless.

      In his fourth issue, Appellant challenges the sufficiency of the evidence

presented to support his conviction of carrying a firearm without a license.

Specifically, he claims that the Commonwealth failed to prove that Appellant

either concealed the firearm, or carried the firearm in a vehicle. We disagree.

      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 [finder] 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. Best, 120 A.3d 329, 341 (Pa. Super. 2015) (quotations

and citations omitted).

      In relevant part, section 6106(a)(1) of the Crimes Code provides that:

      [A]ny person who carries a firearm in any vehicle or any person
      who carries a firearm concealed on or about his person, except in
      his place of abode or fixed place of business, without a valid and
      lawfully issued license under this chapter commits a felony of the
      third degree.



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18 Pa.C.S.A. § 6106(a)(1).

      Here, the Commonwealth presented evidence that after returning to Mr.

You’s car and climbing into the passenger seat, Appellant pulled out a gun and

demanded money, threatening to shoot Mr. You. Mr. You testified that he did

not see Appellant carrying anything while he walked up to the car, and that

after he handed over his money and phone, Appellant ran out of the car. See

N.T. Trial, 4/23/18, at 150-52.

      Accordingly, viewing all evidence in the light most favorable to the

Commonwealth as verdict winner, as we are required to do by our standard

of review, we conclude that the Commonwealth introduced sufficient evidence

to prove Appellant’s guilt. Based on Mr. You’s testimony, it is a reasonable

inference that Appellant both concealed the firearm on his person while

walking to the car, and that he had been in the vehicle when he threatened

Mr. You. Therefore, Appellant’s fourth issue is meritless.

      In his fifth issue, Appellant claims that the trial court erred when it found

him competent to stand trial. Specifically, Appellant asserts that Brett

DiGiovanna, M.D., opined that although Appellant was able to understand the

nature of the proceeding, he was unable to participate and assist in his own

defense. Consequently, Appellant argues that Dr. DiGiovanna’s testimony, in

addition to Appellant’s “self-sabotaging behavior,” required the trial court to

find him incompetent to stand trial. Appellant’s Brief, at 37; see id. at 35-37.

We disagree.




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      A defendant is presumed competent and it is his burden to show
      otherwise, the determination of which is within the sound
      discretion of the trial court. When a competency hearing takes
      place, incompetency may be established by a preponderance of
      the evidence. The sensitive nature of competency determinations
      requires the appellate courts to afford great deference to the
      conclusions of the trial court, which has had the opportunity to
      observe the defendant personally. When the record supports the
      trial court’s determination, we will not disturb it.

Commonwealth v. Stevenson, 64 A.3d 715, 720 (Pa. Super. 2013)

(citations omitted).

      In order to rebut the presumption that he is competent, a defendant

must prove by a preponderance of the evidence that he “was either unable to

understand the nature of the proceedings against him or to participate in his

own defense.” Commonwealth v. Santiago, 855 A.2d 682, 694 (Pa. 2004)

(citation omitted).

      Here, the trial court stated:

      While we note that the results of [Appellant’s] competency
      evaluation found him competent under only one prong of the test,
      we stand by our decision ruling that [Appellant] was competent. .
      . . During [Appellant’s] competency evaluation, he was able to
      give coherent accounts of the alleged charges against him. More
      importantly, it was clear to this court that it was possible that
      [Appellant] made a conscious choice to present himself as
      incompetent. More specifically, when the competency evaluator
      provided in his report that he believed that all of the subjective
      information provided by [Appellant] had questionable validity.
      Multiple times throughout the hearing and the competency report,
      it was made apparent that [Appellant] could be manipulative in
      order to receive what he wanted, exaggerate his symptoms and
      exaggerate his situation. Most importantly, Dr. Martin’s [another
      mental health professional whose impressions Dr. DiGiovanna
      relied upon in his expert report] opinion regarding [] Appellant’s
      competency very clearly indicated that [] Appellant attempts to
      game the system to get what he wants.


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Trial Court Opinion, 12/18/18 at 8 (record citations, quotation marks, and

unnecessary capitalization omitted).

       Upon review, we conclude that the record supports the trial court’s

determination that Appellant was competent to stand trial. Appellant’s

disruptive behavior at select times, such as passing the prosecutor an

envelope of feces during a pretrial hearing, see N.T. Hearing, 4/19/18, at 4,

and professional behavior at others, such as his general professionalism while

representing himself pro se during trial, see generally N.T. Trial, 4/23/18;

N.T. Trial, 4/24/18, demonstrate his attempts to manipulate the system. The

trial court had copious reasons to find that Appellant had not met his burden

of proving his incompetence. Appellant’s fifth issue is meritless.

       In his sixth issue, Appellant challenges the weight of the evidence to

support his conviction.5 Specifically, he argues that because of inconsistent

testimony and incredible witnesses, the evidence was so weak and

inconclusive that the verdict was against the weight of the evidence. We

disagree.

       A motion for a new trial based on a claim that the verdict is against
       the weight of the evidence is addressed to the discretion of the
       trial court. A new trial should not be granted because of a mere
       conflict in the testimony or because the judge on the same facts
       would have arrived at a different conclusion. Rather, the role of
____________________________________________


5 Neither the question presented nor the discussion portion of Appellant’s brief
specifies whether Appellant is challenging the weight of the evidence to
support his robbery or carrying a firearm conviction. However, in his concise
statement of errors complained of on appeal, Appellant specifically claims that
the verdict for the charge of robbery was contrary to the weight of the
evidence. Accordingly, we limit our discussion to the robbery charge.

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      the trial judge is to determine that notwithstanding all the facts,
      certain facts are so clearly of greater weight that to ignore them
      or to give them equal weight with all the facts is to deny justice.
      It has often been stated that a new trial should be awarded when
      the jury’s verdict is so contrary to the evidence as to shock one’s
      sense of justice and the award of a new trial is imperative so that
      right may be given another opportunity to prevail.

Commonwealth v. Orie, 88 A.3d 983, 1015 (Pa. Super. 2014) (citations and

quotation marks omitted). “One of the least assailable reasons for granting or

denying a new trial is the lower court’s conviction that the verdict was or was

not against the weight of the evidence and that a new trial should be granted

in the interest of justice.” Id.

      When the challenge to the weight of the evidence is predicated on
      the credibility of trial testimony, our review of the trial court's
      decision is extremely limited. Generally, unless the evidence is so
      unreliable and/or contradictory as to make any verdict based
      thereon pure conjecture, these types of claims are not cognizable
      on appellate review.

Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009) (citations

omitted).

      Here, after a two-day trial, the jury found Appellant guilty of robbing

Mr. You. Upon review, the trial court opined that there were not glaring

abnormalities from Appellant’s trial such that the verdict would shock one’s

sense of justice. We find no abuse of discretion in the trial court’s denial of

Appellant’s challenge to the weight of the evidence. Appellant’s sixth issue is

meritless.

      Finally, in his seventh issue, Appellant claims that his waiver of his right

to testify at trial was not knowing, intelligent, or voluntary. He argues that



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based on his alleged incompetence, he was not able to knowingly, intelligently,

and voluntarily waive his right to testify. See Appellant’s Brief, at 42-45. We

disagree.

      “The right of an accused to testify on his own behalf is a fundamental

tenet of American jurisprudence and is explicitly guaranteed by Article I,

Section 9 of the Pennsylvania Constitution.” Commonwealth v. Nieves, 746

A.2d 1102, 1105 (Pa. 2000) (citation omitted). “As this is an issue involving

a constitutional right, it is a question of law; thus, our standard of review is

de novo, and our scope of review is plenary.” Commonwealth v. Baldwin,

58 A.3d 754, 762 (Pa. 2012) (citation omitted).

      Here, Appellant’s argument is essentially a renewed claim that the trial

court should have found him incompetent to stand trial. This claim is belied

by the record, where, after Appellant clearly stated that he did not intend to

testify, the trial court conducted a full colloquy ensuring that Appellant

understood his right and was waiving his right to testify knowingly,

intelligently, and voluntarily. See N.T. Trial. 4/23/18, at 180-82. Appellant

initially claimed that he lacked competence to make a knowing and intelligent

waiver; however, after consulting with standby counsel, clearly stated that he

did not want to testify. See id. at 184. To the extent that Appellant again

claims he was incompetent to make legal decisions, we again conclude the

trial court did not err or abuse its discretion in finding that Appellant’s claimed

incompetence merely reflected his attempts to manipulate the system.




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      Upon review, we conclude that Appellant’s constitutional right not to

testify was not infringed upon. The record reflects that after discussing the

matter with standby counsel, Appellant made a knowing, intelligent, and

voluntary waiver of his right to testify. See id. at 180-82, 184. Accordingly,

Appellant’s final claim is meritless.

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/15/2019




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