J-S66009-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA


                     v.

EUGENE DOUGLAS MANNING

                          Appellant                No. 2003 MDA 2015


           Appeal from the Judgment of Sentence May 15, 2013
             In the Court of Common Pleas of Franklin County
           Criminal Division at No(s): CP-28-CR-0001169-2012
                         CP-28-CR-0001173-2012
                         CP-28-CR-0001674-2011



BEFORE: BOWES, PANELLA AND JENKINS, JJ.

MEMORANDUM BY BOWES, J.:                      FILED NOVEMBER 29, 2016

      Eugene Douglas Manning appeals pro se from the judgment of

sentence of seventy-two to 144 months imprisonment that was imposed

after he was convicted of two counts of stalking and twenty-eight counts of

harassment by anonymous communication. We affirm.

      This appeal involves three criminal actions that were consolidated for

purposes of trial.   At 1674 of 2011, Appellant was charged with stalking

Pamela Ross.    Appellant was arrested for that offense on September 7,

2011, and, after his September 13, 2011 release on bail, Appellant did not

contact Ms. Ross again until April 30, 2012, when he called her twice. On

May 1, 2012, and May 2, 2012, Appellant sent the victim numerous text
J-S66009-16



messages.      These 2012 actions resulted in an additional stalking charge

leveled against him at criminal case number 1169 of 2012, and, at criminal

action number 1173 of 2012, twenty-eight counts of harassment by

anonymous communication.

        The facts underlying Appellant’s convictions follow.       In June, 2011,

Appellant    went   to   the   Center   for   Dermatology   (the    “Center”)   in

Chambersburg, Pennsylvania, due to the existence of lumps on his back. He

was seen by Ms. Ross, who was a board-certified physician’s assistant. On

July 21, 2011, Ms. Ross removed a cyst from Appellant’s back using local

anesthetic. On the discharge form, Appellant was told to call Ms. Ross’ cell

phone number in the event that complications arose after the out-patient

surgery, and he received an appointment to have sutures removed on

August 4, 2011.      Ms. Ross’s cell phone was utilized on the Center form

because the business did not have an answering service at that time. That

procedure was altered due to Appellant’s subsequent behavior toward Ms.

Ross.

        After another office employee removed his sutures on August 2, 2011,

Ms. Ross examined the surgical site to ensure that the wound was healed.

The June, July, and August office visits were the extent of Ms. Ross’ direct

contact with Appellant.    In August 2011, Appellant began to send letters

nearly every day to the Center, and they were addressed to Ms. Ross. In

one, Appellant called the victim “a true life queen” and said that her

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“husband must wait at the door for [her] to get home.” N.T. Trial, 3/12/13,

at 50.    After she received the second letter, Ms. Ross advised her office

manager about the situation, and the Center notified Appellant that he was

discharged as a patient and told him not to contact Ms. Ross “in any way.”

Id. at 55.

         Appellant continued to send Ms. Ross letters at the Center and also

mailed her a twig and a CD.       The letters, introduced as exhibits, were

rambling, strange, and indicated that Appellant was in love with Ms. Ross

and believed that he and Ms. Ross were involved in a relationship with each

other. The communications rendered the victim fearful for both her safety

and that of her husband and four children.

      Appellant also kept a notebook, which was recovered pursuant to a

search warrant. It was titled, “Gene and his Little Pammy and a Life Lesson

of What True Love really is, and how God meant us to Love.       I Love you

Pamela, Love your outlaw Stalker, Gene.” Commonwealth’s Exhibit 20 at 1

(emphasis in original). The notebook contained rambling diatribes similar to

the one on the cover. For example, Appellant reported that he was madly in

love with Ms. Ross, considered her his soul mate, pleaded with her to

divorce her husband for him, and said that he knew that one day he and Ms.

Ross would become involved in a romantic relationship.

      Since Appellant did not desist in sending letters, on August 23, 2011,

Ms. Ross contacted police about the situation.    Two Chambersburg police

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officers personally discussed the matter at length with Appellant and told

him to stop contacting Ms. Ross. Instead of heeding the officers’ warning,

Appellant began to telephone Ms. Ross, and he left eight or nine messages

on her cell phone.         The victim contacted the police, who listened to the

messages and verified that they were from Appellant.                    Based upon his

behavior toward Ms. Ross in August, 2011, Appellant was arrested for

stalking on September 7, 2011, and he was released on bail on September

13, 2011. One of the conditions of his release was that he have “no contact

with the victim or victims in person, by mail or telephone.” Id. at 67.

        Upon his release, Appellant initially did not contact Ms. Ross, but he

then defied the condition by twice telephoning her on April 30, 2012.                   On

May 1, 2012, and May 2, 2012, Appellant sent the victim twenty-eight

bizarre and rambling text messages. Appellant repeatedly asked the victim

to contact him and referred to her as “baby.” Commonwealth Exhibit 5. Ms.

Ross called the police and contacted her cell phone provider to block calls

from Appellant’s phone number.

        At trial, Appellant, who was proceeding pro se,1 called Dr. Joanna

Brady as a witness.          She told the jury that, after she saw Appellant

professionally    as   a    patient,   he      sent   her   flowers   and   left   multiple

inappropriate messages on her telephone.                In response to a question by
____________________________________________


1
    The status of Appellant’s legal representation is discussed infra.



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Appellant   about   how   the     messages   were   inappropriate,   Dr.    Brady

responded: “You would leave messages where you breathed heavily, where

you threatened to kill me, where you threatened to hurt my family.           You

threatened to kill my husband. You sent letters that contained the same.”

N.T. Trial, 3/13/13, at 187-88.

      After a three-day trial, a jury convicted Appellant of all counts in the

three criminal actions, and he was sentenced on May 15, 2013, to seventy-

two to 144 months incarceration. Appellant filed a pro se direct appeal, and

was ordered to file a Pa.R.A.P. 1925(b) statement. He never complied with

that directive.   After protracted proceedings, which are described in detail

infra as they are pertinent to the central issue involved in this appeal, the

Commonwealth moved to have that appeal dismissed based upon Appellant’s

failure to file a Pa.R.A.P. 1925(b) statement. We dismissed the appeal on

February 24, 2015.     Appellant then filed a timely pro se PCRA petition on

September 17, 2015. After a hearing, the trial court reinstated Appellant’s

right to a direct appeal on October 26, 2015, and this pro se appeal followed

on November 13, 2015.

      Appellant’s Pa.R.A.P. 2116 Statement of Questions Involved spans

eight pages and raises about twenty-six issues:

      1. Whether it was an abuse of discertion [sic] or error of law by
      the trial court, and whether Mr. Manning was denied his right to
      counsel pursuant to the Sixth and Fourteenth Amendments of
      the Federal Constitution and pursuant to Article 1 section 9 of
      the Pennsylvania Constitution of the right to counsel by failing to

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     conduct the required on -the -record waiver of counsel colloquy
     to be certain Mr. Manning's waiver of counsel was knowing,
     voluntary and intelligent, pursuant to Pa.R.Crim.P. 120, 121,
     122, to permit Mr. Manning to proceed pro se:

     A. Throughout        all   pretrial   critical   stages   of   the   criminal
     proceedings.

     B. Jury selection.

     C. A jury trial.

     D. A jury trial for misdemeanors and felony charges which Mr.
     Manning faced substantial prison sentences.

     E. Sentencing to imprisonment.

     F. Post sentence motions stage.

     2. Whether the Commonwealth of Pennsylvania criminal stalking
     statute and laws are unconstitutional, facially overbroad, facially
     vague, or were so overbroad and vague as applied to Mr.
     Manning's conduct, and whether the stalking statute and laws
     permit and or promote arbitrary and or discriminatory
     enforcement or were so as applied to Mr. Manning's conduct, and
     criminalized non criminal conduct as applied to Mr. Manning. In
     violation of Mr. Manning's Federal First amendment and
     Pennsylvania Constitution Article 1., section 7 of the right to
     legitimate freedom of speech ,expression, association, the
     freedom to think and feel privately. In violation of the Federal
     Ninth amendment against ex post facto laws, Federal Fourteenth
     amendment of due process. In violation of the Pennsylvania
     Constitution, Article 1 section 1. and the right to privacy, Article
     1 section B against unreasonable searches and seizures and
     rights of privacy. In violation of Article 1 section 9 due process,
     in violation of Article 1 section 17 ex post facto clause.

     3. Whether the sentences are illegal, unconstitutional, and
     whether the trial court abused its discretion or committed error
     of law sentencing Mr. Manning to prison for:

     A. Mandatory minimum sentences.



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     B. Non statutory aggravating factors.

     C. Aggravating factors not submitted to the factfinder, jury.

     D. Resentencing Mr. Manning for 2003 -2004 cases.

     E. Impermissable [sic] sentencing factors, sex crimes,
     constitutionally protected conduct, activity, freedom of speech,
     expression, association, authorized conduct, legitimate doctor-
     patient medical appointment, legitimate communication, non
     communication, non criminal conduct, activity, petitioning the
     courts for redress of grievances.

     4. Whether it was an abuse of discretion or error of law by the
     trial court in charging the jury with improper jury instructions:

     A. "Now ordinarily, it is not possible to prove intent" "knowledge
     or what someone is thinking, what purpose they have, and
     whether this instruction lowered the Commonwealth's burden of
     proof, shifting the burden onto Mr. Manning to prove innocence
     or non specific intent to commit stalking and harassment.

     B. Submitting jury verdict slips to the jury that permitted a
     finding of guilt based on speculation, suspicion, conjecture,
     constitutionally protected conduct, proper legal, authorized
     activity, conduct, legitimate freedom of speech, expression,
     association, legitimate communication, non communication, non
     criminal conduct.

     5. Whether it was an abuse of discretion or error of law by the
     trial court to permit over Mr. Manning's objections, the highly
     prejudicial, irrelevant, hearsay testimony by the alleged victim
     Mrs. Ross that her son had nightmares that a faceless Mr.
     Manning killed his baby sister.

     6. Whether the [C]ommonwealth failed to prove each element
     of the crimes against Mr. Manning beyond a reasonable doubt,
     specific intent, non legitimate communication, and whether the
     evidence was insufficient to prove guilt, and whether it was an
     abuse of discretion or error of law by the trial court to deny Mr.
     Manning's motion to dismiss the charges.




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     7. Whether it was an abuse of discretion or error of law by the
     trial court to permit the Commonwealth to introduce prior bad
     acts from 2003, 2004, and to permit known false testimony,
     perjury from a witness that in 2003, 2004 Mr. Manning treatened
     [sic] to kill her, her husband and hurt her family. This witness
     was Mrs. Brady. Mr. Manning objected.

     B. Whether Mr. Mannìng was illegally, unconstitutionally arrested
     without arrest warrants, or defective invalid arrest warrants.

     9. Whether the Commonwealth of Pennsylvania Rules of Criminal
     Procedure 513 are unconstitutional, or were so as applied to Mr.
     Manning, or were the rules not properly followed as; The affiant
     of the police criminal complaint, probable cause affidavit for
     count 1674 -2011 was not required to appear in person or to
     swear and or affirm his statements in the affidavit in person
     before the issuing authority to have the complaint approved.
     And whether the affidavits of probable cause for counts 1674 -
     2011, 1169- 2012, 1173 -2012 failed to set-forth any criminal
     allegations, and whether the issuing authority abandoned his
     nuetral [sic] and detached role in approving the complaints and
     or arrest warrants.

     10. Whether it was an abuse of discretion or error of law by the
     trial court to deny Mr. Manning's motions to suppress the
     evidence searched and seized from the Waite residence on June.
     13, 2012, denyiing [sic] Mr. Manning standing to challenge, and
     wheteher [sic] the search warrant lacked probable cause, was
     defective, overbroad, violated Mr. Manning's right's [sic] of
     privacy, and whether the issuing authority abandon his nuetral
     [sic] and detached role in issuing the warrant.

     11. Whether it was an abuse of discretion or error of law by the
     trial court, over Mr. Manning's objections, to deny Mr. Manning
     his right to call witness in his favor by quashing the jury trial
     subpoena to Dr. Muhkerjee, a psychiatrist who could have
     explained the evidence searched and seized from the Waite
     residence, Mr. Manning's private thoughts, feelings, writings,
     diaries and journals.

     12. Whether it was an abuse of discretion or error of law by the
     trial court, over Mr. Manning's objections to quash the trial
     subpoenas to Mrs. Ross and Dr. Epstein, and two exculpatory

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      eyewitnesses who could have offered substantial impeachment
      value testimony against Mr. Manning's accuser Mrs. Ross.

      13. Whether it was an abuse of discretion or error of law by the
      trial court to deny Mr. Manning his right to call witnesses in his
      favor by quashing the trial subpoena to Mrs. Ross when the trial
      court told Mr. Manning he would be able to call Mrs. Ross later
      for questioning for his case in chief.

      14. Whether it was presecutorial [sic] misconduct, overreaching
      by the prosecutor to permit and elicit known false testimony and
      perjury from a witness, Mrs. Brady regarding prior bad acts, that
      in 2003, 2004 Mr. Manning threatened to kill Mrs. Brady, her
      husband, and hurt her family.

      15. Whether the Commonwealth of Pennsylvania harassment
      statute and laws are unconstitutional, facially overbroad, facially
      vagues [sic], or were so overbroad and vague as applied to Mr.
      Manning's counduct [sic], and whether the harassment statute
      and laws permit and or promote arbitrary and or discriminatory
      enforcement or were so as applied to Mr. Manning's conduct, and
      criminalize non criminal conduct as applied to Mr. Manning, as
      26 counts of harassment against the Center for Dermatology,
      count 1173 -2012 required no victim, no testimony from anyone
      ,and there was no actual communication with anyone, no
      messages left.

Appellant’s brief at 3-10.

      Despite this expansive Pa.R.A.P. 2116 statement, the argument

portion of Appellant’s brief is actually divided into three parts: 1) pages

sixteen to thirty-five are devoted to a position that he was improperly denied

his right to counsel since he never was afforded a Pa.R.Crim.P. 121 colloquy

at his jury trial; 2) at pages thirty-five to seventy-three, Appellant claims

that the criminal stalking statute is unconstitutional as overbroad and vague;

and 3) his final averment, leveled at pages seventy-three to eighty of the



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brief, is that the harassment statute is unconstitutionally vague and

overbroad. The only arguments that we will address are those advanced in

the argument portion of Appellant’s brief.      Commonwealth v. Jackson,

431 A.2d 944, 945 n.1 (Pa. 1981) (where issue presented in the “Statement

of Questions Involved” section of defendants brief was not addressed in “the

‘Argument’ portion of his brief,” it was waived); accord Commonwealth v.

Jones, 815 A.2d 598, 604 n. 3 (Pa. 2002); Pa.R.A.P. 2119(a) (“The

argument shall be divided into as many parts as there are questions to be

argued; and shall have at the head of each part--in distinctive type or in

type distinctively displayed--the particular point treated therein, followed by

such discussion and citation of authorities as are deemed pertinent.”).

      Appellant first claims that he is entitled to a new trial because the trial

court did not provide a waiver-of-counsel colloquy at the time of trial.

Appellant’s brief at 16 (Appellant was deprived of his right to counsel “as his

trial counsel Brian Williams was permitted to withdraw and the trial court

failed . . . . to conduct the required on-the-record waiver of counsel

colloquy”). Initially, we note that this position was never raised at any point

in the trial-court proceedings and, instead, was presented for the first time

in Appellant’s Pa.R.A.P. 1925(b) statement.      Nevertheless, we hesitate to

find the issue waived since in Commonwealth v. Davido, 868 A.2d 431

(Pa. 2005), our Supreme Court stated it is the trial court’s responsibility to

sua sponte ensure that a valid waiver-of-counsel colloquy is performed.

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        Due to the serious nature of the failure to conduct a waiver-of-counsel

colloquy, we set forth the tortured procedural history of Appellant’s

representation during these cases. At criminal action number 1674 of 2011,

the first one filed, Appellant claimed indigence following his arrest and was

granted court-appointed counsel.        After Appellant obtained bail, that

appointment was revoked by a September 13, 2011 order wherein the

Honorable Douglas W. Herman, stated: “[T]he Public Defender’s Officer was

appointed to represent the within defendant while in jail but he is no longer

in jail, therefore, IT IS ORDERED that the appointment of the Public

Defendant is rescinded and the defendant will need to reapply for

representation.” Order of Court, 9/13/11, at 1 (emphasis added).           This

order was served on Appellant personally.

        Appellant did not reapply for appointed counsel.    On November 16,

2011, Appellant executed a statement of rights wherein he was told, “You

have a right to be represented by counsel. You have the right to have an

attorney appointed to you free of charge if you cannot afford to employ

one.”     Statement of Rights, 11/16/11, at 1.       On December 19, 2011,

Appellant appeared pro se before the trial court for a call of the list. At that




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time, Appellant executed a written waiver-of-counsel form that was fully

compliant with Pa.R.Crim.P. 1212 in that it stated:

____________________________________________


2
    That rule states:

        (1) The defendant may waive the right to be represented by
        counsel.

        (2) To ensure that the defendant's waiver of the right to counsel
        is knowing, voluntary, and intelligent, the judge or issuing
        authority, at a minimum, shall elicit the following information
        from the defendant:

              (a) that the defendant understands that he or she
              has the right to be represented by counsel, and the
              right to have free counsel appointed if the defendant
              is indigent;

              (b) that the defendant understands the nature of the
              charges against the defendant and the elements of
              each of those charges;

              (c) that the defendant is aware of the permissible
              range of sentences and/or fines for the offenses
              charged;

              (d) that the defendant understands that if he or she
              waives the right to counsel, the defendant will still be
              bound by all the normal rules of procedure and that
              counsel would be familiar with these rules;

              (e) that the defendant understands that there are
              possible defenses to these charges that counsel
              might be aware of, and if these defenses are not
              raised at trial, they may be lost permanently; and

              (f) that the defendant understands that, in addition
              to defenses, the defendant has many rights that, if
              not timely asserted, may be lost permanently; and
(Footnote Continued Next Page)


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    1. I understand that I have the right to be represented by an
       attorney, and have a right to a free attorney if I cannot afford
       to employ an attorney of my choosing.

    2. I understand the nature of the charges against me and the
       elements of each of these charges.

    3. I understand the permissible range of sentences and/or fines
       which may be imposed for the offense for which I am charged.

    4. I understand that if I waive my right to an attorney and
       proceed today, I will still be bound by all the normal rules of
       procedure and that an attorney appointed for me or hired by
       me would be familiar with these rules.

    5. I understand that there may be possible defenses to these
       charges which an attorney might be aware of, and if these
       defenses are not raised at trial, they may be lost forever.

    6. I understand that I have many additional rights which if not
       timely raised may be lost forever.

    7. I understand that if errors occur in my case that are not timely
       objected to or otherwise timely raised by me, the ability to
       address these errors with the court may be lost permanently.

Waiver of Counsel Pursuant to Pa.R.Crim.P. 121, 12/19/11, at 1.

       Appellant then asked for a continuance of his trial date, which had

been scheduled for January 9, 2012, and requested that it be moved to

March 12, 2012. The application for continuance was executed by Appellant,

                       _______________________
(Footnote Continued)

             that if errors occur and are not timely objected to, or
             otherwise timely raised by the defendant, these
             errors may be lost permanently.

Pa.R.Crim.P. 121(A).




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the Commonwealth, and Judge Herman, and, in it, Appellant indicated that

he needed time to prepare for trial. The Commonwealth reports that, when

Appellant asked for a continuance and executed the Pa.R.Crim.P. 121 written

waiver,    “an      on-the-record     waiver     of   counsel   colloquy   pursuant    to

Pa.R.Crim.P. 121 was performed.” Commonwealth’s brief at 3.                           See

Pa.R.Crim.P. 121(B) (“When the defendant seeks to waive the right to

counsel after the preliminary hearing, the judge shall ascertain from the

defendant, on the record, whether this is a knowing, voluntary, and

intelligent waiver of counsel.”).

      Appellant does not dispute the accuracy of the Commonwealth’s

representation that Judge Herman conducted an on-the-record oral waiver

colloquy on December 19, 2011.                  Since Appellant failed to obtain a

transcription       of   the   December        19,    2011   proceeding,   we   cannot

independently confirm that this colloquy occurred.                   We therefore are

compelled to recite the following regarding Appellant’s capacity to order

transcripts.

      After Appellant filed his first appeal, he presented a petition for

records.       As    requested   in    that     document,    Judge   Herman     ordered

transcription of: a May 8, 2012 bail hearing, a July 3, 2012 pretrial and bail

reduction hearing, an October 2, 2012 hearing on Appellant’s suppression

motion, an October 24, 2012 continued suppression hearing, a January 25,

2013 Pa.R.Crim.P. 600 hearing, a February 21, 2013 hearing on Appellant’s

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various pre-trial motions, the March 11, 2013 jury selection, all three days

of the jury trial, and the May 15, 2013 sentencing hearing.                Appellant

thereafter asked for and obtained a transcript of a December 28, 2012 pre-

trial conference.

      Appellant     filed   yet   another   motion   for   transcripts,   asking   for

transcription of an October 26, 2012 call-of-the-list proceeding.          Appellant

also demanded a copy of the docket entries at all three case numbers.

Judge Herman granted these two requests, and a transcript of the October

26, 2012 call-of-the-list was filed, and Appellant was disseminated copies of

the docket entries for all three matters. The docket entries for 1674 of 2011

clearly show the filing of the written waiver of counsel on December 19,

2011, and indicate that there was a call of-the-list proceeding conducted on

that date.

      Despite being aware of the procedure to obtain transcripts, having

notice of the December 19, 2011 call-of-the-list proceeding and filing of the

written waiver of counsel, and having ordered transcription of a different

call-of-list proceeding, Appellant never asked for the notes of testimony from

the hearing held before Judge Herman on December 19, 2011.                 Thus, we

have no hesitation in accepting the Commonwealth’s representation that

Judge Herman, concomitant with obtaining a written waiver, did conduct an

oral colloquy on December 19, 2011.              Furthermore, it was Appellant’s

responsibility to ensure that the transcript was part of the record.

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Commonwealth v. Preston, 904 A.2d 1, 7 (Pa.Super. 2006) (“Our law is

unequivocal that the responsibility rests upon the appellant to ensure that

the record certified on appeal is complete in the sense that it contains all of

the materials necessary for the reviewing court to perform its duty.”).

      The history of Appellant’s representation at case numbers 1169-2012

and 1173 of 2012 follows. After those 2012 charges were filed, Appellant

was appointed counsel, Scott J. Thomas, from the public defender’s office.

On July 25, 2012, Mr. Thomas filed a motion to suppress evidence, wherein

he challenged the sufficiency of a warrant used to search the home of people

to whom Appellant had given materials related to his stalking of Ms. Ross.

On August 1, 2012, private counsel, Brian Oliver Williams, Esquire, entered

his appearance.    On October 2, 2012, Mr. Williams filed a petition to

withdraw indicating that Appellant had fired him, and the motion was

granted on October 16, 2012. Appellant proceeded to represent himself at

trial, which was presided over by Judge Herman.

      After Appellant was convicted and sentenced, he filed a timely pro se

appeal.    We remanded for the conduct of a hearing pursuant to

Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998), which holds,

“When a waiver of the right to counsel is sought at the post-conviction and

appellate stages, an on-the-record determination should be made that the

waiver is a knowing, intelligent, and voluntary one.” That hearing was held

before Judge Herman on July 11, 2013, and Judge Herman indicated he

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ascertained that Appellant wanted to proceed pro se and knowingly and

voluntarily waived his right to counsel. Appellant asked for and obtained a

copy of the transcript of that hearing.

      On March 27, 2014, after filing a number of pro se motions with the

trial court, Appellant then asked for the appointment of counsel.       David

Breschi, Esquire, was appointed, and, after Mr. Breschi moved to withdraw,

Matthew Karasic, Esquire, was appointed. Thereafter, private counsel, Scott

Nathan Pletcher, Esquire, entered his appearance. After Mr. Pletcher moved

to withdraw, a second Grazier hearing was held on August 27, 2014, before

Judge Herman.     At that hearing, Judge Herman ascertained that Appellant

did not want to proceed pro se but actually wanted court-appointed counsel

so Kristopher Accardi, Esquire, was appointed to represent Appellant.

      After the previous appeal was dismissed, Mr. Accardi moved to

withdraw.   This matter was re-assigned to the Honorable Angela R. Krom,

who conducted another Grazier hearing and concluded that after “extensive

discussion with the Defendant, the Court determines that he has in fact,

waived his right to counsel and will proceed to represent himself.” Order of

Court, 8/5/15, at 1. Appellant asked for and obtained a copy of a transcript

of that Grazier hearing.

      Appellant then filed a pro se PCRA petition, and, at a hearing on that

petition, Mr. Accardi appeared. Judge Krom again colloquied Appellant and

ascertained that he wanted to proceed pro se. After that hearing, Appellant

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obtained reinstatement of his appellate rights, and this pro se appeal

followed.

       On appeal, Appellant faults the trial court, Judge Herman, with failing

to conduct a Pa.R.Crim.P. 121 colloquy at the beginning of trial, after

Appellant’s private counsel, Mr. Williams, asked to withdraw after Appellant

fired him.3 As noted, under Davido, supra, the trial court must sua sponte

conduct such a colloquy.         However, Judge Herman had presided over the

December 19, 2011 proceeding, and knew that a waiver colloquy was

conducted then.       There is no case law to support the notion that a judge is

required to conduct two Pa.R.Crim.P. 121 colloquies.        Appellant was fully

apprised on December 19, 2011, of the ramifications of his desire to proceed

pro se, and Judge Herman did not have to repeat information already

disseminated to Appellant.

       In addition, in light of Appellant’s behavior herein, we agree with

Judge Krom’s and the Commonwealth’s position that Commonwealth v.

Lucarelli, 971 A.2d 1173 (Pa. 2009), applies in this case. Therein, our High

Court made a clear distinction between waiver of counsel and forfeiture of

counsel.    Waiver is present when the defendant knowingly and voluntarily

relinquishes his right to counsel while forfeiture occurs when a defendant’s
____________________________________________


3
  Judge Krom prepared the Pa.R.A.P. 1925(a) opinion in this matter. She
acknowledged that a colloquy was not performed prior to trial, but did not
realize that Judge Herman conducted one on December 19, 2011.



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conduct is abusive, threatening, or extremely dilatory. Id.       “Pa.R.Crim.P.

121 and its colloquy requirements do not apply to situations where forfeiture

is found.” Id. at 1179.

      The Lucarelli Court concluded that the defendant therein forfeited his

right to counsel, obviating the need for a Pa.R.Crim.P. 121 colloquy, based

upon obstructive conduct sufficient to be characterized as extremely dilatory.

Specifically, Lucarelli had the financial means to secure private counsel, fired

several lawyers that he hired, was accorded over eight months to prepare

for trial, and then appeared at trial without an attorney or an explanation for

why counsel was not present. Our Supreme Court reversed our decision to

grant Lucarelli a new trial due to the trial court’s failure to conduct any

Pa.R.Crim.P. 121 colloquy, ruling that the colloquy was not required since,

based upon his conduct, Lucarelli forfeited his right to counsel.     See also

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

      As the above-procedural history demonstrates, Appellant initially had

an appointed lawyer in all three cases, hired and then fired private counsel,

asked to proceed pro se on numerous occasions, was given a Pa.R.Crim.P.

121 colloquy once prior to trial and three times after trial, retracted his

request to represent himself after receiving one of those hearings, thereafter

obtained a series of appointed lawyers, and then demanded to proceed pro

se again.




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      In addition to this conduct with respect to representation, the record is

replete with evidence of other obstructionist behavior by Appellant.

Appellant’s pro se filings are so voluminous that they fill a large box. Some

of the pro se documents were presented while Appellant was represented by

counsel, and they are largely indecipherable. Appellant was openly rude to

Judge Herman at various points during these proceedings, reported him to

the Judicial Conduct Board, and called him corrupt. Prior to trial, Appellant

obtained a plethora of subpoenas, the vast majority of which were quashed

after the people subpoenaed petitioned the court. Specifically, the quashed

subpoenas were issued to: a member of the Office of Disciplinary Counsel,

the entire Judicial Conduct Board, the Clerk of Courts of Franklin County,

The Pennsylvania State Board of Medicine, a state senator, the mayor of

Chambersburg, four magisterial district judges, two health care providers,

nine correctional officers, the local warden and deputy wardens, the health

providers   for   the   Franklin   County     jail,   and   the   Franklin   County

Commissioners and Administrator.

      At trial, Appellant continuously interrupted both Judge Herman and the

district attorney, even during closing arguments.           He attempted to file a

private criminal complaint raising perjury charges against Dr. Brady after her

testimony at his trial.   Appellant also moved to have the Franklin County

District Attorney’s Office disqualified from prosecuting him, and filed a

disciplinary action against Mr. Williams, who represented him for only two

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months.      Appellant’s behavior in this matter is far and above more

obstructionist and abusive than that analyzed in Lucarelli, and we find it

applicable herein. Simply put, the absence of a Pa.R.Crim.P. 121 colloquy

after Mr. Williams was fired does not entitle Appellant to a new trial.

        Appellant’s other two contentions on appeal are that the stalking and

harassment statutes are unconstitutional. We find Appellant’s position as to

the unconstitutionality of these statutes to be so rambling and confusing as

to be virtually indecipherable. In Ibn–Sadiika v. Riester, 551 A.2d 1112,

1114 (Pa.Super. 1988), we ruled that “when an appellant fails to carry

forward, or is indecipherably vague in, argumentation upon a certain point in

his appellate brief, that point is waived.”          Accord Commonwealth v.

Gooding, 649 A.2d 722 (Pa. Super. 1994).             That precept certainly applies

herein.

        Moreover,   in   Commonwealth       v.   Schierscher,      668    A.2d   164

(Pa.Super. 1995), we ruled that the crimes of harassment and stalking,

which     were   previously   contained    in    a    single   statute,   were   not

unconstitutionally vague and that they did not violate a person’s first

amendment rights to free speech.          We also note that Appellant raises a

claim that he had no notice that his behavior was criminal. The record belies

this position. The Center and the police both informed Appellant that he was

to stop contacting the victim, and he continued to do so. Additionally, as a

condition of his bail in the first action filed herein, he was ordered not to

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contact the victim. Appellant, after a brief respite, began to stalk and harass

his victim again. For the foregoing reasons, we reject Appellant’s challenges

to the constitutionality of the stalking and harassment statutes.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/29/2016




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