J-S20028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                        Appellee

                   v.

MELVIN CUMMINGS,

                        Appellant                   No. 1549 WDA 2014


           Appeal from the Judgment of Sentence July 31, 2014
            In the Court of Common Pleas of Crawford County
           Criminal Division at No(s): CP-20-CR-0000175-2013


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and WECHT, JJ.

MEMORANDUM BY SHOGAN, J.:                       FILED: MAY 1, 2015

     Melvin Cummings (“Appellant”) appeals from the judgment of sentence

entered July 31, 2014, following his conviction by a jury of various drug-

related offenses. We affirm.

     The trial court set forth the procedural history of the case as follows:

           [Appellant] was charged in ten counts [of] the following
     offenses: possession, possession with intent to deliver (“PWID”),
     and delivery of 0.90 of a gram of cocaine, a controlled
     substance; possession, PWID, and delivery of 0.17 of a gram of
     cocaine; and criminal conspiracy and criminal use of
     communication facility with respect to each amount of cocaine.
     Attorney Edward J. Hatheway was initially appointed to represent
     him, but moved for leave to withdraw as legal counsel upon
     [Appellant’s] adamant assertion that he wished to be self-
     represented.    [Appellant] failed to appear at the hearing
     scheduled on that motion, which the [c]ourt was forced to
     reschedule and to transfer the trial from the September 2013 to
     the November 2013 term of [c]ourt.
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           At the rehearing of the motion to withdraw, Attorney J.
     Wesley Rowden was appointed as substitute counsel upon a
     finding of irreconcilable differences between [Appellant] and
     Attorney Hatheway. [Appellant] subsequently moved to proceed
     without counsel, and following a hearing held on October 21,
     2013, the motion was granted and Attorney Rowden was
     appointed to serve as standby counsel.          Having advised
     [Appellant] that the trial would not be further continued, the
     [c]ourt refused a request at the start of the trial term for a
     continuance to the January 2014 term of [c]ourt, and specially
     set the case to be tried during the second week of the November
     term. The motion for a continuance was based upon
     [Appellant’s] alleged unawareness of his need to subpoena any
     involuntary witnesses.

           At the time set for trial, [Appellant] pleaded no contest to
     the charge of delivery of 0.90 grams of cocaine, with the
     remaining counts nolle prossed. That plea was withdrawn prior
     to sentencing, however, on [Appellant’s] contention that he had
     been unable to locate and subpoena his witnesses in the time
     available to him. The trial was next continued from the January
     to the March 2014 term of court due to the unavailability of a
     key witness for the Commonwealth, and a finding that
     [Appellant] was not thereby prejudiced because he still had not
     subpoenaed his witnesses.

           [Appellant] then, on February 25, 2014, filed a Motion to
     Dismiss, which was interpreted as a habeas corpus motion and
     set for hearing on March 31, 2014, further delaying trial until the
     May term of court. That motion was denied, and a jury was
     empaneled and the trial commenced on May 20, 2014.
     [Appellant] left the courthouse following opening statements,
     giving the excuse of needing to use the restroom, but the trial
     continued [in absentia] and he was convicted on all ten counts.
     He was later arrested on a bench warrant in Erie, Pennsylvania,
     and on July 31, 2014, received an aggregate sentence of fifty-
     four to 240 months of imprisonment, with credit for sixty-six
     days of presentence incarceration.

Trial Court Memorandum, 9/2/14, at 1–3 (footnotes omitted).

     Appellant filed post-sentence motions seeking a judgment of acquittal,

a new trial, and modification of his sentence.    The trial court denied the


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motions by order dated August 29, 2014.               This appeal followed, in which

Appellant presents two questions for our consideration:

       1[.]       Were Appellant’s two pre-trial counsel ineffective when
                  they failed to seek a mental health evaluation for him,
                  failed to advise the trial court of Appellant’s mental health
                  issues, and failed to advise Appellant of the proper
                  procedures to raise such matters?

       2.         Was the trial court in error when it permitted Appellant to
                  represent himself, and permitted trial to continue after
                  Appellant did not return to the courtroom and standby
                  counsel was permitted to leave?

Appellant’s Brief at 4.1

       Appellant’s first issue presents ineffective assistance of counsel claims.

Our Supreme Court recently reiterated that “Grant’s[2] general rule of

deferral to PCRA[3] review remains the pertinent law on the appropriate

timing      for    review   of   claims   of   ineffective   assistance   of   counsel.”

Commonwealth v. Holmes, 79 A.3d 562, 563 (Pa. 2013).

       In disposing of Appellant’s first issue, we adopt the well-reasoned

analysis of the trial court:


____________________________________________


1
  We note that Appellant’s brief fails to conform to Pa.R.A.P. 2119(a) in that
the argument section is not “divided into as many parts as there are
questions to be argued.” However, because this defect does not hamper our
ability to review Appellant’s issues, we shall address them.
2
    Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002).
3
    Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541–9546.



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     The Appellant’s claims of ineffective assistance of counsel
     (“IAC”) with respect to his mental health issues were raised in
     his motion for a new trial, but were not entertained by this
     [c]ourt in accordance with Commonwealth v. Holmes, 621 Pa.
     595, 79 A.3d 562 (2013) . . . .1 Similarly, his newly-raised IAC
     claims founded . . . upon counsel’s failure to advise him in
     regard to pretrial motions are not reviewable on direct appeal.
     Id.
           1
              The Holmes Court recognized ineligibility for post
           conviction collateral relief as a special circumstance
           where ineffective assistance of counsel claims might
           be reviewable by a trial court on post-trial motions.
           621 Pa. at 623, 79 A.3d at 578. The Appellant,
           however, will be imprisoned until at least November
           of 2018 for his conviction of offenses under the
           Pennsylvania Crimes Code, and hence remains PCRA
           eligible. See 42 Pa.C.S. § 9543(a)(1)(i). He also did
           not waive his entitlement to seek PCRA review of his
           conviction and sentence, nor was he in one of those
           “extraordinary circumstances where a discrete claim
           (or claims) of trial counsel ineffectiveness is
           apparent from the record and meritorious to the
           extent that immediate consideration best serves the
           interests of justice.” Holmes, 621 Pa. at 598–[5]99,
           79 A.3d at 563–564.

Trial Court Opinion, 12/5/14, at 2–3.   Based on the procedural posture of

Appellant’s ineffective assistance of counsel (“IAC”) claims, we decline to

review his first issue without prejudice to his rights under the Post

Conviction Relief Act, 42 Pa.C.S. §§ 9541–9546.

     Appellant’s second issue raises allegations of trial court error.

Specifically, Appellant argues that the trial court erred in trying him in

absentia and in dismissing standby counsel. Appellant’s Brief at 2.

     “A defendant’s right to be present at trial is guaranteed by the Sixth

Amendment to the United States Constitution; by Article I, Section 9 of the

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Pennsylvania Constitution; and by Pennsylvania Rule of Criminal Procedure

602(a).”     Commonwealth v. Faulk, 928 A.2d 1061, 1065 (Pa. Super.

2007) (citations omitted). “The right may be waived either impliedly, via the

defendant’s actions, or expressly.” Id. (citations omitted). For example, a

defendant may be tried in absentia if he is absent without cause when the

trial is scheduled to begin or if the defendant absconds without cause after

the trial commences. Id. (citing Commonwealth v. Wilson, 712 A.2d 735,

737 (Pa. 1998)).

       Upon review of the certified record and applicable law, we again adopt

the well-reasoned analysis of the trial court in disposing of these claims:

              A defendant’s absence without cause does not preclude
       proceeding with the trial. Pa.R.Crim.P. 602(A).[4] The Appellant
       gave an opening statement and, as the Commonwealth started
       to call its first witness, requested a recess on a pretextual need
       to use the restroom. Trial Transcript, pp. 32–34. A colloquy
       conducted at the conclusion of the recess established that
       [Appellant] had instead left the Courthouse with his briefcase
       (and all of his trial materials except for a note pad), that he was
       seen speaking with someone in a van, and that he had not
       reentered the Courthouse. Id., pp. 34–38. He was located by
       police a week later in another county, and determined at his
       seventy-two hour detention hearing to have been a fugitive.
       Order of May 29, 2014. His absence was thus without cause,
       and he thereby knowingly and voluntarily waived his right to be
       present at his trial. See Commonwealth v. Wilson, 551 Pa. 593,
____________________________________________


4
    Pa.R.Crim.P. 602(A) provides, in relevant part, as follows:

       The defendant’s absence without cause at the time scheduled for
       the start of trial or during trial shall not preclude proceeding with
       the trial, including the return of the verdict and the imposition of
       sentence.



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       712 A.2d 735 (1998) [(“When a defendant is initially present at
       the time the trial commences, then flees or fails to attend further
       proceedings, he or she is deemed to have knowingly and
       voluntarily waived his or her right to be present.”)].

             The additional absence of standby counsel is more
       problematic, as the Appellant was thus left without
       representation. Cf. Commonwealth v. Ford, 715 A.2d 1141
       (Pa.Super. 1998). Mr. Ford had been tried in absentia and
       without representation when his counsel was permitted to
       withdraw prior to the start of trial.       The Superior Court
       remanded for a new trial because there had been no inquiry as
       to whether he was aware of his right to counsel, or whether he
       knowingly waived his constitutional rights.

             In the instant action, in contrast, the Appellant had moved
       to proceed without counsel seven months before the trial, and
       his request was granted only after this Court conducted an
       extensive inquiry in accordance with Pennsylvania Rule of
       Criminal Procedure 121(A)(2).[5] Order of October 21, 2013; see
____________________________________________


5
    Pa.R.Crim.P. 121 provides, in relevant part, as follows:

       (A) Generally.

       (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;

(Footnote Continued Next Page)


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      also Order of May 2, 2014 (giving the Appellant further
      opportunity for the appointment of counsel to represent him,
      gratis). In granting his motion, the Court sua sponte appointed
      standby counsel, who, because he played only an advisory role,
      was permitted to leave the courtroom when the Appellant failed
      to return from the fifteen minute recess. He could not be
      saddled with representing a defendant who had absconded from
      trial. Cf. McKaskle v. Wiggins, 465 U.S. 168, 183, 104 S. Ct.
      944, 953, 79 L.Ed.2d 122 (1984)(“[A] defendant does not have
      a constitutional right to choreograph special appearances by
      counsel.”). The trial having already been delayed eight months,
      and with a jury empaneled and opening statements completed,
      this [c]ourt would not allow the self-represented Appellant to
      postpone his trial indefinitely by fleeing. See Wilson, supra (the
      factors are varied that a trial court may weigh in exercising its
      discretion on whether to try a defendant in absentia);
      Commonwealth v. Hill, 737 A.2d 255, 259 (Pa.Super. 1999).

Trial Court Opinion, 12/5/14, at 4–6.


                       _______________________
(Footnote Continued)

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



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          Here, the notes of testimony support the trial court’s findings. N.T.,

5/20/14, at 34–38. Thus, we conclude that Appellant’s “voluntary fugitive

status acted as a knowing and understanding waiver of his right to be

present” at trial.      Taylor v. United States, 414 U.S. 17, 20 (1973).

Moreover, we agree with the trial court that standby counsel’s role was “to

aid [Appellant] in explaining to him the courtroom procedures and the rules

of evidence and the like.” N.T., 5/20/14, at 40. Given Appellant’s voluntary

absence, “there [was] really no reason to hold [standby counsel] up any

longer either.”      Id. at 37.   Accordingly, we discern no error in the trial

court’s decisions to conduct Appellant’s trial in absentia and to dismiss

standby counsel.

          In sum, Appellant’s IAC claims are deferred to collateral review. His

claims of trial court error lack merit.      Hence, Appellant is not entitled to

relief.

          Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/1/2015




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