J-S50005-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

GREGORY B. BARTUCCI

                            Appellant                 No. 1686 MDA 2015


              Appeal from the Judgment of Sentence July 8, 2015
      in the Court of Common Pleas of Lancaster County Criminal Division
                       at No(s): CP-36-CR-0001286-2014

BEFORE: MUNDY, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.                    FILED SEPTEMBER 15, 2017

        Appellant, Gregory B. Bartucci, appeals pro se from the judgment of

sentence entered in the Court of Common Pleas of Lancaster County,

following his conviction by a jury of theft by unlawful taking, 1 theft by

deception,2 and forgery.3 Appellant challenges (1) the denial of his right to

self-representation; (2) his appearance before the jury in prison clothes; (3)

the denial of his right to a speedy trial; (4) the preclusion of Hollinger Inc.’s

insurance loss claim; and (5) the alleged denial of credit for time spent in

New Jersey custody. We affirm.



*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 3921(a).
2
    18 Pa.C.S. § 3922(a)(1).
3
    18 Pa.C.S. § 4101(a)(2).
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        We adopt the facts and procedural history set forth by the trial court’s

opinion. See Trial Ct. Op., 6/22/17, at 1-4. This appeal followed.

        Appellant raises the following issues for our review:4

           I. Was the core of the defendant’s “Faretta” right to self-
           representation egregiously violated under the Federal Sixth
           Amendment guarantee which subsequently created the
           existence of a structural error requiring the automatic
           reversal of his conviction?

           II. Was the integrity of the defendant’s trial structure
           under the Federal Fifth, Sixth, and Fourteenth Amendment
           guarantee’s rendered so fundamentally unfair and
           undermined, when he was forced to appear before the
           venire and petit jury panel’s wearing prison clothes and
           appeared dishevelled, creating the existence of plain error
           requiring the reversal of his conviction?

           III. Was the defendant’s speedy trial rights as guaranteed
           by the Sixth Amendment of the U.S. Constitution and its
           implementation under the Commonwealth’s Rule 600 limits
           violated, requiring dismissal of the criminal information
           with prejudice?

           IV. Was the trial court’s preclusion of Hollinger Inc.’s
           insurance loss claim as inadmissible hearsay a violation of
           defendant’s constitutional rights      to  due    process,
           fundamental fairness and compulsory process under the
           Sixth Amendment and Fourteenth Amendment’s of the
           U.S. Constitution?

           V. Did the trial court abuse its discretion when it denied
           defendant credit for time spent in New Jersey custody
           pursuant to Pennsylvania’s fugitive warrant?

Appellant’s Brief at 5.5



4
    We reproduce Appellant’s issues as stated.




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         First “[A]ppellant contends that the trial court failed to comply with the

dictates of Faretta v. California, 422 U.S. 806 (1975), and that this

automatically violated his right of self-representation since the right to

appear pro se exists to affirm the accused’s individual dignity and

autonomy.” Id. at 9. Appellant, who was permitted to represent himself at

trial,   claims   “[t]he   trial   court   disregarded   [A]ppellant’s   dignity   and

autonomy, under the ‘core’ Faretta right when it excluded his [sic] from

directly participating in the voire [sic] dire sidebar conferences.” Id. at 12.

Appellant concludes that his “conviction must be reversed in it’s [sic]

entirety.” Id. at 9.

         It is well-established that

            Potentially disruptive defendants, like all defendants, have
            the right to represent themselves if counsel is validly
            waived.     Whenever a defendant seeks to represent
            himself, and particularly when he may be disruptive,
            standby counsel should be appointed. The court should
            explain to the defendant the standards of conduct he will
            be expected to observe. If the defendant misbehaves, he
            should be warned that he will be removed from the court .
            ...


5
  We note that Appellant raised two additional issues in his Pa.R.A.P.
1925(b) statement of errors complained of on appeal.        See Pa.R.A.P.
2119(a) (stating that our Appellate Rules mandate that an appellant must
develop an argument with citation to and analysis of relevant legal
authority). See also Commonwealth v. Nelson, 567 A.2d 673, 676 (Pa.
Super. 1989) (stating that we must deem an issue abandoned, and therefore
waived, where it has been identified on appeal but not properly developed in
the appellant’s brief).   We find these issues abandoned and therefore
waived. See id.




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Commonwealth v. Africa, 353 A.2d 855, 864 (Pa. 1976).

      After a thorough review of the record, Appellant’s brief, and the well-

reasoned opinion of the Honorable Howard F. Knisley,6 we conclude

Appellant’s   first   issue   merits   no   relief.     The   trial   court   opinion

comprehensively discusses and properly disposes of the first question

presented. See Trial Court Op. at 6-10 (holding Appellant’s conduct prior to

trial required the court to take precautions and not permit Appellant to

approach the bench for sidebar conferences in close proximity to four

prospective jurors).

      Second, Appellant avers that “[i]t is axiomatic, the fair trial right

encompassed      under    the    Federal    Sixth     Amendment,      precludes   the

Commonwealth from requiring that a defendant appear at trial in distinctive

prison garb, or appearing disheveled [sic].” Id. at 19.

      Prior to trial, the following exchange took place between the court and

Appellant:

         The Court: [to Appellant], I sent [Public Defender, Daniel
         M. Straszynski] out to see you two weeks ago to tell you to
         have your clothing ready to proceed to trial today. I notice
         you’re still in your prison garb. Why is that and are you
         going to change or are you going to trial in a prison outfit?

         Sit. You don’t stand.

         [Appellant]: Sorry.     Sorry.     I didn’t know the rules and
         regulations.

6
  We note that the Commonwealth’s brief incorporated the trial court’s
opinion as its own.



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       The Court: You better know them because that’s what
       you’re here for.

       [Appellant]: We’re going to start that?      You’re gonna
       shout? I can shout, too.

       The Court: Guess what?

       [Appellant]: How’s that?

       The Court: You shout; you’ll be out of the courtroom.

       [Appellant]: You wanna shout? You wanna disrespect me?

       The Court: [to Appellant], answer my question.

       [Appellant]: You’re─you’re not supposed to even be
       proceeding here, sir. You have a motion for recusal.
       You’re not supposed to even be presiding over these
       proceedings, sir.

       The Court: Oh, that’s how we’re going to be.      Are you
       going to be dressed for trial or not?

       I haven’t ruled on anything yet.

       [Appellant]: No. I don’t run the goddamned jail. I filled
       out three slips to have my stuff approved.

       The Court: Calm your voice down or─

       [Appellant]: Those hillbilly rednecks down there don’t give
       a shit about me complying with the law in your courtroom,
       Your Honor.

       The Court: I asked─

       [Appellant]: Now, do you hear that?

       The Court: I didn’t hear a thing you said except what’s
       responsive to my question. Are you going to go to trial in
       that outfit, or would you like Mr. Straszynski to provide



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       you with some clothing before the jury’s brought into the
       courtroom?

                             *   *    *

       Let me just say for the record, the defendant continues to
       scream in the courtroom and be unresponsive to the
       judge’s question.

       [Appellant]: You’re not no judge; you’re a clown.     That’s
       what you are.

       The Court: [to Appellant], do you wish to have clothing
       provided by Mr. Straszynski? That’s what─

       [Appellant]: I’m not proceeding in these proceedings, Your
       Honor, because I have none of my materials, which have
       been taken away from me, none of my materials.

       The Court: You were told trial is today.

       [Appellant]: Yeah. Well, guess what? You go down there
       and call them redneck hillbillies down there and ask them
       why they take my materials and why I’m being denied
       access to the─to the law library. And they know that I
       wrote request after request; I have a trial on this date,
       Your Honor.

       The Court: You have been to the law library 125 separate
       occasions, more than anyone else in the history of
       Lancaster County Prison.         You have had 22 prior
       appearances before Courts, predominantly in New Jersey,
       but also in the state of Louisiana, all of which indicate you
       have had opportunities to appear and understand what’s
       happening in this court. This is the day for trial.

       [Appellant]: Um-hum.

       The Court: The answer to─my question is, do you wish to
       have clothing provided, or do you want to go to trial in
       your prison outfit?

       [Appellant]: No.      I’m objecting. I’m objecting to the
       proceedings . . . .


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                                 *    *       *

         The Court: [to Appellant] will be─

         [Appellant]: Now─

         The Court: ─removed from the jury room─or the
         courtroom. The jurors will be brought here promptly at
         1:30. Clothing will be prepared for him and given to him.
         If he chooses to wear them, fine. If he doesn’t, then it’s
         his prejudice that he’s providing to the jurors, not the
         Court’s, because the court has properly provided clothing
         for him to change into.

N.T., 4/13/15, at 5-11.

      Following our review of the record, we find no merit to Appellant’s

claim and adopt the reasoning of the trial court. See Trial Ct. Op. at 10-13

(holding Appellant rejected the civilian clothes being offered to him,

therefore, he “failed to show that any prejudice caused by his appearance

was in any way the result of the actions, requirements or policy of this

[c]ourt”). Id. at 13.

      Third, Appellant argues, regarding his application for dismissal under

Rule 600, that

         the cursory findings of the trial court cannot be considered
         binding where the decision was not supported by
         adequate, substantial and credible evidence and was in
         complete error.

                                 *    *       *

            The trial courts supercilious efforts to ensure the denial
         of [A]ppellant’s Rule 600 motion was judgment exercised
         in a manifestly unreasonable manner, a misapplication of
         the law and was the result of partiality, prejudice, bias or


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J-S50005-16


           ill-will as affirmatively shown by evidence appearing from
           the record. For these reasons, [A]ppellant’s conviction
           must be vacate [sic] and reversed in its entirety, a writ of
           habeas corpus issued releasing him from confinement on
           nominal bail terms or dismiss the criminal information in
           its entirety with prejudice.

Id. at 35, 37 (citation omitted).

      Our standard and scope of review in analyzing a Rule 600 7 claim is as

follows:

           In evaluating Rule 600 issues, our standard of review of a
           trial court’s decision is whether the trial court abused its
           discretion. Judicial discretion requires action in conformity
           with law, upon facts and circumstances judicially before
           the court, after hearing and due consideration. An abuse
           of discretion is not merely an error of judgment, but if in
           reaching a conclusion the law is overridden or misapplied
           or the judgment exercised is manifestly unreasonable, or
           the result of partiality, prejudice, bias, or ill will, as shown
           by the evidence or the record, discretion is abused.

Commonwealth v. Peterson, 19 A.3d 1131, 1134-35 (Pa. Super. 2011)

(citations omitted) (en banc). Following our review of the record, we discern

no abuse of discretion by the trial court.       See id.   We find the trial court

opinion properly disposes of the issue and we rely upon it. See Trial Ct. Op.

at 13-19 (noting periods of delay caused by Appellant).

      Fourth, Appellant contends

7
  We note that a new Rule 600 was adopted, effective July 1, 2013, “to
reorganize and clarify the provisions of the rule in view of the long line of
cases that have construed the rule.” Pa.R.Crim.P. 600, Cmt. However,
because the criminal complaint in this case was filed on April 9, 2013, prior
to the new rule, we will apply the former version of Rule 600. The
amendments to Rule 600 do not affect the result in this case.




                                        -8-
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           the trial court abused it’s judicial discretion in refusing the
           admit into evidence, J.L. Hollinger Inc.’s insurance loss
           claim that irrefutably reimbursed the complainant in the
           amount of $60500. This insurance claim which exceeded
           the $42500 amount as charged in the Commonwealth’s
           criminal information, would have shed light on this
           unexplained reason for this loss discrepancy, and further,
           these issues go to the weight of the evidence the trier-of-
           fact may have given to the insurance claim in reaching
           their verdict. Therefore, [A]ppellant was subjected to an
           erroneous denial of his constitutional rights to due process,
           fundamental fairness and compulsory process under the
           Sixth and Fourteenth Amendments to the U.S.
           Constitution. Accordingly, [A]ppellant’s conviction must be
           vacated in it’s [sic] entirety.

Appellant’s Brief at 40.

        Our review is governed by the following principles:

               The admission of evidence is solely within the discretion
           of the trial court, and a trial court’s evidentiary rulings will
           be reversed on appeal only upon an abuse of that
           discretion. An abuse of discretion will not be found based
           on a mere error of judgment, but rather occurs where the
           court has reached a conclusion that overrides or misapplies
           the law, or where the judgment exercised is manifestly
           unreasonable, or the result of partiality, prejudice, bias or
           ill-will.

Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015), (citations and

quotation marks omitted), cert. denied, 137 S. Ct. 92 (2016).

           Whether a document should be admitted under the
           business records exception to the hearsay rule is within
           the discretion of the trier of fact provided that his or her
           discretion is exercised within the dictates of Section
           6108.[8]   This type of evidentiary ruling may only be


8
    Section 6108 provides:




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        reversed on appeal if an error of law was committed or
        there was a clear abuse of discretion. A document not
        prepared by the person testifying is not automatically
        rendered inadmissible, as long as the authenticating
        witness can provide sufficient information relating to the
        preparation and maintenance of the records to justify a
        presumption of reliability.

Toth v. W.C.A.B. (USX Corp.), 737 A.2d 838, 841 (Pa. Commw. 1999).9

     At trial, Chad Michael Hollinger10 testified, inter alia, as follows

regarding a document pro se Appellant showed him:



        (a) Short title of section.─This section shall be known
        and may be cited as the “Uniform Business Records as
        Evidence Act.”

        (b) General rule.─A record of an act, condition or event
        shall, insofar as relevant, be competent evidence if the
        custodian or other qualified witness testifies to its
        identity and the mode of its preparation, and if it was
        made in the regular course of business at or near the time
        of the act, condition or event, and if, in the opinion of the
        tribunal, the sources of information, method and time of
        preparation were such as to justify its admission.

        (c) Definition.─As used in this section “business” includes
        every kind of business, profession, occupation, calling, or
        operation of institutions whether carried on for profit or
        not.

42 Pa.C.S. § 6108(a)-(c) (emphasis added).
9
  We note that “[t]his Court is not bound by decisions of the Commonwealth
Court. However, such decisions provide persuasive authority, and we may
turn to our colleagues on the Commonwealth Court for guidance when
appropriate.” Maryland Cas. Co. v. Odyssey Contracting Corp., 894
A.2d 750, 756 n.2 (Pa. Super. 2006) (citations omitted).
10
  Mr. Hollinger testified that he was self-employed at J. L. Hollinger & Sons
Equipment Sales. N.T., 4/14/15, at 65.



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       The Court: When you’ve had a chance to review it, please
       acknowledge.

       The Witness: I remember this document. Yes.

       The Court: You may ask a question.

       [Appellant]: What is it that you remember about that
       document, sir?

       A: I’m not a hundred-percent sure what─I’d have to look
       back into this but─this was in January of 2012. I know we
       put this in─and I’d have to look what this was for. It says,
       theft by deception.

       Q: If─if─

       A: But it says the amount of the loss was $60,000, but I
       wouldn’t have turned in 60,000. The loss on your─the loss
       was 42,500. I’d need more paperwork to see what this
       was for.

                                 *     *      *

       Q: Mr. Hollinger, what─what I’d like you to do─directing
       your attention to that document, that’s an insurance
       document, correct, sir?

       A: Yes.

       Q: And is that your insurance company?

       A: Yes. Erie Insurance.

       Q: Okay. And you, on the date of that─when─when did
       you put in that insurance claim to that insurance company,
       sir?

       A: It says the loss date was 5/16/2011.




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       Q: Okay. And what date have we been talking about for
       the last─past 15 minutes for the loss?

       A: 5/17/2011.

                               *     *      *

       Q: If I’m not mistaken, from my brief examination of that
       document─it’s the first time I’ve seen it─

       A: Okay.

       Q: ─is there somewhere on there that talks about AMB
       Trading, LLC, contact us or contact─does it say contact us
       or something like that?

       [The Commonwealth]: Your Honor, I’m going to object at
       this point. This is a hearsay document. The proper
       individuals who created this are not here to speak to it.
       This witness cannot speak to the out-of-court statement
       contained within it.

       The Court: The hearsay objection is sustained.

                               *     *      *

       Q: Have you seen this document before?

       A: No. I never seen this particular document.

       The Court: that ends the questioning then.

                              *     *       *

       The Court: . . . Any further questions of this gentleman
       relative to any other issues, sir?

       A: Not at this time, Your Honor.

                               *     *      *

       [Appellant]: Your Honor, there’s one evidentiary issue, sir.
       I had made an oversight. I’m asking, in the interest of
       justice, can we kindly approach so─if the Court feels it’s


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         necessary. I didn’t ask the [c]ourt to enter that document,
         that insurance document into evidence, Judge.

         The Court: It will not be offered into evidence. It’s a
         hearsay document. It’s not going to be presented. If you
         have the witness and you have the writer of the document
         or you have someone from the insurance company to
         come and testify as to the document, you may certainly do
         that.   The individual from the stand said he did not
         recognize the document. Therefore, it is hearsay and will
         not be admitted into evidence.

N.T., 4/14/15, at 93-5, 97, 102 (emphases added).

      Following our review of the record, the applicable law, and the well-

reasoned opinion of the trial court, we conclude this issue has no merit. We

discern no abuse of discretion by the trial court in its evidentiary ruling. See

Woodard, 129 A.3d at 494; Toth, 737 A.2d at 841. We rely upon the trial

court opinion which properly addresses and disposes of the question

presented. See Trial Ct. Op. at 19-21 (holding the witness did not have the

required knowledge and was not qualified to testify concerning the

document).

      Lastly, Appellant contends the “trial court abused it’s [sic] discretion

when it denied [him] credit for time spent in custody in New Jersey pursuant

to Pennsylvania’s fugitive warrant.” Appellant’s Brief at 49. Appellant avers

         [o]n July 15, 2013, [he] was arrested by detectives at his
         New Jersey residence pursuant to a “fugitive arrest
         warrant” for being wanted for theft out of Lancaster
         County, Pennsylvania.

                                  *     *      *




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         [A]ppellant must be resentenced and awarded credit for
         time spent in official custody in another sovereign while
         waiting to be extradited to the Commonwealth.

Id. at 52, 54.11

      “[W]here an appellant challenges the trial court’s failure to award

credit for time served prior to sentencing, the claim involves the legality of

sentence.”    Commonwealth v. Miller, 655 A.2d 1000, 1001 n. 1 (Pa.

Super. 1995) (citation and quotation marks omitted). “Issues relating to the

legality of a sentence are questions of law, as are claims raising a court’s

interpretation of a statute. Our standard of review over such questions is de

novo and our scope of review is plenary.” Commonwealth v. Hawkins, 45

A.3d 1123, 1130 (Pa. Super. 2012) (citation omitted).

      Section 9760 provides, in pertinent part:

         (1) Credit against the maximum term and any minimum
         term shall be given to the defendant for all time spent in
         custody as a result of the criminal charge for which a
         prison sentence is imposed or as a result of the

11
   We note that a status conference in the instant case was held on
September 30, 2014. The court stated:

            Just to review a brief history, [Appellant], February
         14th of 2013, pled guilty to charges in Union County.
         Charges here were filed on April 9th of 2013. He was also
         facing charges, at that point, in Mammoth [sic] County and
         Union County.

           On February 25th of 2014, he was transported from
         New Jersey, I believe it was a county jail there, by the
         Sheriff’s office to us.

N.T., 9/30/14, at 3-4.



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         conduct on which such a charge is based. Credit shall
         include credit for time spent in custody prior to trial, during
         trial, pending sentence, and pending the resolution of an
         appeal.

42 Pa.C.S. § 9760(1) (emphasis added). It is well established that

          “a defendant shall be given credit for any days spent in
         custody prior to the imposition of sentence, but only if
         such commitment is on the offense for which sentence is
         imposed.” Commonwealth v. Clark, 885 A.2d 1030,
         1034 (Pa. Super. 2005) (quoting [Miller, 655 A.2d at
         1002] (internal quotation marks omitted).

Commonwealth v. Infante, 63 A.3d 358, 367 (Pa. Super. 2013).

      Appellant filed a petition for time credit in which he averred, in

pertinent part, as follows:

         According to the Records Department at the Monmouth
         County Correctional Institution, [Appellant] was detained
         in Monmouth County Correctional Institution in New Jersey
         on July 5, 2013, on charges of contempt, and he was held
         on those charges until February 17, 2014, when he posted
         bail.

         From February 17, 2014 through February 25, 2014, when
         he was transferred to Lancaster County Prison, [Appellant]
         was detained in New Jersey solely because of the instant
         charges.

Pet. for Time Credit Correction to DC-300B, 4/14/16, at 1-2.

      Appellant requested the court to “[o]rder the Lancaster County Clerk

of Courts to correct his DC-300B[12] to reflect that he is entitled to time



12
  In Commonwealth v. Heredia, 97 A.3d 392 (Pa. Super. 2014), this
Court noted that




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credit from February 17, 2014 on his sentences of incarceration . . . and to

transmit the corrected document to the SCI where he is currently

incarcerated.”    Id. at 2. The trial court granted the petition. See Order,

4/18/16.     Appellant was granted credit for time served on the instant

offenses. See Infante, 63 A.3d 358, 367. We discern no error of law by

the trial court. See Hawkins, 45 A.3d at 1130.

      For all of the foregoing reasons, we affirm the judgment of sentence.

      Judgment of sentence affirmed.

      Justice Mundy did not participate in the consideration or decision of

this case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/15/2017




           Form DC–300B is a commitment document generated by
           the Common Pleas Criminal Court Case Management
           System. See 37 Pa.Code § 96.4; 42 Pa.C.S.A. § 9764.
           Section 9764 of the Judicial Code sets forth the procedure
           associated with transfer of an inmate into DOC custody
           and provides that, on commitment of an inmate, the
           transporting official must provide the DOC with a copy of
           the trial court’s sentencing order and a copy of the DC–
           300B commitment form. See 42 Pa.C.S.A. § 9764(a)(8).

Id. at 394 n.3.



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