J-A04032-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RAYMOND STANFORD                           :
                                               :
                       Appellant               :   No. 2346 EDA 2018

          Appeal from the Judgment of Sentence Entered July 6, 2018
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0007329-2015


BEFORE: LAZARUS, J., KUNSELMAN, J., and COLINS*, J.

MEMORANDUM BY COLINS, J.:                               FILED MARCH 06, 2019

        Appellant, Raymond Stanford, appeals from the aggregate judgment of

sentence of five to sixteen years of confinement followed by four years of

probation, which was imposed after his convictions at a stipulated bench trial

for:    one count of dissemination of photographs, videotapes, computer

depictions and films depicting a child under the age of eighteen years engaging

in a prohibited sexual act or in the simulation of such act; thirty counts of child

pornography; and one count of criminal use of communication facility.1 After

careful review, we vacate the judgment of sentence and remand for a new

trial, with new trial counsel.

        We briefly summarize the facts and procedural history of this case
        as follows. On August 30, 2015, a detective with the Internet
        Crimes Against Children Taskforce Unit intercepted a video file
        containing child pornography. A search of Internet subscriber
____________________________________________


1   18 Pa.C.S. §§ 6312(c), 6312(d), and 7512(a), respectively.


*    Retired Senior Judge assigned to the Superior Court.
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      records led police to obtain a search warrant for the apartment
      wherein Appellant resided with his sister and her two children.
      Police confiscated a laptop computer and desktop computer from
      the residence. Appellant’s identification was found on a small
      table next to the desktop computer. Appellant claimed that a
      friend gave him the laptop computer for repair. Subsequent
      forensic examinations of the two computers revealed 327 videos
      and 308 images of child pornography. On October 14, 2015,
      police arrested Appellant. The Commonwealth originally charged
      Appellant with 52 various crimes related to child pornography.

Commonwealth v. Stanford, No. 94 EDA 2017, unpublished memorandum

at 1-2 (Pa. Super. filed May 7, 2018).

      On January 29, 2016, a public defender entered his appearance on

Appellant’s behalf.   On May 31, 2016, Appellant pro se filed a motion for

change of appointed counsel (“the Motion”), which stated, in relevant part:

      3.    Defendant and counsel have met with each other on 6-7
      occasions to discuss defendant’s case.

      4.     Both defendant and counsel believe that there is an
      irreconcilable personality conflict and irreconcilable conflict and
      difference of opinion on the manner in which this case should be
      litigated. The lawyer- client privilege prohibits counsel from
      disclosing the specific areas of conflict, but the defendant hereby
      represents that the conflict is irreconcilable and substantial.

      5.   Because of this irreconcilable conflict defendant moves to
      have new counsel appointed for him.

The Motion, 5/31/2016, at ¶¶ 3-5 (emphasis in original). On June 1, 2016,

the trial court denied the motion without a hearing.

      On June 14, 2016, Appellant appeared for a stipulated non-jury
      trial. Initially, the Commonwealth moved to amend the criminal
      information to reduce the total number of criminal counts against
      Appellant[, which the trial court granted.] . . . [During trial,] the
      Commonwealth entered into evidence digital images, reports,
      transcripts from prior proceedings, and factual stipulations. On



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      July 8, 2016, the trial court entered its verdict finding Appellant
      guilty of the crimes as set forth above.

      On November 29, 2016, the trial court sentenced Appellant[.] . . .

      Despite the fact that he was represented by counsel, on
      December 5, 2016, Appellant filed a pro se motion for
      reconsideration of his sentence.           In that filing, Appellant
      complained that his sentence was too harsh and alleged that trial
      counsel, appointed from the Public Defender’s Office, was
      ineffective for failing to secure a plea deal. On December 14,
      2016, counsel from the Public Defender’s Office filed a motion to
      appoint new counsel for Appellant in light of Appellant’s
      ineffectiveness claim. On December 16, 2016, the trial court
      appointed new counsel, Jordan Reilly, Esquire, to represent
      Appellant. On December 27, 2016, Appellant filed a pro se notice
      of appeal. On December 28, 2016, counsel from the Public
      Defender’s Office, despite no longer representing Appellant, filed
      a notice of appeal on behalf of Appellant. On February 10, 2017,
      the trial court dismissed Appellant’s pro se motion for
      reconsideration because “[b]efore the above motion for
      reconsideration was addressed by [the trial court], former counsel
      for [Appellant] filed its [n]otice of [a]ppeal to the Superior Court.”
      Order, 2/10/2017, at *1 n.1. Thereafter, although not entirely
      clear from the record when, Attorney Reilly “asked to be removed
      as [counsel for Appellant because] she does not handle appellate
      work.” Trial Court Opinion, 4/28/2017, at 5. . . . On February 15,
      2017, the trial court entered an order appointing Richard Packel,
      Esquire to represent Appellant on appeal . . . On March 7, 2017,
      Attorney Packel filed a motion to dismiss Appellant’s pro se appeal
      as duplicitous. Our Prothonotary discontinued that appeal. . . .
      The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on
      April 28, 2017.

Stanford, No. 94 EDA 2017, at 2-4.

      On May 7, 2018, this Court entered a memorandum decision

“remand[ing] this case to the trial court and direct[ing] that it reinstate

Appellant’s post-sentence rights nunc pro tunc, to allow current counsel to file

a   post-sentence   motion    on   Appellant’s   behalf   for   the   trial   court’s

consideration.” Id. at 7.

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       On June 5, 2018, Attorney Packel filed a post-sentence motion to modify

sentence, which the trial court denied on July 9, 2018. On July 31, 2018,

Appellant filed this timely direct appeal.2

       Appellant now presents the following issues for our review:

       [1.] Did the court below err in dismissing [the Motion] without a
       hearing on the [M]otion? If this is determined in favor of
       [Appellant], what should be the remedy for this error?

       [2.] Did the court below err procedurally in sentencing
       [Appellant], by not considering the statutory provisions of the
       Sentencing Code as well as the Sentencing Guidelines?

       [3.] Did the court below err as an abuse of discretion in
       sentencing [Appellant] in light of a number of mitigating factors in
       favor of [Appellant]?

Appellant’s Brief at 3-4 (trial court’s answers and Appellant’s suggested

answers omitted).

       Appellant first contends that the trial court erred by denying the Motion

“without a hearing . . . almost immediately[,]” even though he had filed the

Motion “several weeks before his trial[.]” Appellant’s Brief at 26.

       Although there is no question that an indigent prisoner is entitled to free

legal counsel, see U.S. Const. amend. VI; Pa. Const. art. 1, § 9, “[t]he

decision of whether to appoint new counsel lies within the sound discretion of

the trial court.” Commonwealth v. Keaton, 45 A.3d 1050, 1070 (Pa. 2012)

(citation omitted).
____________________________________________


2 The trial court did not order and Appellant did not file a new statement of
errors complained of on appeal. On August 8, 2018, the trial court entered
an opinion stating that it “adopts the reasoning” set forth in its prior opinion,
dated April 28, 2017. Trial Court Opinion, filed August 8, 2018, at 2.


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      In Commonwealth v. Tyler, 360 A.2d 617, 618 (Pa. 1976), the

Supreme Court of Pennsylvania also considered an appeal where,

      prior to commencement of trial, appellant requested that his court
      appointed counsel be dismissed and that new counsel be
      appointed. At that time appellant alleged an irreconcilable
      difference of opinion between himself and his court appointed
      counsel as to the manner in which the trial of his case should be
      conducted.

The court was advised that “the attorney-client privilege” “precluded . . .

further expla[nation]” of “the nature of the difficulties.” Id. The defendant’s

“motion was denied by the trial court.”     Id.   The trial court thus had no

information about the specific conflict between the defendant and his attorney

before it denied the defendant’s request for new counsel. Id. The Supreme

Court concluded that, since “there [wa]s no evidence that [the defendant]’s

request for appointment of new counsel was arbitrarily made, or made for the

sole purpose of delaying the trial[,]” the “refusal to appoint new counsel was

an abuse of discretion” and that the defendant was “entitled to a new trial,

with new counsel, on that basis.” Id. at 619.

      The current action is analogous to Tyler.        As in Tyler, prior to

commencement of trial, Appellant requested that his court-appointed counsel

be dismissed and that new counsel be appointed.        Compare The Motion,

5/31/2016, at ¶ 5 with Tyler, 360 A.2d at 618.        At that time, Appellant

alleged an irreconcilable difference of opinion between himself and his court-

appointed counsel as to trial strategy. Compare The Motion, 5/31/2016, at

¶ 4 with Tyler, 360 A.2d at 618. The trial court was advised that attorney-


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client privilege precluded further explanation as to the nature of the conflict,

and, even though there was no evidence that Appellant’s request for

appointment of new counsel was arbitrarily made or made for the sole purpose

of delaying trial, the trial court denied the Motion.    Compare The Motion,

5/31/2016, at ¶ 4, with Tyler, 360 A.2d at 618-19. Hence, as with the trial

court in Tyler, id., the trial court in the current appeal had no information

about the specific conflict between Appellant and his public defender before it

denied Appellant’s request for new counsel. Therefore, just like the Supreme

Court found in Tyler, id. at 619, we are constrained to hold that the refusal

of the trial court in the current case to appoint new counsel was an abuse of

discretion and that Appellant is entitled to a new trial, with new counsel, on

that basis.3



____________________________________________


3  In its brief to this Court, the Commonwealth relies upon a history of the
interaction between Appellant and his appointed counsel subsequent to the
filing of the Motion in support of its contention that the trial court did not err
when it denied the Motion. Commonwealth’s Brief at 8-10. However, it is not
appropriate for us to review whether the trial court erred in denying the
Motion, without a hearing, based upon information received at a later date,
and the public defender’s ultimate trial performance is irrelevant to our
decision.

Additionally, the Commonwealth’s argument that Appellant could not file a
motion for change of counsel, as “there is no hybrid representation in
Pennsylvania[,]” id. at 8 (citations omitted), ignores that Pa.R.Crim.P. 122(C)
carves out a specific exception that allows a defendant to file a motion for
change of counsel. Furthermore, the motivation of our Supreme Court in
precluding hybrid representation was to prevent the problems associated with
“competing filings” by a defendant and his counsel. Commonwealth v.



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       We are aware that the current matter is atypical, in that the trial court

has already appointed appellate counsel, different from Appellant’s trial

counsel.     There has been no suggestion that Appellant has had any

irreconcilable difference with his current appellate counsel.        Therefore,

following an on-the-record inquiry with Appellant and his current counsel, the

trial court may reappoint current appellate counsel, Attorney Packel, to serve

____________________________________________


Glacken, 32 A.3d 750, 753 (Pa. Super. 2011). Here, there are no competing
filings.

Finally, the case law relied upon by the Commonwealth in its brief can be
distinguished from the facts of the instant appeal. The Commonwealth cites
to Commonwealth v. Floyd, 937 A.2d 494, 497 (Pa. Super. 2007), stating:
“a strained relationship, differences of opinion in trial strategy, lack of
confidence in counsel’s ability, or brevity of pretrial communications does not
warrant appointment of new counsel[.]” Commonwealth’s Brief at 11.
Nevertheless, Floyd is distinguishable, because the trial court in Floyd
“conduct[ed] an extensive inquiry” with both the defendant and his appointed
counsel “as to the underpinnings of [the defendant]’s complaints[.]” 937 A.2d
at 500. In the instant case, the trial court denied the Motion the day after it
was filed and never conducted a hearing with Appellant or his appointed public
defendant trial counsel as to Appellant’s complaints. For this reason, Floyd
differentiated itself from Tyler. See 937 A.2d at 500.

The Commonwealth’s reliance on Commonwealth v. Newman, 555 A.2d
151 (Pa. Super. 1989), for the concept that there is no error where a
defendant fails “to press his desire for new counsel after filing” a motion for
change of counsel, Commonwealth’s Brief at 12, is likewise misplaced. In
Newman, 555 A.2d at 161, the defendant’s motion was never brought to the
attention of the trial court or trial counsel, the defendant later decided to
represent himself at trial, and the motion itself was described as “boilerplate”
by this Court. In the instant matter, the Motion was brought to the attention
of the trial court -- as evidence by the court’s entry of an order denying the
Motion, Appellant never requested to represent himself, and the Motion,
although terse, provided adequate information to avoid the label of
“boilerplate.”

For all these reasons, the Commonwealth’s argument is unpersuasive.

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as new trial counsel or may appoint another new attorney, at the trial court’s

discretion.

      As we vacate the judgment of sentence and remand on Appellant’s first

claim, we need not reach his remaining challenges to the discretionary aspects

of his sentence. See Appellant’s Brief at 3-4, 37-49.

      Judgment of sentence vacated.       Case remanded with instructions.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/6/19




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