Com. v. Davido

Decision Date25 February 2005
PartiesCOMMONWEALTH of Pennsylvania, Appellee v. Tedor DAVIDO, Appellant.
CourtPennsylvania Supreme Court

Christopher P. Lyden, for Tedor Davido, appellant.

Heidi Fisher Eakin, Amy Zapp, Harrisburg, Susan E. Moyer, Lancaster, for the Com., appellee.



Chief Justice CAPPY.

This is a direct review of a sentence of death imposed by the Court of Common Pleas of Lancaster County.1 For the reasons that follow, we affirm the judgment of sentence.

On May 15, 2000, the Lancaster Bureau of Police charged Appellant, Tedor Davido, with the criminal homicide of his girlfriend, Angie Taylor.2 Following a jury trial, Appellant was found guilty of first-degree murder3 and rape4. During the penalty phase of the trial, Appellant chose to represent himself and put on no defense. Following the penalty phase, the jury found one aggravating circumstance, that the defendant committed a killing while in the perpetration of a felony5, and no mitigating circumstances and fixed the penalty at death.6 On January 3, 2002, the trial judge formally imposed the sentence of death for the murder of Angie Taylor and a consecutive sentence of 10 to 20 years of imprisonment for the rape conviction.

On January 7, 2002, the court appointed new counsel to represent Appellant on direct appeal. Counsel withdrew on March 19, 2002 without having filed a timely notice of appeal. The court appointed new counsel to represent Appellant. On April 29, 2002, the Court of Common Pleas of Lancaster County entered an order granting Appellant's Motion to Appeal Nunc Pro Tunc, and counsel filed an appeal on May 17, 2002. On May 31, 2002, Appellant filed a Statement of Matters Complained of on Appeal.

Subsequently, on January 15, 2003, the trial court filed an "Opinion Pursuant to Pa.R.A.P. 1925." Appellant then sought to supplement the record with a letter to the trial court dated October 15, 2001. The trial court granted the motion. Appellant appealed and filed a "Petition for Remission of the Record and Remand to the Lower Court" with this court, seeking to supplement the record further and to amend the 1925(b) statement to include a new issue. On June 6, 2003, the Petition was granted.7 The trial court filed an "Opinion on Appellant's Amended Statement" on August 20, 2003, and this direct appeal followed.

Appellant raises five issues on appeal to this Court. Before reaching the issues raised by Appellant, we must first review the sufficiency of the evidence used to establish the first degree murder conviction. See Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937, 942 n. 3 (1982)

(citing 42 Pa.C.S. § 9711(h)). In reviewing the sufficiency of the evidence, this court will consider whether the evidence and all reasonable inferences drawn from that evidence, viewed in the light most favorable to the Commonwealth as the verdict winner, would permit a jury to find that all of the elements of the crime were present beyond a reasonable doubt. Commonwealth v. Ockenhouse, 562 Pa. 481, 756 A.2d 1130, 1135 (2000). Circumstantial evidence alone is sufficient to convict one of a crime, including first degree murder. Commonwealth v. May, 540 Pa. 237, 656 A.2d 1335, 1340 (1995). In order to sustain a finding of first-degree murder, the evidence must establish that a human being was unlawfully killed, that the appellant did the killing, and that the killing was done in an intentional, deliberate, and premeditated way. Commonwealth v. Mitchell, 528 Pa. 546, 599 A.2d 624, 626 (1991); see 18 Pa.C.S. §§ 2501(a), 2502(a).

With these considerations in mind, we now review the evidence presented at trial. At trial, the testimony presented established that Angie Taylor and her 2-year old son moved into 26 Hager Street in Lancaster to live with Appellant and his family. N.T., 12/5/2001, 49, 52; N.T., 12/6/2001, 48. During the early morning hours of May 14, 2001, Appellant and Angie Taylor were involved in a fight. N.T., 12/5/2001, 54, 60, 62; N.T., 12/6/2001, 298-300. That fight became physical. Appellant's sister placed a 9-1-1 call on the morning of the fight. In that call, Appellant's sister requested that the police come to 26 Hager Street where "a guy was beating up a girl."8 N.T., 12/5/2001, 42, 52, 65. When the police arrived at 26 Hager Street, no one answered the door. N.T., 12/5/2001, 82-3, 105. Appellant testified that he got scared and exited the house via the roof when he heard the police. N.T., 12/11/2001, 747. He then went to Michele Gray's house. Id. Michele Gray testified that Appellant told her he was arguing with Angie, that he beat Angie up, and that Angie was breathing funny and not moving at the time he left the house. N.T., 12/6/2001, 365-67.

The police testified that they entered the house through a window and found Taylor on the third floor. N.T., 12/5/2001, 84, 109-11. Taylor was unconscious and almost nude when the police found her. Id. at 90-92; 110-11. Medics transported Taylor to Lancaster General Hospital. Id. at 142. The treating physician testified that he treated her for brain swelling, which ultimately squeezed her brain stem, shutting off her vital functions. N.T., 12/6/2001, 320. Angie Taylor died in the afternoon of May 14, 2001. Id. at 323.

Testimony offered at trial established that Appellant told others that he beat Taylor on the morning in question and then had sex with her when she wouldn't respond to him. N.T., 12/7/2001, 505-06; N.T., 12/10/2001, 565. Expert testimony established that the cause of death was repeated blows to the head, which caused Taylor's brain to swell and occluded the brain stem, eventually causing her death. N.T., 12/7/2001, 448, 450, 466.

These facts were sufficient to establish that Angie Taylor was unlawfully killed, that Appellant did the killing, and that the killing was done in an intentional, deliberate, and premeditated way. Accordingly, the evidence was sufficient for the jury to conclude that the Commonwealth proved all of the elements of first-degree murder beyond a reasonable doubt. Ockenhouse supra.

We now turn to the issues that Appellant raises in his brief to this court. Appellant first challenges the trial court's denial of his request to proceed pro se at trial. In support, Appellant points to a letter addressed to the trial court dated October 15, 2001, in which he alleges that he requested the appointment of new counsel or alternatively, requested to proceed pro se at trial. He argues that the trial court violated his Sixth Amendment right to self representation when it denied his request to proceed pro se without a colloquy during the pretrial conference regarding this letter.9

The Commonwealth contends that Appellant never made a clear and unequivocal request to proceed pro se at trial, and thus, the trial court did not err in denying Appellant's request. Moreover, any error was corrected on the first day of trial before jury selection, when the court gave Appellant the right to reassert his desire to proceed pro se. Alternatively, the Commonwealth asserts that this issue should be analyzed as a claim of ineffective assistance of counsel due to counsel's failure to object to the trial court's failure to colloquy Appellant.10 Before turning to the merits of Appellant's claim, we will first address the Commonwealth's allegation that this claim should be raised as a claim of trial counsel's ineffectiveness. This claim is properly addressed as the error of the trial court, since Rule 121 of the Pennsylvania Rules of Criminal Procedure sets forth the procedure a judge must follow to determine whether the waiver of counsel was made knowingly, voluntarily and intelligently. Pa.R.Crim.P. 121; see, e.g., Commonwealth v. Brazil, 549 Pa. 321, 701 A.2d 216 (1997)

; see also Starr, 664 A.2d at 1335. In Commonwealth v. McDonough, 571 Pa. 232, 812 A.2d 504 (2002), this court considered whether the prosecutor could "colloquy" a defendant consistent with Rule 121. We acknowledged that a defendant had the right to represent himself at trial. McDonough, 812 A.2d at 506 (citing Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)). We then made clear that when a defendant desired to represent himself, "he must petition the court and the court must follow the appropriate legal procedure for securing a valid waiver of counsel." Id. Rule 121 provided the appropriate legal procedure and could be complied with by the prosecutor's colloquy so long as the prosecutor inquired into the six areas set forth by the Comments to Rule 121 before the trial judge.11

McDonough, 812 A.2d at 506-07. In this way, the trial judge could ascertain on the record whether there was a knowing, voluntary, and intelligent waiver of counsel. Id. at 508. We stressed, however, that it was the trial judge who was "ultimately responsible for ensuring that the defendant is questioned about the six areas discussed above and for determining whether the defendant is indeed making an informed and independent decision to waive counsel." Id. Likewise, we held that it was the "trial judge" that had the duty to ensure that a defendant's right to counsel was protected. Id. Thus, we conclude that, consistent with McDonough, the Rules of Criminal Procedure are clear that it is up to the trial court, and not counsel, to ensure that a colloquy is performed if the defendant has invoked his right to self representation. The Commonwealth's argument that this claim must be pled as one of ineffectiveness fails.12

Having resolved the Commonwealth's preliminary arguments, we must now consider whether Appellant invoked his right to proceed pro se, which required the trial court to colloquy him as discussed above. Federal case law generally requires that, in order to invoke the right of self representation, the request to proceed pro se must be made timely and not for purposes of delay and...

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