Com. v. Faulk

• Decision Date: 15 June 2007
• Docket Number: No. 258 WDA 2006.,258 WDA 2006.
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Lewis A. FAULK, Appellant.
• Court: Pennsylvania Superior Court

928 A.2d 1061

COMMONWEALTH of Pennsylvania, Appellee v. Lewis A. FAULK, Appellant.

No. 258 WDA 2006.

Superior Court of Pennsylvania.

Argued October 25, 2006.

Filed June 15, 2007.

Kenneth M. Baldonieri, Monessen, for appellant.

Thomas R. Grace, Asst. Dist. Atty., Greensburg, for Com., appellee.

BEFORE: LALLY-GREEN, McCAFFERY, and KELLY, JJ.

OPINION by McCAFFERY, J.:

¶ 1 Appellant, Lewis A. Faulk, appeals from his judgment of sentence for aggravated assault. Specifically, Appellant asks us to determine, inter alia, whether his waiver of his right to be present at trial was preceded by a proper colloquy and hence was valid. Following review, we affirm.

¶ 2 The relevant facts and procedural history of this case are as follows. Appellant was charged with aggravated assault and related offenses after he severely injured the victim by punching him in the face several times with a closed fist. The victim and another man, Mark Kastelic, had been watching television in Mr. Kastelic's living room when Appellant, who was an acquaintance of both men, came to the door. Mr. Kastelic admitted Appellant into the home and then walked toward the kitchen in the back to let his dog inside. Upon hearing some noises, Mr. Kastelic returned to the living room to find Appellant standing over the victim and hitting him in the face with a closed fist. The victim was beaten severely, bleeding profusely, and barely conscious. Appellant then walked out the door and left the premises while Mr. Kastelic sought emergency medical care for the victim. (See Trial Court Opinion, dated March 9, 2006, at 6).

¶ 3 The victim required many weeks of treatment for his trauma-related injuries, first at a hospital in the intensive care unit and then at a rehabilitation facility. His injuries included brain injury, several fractures, lost teeth, and subdural hematoma.¹ He experienced post-traumatic amnesia, and at the time of Appellant's trial, continued to have difficulty with memory, balance, and walking. (Id. at 7).

¶ 4 Appellant was arrested shortly after the incident and charged with, inter alia, aggravated assault and simple assault.²

¶ 5 A succession of attorneys was appointed to represent Appellant. Initially, in October 2004, Patricia Elliott, Esq., was appointed as Appellant's counsel; approximately six months later she filed a motion to withdraw, citing a menacing and intimidating letter that she had received from Appellant and an irretrievable breakdown of the attorney-client relationship. Following a hearing on June 9, 2004, the court granted attorney Elliott's motion to withdraw and appointed Brian Aston, Esq., as Appellant's new counsel. In September 2004, Appellant sent a letter to the trial judge, firing attorney Aston and demanding new counsel, based on Appellant's perception that attorney Aston was devoting insufficient attention to Appellant's case. A third attorney, Scott Avolio, was appointed to represent Appellant. Citing an unspecified conflict, Appellant petitioned the court to choose an attorney other than Mr. Avolio. The court then appointed a fourth attorney, Michael DeMatt, on November 12, 2004.

¶ 6 Although Appellant was represented by appointed counsel throughout the pretrial and trial proceedings, he filed numerous pro se petitions, regarding, inter alia, alleged Rule 600 violations, bail bond, discovery and evidentiary matters. Appellant also sent three threatening and profane letters to the trial judge, demanding recusal. In October 2004, the trial judge recused herself, and a new judge assumed responsibility for Appellant's case.

¶ 7 A three-day jury trial commenced on January 5, 2005. Just before jury selection began, the court discussed with Appellant his dissatisfaction with his latest attorney, Mr. DeMatt. Appellant complained that Mr. DeMatt did not follow Appellant's instructions with regard to trial preparations, and Appellant stated to the court that he did not wish to be present for his trial. Appellant also threatened to disrupt verbally the voir dire proceedings. The court informed Appellant of his right to be present at trial and the risks of not exercising that right. However, Appellant refused to take an oath or to acknowledge the court's comments. Appellant was then transported from the courtroom, as he had requested. The trial was conducted in Appellant's absence, and after hearing extensive testimony, the jury found Appellant guilty of aggravated assault and simple assault. Sentencing was deferred pending the preparation of a pre-sentence report.

¶ 8 Approximately one month after the end of the trial, Appellant filed a pro se motion to vacate his conviction, alleging ineffective assistance of counsel. Per order of the trial court, Attorney DeMatt withdrew and Attorney James Wells was appointed as Appellant's new counsel. Appellant then sent a letter to the clerk of courts, stating that he would hence forth proceed pro se and would rely on court-appointed counsel only in a co-counsel capacity. Following a hearing, the court denied Appellant's request to proceed pro se. However, the court directed Attorney Wells to withdraw and appointed Mark Shire, Esq., to represent Appellant. On June 13, 2005, the court sentenced Appellant to serve not less than six and not more than twenty years in prison. Appellant filed a post-sentence motion, which was denied following a hearing.

¶ 9 After reinstatement of Appellant's direct appeal rights nunc pro tunc, Appellant filed a counseled appeal, raising the following five issues for our review:

A. Whether [Appellant] was denied his rights under the Sixth Amendment to the United States Constitution[;] Article I, Section 9 of the Pennsylvania Constitution[;] and Pa.R.Crim.P. 602(A) to be present at trial because [Appellant's] purported waiver was neither knowing nor intelligent?

B. Whether the sole eyewitness'[s] conflicting statements provided an adequate basis to support the jury's verdict that [Appellant] was guilty of aggravated assault pursuant to 18 Pa.C.S.A. § 2702(a)(1)?

C. Whether the evidence was sufficient to support the jury's implied finding that [Appellant] consciously disregarded an unjustified risk of death or ser[i]ous bodily injury?

D. Whether the evidence was sufficient to support the jury's implied finding that [Appellant] exhibited reckless conduct to the degree that life-threatening behavior was certain to occur?

E. Whether the trial court abused its discretion by setting [Appellant's] maximum sentence at twenty (20) years?

(Appellant's Brief at 5). We address Appellant's issues in turn.³

¶ 10 Appellant's first issue concerns his decision to absent himself from his trial. Appellant contends that his waiver of his right to be present at trial was neither knowing nor intelligent because the trial court did not conduct a proper and thorough colloquy. Therefore, Appellant argues, his waiver was invalid. We disagree.

¶ 11 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 Pennsylvania Constitution; and by Pennsylvania Rule of Criminal Procedure 602(a). See, e.g., Taylor v. United States, 414 U.S. 17, 20, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973); Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970); Commonwealth v. Tizer, 454 Pa.Super. 1, 684 A.2d 597, 604 (1996). This Court has previously declined to interpret our state Constitution as requiring more protection for the accused with respect to trials in absentia than the United States Constitution. See Commonwealth v. Hill, 737 A.2d 255, 260 (Pa.Super.1999). Furthermore, the right may be waived either impliedly, via the defendant's actions, or expressly. See, e.g., Commonwealth v. Vega, 553 Pa. 255, 259-60, 719 A.2d 227, 229-30 (1998); Commonwealth v. Sullens, 533 Pa. 99, 102, 619 A.2d 1349, 1351 (1992).

¶ 12 For example, our Supreme Court has held that when a defendant is abusive and disruptive to the proceedings, the trial judge does not abuse his or her discretion in having the defendant removed from the courtroom. Commonwealth v. Basemore, 525 Pa. 512, 524-27, 582 A.2d 861, 867-68 (1990); see also Allen, 397 U.S. at 343, 90 S.Ct. 1057 (holding that "a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom").

¶ 13 Furthermore, a defendant may be tried in absentia if he or she is absent without cause when the trial is scheduled to begin or if the defendant absconds without cause after the trial commences. Commonwealth v. Wilson, 551 Pa. 593, 598-99, 712 A.2d 735, 737 (1998); Sullens, supra at 104, 619 A.2d at 1352; see also Taylor, 414 U.S. at 20, 94 S.Ct. 194 (concluding that the trial court had committed no error in proceeding with a trial even though the defendant had chosen not to return to the courtroom for the afternoon session, and quoting Allen, 397 U.S. at 349, 90 S.Ct. 1057 (Brennan, J., concurring) for the proposition that "the governmental prerogative to proceed with a trial may not be defeated by conduct of the accused that prevents the trial from going forward").

¶ 14 A criminal defendant can also expressly waive his right to be present at his trial; however, our Supreme Court has imposed certain requirements to ensure that such a waiver is knowing and intelligent. Vega, supra at 259-62, 719 A.2d at 230-31. The trial court must conduct a colloquy to communicate to the accused the nature of the constitutional right to be present at trial and the risks of failing to exercise this right. Id. at 260, 719 A.2d at 230. While our Supreme Court did not mandate any specific language or rote dialogue for this colloquy, the Court did state that "the inquiry must be calculated to insure a...