Com. v. Thomas

• Decision Date: 30 June 2005
• Citation: 879 A.2d 246
• Court: Pennsylvania Superior Court
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Victor D. THOMAS, Appellant.

879 A.2d 246

COMMONWEALTH of Pennsylvania, Appellee v. Victor D. THOMAS, Appellant.

Superior Court of Pennsylvania.

Argued April 20, 2005.

Filed June 30, 2005.

Herbert A. Terrell, Pittsburgh, for appellant.

Deanne E. Paul, Asst. Dist. Atty., Hollidaysburg, for the Com., appellee.

Before: ORIE MELVIN, BENDER and BECK, JJ.

BECK, J.:

¶ 1 We decide, inter alia, the standards to be applied by the trial court in determining that a defendant has forfeited his right to counsel. Appellant Thomas contends that his convictions for assault and related charges were improper because, inter alia, of violations of his right to counsel at trial and his right to be present at trial. Finding that appellant forfeited his right to counsel and that he waived his right to be present at trial, we affirm. However, we remand for re-sentencing, because the trial court failed to merge appellant's convictions for simple assault and recklessly endangering another person and also failed to assess appellant's ability to pay before imposing fines.

¶ 2 Appellant was charged with assault, terroristic threats, recklessly endangering another person, and harassment stemming from a domestic dispute with his girlfriend at their home on March 23, 2001. Appellant was arrested on March 30, 2001. The assault charges were dismissed after a preliminary hearing because the victim refused to testify.¹ Appellant was released from jail on April 18, 2001. He was re-arrested that evening, following another domestic dispute, which ended on a highway when the girlfriend/victim sought help from a state trooper. On April 19, 2001, the Commonwealth re-filed charges stemming from the March 23 assault and also filed new charges, including assault, terroristic threats, retaliation against a witness, and resisting arrest, all related to the April 18 incident. The court granted the Commonwealth's motion to consolidate the charges resulting from the two incidents on October 18, 2001.

¶ 3 Following appellant's arrest, he was charged not only with crimes stemming from the domestic assault but also with drug possession violations. State drug charges were nolle prossed on October 5, 2001. Federal prosecution on the drug charges resulted in appellant's conviction in March, 2002. After federal sentencing on September 10, 2002, appellant was immediately returned to state custody for trial on the assault charges.

¶ 4 At various times between his arrest and state trial, appellant had five different court-appointed counsel. Appellant also filed a motion to proceed pro se, which the court granted. A jury trial was held on April 15-17, 2003. Appellant was not present at trial, but was represented for most of the trial by court-appointed counsel. The jury found appellant guilty of two counts of simple assault, two counts of terroristic threats, recklessly endangering another person, retaliation against a witness, and resisting arrest.² He was sentenced to consecutive terms of imprisonment totaling 108-216 months. After denial of appellant's post-trial motions on November 20, 2003, this appeal followed. Appellant raises numerous allegations of trial court error which we address in turn.

I. Rule 600: "Speedy Trial Rule"

¶ 5 Appellant first contends that the trial court erred in denying his motion for dismissal of the charges, because he was not brought to trial within 365 days, as required under Pennsylvania Rule of Criminal Procedure 600. In determining the time by which trial must begin under Rule 600, certain periods are not included in the 365 day time limitation. Of particular relevance to this case, when delays in commencement of trial stem from the unavailability of the defendant, those delays are not included in the 365 day count. Pa.R.Crim.P. 600(C)(3)(a). A defendant is deemed unavailable when, inter alia, he was present in another jurisdiction, which delayed his extradition to stand trial. Commonwealth v. Woods, 444 Pa.Super. 321, 663 A.2d 803, 807-08 (1995); Commonwealth v. DeMarco, 332 Pa.Super. 315, 481 A.2d 632, 635-37 (1984); Comment to Pa.R.Crim.P. 600(C)(3)(a).

¶ 6 As the trial court explained, appellant was unavailable for more than one year, from May 18, 2001 until September 10, 2002, because he was in federal custody. We agree with the trial court that, during this time period, the Commonwealth exhibited due diligence in attempting to gain custody of appellant and to bring him to trial. Pursuant to an understanding with the federal prosecutor, the Commonwealth secured custody of appellant immediately after his sentencing on federal drug charges.³ The trial court committed no error in denying appellant's motion for dismissal based on Rule 600.

II. Constitutional Questions

¶ 7 Appellant's second allegation is that he was denied his rights to a fair trial, to counsel, and to self-representation, under the Sixth Amendment of the U.S. Constitution and Article I, sections eight and nine of the Pennsylvania Constitution. Under this general heading, appellant makes numerous allegations of trial court error, including failure to postpone the trial due to unpreparedness; removal of appellant from the court room after he became disruptive; and allowing counsel to withdraw due to threats from appellant.⁴ Some further specifies concerning the history of the case and the trial are necessary before we can address these allegations.

¶ 8 On June 20, 2002 appellant filed a motion to proceed pro se, to dismiss his present counsel, and to have stand-by counsel appointed. A hearing was held on September 26, 2002, and at appellant's request, the court granted a continuance. On October 10, 2002, the court granted appellant's request to proceed pro se after conducting a full colloquy. In an order filed on November 15, 2002, the court appointed attorney Zang as stand-by counsel. Appellant requested and was again granted a continuance at a pretrial motion hearing on November 18, 2002. On January 27, 2003, the pre-trial motion hearing was held, with appellant proceeding pro se and attorney Zang in the role of stand-by counsel. ¶ 9 On April 15, 2003, the first morning of his trial, appellant requested a continuance due to lack of preparedness, citing as explanation his detention in restrictive housing at the prison for the past few days. He further stated that he wanted to change his pro se status and have stand-by counsel Zang become lead counsel. At that point in the proceedings the jury had already been impaneled. In addition, appellant had filed two additional pre-trial pleadings that same week. Appellant had, however, refused to accept personal service of motions and discovery material the previous week, forcing the prosecutor to mail the documents. Nevertheless, the court granted appellant a continuance until 1:00 p.m., giving him further time to consult with his stand-by counsel in preparation for trial.

¶ 10 When court reconvened, appellant refused to appear, choosing to remain in the holding cell. The trial judge directed the sheriff to attempt to bring appellant to the courtroom. After a recess, when appellant was again in the courtroom, the judge appointed attorney Zang, who had been stand-by counsel, as lead counsel, pursuant to appellant's request. Appellant then asked to be excused from the proceedings and expressly threatened disruption. When the court denied his request to leave, appellant caused a disruption and was forcibly removed from the courtroom by the sheriff's deputies.

¶ 11 Attorney Zang then asked again for a continuance, claiming he was not capable of proceeding as he had seen neither preliminary hearing transcripts nor any discovery material. The court denied the request, stating that standby counsel had the responsibility to be prepared to take over the defense under circumstances of this nature. The jury was then brought into the courtroom, not having witnessed any of appellant's disruptive behavior. Attorney Zang renewed his motion for a continuance, based on his inability to put on a defense as appellant did not provide him with any information or discovery. The court denied the motion. The Commonwealth's first and only witness of the day was the victim. After direct examination, the court recessed for the day.

¶ 12 At the beginning of the second morning of trial, appellant stated in court that he did not wish to remain for trial and that he and his counsel had an agreement that counsel would not put on any defense on his behalf. Appellant then said "[y]ou guys might as well drag me out because I'm not staying," was disruptive, and was forcibly removed from the courtroom by several deputies. Attorney Zang reiterated that appellant had directed him not to enter any defense on his behalf and that any defense he did enter would be against his client's wishes.

¶ 13 Contrary to his client's self-devised strategy, Zang participated in the trial and cross-examined witnesses. However, at the close of the second day's testimony he relayed to the court his concerns for the safety of himself and his family due to threats by appellant. To put those threats on the record, the deputies who forcibly transported appellant from the courtroom testified as to the threat they had heard appellant make against his counsel.⁵ Attorney Zang also stated that appellant had previously made another threat directly to him.

¶ 14 On the morning of the third day of trial, appellant again refused to come to the courtroom, even after being informed that the court was going to excuse his counsel. The court then granted counsel's request to be excused from any further representation of appellant. The jury was not present for any testimony regarding threats against counsel. The court instructed the jury that appellant had chosen to exercise his rights not to appear at trial and not to have counsel. The Commonwealth presented two more witnesses (a state trooper and the emergency room physician who examined the victim) and then rested. The jury found appellant guilty of...