Commonwealth v. Lawson
| Decision Date | 15 October 2021 |
| Docket Number | 193 WDA 2021 |
| Parties | COMMONWEALTH OF PENNSYLVANIA v. DURAND DAMION LAWSON Appellant |
| Court | Pennsylvania Superior Court |
COMMONWEALTH OF PENNSYLVANIA
v.
DURAND DAMION LAWSON Appellant
No. 193 WDA 2021
Superior Court of Pennsylvania
October 15, 2021
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered January 10, 2021 In the Court of Common Pleas of Lawrence County Criminal Division at No(s): CP-37-CR-0000070-2018
BEFORE: DUBOW, J., MURRAY, J., and PELLEGRINI, J. [*]
MEMORANDUM
DUBOW, J.
Appellant, Durand Damion Lawson, appeals as of right from the Judgment of Sentence imposed after a jury found him guilty of Possession of Firearm Prohibited, Firearms Not to Be Carried Without a License, and Fleeing or Attempting to Elude Police Officer.[1] After careful review, we affirm.
We glean the following recitation of the factual and procedural history from the certified record and the trial court's March 8, 2021 Opinion. On January 9, 2018, Officer Brian Lombardo of the New Castle Police department was on patrol when he determined that a passing Chevrolet Caprice, driven by Appellant, had an expired registration. When Officer Lombardo activated
his lights and sirens to conduct a traffic stop, Appellant led him on a highspeed chase, reaching speeds in excess of 70 miles per hour in a residential zone with a 25 mile per hour speed limit. The car chase ended when Appellant crashed the car into the side of an apartment building. Appellant, dressed in a black jacket, yellow shirt, jeans, and Nike shoes, then fled from the vehicle. Dashcam video recorded the event from its inception to Appellant's flight.
Officer Lombardo watched Appellant run across a snowy field, observing Appellant slip and fall. Officer Randall Cook, who had responded to the radio alert of the chase, arrived and watched Appellant, whom he recognized from the radio description as the man wearing a yellow shirt, black jacket, and jeans, force his way into a nearby house. At the same time, Robert Sutton, a resident of the house, who had seen Appellant driving the Caprice about an hour and a half earlier, watched Appellant enter through the back door, yell "police!" and run upstairs.
Officers Lombardo and Cook followed Appellant into the house and commanded everyone inside to leave. Four members of the household who were downstairs complied, but Appellant was not among them. The officers reiterated the command and, after they announced that a search dog was on its way, Appellant descended the stairs, saying that he had been asleep. He was breathing heavily, and wearing only wet, muddy jeans. The officers searched the house, where they found wet Nike shoes, as well as the black jacket and yellow shirt that they saw Appellant wearing during the foot chase.
Appellant put the wet shoes on and wore them to the New Castle Police Station.
As this was happening, Officer Darcell Bouyer arrived at the accident scene within thirty seconds of the crash and saw a loaded High Point 9-millimeter pistol lying in plain view on the driver's side front seat of the Caprice. He photographed the pistol as he found it.
On January 9, 2018, the Commonwealth charged Appellant with the above offenses. The court appointed the Newcastle Public Defender's Office to represent Appellant.
On May 10, 2018, the Newcastle Public Defender's Office filed a Petition to Withdraw its representation based on a conflict engendered by its prior representation of Appellant in an unrelated matter. On the same day, the trial court granted the motion and appointed Almon Burke, Esq., as conflict counsel. The court scheduled trial for June 4, 2018.
Attorney Burke thereafter filed numerous unopposed continuance motions in this case because he was variously awaiting discovery, negotiating a plea agreement, or unavailable.[2] Trial ultimately commenced on October 16, 2019.
During the pretrial phase, Appellant voiced his displeasure with Attorney Burke's representation. First, at a March 5, 2019 hearing, at Appellant's request, Attorney Burke orally moved to withdraw.[3] After speaking with Attorney Burke and Appellant, the court denied the motion. Trial Ct. Or., dated 3/6/19. Thereafter, at some point on or before September 30, 2019, the court received an undated pro se letter from Appellant asking for the removal of Attorney Burke due to irreconcilable differences. The letter was not styled as a motion, and did not ask for the appointment of new counsel or to proceed pro se. The court entered an order attaching the letter and directed counsel to "take any action that counsel deems appropriate." Trial Ct. Or., dated 9/30/19.
On the day of trial, before jury selection began, the trial court asked Appellant if he wanted to represent himself or proceed with Attorney Burke. Appellant explained that he would prefer to proceed pro se if the court would not appoint new counsel and asked if he could contact his family to discuss hiring private counsel. The trial court interpreted this as a request for a continuance, which the court denied, stating "this really is the time for this case . . . if you'd chosen that, you should have done that before today." N.T. Trial, 10/16/19, at 3.
The court then conducted a counsel waiver colloquy in accordance with Pa.R.Crim.P. 121. At the close of the colloquy, when the court asked if he
wanted to accept Attorney Burke's representation or represent himself, Appellant responded "I want to represent myself." N.T. Trial, 10/16/19, at 6. The trial court concluded that Appellant waived his right to counsel knowingly, voluntarily, and intelligently, and appointed Attorney Burke to serve as standby counsel, explaining to Appellant that "[y]ou don't have to use him if you don't want to." Id. at 11.
After accepting Appellant's waiver of counsel, the court informed Appellant that he had the right to wear clothes other than his jail jumpsuit during the trial, and that the court had clothes it could provide to him. Appellant replied, "I'll wear this." Id. at 8. The court sought further clarification from Appellant by stating, "[y]ou understand that we would provide you with appropriate clothing, but you don't want that?" Id. Appellant replied "[n]o," indicating that he did not want the change of clothes. Id.
Jury selection then proceeded. After the court questioned several members of the panel, Appellant announced that he did not want to continue participating in jury selection and asked to return to his jail cell. The court denied Appellant's request, and jury selection continued. Soon thereafter, Appellant declared, "[t]his is bullshit. I'm getting angry," and left the room. Id. at 34. The court allowed him to leave but instructed the court deputy to hold him in an empty jury room until the close of proceedings. Jury selection proceeded with Appellant's stand-by counsel Burke.
When jury selection moved to the peremptory strike stage, the court instructed Attorney Burke to consult with Appellant, explain the striking process, and either relay Appellant's strikes to the court or get permission to exercise strikes on Appellant's behalf. When Attorney Burke spoke to Appellant, Appellant interrupted him with profanities, refused to discuss peremptory strikes with him, and did not ask to return to the courtroom. Following this exchange, the Commonwealth struck several potential jurors, the defense struck none, and the court seated the remaining jurors.
Opening arguments took place the next day, and Appellant fully participated as his own counsel. During its case in chief, the Commonwealth called Officers Lombardo, Bouyer, and Cook, along with Mr. Sutton, who testified to the above facts and identified Appellant in dashcam footage. The Commonwealth also called Daniel Brown, who testified that he owned a 1992 Chevrolet Caprice, he was the registered owner associated with the license plates found on the car in question, and that he did not own a firearm or leave a firearm in his Caprice. The Commonwealth also presented evidence through several witnesses that Appellant was not licensed to carry a firearm and that the firearm found in the Caprice actually worked. Appellant cross-examined several of the Commonwealth's witnesses.
During his case in chief, Appellant re-called Mr. Brown, who testified that his license plates had disappeared several months before the incident in question, and that pictures of the car taken at the crime scene were of a different Caprice than the one he owned. He also called Treyshawn Littles, his
former cellmate, who testified that he, not Appellant, was the actual driver of the car who fled police on foot while wearing the shirt, jacket, and shoes that police found in the house.
The jury found Appellant guilty of the above charges. On October 21, 2019, the court ordered a Pre-Sentence Investigation and scheduled Appellant's sentencing hearing for January 10, 2021.
At the outset of the January 10, 2020 sentencing hearing, Appellant orally moved for the reinstatement of Mr. Burke as his counsel, and the court granted the motion. At the sentencing hearing, the court sentenced Appellant to an aggregate term of six to twelve years' incarceration. Appellant did not file a post-sentence motion or a direct appeal.
On September 17, 2020, Appellant filed pro se a Petition for Post-Conviction Relief ("PCRA Petition") alleging ineffective assistance of counsel based on Attorney Burke's failure to file a post-sentence motion or a direct appeal. The trial court appointed Christopher P. Lacich, Esq. as PCRA Counsel on September 28, 2020. Attorney Lacich filed an amended PCRA Petition on October 26, 2020. On January 29, 2021, following a PCRA hearing, the court reinstated Appellant's appellate rights nunc pro tunc.
Appellant, still represented by Attorney Lacich, filed a timely Notice of Appeal on February 3, 2021. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant raises the following questions in his counseled...
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