Commonwealth v. Phillips

• Citation: 93 A.3d 847,2014 PA Super 113
• Court: Superior Court of Pennsylvania
• Decision Date: 05 June 2014
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Tabu Nazshon PHILLIPS, Appellant.

93 A.3d 847

2014 PA Super 113

COMMONWEALTH of Pennsylvania, Appellee

v.Tabu Nazshon PHILLIPS, Appellant.

Superior Court of Pennsylvania.

Argued Feb. 25, 2014.

Filed June 5, 2014.

Ryan H. Lysaght, Harrisburg, for appellant.

Joseph P. Cardinale, Jr., Assistant District Attorney, Harrisburg, for Commonwealth, appellee.

BEFORE: GANTMAN, P.J., DONOHUE, J., and STABILE, J.

OPINION BY GANTMAN, P.J.:

Appellant, Tabu Nazshon Phillips, appeals from the judgment of sentence entered in the Dauphin County Court of Common Pleas, following his jury trial convictions for persons not to possess firearms and possessing an instrument of crime, unlawful body armor.¹ We vacate and remand for further proceedings.

The relevant facts and procedural history of this appeal are as follows.

Christopher Thomas, a patrol officer with the Harrisburg City Police Department, testified on behalf of the Commonwealth. On the evening of December 22, 2011, Officer Thomas was on duty and patrolling the City of Harrisburg; he was assigned to the entire city for that night as a part of a task force to decrease violent street crimes. At approximately 8:05 p.m. that evening, Officer Thomas was advised that a 911 call was received indicating that a female was screaming for help and that someone was trying to kill her. Based on the call, Officer Thomas was dispatched to 221 North 14th Street.

Upon arrival, Officer Thomas and his partner/supervisor, Corporal Terry Wealand, heard someone yelling and screaming for help. The officers knocked on the door, announced themselves, did not get a response, and proceeded to make entry into the home. The residence was a boarding house, with no one in the common area; instead, the officers found a woman, Jasmine Matthews, in an upstairs bedroom. After walking upstairs and while heading down the hallway, the officers encountered [Appellant]. [Appellant] was breathing rapidly and said, “nothing is going on here.” At that point, the officer escorted [Appellant] to the room where Jasmine Matthews was. She was crying, breathing very hard, and had blood coming from her nose and mouth. When [Appellant] entered the room, she appeared agitated and afraid, and started hyperventilating. Officer Thomas observed, in plain view, a handgun under the foot of the bed—a .32 caliber Colt gray top action revolver. Officer Thomas seized the gun, took out the five live rounds that were inside the cylinder, and secured it on his person.

[Appellant] was detained. It was discovered that [Appellant] had a warrant out for his arrest. Consequently, [Appellant] was arrested and a search incident to arrest was performed. In the course of the search, Officer Thomas discovered that [Appellant] was wearing a “ballistics Kevlar vest typically issued to United States military.” Officer Thomas testified that “[t]he body armor here was basically for—to shield your abdomen and your vital organs from shrapnel from land mines, grenades, artillery fire, mortar, so forth, so on [,]” and that someone would wear such a vest “[t]o keep from being injured from either gunfire or from a fight or whatever, an altercation.” Officer Thomas further testified that there would be no valid purpose for wearing the Kevlar vest outside of shielding one's self from a gun or other weapon. When Officer Thomas conducted an inventory search after [Appellant] was placed into central booking, and such search revealed a baggie with eight unfired .32 caliber cartridges, which was found in a pocket of the Kevlar vest. Sergeant Terry Wealand also testified for the Commonwealth. Sergeant Wealand, a Corporal during the incident in question, was riding with Officer Thomas on the evening of December 22, 2011, when they received the domestic violence call. Sergeant Wealand confirmed that the victim at 221 North 14th Street “[w]as obviously upset. She was bleeding from her nose and her mouth, and I remember her dry heaving like she was going to throw up.” Officer Wealand also affirmed Officer Thomas's testimony regarding the evidence discovered on or near [Appellant], namely, the revolver, body armor, and ammunition.

The third and final Commonwealth witness at trial was Officer Brian Henry. In addition to the other officers, Officer Henry and Officer Fiore responded to the 911 call on the evening in question, on North 14th Street. When Officer Henry arrived, the scene was already secure, and [Appellant] was in handcuffs and was being escorted out of the building. Officer Henry took custody of [Appellant] and walked him to the transport van, and testified that [Appellant] was wearing the vest that had been introduced into evidence.

(Trial Court Opinion, filed September 20, 2013, at 1–3) (internal citations to record omitted). As a result, the Commonwealth charged Appellant with persons not to possess firearms and possessing an instrument of crime (unlawful body armor), and simple assault.

In May 2012, Appellant filed a pro se motion to suppress evidence of the firearm, which the Dauphin County prothonotary forwarded to counsel appointed to defend Appellant. In August 2012, Appellant filed a pro se omnibus pre-trial motion that included a motion to suppress, which the prothonotary forwarded to appointed counsel. Appellant filed a motion on October 5, 2012, to proceed pro se that he styled as a “motion to withdraw,” citing disagreement with appointed counsel's legal strategy. On October 16, 2012, the court held a hearing on Appellant's motion to proceed pro se. The court colloquied Appellant and granted his request, with appointed counsel to serve as standby counsel. The court continued disposition of Appellant's remaining motions for another hearing. The suppression hearing occurred on November 7, 2012, before a different judge, who conducted a second colloquy before Appellant participated in the hearing pro se, with appointed counsel as standby counsel. The court denied Appellant's motion to suppress. On March 7, 2013, before the commencement of trial, the original jurist conducted another waiver-of-counsel colloquy and permitted Appellant to proceed pro se at trial, with standby counsel. A jury trial followed. Appellant participated pro se with standby counsel and, at the end of the trial, the jury convicted Appellant on the charges of persons not to possess firearms and possessing an instrument of crime (unlawful body armor). The jury found Appellant not guilty on the charge of simple assault. At sentencing on May 6, 2013, Appellant was represented by counsel. The court sentenced Appellant to an aggregate term of six (6) to fourteen (14) years' incarceration. Appellant timely filed counseled post-sentence motions, which the court denied on June 11, 2013. Appellant timely filed a counseled notice of appeal on July 11, 2013. The court ordered Appellant to file a concise statement of errors complained of on appeal, per Pa.R.A.P. 1925(b). Before that deadline had expired, this Court quashed the appeal as untimely on August 2, 2013.

Appellant filed a counseled application to reinstate the appeal on August 9, 2013, averring errors on the Court of Common Pleas docket and the docketing statement filed with this Court. On August 14, 2013, this Court reinstated the appeal. Appellant subsequently filed his counseled Rule 1925(b) statement nunc pro tunc.

Appellant presents two issues for our review:

WHETHER THE TRIAL COURT ERRED BY FAILING TO CONDUCT A COMPLETE AND THOROUGH, ON–THE–RECORD COLLOQUY OF APPELLANT BEFORE ALLOWING HIM TO PROCEED TO HIS SUPPRESSION HEARING AND TRIAL PRO SE IN VIOLATION OF PA.R.CRIM.P. RULE 121, RESULTING IN AN UNKNOWING, INVOLUNTARY, AND UNINTELLIGENT WAIVER OF HIS RIGHT TO COUNSEL UNDER THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 9 OF THE PENNSYLVANIA CONSTITUTION?

WHETHER THE COMMONWEALTH FAILED TO PRESENT SUFFICIENT EVIDENCE TO SUSTAIN APPELLANT'S CONVICTION FOR UNLAWFUL BODY ARMOR WHERE THE COMMONWEALTH FAILED TO PROVE THAT APPELLANT WAS IN THE COURSE OF COMMITTING A FELONY OR ATTEMPTING TO COMMIT A FELONY WHILE WEARING BODY ARMOR AS APPELLANT WAS MERELY COMMITTING A POSSESSORY OFFENSE AT THE TIME AND NO OTHER FELONY?

(Appellant's Brief at 6).

Appellant avers his waivers of counsel at the suppression hearing and at trial were unknowing, involuntary, and unintelligent. Specifically, Appellant asserts that during the first colloquy, on his request to proceed pro se (styled as a motion to withdraw), the trial court failed to inquire into subsections (b) through (f) of Rule 121. Likewise, Appellant contends the suppression court subsequently failed to conduct a thorough on-the-record colloquy before the November 7, 2012 suppression hearing. Appellant concedes the March 7, 2013 pre-trial colloquy was “arguably more thorough” but maintains the trial court's colloquy was still deficient in that the court failed to specify the elements of unlawful body armor, in violation of Rule 121(A)(2)(b). Standby counsel informed the trial court that she had reviewed the sentencing guidelines with Appellant, but the court did not review them with Appellant on the record, in contravention of Rule 121(A)(2)(c). Appellant insists he proceeded to his jury trial pro se and without ever being advised of the elements constituting the charge of unlawful body armor or the sentencing guideline ranges he faced. Appellant concludes we should reverse his convictions, vacate the judgment of sentence, and remand for a new trial, accompanied by a thorough on-the-record colloquy before allowing Appellant to proceed pro se. For the following reasons, we agree.

Previously, this Court explained:

“Both the right to counsel and the right to self-representation are guaranteed by the Sixth Amendment to the United States Constitution and by Article I, Section Nine of the Pennsylvania Constitution.” Commonwealth v. Payson, 723 A.2d 695, 699–700 (Pa.Super.1999). “Deprivation of these rights can never be harmless.” Id. The constitutional right to counsel may be...