Commonwealth v. Tejada

• Decision Date: 12 December 2017
• Docket Number: No. 119 WDA 2016,No. 170 WDA 2016,No. 892 WDA 2016,No. 872 WDA 2016,No. 24 WDA 2016,24 WDA 2016,119 WDA 2016,170 WDA 2016,872 WDA 2016,892 WDA 2016
• Citation: 176 A.3d 355
• Parties: COMMONWEALTH of Pennsylvania v. Ricky TEJADA, Appellant Commonwealth of Pennsylvania v. Ricky Tejada, Appellant Commonwealth of Pennsylvania v. Ricky Tejada, Appellant Commonwealth of Pennsylvania v. Ricky Tejada, Appellant Commonwealth of Pennsylvania v. Ricky Tejada, Appellant
• Court: Pennsylvania Superior Court

176 A.3d 355

COMMONWEALTH of Pennsylvania

v.Ricky TEJADA, Appellant

Commonwealth of Pennsylvania

v.Ricky Tejada, Appellant

Commonwealth of Pennsylvania

v.Ricky Tejada, Appellant

Commonwealth of Pennsylvania

v.Ricky Tejada, Appellant

Commonwealth of Pennsylvania

v.Ricky Tejada, Appellant

No. 24 WDA 2016

No. 119 WDA 2016

No. 170 WDA 2016

No. 872 WDA 2016

No. 892 WDA 2016

Superior Court of Pennsylvania.

Submitted September 11, 2017

Filed December 12, 2017

Emily E. Mosco, Erie, for appellant.

Paul S. Sellers, Assistant District Attorney, Erie, for Commonwealth, appellee.

BEFORE: BOWES, J., SOLANO, J., AND FORD ELLIOTT, P.J.E.

OPINION BY BOWES, J.:

Ricky Tejada appeals from the judgment of sentence of four to eight years incarceration imposed following his convictions for two counts of aggravated harassment by a prisoner. Appellate counsel has filed a petition to withdraw from representation and a brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Commonwealth v. Santiago , 602 Pa. 159, 978 A.2d 349 (2009). We deny the petition, and order the filing of a merits brief.

The factual history of Appellant's crimes is straightforward. Appellant, while incarcerated in SCI Albion, threw urine at corrections officers on two separate occasions, and was charged with two counts of aggravated harassment by a prisoner. He was found guilty of both counts following a jury trial held in absentia , and received the aforementioned sentence. The facts pertinent to our disposition of this matter largely concern what occurred prior to trial, and we therefore review those facts in some detail.

First, Appellant elected to represent himself at trial. Appellant appeared for a scheduled jury trial on January 11, 2016, and the proceedings commenced with the trial court asking, "it's my understanding you are representing yourself; is that correct?" N.T., 1/11/16, at 3. Appellant confirmed that he intended to act as his own attorney.¹ Following a waiver colloquy, the trial court concluded that Appellant validly waived his right to counsel.

At that juncture, Appellant argued that he was entitled to a continuance, stating that the Commonwealth had failed to provide discovery pursuant to a pre-trial order directing the Commonwealth to send discovery to Appellant.² The Commonwealth represented that it had complied with the earlier order and had sent discovery to SCI Albion. Based solely on that representation, the trial court denied the continuance and suggested Appellant's recourse was to challenge any deviations from the discovery on appeal. "[Y]ou had time to prepare. The Commonwealth has sent your discovery. And as I said, if that is inconsistent with the evidence presented at trial, you can challenge it on appeal." N.T., 1/11/16, at 14.³

Appellant then claimed that he was incompetent to proceed and demanded a competency hearing, which the trial court denied on the basis that Appellant's behavior did not indicate any incompetency. Following that discussion, the trial court informed Appellant that jury selection would proceed "as soon as we get a jury panel available." Id. at 15.

Following a recess the trial court asked, "[Appellant], I need to know if you are going to stay for your trial?" Id. Appellant claimed that he was "not the defendant" and argued that the court "has no jurisdiction to proceed." Id. at 16. Appellant does not appear to have been otherwise disruptive of the proceedings, as reflected by the fact that the trial court stated, "I'm going to allow you to remain, but if you disrupt the proceeding, in any way, you will be removed and the trial will go on without you." Id. at 17.

The jury panel then entered the room. Appellant requested to admit into evidence the voir dire sheets, claiming that the sheets were "illegible and incomprehensible because of the writing." Id. at 18. Significantly, Appellant followed that statement with the following request:

The defense also makes it known for the record he requires counsel. I told you numerous times I don't understand. You're trying to push the trial on me. I got a 6^th Amendment right to counsel. It's not filled out and I told you, I'm asking for my constitutional 6^th amendment right since you're forcing the trial on me improperly.

THE COURT: Mr. Tejada, you waived your right to counsel.

MR. TEJADA: And I got a constitutional right to get it reinstated.

THE COURT: Excuse me. Mr. Tejada, I'm speaking. I didn't interrupt you and don't interrupt me. You waived your right to counsel approximately one hour ago before this [c]ourt. I went over the rights waiver in detail with you. You answered the questions appropriately and waived your right to counsel....

Id. at 18–19. Appellant interjected, "The constitution doesn't put no restraints on when I can reinstate that right. I'm timely reinstating it." Id. at 20. Following more discussion, the trial court stated, "[Y]our outbursts will not be tolerated, you will be removed from this courtroom, you will be tried in absentia ." Id. at 21. Finally, the trial court stated that Appellant could communicate with the court so long as he followed the rules, to which Appellant replied, "Then appoint standby counsel to communicate with the [c]ourt." Id. The trial court repeated that outbursts would not be tolerated. The following exchange occurred:

MR. TEJADA: So are you saying I'm denied the right to standby counsel? If not, appoint me counsel. Is that what you're saying for the record?

THE COURT: I'm saying that we are going to begin voir dire .

MR. TEJADA: If you conduct voir dire , then I need counsel.

THE COURT: You already waived your right to counsel.

MR. TEJADA: And I'm petitioning to reinstate in accordance with the Pennsylvania Rules of Criminal Procedure 120.

The COURT: Well, it's too late at this point.

MR. TEJADA: So you're waiving my right to counsel or standby counsel?

THE COURT: All right. Take Mr. Tejada out, please.

Id. at 22.

Jury selection and the trial continued in Appellant's absence, without anyone representing Appellant's interests. Appellant was convicted of all charges and received the aforementioned sentence. Appellant timely appealed and complied with the order to file a Pa.R.A.P. 1925(b) statement.⁴ This matter is ready for our review. In the Anders brief, counsel raised the following three issues before concluding that the appeal was wholly frivolous:

I. Whether the trial court erred and/or abused its discretion in failing to order a psychiatric examination in order to determine whether the Appellant was competent to stand trial and participate in his own defense?

II. Whether the trial court erred and/or abused its discretion in order[ing] the Appellant removed from the court room prior to trial and conduct[ing] the trial in absentia [?]

III. Whether [Appellant]'s sentence is manifestly excessive, clearly unreasonable and inconsistent with the objectives of the Sentencing Code?

Anders brief at 3.

Since counsel has filed a petition to withdraw, we must first rule on the request to withdraw without reviewing the merits of the underlying issues. Commonwealth v. Blauser , 166 A.3d 428 (Pa.Super. 2017). In order to withdraw from appellate representation pursuant to Anders , certain procedural and substantive requirements must be met. Procedurally, counsel must 1) petition the court for leave to withdraw stating that, after making a conscientious examination of the record, counsel has determined that the appeal would be frivolous; 2) furnish a copy of the brief to the defendant; and 3) advise the defendant that he or she has the right to retain private counsel or raise additional arguments that the defendant deems worthy of the court's attention. See Commonwealth v. Cartrette , 83 A.3d 1030 (Pa.Super. 2013) (en banc ).

The petition to withdraw sets forth that counsel has reviewed the entire record, and concluded that there are no actual or potential non-frivolous issues. The petition includes a copy of the letter sent to Appellant, which informed Appellant that he had the right to retain new counsel, or proceed pro se and raise additional arguments on his own behalf. Additionally, the letter states that Appellant was supplied with a copy of the Anders brief.⁵ Therefore, the procedural requirements have been met.

We now examine whether the brief meets the substantive requirements as set forth by our Supreme Court in Santiago . The brief must:

(1) provide a summary of the procedural history and facts, with citations to the record;

(2) refer to anything in the record that counsel believes arguably supports the appeal;

(3) set forth counsel's conclusion that the appeal is frivolous; and

(4) state counsel's reasons for concluding that the appeal is frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.

Commonwealth v. Daniels , 999 A.2d 590, 593 (Pa.Super. 2010) (citing Santiago , supra at 361 ).

We conclude that this brief complies with the first three prongs, but fails with respect to the fourth prong as applied to the second issue on appeal. The brief states:

As to the first two issues presented by the Appellant questioning the discretion of the trial court regarding the denial of a request for a competency exam and the Appellant's removal from the courtroom and subsequent trial in absentia , the reasons for doing so are well documented on the record and further supported by the trial court in [the] supplemental opinions.

Anders brief at 11. This analysis does not constitute counsel's own articulation of controlling case law. While we do not dispute that, in some circumstances, a well-reasoned and thorough trial court opinion can serve to satisfy the fourth prong of Santiago , the analysis relied upon by counsel likewise failed to articulate and explain the pertinent law:

The [c]ourt stands by the record as to the basis for the Defendant's/Appellant's removal from the courtroom. The Defendant/Appellant was warned of

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