Com. v. Jordan, D.

J-S60002-12

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DAVID VASQUEZ JORDAN, :
:
Appellant : No. 655 MDA 2011

Appeal from the Judgment of Sentence Entered March 21, 2011,
In the Court of Common Pleas of Lancaster County,
Criminal Division, at No. CP-36-CR-0001618-2010.

BEFORE: SHOGAN, MUNDY and OTT, JJ.

MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 03, 2014

Appellant, David Vasquez Jordan, appeals pro se from the judgment of

sentence entered on March 21, 2011. We affirm.

We summarize the facts of the crime. On October 24, 2004, Appellant

and his three confederates, Edward Major, Hayward Stewart, and Michael

-

girlfriend, Penny Dotson. N.T., 3/8/11, at 660. Penny testified that Kevin,

-and-

Id. at 660 661,

665, 671. On that particular day, Penny overheard the men talking about

committing a robbery. Id
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Id. at 674. Penny testified that she left the house for a few

hours, ostensibly to go to work, and when she returned, only Eddie and

Kevin were present. Id. at 676 678. Shortly thereafter, the other men

returned together, and while they were in the kitchen, Penny heard Michael

say Id. at 678 680.

that Kevin provided. N.T., 3/9/11, at 844, 858. Kevin testified that

Id. at 860 861. Appellant and

his co-defendants, all with a history of drug dealing together, agreed with

this robbery plan because they believed Heather had drugs and money. Id.

at 861 863, 870 874. Kevin testified that he provided the use of a car that

was in his possession, that the only reason he did not go with the men was

bec

Id.

at 864 869.

Following a six-year investigation, Appellant was charged with one

count of criminal homicide on February 25, 2010. Appointed counsel,

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Lancaster County Assistant Public Defender James A. Gratton, filed an

omnibus pretrial motion on December 1, 2010. On January 25, 2011,

Appellant filed a motion to proceed pro se.1 On January 28, 2011, the trial

court began an on-the-record inquiry pursuant to Commonwealth v.

Grazier, 713 A.2d 81 (Pa. 1988). The trial court delayed ruling on

evaluation at the conclusion of the hearing because Appellant refused to

permit review, in camera, of the competency evaluation from his jury trial

before Judge Knisely.

Appellant and Co-defendants proceeded to trial before the Honorable

Joseph C. Madenspacher and a jury beginning on March 3, 2011. At the

start of trial, President Judge Madenspacher, following a colloquy, permitted

Appellant to proceed pro se, with Attorney Gratton as stand-by counsel. The

jury convicted Appellant on March 18, 2011, of second-degree murder.2 On

1
Appellant had recently completed a trial on unrelated murder charges on
November 16, 2010, at Lancaster County Court of Common Pleas Docket No.
261 of 2010, before the Honorable Howard F. Knisely and a jury. In that
case, Appellant was represented at trial by Assistant Public Defender James
Gratton and was found guilty of third-degree murder. The sentence imposed
therein was made consecutive to the sentence in the instant case. Following
a Grazier hearing in that case, Appellant proceeded pro se in that direct
appeal.
2
Co-defendant Edward Major was convicted of first degree murder.
Because the jury was unable to reach a verdict regarding Michael and
Hayward Stewart, the court declared a mistrial. They subsequently pled

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March 21, 2011, the trial court sentenced Appellant to life imprisonment

without the possibility of parole.

On March 30, 2011, Appellant filed a pro se purported motion pursuant

to the Post- -9546,

direct appeal. On April 1, 2011,

the trial court appointed Attorney Vincent J. Quinn to represent Appellant on

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)

on June 9, 2011, and the trial court filed an opinion on July 1, 2011.

Thereafter, Appellant filed, in this Court, an application for permission

to proceed pro se on August 29, 2011, and an application for remand on

September 6, 2011. Pursuant to those motions, we remanded the matter on

October 4, 2011, for an on-the-record inquiry pursuant to Grazier and a

intelligent, and voluntary.

Following the Grazier hearing on October 31, 2011, the trial court

voluntary; thus, Appellant has proceeded pro se since that time.

Unfortunately, what followed plunged this matter into a procedural morass,

which finally, has been rectified. On October 23, 2012, this Panel sent for

guilty to conspiracy to commit robbery. Trial Court Opinion, 4/1/14, at
unnumbered 1.

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filing an order that was never docketed and filed due to administrative error.

That order provided that Appellant, now pro se, was permitted to amend his

Pa.R.A.P. 1925(b) statement, and further directed the trial court to file a

new opinion, followed by the issuance of a new briefing schedule. On

January 22, 2014, upon discovery of the administrative error, this Court filed

an order directing the amendment of the Rule 1925(b) statement, and the

filing of a new trial court opinion and briefs by the parties. Those documents

now have been filed; thus, we proceed to disposition of this appeal.

Appellant raises the following issues for our review:

A. Whether the Commonwealth failed to establish beyond a
reasonable doubt the element of second degree murder that
Edward Major killed Heather Nunn while [Appellant] was
engaged as a principle or an accomplice in committing or
attempting to commit robbery, or while fleeing after either
committing or attempting to commit a robbery or as defined in
the text at 18 Pa.C.S. §§ 2502(b), 2502(d)?

B. Whether the Commonwealth failed to establish beyond a
reasonable doubt that Edward [Major] did the act that killed
Heather Nunn in furtherance of a robbery?

C. Should [Appellant] be entitled to a requested jury instruction
when the Trial Court abused its discretion by refusing to make a

simply state to the effect that Penny Dotson is a corrupt and
polluted source?

D. Whether the Trial Court abused its discretion in allowing the
jury to hear coconspirator statements when the trial court
agreed that its admission put too much weight into the
conspiracy and it did not fit within the coconspirator exception to
the hearsay rule?

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E. Whether [Appellant] was denied his Sixth Amendment right

and Jinelly Garcia which the trial court ha
admission did not fit the coconspirator exception to the hearsay
rule?

F. Whether the trial court manifestly abused its discretion in

G. Whether the Trial Court clearly abused its discretion in

allow [Appellant] to present evidence that it was Kevin Major
who committed the crime charged and by precluding [Appellant]
from pursuing the vital areas on cross-examination?

H. Whether the trial court abused its discretion as a matter of

effective assistance of counsel by refusing to find [a] conflict of

highly crucial state and federal witness Penny Dotson she [sic]
who testified against [Appellant]?

10.

briefing requirements set forth in the Pennsylvania Rules of Appellate

so may result in the brief being quashed or dismissed. Id. We recognize

that Appellant is acting pro se. While this Court is willing to liberally

construe materials filed by a pro se litigant, Appellant is not entitled to any

particular advantage because he lacks legal training. Commonwealth v.

Maris, 629 A.2d 1014, 1017 n.1 (1993). Accordingly, a pro se litigant must

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comply with the procedural rules set forth in the Pennsylvania Rules of

Court. Id. For example,

The argument [section] shall be divided into as many parts as
there are questions to be argued; and shall have as the head of
each part-in distinctive type or in type distinctively displayed-the
particular point treated therein, followed by such discussion and
citation of authorities as are deemed pertinent.

Pa.R.A.P. 2119(a).

tantial.

issues in the statement of the questions bear no relation to the five sections

of the argument or the subheadings within the arguments, with the heading,

lettering, and numbering system failing to coincide among the sections. See

-page brief is rambling and often

inexplicable. See Pa.R.A.P. 2119. Nonetheless, in the interest of justice, we

address the arguments that can reasonably be discerned from this defective

brief. See Commonwealth v. Lyons, 833 A.2d 245 (Pa. Super. 2003)

(holding that while pro se brief was defective, this Court would address

issues that could reasonably be discerned).

supporting the verdict. In reviewing the sufficiency of the evidence, we

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must determine whether the evidence admitted at trial and all reasonable

inferences drawn therefrom, viewed in the light most favorable to the

Commonwealth as verdict winner, was sufficient to prove every element of

the offense beyond a reasonable doubt. Commonwealth v. James, 46

A.3d 776 (Pa. Super. 2012). It is within the province of the fact-finder to

believe all, part, or none of the evidence. Commonwealth v. Cousar, 928

A.2d 1025 (Pa. 2007); Commonwealth v. Moreno, 14 A.3d 133 (Pa.

Super. 2011). The Commonwealth may sustain its burden of proving every

element of the crime beyond a reasonable doubt by means of wholly

circumstantial evidence. Commonwealth v. Hansley, 24 A.3d 410 (Pa.

Super. 2011). Moreover, as an appellate court, we may not re-weigh the

evidence and substitute our judgment for that of the fact-finder.

Commonwealth v. Ratsamy, 934 A.2d 1233 (Pa. 2007); Commonwealth

v. Brown, 23 A.3d 544 (Pa. Super. 2011). Any doubts regarding a

-finder unless the evidence is

so inconclusive that as a matter of law no probability of fact may be drawn

from the circumstances. Moreno, 14 A.3d at 133.

Murder of the second degree is a cr

defendant was engaged as a principal or an accomplice in the perpetration of

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a felony as:

the act of the defendant in engaging in or being an
accomplice in the commission of, or an attempt to
commit, or flight after committing, or attempting to
commit robbery, rape, or deviate sexual intercourse
by force or threat of force, arson, burglary or
kidnapping.

18 Pa.C.S.A § 2502(d). The malice or intent to commit the
underlying crime is imputed to the killing to make it second-
degree murder, regardless of whether the defendant actually
intended to physically harm the victim.

* * *

[T]he responsibility of persons, other than the slayer, for a
homicide committed in the perpetration of a felony requires
proof of a conspiratorial design by the slayer and the others to
commit the underlying felony and of an act by the slayer causing
death which was in furtherance of the felony.

Moreover, it was stated by the Court in Commonwealth v.
Legg, 417 A.2d [1152,] at 1154 [(Pa. 1980)]:

When an actor engages in one of the statutorily
enumerated felonies and a killing occurs, the law, via
the felony-murder rule, allows the finder of fact to
infer the killing was malicious from the fact the actor
was engaged in a felony of such a dangerous nature
to human life because the actor, as held to the
standard of a reasonable man, knew or should have
known that death might result from the felony.
(footnote omitted)

* * *

The statute defining second degree murder does not
require that a homicide be foreseeable; rather, it is only
necessary that the accused engaged in conduct as a principal or

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an accomplice in the perpetration of a felony. Whether evidence
sufficiently indicates that a killing was in furtherance of a
predicate felony can be a difficult question. The question of
whether the killing was in furtherance of the conspiracy is a
question of proof for the jury to resolve. It does not matter
whether the appellant anticipated that the victim would be killed
in furtherance of the conspiracy. Rather, the fact finder
determines whether the appellant knew or should have known
that the possibility of death accompanied a dangerous
undertaking.

Commonwealth v. Lambert, 795 A.2d 1010, 1022 1023 (Pa. Super.

2002) (en banc) (some internal citations and quotation marks omitted).

Curiously, rather than focusing upon the evidence presented at trial

concerning his involvement in the crime, Appellant argues that the

Commonwealth failed to produce sufficient evidence regarding co-defendant

proffered by Commonwealth eyewitness, Brian Sanchez, who allegedly

g robbery. Id. at 31.

vehicle used by the Co- Id. at

33 35.

The trial court offered the following pertinent analysis concerning

Sometime in the afternoon on October 24, 2004, Penny Dotson

Stewart, and Edward

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discussing plans to commit a robbery. Dotson then left 19

returned to the Home. Shortly thereafter, Dotson heard the
Defendants enter the Home and begin talking in the kitchen.

Dotson then entered the kitchen and saw a semi-automatic pistol
laying on the kitchen table. Later that night, Dotson was
watching television and learned that a murder had taken place
on Pearl Street. Dotson suspected that Heather Nunn

home to commit the robbery.

Kevin Major testified that he and the Defendants were
smoking marijuana at the Home when [Appellant] said that he

back downstairs. Kevin Major then testified that the Defendants
exited the Home, he heard car doors close, and heard the car
start. Approximately 45 minutes later, the Defendants returned
to the Home. Kevin Major was still in the Home and [Appellant]

put the Handgun in a plastic bag and buried it in the backyard of
the Home.

demanded she act as his alibi, and threatened violence if she did
not comply. In her original statement to police, Hunter claimed
that [Appellant] arrived at her home around 10:04 on October
24, 2004, however [Appellant] did not actually arrive until after
midnight on October 25, 2004. [Appellant] then returned to

about what she had told police, showed her a handgun that was
tucked in his waistband, and threatened to hurt her if she did not
lie.

Finally, Michael Thomas, a Community Service Aid for the
City of Lancaster, allowed [Appellant] to make a phone call after
his arraignment on February 26, 2010. [Appellant] stated

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with his mother. Upon review, we find that the evidence, when
viewed in a light most favorable to the Commonwealth as the
verd
on the charge of second degree murder. Specifically, the
circumstantial evidence tends to show that [Appellant] was
engaged as a principal or accomplice in the perpetration of the
robbery which ultimately resulted in the shooting death of
Heather.

Trial Court Opinion, 4/1/14, at unnumbered 2 4.

Viewing the evidence in the light most favorable to the

Commonwealth, as we must, it is beyond peradventure that Appellant was

present when the plan was formulated to rob Heather Nunn. N.T., 3/8/11,

at 672 673. He participated in the conception of the plan, commenting that

that person. N.T., 3/9/11, at 860 861. Co-defendants left the house

together with a gun, and when they returned together, Appellant told Kevin

Id. at 876.

to leave, and he admonished Co-defendants that if he saw them on the

686. Appellant went to

when she was questioned by the police, to tell them he came to her house

earlier than he actually arrived. N.T., 3/10/11, at 1088 1097. Donnette

indeed lied to police because Appellant threatened her that if she did not lie,

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Id. at 1098 1099. Clearly, Appellant conspired

to rob Heather Nunn, and during the course of that robbery, Heather was

shot and killed. There was sufficient evidence for the jury to find Appellant

guilty of second-degree murder.

accomplic

arguments, the trial court provided all parties with the proposed jury

instructions and held a charge conference with counsel for Co-defendants,

including Appellant. N.T. 3/15/11, at 1648 1671. During this conference all

counsel, including Appellant, had an opportunity to object to the jury charge.

Indeed, the trial court was especially solicitous of pro se

on the points for charge. For example, when discussing individual points of

with t Id. at 1650. Following the responses, the trial court at times

Id. Not once during this detailed jury instruction review did

Appellant make any objection.3 Indeed, when discussing accomplice

3

references the notes of testimony on March 14, 2011, at pages 1578 and

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I must have

spent more time on this charge than on any other case, civil or criminal,

Id. at 1653.

Further, after the trial court instructed the jury, which was consistent

with how the parties were instructed during the charge conference, Appellant

failed to object. N.T., 3/17/11, at 1823

contemporaneously with the charge waived this issue for appeal.

charge may be assigned as error, unless specific objections are made

timely object, this issue is waived and warrants no further review.

Commonwealth v. Hunzer, 868 A.2d 498 (Pa. Super. 2005) (failure to

object to jury instructions waives issue on appeal).

Even if this issue had not been waived, we conclude that it lacks merit.

an accomplice charge to be required, the facts need to permit an

Commonwealth v. Smith,

17 A.3d 873, 906 (Pa. 2011). Despite the fact that the testimony at trial did

not support the conclusion that Penny Dotson took part in the crime

charged, N.T., 3/8/11, at 650 791, the trial court charged the jury, in its

Brief at 11.

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probab

3/17/11, at 1833 1834. The trial court also instructed jurors that they must

when evaluating her testimony. Id. at 1834 1836. We have stated:

the trial court committed a clear abuse of discretion or an error

Commonwealth v. Brown, 911 A.2d 576, 582 83 (Pa. Super.
2006). In so doing, we must view the charge as a whole,
recognizing that the trial court is free to use its own form of
expression in creating the charge. Commonwealth v.
Hamilton
inquiry is whether the instruction on a particular issue
adequately, accurately and clearly presents the law to the jury,
Id. It is
well-
jury instructions. The trial court is not required to give every
charge that is requested by the parties and its refusal to give a
requested charge does not require reversal unless the appellant
Brown, 911 A.2d at 583.

Commonwealth v. Scott, 73 A.3d 599, 602 (Pa. Super. 2013). We discern

no error in the charge to the jury.

portions of co-defendant

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Court Opinion, 4/1/14, at unnumbered 4. Hayward did not testify at trial,

was excluded in its entirety. N.T., 3/14/11, at 1517, 1520. The other two

calls were redacted because they referenced Co-defendants Michael Stewart

and Edward Major. Id. at 1502 1526. Moreover, as the trial court

At trial, out of the presence of the jury, there was extensive discussion

about the audio tapes and transcripts of the prison telephone calls from

Hayward Stewart to a friend. N.T., 3/14/11, at 1502 1527. The trial court

concluded that it was impossible to edit the tapes themselves, and since

they were admissible against Hayward, the trial court directed counsel to

Id. at 1508. Appellant told the court

does not implicate [Appellant] involved at all with these conversations, I had

Id

safely.

Id

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Id.

The trial court denied the motion. As the redaction discussion

1514. Nevertheless, once again, Appellant assert

suggested redaction of the third call. Id. at 1516, 1518 1519.

Appellant references Bruton v. United States, 391 U.S. 123 (1968),

and its progeny, where the United States Supreme Court admonished that

the inculpatory statement of a non-testifying co-conspirator can only be

used against the declarant. Therefore, Appellant inartfully suggests that the

introduction of the redacted telephone calls implicated him and violated his

Confrontation Clause right to question a witness against him. We disagree.

In Bruton, the United States Supreme Court held that a defendant is

deprived of his Confrontation Clause rights when the statement of a non-

testifying co-defendant names the defendant as a participant in the crime,

even if the jury is instructed to consider that confession only against the

codefendant. That was not the situation here. There is absolutely no

reference, overt or by implication, that Hayward was referring to Appellant.

As the Court stated in Richardson v. Marsh, 481 U.S. 200, 211 (1987),

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-

as here, the con

Court has stated:

As a general matter, when read together, Bruton, Richardson,
and Gray [v. Maryland, 523 U.S. 185 (1998)] stand for the
notion that a statement of a non-testifying co-defendant,
provided that the trial court gives a limiting instruction to the
jury admonishing them to consider the statement against solely
the declarant, will violate the Confrontation Clause only when
the jury can tell from the face of the statement to whom it is
referring; if the jury must refer to other evidence to determine
to whom the statement refers, the Confrontation Clause rights of
the defendant are not violated.

Commonwealth v. Miller, 819 A.2d 504, 512 (Pa. 2002).

that [the telephone] statements could only be used against Hayward Stewart

at unnumbered 5 (citing N.T., 3/14/11, at 1540; N.T., 3/17/11, at 1838).

The trial court did not err.

course of interviews, that he fired handguns at people when he was twelve

years old and in 1997 and 1998 should have been admitted into evidence

and were not precluded by Pa.R.E. 404. The Commonwealth made an oral

motion in limine to exclude the evidence because the incidents were too

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remote in time to be of value in the instant 2004 homicide. The trial court

agreed and granted the motion. N.T., 3/9/11, at 912 917.

It is well settled that the decision to admit or exclude evidence is

vested in the sound discretion of the trial court. Commonwealth v.

Feliciano, 67 A.3d 19 (Pa. Super. 2013) (en banc). Indeed, the admission

of prior bad acts is within the discretion of the trial court and will only be

reversed upon a showing of abuse of discretion. Commonwealth v.

Chmiel

error of judgment, but rather where the judgment is manifestly

unreasonable or where the law is not applied or where the record shows that

Commonwealth v. Aikens, 990 A.2d 1181, 1184-1185 (Pa. Super. 2010)

(internal citations omitted). Moreover, evidence of other crimes committed

by a defendant generally is not admissible to show his criminal propensity; it

is admissible, inter alia, to establish the existence of a common scheme or

plan. Commonwealth v. Keaton, 45 A.3d 1050, 1066 (Pa. 2012) (citing

Commonwealth v. Bronshtein, 691 A.2d 907, 915 (Pa. 1997); Pa.R.E.

404 is a straightforward relevance test that can be assessed by analyzing

the charges, the proffered testimony, and evidence available to support the

Commonwealth v. Hicks, 91 A.3d 47, 53 n.8 (Pa. 2014).

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The trial court addressed this issue as follows:

Although in virtually every case, it is the Commonwealth
seeking to admit prior bad acts, the rule is equally applicable to
Defendants. [Appellant] argues it is relevant to show that Kevin
Major was an individual of violent propensities and that it was, in
fact, he who committed the attempted robbery and murder.
However, this is exactly what Rule 402(b)(1) excludes.
[Appellant] also claims it was admissible to impeach the witness;
however, [he] does not say how it would do so. This witness
was easily impeachable, and was impeached, as the transcript
of his testimony shows. Assuming that these prior bad acts
would have been relevant, the question of whether relevant
evidence is unduly prejudicial is a function in part of the degree
to which it is necessary to prove the case of the opposing party.
Commonwealth v. O'Brien, 836 A.2d 966 (Pa. Super. 2003).
Here the defense had a wealth of information [with] which to
impeach the witness, making this type of evidence unnecessary
for mere impeachment.

Trial Court Opinion, 4/1/14, at unnumbered 6 (emphasis added). We

discern no abuse of discretion.

Finally, Appellant proposes that Attorney Gratton had a conflict of

interest because he had once represented Penny Dotson at her preliminary

hearing for insurance fraud in an unrelated matter, and the trial court erred

-appointed counsel.

where he stood trial on unrelated murder charges on November 16, 2010, at

Lancaster County Court of Common Pleas Docket No. 261 of 2010, before

the Honorable Howard F. Knisely and a jury, because Appellant raised the

issue therein. We explained:

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Judge Madenspacher held a conflict hearing on October 12, 2010
. . . . Mr. Gratton testified that he began his representation of
Appellant by his assignment to the case before Judge
Madenspacher in February 2010. N.T. (Conflict Hearing),

preliminary hearing of Penny Dotson before Judge Ballentine for
a Mi Id. Assistant public
defender Gratton stated:

My recollection from speaking, as best I can recall
from the preliminary hearing and the negotiations
that day is that [the assistant district attorney] and I
did not have any discussions about Mrs. Dotson
being a witness in any murder case of any sort. And
I first learned that she had some connection to Mr.
in fact, I first learned that she was a
significant witness, as far as I can tell, after I
received discovery in the homicide case before Your
Honor.

Id. at 4.

Attorney Gratton testified before Judge Madenspacher that
Penny Dotson allegedly overheard a plot to rob Heather Nunn,
the victim . . ., who ultimately was shot to death. N.T. (Conflict
Hearing),

Id. at 4.

In discussion with Appellant about the Heather Nunn
murder, Mr. Gratton stated that he told Appellant that he

representation of her. N.T. (Conflict Hearing), 10/12/10, at 5.
Mr. Gratton allegedly told Appellant that he (Attorney Gratton)

crimen falsi conviction, within the confines of their attorney-
client privilege. Id. at 5 6.

The assistant district attorney also testified at the October
12, 2010 hearing. He stated:

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this case. I handle hundreds of preliminary hearings

at the criminal complaint to see if it could refresh my

because had I known that, it would have definitely
stuck out in my memory and I would not have pled
her to a crimen falsi offense if I had known she was
an important Commonwealth witness.

N.T. (Conflict Hearing), 10/12/10, at 6.

Judge Madenspacher concluded that Mr. Gratton had no
conflict in representing Appellant. N.T. (Conflict Hearing),
10/12/10, at 7. Judge Madenspacher opined that the situation
presented more of a concern for the Commonwealth, which

case since you had actually represented a prior Commonwealth
witness and therefore, in theory, know things about that witness

Id. at 7 8.

Commonwealth v. Jordan, 764 MDA 2011, ___ A.3d ___ (Pa. Super. filed

February 14, 2014) (unpublished memorandum at 12 15), reargument

denied, June 24, 2014.

Appellant asserts that stand-by counsel Gratton breached his duty of

loyalty. At the Conflict hearing, the trial court asked Mr. Gratton if he

perceived a conflict. Counsel responded:

Your Honor, we reviewed it and spoken [sic] with Sam

not going to have any problems cross-examining Penny Dotson
and asking her about her crimen falsi conviction which she has.
er to have the false reports then

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insurance fraud. It's about as clear a crimen falsi offense as a

about it. . . .

[Appellant].

N.T. (Conflict Hearing), 10/12/10, at 9 10.

It is clear from the testimony there was no conflict. There was no

crimen falsi charge

that came out at trial. Trial Court Opinion, 4/1/14, at unnumbered 6 7;

N.T., 3/8/11, at 712. As Appellant cannot demonstrate any prejudice, this

issue is meritless. Moreover, prior to trial, Appellant chose to represent

himself, thereby further eliminating any argument of conflict.

As noted earlier, on January 28, 2011, the trial court began an on-the-

record inquiry pursuant to Grazier where Appellant gave his reasons for

wanting to proceed pro se. He again raised the conflict issue, but also

asserted that he did not want Attorney Gratton to represent him because, in

his prior homicide trial before Judge Knisel, Mr. Gratton allegedly sabotaged

personal interests and personal bias aga

20 21. It appears that Appellant now is asserting that he had no choice but

to proceed pro se. This claim is belied by the testimony at the hearing,

reproduced below.

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The trial court addressed this averment by Appellant as follows, and

representation that is bothering you? I mean, if I go and let you
represent yourself and you come back later and say, well, I

[Appellant] stated[,] I still elect to proceed pro se. No matter if
there is a change or not, I want to proceed pro se in this
case.

The Court then began its colloquy of [Appellant] and the
first thing was that he had the right to be represented by
counsel, and the right to free counsel if he was indigent.
Specifically the colloquy went as follows:

THE COURT: Now, you do understand that you have
the right to be represented by counsel? You
understand that?

[APPELLANT]: Yes.

THE COURT: And obviously, you understand that
you have the right to free counsel appointed for you
if you are indigent.

Do you understand that?

[APPELLANT]: Correct.

THE COURT: And not only do you not want your
c
want anybody else appointed either, is that correct?

[APPELLANT]: Repeat that again.

THE COURT: In addition to not wanting Mr. Gratton

anybody else for an attorney for you either.

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[APPELLANT]: In regards to standby counsel, I do
want you to I do request to

until I rule otherwise, Mr. Gatton is your trial

You want to represent yourself. I want to make sure
that you want to represent yourself and not come

want Mr. Gratton, I wanted somebody else other
than Mr. Gratton.

[APPELLANT]. No. This is again, numerous times,

throughout. I am proceeding pro se as my right.

THE COURT: I just want to make that clear. Do you
understand that?

crystal, Very clear. Distinctly.

THE COURT: So you know you have the right to a
free attorney if you want one?

[APPELLANT]: Correct.

Thereafter he was informed of the nature of the charges and the
maximum penalties.

* * *

[Appellant] has no basis to say he had no other choice. He
claims Mr. Gratton had a conflict when he did not, and despite
the opportunity given to him to request a different attorney[, h]e
insisted on his right to represent himself.

[Appellant] was bound and determined to represent
himself in this case. At [the remand Grazier] hearing[,]
[Appellant] insisted on representing himself on appeal[,]
rejecting the appointment of appellate counsel . . . after
[previously] asking the Court to appoint appellate counsel.

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J-S60002-12

Trial Court Opinion, 4/1/14, at unnumbered 8 10 (some citations to the

record omitted) (emphasis added).

We conclude that there is no merit to any of the issues Appellant has

raised in this appeal. Therefore, we affirm the judgment of sentence.

Judgment of sentence affirmed.

MUNDY, J., Concurs in the Result.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/3/2014

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