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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
BRIAN ANTHONY LEEKS, :
:
Appellant : No. 1961 MDA 2014
Appeal from the Judgment of Sentence June 12, 2014
In the Court of Common Pleas of Dauphin County
Criminal Division No(s).: CP-22-CR-0000105-2014
BEFORE: BOWES, WECHT, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 30, 2015
Appellant, Brian Leeks, appeals from the judgment of sentence
entered in the Dauphin County Court of Common Pleas. He contends (1) the
trial court failed to conduct a sufficient colloquy before allowing him to
proceed pro se, (2) the verdict was against the weight of the evidence, and
(3) the court imposed an excessive and unreasonable sentence. We affirm.
We adopt the recitation of facts as set forth by the trial court. Trial Ct.
Op., 6/26/14, at 1-3. On June 4, 2013, following a colloquy, the trial court
permitted Appellant to proceed pro se with stand-by counsel. On June 6,
2014, following a jury trial, Appellant was found guilty of aggravated
*
Former Justice specially assigned to the Superior Court.
J.S45036/15
assault1 and terroristic threats with intent to terrorize another.2 On June 12,
2014, Appellant was sentenced to seven-and-a-half to fifteen years’
imprisonment. He was ordered to pay restitution in the amount of $768.30.
On June 23, 2014, appellate counsel filed a post-sentence motion
contending his sentence was excessive and the verdict was against the
weight of the evidence. The trial court denied the motion on October 21,
2014. This timely appeal followed. Appellant filed a court-ordered Pa.R.A.P.
1925(b) statement of errors complained of on appeal. The trial court filed a
responsive opinion.
Appellant raises the following issues for our review:
I. 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 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 Fifth and Sixth Amendments to
the United States Constitution and Articles I and V, Section
9 of the Pennsylvania Constitution?
II. Whether the trial court erred in denying Appellant’s
Post-Sentence Motion where his convictions were against
the weight of the evidence so as to shock one’s sense of
justice where: Appellant was never shown to have
engaged in acts which constitute the crimes of which he
was convicted, and[ ] Appellant acted in self-defense?
III. Whether the trial court erred in denying Appellant’s
Post-Sentence Motion where Appellant’s sentence of 7.5 to
15 years’ incarceration and $768.30 in restitution is
1
18 Pa.C.S. § 2702(a)(1).
2
18 Pa.C.S. § 2706(a)(1).
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J.S45036/15
excessive and unreasonable given Appellant’s lack of a
significant prior record, this [h]onorable [c]ourt’s failure to
inquire into Appellant’s background during sentencing, and
Appellant’s significant history of mental health issues?
Appellant’s Brief at 7.
First, Appellant argues that when a defendant seeks to waive his right
to counsel, the trial court “must conduct a colloquy on the six elements
listed in Pa.R.Crim.P. 121.” Id. at 17. Additionally, he contends “the trial
court must inquire about the defendant’s age, educational background, and
basic comprehension skills.” Id. at 18. Appellant argues the court did not
comply with these precepts. We disagree.
Our review is governed by the following principles:
A criminal defendant’s right to counsel under the Sixth
Amendment includes the concomitant right to waive
counsel’s assistance and proceed to represent oneself at
criminal proceedings. Faretta v. California, 422 U.S. 806
. . . (1975). The right to appear pro se is guaranteed as
long as the defendant understands the nature of his
choice. [Id.] at 835. In Pennsylvania, Rule of Criminal
Procedure 121 sets out a framework for inquiry into a
defendant’s request for self-representation. Pa.R.Crim.P.
121. Where a defendant knowingly, voluntarily, and
intelligently seeks to waive his right to counsel, the trial
court, in keeping with Faretta, must allow the individual
to proceed pro se. See also Commonwealth v.
McDonough . . . 812 A.2d 504, 508 ([Pa.] 2002)
(concluding that Faretta requires an on-the-record
colloquy in satisfaction of Pa.R.Crim.P. 121, which colloquy
may be conducted by the court, the prosecutor, or defense
counsel.)
Commonwealth v. El, 977 A.2d 1158, 1162-63 (Pa. 2009) (footnotes and
some citations omitted).
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J.S45036/15
Rule 121 provides as follows:
(2) To ensure that the defendant’s waiver of the right to
counsel is knowing, voluntary, and intelligent, the judge or
issuing authority, at a minimum, shall elicit the following
information from the defendant.
(a) that the defendant understands that he or she has
the right to be represented by counsel, and the right to
have free counsel appointed if the defendant is
indigent;
(b) that the defendant understands the nature of the
charges against the defendant and the elements of each
of those charges;
(c) that the defendant is aware of the permissible range
of sentences and/or fines for the offenses charged;
(d) that the defendant understands that if he or she
waives the right to counsel, the defendant will still be
bound by all the normal rules of procedure and that
counsel would be familiar with these rules;
(e) that the defendant understands that there are
possible defenses to these charges that counsel might
be aware of, and if these defenses are not raised at
trial, they may be lost permanently; and
(f) that the defendant understands that, in addition to
defenses, the defendant has many rights that, if not
timely asserted, may be lost permanently; and that if
errors occur and are not timely objected to, or
otherwise timely raised by the defendant, these errors
may be lost permanently.
Pa.R.Crim.P. 121(A)(2)(a)-(f). In Commonwealth v. Phillips, 93 A.3d 847
(Pa. Super. 2014), this Court stated:
When reviewing a trial court’s basic compliance with the
requirements of Rule 121, we do not first apply a “totality
of the circumstances” test. In this context, we look at the
totality of the relevant circumstances only after we decide
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J.S45036/15
the trial court has met the minimum requirements of Rule
121, to determine whether the defendant’s waiver of the
constitutional right to counsel was a knowing, voluntary,
and intelligent waiver.
Id. at 853-54 (emphases added).3
Appellant relies on the following footnote in McDonough in support of
his argument that the trial court failed to conduct a thorough colloquy
because “the court failed to inquire into [Appellant’s] age before permitting
him to proceed pro se.” Appellant’s Brief at 19.
In addition to these six factors, a waiver colloquy must, of
course, always contain a clear demonstration of the
defendant’s ability to understand the questions posed to
him during the colloquy. Although Appellant does not
challenge his colloquy in this regard, the record clearly
demonstrates that Appellant understood the questions
posed during the colloquy. See infra p. 507 (prosecutor
inquiring during colloquy about Appellant’s age,
educational background, and basic comprehension skills).
McDonough, 812 A.2d 507 n.1.4
3
We note that this Court in Phillips stated “[t]he court should also inquire
about the defendant’s age, educational background, and basic
comprehension skills. McDonough, supra.” Phillips, 93 A.3d at 853. The
Supreme Court in McDonough did not hold that the court shall elicit the
defendant’s age in the colloquy. Given the totality of the circumstances test
enunciated in Phillips, the absence of an inquiry into a defendant’s age
alone would not be dispositive of whether the defendant’s waiver of the right
to counsel was knowing, voluntary, and intelligent.
4
The defendant in McDonough contended “his waiver was invalid because
it was the prosecutor rather than the judge who conducted the waiver
colloquy.” McDonough, 812 A.2d at 508. Our Pennsylvania Supreme Court
rejected this argument. Id. at 508-09.
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J.S45036/15
In the case sub judice, the following colloquy was conducted by the
Commonwealth:
MS. GETTLE:5 How far did you go in school?
[APPELLANT]: To the 11th –or to the 12th grade.
MS. GETTLE: Did you graduate?
[APPELLANT]: No.
MS. GETTLE: Did you get a GED?
[APPELLANT]: No.
MS. GETTLE: Do you read, write, and understand the
English language?
[APPELLANT]: I do.
* * *
MS. GETTLE: [A]re you under the influence of any alcohol
or controlled substances that are impacting your ability to
understand what you’re doing here today?
[APPELLANT]: No.
MS. GETTLE: Now, you take prescription medications, is
that correct?
[APPELLANT]: That’s correct.
* * *
MS. GETTLE: What types of prescriptions are you
prescribed?
5
Jennifer W. Gettle was the Commonwealth’s attorney and was instructed
by the court to conduct the colloquy after she informed Appellant of the
charges he faced and the potential maximum sentences. N.T. Trial, 6/4/14,
at 2-4.
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J.S45036/15
[APPELLANT]: [M]y therapist at the jail has tooken [sic]
me off the medications. I’m not prescribed any medication
at this time.
* * *
MS. GETTLE: What is your diagnosis?
* * *
[APPELLANT]: Major depression, psychotic features or
something like that.
MS. GETTLE: . . . And you have been seeing a therapist
for that?
[APPELLANT]: I was in CMU, the Case Management Unit.
They closed my case out. They said I didn’t need it.
* * *
THE COURT: CMU is the mental health component of
Dauphin County.
MS. GETTLE: In terms of the fact that you do have a
mental health diagnosis and you’re not taking your
prescriptions at this time, are you having any types of
difficulties understanding what you’re doing here today?
[APPELLANT]: No.
MS. GETTLE: Now, you’ve indicated that you do
understand the fact that you in this case could have the
representation of the Public Defender’s Office. You
understand that?
[APPELLANT]: I understand that.
MS. GETTLE: You qualify for their services and Ms. [Mary
L.] Klatt was representing you in this case.
[APPELLANT]: I understand that.
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J.S45036/15
MS. GETTLE: And that is your─you have a constitutional
right to have─
[APPELLANT]: And to refuse counsel also, right?
MS. GETTLE: And to refuse counsel . . . .
* * *
MS. GETTLE: . . . In terms of the nature of the charges
that have been filed against you, do you understand the
elements that the Commonwealth must prove beyond a
reasonable doubt in this case?
[APPELLANT]: In understand that.
MS. GETTLE: . . . And you’ve also been advised, and we’ve
talked about already this morning, the different types of
sentences if you are convicted of any of those offenses?
[APPELLANT]: I understand that.
MS. GETTLE: Do you understand that if you waive your
right to have counsel that you are going to be bound by
the same rules, court rules, that apply to attorneys when
they try cases?
[APPELLANT]: I understand that.
* * *
MS. GETTLE: Do you understand that there may be
possible defenses to the trial and that if you because of the
fact that you do not have a law license, you’re not
necessarily as familiar with the rules, that you can
permanently lose those defenses if you do not argue them
in court? Do you understand that?
[APPELLANT]: I understand.
* * *
MS. GETTLE: Do you understand that in the event that
something were to occur during court that procedurally
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J.S45036/15
shouldn’t have happened or something of that nature and
you don’t object, that then later on down the road you
can’t then say on appeal . . . I missed the objection,
you’ve lost that right to make that objection on appeal?
Do you understand that?
[APPELLANT]: What do you mean by that?
MS. GETTLE: . . . Let’s say something were to come into
evidence and an attorney would normally . . . object to it,
the evidence.
If that comes into evidence and if you haven’t lodged an
objection, then if you are convicted, you can’t argue . . . I
missed this objection and I should have done this and
objected here; you’ve lost the right to take that any
further on appeal. Do you understand that?
[APPELLANT]: I understand that.
Id. at 4-9, 11-13. The trial court continued the colloquy, addressed the
elements and permissible range of sentences for the charges against
Appellant. Id. at 13-19.
In the instant case, the trial court opined:
A review of the transcript reflects that the court and the
Commonwealth’s Attorney fully addressed each requisite
element of the colloquy. [Appellant] acknowledged that:
he had the right to counsel; he qualified for representation
by a public defender; he understood the nature of the
charges and possible sentences; if he chose to represent
himself, he would be bound by the same rules as an
attorney familiar with such rules including rules relating to
preservation of rights for purposes of appeal; if he invoked
the right to remain silent, he could not present testimony
by way of opening or closing statements.
The court further inquired into [Appellant’s] ability to
understand the proceedings. [Appellant] stated that he
had been diagnosed with depression with psychotic
features but had been discharged from care. [Appellant]
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consistently acknowledged that he understood the
information provided. [Appellant’s] prior counsel . . . who
served as standby counsel, stated that based upon her
extensive dealings with him she had no doubt as to
[Appellant’s] complete competency to stand trial.
Nevertheless, out of an abundance of caution, prior to trial,
[standby counsel] requested that a mental health advocate
meet with [Appellant]. The advocate believed [Appellant]
to be competent to stand trial. Further, the court placed
on the record its observations of [Appellant] and its
conclusion that it found [Appellant] competent to stand
trial.
Accordingly, [Appellant] knowingly, intelligently and
voluntarily waived the right to counsel.
Trial Ct. Op. at 5.
We find Appellant’s claim that the trial court’s failure to inquire about
his age rendered the colloquy deficient is unavailing. Instantly, the colloquy
satisfied Rule 121. See Pa.R.Crim.P. 121(A)(2)(a)-(f). Applying the totality
of the circumstances test, we find that Appellant’s waiver of the
constitutional right to counsel was knowing, voluntary and intelligent. 6 See
Phillips, 93 A.3d at 853-54; El, 977 A.2d at 1162-1163.
Next, Appellant argues “his convictions were against the weight of the
evidence”7 because he “was never shown to have engaged in acts which
6
We note that Appellant’s date of birth was readily apparent from the Court
of Common Pleas’ docket sheet.
7
We note that in his brief Appellant only addresses the aggravated assault
conviction. Appellant’s Brief at 21.
[I]t is an appellant’s duty to present arguments that are
sufficiently developed for our review. The brief must
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constitute the crimes of which he was convicted, and [he] acted in self-
defense.” Appellant’s Brief at 20. He contends his “use of force on the
victim was justifiable as he believed that such force was immediately
necessary to protect him against the victim’s hitting him in the head with a
towel rack.” Id. at 22.
Our standard of review is well-established:
A motion for a new trial alleging that the verdict was
against the weight of the evidence is addressed to the
discretion of the trial court. An appellate court, therefore,
reviews the exercise of discretion, not the underlying
question whether the verdict is against the weight of the
evidence. The factfinder is free to believe all, part, or
none of the evidence and to determine the credibility of
the witnesses. The trial court will award a new trial only
when the jury’s verdict is so contrary to the evidence as to
shock one’s sense of justice. In determining where this
standard has been met, appellate review is limited to
whether the trial judge’s discretion was properly exercised,
and relief will only be granted where the facts and
inferences of record disclose a palpable abuse of
discretion. Thus, the trial court’s denial of a motion for a
new trial based on a weight of the evidence claim is the
least assailable of its rulings.
support the claims with pertinent discussion, with
references to the record and with citations to legal
authorities. Pa.R.A.P. 2119(a), (b), (c). Citations to
authorities must articulate the principles for which they are
cited. Pa.R.A.P. 2119(b).
This Court will not act as counsel and will not develop
arguments on behalf of an appellant.
Commonwealth v. Kane, 10 A.3d 327, 331 (Pa. Super. 2010) (some
citations omitted). Therefore, we need not consider whether the verdict was
against the weight of the evidence for terroristic threats. See id.
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Commonwealth v. Ramtahal, 33 A.3d 602, 609 (Pa. 2011) (citation
omitted).
Additionally, our Supreme Court opined:
[A defendant] cannot prevail on his claim merely because
he believes that all of the evidence presented at trial, his
statement was the most truthful. It is within the province
of the jury, as the finder of fact, to decide whether a
witness’ testimony lacks credibility. The fact that the jury
did not credit [the defendant’s] statement does not
militate that the verdicts are against the weight of the
evidence; rather, that merely establishes that the jury did
not find [the defendant] to be credible, a conclusion that
they [are] empowered to make.
Commonwealth v. Smith, 861 A.2d 892, 896 (Pa. 2004) (citation
omitted).
In the instant case, the trial court opined:
In reaching the verdict of guilty of Aggravated Assault,
the jury considered and accepted the evidence that
[Appellant] brutally beat [Victim] with a towel bar causing
head injury, punched her in the stomach and strangled her
to the point of unconsciousness.
In his Statement of Matters Complained of on Appeal,
[Appellant] raised the claim that [he] acted in self-
defense. The record is devoid of evidence to support
[Appellant’s] suggestion that he acted in self-defense.
Even if the jury considered such claim, it was free to
accept the testimony of [the] Detective . . . that he did not
observe any bruises or injuries on [Appellant] and
therefore conclude that [Appellant] did not act in self-
defense.
Trial Ct. Op., at 7.
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Victim testified that Appellant chocked her until she lost consciousness
and told her if she reported the incident to the police he would kill her. N.T.,
6/15/14, at 46.
Detective John O’Connor of the Harrisburg City Police Department
testified. Id. at 73. He was shown the certification of medical records of
Victim from the Harrisburg Hospital on the date of the incident which
contained the discharge summary. Id. at 76. The discharge summary was
read to the jury. It indicated that Victim reported that Appellant physically
assaulted her on November 12, 2013. Id. at 79. Appellant hit her over the
head, choked her around the neck, kicked her in the chest, neck, shoulder,
abdomen and back. Id. Victim was discharged from the hospital on
November 14th. Id. at 81.
Detective O’Connor interviewed Appellant on November 14, 2013. Id.
at 106. He stated that Appellant “was trying to make himself out to be the
victim.” Id. at 107. Appellant told the Detective that Victim “continued to
come at him with the metal pole.” Id. at 113. He claimed to be defending
himself and he “pushed her again and she hit her head on the wall and
ended up in the bathtub.” Id.
Appellant asks this Court to reweigh the evidence. This we cannot do.
See Smith, 861 A.2d at 896. We discern no abuse of discretion by the trial
court, finding the verdict for aggravated assault was not against the weight
of the evidence. See Ramtahal, 33 A.3d at 609.
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Lastly, Appellant contends the trial court abused its discretion in
sentencing him to seven-and-one-half to fifteen years’ imprisonment and
restitution. He avers that his sentence is excessive and unreasonable given
his lack of a significant prior record, his mental health issues, and the court’s
failure to inquire into his background. Appellant’s Brief at 23.
Appellant challenges the discretionary aspects of his sentence. This
Court has stated:
[D]iscretionary aspects of [a defendant’s] sentence are not
appealable as of right. Rather, an appellant challenging
the sentencing court’s discretion must invoke this Court’s
jurisdiction by satisfying a four-part test.
We conduct a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal,
see Pa.R.A.P. 903 and 903; (2) whether the issue
was properly preserved at sentencing or in a motion
to reconsider and modify sentence, see Pa.R.Crim.P.
720; (3) whether appellant’s brief has a fatal defect,
Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from
is not appropriate under the Sentencing Code, 42
Pa.C.S.A. § 9781(b).
An appellate court will find a “substantial question” and
review the decision of the trial court only where an
aggrieved party can articulate clear reasons why the
sentence imposed by the trial court compromises the
sentencing scheme as a whole.
Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (some
citations omitted).
Instantly, Appellant timely filed this appeal, preserved the issue of an
excessive sentence in his post-sentence motion, and included a statement in
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J.S45036/15
his brief which conforms with Pa.R.A.P. 2119(f). Accordingly, we ascertain
whether Appellant has raised a substantial question. See id.
[W]e hold that Rule 2119(f) requires only that a concise
statement of reasons relied upon for allowance of appeal
allow us to determine the allegation of trial court error and
the immediate context of the allegations as it relates to the
prescribed sentencing norms. Thus, the Rule 2119(f)
statement must specify where the sentence falls in
relation to the sentencing guidelines are what
particular provision of the Code is violated (e.g., the
sentence is outside the guidelines and the court did not
offer any reasons either on the record or in writing, or
double-counted factors already considered). Similarly, the
Rule 2119(f) statement must specify what
fundamental norm the sentence violates and the
manner in which it violates the norm (e.g., the
sentence is unreasonable or the result of prejudice
because it is 500 percent greater than the extreme end of
the aggravated range). If the Rule 2119(f) statement
meets these requirements, we can decide whether a
substantial question exists. The nature of the crime
underlying the sentence and the specific sentence in
months or years imposed for that crime are therefore not
required in a Rule 2119(f) statement because they are
unnecessary to determining the existence of a substantial
question.
Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (some
citations omitted).
In the Rule 2119(f) statement, Appellant cites Commonwealth v.
Kellly, 33 A.3d 638 (Pa. Super. 2011).8 In Kelly, this Court opined: “A
claim that a sentence is manifestly excessive such that it constitutes too
8
We note that the Kelly Court found that the defendant had waived the
issue because the brief was devoid of any argument on the issue. Kelly, 33
A.3d 640.
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J.S45036/15
severe a punishment raises a substantial question. See Commonwealth v.
Mouzon, [ ] 812 A.2d 617, 624 ([Pa.] 2002).” Id. at 640. The Mouzon
Court opined:
This does not mean, however, that the Superior Court
must accept bald allegations of excessiveness. Rather,
only where the appellant’s Rule 2119(f) statement
sufficiently articulates the manner in which the sentence
violates either a specific provision of the sentencing
scheme set forth in the Sentencing Code or a particular
fundamental norm underlying the sentencing process, will
such a statement be deemed adequate to raise a
substantial question so as to permit a grant of allowance of
appeal of the discretionary aspects of the sentence.
Mouzon, 812 A.2d at 627 (emphasis added and citation omitted).
In the case sub judice, Appellant’s bald reference to Kelly in his Rule
2119(f) statement does not raise a substantial question. See id. Appellant
avers that his sentence was excessive because the court failed to consider
his lack of a significant prior record and his significant mental health issues.
Appellant’s Brief at 14. This does not raise a substantial question. See
Goggins, 748 A.2d at 727. Therefore, we do not address the merits of his
challenge to discretionary aspects of his sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/30/2015
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COMMONWEALTH : IN THE COURT OF COMMON PLEAS
: DAUPHIN COUNTY, PENNSYLVANIA
v. : NO. 105 CR Z014
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Brian Leeks ("Defendanf') appeals the judgment of sentence imposed on June 12, 2014. For
the reasons set forth, the judgment should be affirmed.
RELEVANT PROCEDURAL HISTORY
The Defendant was tried before a jury on June 4, 2013 and found guilty of Aggravated
Assault and Terroristic Threats with Intent to Terrorize Another. Defendant was found not guilty
of Criminal Attempt-Homicide; Defendant represented himself at trial.
On June 12, 2014, the court sentenced Defendant to an aggregate sentence of 7 !4 to 15 years
as follows:
Count 2- 78 to 156 months in a state correctional institute, a fine of $25 plus costs of the
proceedings;
Count 3- 12 to 24 months in a state correctional institute consecutive to Count 2, a fine of
$25 plus costs of the proceedings.
On June 23, 2014, appellate counsel filed a post-sentence motion. The trial court denied the
post-sentence motion on October 21, 2014. Defendant filed a Notice of Appeal on November
,' ) Circulated 08/31/2015 01:05 PM
I 8, 20 I 4. Pursuant to the court's order, Defendant filed a Concise Statement of Matters
Complained of on Appeal on December 10, 2014.
·----F-A-e-'Pl:1Ah·B-A-eK6R01::JND--------·-----------------
The evidence at trial revealed that on the evening of November 11, 2013, Leelawattie Jagdeo
-----aoo--Dcfoooant-m:guoo-aboui--Defendant' s re1ationship-with-another woman. (Transeript"-fl-f--------
Proceedings, Jury Trial, June 5, 2014- June 6, 2014, p. 33)(hereinafter, "N.T. 2''). The argument
became physical, at which point Ms. Jagdeo attempted to flee from the downstairs living room of
the home to the upstairs bathroom. (Id. p. 34). Defendant chased her to the bathroom. Ms. Jagdeo
told Defendant she did not want to fight anymore. (Id. p. 35). However, Defendant dismantled a
towel rack and repeatedly struck Ms. Jagdeo on the head.(/d. p. 35). Ms. Jagdeo attempted to
shield her head from the multiple blows. At some point during the attack, Defendant hit Ms.
Jagdeo with a shower curtain rod, kicked her in the stomach and hit her in the head with his
hands. (Id.pp. 36-38). He then choked her to the point of unconsciousness. (Id. p. 38). When
Ms. Jagdeo regained consciousness, she was in a bathtub filled with water, fully clothed. She
recalled that that the water was up to her hair. (Id. p. 29).
A neighbor, Vickie Thompson, testified that she heard the loud fighting that evening and heard
Defendant tell Ms. Jagdeo that he was going to kill her. Ms. Thompson called 911. (Id. p. 9). An
ambulance took Ms. Jagdeo to the hospital.
Medical evidence revealed that Ms. Jagdeo suffered a small post traumatic scalp contusion at
the cerebral convexity. (Id. p. 81 ). She was admitted as an inpatient with diagnoses of intramural
hematoma of distal duodenum, proximal jejunum and brain contusion of the cerebral convexity.
(Id. pp. 82-83).
2
( ) /.") Circulated 08/31/2015 01:05 PM
Officer Charles Pensyl responded to the domestic violence call. At the hospital, Officer
Pensyl questioned Ms. Jagdeo. She told what happened to her, but refused to tell the officer who
did this to her. Officer Pensyl testified that he had never seen a domestic violence victim in such
Detective John O'Connor was assigned to this case. Detective O'Connor executed a search
----'-Narrant of Ms-Jagdee's-home-ea-Neveraber
13, 2013. (/d.p~eteetive-G'Connor observed--·~---
a blood smear on the neighbor, Ms. Thompson's door. (Id.) He found the living room of Ms.
Jagdco's home in disarray. (Id. p. 90). Detective O'Connor found an apology letter with a heart
on it which read, "Sorry for everything. I'll come back. Love always." (Id. pp. 95-96).
In an interview with Detective John O'Connor, Defendant stated that Ms. Jagdeo was the
aggressor, that he pushed her into a wall and she hit her head and foll into the bathtub.(Jd. p.
113 ). Defendant stated that Ms. Jagdeo threatened to kill him and that he became afraid and ran
away. (Id.)
DISCUSSION
A. THE COURT AND THE COMMONWEALTH ATTORNEY CONDUCTED A
THOROUGH AND COMPLETE COLLOQUY WHICH DEMONSTRATED THAT
DEFENDANT KNOWINGLY) INTELLIGENTLY AND VOLUNTARILY CHOSE TO
PROCEED PRO SE.
The colloquy conducted on the record on June 4, 2013 at pages 5-14 provided a complete and
thorough explanation of Defendant's rights, the charges he faced and the risk of proceeding pro
se which satisfied the requirements of Pennsylvania Rule of Criminal Procedure 121 (a)(2).
Rule 12l(a)(2) requires that,
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;
To ensure that the defendant's waiver of the right to counsel is knowing,
voluntary and intelligent, the judge or issuing authority, at a minimum, shall elicit
the following information from the defendant:
represented by counsel, and the right to have free counsel appointed if
-------------the-defe11dant-is-indigent;·---·---~----------------
(b) that the defendant understands the nature of the charges against the
defendant and the elements of each of those charges;
(c) that the defendant is aware of the permissible range of sentences
and/or fines for the offenses charged;
(d) that the defendant understands that if he 01· she waives the right to
counsel, the defendant will still be bound by all the normal rules of
procedure and that counsel would be familiar with these rules;
(e) that the defendant understands that there are possible defenses to these
charges that counsel might be aware of, and if these defenses are not
raised at trial, they may be lost permanently; and
(f) that the defendant understands that, in addition to defenses, the
defendant has many rights that, if not timely asserted, may be lost
permanently; and that if errors occur and are not timely objected to, or
otherwise timely raised by the defendant, these errors may be
permanently lost.
Pa.R.Crim.P. 121 (a)(2).
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·' )
A review of the transcript reflects that the court and the Commonwealth's Attorney fully
addressed each requisite element of the colloquy. Defendant acknowledged that: he had the right
to counsel; he qualified for representation by a public defender; he understood the nature of the
· -- -----clmrges·~arrd-pussibh~· sentenc-es;·if-Ire-c-hoseto represent rnllTSelf;he wou){I-bebmmd-bylhe same
rules as an attorney familiar with such rules including rules relating to preservation of rights for
----ttplli'j3oses of appealjif-heinvoked-the right to-remain-silent, he-eoold--flet-prescnt testwim-owll)\1-' ...,b,~1--------
way of opening or closing statements. (N.T. 2, pp. 6-19).
The court further inquired into Defendant's ability to understand the proceedings. Defendant
stated that he had been diagnosed with depression with psychotic features but had been
discharged from care. (Id. p. 6). Defendant consistently acknowledged that he understood the
information provided. Defendant's prior counsel, Attorney Mary Klatt, who served as standby
counsel, stated that based upon her extensive dealings with him she had no doubt as to
Defendant's complete competency to stand trial. Nevertheless, out ofan abundance of caution,
prior to trial, Attorney Klatt requested that a mental health advocate meet with Defendant. The
advocate believed Defendant to be competent to stand trial. (Id. pp. 23-24). Further, the court
placed on the record its observations of Defendant and its conclusion that it found Defendant
competent to stand trial. (Id. p. 24)
Accordingly, Defendant knowingly, intelligently and voluntarily waived the right to counsel.
A. THE WEIGHT OF EVIDENCE SUPPORTS THE VERDICT.
The court properly denied the Defendant's Motion for a New Trial or Arrest of Judgment
which challenged that the verdict was against the weight of the evidence.
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.)
The Superior Court has explained the "crucial distinction between evidentiary weight and
sufficiency" as follows:
Sufficiency of the evidence and weight of evidence are discreet inquiries.
In reviewing the sufficiency of the evidence, we must view the evidence presented
---~anu-aH-remrmmb-Jeinferences1akentherefrom in tneltgnt most favoraoletotn~e----
Commonwealth, as verdict winner. The test is whether the evidence> thus viewed>
is sufficient to prove guilt beyond a reasonable doubt. .. A motion for a new trial on
grounds that the verdict s contrary to the weight of the
----~·----evideace concedes thatthere is sttfficient-cvidenee-to-sustain-the--ver"Hdwic4-t-"'bu™tt-------------
contends> nevertheless, that the verdict is against the weight of the evidence.
Whether a new trial should be granted on grounds that the verdict is against
the weight of the evidence is addressed to the sound discretion of the trial
judge, and his discretion will not be reversed on appeal unless there has been
an abuse of discretion ... The test is not whether the court would have decided the
same way but whether the verdict is so contrary to the evidence as to make
the award of a new trial imperative so that right may be given another opportunity to
prevail.
Commonwealth v. Whiteman, 336 Pa. Super 120, 124-25, 485 A.2d 459, 461-62 (1984),
citing, Commonwealth v. Taylor, 324 Pa. Super, 420, 425, 471 A.2d 1228, 1229-30 (1984);
Commonwealth v. Sample, 321 Pa. Super.457, 468 A.2d 799 (1983)(allocatur denied);
Commonwealth v. Miller, 303 Pa. Super. 504, 450 A.2d 40 (1982) and Commonwealth v. Vogel,
501 Pa. 314, 461 A.2d 604 (1983) cert. denied, ~U.S._, 104 S.Ct. 1603, 80 L.Ed. 2d J 33
(1984).
We note at the outset that neither Defendant's Motion for a New Trial nor Arrest of Judgment
nor Statement of Matters Complained of On Appeal identify which of the charges arc
unsupported by the weight of evidence. Rather, Defendant asserts only the boilerplate claim that
"the verdict was against the weight of the evidence so as to shock one's sense of justice where
Defendant was never shown to have engaged in acts which constitute the crimes of which he was
convicted." (Defendant's Post-Sentence Motion, para. 7).
The facts set forth briefly in this Opinion and at greater length in the Commonwealth's Brief
For Appellee, with complete citation to the testimony, demonstrate that ample evidence supports
the verdict of guilty at each charge. Findings as to "the weight of the evidence [are] exclusively
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for the finder of fact who is free to believe all, part, or none of the evidence, and to determine the
credibility of the witnesses." Commonwealth v. Champney, 574 Pa. 435, 832 A.2d 403, 408 (Pa.
2003).
·------~1mevtcl"enceeastlysatisfieo1heelements oftliecliarge ofAggravatea Assaulr.Thestatute
provides:
·~------A-person is guiltyof-aggreveted-assaelt-if-her- ------·~----------
(1) attempts to causes serious bodily injury to another, or causes such injury
intentionally, knowingly or recklessly under circumstances manifesting extreme
indifference to the value of human life[.]
18 Pa. C.S.§2702.
In reaching the verdict of guilty of Aggravated Assault, the jury considered and accepted the
evidence that Defendant brutally beat Ms. Jagdeo with a towel bar causing head injury, punched
her in the stomach and strangled her to the point of unconsciousness.
In his Statement of Matters Complained of on Appeal, Defendant raised the claim that
Defendant acted in self-defense. The record is devoid of evidence to support Defendant's
suggestion that he acted in self defense. Even if the jury considered such claim, it was free to
accept the testimony of Detective John O'Connor that he did not observe any bruises or injuries
on the Defendant and therefore conclude that Defendant did not act in self-defense.
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Further, the weight of evidence well supports the verdict of guilty on the charge of Terroristic
Threats with Intent to Terrorize Another pursuant to 18 PA.C.S. § 2706 (A)(l) which provides,
in relevant part:
'I'e11'{)ristic 1'~ts.
(a) Offense defined.- A person commits the crime of terroristic threats if the person
---~eommanieates, either directly or indirectly, a threat to:
(1) commit any crime of violence with intent to terrorize another;
***
18 PA.C.S. § 2706 (A)(l).
The jury heard and accepted testimony of the victim's neighbor, Ms. Thompson, that she
heard loud fighting noises at the victim Ms. Jagdeo's home next door and a voice she identified
as Defendant's state that he was going to kill her. (N.T. 2, pp. 10-12).
Therefore, the weight of the evidence supports the verdict and the trial court properly denied
Defendant' s Motion for a New Trial or An-est of Judgment.
B. THE COURT PROPERLY EXERCISED ITS DISCRETION IN SENTENCING
DEFENDANT.
Defendant challenges the discretionary aspects of the sentence by his assertion that the
sentence was excessive and unreasonable and failed to consider Defendant's lack of prior record
and to inquire as to Defendant's mental health concerns. The transcript belies Defendant's
arguments.
The court properly imposed a sentence in the aggravated range and stated its reasons therefore
on the record. 1The court sentenced Defendant as follows:
I
The court ordered Defendant removed from the courtroom following Defendant's profanity laced outburst.
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THE COURT: On count two, the aggravated assault, the Court presided over the
proceeding, Also, observed some things in the courtroom and was at least informed of
what happened out at the prison with the assaults.
This assa~lt·wasimrtic1Thn:Iy-dtsconcerting,tl~lengtlroftr,mttmgher 'yV_lt_n_a_m_e_t_a_l _
towel rack, poking her with a shower rod to the extent she had internal bleeding, bleeding
------ .....o-n-,.,her-bram,aad--ether-injuries that she-had. So v.·e recogt1i-ze-thtt•'f-.-------------
I do believe I'm going to [g]o outside the standard range and impose a sentence of not
less than 78 months to 156 months, fine of $25 and costs of prosecution.
Condition of his sentence would be that he gets the mental health treatment, anger
management, and any other mental health treatment that is recommended by a
professional, while he is incarcerated.
He can't keep himself in prison without fighting with others, so I have a serious
concern about public safety issues should he be released without any treatment while he
is in prison.
On the terroristic threats count, at count three, impose a sentence of not less than one
year nor more than two years in the state correctional institute, and that will run
consecutively to the previous count; $25 fine and costs of prosecution.
Twill give him the time credit from November 14, 2013 until today's date.
We will set up a time to read him his appellate rights. We will do that promptly. Again,
we are not going to start the thirty days until he knows his rights. We can do that from the
prison.
The restitution amount is $768.30.
(Transcript of Proceedings, June 12, 13, 2014, pp. 5-9).
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! )
In the exercise of its discretion, the court properly considered "the character of the defendant
and the particular circumstances of the offense in light of the legislative guidelines for sentencing
and [imposed] a sentence [that was] consistent with the protection of the public, the gravity of
'Sentencing is a matter vested in the sound discretion of the sentencing judge, and a
sentence will not be disturbed on appeal absent a manifest abuse of discretion.' In this
context> an-abuse of discretion-4s--net-shown---merely by an error in judgment.Ritthe1.,-thc
appellant must establish by reference to the record that the sentencing court ignored or
misplaced the 1aw, exercised its judgment for reasons of partiality, prejudice, bias or ill
will, or arrived at a manifestly unreasonable decision.
Commonwealth v. Rodda, 723 A.2d 212, 214(Pa. Super. 1999)(quoting Commonwealth v.
Johnson, 666 A.2d 690,693(P A. Super. I 995).
As reflected in its observations on the record, the court considered a sentence in the
aggravated range proper based upon the particularly brutal and prolonged attack upon Ms.
Jagdeo.
Also, contrary to Defendant's argument, the court considered Defendant's mental health
concerns in imposing the condition that Defendant undergo mental health treatment. The court
deemed such treatment necessary to reduce danger to the community upon Defendant's release.
Accordingly, the court properly denied Defendant's Post-Sentence Motion.
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CONCLUSION
For all of the foregoing reasons, the judgment of sentence should be affirmed.
o EWIS
PRESIDENT JUDGE
FOR TODD A HOOVER
June 26, 2015
Distribution:
Joseph Cardinale, Esq., Dauphin County District Attorney's Office
Ryan Lysaght, Esq., Dauphin County Public Defender's Office
11
Com. v. Leeks, B.
Combined Opinion