Com. v. Smith, C.

J-S41011-16

2016 PA Super 214

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

KEVIN GREEN

Appellant No. 2672 EDA 2014

Appeal from the Judgment of Sentence Entered September 12, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011053-2013

BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.: FILED SEPTEMBER 16, 2016

Appellant Kevin Green appeals from the judgment of sentence entered

in the Court of Common Pleas of Philadelphia County on September 12,

2014, following a jury trial at which time he received an aggregate term of

fifty-five (55) years to one hundred ten (110) years in prison for his

convictions of robbery, two counts of kidnapping, conspiracy, two counts of

false imprisonment, burglary, and theft by unlawful taking.1 Appellant

challenges the sufficiency of the evidence to sustain his kidnapping

convictions, the legality of his sentences for false imprisonment, and the trial

court’s denial of his request to represent himself at his jury trial. After

careful review, we affirm.
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1
18 Pa.C.S.A. §§ 3701(a)(1)(ii), 2901(a)(1), 903, 2903(a), 3502(c)(1), and
3921, respectively.

*Former Justice specially assigned to the Superior Court.
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The trial court aptly set forth the relevant facts herein as follows:

In August of 2013, Elizabeth Varela, her husband José
Torres, and their son Joshua Torres lived at 3540 North Fifth
Street, Philadelphia. Joshua, who was twelve years old at the
time of the incident, is autistic. Ms. Varela and Mr. Torres own
rental properties in the North Philadelphia area. On August 10,
2013, Appellant and a woman came to their house on Fifth
Street. When they knocked at the door, Ms. Varela answered,
and the woman asked for Mr. Torres. Without being invited
inside, both individuals entered the home. They said they were
there to see the rental property, and were told the available
rental property was actually on Sixth Street. The two individuals
asked to go upstairs in Ms. Varela's home, but were told there
were no apartments there. The two then left with Mr. Torres to
view the rental property on Sixth Street.

When Mr. Torres took the two individuals to the apartment
on Sixth Street, they asked how soon it could be ready. Mr.
Torres told them that a tenant had just moved out, but he could
get it cleaned up in about an hour. Appellant then told Mr. Torres
that he would go get money, and bring it back to the apartment
while Mr. Torres remained there to clean up. Mr. Torres testified
that Appellant and the woman never returned to the apartment.

About an hour after her husband had left, Ms. Varela was
at home with her son and heard the door open. Appellant and
his female companion had entered through the front door, which
was closed but unlocked at the time. Ms. Varela asked them
why they were there, and the woman told her that they were
waiting for Mr. Torres to return so they could sign a lease. Ms.
Varela found this strange because they never signed leases at
their own home. Ms. Varela said she would call her husband, at
which point Appellant took a black gun out of his waistband. He
pushed her and “started cursing and asking for the money.”
Appellant placed the gun against Ms. Varela's temple and
continued to demand the money. He then began asking where
Ms. Varela's son was; she lied and told him her son was not in
the house. Appellant then went upstairs and told the woman to
watch Ms. Varela. Ms. Varela pushed the woman away and ran
upstairs to protect her son.

In one of the upstairs rooms, Appellant was pushing
Joshua Torres and pointing the gun at him. He continued to ask

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for the money, but Joshua did not respond. Joshua called for his
mother, who tried to pull him away from Appellant. While
holding Ms. Varela and her son at gunpoint, Appellant continued
to search around the room for money. He looked through
drawers and shelves in the room. On one shelf was a pair of
black pants with money inside them. Appellant put the pants
under his arm and asked where the rest of the money was. He
said it must be downstairs and started to push Joshua down the
stairs. Ms. Varela tried to get between them and told him not to
push her son.

When they were downstairs, Appellant continued to ask
where the money was, and started asking about a safe. Ms.
Varela testified that although the family owned a safe, it was
new and they had not yet opened it. Appellant then used a gray
tie strap to bind her wrists together. The woman took Joshua to
the basement and found the safe. When she told Appellant
about the safe in the basement, he began asking for the
combination. Ms. Varela told him she did not know the
combination, but it was in the pamphlet that came with the safe.
Appellant then kicked her, causing Ms. Varela to fall to the floor.
They put Ms. Varela's hands behind her back and started to tie
her son up with her. At this point, the woman opened the front
door and said to Appellant “we need to go now.” Appellant took
the pants with him and they both ran out the door. Ms. Varela
testified that Appellant had taken the pants with the money,
while the woman took her phone. When Mr. Torres returned to
his home, he found his wife and son tied up, and his son was
crying.

The Torres family's neighbor, Ronald Martin, observed
Appellant and a woman fleeing the Torres’ home as he was
heading to the store. Mr. Martin called the police and went to
assist the Torres family. When the police arrived, Mr. Martin
gave a description of the couple and stated in which direction he
had seen them running. After the suspects were apprehended by
police, Mr. Martin identified them as the individuals who had fled
the Torres’ home.

A radio call went out regarding the robbery and
descriptions of the suspects were given to police in flash
information. Officer Michael Edwards and his partner, Officer
Ortiz, patrolled the area for individuals matching the description.
Travelling eastbound on Allegheny Avenue, Officer Edwards
observed Appellant walking westbound on the sidewalk,

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matching the description of the suspect. When Appellant saw the
officers, he started to run, and Officer Edwards began chasing
him on foot. Appellant was carrying a bundle and tossed it aside
as he was running. It was later retrieved and identified as a pair
of pants with a large amount of cash in the pocket. Appellant
was apprehended by Officer Edwards and placed under arrest.

Mr. Torres testified that he has been in the rental business
for about 30 years. He has about twelve rental properties in
North Philadelphia. Mr. Torres testified that he received rent
payments in cash, because he’d had problems with bad checks
before, and generally kept that money in his house. There was
$7,713 in cash taken from the house that day.

Trial Court Opinion, filed 5/1/15, at 3-6 (citations to the Notes of Testimony

omitted).

Pertinent to this appeal, Appellant’s aggregate sentence included two

consecutive terms of ten (10) years to twenty (20) years in prison for his

kidnapping convictions, a consecutive term of four (4) years to eight (8)

years’ incarceration for the false imprisonment conviction pertaining to

twelve-year-old Joshua Torres, and a consecutive term of one (1) year to

two (2) years in prison for the false imprisonment conviction pertaining to

Elizabeth Varela (hereinafter collectively “the victims”).

Appellant timely filed a notice of appeal and complied with the trial

court’s order to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b). The trial court filed its Rule 1925(a) opinion

on May 1, 2015. In his appellate brief, Appellant presents the following

three issues for our review:

I. Was the evidence insufficient to support Appellant’s two
convictions for kidnapping, as a matter of constitutional law?

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II. If Appellant’s convictions for kidnapping were to stand, would
not the sentences imposed for false imprisonment be illegal
under the Double Jeopardy Clause, since the crime of false
imprisonment merges with the crime of kidnapping?

III. Did the trial court err in refusing to permit Appellant to
represent himself at trial, thus depriving him of his constitutional
right to self-representation, as well as his rule-based right under
Pa.R.Crim.P. 121?

Brief for Appellant at 3.

In considering Appellant’s initial contention the evidence was

insufficient to support his kidnapping convictions, we begin with our

standard of review:

The standard we apply when reviewing the sufficiency of
the evidence is whether viewing all the evidence admitted at trial
in the light most favorable to the verdict winner, there is
sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In applying the
above test, we may not weigh the evidence and substitute our
judgment for the fact-finder. In addition, we note that the facts
and circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant's guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
trier of fact while passing upon the credibility of witnesses and
the weight of the evidence produced is free to believe all, part or
none of the evidence. Furthermore, when reviewing a sufficiency
claim, our Court is required to give the prosecution the benefit of
all reasonable inferences to be drawn from the evidence.
However, the inferences must flow from facts and
circumstances proven in the record, and must be of such volume
and quality as to overcome the presumption of innocence and
satisfy the jury of an accused's guilt beyond a reasonable doubt.
The trier of fact cannot base a conviction on conjecture and

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speculation and a verdict which is premised on suspicion will fail
even under the limited scrutiny of appellate review.

Commonwealth v. Ovalles, 2016 WL 4035999, at *8-9 (Pa.Super. July 25,

2016) (citation omitted).

Appellant was convicted of kidnapping the victims.2 To sustain a

conviction for those crimes, the Commonwealth needed to prove the

following:

(a) Offense defined.-- Except as provided in subsection (a.1),
a person is guilty of kidnapping if he unlawfully removes another
a substantial distance under the circumstances from the place
where he is found, or if he unlawfully confines another for a
substantial period in a place of isolation, with any of the
following intentions:

(1) To hold for ransom or reward, or as a shield or
hostage.

(2) To facilitate commission of any felony or flight
thereafter.

(3) To inflict bodily injury on or to terrorize the victim or
another.

(4) To interfere with the performance by public officials of
any governmental or political function.

(a.1) Kidnapping of a minor.--A person is guilty of kidnapping
of a minor if he unlawfully removes a person under 18 years of
____________________________________________

2
We note that while the Criminal Complaint charged Appellant with the
crime of kidnapping generally, Counts 2 and 10 of the Criminal Information
specifically alleged Appellant kidnapped the victims with the intent to hold
them for ransom. However, the trial court’s jury charge pertained to
kidnapping with the intent to facilitate a felony. N.T. Trial, 7/10/14, at 166-
68. In light of this, Appellant indicated in his appellate brief he has not
presented any issues “relating to asportation, ransom, reward, shield or
hostage.” See Brief for Appellant at 19 n. 5.

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age a substantial distance under the circumstances from the
place where he is found, or if he unlawfully confines a person
under 18 years of age for a substantial period in a place of
isolation, with any of the following intentions:

(1) To hold for ransom or reward, or as a shield or
hostage.

(2) To facilitate commission of any felony or flight
thereafter.

(3) To inflict bodily injury on or to terrorize the victim or
another.

(4) To interfere with the performance by public officials of
any governmental or political function.

18 Pa.C.S.A. §§ 2901(a), (a.1).

The primary basis for Appellant’s sufficiency challenge is his contention

the Commonwealth failed to prove he confined the victims for a substantial

period in a place of isolation. This Court has stated “what is a ‘substantial

period’ in time can depend on the mental state of the victim. The fright that

can be engendered in 30 minutes can have the same debilitating effect on

one person as 30 hours may have on another.” Commonwealth v.

Hughes, 399 A.2d 694, 698 (Pa.Super. 1979). When considering what

qualifies as confinement in a place of isolation, this Court has held:

the concept is “not geographic isolation, but rather effective
isolation from the usual protections of society.” Commonwealth
v. Mease, 357 Pa.Super. 366, 516 A.2d 24, 26 (1986) (citation
omitted). “[O]ne's own apartment in the city can be a place of
isolation, ‘if detention is under the circumstances which make
discovery or rescue unlikely.’” Commonwealth v. Jenkins, 455
Pa.Super. 152, 687 A.2d 836, 838 (1996) (quotation omitted)
(emphasis in original) (holding that the appellant isolated the
victims where he entered the victims' home and held the child
victim at knifepoint when police arrived). The requirement that
the victim be confined in a place of isolation does not require

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that the victim be left alone; the fact that other people are
present does not necessarily negate the victim's isolation from
the usual protections of society. See Mease, supra (holding
that where the appellant confined the victim in the appellant's
basement, and appellant's friends were present, the evidence
was sufficient to demonstrate isolation for kidnapping purposes).

In re T.G., 836 A.2d 1003, 1008 (Pa.Super. 2003).

Appellant maintains he did not confine the victims to a place of

isolation for a substantial period as required by 18 Pa.C.S.A. §§ 2901

because their confinement was incidental to the robbery itself. See Brief for

Appellant at 21-23 citing Commonwealth v. Hook, 512 A.2d 718

(Pa.Super. 1986) (holding that while an hour may constitute a substantial

period, evidence was insufficient to establish the appellant confined his

victims in a place of isolation where the victims’ apartments were frequented

both by relatives and business contacts, a business was located directly

beneath the victims’ apartments, and an employee from the business was

expected momentarily). Appellant stresses that throughout the entire

incident, the victims’ home was unlocked, they were free to move about

because “at worst, it was only their hands which were bound[,]” and help

arrived within minutes after Appellant and his cohort fled, demonstrating

that the circumstances were not such that their discovery was unlikely. Brief

for Appellant at 25-26. We disagree.

In Commonwealth v. Rushing, 627 Pa. 59, 99 A.3d 416 (2014), our

Supreme Court detailed prior caselaw wherein the definition of “a place of

isolation” as it pertains to the crime of kidnapping was analyzed as follows:

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Based upon the statutory language, the history of the
crime of kidnapping, the Model Penal Code on which Section
1209(a) is based, and our Court's decisions interpreting the
kidnapping statute, we take this opportunity to reaffirm that, for
purposes of Pennsylvania's kidnapping statute, a “place of
isolation” is not geographic in nature, but contemplates the
confinement of a victim where he or she is separated from the
normal protections of society in a fashion that makes discovery
or rescue unlikely.

Our Commonwealth's courts have consistently applied this
definition to disparate circumstances, in varied challenges to
convictions under the kidnapping statute. For example, and as
noted above, in [Commonwealth v.]Housman[,604 Pa. 596,
986 A.2d 822 (2009)] and [Commonwealth v.]
Markman,[591 Pa. 249, 916 A.2d 586 (2007)] which both arose
in the context of the same underlying circumstances, our Court
concluded the place-of-isolation requirement was met when the
victim was bound and gagged and left alone in the living room of
a trailer, even though located in a busy trailer park in the early
evening. Similarly, in [Commonwealth v.] Mease,[516 A.2d
24 (Pa.Super. 1986) the Superior Court determined that the
defendant's basement constituted a “place of isolation” as the
victim, being confined there for several hours, beaten, stabbed,
and ultimately shot in the back of the head, had been confined
where discovery and rescue were unlikely and isolated from the
usual protections of society. 516 A.2d at 26. More recently, in
[Commonwealth v.] Jenkins,[687 A.2d 836 (Pa.Super. 1996)]
the Superior Court concluded that the victims were confined in a
place of isolation from rescue and the protections of society
where a 70–year–old woman and her 4–year–old great-grandson
were held at knifepoint inside the grandmother's home for five
hours, police had surrounded the residence, the victims were
unreachable and locked inside the home, and the fate of both
victims was exclusively in the hands of the defendant.

These decisions can be contrasted with the circumstances
in [Commonwealth v.] Hook,[512 A.2d 718 (Pa.Super. 1986)]
in which the victim, who resided in an apartment located above
a clothing store, opened the door expecting a dry cleaning
delivery, but, instead, was confronted by the defendant. After
the defendant threatened to rape the initial victim, placed his
hand over her mouth, told her to be quiet, and following a brief
struggle, she was able to escape from her assailant and enter an

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elderly neighbor's apartment, but was caught by the defendant.
The defendant threw both women onto a bed and again
verbalized his intent to rape the first victim, but passed out due
to intoxication before being able to act upon his threat.

The Superior Court in Hook determined the evidence was
insufficient to prove confinement in a place of isolation, as the
defendant's presence outside the victim's apartment made it
clear there was open access to the area, the one victim was
expecting a delivery from a dry cleaning service, the victims'
apartments were frequented by business associates and
relatives, an open business was located beneath the apartments,
and the police arrived at the scene three minutes after receiving
a telephone call from the clothing store. 512 A.2d at 720. The
Superior Court, therefore, determined that the mode of
confinement did not render discovery or rescue of the victims
unlikely, and found that the confinement was incidental to the
underlying offense of attempted rape.

While the circumstances before the above tribunals are
obviously disparate, the degree of isolation from discovery and
rescue and the usual protections of society remain the
touchstone in determining whether the statutory element of
confinement in a place of isolation is satisfied. Applying the facts
of this appeal to the definition of place of isolation, we have no
hesitancy in determining that, although imprisoned in their own
home, the victims were confined by Appellee in a place of
isolation.

Rushing, 627 Pa. at 74–75, 99 A.3d at 425–26. In Rushing, our Supreme

Court ultimately held that the confinement of the victims was not merely

incidental to the other crimes committed where the victims had been tightly

bound in their own home and rendered unable to leave the premises or seek

rescue while other victims were murdered therein.

In the matter sub judice, the evidence when viewed in a light most

favorable to the Commonwealth as verdict winner reveals that Appellant

bound the hands of the victims in their home while he and his cohort swore

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at them, held a gun to their heads, and pushed and shook Joshua while

ordering the child and Ms. Varela to tell him where the money was. N.T.

Trial, 7/9/14, at 64-67, 70. Before tying Ms. Varela’s hands behind her

back, Appellant kicked her in the stomach causing her to fall to the floor.

Id. at 71. After taking thousands of dollars, Appellant fled the premises,

leaving the victims bound in the home. Id. at 72. Appellant also took Ms.

Varela’s phone from her at the outset in an effort to prevent her from calling

for assistance. Id. at 73.

Appellant posits the facts of Hook, supra, concerned a “similarly

insubstantial and incidental confinement of the victims,” which “together

with the openness of the venue to rescue, precluded conviction of the

defendant of kidnapping.” Brief for Appellant at 22. Appellant stresses the

fact that the victims’ residence was located in close proximity to other

houses and that the door was unlocked to support the proposition that the

home was accessible to the public; however, the victims’ private home in a

residential neighborhood cannot be viewed as accessible to the public merely

because the front door was unlocked while they were inside. 3 Also, Ms.

Varela testified that she was not expecting visitors when Appellant entered

____________________________________________

3
The front door was equipped with an alarm, and although it had been
turned off at the time, it would have alerted the victims that someone had
entered were it activated.

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her residence uninvited and that she and her husband do not negotiate

leases in their home. N.T. Trial, 7/9/14, at 58-63.

Moreover, while the victims’ home was located in close proximity to

others and Mr. Torres returned shortly after Appellant and his cohort left,

this does not negate Appellant’s vicious criminal acts, nor does the unlocked

door require a finding that the victims were not isolated from any chance of

outside discovery and aid. See Houseman, Markman and Jenkins,

supra.

The last time the victims saw Mr. Torres, he was leaving to show

Appellant and his cohort an apartment, and the time at which he was to

return was unknown to them. In fact, Mr. Torres testified he returned when

he received a phone call to do so. N.T. Trial, 7/9/14, at 123. In addition, he

indicated to Appellant and his cohort that he would need about an hour to

clean the apartment which the duo falsely expressed interest in renting.

Therefore, when Appellant barged into the victims’ home, he was operating

under the assumption he had ample time to find the money stored there. As

such, rather than being incidental to the robbery, Appellant’s confinement of

the victims was with the intent to commit crimes and to facilitate his escape.

See Rushing, 627 Pa. at 77, 99 A.3d at 427.

In addition, rather than excuse Appellant’s criminal behavior, the fact

that Mr. Martin timely gained access to the home and rescued the victims

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despite Appellant’s blatant steps to prevent a prompt rescue so as to

effectuate his felonies and flight may have saved their lives.

Appellant further claims that he did not immobilize the victims

completely in that only their hands were tied and they had not been gagged

or otherwise prevented from screaming for help. However, the victims were

physically restrained and at times separated at gunpoint on different floors

of their home. When Appellant initially confronted Joshua, the child was

alone upstairs, and while Appellant tied Ms. Varela’s hands behind her back

with a plastic zip tie and beat her on the main floor, his cohort, armed with a

gun, forced Joshua to the basement. N.T. Trial, 7/9/14, at 68-72, 107.

Although her mouth was not covered, it is significant that Appellant

prevented Ms. Varela from utilizing her phone to call for help. Indeed, Mr.

Torres testified that he returned to find Ms. Varela’s and Joshua’s hands still

bound with plastic ties. Id. at 123-26. In light of the foregoing, Appellant

held the fate of the victims in his exclusive control until he and his cohort

left the home and help subsequently arrived. See Rushing, supra, 627

Pa. at 76, 99 A.3d at 426.

Moreover, upon first seeing his wife, Mr. Torres remarked she was

“scared” “terrorized” and “crying.” N.T. Trial, 7/9/14, at 126. The traumatic

circumstances especially affected Joshua who was “scared,” “crying,” left

“paralyzed” and “shaking and crying.” Id. at 91-92, 123, 125-26 151. Such

acute distress clearly affected his ability to seek help for his mother and him,

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and further confirms the victims were placed in significant fear for a

“substantial period” in a “place of isolation” for purposes of the kidnapping

statute. As such, we find the Commonwealth presented sufficient evidence

to sustain Appellant’s kidnapping convictions. See 18 Pa.C.S.A. § 2901(a),

(a.1).

Appellant next posits his sentences for false imprisonment are illegal in

that they should have merged with his sentences for the kidnapping

convictions. “A claim that the trial court imposed an illegal sentence by

failing to merge sentences is a question of law.” Commonwealth v. Duffy,

832 A.2d 1132, 1137 (Pa.Super. 2003). Accordingly, our standard of review

is de novo and our scope of review is plenary. See Commonwealth v.

Brougher, 978 A.2d 373, 377 (Pa.Super. 2009).

At the outset, we note that Appellant did not raise this issue at the

time of sentencing or in a post-sentence motion, but rather he asserted it for

the first time in his Pa.R.A.P. 1925(b) statement; however, a claim of an

illegal sentence based on merger of the underlying convictions cannot be

waived. Commonwealth v. King, 786 A.2d 993, 995 (Pa.Super. 2001). In

this regard, the legislature has provided that:

No crimes shall merge for sentencing purposes unless the crimes
arise from a single criminal act and all of the statutory elements
of one offense are included in the statutory elements of the
other offense. Where crimes merge for sentencing purposes, the
court may sentence the defendant only on the higher graded
offense.

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42 Pa.C.S.A. § 9765. “The statute's mandate is clear. It prohibits merger

unless two distinct facts are present: 1) the crimes arise from a single

criminal act; and 2) all of the statutory elements of one of the offenses are

included in the statutory elements of the other.” Commonwealth v.

Baldwin, 604 Pa. 34, 39, 985 A.2d 830, 833 (2009) (emphasis added).

Under Section 9765, even if a single set of facts comprises both crimes, “if

the crimes themselves can result in committing one without committing the

other, the elements in general are different, and the legislature has said

merger cannot apply.” Commonwealth v. Coppedge, 984 A.2d 562, 564

(Pa.Super. 2009) (italics omitted).

We have reproduced the elements of the crime of kidnapping, supra,

and the crime of false imprisonment is defined, in relevant part, as follows:

(a) Offense defined.--Except as provided under subsection (b)
or (c), a person commits a misdemeanor of the second degree if
he knowingly restrains another unlawfully so as to interfere
substantially with his liberty.

(b) False imprisonment of a minor where offender is not
victim's parent.--If the victim is a person under 18 years of
age, a person who is not the victim's parent commits a felony of
the second degree if he knowingly restrains another unlawfully
so as to interfere substantially with his liberty.

18 Pa. C.S.A. § 2903.

Appellant contends that although the trial court’s instructions to the

jury properly related the statutory definitions of kidnapping and false

imprisonment, the court erroneously determined that the crimes did not

merge for sentencing purposes because a different mens rea is necessary for

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each. Specifically, the trial court found that the false imprisonment statute

requires an unlawful restraint to be undertaken “knowingly” while the

kidnapping statute requires “intentional” acts. Brief for Appellant at 31 See

also Trial Court Opinion, filed 5/1/15, at 18-20. Appellant cites to 18

Pa.C.S.A. § 302(a) and this Court’s decision in Commonwealth v. Nero, 58

A.3d 802, 809 (Pa.Super. 2012) for the proposition that knowledge is a

lesser included mens rea of intent. Brief for Appellant at 31-32. We further

note the trial court also determined that because the crimes arose from the

same criminal act, there was no issue before it as to the element of merger.

Trial Court Opinion, filed 5/1/15, at 18.

Upon our review of the record, we disagree with the trial court’s

determination that the kidnapping and false imprisonment convictions arose

from the same criminal act and that, therefore, there was no need to

analyze merger, for “our legislature has determined that even if there is only

a single criminal act, unless all of the statutory elements of an offense are

included in the statutory elements of another offense, there is no merger

under 42 Pa.C.S.A. § 9765. See Coppedge, supra, 984 A.2d at 565. We

find that while Appellant’s crimes occurred during the same criminal episode,

he engaged in distinct acts that constitute separate crimes for which he was

sentenced accordingly. In this regard, this Court’s holding in

Commonwealth v. Pettersen, 49 A.3d 903 (Pa. Super. 2012) is

instructive:

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When considering whether there is a single criminal act or
multiple criminal acts, the question is not whether there was a
break in the chain of criminal activity. The issue is whether the
actor commits multiple criminal acts beyond that which is
necessary to establish the bare elements of the additional crime,
then the actor will be guilty of multiple crimes which do not
merge for sentencing purposes.

Id. at 912 (quotations and citations omitted).

An examination of the Criminal Complaint, the Criminal Information

and the evidence reveals that Appellant knowingly entered the victims’ home

armed and uninvited after which he deceitfully gained control over them with

the guise of negotiating a lease to obtain full access to the residence and the

cash stored therein. Thus, Appellant’s substantial interference with the

victims’ liberty was effected upon Appellant’s entry and the crime of false

imprisonment was completed. 18 Pa.C.S.A. § 2903.

The kidnapping statute contains a time and space dimension in that it

requires proof that the victims had been confined for a substantial period in

a place of isolation. 18 Pa.C.S.A. 2901. As was discussed supra, the

evidence established Appellant and his cohort beat, threatened, separated

and held the victims at gunpoint. He confined them by force and threats of

violence if they did not turn over their money by holding a gun to their

heads and physically restrained them for a substantial period of time in a

place of isolation by binding their hands and confiscating Ms. Varela’s cell

phone. Thus, Appellant committed multiple acts beyond what was necessary

to establish the elements of either kidnapping or false imprisonment as to

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both victims. See Commonwealth v. Kitchen, 814 A.2d 209, 215

(Pa.Super. 2002) (finding an appellant’s convictions for sexual abuse of

children for photographing sexual acts and for possession of child

pornography did not merge because the act of taking the photographs was

separate from the possession of them).

Appellant should not receive a “volume discount” for his crimes. See

Pettersen, 49 A.3d at 912 (stating “Appellant is not entitled to a volume

discount for these crimes simply because he managed to accomplish all the

acts within a relatively short period of time”); therefore, we find the trial

court did not err in finding that false imprisonment did not merge with

kidnapping for sentencing purposes. Wilson v. Transport Ins. Co., 889

A.2d 563, 577 n. 4 (Pa.Super. 2005) (stating this Court may affirm the trial

court on any valid basis).

Lastly, Appellant contends he is entitled to a new trial because the trial

court erroneously denied him his Sixth Amendment right to represent

himself. Within this issue, Appellant presents five subclaims:

A. The trial court utilized an improper standard for decision.

B. The trial court improperly deprived Appellant of his right to
represent himself because of Appellant’s insistence that the
court-ordered mental competency examination be recorded.

C. The trial court improperly deprived Appellant of his right to
self-representation on grounds of allegedly disruptive behavior.

D. The trial court incorrectly suggests that the foregoing
constitutional analysis requires a showing of prejudice.

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E. The appropriate remedy should include restoration of
Appellant’s right to consider the Commonwealth’s plea offer, as
well as the right to represent himself at trial.

Brief for Appellant at 36, 38, 44, 51, 54 (unnecessary capitalization

omitted).

Appellant’s first and fourth subclaims attack the standard of proof

applied by the trial court in its Rule 1925(a) opinion. Appellant does not

contend, and the record does not reveal, that the trial court utilized a legally

incorrect standard in actually ruling on Appellant’s request to represent

himself at the time that request was made. Moreover, our disposition of

Appellant’s third issue rests upon different grounds than that discussed by

the trial court in its opinion. See Wilson, supra. Similarly, we will not

address Appellant’s final subclaim as it would be relevant only if we were to

find that he is entitled to a new trial. As such, the focus of our discussion

will be upon Appellant’s arguments in support of subclaims B and C. To

provide a frame of reference in which to do so, we necessarily summarize

the procedural history surrounding Appellant’s request to represent himself.

In October of 2013, the trial court appointed William J. Ciancaglini,

Esq., to represent Appellant. In early November of 2013, Appellant filed a

pro se motion for bail reduction, and a hearing was conducted on December

4, 2013. At that proceeding, the trial court initially informed Appellant that

he could present motions and cautioned that he must do so only through his

counsel. N.T. Hearing, 12/4/13, at 4. Appellant disregarded this directive

as the proceeding progressed by attempting to litigate pro se motions

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challenging the trial court’s subject matter jurisdiction and the validity of the

laws of this Commonwealth. Id. at 14-18. Appellant repeatedly ignored the

trial court’s instructions and denial of his claims and persisted in arguing his

legal positions. Id. at 17-19. Appellant also continuously insisted that his

attorney was not representing him and stated that he did “not consent to

these procedures.” Id. at 19-20. Appellant further accused the trial court of

“arguing law from the bench….” Id. at 20.

Near the end of the hearing, Appellant asked the trial court, “So you

[sic] saying that I can’t represent myself in my person, sir?” Id. at 23. The

trial court replied that Appellant “may be able to represent [himself,]” but

that the court must first determine if Appellant was “competent” to do so.

Id. The trial court informed Appellant it would conduct a hearing on January

10, 2014, to address the issue of Appellant’s self-representation, and

suggested that, in the meantime, Appellant consult with his counsel to clarify

what may happen were he to choose to represent himself. Id. at 23-24.

When the trial court attempted to conclude the hearing, Appellant again

questioned the court’s jurisdiction. Id at 24. Another lengthy exchange

between Appellant and the trial court ensued, during which the court

attempted to answer Appellant’s questions about jurisdiction, despite

Appellant’s challenges to the court’s responses. Id. at 24-28. Following this

dialogue, Attorney Ciancaglini requested a psychiatric evaluation of

Appellant, and the trial court ordered that such an examination should be

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conducted before the January 10, 2014, hearing to determine if Appellant

would be competent to represent himself at trial. Id. at 28-29.

The January 10, 2014, hearing was continued until February 19, 2014.

Prior thereto, Appellant met with Dr. John S. O’Brien for his psychiatric

evaluation. Notwithstanding, Appellant failed to cooperate with the

evaluation and, as such, Dr. O’Brien was unable to issue an opinion

regarding whether Appellant was competent to represent himself.4 See N.T.

Hearing, 2/19/14, at 2-3. The trial court again informed Appellant that if he

still wished to represent himself, he would first have to cooperate with the

psychiatric evaluation to determine his competency to do so before the court

would conduct a colloquy to ascertain whether his desire to waive his right to

counsel was knowing, intelligent, and voluntary. Id. at 5. Nevertheless,

Appellant insisted that the trial court should question him without an

evaluation; the trial court denied this request. Id. at 5-6.

Appellant then asked that his evaluation with Dr. O’Brien be recorded,

but the trial court stated that, “we don’t tape these sessions. [The doctor]

takes notes and he writes up a report. That’s the way it works.” Id. at 7.

In response, Appellant contended that the court lacked “subject matter

jurisdiction” and was improperly “practicing law from the bench….” Id. at 7.

Appellant concluded by stating that he was “not going to take part in this

____________________________________________

4
Appellant does not challenge his competency to stand trial herein.

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collusion that’s going on….” Id. at 8. Later in the proceeding, Appellant

again objected and argued that the laws were invalid because there was no

“enactment clause.” Id. at 11. The trial court attempted to explain to

Appellant that it had jurisdiction and that the laws are valid, but Appellant

continued to argue his contrary position and claim that the court was

“practic[ing] law from the bench….” Id. at 11-14.

When Appellant then began arguing the merits of several pro se

motions he had filed, the trial court reiterated that if he wanted to represent

himself, he would have to cooperate with the psychiatric evaluation. Id. at

15-16. Appellant replied that if the evaluation was “not on record, [he

would] not tak[e] part [in] this collusion….” Id. at 16. The proceeding

ended with the following exchange:

THE COURT: [Appellant], it’s not going to be tape recorded.
[The doctor is] going to take notes.

So this is the question: Are you going to cooperate with
Dr. O’Brien?

[APPELLANT]: Sir, I’m not going to take part in these
proceedings. I’m challenging subject matter jurisdiction, and I
don’t think that this Court has subject matter jurisdiction.

THE COURT: [Appellant], you’re not going to be able to
represent yourself since you’re challenging the subject matter
jurisdiction and you’re not agreeing to cooperate with Dr. O’Brien
in having the evaluation. So Mr. Ciancaglini will be representing
you at trial. If you change your mind --

[APPELLANT]: Your Honor, I object to Mr. Ciancaglini
representing me. He was ineffective at the preliminary hearing,
and he’s ineffective right now.

THE COURT: You can raise all those issues on appeal, should you
be convicted, for his ineffectiveness that you claim. But I’m

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going to tell you something, [Appellant], so it’s clear. If you
want to represent yourself, you cooperate with Dr. O’Brien.

If you don’t cooperate with Dr. O’Brien so I can get a
psychiatric report … to help me determine whether you’re
competent to represent yourself, then Mr. Ciancaglini will
represent you, and that’s how we’re going to proceed.

So if you decide you want to cooperate with Dr. O’Brien
where he will take notes like he did in the session that he had
with you and give me a report based on your answering all his
questions, that’s fine. If you’re not going to do that, the trial
date remains, and Mr. Ciancaglini will represent you.

[APPELLANT]: So, sir, you’re just going to overrule my
objection?

THE COURT: Yes.

…

[APPELLANT]: You’re going to proceed with these proceedings
and overrule my objections to lack of subject matter jurisdiction,
sir?

THE COURT: Yes.

…

[APPELLANT]: I also have a stated habeas pending, too, sir, on
these proceedings, too, challenging subject matter jurisdiction
and your behavior.

THE COURT: So noted. See you in May for the motions and in
June for the trial.

Id. at 16-19 (emphasis added). As stated previously, Appellant’s jury trial

was held in July of 2014, at which time he was represented by Attorney

Ciancaglini.

Presently, Appellant avers that he had been denied his Sixth

Amendment right to represent himself. We begin by acknowledging:

A criminal defendant's right to counsel under the Sixth
Amendment includes the concomitant right to waive counsel's

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assistance and proceed to represent oneself at criminal
proceedings. Faretta v. California, 422 U.S. 806, 95 S.Ct.
2525, 45 L.Ed.2d 562 (1975); Commonwealth v. Szuchon,
506 Pa. 228, 484 A.2d 1365 (1984). The right to appear pro se
is guaranteed as long as the defendant understands the nature
of his choice. Faretta, 422 U.S. at 835, 95 S.Ct. 2525. 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 Commonwealth v. Starr, 541 Pa. 564,
664 A.2d 1326, 1335 (1995) (holding that a defendant must
demonstrate a knowing waiver under Faretta). See also
Commonwealth v. McDonough, 571 Pa. 232, 812 A.2d 504,
508 (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.)

The right to waive counsel's assistance and continue pro se
is not automatic however. Rather, only timely and clear requests
trigger an inquiry into whether the right is being asserted
knowingly and voluntarily. See Faretta, 422 U.S. at 836, 95
S.Ct. 2525 (noting that the defendant sought to represent
himself by way of a clear and unequivocal declaration asserted
weeks before trial). See also Commonwealth v. Grazier, 552
Pa. 9, 713 A.2d 81, 82 (1998) (holding that a Rule 121 colloquy
is required only in response to a timely and unequivocal
invocation of the right to proceed pro se). Thus, the law is well
established that “in order to invoke the right of self-
representation, the request to proceed pro se must be made
timely and not for purposes of delay and must be clear and
unequivocal.” Commonwealth v. Davido, 582 Pa. 52, 868 A.2d
431, 438 (2005), cert. denied, 546 U.S. 1020, 126 S.Ct. 660,
163 L.Ed.2d 534 (2005).

Commonwealth v. Smith, 69 A.3d 259, 266 (Pa.Super. 2013) (quoting

Commonwealth v. El, 602 Pa. 126, 977 A.2d 1158 (2009) (footnotes

omitted)).

Appellant initially contends the trial court erred in denying him his

right to self-representation without conducting the requisite colloquy based

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“merely” upon his insistence that his mental health examination be recorded

and his various legal arguments. Brief for Appellant at 44. However, our

review of the record belies this assertion, for the trial court denied

Appellant’s request to represent himself both based upon his refusal to

participate in the mental health evaluation and due to his disruptive and

disobedient behavior.

Appellant does not challenge the trial court’s order issued following the

request of defense counsel for mental health evaluation to assess whether

he was competent to represent himself, and we see no error in its decision

to assess Appellant’s competency before conducting the requisite colloquy to

ascertain his understanding of the decision to proceed pro se. Indeed,

Appellant acknowledges that in Indiana v. Edwards, 554 U.S. 164, 128

S.Ct. 2379 (2008), “the Supreme Court held that the mere fact that a

defendant may be competent to stand trial does not foreclose the possibility

that he may not possess sufficient competence to conduct his own defense.”

Brief for Appellant at 38 (citing Indiana, 544 U.S. at 174, 128 S.Ct. at

2386) (emphasis in original). Appellant also quotes the following portion of

the Indiana decision:

[T]he Constitution permits judges to take realistic account of the
particular defendant's mental capacities by asking whether a
defendant who seeks to conduct his own defense at trial is
mentally competent to do so. That is to say, the Constitution
permits States to insist upon representation by counsel for those
competent enough to stand trial under Dusky [v. United
States, 362 U.S. 402 (1960),] but who still suffer from severe
mental illness to the point where they are not competent to
conduct trial proceedings by themselves.

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Brief for Appellant at 39 (quoting Indiana, 544 U.S. at 177-78, 128 S.Ct. at

2387-88 (footnote omitted)).

Appellant contends Indiana is inapplicable to his case in that it

creates a “narrow exception” to the right of self-representation that applies

only when “the defendant is ‘seriously mentally ill’ and thereby not mentally

‘competent’ to conduct his own defense….” Brief for Appellant at 40.

Appellant concedes the trial court was unable to make a determination

regarding his competency because he refused to participate in the

psychiatric evaluation, but he maintains his refusal to do so was premised

solely on the trial court’s denial of his request for the evaluation to be

recorded despite the fact that Dr. O’Brien, expressed a clear willingness to

go forward with a recorded examination. Id.

Notably, Appellant cites to no legal authority in support of his

suggestion that the trial court acted outside of its discretion by declining his

demand to have the mental health evaluation recorded. Moreover, as stated

previously, defense counsel requested the psychiatric evaluation at the

outset, and at no point in making that request did defense counsel or

Appellant indicate that the latter would participate only if the session were

recorded. Instead, Appellant first made this demand in his meeting with Dr.

O’Brien, and then he refused to participate when the doctor informed him

that his request would have to be “transmit[ted] … to the court[.]” Dr.

O’Brien’s Mental Health Evaluation Report, 1/16/14, at 2. Therefore, even if

we find Appellant’s request had been reasonable, it was arguably untimely.

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Additionally, the record demonstrates that Appellant told Dr. O’Brien that he

wanted the recording made to protect his confidentiality.

Moreover, while Appellant contends that Dr. O’Brien’s “obviously

favorable first impression” should have been afforded some weight in the

court’s competency determination, Appellant’s Brief at 41, due to Appellant’s

refusal to cooperate, Dr. O’Brien ultimately was “not able to obtain sufficient

information to render an opinion regarding diagnosis or competency to stand

trial with any reasonable medical certainty.” See Dr. O’Brien’s Mental

Health Evaluation Report, 1/16/14, at 2. The trial court reiterated to

Appellant that in order for him to represent himself, he would need to

participate in the evaluation to enable the court first to determine his

competency, yet Appellant continued to insist, without any explanation, that

he would not participate in the evaluation unless it was recorded. Under

these circumstances, Appellant has not convinced us that the trial court

erred by denying his request to have the evaluation recorded, nor has he

demonstrated that the trial court improperly considered that refusal.

In Appellant’s next subclaim, he contends that the trial court erred by

denying his request to represent himself based on his “allegedly disruptive

behavior.” Brief for Appellant at 44. In doing so, the trial court cited to

Commonwealth v. Africa, 466 Pa. 603, 622, 353 A.2d 855, 864 (1976)

wherein our Supreme Court recognized the power of the trial court to control

a defendant’s conduct and warned “[m]isconcuct by defendant can result in

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waiver of both his right to represent himself and his right to remain in the

courtroom during his trial.” The Africa Court further instructed that:

Potentially disruptive defendants, like all defendants, have the
right to represent themselves if counsel is validly waived.
Whenever a defendant seeks to represent himself, and
particularly when he may be disruptive, standby counsel should
be appointed. The court should explain to the defendant the
standards of conduct he will be expected to observe. If the
defendant misbehaves, he should be warned that he will be
removed from the court, his right to represent himself will be
considered waived, and the trial will continue in his absence with
standby counsel conducting the defense. If the defendant again
misbehaves, these measures should be taken. The defendant
must be made to realize that his disruptive tactics will result only
in his exclusion from the courtroom. His case will be tried
according to law, in an attempt to do justice, whether he
cooperates or not.

Id. at 864.

Appellant contends his conduct was not nearly as disruptive as the

defendants’ behavior in Africa, which ultimately led to their being bound

and gagged, or as that addressed in Illinois v. Allen, 397 U.S. 337, 90

S.Ct. 1057 (1970) wherein the defendant, inter alia, spoke to the court in an

extremely threatening and abusive manner, disregarded the court’s

warnings to cease his behavior, and invited the court to shackle him and

tape his mouth. Allen, 397 U.S. at 339-40, 90 S.Ct. at 1059. Appellant

stresses that in failing to afford him an opportunity to begin to represent

himself, “subject to good behavior during the course of that endeavor” the

trial court violated his constitutional rights. Appellant’s Brief at 50-51.

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As the aforementioned excerpts from the Notes of Testimony reveal,

the trial court denied Appellant’s request to proceed pro se based upon his

utter disregard for the authority of the court and its process. Indeed,

Appellant understates the severity of his disruptive conduct during this ‘test

run’ opportunity to proceed pro se. As discussed in detail supra, Appellant

continuously and unabatedly interrupted and argued with the trial court,

disregarded the court’s rulings and warnings to cease his contemptuous

behavior, and directed derogatory comments to the judge, the prosecutor,

and his defense counsel. He incessantly objected and repeated already

ruled-upon arguments and threatened to refuse to participate in the

proceedings altogether when the trial court’s rulings were unfavorable to

him. He ignored the trial court’s reasonable attempts to explain its rulings,

as well as the court’s directives regarding when to speak and when to desist.

Additionally, we cannot ignore the fact that the trial court essentially

permitted Appellant to represent himself, with little to no participation by

Attorney Ciancaglini, throughout the majority of the December 2013 and

February 2014 proceedings. Appellant’s behavior when acting on his own

behalf at these pretrial proceedings reasonably was considered by the trial

court in determining if he was effectively waiving his right to represent

himself at trial. While not dispositive of the court’s ruling on Appellant’s

request to proceed pro se, the fact that Appellant’s disruptive behavior

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continued once his jury trial began supports suggests the trial court’s

concerns were well-founded.5

In light of the record, we conclude that Appellant’s disobedient and

disruptive behavior, in conjunction with his refusal to participate in a mental

health evaluation, constituted an effective waiver of his right to represent

himself. Thus, he is not entitled to a new trial.

Judgment of sentence affirmed. .

Judge Dubow joins the memorandum.

P.J.E. Bender files a Dissenting Opinion.

____________________________________________

5
Some of Appellant’s defiant conduct on the first day of trial included:
objecting to the “proceedings as being fraudulent,” N.T. Trial, 7/8/14, at 7;
demanding to see the “oath of office” of the court,” Id. at 8; continuously
objecting to Attorney Ciancaglini’s representing him, claiming he had never
seen counsel before, Id. at 13-15; reiterating his jurisdictional challenge
(this time arguing the court was “acting on admiralty and maritime”
jurisdiction), Id. at 11; requesting the prosecutor “be sworn,” Id. at 9;
refusing to speak or interact with his counsel, despite repeated efforts by
Attorney Ciancaglini, Id. at 16; objecting, throughout the proceeding, to
comments by the trial court, prosecutor, or Attorney Ciancaglini, Id. at 11,
12, 13, 15, 16, 39, 44; and ignoring the court’s command to be quiet,
instead replying: “I don’t have anything to do with this [jury] selection and I
don’t consent to it or this jury and I do not consent to you.” Id. at 20.
Appellant’s contentious behavior continued on the second day of trial at
which time, in the presence of the jury, he began repeatedly objecting to
comments by his attorney and the trial court, and claimed the court was
“violating all the rules and regulations.” Id. at 6. As a result, the jury had
to be excused. Id. Appellant then reiterated many of the aforesaid
arguments, and the trial court continued to explain to him those objections
were overruled. Id. at 10-21. When the trial court attempted to quiet
Appellant, he persisted, claiming that the court “kidnapped” him and was
“holding [him] at gunpoint with the sheriff right here.” Id. at 9.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/16/2016

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