J-A20021-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RONALD PAUL WALLACE
Appellant No. 1486 WDA 2015
Appeal from the Judgment of Sentence Entered October 7, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at Nos: CP-02-CR-0004199-2014 and CP-02-CR-0006333-
2014
BEFORE: BOWES, STABILE, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED DECEMBER 23, 2016
Appellant, Ronald Paul Wallace, appeals from the October 7, 2015
judgment of sentence imposing an aggregate seven to fourteen years of
incarceration followed by eleven years of probation as a result of his
conviction for multiple counts of terroristic threats, harassment, stalking,
and intimidation of a witness.1 We affirm.
The aforementioned offenses arose from two arrests, the first on
March 4, 2014 and the second on April 16, 2014. Appellant’s jury trial
commenced on May 27, 2015 and the jury returned guilty verdicts on May
29, 2015. The trial court imposed sentence on July 15, 2015 and Appellant
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18 Pa.C.S.A. §§ 2706, 2709, 2709.1, and 4952, respectively.
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filed a timely post-sentence motion that did not include the issue before us
on appeal. The trial court entered an amended judgment of sentence on
October 7, 2015. This timely appeal followed. Appellant raises a single
issue for our review:
Did the trial court deprive [Appellant] of his absolute,
constitutional right to testify in his own defense and of his right
to counsel when, after conducting a colloquy in which [Appellant]
clearly and unequivocally stated that it was his counseled
decision to testify, it advised him that it had ‘yet to see
testimony from a defendant work out well…,’ ultimately
persuading [Appellant] not to testify at all?
Appellant’s Brief at 8.
Appellant believes the trial court violated Appellant’s rights under the
United States and Pennsylvania Constitutions by persuading Appellant not to
testify on his own behalf. Criminal defendants have a right to testify on their
own behalf under the Fifth, Sixth, and Fourteenth Amendments to the United
States Constitution. Rock v. Arkansas, 483 U.S. 44 (1987). “The
necessary ingredients of the Fourteenth Amendment’s guarantee that no one
shall be deprived of liberty without due process of law include a right to be
heard and to offer testimony[.]” Id. at 51. “The right to testify is also
found in the Compulsory Process Clause of the Sixth Amendment, which
grants a defendant’s right to call ‘witnesses in his favor,’ a right that is
guaranteed in the criminal courts of the States by the Fourteenth
Amendment.” Id. “The opportunity to testify is also a necessary corollary
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to the Fifth Amendment’s guarantee against compelled testimony.” Id. at
52.
Likewise, Article 1, § 9 of the Pennsylvania Constitution explicitly
guarantees a criminal defendant’s right to testify at trial. PA. CONST. ART.1,
§ 9 (“In all criminal prosecutions the accused hath a right to be heard by
himself and his counsel[.]”); Commonwealth v. Jermyn, 533 A.2d 74 (Pa.
1987). The trial court need not conduct a colloquy to determine the validity
of a defendant’s waiver of that right. Commonwealth v. Todd, 820 A.2d
707, 712 (Pa. Super. 2003), appeal denied, 833 A.2d 143 (Pa. 2003).
For context, we quote the entire exchange that gave rise to the issue
on appeal:
THE COURT: Mr. Wallace, the time is fast approaching
that the defense will start its case and I need to talk to you
about your rights.
You understand, sir, that you have both the right to
remain silent and not say anything or provide any testimony in
[sic] your own behalf as well as the right to provide testimony at
this trial.
Do you understand that?
THE DEFENDANT: Yes.
THE COURT: And have you had an opportunity to ask him
any and all questions that you have about those rights?
THE DEFENDANT: Yes.
THE COURT: And has he answered all those questions for
you fully and completely?
THE DEFENDANT: Yes.
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THE COURT: Sir, do you need any additional time to
speak with Mr. Cotton about whether or not you wish to testify?
THE DEFENDANT: No.
THE COURT: And I am assuming that Mr. Cotton provided
you with his best advice on whether or not you should testify in
this case?
THE DEFENDANT: Yes.
THE COURT: Sir, have you made a decision here today
about whether or not you wish to provide testimony or remain
silent?
THE DEFENDANT: To testify.
THE COURT: So, sir, are you under the influence of any
medication, drugs or alcohol that would affect your ability to
make this decision?
THE DEFENDANT: No.
THE COURT: Sir, do you have any mental or physical
illness or infirmity that would impair your ability to make this
decision?
THE DEFENDANT: No.
THE COURT: Has anyone forced, threatened, coerced or
promised you anything to make this decision?
THE DEFENDANT: No.
THE COURT: Do you understand, sir, if you provide
testimony in this case on direct examination by Mr. Cotton that
you will also be subject to cross-examination by Mr. Kelly?
THE DEFENDANT: Yes.
THE COURT: Do you understand that if there are certain
crimes in your background, certainly crimes of falsehood, that
those would be crimes that the jury will be apprised of during
your cross-examination?
THE DEFENDANT: Yes.
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THE COURT: And do you understand that you will not be
able to indicate to Mr. Kelly during cross-examination that you
don’t wish to answer his questions?
THE DEFENDANT: Yes.
THE COURT: Does anybody else have any questions for
him with regard to the right to testify?
MR. KELLY: No, Your Honor.
MR. COTTON: No, Your Honor.
THE COURT: Mr. Wallace, it is clearly your decision. I
have to tell you that in the six years I have sat in this seat
in this division that I have yet to see testimony from a
defendant work out well, but that is entirely your call, and
I am sure that your attorney has probably told you that
same thing, but it is up to you whether or not you want to
do it.
As long as you understand that you have the right to do it
and the right not to do it, it is your call. Not a single person in
here can influence that other than your decision. Okay?
THE DEFENDANT: All right.
THE COURT: Sir, you now understand that you also have
the right to call character witnesses?
THE DEFENDANT: Yes.
THE COURT: Have you talked to Mr. Cotton about
character witnesses?
THE DEFENDANT: Yes.
THE COURT: And do you need additional time to speak
with Mr. Cotton about character witnesses?
THE DEFENDANT: I think we need a couple more minutes
to talk.
THE COURT: Take a couple minutes. So you have had
some additional time to speak to your counsel about character
witnesses?
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MR. COTTON: Your Honor, we would actually like to
backtrack to testify.
THE COURT: Okay.
THE DEFENDANT: Well, Your Honor, I trust your
experience.
THE COURT: I don’t want you to base it on my
experience, Mr. Wallace.
THE DEFENDANT: No. Let me finish –
THE COURT: It has to be your decision.
THE [DEFENDANT]: It is, right, but, you know, based on
what my attorney says and, you know, you did get – you gave
me something to think about and, you know, I just – you know,
I think it might be in my best interest just to follow the advice of
my attorney and that would be to not testify.
THE COURT: Is this of your own free will?
THE DEFENDANT: Yes.
THE COURT: Voluntarily, nobody is forcing, threatening,
coercing you or promising you anything?
THE DEFENDANT: No.
THE COURT: It has to be your own call. I can just tell you
what I have seen. I am sure that Mr. Cotton is telling you the
same thing that he has seen, but it is ultimately your decision.
THE DEFENDANT: Right.
THE COURT: If you feel that you need to talk to this jury,
that’s your call.
THE DEFENDANT: I am not trying to be – these guys
know what you are doing, so I trust you.
THE COURT: So you understand, sir, if you decide not to
take the stand today and you decide to remain silent that
certainly I will instruct the jury that they are not to hold that
against you in any way, shape or form.
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THE DEFENDANT: Yes.
THE COURT: You also understand, sir, that if things don’t
go this way in your trial on appeal you can’t say, no, no, no, I
screwed up, I actually really wanted to testify. You are pretty
much giving up that right to argue that.
Do you understand that?
THE DEFENDANT: Right.
THE COURT: Any further questions?
MR. KELLY: Nothing from the Commonwealth, Your Honor.
MR. COTTON: No further questions, Your Honor.
N.T. Trial, 5/27-29/15, at 152-58 (emphasis added; subsequent references
to the trial court’s remarks refer to the bolded portion of this passage.).
Before we turn to the merits, we must address the Commonwealth’s
argument that Appellant has waived his argument. Rule 302(a) of the
Pennsylvania Rules of Appellate Procedure provides that “[i]ssues not raised
in the lower court are waived and cannot be raised for the first time on
appeal.” Pa.R.A.P. 302(a). Appellant acknowledges that he did not raise a
timely objection during trial or in a post-sentence motion.
Nonetheless, Appellant argues for a relaxed application of the waiver
doctrine in this case, citing Commonwealth v. Hammer, 494 A.2d 1054
(Pa. 1985), abrogated in part on other grounds, Commonwealth v. Grant,
813 A.2d 726 (Pa. 2002). In Hammer, the defendant argued that the
“conduct of the trial judge in conducting extensive and repeated examination
of witnesses, including the defendant, acted oftimes in the role of advocate
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for the prosecution[.]” Id. at 1056. The defendant did not lodge objections
during the trial court’s examination of witnesses. Id. at 1058. Regardless,
the Supreme Court was “not inclined to strictly enforce the waiver doctrine
in the case of judicial intemperance for counsel cannot veto actions viewed
by the judge to be wholly permissible.” Id. at 1060. On the record before
it, the Hammer Court concluded “that objection would be meaningless to
satisfy the reasons for raising objection,” and possibly would have
“intensified judicial animosity[.]” Id. Thus, the Supreme Court did not
enforce the waiver doctrine.
The instant case is distinguishable from Hammer in that we have no
allegation of judicial animosity. To the contrary, the trial court offered
seemingly well-intentioned observations on the inherent risk a criminal
defendant faces when testifying at his own trial. Appellant has not offered
any satisfactory reason for failing to raise this issue in a timely post-trial
motion, and we therefore conclude the issue is waived because he raises it
for the first time on appeal. Pa.R.A.P. 302(a).
Were we to address the merits, we would affirm the judgment of
sentence. Appellant indisputably had the right to testify on his own behalf,
and the record confirms that he was fully aware of that right both before and
after the trial court’s remarks. The trial court advised Appellant not to base
his decision on its experience, and the court further advised Appellant that
he could not change his mind in the event of an unfavorable outcome.
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Appellant indicated his understanding and assent. Furthermore, Appellant
conferred with counsel after the trial court’s remarks, and he stated that he
was following the advice of his counsel. We could not conclude, on this
record, that the trial court deprived Appellant of his right to testify on his
own behalf.
We will not order a new trial because Appellant failed to preserve his
argument for appellate review. Further, Appellant knew of his right to
testify, was afforded an opportunity to testify, and elected not to do so after
conferring with counsel. Finding no reversible error, we affirm the judgment
of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2016
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