J-A26007-17
2018 PA Super 86
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
PATRICK TIGHE
Appellant No. 266 MDA 2017
Appeal from the Judgment of Sentence January 13, 2016
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0001297-2012
BEFORE: BOWES, OLSON, AND RANSOM, JJ.
OPINION BY BOWES, J.: FILED APRIL 12, 2018
Patrick Tighe appeals from the judgment of sentence of twenty to forty
years incarceration, imposed following his convictions for, inter alia, rape,
involuntary deviate sexual intercourse (“IDSI”), and sexual assault. We
affirm the convictions, but vacate the judgment of sentence.
The trial court thoroughly set forth the facts underlying Appellant’s
convictions in its Pa.R.A.P. 1925(a) opinion, which we adopt herein:
On May 29, 2012, J.E. was 15 years of age. J.E. did not have a
permanent residence. She lived at both her father's home and
her grandmother's home in Scranton, Pennsylvania. On the
night in question, J.E, resided at her father's residence with her
older sister, [M.L.], and [M.L.]'s boyfriend, [C.E.]. J.E.'s mother
and father were both incarcerated for drug usage. J.E. called the
Defendant to drive her to a Wal-Mart to purchase tampons. The
Defendant was 58 years of age. The Defendant agreed, and he
drove his white minivan to meet J.E. J.E. entered the minivan
and they proceeded to Wal-Mart. J.E purchased tampons at
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Wal-Mart and left the store with the Defendant a few minutes
later. After the purchase, J.E. asked the Defendant to take her
to a McDonald's restaurant. The Defendant agreed. Before
reaching McDonalds, the Defendant expressed his desire to stop
at his friend's house. The owner of the home was Joseph
Hasham. The Defendant and J.E. entered the unoccupied home.
J.E. used the restroom and searched the refrigerator—located in
the kitchen—for a beverage. The Defendant entered the kitchen
and pulled J.E. by the back of her shorts without warning. J.E.
asked the Defendant what he was doing, but he did not reply.
The Defendant took her into the living room, placed her on a
couch, and flipped her on her back. J.E. repeatedly asked the
Defendant to stop, but he covered her mouth. Despite J.E.'s
protests, the Defendant removed her shorts; ripped out her
tampon; and inserted his penis into her mouth and vagina. The
incident lasted about 5 minutes.
After the Defendant raped J.E., she pleaded for the Defendant to
drive her home. He eventually agreed, on the condition that she
would not tell anybody about the incident. He also asked her to
call him the next day. The Defendant drove J.E. to McDonalds.
He borrowed Joseph Hasham's car because of a broken taillight
in his own vehicle. Afterwards, he dropped her off at J.E.'s
father's residence. J.E. rushed inside. She found [M.L.] and
[C.E.] sleeping on the couch. The next morning—on May 30,
2012—J.E exhibited signs of distress and nervousness. J.E. told
[M.L.] that the Defendant raped her, but J.E. asked [M.L.] not to
discuss the incident with anyone else. Instead, [M.L.] called the
police. Detective Vincent Uher from the Scranton Police
Department responded and transported J.E. to the Children's
Advocacy Center. The Children's Advocacy Center conducted a
medical examination and collected a rape kit under the
supervision of various experts. Joann Armaghan, a Forensic
Scientist Supervisor for the Pennsylvania State Police,
corroborated J.E.'s testimony and concluded that the test for the
presence of saliva on J.E.'s neck and right breast was positive.
Sara Harrier, a forensic DNA scientist for the Commonwealth of
Pennsylvania, also corroborated J.E.'s testimony. Hamer
testified that DNA on J.E.'s pubic hair contained a mixture of
DNA from two individuals. Under statistical calculation, Hamer
concluded that the most likely combination contained DNA of
both J.E. and the Defendant.
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Detective Uher learned that the Defendant tried to contact J.E.
on her telephone, so he conducted a consensual phone
intercept—also known as a wiretap—to gather additional
information and/or evidence of the case. J.E. consented to the
phone call. During the phone call, the Defendant made several
incriminating statements, which eventually led to his arrest.
Trial Court Opinion, 7/28/16, at 7-10 (citations to transcript omitted).
Appellant represented himself at trial, and was convicted and
sentenced on October 25, 2013 to an aggregate sentence of twenty to forty
years incarceration. That sentence included the imposition of mandatory
minimum sentences of ten to twenty years incarceration at the counts of
rape and IDSI. The trial court imposed a concurrent sentence of one to two
years at indecent assault, and an additional concurrent sentence of eight to
sixteen years incarceration at unlawful contact with a minor.
Appellant filed post-sentence motions. The transcription of the notes
of testimony was significantly delayed, leading to a September 18, 2015
motion requesting reinstatement of his post-sentence motion rights nunc pro
tunc. The Commonwealth consented to this request, leading to a second set
of post-sentence motions. While those motions remained active, the
Commonwealth requested that the trial court vacate and resentence
Appellant due to subsequent caselaw pertaining to mandatory minimum
sentences.
On January 13, 2016, the trial court resentenced Appellant to the
same aggregate sentence of twenty to forty years incarceration. However,
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as relevant to one of his issues on appeal, the trial court imposed a
consecutive sentence for indecent assault whereas the original scheme called
for a concurrent sentence at that charge.
Appellant filed a timely notice of appeal, and complied with the trial
court’s order to file a concise statement.1 The trial court authored its
opinion, and the matter is ready for review. Appellant raises eleven issues,
which we have reordered for ease of discussion.2
1. Whether the trial court violated the Appellant's 6th
Amendment rights under the United States Constitution and
Article I, Section 9 of the Pennsylvania Constitution by refusing
to allow Appellant, acting pro se at trial, to cross-examine and/or
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1 The appeal was originally docketed at 884 MDA 2016, which this Court
dismissed on December 15, 2016, due to counsel’s failure to file a brief. The
trial court subsequently reinstated Appellant’s appellate rights nunc pro tunc.
2 Appellant's statement of questions presented calls to mind the view of the
often quoted Honorable Ruggero J. Aldisert of the United States Court of
Appeals for the Third Circuit regarding this shotgun approach to appellate
advocacy:
With a decade and a half of federal appellate court experience
behind me, I can say that even when we reverse a trial court it
is rare that a brief successfully demonstrates that the trial court
committed more than one or two reversible errors. I have said in
open court that when I read an appellant's brief that contains
ten or twelve points, a presumption arises that there is no merit
to any of them ... [and] it is [this] presumption . . . that
reduces the effectiveness of appellate advocacy.
Commonwealth v. Robinson, 864 A.2d 460, 480, n.28 (Pa. 2004)
(quoting Aldisert, “The Appellate Bar: Professional Competence and
Professional Responsibility–A View From the Jaundiced Eye of the Appellate
Judge,” 11 Cap. U.L. Rev. 445, 458 (1982) (emphasis in original)).
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question the victim at any time during trial or bail hearing, but
instead required standby counsel to ask the victim all questions
on Appellant's behalf using written questions prepared by
Appellant in advance of cross-examination and/or questioning?
2. Whether the trial court committed an error of law and/or an
abuse of discretion and/or otherwise violated the Appellant's
right to a fair trial as guaranteed under both the United States
Constitution and the Pennsylvania Constitution by refusing to
rule on the Appellant's motion to recall thereby prejudicing the
Appellant and his ability to properly present his defense?
3. Whether the trial court committed an error of law and/or an
abuse of discretion, when it required Appellant to state every
question he intended to ask the victim on recall with opposing
counsel present thereby denying Appellant's right to a fair trial
as guaranteed by both the United States Constitution and the
Pennsylvania Constitution?
4. Whether the trial court abused its discretion and denied the
Appellant's right to a fair trial as guaranteed by the United
State[s] Constitution and the Pennsylvania Constitution when it
allowed the victim to remain in the courtroom throughout the
trial despite a sequestration order being issued and Appellant's
intention to recall her despite the fact that Appellant requested
to examine her in his case in chief?
5. Whether the trial court committed an error of law and/or an
abuse of discretion, when it failed to grant a mistrial after the
victim was allowed to hear her testimony, evidence and the
subject matter of questions Appellant intended to ask her upon
recall thereby prejudicing Appellant and denying him his right to
a fair trial?
6. Whether the Appellant was denied his right to counsel in
violation of the 6th Amendment of the United States Constitution
and/or Article I, Section 9 of the Pennsylvania Constitution?
7. Whether the trial court abused its discretion in appointing
"stand-by counsel" for Appellant with whom the Appellant
expressly stated he had irreconcilable differences and/or in
failing to examine on the record whether such conflict actually
existed as Appellant claimed?
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8. Whether the trial court abused its discretion when it denied
[Appellant’s] request for an expert [to] be appointed to conduct
independent testing, DNA testing and/or to assist him in his
defense?
9. Whether the trial court committed an error of law and/or an
abuse of discretion in limiting Appellant's right to cross-examine
the Commonwealth's witness, [M.L.], about her drug use on the
date of the incident?
10. Whether the trial court abused its discretion by denying
Appellant's request to have his own psychological evaluation
prior to the hearing to determine whether he was a sexually
violent predator?
11. Whether the trial court issued an illegal sentence by finding
that indecent assault did not merge for sentencing purposes or
in the alternative abused its discretion when increas[ing] the
sentence for indecent assault on resentence than what was
originally imposed?
Appellant’s brief at 5-7 (reordered).
I. Limitation Upon Cross-Examination of J.E.
Appellant’s first argument appears to be an issue of first impression in
this jurisdiction, and addresses the fact that the trial court granted the
Commonwealth’s motion to prohibit Appellant from personally cross-
examining J.E. The Commonwealth filed the motion after Appellant, while at
liberty and awaiting trial, contacted J.E. and asked her, “Why are you doing
this to me? I didn’t hurt you. Please don’t put me in jail for life.” N.T.,
6/4/13, at 42. Following an evidentiary hearing at which J.E. testified to
those facts and that the call scared her, the trial court granted the motion
and required Appellant to provide Attorney Christopher Osborne, Appellant’s
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stand-by counsel, with the questions he wished to ask J.E. at trial. The
court directed that Attorney Osborne was to ask J.E. the questions.
Appellant maintains that “Prohibiting Appellant from questioning the
victim is a violation of his constitutional rights.” Appellant’s brief at 23. The
constitutional right he asserts is at issue is his right of self-representation.
Succinctly stated, Appellant argues that the right to represent himself
necessarily includes the right to act as attorney for all purposes, and cannot
be limited. Appellant also notes that requiring counsel to ask the questions
amounts to hybrid representation, which is impermissible.
In Faretta v. California, 422 U.S. 806 (1975), the United States
Supreme Court recognized that the Sixth Amendment right to counsel
implicitly includes the right to self-representation, which applies to the
States through the Fourteenth Amendment’s guarantee of due process of
law. Pennsylvania has recognized the same right under Article I, Section 9
of the Pennsylvania Constitution. See Commonwealth v. Szuchon, 484
A.2d 1365 (Pa. 1984). The denial of the right to proceed pro se cannot be
harmless, and a violation requires a new trial. See Commonwealth v.
Starr, 664 A.2d 1326, 1334–35 (Pa. 1995) (citing McKaskle v.
Wiggins, 465 U.S. 168, 177 n.8 (1984)). Whether that right was violated
presents a question of law, for which our review is de novo. See
Commonwealth v. El, 933 A.2d 657, 662 (Pa.Super. 2007), aff’d, 977 A.2d
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1158 (Pa. 2009). For purposes of this claim, the question of whether
Appellant validly asserted his right to represent himself is not at issue.
Before addressing Appellant’s substantive claim, we note that
Appellant explicitly distances himself from the analysis offered by the
Commonwealth and the trial court, which focused on the Sixth Amendment
right of confrontation. Since other jurisdictions that have considered this
issue have drawn parallels to that right, we begin our analysis there.
“In all criminal prosecutions, the accused shall enjoy the right . . . . to
be confronted with the witnesses against him[.]” U.S. Const.Amend. VI. The
trial court principally relied on Maryland v. Craig, 497 U.S. 836 (1990),
which reviewed a Maryland statute that permitted a judge to present the
testimony of a child abuse victim to the jury via one-way closed circuit
television. That procedure could be invoked only if the judge determined
that testifying in the courtroom would “result in the child suffering serious
emotional distress such that the child cannot reasonably communicate.” Id.
at 841 (quoting statute). In such cases, the statute called for the witness to
testify in a separate room with only the prosecutor and defense counsel
present. The judge, jury, and defendant remained in the courtroom, where
a monitor would relay the testimony, with the defendant remaining in
communication with defense counsel through electronic means. The child
witness and the defendant could not see each other.
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The Craig Court explained that prior precedents interpreted the
Confrontation Clause to guarantee a face-to-face meeting with witnesses at
trial, which derived from both the literal reading of the Clause as well as its
historical roots. Id. at 844. Craig nevertheless stated that this right is not
absolute, citing Coy v. Iowa, 487 U.S. 1012 (1988). In Coy, the High
Court held that the Confrontation Clause was violated by the use of a
protective screen which prevented the child witnesses in an abuse case from
seeing the defendants as they testified. However, Craig explained that the
holding in Coy turned on the fact the procedure examined applied a
presumption of trauma, and suggested that an exception would be allowed
“when necessary to further an important public policy[.]” Craig, supra at
845 (quoting Coy, supra at 1021). Resolving the question left open by
Coy, Craig held that the Maryland statute did not violate the defendant’s
Confrontation Clause rights. Craig determined that face-to-face
confrontation is not “an indispensable element of the Sixth Amendment's
guarantee of the right to confront one's accusers.” Id. at 849-50.
Simultaneously, that requirement could not “easily be dispensed with.” Id.
at 850. The State could justify its limitation “only where denial of such
confrontation is necessary to further an important public policy and only
where the reliability of the testimony is otherwise assured.” Id.
Applying those principles to the Maryland statute, Craig determined
that a “State's interest in the physical and psychological well-being of child
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abuse victims may be sufficiently important to outweigh, at least in some
cases, a defendant's right to face his or her accusers in court.” Id. at 853.
Simultaneously, the Court required “an adequate showing of necessity” to
justify the use of the procedure, which “of necessity must of course be a
case-specific one[.]” Id. at 855. The mere fact that face-to-face
confrontation is generically traumatic and unpleasant was not sufficient.3 As
to the second component, that the reliability of the testimony is otherwise
assured, the Court determined that the statute protected
all of the other elements of the confrontation right: The child
witness must be competent to testify and must testify under
oath; the defendant retains full opportunity for contemporaneous
cross-examination; and the judge, jury, and defendant are able
to view (albeit by video monitor) the demeanor (and body) of
the witness as he or she testifies. Although we are mindful of the
many subtle effects face-to-face confrontation may have on an
adversary criminal proceeding, the presence of these other
elements of confrontation—oath, cross-examination, and
observation of the witness' demeanor—adequately ensures that
the testimony is both reliable and subject to rigorous adversarial
testing in a manner functionally equivalent to that accorded live,
in-person testimony.
Id. at 851.
Craig is a Confrontation Clause case and does not address the right of
self-representation. The trial court extensively relied on Fields v. Murray,
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3 The Court declined to specify the minimum showing of emotional trauma
required, holding only that the Maryland statute’s requirement of “serious
emotional distress such that the child cannot reasonably communicate”
passed constitutional muster.
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49 F.3d 1024 (4th Cir. 1995) (en banc), in making its ruling. In Fields, the
United States Court of Appeals for the Fourth Circuit held that a court could
properly prevent a pro se defendant from cross-examining the child victims
where the defendant conceded that the motivation for representing himself
was to cross-examine the victims.
If a defendant's Confrontation Clause right can be limited in the
manner provided in Craig, we have little doubt that a
defendant's self-representation right can be similarly limited.
While the Confrontation Clause right is guaranteed explicitly in
the Sixth Amendment, U.S. Const. amend. VI (“In all criminal
prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.”), the self-
representation right is only implicit in that Amendment, Faretta
v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 2533, 45
L.Ed.2d 562 (1975). The self-representation right was only firmly
established in 1975 in Faretta, and then only over the dissent of
three justices, id. at 836, 95 S.Ct. at 2542 (Burger, C.J.,
dissenting, joined by Blackmun and Rehnquist, JJ.). Moreover, it
is universally recognized that the self-representation right is not
absolute. See, e.g., McKaskle v. Wiggins, 465 U.S. 168, 176–
77, 104 S.Ct. 944, 950, 79 L.Ed.2d 122 (1984); Bassette v.
Thompson, 915 F.2d 932, 941 (4th Cir.1990), cert. denied, 499
U.S. 982, 111 S.Ct. 1639, 113 L.Ed.2d 734 (1991).
....
Fields' self-representation right could have been properly
restricted by preventing him from cross-examining personally
some of the witnesses against him, which is one “element” of the
self-representation right, if, first, the purposes of the self-
representation right would have been otherwise assured and,
second, the denial of such personal cross-examination was
necessary to further an important public policy.
Id. at 1035.
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Murray then noted that the purpose of self-representation was “to
allow the defendant ‘to affirm [his] dignity and autonomy’ and to present
what he believes is his ‘best possible defense.’” Id. at 1035 (quoting
McKaskle, supra at 176-78). Murray recognized that the defendant’s
dignity and autonomy were obviously limited by preventing personal cross-
examination, thus affecting the jury’s perception that he was representing
himself. However, the court determined that this restriction only “reduced
slightly” his ability to present a chosen defense. That ability was
otherwise assured because he could have personally presented
his defense in every other portion of the trial and could even
have controlled the cross-examination by specifying the
questions to be asked. As a result, we are convinced that the
purposes of the self-representation right were better “otherwise
assured” here, despite the denial of personal cross-examination,
than was the purpose of the Confrontation Clause right
in Craig when the defendant was denied face-to-face
confrontation with the witnesses.
Id. at 1035–36. Addressing the second aspect of Craig, the State’s
interest, the court determined that since Craig held that the interest in the
physical and psychological well-being of child abuse victims could outweigh
the right to face-to-face confrontation, it followed that the right to self-
representation could be limited for the same reason.
Since Appellant does not claim a deprivation of his Confrontation
Clause rights, we do not address whether the unquestionable right to
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confront J.E. meant that Appellant could avail himself of that right when
serving as his own counsel.4 Instead, the question is whether the principles
announced in Craig, which permitted a procedure that limited the
Confrontation Clause rights due to the countervailing interests of the victim
when the procedure otherwise preserved the reliability of the cross-
examination, should be adopted in this Commonwealth as a permissible
restriction on the right of self-representation. We conclude that the answer
is yes.
Preliminarily, we are not persuaded by Appellant’s fundamental
assertion that the right of self representation is an absolute right that cannot
be curtailed. Significantly, in McKaskle, supra, the High Court considered
whether Faretta permitted the participation of standby counsel even without
the express consent of the defendant. Therein, Wiggins informed the court
he would proceed pro se and “objected even to the court's insistence that
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4 Craig has not been overruled by the High Court. However, later cases,
such as Crawford v. Washington, 541 U.S. 36 (2004), may cast some
doubt on the analysis employed by Craig insofar as Craig determined that
the constitutional right of confrontation could be satisfied on something less
than actual face-to-face confrontation so long as the testimony was
otherwise reliable. Crawford rejected that proposition as applied to
testimonial statements. “Where testimonial statements are at issue, the
only indicium of reliability sufficient to satisfy constitutional demands is the
one the Constitution actually prescribes: confrontation.” Id. at 68-69.
However, the issue of face-to-face confrontation was not at issue in
Crawford, and neither was the related context presented herein.
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counsel remain available for consultation.” Id. at 172. That request was
denied and the trial judge appointed two attorneys to act as standby
counsel. Throughout the trial, Wiggins occasionally consulted with standby
counsel, and the attorneys sometimes initiated private consultations. The
Court of Appeals held that Wiggins’ Sixth Amendment rights were “violated
by the unsolicited participation of overzealous standby counsel[.]” Id. at
173 (citation omitted).5
The High Court reversed and held that Faretta’s “logic . . . indicate[s]
that no absolute bar on standby counsel's unsolicited participation is
appropriate or was intended.” Id. at 176. The Court explained:
In determining whether a defendant's Faretta rights have been
respected, the primary focus must be on whether the defendant
had a fair chance to present his case in his own
way. Faretta itself dealt with the defendant's affirmative right to
participate, not with the limits on standby counsel's additional
involvement. The specific rights to make his voice heard that
Wiggins was plainly accorded, form the core of a defendant's
right of self-representation.
Id. at 177 (internal citation omitted).
McKaskle is not directly on point as that case did not involve any
limitation upon the pro se defendant’s ability to present his case, but rather
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5 Wiggins abandoned his claim that the mere presence of standby counsel
over his objection warranted reversal; the Court examined only whether the
“Faretta right to present his defense pro se was impaired by the distracting,
intrusive, and unsolicited participation of counsel throughout the trial.”
McKaskle v. Wiggins, 465 U.S. 168, 176 (1984).
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limitations on standby counsel’s ability to participate absent the express
invitation of the defendant. However, McKaskle declined to hold that
Faretta is susceptible to the all-or-nothing approach advanced by Appellant.
If the primary focus of the right of self-representation is whether the
defendant had a fair chance to present his defense, that goal was
undoubtedly met herein despite Appellant’s inability to personally ask his
questions. Appellant supplied a list of questions to be asked, and there is
nothing to indicate that Appellant was prevented from consulting with
standby counsel in the event he wished to ask additional questions in
response to J.E.’s answers. This is similar to the fact that the defendant in
Craig was in electronic communication with his counsel. Therefore, his right
to cross-examine J.E. was met in a broad sense, and was limited only in the
narrow sense that he was not allowed to personally ask the questions.
Appellant cites the following quotations as establishing his preferred
rule: Commonwealth v. Davido, 868 A.2d 431, 438 n.12 (Pa. 2005) (“In
fact, requiring counsel to take further action on a defendant's behalf after
the defendant has requested to proceed pro se would undermine the Sixth
Amendment right to self representation.”); Commonwealth v. Spotz, 47
A.3d 63, 83 (Pa. 2012) (“[A] defendant's choice to proceed pro se must be
honored out of that respect for the individual which is the lifeblood of the law
even when the defendant acts to his or her own detriment.”) (internal
quotation marks and citation omitted). Both quotations reference situations
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markedly different from the present case. Distilled to its essence, we view
the bar against intrusions by standby counsel—which is not an absolute bar
in any event—as referring to situations in which the intrusions pose a risk of
undermining the pro se defendant’s chosen defense.6 Herein, Attorney
Osborne’s participation did not impede Appellant’s defense in any way;
rather, Attorney Osborne acted as a conduit for Appellant’s own questions.
Therefore, we cannot agree with Appellant’s claim that the court “den[ied]
Appellant his right to question the victim.” Appellant’s brief at 21. The trial
court denied Appellant the right to personally question the victim.7 The
right to confront J.E. was fully honored, albeit through standby counsel
serving as Appellant’s mouthpiece. While we do not downplay the
significance of this intrusion, we reject Appellant’s position that it is
categorically impermissible.
Having established that the right to self-representation can be limited
in this fashion, we briefly address whether that intrusion was warranted in
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6 For instance, that rationale would apply if standby counsel refused to ask a
question submitted by Appellant on the basis it was unwise as a matter of
strategy.
7 We recognize Appellant’s assertion that the procedure utilized in this case
can create analytical difficulties in the event standby counsel interferes,
since such claims would amount to ineffective assistance which generally
cannot be raised when a defendant represents himself. We do not reach
that issue, as Appellant’s complaint is that his rights were violated by the
mere act of standby counsel asking the questions.
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this particular case. We are persuaded by the analysis set forth in Fields
that, if the constitutional right of confrontation can be limited on the basis of
emotional trauma to the victim, then it follows that the same State interest
serves to justify the restriction at issue.8 Indeed, the fact that Craig
permitted a limitation of actual face-to-face confrontation suggests that the
lesser intrusion herein, where J.E. was subjected to that face-to-face
confrontation, is permissible. Additionally, we find that this intrusion did not
affect the jury’s perception that Appellant was representing himself, any
more than the intrusions in McKaskle did. With the exception of this one
witness, Appellant cross-examined all other witnesses, made opening and
closing statements, and otherwise presented his own defense according to
his wishes.
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8 Whether the Commonwealth sufficiently established as a matter of degree
that J.E. would suffer emotional trauma as contemplated by Craig is not
before us, as Appellant avers that his right to act as counsel precludes any
limitation upon his right to represent himself, regardless of any trauma to
the witness. “The Appellant had every right to question the victim in this
case and there was no basis for limiting that right.” Appellant’s brief at 27.
Simultaneously, we find, consistent with Craig, that the limitation could be
justified as a matter of law only if the Commonwealth established that this
minor victim was likely to suffer some emotional trauma by being directly
cross-examined by her accuser beyond the natural trauma accompanying
that confrontation. To hold otherwise would apply a presumption of trauma,
which Craig indicates is impermissible. We find that the extra evidence
adduced by the Commonwealth respecting Appellant’s violation of the no
contact order and J.E.’s testimony regarding her fear of Appellant served to
remove this case from that unconstitutional presumption.
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Finally, Appellant maintains that the trial court necessarily erred
because no statutory authority existed to permit its ruling. Relatedly,
Appellant concedes that authority such as Fields exists, but argues that it is
irrelevant since no Pennsylvania decision had cited or adopted that rationale
at the time of the trial court’s decision. The salient issue is whether
Appellant’s constitutional right to self-representation was violated, not
whether a statute or prior authority permitted the instant restriction. Since
we have determined that Appellant’s constitutional rights were not violated,
the trial court did not err.
II. Limitations Upon Appellant’s Recalling J.E.
We consider Appellant’s second, third, fourth, and fifth claims
together, as they all broadly relate to various rulings regarding Appellant’s
request to recall J.E. as a witness in his case-in-chief.9
We review the first three claims for an abuse of discretion. “The trial
judges of this Commonwealth exercise broad powers while presiding at the
trial of cases assigned to them. These powers include ruling on the
admission or exclusion of evidence and controlling the scope of examination
and cross-examination of witnesses.” Commonwealth v. Pittman, 466
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9 The claims are that the trial court erred in: delaying its ruling on
Appellant’s motion to recall J.E.; requiring Appellant to state which questions
he intended to ask J.E. if she were recalled; allowing J.E. to remain in the
courtroom; and failing to grant a mistrial.
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A.2d 1370, 1373 (Pa.Super. 1983). “We review a trial court's decision to
limit re-direct examination for an abuse of discretion.” Commonwealth v.
Berry, 167 A.3d 100, 109–10 (Pa.Super. 2017). The same principle applies
to the court’s decision to permit recall of a witness. “[T]he decision whether
a party may be recalled is, under Pennsylvania law, left to the trial court's
discretion. The decision is not reversed unless it constitutes a ‘very gross
abuse of discretion.’” Commonwealth v. Crosby, 297 A.2d 114, 116–17
(Pa. 1972) (citation omitted). As to sequestration, the abuse of discretion
standard applies, and an appellant must show prejudice. See
Commonwealth v. Stevenson, 894 A.2d 759, 767 (Pa.Super. 2006).
Regarding the mistrial claim, we likewise review the trial court’s
decision for an abuse of discretion. See Commonwealth v. Stafford, 749
A.2d 489, 500 (Pa.Super. 2000) (citations omitted). These additional
principles apply:
“[A] mistrial [upon motion of one of the parties] is required only
when an incident is of such a nature that its unavoidable effect is
to deprive the appellant of a fair and impartial
trial.” Commonwealth v. Lease, 703 A.2d 506, 508
(Pa.Super.1997). It is within the trial court's discretion to
determine whether a defendant was prejudiced by the incident
that is the basis of a motion for a mistrial. Id. On appeal, our
standard of review is whether the trial court abused
that discretion. Stafford, 749 A.2d at 500.
An abuse of discretion is more than an error in
judgment. Commonwealth v. Griffin, 804 A.2d 1, 7 (Pa.Super.
2002). On appeal, the trial court will not be found to have
abused its discretion unless the record discloses that the
judgment exercised by the trial court was manifestly
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unreasonable, or the result of partiality, prejudice, bias, or ill-
will. Id.
Commonwealth v. Tejeda, 834 A.2d 619, 623 (Pa.Super. 2003) (footnote
omitted).
Factually, all four claims relate to Appellant’s desire to recall J.E.
during his case-in-chief, and we examine those facts in detail.10 Prior to the
Commonwealth presenting its case, the trial court granted Appellant’s
request for a sequestration order. N.T., 7/8/13, at 118-19 (“I'm going to
grant the motion. Any witnesses must be sequestered until after they
testify. And please instruct the witnesses that they're not to discuss their
testimony with any witness who is waiting to testify.”). Following the
conclusion of his cross-examination of J.E., Appellant sought to reserve the
right to recall her. During a break in the proceedings, the judge addressed
that request and indicated a belief that the sequestration order remained in
effect.
MR. TIGHE: Your Honor, you said you will rule later on about
keeping [J.E.] available?
THE COURT: Yeah. We can discuss it. When we get to that point,
we'll discuss if you want to call her in your case in chief, we'll
discuss it out of the presence of the jury. I don't think she's
going anywhere. I think she's available today and tomorrow,
right?
____________________________________________
10 The parties frame the issue as one of recalling a witness, as opposed to
calling a witness as part of the Appellant’s case-in-chief.
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ATTY. TALERICO: Actually, Your Honor, I would object to her not
being in the courtroom. She has specifically requested the
opportunity to be here. I think she has a right to be here. He
had the opportunity to cross.
THE COURT: Okay.
ATTY. TALERICO: I'm not comfortable waiting and then from the
jury's standpoint seeing her not physically here to care about
what's happening.
THE COURT: Okay. So do you understand the point that he's
making? The issue of whether you may recall her as a witness in
your case in chief has not yet been decided. And we will cross
that bridge when we come to it. But there is a sequestration
order in effect and what Attorney Talerico is asking is that she be
permitted to sit in now because she is the alleged victim in the
case. And understood under Pennsylvania Constitution, victims
enjoy many rights. I'm going to grant that request.
MR. TIGHE: All right. Your Honor, I would just like to state on
the record, too, part of your ruling on me not being able to cross
examine the [victim] and how it brought up how she couldn't
stand being in the room with me, how it caused her to have
flashbacks, and trauma, and now they want her to come in the
courtroom, like, this is having your cake and eating it, too. I'm
just putting it on the record.
THE COURT: I know. I understand.
MR. TIGHE: Your Honor, we'll probably be revisiting this again in
the near future.
THE COURT: Okay. I appreciate that.
MR. TIGHE: I object to her being in the courtroom. I still want to
cross examine.
THE COURT: Whether you will be allowed to call her in your case
in chief is completely not clear. I haven't ruled on it yet. I have
no idea what your rational[e]--I'm willing to listen to your
argument. However, since it is not clear to me that she will be
allowed to be recalled in your case in chief because she is the
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victim in this case and she does have rights under
Pennsylvania's Constitution. I'm going to allow her to sit in for
testimony until we get to that point, okay, if she chooses to. She
may choose not to, I don't know what she's going to do. I have
to balance. Remember it's a balancing test. It's balancing her
rights against yours.
MR. TIGHE: The prosecution just said, she said she wanted to
come in and listen. The prosecution just said it.
THE COURT: Well, that's what they're saying, but I don't know. I
don't know what she wants to do. I'm not going to take what
they say that she says. Do you understand? Okay. We're in
recess for lunch then. Thank you. See you at 1:00.
N.T., 7/9/13, at 85-88. Later that day, Appellant informed the court he still
intended to recall J.E., to which the court replied, “Potentially. We have to
address that.” Id. at 278. J.E. was permitted to remain in the courtroom.
The next day, the trial court asked Appellant why he desired to recall
J.E. He explained that he wished to cross-examine her based on phone
records that were admitted after J.E. testified, and which he stated would
impeach her testimony. The Commonwealth opposed the request, on the
grounds that the phone records were in evidence and Appellant could argue
in closing that the actual records contradicted J.E.’s testimony. During this
discussion, the trial court asked Appellant to list the questions he wished to
ask.
THE COURT: Tell me the question, now, on the record.
MR. TIGHE: I need a copy of the transcript. I can't remember all
of it.
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THE COURT: No. You're saying that you want to recall her for the
purpose of asking her a few questions. Tell me what the
questions are, now, that you want to ask.
MR. TIGHE: The phone call she denied taking that she called me
that I called her. I'm trying to say that -- I don't want -- every
time -
THE COURT: Okay. Here's what we're going to do, over the
lunch--in recess, I'm going to ask the court reporter to prepare a
portion of [J.E.]'s testimony that relates to cross examination on
this topic. Once we have that record, we will review it. At that
time, I will be able to mae [sic] a decision as to whether or not
she'll be able to be recalled.
N.T., 7/10/13 at 117. Later, the trial court then stated in open court that it
had read J.E.’s direct testimony.
THE COURT: The record should reflect, that during the recess I
requested the court reporter to transcribe the portion of the
transcript that relates to cross examination and redirect of [J.E.].
I have determined what questions have been asked on cross-
examination. I just had the opportunity to read to the parties, in
open [c]ourt, the portion of the transcript as it relates to those
issues.
Now, sir, are there questions that you want to have asked of
[J.E.] that were not asked during that -- during the time when
she was first on the witness stand?
MR. TIGHE: Yes.
THE COURT: Tell me the question.
MR. TIGHE: The questions I want to ask is, was she presented
with the evidence that shows when she said there was no phone
calls between --
THE COURT: Okay. Wait. Wait. Wait. She has to leave the
courtroom.
(Victim exited courtroom.)
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MR. TIGHE: Your Honor, was she here the whole time you were
reading that?
THE COURT: I have no idea. I didn't see her. I don't know what
time she came in. All right. So your question is? What's the
question that you want to have asked -- that you want to ask?
MR. TIGHE: First of all, Your Honor, I would like to have it on the
record you read off the transcript while the victim of the crime
was here. I asked to have her sequestered. And I would ask for
a mistrial.
THE COURT: I did not -- first of all, does anybody know -- go
find out when she came in the courtroom.
MR. TIGHE: They were in here when I came in.
Id. at 226-28. The court denied his request for a mistrial, and permitted
Appellant to recall J.E. She was shown the records, which indicated that she
made phone calls during the time period between 10:06 p.m. and 10:10
p.m. to Appellant on the night of the rape. Id. at 237. She did not dispute
the records but stated, “I just don’t know why or how.” Id. at 238. The
records also established that a call was made from her phone at 10:22 p.m.
that evening. J.E. agreed that the phone call occurred around the time she
was assaulted, but denied making it.
With respect to his legal complaints, Appellant links all of these
circumstances and rulings together. He posits that the trial court violated its
own sequestration order by permitting the victim to remain in the courtroom
following her testimony, which prejudiced all of his later attempts to
impeach her. Additionally, he states that the delay in the recall ruling
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hampered his case, because he did not know if he would be able to call J.E.
for further cross-examination. Finally, he argues that a mistrial was
warranted because J.E. heard her prior testimony and received a preview of
the questions he sought to ask.
We disagree that the trial court abused its discretion in delaying its
ruling on Appellant’s motion; in requiring Appellant to explain why he wished
to recall the witness; and in allowing the victim to remain in the courtroom
throughout trial. With respect to the first two points, the trial court is
permitted great latitude. As extensively discussed in the first issue, the trial
court was clearly concerned that Appellant’s attempt to recall J.E. may have
been procedural gamesmanship designed to evade its ruling regarding
personal cross-examination of J.E. Indeed, Pa.R.E. 611, Mode and Order of
examining Witnesses and Presenting Evidence, states in pertinent part:
(a) Control by the Court; Purposes. The court should
exercise reasonable control over the mode and order of
examining witnesses and presenting evidence so as to:
(1) make those procedures effective for determining the truth;
(2) avoid wasting time; and
(3) protect witnesses from harassment or undue
embarrassment.
Pa.R.E. 611 (emphasis added). We find that requiring Appellant to explain
the purpose of recalling J.E. did not constitute an abuse of discretion under
these facts.
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Furthermore, Appellant’s decision to represent himself was a factor in
these rulings. The trial court asked why Appellant did not simply impeach
J.E. using the phone records during cross-examination, to which Appellant
responded that the records were not authenticated at the time of her
testimony. The Commonwealth noted in reply that it did not object to the
admission of those records, which Appellant accomplished on cross-
examination of a Commonwealth witness. The trial court responded, “If I
had known that that's what you were waiting for, we would've let you do
that out of order, just like the other witness. But to have her come back on
the stand, that's not a light decision.” N.T., 7/10/13, at 108. Thus, given
the fact that the Commonwealth did not force Appellant to move the
evidence into the record during his case-in-chief, it appears that any
authentication dispute could have been resolved had Appellant simply
conferred with the Commonwealth at the appropriate time. While Appellant
correctly recognized an authentication objection to the records had he
attempted to immediately impeach J.E., his ignorance of common
professional courtesies, such as the stipulation to authenticity of documents
whose provenance is not in dispute, largely explains the trial court’s decision
to defer its ruling. That failure strikes us as one of the pitfalls of proceeding
pro se. Accordingly, we find no abuse of discretion.
Turning to the decision to permit J.E. to remain in the courtroom, we
note that the court’s sequestration order specifically stated that it applied
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only until the witnesses testified. Once J.E. testified, the sequestration order
had no effect.11
Finally, we address the refusal to grant a mistrial based on a violation
of the sequestration order. We find no error, as we have determined that
the sequestration request was limited to J.E.’s direct testimony. Assuming
arguendo that Appellant’s claim is not defeated by that point, we
alternatively find no abuse of discretion. Appellant highlights that one
remedy for a violation of a sequestration order is a mistrial. See Comment,
Pa.R.E. 615 (“The trial court has discretion in choosing a remedy for
violation of a sequestration order. Remedies include ordering a mistrial,
forbidding the testimony of the offending witness, or an instruction to the
jury.”) (citations omitted). The fact that a trial judge may declare a mistrial
____________________________________________
11 The trial court granted the Commonwealth’s request to permit the victim
to stay in the courtroom on the basis that victims have a right to be present
at trial under the Pennsylvania Constitution. Our constitution does not
appear to contain any such right, and the Crime Victims Act, 18 P.S. §§
11.101-11.5102, likewise does not refer to any right to be present in the
courtroom for trial. Many states, however, provide that right in their
constitutions or by statute. See The Crime Victim’s Right to Attend the
Trial: The Reascendant National Consensus, 9 Lewis & Clark L. Rev. 481
(2005) (Beloof, Douglas, and Cassel, Paul).
We agree that the trial court’s broad discretionary powers permit
consideration of J.E.’s interest in observing the proceedings following her
testimony, including the Commonwealth’s assertion that the jury may look
unfavorably upon the victim’s absence. Moreover, we are unaware of any
authority that gives a defendant the right to exclude a victim from the
courtroom.
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as a permissible sanction for violation of a sequestration order does not
mean that the trial court must grant that remedy. A mistrial is required
“only when an incident is of such a nature that its unavoidable effect is to
deprive the appellant of a fair and impartial trial.” Tejeda, supra at 623.
Appellant’s only argument to that effect is that J.E. could tailor her
testimony in response to his questions. However, as the Commonwealth
noted at trial, the records spoke for themselves and Appellant fails to explain
why there was a danger that J.E. could “explain away” these discrepancies.
III. Challenges to Appellant’s Right to Counsel
The reordered sixth and seventh claims concern Appellant’s decision to
proceed pro se, which Appellant avers was not a free choice. It is well-
settled that while an indigent defendant is entitled to counsel, “the right to
appointed counsel does not include the right to counsel of the defendant's
choice.” Commonwealth v. Albrecht, 720 A.2d 693, 709 (Pa. 1998)
(citation omitted).
We first review the circumstances concerning Appellant’s court-
appointed counsel. On June 5, 2012, the instant charges were held for trial
at the Court of Common Pleas. The docket reflects that Public Defender
Sandra Stepkovitch, Esquire, represented Appellant, and filed pre-trial
motions on his behalf. Pretrial conferences were held on July 20, 2012, and
August 8, 2012, before the Honorable Michael J. Barrasse, who was
originally assigned to preside over this matter. The docket also indicates
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that on February 15, 2013, Judge Barrasse entered an order appointing
Christopher Osborne, Esquire, as standby counsel. Attorney Stepkovitch did
not file a motion seeking withdrawal.
On February 19, 2013, the parties appeared for jury selection, with
the Honorable Margaret Bisignani-Moyle presiding.12 At this hearing, the
Commonwealth informed Judge Bisignani-Moyle that Appellant had informed
Judge Barrasse that he did not want his lawyer to represent him and
indicated a desire to proceed pro se, resulting in Judge Barrasse appointing
Attorney Osborne as standby counsel. At that juncture, Judge Bisignani-
Moyle asked for a summary of what had occurred. Attorney Osborne stated:
I went out to Mr. Tighe at the prison on February the 12th and
had a meeting with him. Went over my appointment of standby
counsel. Mr. Tighe did not approve of my appointment of
standby counsel because I actually served in this role with Mr.
Tighe once before back in, I think, 2002 or 2003. However, I did
express to Mr. Tighe that the Court is not going to let him shop
the bar for an attorney of his choosing and that I would probably
remain as standby counsel.
The next day on February 13, we appeared in front of Judge
Barrasse. Judge Barrasse did explain to Mr. Tighe that, you
know, he doesn't get to shop around. He either hires a private
attorney, accepts me, or represents himself.
At that time he chose to accept [me] as his court-appointed
counsel. I then met with Mr. Tighe on the 13th and the 14th of
last week. Friday I couldn't get to see him; Saturday I couldn't
get to [see him] because of court personnel. I was able to meet
____________________________________________
12 The trial court opinion states that the case was transferred to Judge
Bisignani-Moyle’s courtroom, but does not indicate the reason.
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with him yesterday. He indicated to me that he had the colloquy
filled out. He was ready to proceed pro se. Judge, after he does
go through the colloquy he has a number of -- he's made me
aware of a number of pretrial motions he'd like to make.
I told him I didn't have to make them on his behalf. I would be
more than happy to assist him. But once he is accepted as pro
se, he can make his own motions.
N.T., 2/19/13, at 4-5. Attorney Osborne stated that he was prepared to
proceed as Appellant’s counsel. At that juncture, the trial court heard
testimony from Appellant, who agreed with the summary of what occurred
before Judge Barrasse. However, Appellant disputed that Attorney Osborne
was prepared for trial and expressed a desire to proceed pro se. The judge
reminded Appellant that trial would not commence until the next week,
giving additional time for him and Attorney Osborne to discuss the case.
The following conversation then occurred:
THE COURT: So even with the additional time and the expertise
that Attorney Osborne brings to the table, you still don't want to
have Attorney Osborne represent you?
MR. TIGHE: No.
THE COURT: Do you want to have the court appoint Attorney
Osborne as standby counsel?
MR. TIGHE: If you want to.
THE COURT: Okay. He could stay and assist you in strategy, voir
dire, things like that, but you would be doing the speaking. Do
you understand?
MR. TIGHE: Yes.
THE COURT: Is that what you want?
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MR. TIGHE: Yes.
THE COURT: I'm not familiar with your case from 2003, where
apparently you either represented yourself or you represented
yourself with the assistance of standby counsel. Which was it?
Do you remember?
MR. TIGHE: It was, more or less, by myself. We didn't really get
along at the time.
THE COURT: Okay. But have those arguments, or whatever
disagreements there were, have they subsided?
MR. TIGHE: Yes.
Id. at 12-13. The court then conducted a lengthy colloquy to determine if
Appellant was knowingly and voluntarily electing to proceed pro se. Thus, as
of February 13, 2013, Appellant was acting as his own attorney.
Appellant now claims that he was “denied his right to counsel and he
was appointed counsel with whom he had irreconcilable differences.”
Appellant’s brief at 31-32. The source of that claim, however, does not
relate to the aforementioned proceeding before Judge Bisignani-Moyle.
Instead, he claims that he informed Judge Barasse that he “previously tried
to sue Attorney Osborne for prior representation by him.” Appellant’s brief
at 35. Appellant apparently equates that statement to a motion seeking
appointment of new counsel on the basis of irreconcilable differences.
However, Appellant did not inform Judge Bisignani-Moyle of this complaint,
and he recognizes this fact as he claims that the trial court “seemed to be
aware of Appellant’s claimed conflict with Attorney Osborne since it
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referenced what Appellant stated on February 13.” Id. (emphasis added).
Aside from sheer speculation that Judge Bisignani-Moyle was privy to what
was discussed at the February 13 hearing—an unlikely circumstance given
the fact that the judge asked the parties to tell her what happened at that
proceeding—the only other citation to the record offered by Appellant in
reference to this conflict comes from a statement he made immediately prior
to commencement of trial.
Q. I would, again, urge you to consider permitting counsel to
represent you and for you to assist counsel and provide a full
defense on your behalf. Do you understand that I have
suggested that you consider permitting counsel to represent
you?
A. Your Honor, just for the record, I stated many of times, I'd
like to have counsel represent me, but me and Mr. Osborne don't
get along. I don't trust him with my defense.
Q. You haven't stated that.
A. Yes, I did; a couple times.
Q. No, you haven't. You've asked for different standby counsel.
A. Yes.
N.T., 7/8/13, at 47.
Having set forth the factual background, we turn to Appellant’s legal
arguments. He claims that the “irreconcilable differences” between him and
Attorney Osborne effectively forced Appellant to represent himself.
Appellant’s argument largely relies upon Commonwealth v. Smith, 626
A.2d 614, 619 (Pa.Super. 1993).
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Smith is readily distinguishable. Therein, counsel filed a motion to
withdraw, citing irreconcilable differences with her client. Smith also
“vehemently sought the withdrawal of [counsel].” Id. at 616. The trial
court denied the motions and instead entered an order stating Smith would
either continue with counsel or represent himself. Appellant elected to
represent himself, with counsel acting as standby counsel. We reversed,
finding that the trial court “effectively forc[ed] [Smith] to proceed pro se,”
thus denying him the right to counsel. Id. at 620.
Smith is thus inapposite, as Appellant was not “forced” to proceed pro
se through an improper denial of a motion to appoint alternative counsel.
Unlike Smith, Appellant herein informed the trial court that he wished to
proceed pro se. Indeed, in Smith, our holding did not turn on whether the
trial court abused its discretion in ruling on the motion for substitute
counsel; instead, we found that the waiver of counsel was not knowing or
voluntary:
Instantly, we find that appellant did not tender a knowing and
voluntary waiver of his right to counsel. No colloquy was
conducted to inform appellant, inter alia, of the permissible
range of punishments, possible defenses, and the danger of
permanently losing his right to assert defenses and other rights
if they are not raised at trial. Rather he was merely given a
choice between proceeding by himself or with counsel in whom
he had no confidence and who had herself filed a petition to
withdraw. Accordingly, we find that by effectively forcing
appellant to proceed pro se, the trial court denied appellant his
constitutionally guaranteed right to counsel.
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Id. at 619–20 (footnotes omitted). That error in Smith required a new trial,
notwithstanding whether there was an actual conflict entitling the defendant
to a different attorney.
Commonwealth v. Neal, 563 A.2d 1236 (Pa.Super. 1989), cited and
discussed in Smith as supporting its holding, demonstrates that there is no
issue with denying a motion to appoint substitute counsel on the basis of a
spurious conflict. Therein, following jury selection, but before trial, the trial
judge received a letter from Neal stating that he wanted his public defender
dismissed and new counsel appointed. The trial court thereafter discussed
the matter on the record, with Neal stating, “I don’t have the confidence that
[appointed counsel] is going to represent me correctly.” Id. at 1239
(quoting transcript). The court responded, “I'm going to honor your request,
I'm going to relieve [counsel] of her representation in this case. It makes no
sense to have her represent you if you don't have confidence in her, but I'm
following up with what I just told you, I'm not going to appoint other counsel
to represent you.” Id. at 1240. Neal objected, stating he had no ability or
desire to defend himself. The trial court nevertheless ordered him to
proceed pro se.
On appeal, we reversed. As it pertains to the issue herein, we stated
that the error was excusing counsel instead of informing Neal that he was
not entitled to a different attorney.
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It is not difficult to empathize with the trial court's frustration
when appellant, after a jury already had been selected, sought
the dismissal of his lawyer and the appointment of new counsel.
Appellant was unable to demonstrate irreconcilable differences
between himself and his lawyer, and his request to replace
counsel may well have been calculated to delay the trial. Under
the circumstances, the trial court would not have abused
its discretion by denying appellant's request to dismiss
his public defender. The trial court committed error, however,
when it excused counsel from representing appellant and forced
appellant to proceed pro se. That appellant did not want to
proceed pro se is clear. He told the court that he did not
know how to defend himself and had no knowledge regarding
“motions, how to do anything along these lines.” In the face of
this, it is clear that appellant did not voluntarily waive the right
to be represented by counsel. Instead, he was literally forced by
the court to represent himself without being apprised of the
consequences and pitfalls thereof. This, the courts have refused
to countenance.
Id. at 1242–43 (emphases added).
Thus, Neal is likewise distinguishable, as these circumstances do not
concern the removal of counsel but rather a claim that the trial court
somehow erred by failing to appoint new counsel in the absence of an
irreconcilable conflict. Instantly, Appellant asked to proceed pro se and
waived his right to counsel, as opposed to seeking removal of counsel on the
basis of a conflict.
Perhaps recognizing that the cases are distinguishable on this basis,
Appellant argues in the alternative that the waiver of his right to counsel was
invalid due to the trial court’s failure to inquire regarding this purported
conflict. We disagree. Appellant neglected to alert the trial court to any
perceived conflict between him and Attorney Osborne, and he fails to cite
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any case that holds a valid waiver of the right to counsel requires the trial
court to sua sponte ask if any type of conflict motivated the request. “To
make a knowing and intelligent waiver, the defendant must be aware of both
the right and of the risks of forfeiting the right to counsel.”
Commonwealth v. Doyen, 848 A.2d 1007, 1012 (Pa.Super. 2004).
Furthermore, even if legally viable, this claim is meritless since Appellant
was asked if there was any remaining disagreement between him and
Attorney Osborne. He said that there was not. Since Appellant denied any
conflict with Attorney Osborne when given the opportunity to inform of any
such issue, we therefore find that Appellant failed to establish that his right
to counsel was violated.
IV. Expert witness claim
Appellant’s eighth claim is that the trial court abused its discretion in
denying his request for an independent expert “to conduct independent
testing, DNA testing and/or to assist him in his defense[.]” Appellant’s brief
at 44. We apply the following principles to this type of claim.
It is well-established that indigent defendants have a right to
access the same resources as non-indigent defendants in
criminal proceedings. The state has an affirmative duty to
furnish indigent defendants the same protections accorded those
financially able to obtain them. Procedural due process
guarantees that a defendant has the right to present competent
evidence in his defense, and the state must ensure that an
indigent defendant has fair opportunity to present his defense.
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Commonwealth v. Machicote, 172 A.3d 595, 604 (Pa.Super. 2017)
(quoting Commonwealth v. Konias, 136 A.3d 1014, 1019 (Pa.Super.
2016)). As we stated in Commonwealth v. Curnutte, 871 A.2d 839
(Pa.Super. 2005):
It is true that the Commonwealth is not obligated to pay for the
services of an expert simply because a defendant requests
one. See Commonwealth v. Carter, 537 Pa. 233, 643 A.2d 61,
73 (1994); [Commonwealth v. Gelormo, 475 A.2d 765
(Pa.Super. 1984)]. There must be some showing as to the
content and relevancy of the proposed expert testimony before
such a request will be granted. See Commonwealth v.
Bell, 706 A.2d 855, 862 (Pa.Super.1998).
Id. at 842. Finally, “[t]he provision of public funds to hire experts to assist
in the defense against criminal charges is a decision vested in the sound
discretion of the court and a denial thereof will not be reversed absent an
abuse of that discretion.” Commonwealth v. Cannon, 954 A.2d 1222,
1226 (Pa.Super. 2008) (quoting Albrecht, supra at 707).
We first set forth the additional facts pertinent to this issue. Following
Appellant’s decision to proceed pro se, he requested an independent DNA
test as the Commonwealth intended to introduce DNA evidence regarding
saliva recovered from J.E.’s neck and breast. Appellant’s motion for
“independent testing” was, in truth, a request for an expert witness to assist
him in cross-examination. We begin by quoting the initial discussion of this
topic, which occurred on February 21, 2013:
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THE COURT: Motion for writ of habeas corpus for an independent
DNA test. Sir, this is your opportunity to persuade to me why
you should be granted independent testing of the DNA.
THE DEFENDANT: Your Honor, it's my 14th amendment right to
due process to call a witness on my behalf. They're calling two
DNA specialist[s]. I'm not a DNA specialist. I should have
someone in my, on my team, that I can have testify as to the
DNA sample, too, and the sampler. Like I'm not a DNA specialist.
Like they can be talking Greek and I wouldn't understand
nothing. They have two. They're calling two DNA specialists.
They're saying that the only DNA, a lot of it came back negative.
The only positive DNA was a neck swab and a breast swab. Now
I can't argue because I'm not a DNA specialist, that if there was
saliva on the neck and she removed the clothe[s] or put her
clothes on, they transferred from the neck to the breast like –
THE COURT: But right there, you're showing that you have the
ability to ask questions effectively on cross –
THE DEFENDANT: Yeah, but I can't argue the technicality of it,
Your Honor, like a DNA specialist could. And how do I not know
that their DNA was swabbed. Like I don't know how to break --
to go about questioning a DNA specialist. Like they start talking
FD-256; like I'm lost. So I feel that I should have a DNA analyst
on my team, too[.]
N.T., 2/21/13, at 28-29. The next day, the Commonwealth consented to
Appellant’s motion to postpone the case, due to the fact that a brown pubic
hair was recovered during a rape kit examination but was not tested.
Appellant agreed to have pubic hair samples taken for DNA purposes.
Appellant asked that everything be retested: “I would like to have it all
redone, neck swab and the breast swab.” N.T., 2/22/13, at 4. The trial
court denied that request, stating that the Pennsylvania State Police would
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test the pubic hair first, and informed Appellant that he could renew his
motion for independent testing depending on the results.
On July 3, 2013, the parties appeared for additional pre-trial motions,
at which Appellant sought to suppress the DNA evidence. The trial court and
Commonwealth summarized what was determined by the additional testing:
THE COURT: Okay, so in this case what they're saying is that
when they tested the hair, they discovered that there was DNA
on or in the hair itself from two or more people.
MR. TALERICO: Correct.
THE COURT: Am I reading that correct?
MR. TALERICO: Correct. And the two people that were identified
or were able to be identified were Mr. Tigue13 and the victim,
[J.E.].
....
THE COURT: Okay, basically they're saying that based on
statistical probability, the hair consists of DNA from two --
MR. TALERICO: Two sources.
THE COURT: And based on their known sources, I just want to
make sure I understand what you're saying.
MR. TALERICO: Sure.
THE COURT: They're saying based on the known sources that
they have, because they have a swab from Mr. Tigue and
presumably a swab from [J.E.]?
____________________________________________
13Some transcripts refer to Appellant as Patrick Tigue, while the certified
documents use the Tighe spelling.
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MR. TALERICO: From [J.E.].
THE COURT: They're saying that the DNA on this hair from the
two sources is consistent with the DNA of Mr. Tigue and the DNA
of [J.E.].
MR. TALERICO: Perfect.
N.T., 7/3/13, at 30-34. Appellant believed that the further testing was for
purposes of comparing his pubic hair to the hair recovered from the rape kit,
and complained that proper DNA testing could definitively match whether
the pubic hair taken from him was the same as the hair recovered from the
kit. “If they were going to take a hair, there wouldn't be a conclusion of two
DNAs, it would be one DNA. A hair can only have one possible DNA.” The
trial court accurately identified Appellant’s misapprehension, informing him
that “[W]hat you’re missing the point, sir, is that apparently there’s bodily
fluid or skin cells on the hair from a person other than the person who
belongs to the hair.” Id. at 36. The trial court denied the suppression
motion and Appellant did not renew his motion for independent testing.
We now apply the foregoing principles to this claim. We first note that
Appellant made two separate requests. The first was the motion for
independent testing of the already-completed DNA testing. The second was
a motion for an expert to assist with his cross-examination. As to the
former claim, we find that it is waived since he did not renew his motion for
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independent testing following the further pubic hair analysis.14 Next, we find
that Appellant has failed to establish that he is entitled to the appointment of
an expert to assist him with understanding and cross-examining the
Commonwealth’s DNA expert. We find that his inability to do so is directly
attributable to his lack of expertise, which is a risk associated with the
decision to proceed pro se. In fact, it is commonly stated that attorneys are
not ineffective for failing to obtain independent experts when effective cross-
examination can elicit helpful testimony. See Commonwealth v.
Showers, 782 A.2d 1010, 1021 (Pa.Super. 2001). Hence, this claim fails.
V. Impeachment claim
Appellant’s reordered ninth claim concerns the trial court’s ruling on a
Commonwealth objection made after Appellant attempted to impeach the
victim’s sister. On cross-examination, Appellant asked M.L., the victim’s
sister, if she was impaired when J.E. reported the rape. Appellant then
stated, “Did we have a chance to meet each other earlier in that day on the
29th?” N.T., 7/9/13, at 120. The Commonwealth objected and at sidebar
Appellant explained that he was with M.L. and the victim on the day in
____________________________________________
14 Even if preserved, we would deem the claim meritless. Appellant’s desire
to have the evidence retested is impossible to separate from his argument
that he was entitled to an expert to assist with his cross-examination. Thus,
Appellant failed to make the required “showing as to the content and
relevancy of the proposed expert testimony[.]” Commonwealth v.
Bell, 706 A.2d 855, 862 (Pa.Super. 1998).
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question, and M.L. bought and consumed drugs in his presence, thereby
establishing that she was possibly impaired later that evening. See
Commonwealth v. Small, 980 A.2d 549, 570 (Pa. 2009) (jury may not
consider drug use by witnesses for impeachment purposes, but may if the
intoxication pertains to time of occurrence about which witness testified).
The Commonwealth responded that its pre-trial motion to introduce evidence
that drug use was part of the relationship between Appellant and the victim
was denied. The trial court agreed, stating “[w]hat’s good for the goose is
good for the gander.” N.T., 7/9/13, at 126. Following more discussion, the
trial court remarked, “[Y]ou’re going to withdraw your question for now, is
that what you’re telling me?” Id. at 126-27. Appellant agreed, and when
the sidebar concluded Appellant stated, “I withdraw that question, Your
Honor.” Id. at 127.
Appellant now argues that his question was directly addressed to
M.L.’s ability to perceive and recall the actual events she testified to, as
opposed to introducing general evidence concerning drug use and its role in
his relationship to the victim and her sister. We agree with the trial court
that Appellant waived any objection to the trial court’s ruling by withdrawing
the question. While Appellant claims he was forced to do so by the trial
court stating “[Y]ou’re going to withdraw your question,” we agree that
Appellant could have preserved his objection by disagreeing. Moreover,
Appellant then repeated in open court that he would withdraw the question.
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See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal.”).
VI. Sentencing Claims
Appellant’s remaining arguments all pertain to sentencing. He argues
that the trial court abused its discretion by failing to appoint an expert for
his sexually violent predator (“SVP”) hearing. Second, he avers that the
crimes of sexual assault and rape merge. Third, he asserts that the trial
court vindictively increased his sentence when resentencing him. We vacate
the SVP designation, vacate judgment of sentence, and remand for
resentencing.
Following briefing in this matter, we issued Commonwealth v.
Butler, 173 A.3d 1212 (Pa.Super. 2017). Butler applied Commonwealth
v. Muniz, 164 A.3d 1189 (Pa. 2017), which held that the sexual offender
requirements under the Sexual Offender Registration and Notification Act,
including its SVP framework, constitute punishment. Butler determined
that, as a result of Muniz, the SVP procedure is subject to the constitutional
requirement that the facts constituting that punishment must be found by a
fact-finder beyond a reasonable doubt. Thus, 42 Pa.C.S. § 9799.24(e)(3),
which requires the trial court to find the relevant facts by clear and
convincing evidence, was deemed unconstitutional. Id. at 1218. As Butler
explained:
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As the sole statutory mechanism for SVP designation is
constitutionally flawed, there is no longer a legitimate path
forward for undertaking adjudications pursuant to section
9799.24. As such, trial courts may no longer designate convicted
defendants as SVPs, nor may they hold SVP hearings, until our
General Assembly enacts a constitutional designation
mechanism. Instead, trial courts must notify a defendant that he
or she is required to register for 15 years if he or she is
convicted of a Tier I sexual offense, 25 years if he or she is
convicted of a Tier II sexual offense, or life if he or she is
convicted of a Tier III sexual offense.
Id. at 1218 (citation and footnote omitted).
Since Butler finds that this issue pertains to the legality of the
sentence, which we may reach sua sponte, we find that Appellant’s sentence
illegally included an SVP designation. In Butler, the SVP designation
resulted in an increase of his registration requirements. “In this case, if
[Butler] were not designated an SVP, he would be required to register for
only 15 years. In other words, the SVP designation increased [his]
registration exposure from 15 years to life.” Id. at 1215-16 (citations and
footnotes omitted). Since Appellant was convicted of a Tier III offense, he is
still required to register for life. See 42 Pa.C.S. § 9799.14 (classifying rape
as a Tier III offense). Hence, we vacate Appellant’s SVP designation.
Next, we address the assertion that his sentences for rape and
indecent assault merge. The trial court agreed and asks this Court to vacate
the sentence, while the Commonwealth states that the sentences “probably”
merge. Commonwealth’s brief at 59. For the following reasons, we disagree
with Appellant and the trial court with respect to the crimes of rape and
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indecent assault. However, we find that the sentences for IDSI and indecent
assault merge.
We first set forth the statutory text for the crimes identified by
Appellant. The crime of rape reads:
(a) Offense defined.--A person commits a felony of the first
degree when the person engages in sexual intercourse with a
complainant:
(1) By forcible compulsion.
....
18 Pa.C.S. § 3121(a)(1). As to indecent assault, Appellant was charged with
violating the following subsection:
(a) Offense defined.--A person is guilty of indecent assault if
the person has indecent contact with the complainant, causes
the complainant to have indecent contact with the person or
intentionally causes the complainant to come into contact with
seminal fluid, urine or feces for the purpose of arousing sexual
desire in the person or the complainant and:
....
(8) the complainant is less than 16 years of age and the person
is four or more years older than the complainant and the
complainant and the person are not married to each other.
18 Pa.C.S. § 3126. Additionally, “indecent contact” is defined to include
“[a]ny touching of the sexual or other intimate parts of the person for the
purpose of arousing or gratifying sexual desire, in either person.” 18 Pa.C.S.
§ 3101.
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“A claim that crimes should have merged for sentencing purposes
raises a challenge to the legality of the sentence. Therefore, our standard of
review is de novo and our scope of review is plenary.” Commonwealth v.
Nero, 58 A.3d 802, 806 (Pa.Super. 2012) (quoting Commonwealth v.
Quintua, 56 A.3d 399, 400 (Pa.Super. 2012)). Whether sentences merge is
governed by statute:
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.
42 Pa.C.S. § 9765.
The trial court opined that these crimes merge due to the fact that
“the act upon which indecent assault is predicated has already been taken
into account by the rape or involuntary sexual assault and merges[.]” Trial
Court Opinion, 4/10/17, at 40. As to that facet of the merger analysis, we
agree. See Commonwealth v. Lomax, 8 A.3d 1264 (Pa.Super. 2010)
(engaging in vaginal intercourse with child met requirement of sexual
intercourse for rape of a child as well as “indecent contact” for indecent
assault). However, the trial court’s inquiry was incomplete, as that analysis
only accounted for whether “the crimes arise from a single criminal act[.]”
42 Pa.C.S. § 9765. Appellant did not address whether the second
requirement, that “all of the statutory elements of one offense are included
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in the statutory elements of the other offense,” was met. Therefore, we
conclude that Appellant’s argument is waived.15
Nevertheless, legality of sentence may be raised sua sponte, and we
find that the charged subsection of indecent assault merged with the
charged subsection of IDSI. The latter statute reads:
(a) Offense defined.--A person commits a felony of the first
degree when the person engages in deviate sexual intercourse
with a complainant:
....
(7) who is less than 16 years of age and the person is four or
more years older than the complainant and the complainant and
person are not married to each other.
18 Pa.C.S. § 3123.16
____________________________________________
15 It would appear that the crimes do not merge under the statute. See
Commonwealth v. Baldwin, 985 A.2d 830 (Pa. 2009) (crime of carrying a
firearm without a license did not merge with crime of carrying firearm in
Philadelphia without a license; while the crimes had the shared element of a
lack of license, each crime included an element the other did not). Here, the
crime of rape required proof of sexual intercourse by forcible compulsion,
whereas indecent assault under § 3126(a)(8) does not require any proof of
force. Additionally, indecent assault required proof that J.E. was less than
sixteen years of age; that Appellant was four or more years older; and that
the two were not married, whereas rape does not. Thus, each crime
requires proof of at least one element that the other does not. See
Commonwealth v. Parham, 969 A.2d 629 (Pa.Super. 2009) (rape and
statutory sexual assault do not merge, as the latter crime requires proof that
the complainant is under sixteen years of age, perpetrator is at least four
years older, and that the complainant and perpetrator are unmarried, while
former requires proof of forcible compulsion or threat thereof).
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“Deviate sexual intercourse” is defined as “Sexual intercourse per os or
per anus between human beings[.]” 18 Pa.C.S. § 3101. Proof of the
“deviate sexual intercourse” requirement of § 3123(a)(7) satisfies the
“indecent contact” element of § 3126(a)(8). Thus, proof of involuntary
deviate sexual intercourse with a person under sixteen necessarily proved
indecent assault of a person under sixteen. Accordingly, the convictions
merge for sentencing purposes. See Commonwealth v. Brown, 159 A.3d
531 (Pa.Super. 2017) (rape of a child merged with IDSI of a child). Since
the trial court imposed a consecutive sentence on the charge of indecent
assault, our finding disrupts the sentencing scheme and requires that we
vacate the judgment of sentence and remand for resentencing.17
(Footnote Continued) _______________________
16 The public docket sheet states that Appellant was convicted of 18 Pa.C.S.
§ 3123(b), which criminalizes deviate sexual intercourse “with a complainant
who is less than 13 years of age.” J.E. was fifteen years old, and hence
Appellant could not be convicted of this crime. We have reviewed the jury
instructions and verdict slip, both of which show that Appellant was, in fact,
convicted of 18 Pa.C.S. § 3123(a)(7).
17 We note that Appellant committed the instant crimes on May 29, 2012,
prior to the enactment of the Sexual Offender Registration Notification Act,
which became effective December 20, 2012, but was sentenced after its
effective date. In Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017),
our Supreme Court held that application of SORNA constituted an ex post
facto violation when a previous version was in effect “at the time of his
offense and conviction.” Id. at 1193. Herein, the law changed between the
commission of Appellant’s criminal conduct and sentencing, and Appellant
would presumably be entitled to relief under Muniz. See e.g. Peugh v.
United States, 133 S.Ct. 2072 (2013) (ex post facto violation where a
(Footnote Continued Next Page)
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Appellant’s final complaint is that the trial court vindictively
resentenced him when it imposed a consecutive sentence at indecent
assault, whereas the original scheme called for a concurrent sentence. Since
we have vacated judgment of sentence on the merger basis, we need not
reach this issue.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/12/2018
(Footnote Continued) _______________________
defendant was sentenced under federal guidelines promulgated after the
commission of his criminal acts).
Since Appellant is entitled to resentencing the parties may address this issue
at that juncture, and we note that the Legislature has amended SORNA,
effective February 21, 2018, to address Muniz. See e.g. 42 Pa.C.S. §§
9799.51 – 9799.75.
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