Commonwealth v. Guillaume

1

COMMONWEALTH OF PENNSYLVANIA v. SAMUEL GUILLAUME Appellant

No. 161 MDA 2023

Superior Court of Pennsylvania

January 18, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered September 13, 2022 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0000763-2019

BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J.

MEMORANDUM

NICHOLS, J.

Appellant Samuel Guillaume appeals from the judgment of sentence imposed following his convictions for corrupt organizations conspiracy, forgery, identity theft, washing vehicle titles and tampering with records or identification.^[1] On appeal, Appellant challenges the sufficiency of the evidence and alleges trial court error regarding his right to counsel, evidentiary issues, and merger of sentences. After careful review, we affirm Appellant's convictions but vacate the judgment of sentence and remand for resentencing.

The underlying facts of this matter are well known to the parties. See Trial Ct. Op., 5/15/23, at 2-7. Briefly, Appellant was charged with multiple offenses based on allegations that he participated in a series of title-washing schemes between 2013 and 2015. During that time, Appellant and several other individuals utilized stolen identities to obtain financing and insurance policies for seven vehicles.

While this case was pending, Appellant retained the services of two private attorneys, Michael Worgul, Esq., and Jerry Russo, Esq., who Appellant subsequently fired. At a hearing before the trial court on May 2, 2022, Appellant indicated that he wished to proceed pro se. See N.T. Hr'g, 5/2/22, at 2. At that time, the trial court confirmed that Appellant understood that he had the right to be represented by counsel and that if he could not afford counsel, an attorney would be appointed at no cost. See id. at 5. Appellant was informed of the charges against him, the permissible range of sentencing, the fact that he would be bound by the standard procedural rules, and that there may be possible defenses or rights that would be lost permanently if Appellant failed to raise them at the proper time. See id. at 5, 8-14, 23-24. Ultimately, the trial court permitted Appellant to proceed pro se and appointed standby counsel. See id. at 6.

Following a jury trial, Appellant was convicted of the aforementioned charges. On September 13, 2022, the trial court imposed an aggregate sentence of thirty to sixty months' incarceration. Following sentencing, Appellant retained counsel, who filed post-sentence motions on Appellant's behalf. The trial court denied Appellant's post-sentence motions on January 13, 2023.

Appellant filed a timely notice of appeal and a court-ordered Pa.R.A.P 1925(b) statement. The trial court issued a Rule 1925(a) opinion addressing Appellant's claims.

Appellant raises the following issues, which we have re-ordered for our review:

1. Whether the trial court violated [Appellant's] right to counsel by finding that he waived or forfeited that right despite failing to adequately determine that [Appellant] understood the nature of the proceedings and the rights he would be giving up by proceeding pro se and where [Appellant] never engaged in extremely dilatory or disruptive behavior?

2. Whether the Commonwealth introduced sufficient evidence to prove corrupt organizations and conspiracy to commit corrupt organizations where the first charge requires an enterprise and [Appellant] himself was not an enterprise, and the second charge does not exist because the corrupt organizations statute itself encompasses a conspiracy?

3. Whether the trial court violated [Appellant's] right to confrontation by allowing a police officer to testify against [Appellant] by video where the only reason offered for doing so was that the officer had to take a family member to a surgery and the Commonwealth could have called the officer to testify on a different day?

4. Whether the trial court misinterpreted the rules of evidence and erroneously concluded that inconsistent statements offered to impeach two witnesses were hearsay when it precluded [Appellant] from calling his private investigator to testify that the main witnesses against him had told the investigator that they implicated [Appellant] only under duress and that the police had also attempted to intimidate the investigator during trial, thereby depriving [Appellant] of his entire defense and violating his Sixth Amendment rights?

5. Whether corrupt organizations - conspiracy and conspiracy to commit corrupt organizations - conspiracy merge at sentencing?

Appellant's Brief at 9-10.

Appellant's Right to Counsel

Appellant argues that he is entitled to "a new trial because he should not have been forced to proceed pro se." Id. at 31. In support, Appellant argues that the trial court's waiver-of-counsel colloquy was defective because the trial court never inquired as to Appellant's ability to understand the proceedings, nor did the trial court derive information as to Appellant's educational background. Id. at 36-37. Alternatively, Appellant claims that the trial court erred in concluding that he forfeited his right to counsel. Id. at 38. Specifically, Appellant contends that the trial court never warned Appellant that he was risking the forfeiture of his right to counsel, nor did the trial court mention the concept of forfeiture during the May 2, 2022 hearing. Id.

The Sixth Amendment to the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution guarantee the right to counsel. Commonwealth v. Lucarelli, 971 A.2d 1173, 1178 (Pa. 2009). Whether that right was violated is a question of law, over which our standard of review is de novo and our scope of review is plenary. See id.; see also Commonwealth v. J. Baldwin, 58 A.3d 754, 762 (Pa. 2012).

Pennsylvania courts have recognized that "[a] criminal defendant's right to counsel under the Sixth Amendment includes the concomitant right to waive counsel's assistance and proceed to represent oneself at criminal proceedings." Commonwealth v. Green, 149 A.3d 43, 56 (Pa. Super. 2016) (citing, inter alia, Faretta v. California, 422 U.S. 806 (1975)). However, although a defendant's right to self-representation is guaranteed, it is not absolute. Commonwealth v. Brooks, 104 A.3d 466, 474 (Pa. 2014).

It is well settled that a defendant can waive or forfeit his right to counsel. Lucarelli, 971 A.2d at 1178-79. In distinguishing between waiver and forfeiture, our Supreme Court has stated that while waiver is "an intentional and voluntary relinquishment of a known right," forfeiture "does not require that the defendant intend to relinquish a right, but rather may be the result of the defendant's 'extremely serious misconduct' or 'extremely dilatory conduct.'" Id. at 1179 (citations omitted). Therefore, when a defendant forfeits his right to counsel through his own conduct, the waiver-of-counsel colloquy requirements set forth at Pa.R.Crim.P. 121 do not apply. See id. (explaining that "[t]o hold otherwise would permit a recalcitrant defendant to engage in the sort of obstructive behavior that mandates the adoption of the distinction between forfeiture and waiver in the first instance").

In Lucarelli, our Supreme Court noted that the defendant had the financial ability to retain private counsel, fired several lawyers that he had hired, was given over eight months to prepare for trial, and then appeared at trial without an attorney or an explanation as to why counsel was not present. Id. at 1180. Therefore, the Court held that "where a defendant's course of conduct demonstrates his [] intention not to seek representation by private counsel, despite having the opportunity and financial wherewithal to do so, a determination that the defendant be required to proceed pro se is mandated because that defendant has forfeited the right to counsel." Id. at 1179.

Following our Supreme Court's decision in Lucarelli, this Court considered whether a defendant intentionally forfeited his right to counsel in Commonwealth v. Kelly, 5 A.3d 370 (Pa. Super. 2010). In Kelly, this Court concluded as follows:

[The defendant] . . . had been unwilling to cooperate with all three counsel assigned to him; who argued all counsel were incompetent because they refused to argue what [the defendant] believed was the law; who, the day after his pro se motion to withdraw his first guilty plea was granted, filed pro se an omnibus pre-trial motion seeking suppression of evidence on a ground the trial court had already addressed (validity of search warrant); who wanted a counsel, but only one who would please him; who treated appointed counsel with disdain; whose trial had been already postponed because he could not agree with assigned counsel (counsel 2); who had been warned by the trial court that failure to cooperate with assigned counsel (counsel 3) would result in him representing himself pro se at trial; who sought to have other counsel appointed to him (who would have been counsel 4) and postpone the trial instead of trying to cooperate with counsel 3; and who clearly was not interested in listening closely [to] what [the trial court] was telling him, consumed as he was in making his point counsel were ineffective and he knew the law better than assigned counsel. We have no difficulty concluding the trial court did not err in finding [the defendant] intentionally forfeited his right to counsel.

Id. at 381-82 (footnote omitted).

Finally, in Commonwealth v. McLendon, 293 A.3d 658 (Pa. Super. 2023), this Court found that the defendant forfeited his right to counsel. McLendon, 293 A.3d at 670. Applying Lucarelli and Kelly, the McLendon Court concluded as follows:

[A]s in Lucarelli, [the defendant's]

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