Commonwealth v. Lampley

1

COMMONWEALTH OF PENNSYLVANIA v. MARKESE DENASHAWN LAMPLEY Appellant

No. 693 WDA 2022

J-S28022-23

Superior Court of Pennsylvania

November 28, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered August 18, 2021 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0000597-2020

BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E ^[*]

MEMORANDUM

OLSON J.

Appellant Markese Denashawn Lampley, appeals from the August 18, 2021 judgment of sentence entered in the Court of Common Pleas of Erie County that imposed an aggregate sentence of life imprisonment without the possibility of parole to be followed by 13 to 44 years' incarceration. We are constrained to remand this case for an evidentiary hearing in accordance with this memorandum.

The trial court summarized the procedural history as follows:

On April 15, 2020, the [Commonwealth] by way of information, charged Appellant with [numerous criminal offenses under the Crimes Code and several summary offenses under the Vehicle Code for events occurring on January 25, 2020.] On August 7, 2020, Appellant through appointed counsel, Bruce G. Sandmeyer, Esquire, [("Attorney Sandmeyer")] filed an omnibus pre[-]trial motion seeking a change of venue, a change of venire, [] a []motion for dismiss[al,] and [a petition for] writ of habeas corpus.[] Appellant's motions were denied on August 31, 2020. On November 2, 2020, Appellant privately retained Jason E. Nard, Esquire [("Attorney Nard")]. On June 16, 2021, a status conference was held to discuss the motion in limine that was filed by Attorney Nard, on behalf of Appellant, seeking to exclude photographs of the deceased victim, photographs taken at the victim's autopsy, and a letter written by Appellant to [a] magisterial district judge[.] Prior to the hearing, the Commonwealth filed a response to [Appellant's] motion in limine regarding the letter to [the] magisterial district judge[.] The [trial] court determined that the letter was admissible under Pennsylvania Rule[] of Evidence [] 901(b)(4) and incorporated the Commonwealth's legal arguments in its order. [On] June 17, 2021, the Commonwealth filed a motion to amend information seeking to withdraw [several criminal charges] and also to amend a spelling error of the last name of the deceased victim[. That same day, the trial] court granted the Commonwealth's motion.

With the jury trial quickly approaching, on June 16, 2021, Attorney Nard informed the [trial] court that Appellant unexpectedly decided he wanted to proceed pro se at trial. On June 21, 2021, [the trial] court held a Grazier^[1] hearing. At the hearing, the [trial] court provided a brief summary of the history of the case. Attorney Nard stated he met with Appellant on Wednesday, June 16, 2021, and was informed Appellant no longer wished to retain his services. Appellant provided the [trial] court with a "Pro Se Notice" and requested he be addressed as ["]Mileage Galor Bey["]. Attorney Nard stated that Appellant had been cooperative throughout the entirety of the proceedings since [Attorney Nard] was retained in November 2020[,] until June 16, 2021. Four [] days before the start of his trial, Appellant proclaimed himself to be a sovereign citizen and incorrectly stated the [trial] court lacked authority and jurisdiction over him. After an exhaustive colloquy with Appellant, the [trial] court found that Appellant knowingly, voluntarily, and intelligently, relinquished his right to be represented by counsel. Appellant even stated to the [trial] court that: "it's my choice." Once satisfied with Appellant's waiver, the [trial] court appointed Attorney Nard to act as standby counsel. Appellant agreed with the appointment of Attorney Nard as standby counsel. The trial started with jury selection on June 24, 2021.

On July 2, 2021, after a four-day jury trial, Appellant was found guilty of murder in the second degree[ (Count 2), 3] counts of aggravated assault[ - serious bodily injury (Counts 3 - 5)], robbery[ - inflicts serious bodily injury (Count 6),] possessing instruments of crime (Count 11), 2] counts of simple assault[ - fear of imminent serious bodily injury (Counts 13 and 14), 6] counts of recklessly endangering another person[ (Counts 15 - 18, 20 and 21) and fleeing or attempting to elude police officer (Count 10).^[2] Additionally, the [trial] court found Appellant guilty of [10] summary motor vehicle offenses.^[3]

On August 18, 2021, after consideration of the pre[-]sentence [investigation] report, 42 Pa.C.S.A. § 9721(b) regarding rehabilitation potential, the gravity of the offense, the impact on the community[ and] the victims, [the] need to protect the public, and the sentencing guidelines, the [trial] court [imposed], inter alia, a sentence of life in prison without parole and 13 to [44] years[' incarceration, with the aggregate term of incarceration imposed at Counts 3 - 6, 10, 11, 13 - 18, 20, and 21 set to run consecutively] to the sentence of life [in prison imposed] at Count 2.^[4] On August 30, 2021, Appellant filed a post-sentence motion claiming that because he was a sovereign citizen[,] the [trial] court lack[ed] jurisdiction over him, and asserted what the [trial] court gleaned as challenges to the judgment of sentence imposed by the [trial] court on August 18, 2021. On September 2, 2021, the [trial] court [denied] Appellant's [post-sentence motion. In so doing, the trial] court held that Appellant's sovereign citizen claim was frivolous and his other claims lacked legal merit. On September 7, 2021, Appellant filed [pro se] a "Notice Requesting Leave to Supplement Post-Sentence Notice for New Trial" dated September 6, 2021. Appellant alleged the Commonwealth never filed a motion to amend the criminal information and added additional charges, violating [Pennsylvania Rule of Criminal Procedure] 564. The [trial] court found Appellant's claims to be "factually inaccurate" as the Commonwealth did file a motion to amend the information on June 17, 2021, and no new charges were added. In fact, the Commonwealth withdrew several charges. Consequently, Appellant's motion was denied.

On May 6, 2022, Appellant filed a "Motion to Reinstate Appellate Rights Nunc Pro Tunc." Due to the unique facts surrounding this case (Appellant proceeding pro se at trial and claiming sovereign citizenship) and out of deference to Appellant, [the trial] court granted Appellant's motion. Appellant filed his "Statement of Matters Complained of on Appeal Pursuant to [Pennsylvania Rule of Appellate Procedure] 1925(b)" and alleged the weight and sufficiency of the evidence were insufficient to support the verdicts. During this time, Appellant was proceeding pro se.

Under directive from [this Court, the trial] court held a Grazier hearing in order to determine whether Appellant wished to continue his appeal pro se. Appellant immediately requested to be assisted by counsel, and [on] July 20, 2022, [the trial] appointed Jessica A. Fiscus, Esquire [("Attorney Fiscus")].

Trial Court Opinion, 12/15/22, at 1-5 (record citations, footnotes, original brackets, and extraneous capitalization omitted).

Appellant raises the following issues for our review:

[1.] Did the trial court err when it permitted Appellant to proceed pro se at the time of trial where the waiver colloquy does not reveal that Appellant made a knowing, voluntary, and intelligent waiver of counsel?

[2.] Did the trial court violate Appellant's federal and state constitutional right to self-representation when it adopted a practice of standby counsel acting as a "liaison" for Appellant at multiple sidebars and in-chambers discussions rather than allowing Appellant to speak for and represent himself as, on many of these occasions, the trial court received evidence, heard argument, [or] made decisions on evidentiary issues [or] issues affecting Appellant's fundamental rights as an accused person?

[3.] Is the evidence insufficient to sustain the convictions for aggravated assault, as to Kayla Hanas and Jacelyn Anderson, where the evidence of record, viewed in the light most favorable to the Commonwealth, did not demonstrate that Appellant had the specific intent to inflict serious bodily injury on either of them?

Appellant's Brief at 11 (extraneous capitalization omitted).^[5]

In his first issue, Appellant asserts that his waiver of counsel was not knowingly, voluntarily, or intelligently provided because the "trial court clearly did not comply with the minimum, mandatory requirements of [Pennsylvania Rule of Criminal Procedure 121]" in conducting the waiver of counsel colloquy. Id. at 46. In particular, Appellant contends that (1) "the trial court never outlined the elements of the crimes [for which he was charged] in the colloquy" as required by Rule 121(A)(2)(b); (2) the trial court "never indicated that Appellant had the right to have free counsel appointed if he [were] indigent" as required by Rule 121(A)(2)(a); (3) trial court failed to advise Appellant that he may lose many rights permanently if not timely asserted as required by Rule 121(A)(2)(f); and (4) "the trial court did not identify with any particularity the summary offenses charged, incorrectly stated that [Appellant] faced ten rather than eleven [summary offenses], and did not identify the maximum fine[s permitted] by statute" as required by Rule 121(A)(2)(b).

Because Appellant's claims require us to interpret Rule 121 and its colloquy requirements, these claims present a question of law for which our standard of review is de novo and our scope of review is plenary. Commonwealth v Phillips, 141 A.3d 512, 518 (Pa. Super. 2016), appeal denied, 161 A.3d 796 (Pa. 2016). It is well-established that

an accused has a constitutional

...