Commonwealth v. Phillips

141 A.3d 512

2016 PA Super 103

COMMONWEALTH of Pennsylvania

v.Tabu Nazshon PHILLIPS, Appellant.

No. 802 MDA 2015

Superior Court of Pennsylvania.

Submitted Feb. 16, 2016.

Filed May 19, 2016.

James J. Karl, Harrisburg, for appellant.

Joseph P. Cardinale, Jr., Assistant District Attorney, Harrisburg, for Commonwealth, appellee.

BEFORE: MUNDY, J., DUBOW, J., and STRASSBURGER, J.^*

OPINION BY DUBOW, J.:

Appellant, Tabu Phillips, appeals from the Judgment of Sentence entered in the Dauphin County Court of Common Pleas on March 31, 2015. Following a trial, the jury convicted Appellant of one count of Persons Not to Possess Firearm and one count of Possessing an Instrument of Crime—Unlawful Body Armor.¹ We hold that: (i) the trial court was not required to advise Appellant of the applicable sentencing guidelines prior to finding that Appellant knowingly, voluntarily and intelligently waived his right to counsel; (ii) having already obtained a valid waiver of counsel, the trial court was not required to perform a new waiver-of-counsel colloquy absent a substantial change in circumstances; (iii) Appellant waived his claim that certain out-of-court statements were inadmissible proof of prior acts under Pa.R.E. 404(b) when he failed to preserve this claim in the trial court and in his Rule 1925(b) Statement; and (iv) Appellant waived his claim that these out-of-court statements were irrelevant by failing to develop this claim in the argument section of his Appellate Brief. Accordingly, we affirm the Judgment of Sentence.

Factual and Procedural History

This is Appellant's second conviction and appeal to this Court for the same underlying offense. This Court previously vacated Appellant's initial convictions and remanded for a new trial after concluding that the trial court had failed to elicit a knowing, voluntary and intelligent waiver of counsel from Appellant before permitting him to proceed pro se in his first trial. See Commonwealth v. Phillips, 93 A.3d 847, 855 (Pa.Super.2014). At his re-trial, Appellant again elected to represent himself pro se. That jury also convicted Appellant. The facts and procedural history are as follows.

On December 22, 2011, officers of the Harrisburg City Police Department responded to a 911 call from a female screaming for help and stating that someone was trying to kill her. Id. at 849. Officers responded to a boarding house and followed the sounds of a screaming female to the second floor, where they encountered Appellant breathing rapidly as he walked out of a bedroom. Id.

In the bedroom that Appellant had just vacated, officers found Jasmine Matthews (“Matthews”), who was “crying, breathing very hard, and had blood coming from her nose and mouth.” Id. The visibly distraught Matthews told officers that Appellant had repeatedly struck her with his fists and with a gun. N.T. Suppression, 11/13/14, at 20–21. Matthews showed officers the gun Appellant used to strike her, a .32 caliber Colt gray top action revolver located under the foot of the bed. Phillips, supra at 849.

Officers discovered Appellant had a warrant out for his arrest, and took him into custody. Id. While searching Appellant incident to arrest, officers discovered Appellant was wearing a Kevlar vest with ammunition for a .32 caliber firearm in the pocket. Id. Appellant was charged with one count of Persons Not to Possess Firearm, one count of Possessing an Instrument of Crime—Unlawful Body Armor, and one count of Simple Assault.

As noted above, Appellant represented himself pro se in his first trial. After a jury convicted him of the two possession charges and acquitted him of the simple assault, Appellant appealed to this Court alleging, inter alia, that his waiver of counsel had not been knowing, voluntary and intelligent. This Court agreed, finding none of the waiver-of-counsel colloquies given by the trial court satisfied the minimum requirements under Pa.R.Crim.P. 121. Id. at 852–55. We remanded for a new trial on the possession charges only.

On October 7, 2014, Appellant filed two motions pro se: (1) a Motion to Proceed Pro Se citing a disagreement in trial strategy between Appellant and his appointed counsel; and (2) a Motion to Suppress challenging the officer's warrantless entry into the boarding house and the subsequent seizure of the firearm discovered therein.

On November 13, 2014 the Honorable Scott Arthur Evans held a hearing on both Motions. At the commencement of the hearing, the trial court presided over a waiver-of-counsel hearing of Appellant on the record before granting Appellant's Motion to Proceed Pro Se and appointing standby counsel. N.T. Suppression, 11/13/14, at 3–12. The parties then proceeded with testimony on the Motion to Suppress, which Judge Evans denied at the close of the hearing.

A two-day jury trial began on March 11, 2015. Prior to jury selection, Appellant presented the trial court with a Motion in Limine challenging the admissibility of (1) Appellant's prior criminal record, (2) a recording of a prison phone conversation, and (3) the content of the 911 call from Matthews. Appellant challenged the 911 call, in which Matthews states “He is trying to kill me,” as irrelevant and unfairly prejudicial given the absence of assault charges against Appellant on remand.

The trial court denied Appellant's Motion in Limine, and then conducted a second waiver-of-counsel hearing of Appellant on the record before proceeding with jury selection and trial.

The jury convicted Appellant of both possession charges. Judge Evans subsequently sentenced Appellant to five to ten years of incarceration for Persons Not to Possess Firearms, and a consecutive one to four years sentence for Unlawful Body Armor. Appellant filed a pro se post-sentence motion on April 8, 2015. The next day, counsel entered an appearance on behalf of Appellant and filed an amended post-sentence motion. The court denied the Motion on April 13, 2015. Appellant timely appealed. Both Appellant and the trial court complied with Pa.R.A.P.1925.

Issues Raised on Appeal

Appellant raised the following alleged errors in his counseled Rule 1925(b) Statement:

1. [The trial court] erred by failing to conduct a complete and thorough, on-the-record colloquy of Appellant before allowing him to proceed to his suppression hearing and trial pro se in violation of Pa.R.Crim.P. Rule 121, resulting in an unknowing, involuntary, and unintelligent waiver of his right to counsel under the Fifth and Sixth Amendments to the United States Constitution and Articles I and V, Section 9 of the Pennsylvania Constitution.

2. [The trial court] erred in admitting evidence of the 911 call where such was irrelevant to the underlying charges, and where any probative value was outweighed by the danger of unfair prejudice, confusing the issues, and misleading the jury.

3. [The trial court] erred in admitting the victim's statement to police where the statement constituted inadmissible hearsay not subject to any exception.

4. [The trial court] erred in denying Appellant's Post–Sentence Motion where his sentence is excessive and unreasonable and constitutes too severe a punishment in light of the gravity of the offense, Appellant's rehabilitative needs, and what is needed to protect the public.

Appellant's Statement of Errors Complained of Upon Appeal Pursuant to PA.R.A.P.1925(b).

Appellant's Statement of Questions Presented in his counseled Brief to this Court raises two issues on appeal:

a. Did not the lower court fail to insure that [Appellant's] waiver of his right to counsel was knowing, voluntary, and intelligent when it failed to conduct a waiver-of-counsel colloquy at a critical stage of the proceedings and when the two colloquies that it did conduct were insufficient under the standards of Pa.R.Crim.P. 121(A)(2) ?

b. Did the trial court err in denying [Appellant's] Motion In Limine to exclude as irrelevant certain out-of-court declarations of the alleged victim of the simple assault when the defendant had been acquitted of the simple assault at the first jury trial and when it was unnecessary for the Commonwealth at the second trial to introduce a detailed account of the alleged assault?

Appellant's Brief at 5 (capitalization omitted).

Waiver of Counsel Claims

Although stated as a single question in his brief to this Court, Appellant's waiver-of-counsel claim consists of two distinct arguments. First, Appellant avers that the trial court was required to advise him of the applicable sentencing guidelines prior to finding Appellant's waiver of counsel was knowing, voluntary and intelligent.

Second, Appellant avers that the trial court was required to conduct a new waiver-of-counsel colloquy prior to hearing Appellant's Motion in Limine.

The right to counsel and the corresponding right to self-representation are deeply entrenched in both state and federal law. As our Supreme Court has made clear:

[i]t is ... firmly established that an accused has a constitutional right to counsel during trial. While an accused may waive his constitutional right, such a waiver must be the free and unconstrained choice of its maker, and also must be made knowingly and intelligently. To be a knowing and intelligent waiver defendant must be aware of both the right and of the risks of forfeiting that right.

Commonwealth v. Tyler, 468 Pa. 193, 360 A.2d 617, 620 (1976) (citations and quotations omitted). Deprivation of the right to counsel, or the right to waive counsel, can never be harmless. Commonwealth v. Payson, 723 A.2d 695, 699–700 (Pa.Super.1999). Moreover,

the presumption must always be against the waiver of a constitutional right. Nor can waiver be presumed where the record is silent. The record must show, or there must be an allegation and evidence which shows, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.

Commonwealth v. Monica, 528 Pa. 266, 597 A.2d 600, 603 (1991).

Pennsylvania Rule of Criminal Procedure 121 outlines additional...