Commonwealth v. Tejada

161 A.3d 313

COMMONWEALTH of Pennsylvania

v.Ricky TEJADA, Appellant

No. 403 MDA 2016

Superior Court of Pennsylvania.

Argued November 1, 2016

FILED APRIL 26, 2017

Gregory A. Jackson, Huntingdon, for appellant.

Julia B. Wilt, Assistant District Attorney, Huntingdon, for Commonwealth, appellee.

BEFORE: BOWES, OLSON AND STABILE, JJ.

OPINION BY BOWES, J.:

Ricky Tejada appeals from the judgment of sentence of twenty-one to forty-two months of incarceration imposed following his conviction for aggravated harassment by prisoner. We affirm the conviction but vacate the judgment of sentence, and remand for further proceedings.

The facts are simple. While housed at the state correctional facility on another matter, Appellant spit in the face of a corrections officer who was attempting to remove Appellant from the law library. On January 23, 2015, shortly before trial was to begin, the parties appeared before the court to address Appellant's attire. The prosecutor informed the judge that Appellant wished to appear in his Department of Corrections jumpsuit instead of a suit. N.T., 1/23/15, at 2. The judge advised Appellant that the choice was his and asked what he wished to do, but Appellant failed to respond to the trial judge's inquiry. Id . Thereafter, Appellant's counsel informed the court that Appellant had instructed him to tell the judge that Appellant simultaneously wished to represent himself and that he was incompetent to proceed to trial. Appellant's counsel stated that he had attempted to speak to Appellant in person upon his appointment, but those efforts were fruitless. Id . at 8. Appellant argued with the trial judge, informing him that he had irreconcilable differences with his attorney, and insisted that he did not understand what was happening. When informed the case would proceed to trial, Appellant claimed that counsel was forced upon him and that the court lacked jurisdiction. Id . at 14. The judge informed Appellant that if his behavior continued he would be removed from the courtroom. Id . at 15.

The trial court then brought in the jury. During opening remarks, Appellant attacked his lawyer.

THE COURT: .... Ladies and gentlemen, you and I are about to embark upon the trial of a criminal case brought by the Commonwealth of Pennsylvania against Ricky Tejada.

Mr. Tejada, I want you to keep your voice down. It's appropriate for you to talk to—

THE COURT: Let the record reflect that the defendant has struck his defense attorney. We are going to take a recess and make some determinations.

Id . at 17. Appellant was thereafter removed from the courtroom. Counsel then moved for mistrial and asked to withdraw, both of which were granted.¹ One week later, the judge recused and the matter was reassigned.

At some point, the court ordered that Appellant was not permitted to attend the retrial. On April 29, 2015, the Commonwealth filed a motion seeking a pre-trial determination of the matter. "The [c]ourt has since [the mistrial] indicated that [Appellant] is not to be brought, in person, to the Huntingdon County Courthouse." Motion, 4/29/15, at 1. The court later issued an order scheduling a hearing.

On July 1, 2015, five days before jury selection, that hearing was conducted via videoconference link to the state correctional institute where Appellant was housed. The transcript of this proceeding is not in the certified record. The trial court characterized what occurred as follows:

The [c]ourt held a hearing before the second trial in this matter in order to give Appellant the opportunity to rehabilitate himself and demonstrate his ability to conduct himself appropriately in the courtroom. At this hearing, Appellant only continued to display a disruptive demeanor and inability to allow court proceedings to continue in his presence.

Trial Court Opinion, 4/22/16, at 3. Appellant does not dispute this assessment. "[T]he trial court accurately labeled his behavior at the pre-trial hearing as disruptive[.]" Appellant's brief at 20–21.

As a result of Appellant's behavior at this hearing, the court refused to permit Appellant to physically attend jury selection or trial. However, the court arranged for Appellant's attendance at trial via videoconference. The jury found Appellant guilty and he received the aforementioned sentence. He filed post-sentence motions for relief, which were denied by operation by law. Appellant timely appealed and raises the following issues for our review.

I. Whether the trial court erred and/or abused its discretion in sentencing Appellant without benefit of Pre–Sentence Investigation?

II. Whether the trial court erred in conducti[ng] Appellant's Jury Selection, Trial, and Sentencing via video-conferencing?

Appellant's brief at 8.

We first address Appellant's second issue since an erroneous deprivation of the right to be present warrants a new trial. Commonwealth v. Vega , 553 Pa. 255,719 A.2d 227 (1998) (waiver of right to be present at trial was defective; new trial awarded).²

Appellant claims that the trial court violated his constitutional rights by denying a purported right to physically appear in court prior to his retrial.

[I]t cannot be overlooked that the hearing referenced by the trial court also occurred via video conferencing and Appellant's behavior is easily attributable to the fact that his constitutional rights were being actively violated by his exclusion from the courtroom. The record in this matter certainly reflects the loquacious nature of Appellant and the trial court accurately labeled his behavior at the pre-trial hearing as disruptive, however, Appellant had already been removed from the courtroom and told he would not be permitted to return. Had the trial court properly conducted a hearing on the issue of Appellant's appearance at trial and allowed Appellant to attend that hearing in person, thereby giving him an opportunity to rehabilitate his disruptive behavior; the outcome may have been different .

Appellant's brief at 20–21 (emphasis added).

Instantly, Appellant does not claim that the court erred in presumptively barring him from the courtroom due to his attack on counsel that precipitated the mistrial.³ We do not doubt that the act of attacking counsel justified the trial court's finding that Appellant forfeited his right to be present at his retrial. SeeIllinois v. Allen , 397 U.S. 337, 343, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) ("We believe trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case. No one formula for maintaining the appropriate courtroom atmosphere will be best in all situations.").

Instead, Appellant claims that, notwithstanding his removal, he should have been permitted to appear, in person, prior to the retrial in an attempt to convince the judge that he was willing to behave. Appellant suggests that the court was required to do so as a component of due process and the Confrontation Clause of the Sixth Amendment to the United States Constitution. We apply a de novo review to both theories. "A question regarding whether a due process violation occurred is a question of law for which the standard of review is de novo and the scope of review is plenary." Commonwealth v. Smith , 131 A.3d 467, 472 (Pa. 2015) (citation omitted). "[W]hether a defendant ‘was denied his right to confront a witness under the confrontation clause of the Sixth Amendment is a question of law for which our standard of review is de novo and our scope of review is plenary.’ " Commonwealth v. Milburn , 72 A.3d 617, 618 (Pa.Super. 2013) (quoting Commonwealth v. Dyarman , 33 A.3d 104, 106 (Pa.Super. 2011) ).

We begin by discussing the constitutional right to appear at trial. In Allen , supra , the United States Supreme Court explained that a basic constitutional right is "the accused's right to be present in the courtroom at every stage of his trial." Id . at 338, 90 S.Ct. 1057. This right comes from the Confrontation Clause of the Sixth Amendment to the United States Constitution, which states that "In all criminal prosecutions, the accused shall enjoy the right .... to be confronted with the witnesses against him [.]" U.S. Const.Amend. VI.

In Allen , the trial judge had removed William Allen from the courtroom due to his behavior. The Court of Appeals for the Seventh Circuit held that the Confrontation Clause granted an absolute right to be physically present, and granted him a new trial. That court opined that a trial judge could deal with unruly defendants through restraints, up to and including shackles and a gag. Id . at 342, 90 S.Ct. 1057. The Supreme Court reversed, finding that the Sixth Amendment right is not absolute.

[A] defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom.

Id . at 343, 90 S.Ct. 1057. The Court identified removal from the courtroom as one mechanism to maintain decorum.⁴ However, the Court further stated that there is a limitation upon that power: "Once lost, the right to be present can, of course, be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings." Id . at 343, 90 S.Ct. 1057. Allen did not explain what form those reclamation procedures must take. Building off this statement in Allen , Appellant assumes that, since he has a constitutional right to be present for his trial, it follows that he has the right to physically appear to regain the right once lost, either as a component of the Confrontation Clause right or as part of due process. We disagree on both counts.

First, we do not find that the Confrontation Clause right extends to this situation. That right's "functional...