Commonwealth v. Tejada

188 A.3d 1288

COMMONWEALTH of Pennsylvania

v.Ricky TEJADA, Appellant

Commonwealth of Pennsylvania

v.Ricky Tejada, Appellant

Commonwealth of Pennsylvania

v.Ricky Tejada, Appellant

Commonwealth of Pennsylvania

v.Ricky Tejada, Appellant

Commonwealth of Pennsylvania

v.Ricky Tejada, Appellant

No. 24 WDA 2016

No. 119 WDA 2016

No. 170 WDA 2016

No. 872 WDA 2016

No. 892 WDA 2016

Superior Court of Pennsylvania.

Submitted September 11, 2017

Filed June 1, 2018

Emily E. Mosco, Erie, for appellant.

Paul S. Sellers, Assistant District Attorney, Erie, for Commonwealth, appellee.

BEFORE: BOWES, J., SOLANO, J., AND FORD ELLIOTT, P.J.E.

OPINION BY BOWES, J.:

Ricky Tejada appeals from the judgment of sentence of four to eight years incarceration imposed following his convictions for two counts of aggravated harassment by a prisoner. Appellant elected to act as his own counsel, but was removed from the courtroom due to his behavior during voir dire . The trial court, which did not appoint standby counsel and rejected Appellant's request for same, conducted the entire trial without any representation of Appellant's interests. We reverse.

Implicated herein is the defendant's constitutional rights to be present for trial, have counsel, and represent himself if he so wishes. The United States Supreme Court has not held that appointment of standby counsel is required when a defendant elects to represent himself.¹ It is, however, well-settled that a defendant may forfeit his right to be present for his trial. In this issue of first impression in Pennsylvania, we address an intersection of those lines of case law: whether a pro se defendant forfeits his right to representation when his behavior results in the loss of right to be present for trial. For the reasons that follow, we conclude that a defendant cannot forfeit his right of representation, and therefore vacate Appellant's judgment of sentence and remand for a new trial.

Appellate counsel previously filed a petition to withdraw from representation and a brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Commonwealth v. Santiago , 602 Pa. 159, 978 A.2d 349 (2009), which we denied. Commonwealth v. Tejada , 176 A.3d 355 (Pa.Super. 2017). We directed counsel to file a merits brief on the question of whether the trial court erred in proceeding with trial after ordering Appellant's removal.

We previously set forth the factual and procedural history² of this matter in our decision denying the petition to withdraw, which we reproduce herein:

Appellant elected to represent himself at trial. Appellant appeared for a scheduled jury trial on January 11, 2016, and the proceedings commenced with the trial court asking, "it's my understanding you are representing yourself; is that correct?" Appellant confirmed that he intended to act as his own attorney. Following a waiver colloquy, the trial court concluded that Appellant validly waived his right to counsel.

....

Appellant then claimed that he was incompetent to proceed and demanded a competency hearing, which the trial court denied on the basis that Appellant's behavior did not indicate any incompetency. Following that discussion, the trial court informed Appellant that jury selection would proceed "as soon as we get a jury panel available."

Following a recess the trial court asked, "[Appellant], I need to know if you are going to stay for your trial?" Appellant claimed that he was "not the defendant" and argued that the court "has no jurisdiction to proceed." Appellant does not appear to have been otherwise disruptive of the proceedings, as reflected by the fact that the trial court stated, "I'm going to allow you to remain, but if you disrupt the proceeding, in any way, you will be removed and the trial will go on without you."

The jury panel then entered the room. Appellant requested to admit into evidence the voir dire sheets, claiming that the sheets were "illegible and incomprehensible because of the writing." Significantly, Appellant followed that statement with the following request:

The defense also makes it known for the record he requires counsel. I told you numerous times I don't understand. You're trying to push the trial on me. I got a 6^th Amendment right to counsel. It's not filled out and I told you, I'm asking for my constitutional 6^th amendment right since you're forcing the trial on me improperly.

THE COURT: Mr. Tejada, you waived your right to counsel.

MR. TEJADA: And I got a constitutional right to get it reinstated.

THE COURT: Excuse me. Mr. Tejada, I'm speaking. I didn't interrupt you and don't interrupt me. You waived your right to counsel approximately one hour ago before this [c]ourt. I went over the rights waiver in detail with you. You answered the questions appropriately and waived your right to counsel....

Appellant interjected, "The constitution doesn't put no restraints on when I can reinstate that right. I'm timely reinstating it." Following more discussion, the trial court stated, "[Y]our outbursts will not be tolerated, you will be removed from this courtroom, you will be tried in absentia ." Finally, the trial court stated that Appellant could communicate with the court so long as he followed the rules, to which Appellant replied, "Then appoint standby counsel to communicate with the [c]ourt." The trial court repeated that outbursts would not be tolerated. The following exchange occurred:

MR. TEJADA: So are you saying I'm denied the right to standby counsel? If not, appoint me counsel. Is that what you're saying for the record?

THE COURT: I'm saying that we are going to begin voir dire .

MR. TEJADA: If you conduct voir dire , then I need counsel.

THE COURT: You already waived your right to counsel.

MR. TEJADA: And I'm petitioning to reinstate in accordance with the Pennsylvania Rules of Criminal Procedure 120.

The COURT: Well, it's too late at this point.

MR. TEJADA: So you're waiving my right to counsel or standby counsel?

THE COURT: All right. Take Mr. Tejada out, please.

Id. at 357–58 (footnotes and citations omitted).

We stated that the issue appeared to be one of first impression in this Commonwealth, and the parties' substituted briefs likewise view it as such. Appellant largely relies on precedents by our sister courts who have addressed this issue. The Oregon Court of Appeals cogently summarized the position that Appellant asks this Court to take:

[A] situation like that confronted by the trial court here raises "complex constitutional issues," because it implicates three related but distinct Sixth Amendment rights: (1) the right to be present at trial; (2) the right to self-representation; and (3) the right to representation. Persuaded by the Ninth Circuit's analysis in United States v. Mack , 362 F.3d 597 (9th Cir. 2004), we held that a defendant may forfeit the first two of those rights by misconduct, but does not forfeit the third: "although a defendant who acts out at trial may forfeit the right to be present and the right to self-representation in the proceeding, the defendant does not also forfeit the right to any representation at trial."

Consequently, because a criminal defendant does not forfeit the right to representation by misconduct (only the rights to self-representation and to be present), "after a trial court has removed a pro sedefendant for his or her misconduct, the trial court cannot proceed in the defendant's absence unless and until the trial court has either secured the defendant's waiver of his or her right to representation at trial or has taken some other course of action that protects the defendant's right to representation, which may include the appointment of counsel." State v. Menefee, 268 Or.App. 154, 185, 341 P.3d 229.

State v. Lacey , 282 Or.App. 123, 385 P.3d 1151, 1152–53 (2016), review allowed , 361 Or. 350, 393 P.3d 1176 (2017) (emphasis added). Accord People v. Ramos , 210 Cal.Rptr.3d 242 (Ct.App. 2016) (holding that involuntary removal of pro se defendant violates Sixth Amendment); People v. Cohn , 160 P.3d 336, 343 (Colo.App. 2007) (holding a pro se defendant's conduct did not result in loss of right to representation, as "the trial court could have found defendant had waived his right to proceed pro se and appointed counsel to represent defendant's interests during the time he was excluded from the courtroom.").

The Commonwealth does not take a position on whether we should accept or reject the foregoing analysis. Its argument is reproduced in full:

The Appellant's persistent belligerence resulted in the trial proceeding in his absence. The Appellant had sufficient opportunity to amend his behavior and declined to do so. Under the principles of Pa.R.Crim.P. 1117 and Commonwealth v. Ford , 539 Pa. 85, 650 A.2d 433, 440 (1994) the case proceeded in the Appellant's absence, as was appropriate and within the sound discretion of the trial judge. The Appellant's decisions and behaviors, despite repeated warnings, constituted an implicit waiver of his right to be present at trial. If the accused is abusive and disruptive to the proceedings it is not an abuse of discretion for the trial judge to have the defendant removed from the courtroom. Commonwealth v. Basemore , 525 Pa. 512, 582 A.2d 861, 867–68 (1990).

Even accounting for the analysis of the Ninth Circuit Court of Appeals in United States v. Mack , 362 F.3d 597 (2004), it cannot be supposed that a criminal defendant who has adamantly rejected representation, spurned stand-by counsel and then due to their own disruptive behavior waives his own presence can then be forced, in his absence, to have counsel imposed against his will. As unusual as these circumstances may be, the answer cannot be to impose upon the defendant representation they not only did not seek but specifically rejected.

Commonwealth's brief at 2–3. Beyond these statements, the Commonwealth has not developed why this Court should not, as Appellant urges, follow the lead of our sister courts and conclude that "Where a criminal case is tried...