Com. v. Tejada, R. , 161 A.3d 313 ( 2017 )

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2017 PA Super 123COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
RICKY TEJADA
Appellant No. 403 MDA 2016
Appeal from the Judgment of Sentence October 6, 2015
In the Court of Common Pleas of Huntingdon County
Criminal Division at No(s): CP-31-CR-0000389-2014
BEFORE: BOWES, OLSON AND STABILE, JJ.
OPINION BY BOWES, J.: FILED APRIL 26, 2017
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
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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.
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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.
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1
Following the mistrial, the Commonwealth requested that “[Appellant] only
be able to participate by video surveillance” for safety reasons. N.T. First
Jury Trial, 1/23/15, at 19. The court indicated that it would rule at a later
date.
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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
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v. Vega, 719 A.2d 227 (Pa. 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
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2
We acknowledge the distinction between waiver, forfeiture, and implicit
waiver through misconduct. See Commonwealth v. Lucarelli, 971 A.2d
1173 (Pa. 2009).
3
There is a significant distinction between the forfeiture of the right to be
present, which occurred following Appellant’s attack upon counsel, and
reclamation of that right. Instantly, Appellant’s sole claim regarding this
matter is that the trial court failed to give him an adequate opportunity to
demonstrate his rehabilitation. In other words, the current claim is not that
(Footnote Continued Next Page)
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counsel justified the trial court’s finding that Appellant forfeited his right to
be present at his retrial. See Illinois v. Allen, 397 U.S. 337, 343 (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)
_______________________
(Footnote Continued)
Appellant was automatically entitled to be present for the retrial due to the
first trial ending in a mistrial.
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(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. 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. 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.
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Id. at 343. 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. 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 purpose [is] in ensuring a defendant an
opportunity for cross-examination.” Kentucky v. Stincer, 482 U.S. 730,
739 (1987). However, there was no cross-examination to be achieved at
the hearing to regain the forfeited right. Furthermore, the purpose of the
right is to confront witnesses against the accused; it does not confer any
right to present one’s own testimony. That right is rooted in other
constitutional provisions. See Rock v. Arkansas, 483 U.S. 44 (1987) (right
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4
The Court also identified contempt in addition to shackles and a gag,
expressing great disapproval for the latter.
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to offer own testimony is a component of due process, Compulsory Process
Clause of the Sixth Amendment, and the Sixth Amendment right to jury
trial). Hence, to the extent Allen requires the physical presence of a
defendant in the courtroom as a component of the Confrontation Clause, the
case is inapposite.
Next, we examine whether Appellant had a due process right to be
physically present for this hearing. The following principles govern our
review.
The Court has assumed that, even in situations where the
defendant is not actually confronting witnesses or evidence
against him, he has a due process right “to be present in his own
person whenever his presence has a relation, reasonably
substantial, to the fulness of his opportunity to defend against
the charge.” Snyder v. Massachusetts, 291 U.S. 97, 105–106,
54 S.Ct. 330, 332, 78 L.Ed. 674 (1934). Although the Court has
emphasized that this privilege of presence is not guaranteed
“when presence would be useless, or the benefit but a shadow,”
id., at 106–107, 54 S.Ct., at 332, due process clearly requires
that a defendant be allowed to be present “to the extent that a
fair and just hearing would be thwarted by his absence,” id., at
108, 54 S.Ct., at 333. Thus, a defendant is guaranteed the right
to be present at any stage of the criminal proceeding that is
critical to its outcome if his presence would contribute to the
fairness of the procedure.
Kentucky v. Stincer, 482 U.S. 730, 745 (1987).
We will assume arguendo that the trial court was required to afford the
accused an opportunity to demonstrate sufficient rehabilitation following the
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mistrial and subsequent relisting.5 However, we do not hold that due
process mandates physical presence as an element of that hearing.
Stincer, supra held that “a defendant is guaranteed the right to be present
at any stage of the criminal proceeding that is critical to its outcome if his
presence would contribute to the fairness of the procedure.” Id. at 745.
Herein, Appellant was present, albeit not physically. Thus, we can modify
the inquiry by asking whether Appellant’s physical presence would have
contributed to the fairness of the hearing.
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5
Our research has not uncovered a case presenting the scenario herein,
where conduct of the accused simultaneously leads to the grant of a mistrial
and an ongoing forfeiture of the right to be present as applied to the retrial.
Unsurprisingly, the fact patterns in these cases generally involve the trial
proceeding to its conclusion following removal of the defendant. See
Commonwealth v. Thomas, 879 A.2d 246 (Pa.Super. 2005) (trial
proceeded after defendant removed from courtroom); Commonwealth v.
Henderson, 418 A.2d 757 (Pa.Super. 1980) (same); Commonwealth v.
Howard, 471 A.2d 1239 (Pa.Super. 1984) (defendant removed during jury
selection, permitted to return); Commonwealth v. Basemore, 582 A.2d
861 (Pa. 1990) (defendant removed from courtroom during trial, returned to
hear closing arguments after agreeing to conduct himself properly).
Nor do cases from this Commonwealth discuss what opportunities must be
afforded a defendant seeking reentry to the courtroom. Presumably, the
five month gap from mistrial to retrial had some ameliorative effect on the
behavior. We note that the American Bar Association Standards for Criminal
Justice simply suggest that “there be a standing opportunity for the
defendant to return to the courtroom . . . the defendant periodically should
be offered an opportunity to return to the courtroom, conditional upon good
behavior.” ABA Standards for Criminal Justice 6-3.8.
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We see no reason to believe that Appellant’s physical presence would
have made any difference to the reliability of the judge’s conclusion that
Appellant was not rehabilitated. In Stincer, the question presented was
whether the trial court erred in holding an in-chambers hearing to determine
the competency of two child witnesses to testify. This hearing was held after
the jury was sworn and in the presence of the accused’s attorney, but not
the accused himself. Id. at 732-33. The court ruled that the girls were
competent to testify. Stincer rejected a due process claim because Stincer
“g[ave] no indication that his presence at the competency hearing in this
case would have been useful in ensuring a more reliable determination[.]”
Id. at 747.
We find that the same is true here, as Appellant’s only argument to
the contrary is based on pure conjecture. “Had Appellant appeared in-
person and engaged in disruptive behavior, the trial court’s decision would
be justified. Appellant was not afforded that opportunity and the trial court’s
decision to permanently exclude him was an error.” Appellant’s brief at 22.
We cannot see why Appellant’s physical presence would make the trial
court’s determination of whether Appellant reclaimed his right to be present
at trial any more reliable. In sum, if Appellant could not behave at the
videoconference hearing, there is little reason to think his behavior would
have been any different in person.
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Since we have concluded Appellant did not have a constitutional right
to be present for the challenged hearing, the question is whether the trial
court’s employment of videoconferencing technology for that hearing was
appropriate. Pennsylvania Rule of Criminal Procedure 119, “Use of Two-Way
Simultaneous Audio-Visual Communication in Criminal Proceedings,” states,
in pertinent part:
(A) The court or issuing authority may use two-way
simultaneous audio-visual communication at any criminal
proceeding except:
(1) preliminary hearings;
(2) proceedings pursuant to Rule 569(A)(2)(b);
(3) proceedings pursuant to Rules 595 and 597;
(4) trials;
(5) sentencing hearings;
(6) parole, probation, and intermediate punishment
revocation hearings; and
(7) any proceeding in which the defendant has a
constitutional or statutory right to be physically
present.
Pa.R.Crim.P. 119. We do not find that the catch-all of paragraph seven
applies, for the foregoing reasons. Hence, the Rule squarely authorized the
instant proceeding and the court committed no error.
In reaching this conclusion, we note that Allen has been interpreted to
permit the drastic sanction of the forfeiture of the right to counsel based
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upon serious misconduct. “[E]ven absent a warning, a defendant may be
found to have forfeited certain trial-related constitutional rights based on
certain types of misconduct.” Gilchrist v. O'Keefe, 260 F.3d 87, 97 (2d
Cir. 2001) (holding, in federal habeas action, that state court did not
unreasonably apply federal law in concluding the defendant forfeited his
right to counsel based on one attack). Violence is the type of misconduct
that has been held to justify the forfeiture of counsel. See Commonwealth
v. Staton, 120 A.3d 277, 286 (Pa. 2015) (physical assault of counsel in
presence of court establishes forfeiture of right to counsel for purposes of
PCRA proceeding); Minnesota v. Lehman, 749 N.W.2d 76, 81-82
(Minn.Ct.App. 2008) (collecting cases and upholding forfeiture where
defendant attacked and beat counsel).
We are, of course, not presented with that sanction. However, the
original trial judge granted a mistrial, which was caused by Appellant’s own
conduct, and this judge thereafter gave Appellant an opportunity to
demonstrate his willingness to behave. We find that procedure struck a
more than adequate balance of Appellant’s constitutional rights against the
obvious threat of violence, especially when the court permitted Appellant to
participate in his trial via videoconference despite the poor behavior.
Indeed, the court’s solution was calibrated to avoid the draconian step of
total forfeiture of his right to be present, and complied with Allen’s directive
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that an accused be given an opportunity to reclaim his right. Accordingly,
we find no error.
We now address Appellant’s sentencing claim. Appellant avers that he
is entitled to a new sentencing hearing because the trial court sentenced him
without the benefit of a pre-sentence investigation (“PSI”) report. We
agree.6
This claim implicates the discretionary aspects of the sentence. See
Commonwealth v. Finnecy, 135 A.3d 1028 (Pa.Super. 2016). Therefore,
this challenge is not automatically reviewable as of right. Commonwealth
v. Disalvo, 70 A.3d 900, 902 (Pa.Super. 2013). Before we review such a
claim on the merits, we engage in a four part analysis to determine:
(1) whether the appeal is timely; (2) whether Appellant
preserved his issue; (3) whether Appellant's brief includes a
concise statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspects of sentence [see
Pa.R.A.P. 2119(f)]; and (4) whether the concise statement raises
a substantial question that the sentence is appropriate under the
sentencing code. . . .
Id. (citation omitted). We decide the substantive merit of the claims only if
each requirement is satisfied. Id.____________________________________________
6
Appellant also asserts that the trial court violated his constitutional right to
be present for sentencing. Since we have concluded that Appellant is
entitled to re-sentencing on an alternative basis, we do not need to address
this argument.
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This appeal was timely filed and includes a separate statement of
reasons as required by Pa.R.A.P. 2119(f). Additionally, Appellant specifically
objected to the lack of a PSI report at the sentencing hearing, preserving the
issue for our review. Finally, Appellant alleges that the court did not state
adequate reasons for dispensing with the report. This claim presents a
substantial question. Commonwealth v. Kelly, 33 A.3d 638, 640
(Pa.Super. 2011).
We now review the merits of the claim. Pursuant to Pa.R.Crim.P.
702(A)(2)(a), a judge is required to explain the reasons for dispensing with
a PSI report when, as here, incarceration for one year or more is a possible
sentence. Hence, the sentencing judge was obligated to explain why he did
not order a PSI report.
In Commonwealth v. Flowers, 950 A.2d 330 (Pa.Super. 2008), we
held that Rule 702(A)(2) does not require a court to specifically document
the reasons for dispensing with a report. Instead, the court has some
latitude in fulfilling that requirement, since the ultimate goal of a PSI report
is to ensure that the court is “apprised of comprehensive information to
make the punishment fit not only the crime but also the person who
committed it.” Commonwealth v. Goggins, 748 A.2d 721, 728 (Pa.Super.
2000) (en banc) (citation omitted). Thus, a court may sentence without the
benefit of a PSI report if it possesses the necessary information from another
source. Id.- 15 -
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In Flowers, supra, we stated that the harmless error doctrine might
apply “[if] the court elicited sufficient information during the colloquy to
substitute for a PSI report, thereby allowing a fully informed sentencing
decision.” Id. at 333. The trial court requests that we affirm the judgment
of sentence on this basis. Trial Court Opinion, 4/22/16, at 4 (citing
Flowers).
However, we cannot accept this conclusory statement. Following
Appellant’s objection to the lack of a PSI report, the court immediately
imposed sentence with no further discussion or input from the parties.
Hence, we cannot credit the court’s conclusion that personal knowledge
sufficed, since the record fails to reveal the extent of that knowledge. Id. at
333, n.2 (listing factors that must be addressed in a PSI report). See
Commonwealth v. Monahan, 860 A.2d 180 (Pa.Super. 2004) (“[W]hile it
is possible that the trial judge already knew [the defendant] from prior
contact, nothing in the record reveals to us the nature, quality, or extent of
that knowledge.”). Moreover, the sentencing transcript indicates that a PSI
report was ordered but it was not completed for unknown reasons, implicitly
suggesting that a report would be helpful. Order, 7/24/15, at 1 (directing
Huntingdon County Probation Department to prepare a PSI report).
Therefore, we vacate the judgment of sentence and remand for further
proceedings. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/26/2017
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