Opinion
1451 WDA 2021 J-S42023-22
04-21-2023
COMMONWEALTH OF PENNSYLVANIA v. DANIEL LEROY CONNER Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered November 9, 2021 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0002298-2020
BEFORE: BOWES, J., OLSON, J., and COLINS, J. [*]
MEMORANDUM
OLSON, J.
Appellant, Daniel Leroy Conner, appeals from the judgment of sentence entered November 9, 2021 in the Criminal Division of the Court of Common Pleas of Erie County. We affirm.
The trial court summarized the relevant facts and procedural history in this matter as follows.
By information filed November 16, 2020, [Appellant] was charged with one count each of terroristic threats and harassment. The charges arose from Appellant's [] activities on or about September 27, 2020 in sending threatening text messages to [his] wife, [A.C.], from whom he was separated. According to the affidavit of probable cause in support of the arrest warrant, Appellant's
text(s) to the victim included a death threat directed to her which placed her in fear of imminent danger.
The case was originally scheduled for the Erie County Court of Common Pleas criminal trial term[,] which started April 5, 2021. On April 7, 2021, two days into the term, Appellant filed a request for continuance and waiver of [his] speedy trial rights. The basis of the request was Appellant had applied for a public defender on April 1, 2021. [See Appellant's Request for Continuance and Waiver of Speedy Trial Rights, 4/5/21]. On April 8, 2021, the [trial court] granted the continuance request. Appellant's case was rescheduled for trial to occur two months later, during the June 2021 trial term[, which was] set to begin on June 7, 2021[.]
In preparation for the June[] 2021 trial term, a pre-trial conference was held on May 28, 2021. Further, [] in late May 2021, a [hearing notice advised] Appellant in writing [that] the start date for the June 2021 trial term was June 7, 2021[.]
During the Pre-Trial conference on May 28, 2021, Appellant advised Court Administration staff he wanted to proceed without a lawyer, despite having previously applied for a public defender. A Grazier hearing was scheduled for June 2, 2021.
On June 2, 2021, [a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) ("Grazier")] was held, Appellant's first. [] During the Grazier colloquy, Appellant initially advised [that] he wished to proceed pro se. See [N.T., 6/2/21, at 2-4]. As the colloquy neared conclusion, the exchange in this regard continued:
Ms. Anglin (Assistant District Attorney): Do you understand if any errors or rule violations occur and you don't object to them at the right time, you will lose your right to object permanently?
Mr. Conner: Yes.
Ms. Anglin: Are you voluntarily giving up your right to be represented by an attorney?
Mr. Conner: Yes.
Ms. Anglin: And have you been forced or pressured in any way or have any promises been made to you that would influence your decision to waive your right to be represented?
Mr. Conner: No.
Ms. Anglin: All right. I'm going to hand to you the document as I've completed it and just indicate if you agree with how I completed the form by signing on the line marked defendant.
Mr. Conner: (Defendant complies.)
N.T., 6/2/21, at 2-4.
As Appellant executed the waiver of counsel form, the [trial c]ourt inquired of the reasons for Appellant's decision to proceed without a lawyer. The following exchange occurred:
The Court: And, sir, why are you choosing to go without an attorney?
Mr. Conner: I didn't have enough time to get one and -
The Court: Do you need more time to get an attorney? I'll allow you more time to get an attorney or talk to one.
Mr. Conner: It was just a thought.
The Court: What's that?
Mr. Conner: It was a thought, yes.
The Court: Well, listen, I'm happy to do that. I mean, I'd rather you have an opportunity to talk to an attorney. And you probably know that if you can't afford one, one can be appointed for you, do you know that?
Mr. Conner: Yeah. Yes, Your Honor.
The Court: Are you working?
Mr. Conner: Not right now. I'm laid off.
The Court: All right. So you may qualify to get a public defender. Do you want time to do that?
Mr. Conner: Sure.
N.T., 6/2/21, at 4-5.
Appellant remained silent about his previous application for a public defender; the outcome of his application for same, and the fact that his case was previously scheduled for the April 2021 trial term but continued to the June term at Appellant's request. The court graciously continued Appellant's case to the August 2021 trial term and advised Appellant that the [c]ourt would hold off on signing or filing Appellant's waiver of counsel form. The Commonwealth, under the mistaken belief the case had not been previously scheduled for trial during the April 2021 trial term, did not object to the continuance. N.T., 6/2/21, at 5-6.
In anticipation of the August 2021 trial term, [a] notice [advising of a pre-trial conference to occur on July 14, 2021] was mailed to Appellant. [] Also, on July 12, 2021, a notice was mailed to Appellant instructing him to appear for trial on August 9, 2021.
At the pre-trial conference on July 14, 2021, it was apparent Appellant had not yet retained private counsel or secured legal representation through the Office of the Public Defender. Accordingly, a second Grazier hearing was scheduled for July 16, 2021[.]
[The same trial judge who presided over Appellant's June 2021 Grazier hearing conducted Appellant's hearing on] July 16, 2021. The following is an excerpt from the hearing:
Mr. Sullivan (Assistance District Attorney): Umm, Mr. [C]onner, umm, do you understand your rights to an attorney?
Mr. Conner: Yes.
Mr. Sullivan: I note that this is not - - none of the questions have been answered. Do you want to review that form now on the record? Or - -
Mr. Conner: No. I'll do it. I'll - -
Mr. Sullivan: All right.
The Court: All right. Sir, you're going to go forward. I understand you're, umm, going to have a non-jury trial, and you wanted to represent yourself at the non-jury trial?
Mr. Conner: Yes.
The Court: Is that what you want to do?
Mr. Conner: Yes.
The Court: Okay. Any reason you don't want an attorney representing you?
Mr. Conner: Umm, no.
The Court: No? Can you afford one?
Mr. Conner: No.
The Court: No. Okay. Do you want one appointed to you?
Mr. Conner: If possible.
N.T., 7/16/21, at 2-3.
Similar to what occurred at the first Grazier hearing, at the second Grazier hearing on July 16, 2021, Appellant failed to inform or disclose to the [c]ourt: a) he had previously applied [to the] Public Defender on April 1, 2021; b) the outcome of the application process; c) any difficulties or obstacles Appellant encountered in the application process; d) any reason(s) he was unable to secure privately retained counsel; and, e) the fact the case was continued previously (from the April 2021 trial term to the June 2021 trial term, and from the June 2021 trial term to the
August 2021 trial term) to allow Appellant secure counsel. Out of concern, the Court continued:
The Court: Do you make - - let me ask you: Do you work?
Mr. Conner: Yeah.
The Court: You - -
Mr. Conner: I'm laid off right now, though.
The Court: All right. You're laid off right now? Umm, I'm not sure if you're able to be - - if you're able to get an appointment or not. Do you want to pursue that opportunity - -
Mr. Conner: Sure.
The Court: - - before you do this waiver?
Mr. Conner: Sure.
The Court: All right. Well, what we'll do, then, sir, is we won't do this today. Why don't you contact with the Public Defender's Office. All right?
Mr. Conner: Yeah.
The Court: They're right down at 210 East Second Street. Go down there, because your case is coming up for trial. You don't want to miss it. I mean, you're here in court, so, obviously you show up for your court case. But if you want to talk to them and see if you can, umm, apply; whether you'll be able to get one. I don't know if you make too much money or not. If not, and you say, I can't afford my own attorney, you can come and we can do this again. I'd rather be safe than sorry, and give the opportunity to talk to the Public Defender's Office. All right?
Mr. Conner: Okay. Thanks.
The Court: Are you okay with that?
Mr. Conner: Yeah.
The Court: All right. And then we won't do anything about the waiver of the jury trial either at this point until you talk to an attorney.
Mr. Conner: All right.
The Court: Well, you're good to go today. But I would get in contact with them right away, because this - - this case may be coming up for trial fairly soon. And, umm, what you don't want to do is get called to trial and you're not ready. You don't have an attorney. Or you don't show up, and then we think you're ducking us, so we go and pick you up.
Mr. Sullivan: Your Honor, I would note this is the second occasion where something to this effect was scheduled. On June 2, 2021, umm, the last time that this was scheduled, the Defendant did appear, and presented as thought he wanted an attorney, as well.
The Court: Okay.
Mr. Sullivan: So, I did want to note that for the record, that this is second scheduling of something to this effect - -
The Court: All right.
Mr. Sullivan: - - and the same has been represented both times.
The Court: All right. And what happens is we'll set up another date. And if you don't have an attorney, in all likelihood, we'll have to proceed without an attorney. But we'll give you one more chance to see if you can get a Public Defender.
Mr. Conner: Okay.
The Court: All right. Very well. You're good to go.
N.T., 7/16/21, at 2-5 (emphasis added).
Appellant was forewarned the continuance granted on July 16, 2021 from the August 2021 trial term to the next available term would most likely be the last continuance granted in his case, and
the interval between July 16, 2021 and Appellant's next scheduled trial date would be Appellant's last opportunity to procure counsel.
Appellant's case was rescheduled for the third time to the criminal trial term commencing September 7, 2021. Appellant was notified of this via written notice dated and filed August 19, 2021. Another pre-trial conference was held on August 26, 2021.
On September 7, 2021, at the designated time for the start of trial, both Assistant District Attorney (ADA) Justin Smith and Appellant, pro se, appeared before the [trial judge assigned to the case]. [ADA] Smith notified the [c]ourt, "Mr. Conner, Judge, I guess wants a continuance." The [ADA] advised the [c]ourt of his understanding [that] Appellant wanted a continuance "for witnesses." The [c]ourt advised it was too late to request a continuance.
After a brief recess, the [trial c]ourt inquired of Appellant numerous times why, after approximately, one year, Appellant ha[d] not yet obtained a lawyer. Appellant alternately indicated he wanted a continuance because: he'd been working for the past year; he never previously requested a continuance; he did not have enough time to obtain a lawyer; he did not have enough time "to subpoena the right people to his trial"; "the DA has it all wrong;" and Appellant tried but could not get a lawyer.
The Commonwealth objected to any further continuance, citing inter alia, the multiple prior continuances at Appellant's request; the Commonwealth's readiness to proceed to trial with witnesses present and available to testify; and the fact the court room was filled with persons who reported for jury duty service. The court denied Appellant's fourth request for a continuance.
On September 7, 2021, following a trial by jury, Appellant was convicted of one count each of terroristic threats and harassment.
On November 9, 2021, the Appellant was sentenced to an aggregate of two years of probation as follows:
Count One: Terroristic Threats - County Regular Probation for two years;
Count Two: Harassment - County Regular Probation for one year, concurrent with Count One.
The sentences were at the low end of the standard range of the sentencing guidelines. Appellant was represented by counsel at sentencing.
Appellant filed a notice of appeal on December 7, 2021. On December 8, 2021, the [trial c]ourt issued a [Rule] 1925(b) order, directing Appellant to file a [Rule] 1925(b) [concise statement] within [21] days. On December 28, 2021, Appellant filed a concise statement [and the trial court issued an opinion on March 7, 2022].
18 Pa.C.S.A. §§ 2706(a)(1) and 2709(a)(4), respectively.
The text message to the victim [] included a veiled threat against a third person, [together with] a threat of harm directed toward the victim. The content of the [texts] was that after Appellant found the third person, then he was coming for [A.C.] who would take her last breath and whom Appellant would kill. [Criminal Information, 11/16/20].
Appellant's preliminary hearing was scheduled for October 8, 2020. On that date, Appellant appeared before the Magisterial District Judge and executed a waiver of counsel form and waived the preliminary hearing.
Trial Court Opinion, 3/7/22, at 1-9 (footnotes in original; superfluous capitalization omitted).
In his brief, Appellant raises the following issues for our review.
1. Did the Commonwealth present insufficient evidence to sustain Appellant's conviction for terroristic threats where the circumstances reveal Appellant did not have the intent to terrorize?
2. Did the trial court err by forcing Appellant to go to trial without an attorney where Appellant did not knowingly, voluntarily, and intelligently waive his right to counsel and where Appellant did not forfeit his right to counsel by dilatory conduct?
Appellant's Brief at 8.
We have carefully reviewed the submissions of the parties, the trial court's opinion, and the certified record. Based upon our review, we concur in the trial court's conclusion that Appellant's claims are without merit, and he is not entitled to relief. Specifically, we agree with the trial court that Appellant waived his sufficiency challenge for lack of specificity in his Rule 1925(b) statement and, if not waived, the claim is wholly devoid of merit. See Trial Court Opinion, 3/7/22, at 10-12. In addition, we concur with the trial court that, under the circumstances, Appellant forfeited his right to counsel where, after three requested continuances to obtain counsel, Appellant appeared at trial without the aid of an attorney and tendered a fourth continuance request without a cogent explanation. See id. at 12-15. Because we find that the trial court has adequately and accurately examined Appellant's claims, we adopt its March 7, 2022 opinion as our own. Accordingly, the parties are instructed to attach a copy of the trial court's opinion to all future filings pertaining to the disposition of this appeal.
Judgment of sentence affirmed.
Judgment Entered.
(Image Omitted)
[*] Retired Senior Judge assigned to the Superior Court.