Com. v. Leeks, B.

J.S45036/15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

BRIAN ANTHONY LEEKS, :

:

Appellant : No. 1961 MDA 2014

Appeal from the Judgment of Sentence June 12, 2014

In the Court of Common Pleas of Dauphin County

Criminal Division No(s).: CP-22-CR-0000105-2014

BEFORE: BOWES, WECHT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 30, 2015

Appellant, Brian Leeks, appeals from the judgment of sentence

entered in the Dauphin County Court of Common Pleas. He contends (1) the

trial court failed to conduct a sufficient colloquy before allowing him to

proceed pro se, (2) the verdict was against the weight of the evidence, and

(3) the court imposed an excessive and unreasonable sentence. We affirm.

We adopt the recitation of facts as set forth by the trial court. Trial Ct.

Op., 6/26/14, at 1-3. On June 4, 2013, following a colloquy, the trial court

permitted Appellant to proceed pro se with stand-by counsel. On June 6,

2014, following a jury trial, Appellant was found guilty of aggravated

*

Former Justice specially assigned to the Superior Court.

J.S45036/15

assault1 and terroristic threats with intent to terrorize another.2 On June 12,

2014, Appellant was sentenced to seven-and-a-half to fifteen years’

imprisonment. He was ordered to pay restitution in the amount of $768.30.

On June 23, 2014, appellate counsel filed a post-sentence motion

contending his sentence was excessive and the verdict was against the

weight of the evidence. The trial court denied the motion on October 21,

2014. This timely appeal followed. Appellant filed a court-ordered Pa.R.A.P.

1925(b) statement of errors complained of on appeal. The trial court filed a

responsive opinion.

Appellant raises the following issues for our review:

I. Whether 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 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?

II. Whether the trial court erred in denying Appellant’s

Post-Sentence Motion where his convictions were against

the weight of the evidence so as to shock one’s sense of

justice where: Appellant was never shown to have

engaged in acts which constitute the crimes of which he

was convicted, and[ ] Appellant acted in self-defense?

III. Whether the trial court erred in denying Appellant’s

Post-Sentence Motion where Appellant’s sentence of 7.5 to

15 years’ incarceration and $768.30 in restitution is

1

18 Pa.C.S. § 2702(a)(1).

2

18 Pa.C.S. § 2706(a)(1).

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J.S45036/15

excessive and unreasonable given Appellant’s lack of a

significant prior record, this [h]onorable [c]ourt’s failure to

inquire into Appellant’s background during sentencing, and

Appellant’s significant history of mental health issues?

Appellant’s Brief at 7.

First, Appellant argues that when a defendant seeks to waive his right

to counsel, the trial court “must conduct a colloquy on the six elements

listed in Pa.R.Crim.P. 121.” Id. at 17. Additionally, he contends “the trial

court must inquire about the defendant’s age, educational background, and

basic comprehension skills.” Id. at 18. Appellant argues the court did not

comply with these precepts. We disagree.

Our review is governed by the following principles:

A criminal defendant’s right to counsel under the Sixth

Amendment includes the concomitant right to waive

counsel’s assistance and proceed to represent oneself at

criminal proceedings. Faretta v. California, 422 U.S. 806

. . . (1975). The right to appear pro se is guaranteed as

long as the defendant understands the nature of his

choice. [Id.] at 835. In Pennsylvania, Rule of Criminal

Procedure 121 sets out a framework for inquiry into a

defendant’s request for self-representation. Pa.R.Crim.P.

121. Where a defendant knowingly, voluntarily, and

intelligently seeks to waive his right to counsel, the trial

court, in keeping with Faretta, must allow the individual

to proceed pro se. See also Commonwealth v.

McDonough . . . 812 A.2d 504, 508 ([Pa.] 2002)

(concluding that Faretta requires an on-the-record

colloquy in satisfaction of Pa.R.Crim.P. 121, which colloquy

may be conducted by the court, the prosecutor, or defense

counsel.)

Commonwealth v. El, 977 A.2d 1158, 1162-63 (Pa. 2009) (footnotes and

some citations omitted).

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J.S45036/15

Rule 121 provides as follows:

(2) To ensure that the defendant’s waiver of the right to

counsel is knowing, voluntary, and intelligent, the judge or

issuing authority, at a minimum, shall elicit the following

information from the defendant.

(a) that the defendant understands that he or she has

the right to be represented by counsel, and the right to

have free counsel appointed if the defendant is

indigent;

(b) that the defendant understands the nature of the

charges against the defendant and the elements of each

of those charges;

(c) that the defendant is aware of the permissible range

of sentences and/or fines for the offenses charged;

(d) that the defendant understands that if he or she

waives the right to counsel, the defendant will still be

bound by all the normal rules of procedure and that

counsel would be familiar with these rules;

(e) that the defendant understands that there are

possible defenses to these charges that counsel might

be aware of, and if these defenses are not raised at

trial, they may be lost permanently; and

(f) that the defendant understands that, in addition to

defenses, the defendant has many rights that, if not

timely asserted, may be lost permanently; and that if

errors occur and are not timely objected to, or

otherwise timely raised by the defendant, these errors

may be lost permanently.

Pa.R.Crim.P. 121(A)(2)(a)-(f). In Commonwealth v. Phillips, 93 A.3d 847

(Pa. Super. 2014), this Court stated:

When reviewing a trial court’s basic compliance with the

requirements of Rule 121, we do not first apply a “totality

of the circumstances” test. In this context, we look at the

totality of the relevant circumstances only after we decide

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J.S45036/15

the trial court has met the minimum requirements of Rule

121, to determine whether the defendant’s waiver of the

constitutional right to counsel was a knowing, voluntary,

and intelligent waiver.

Id. at 853-54 (emphases added).3

Appellant relies on the following footnote in McDonough in support of

his argument that the trial court failed to conduct a thorough colloquy

because “the court failed to inquire into [Appellant’s] age before permitting

him to proceed pro se.” Appellant’s Brief at 19.

In addition to these six factors, a waiver colloquy must, of

course, always contain a clear demonstration of the

defendant’s ability to understand the questions posed to

him during the colloquy. Although Appellant does not

challenge his colloquy in this regard, the record clearly

demonstrates that Appellant understood the questions

posed during the colloquy. See infra p. 507 (prosecutor

inquiring during colloquy about Appellant’s age,

educational background, and basic comprehension skills).

McDonough, 812 A.2d 507 n.1.4

3

We note that this Court in Phillips stated “[t]he court should also inquire

about the defendant’s age, educational background, and basic

comprehension skills. McDonough, supra.” Phillips, 93 A.3d at 853. The

Supreme Court in McDonough did not hold that the court shall elicit the

defendant’s age in the colloquy. Given the totality of the circumstances test

enunciated in Phillips, the absence of an inquiry into a defendant’s age

alone would not be dispositive of whether the defendant’s waiver of the right

to counsel was knowing, voluntary, and intelligent.

4

The defendant in McDonough contended “his waiver was invalid because

it was the prosecutor rather than the judge who conducted the waiver

colloquy.” McDonough, 812 A.2d at 508. Our Pennsylvania Supreme Court

rejected this argument. Id. at 508-09.

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J.S45036/15

In the case sub judice, the following colloquy was conducted by the

Commonwealth:

MS. GETTLE:5 How far did you go in school?

[APPELLANT]: To the 11th –or to the 12th grade.

MS. GETTLE: Did you graduate?

[APPELLANT]: No.

MS. GETTLE: Did you get a GED?

[APPELLANT]: No.

MS. GETTLE: Do you read, write, and understand the

English language?

[APPELLANT]: I do.

* * *

MS. GETTLE: [A]re you under the influence of any alcohol

or controlled substances that are impacting your ability to

understand what you’re doing here today?

[APPELLANT]: No.

MS. GETTLE: Now, you take prescription medications, is

that correct?

[APPELLANT]: That’s correct.

* * *

MS. GETTLE: What types of prescriptions are you

prescribed?

5

Jennifer W. Gettle was the Commonwealth’s attorney and was instructed

by the court to conduct the colloquy after she informed Appellant of the

charges he faced and the potential maximum sentences. N.T. Trial, 6/4/14,

at 2-4.

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J.S45036/15

[APPELLANT]: [M]y therapist at the jail has tooken [sic]

me off the medications. I’m not prescribed any medication

at this time.

* * *

MS. GETTLE: What is your diagnosis?

* * *

[APPELLANT]: Major depression, psychotic features or

something like that.

MS. GETTLE: . . . And you have been seeing a therapist

for that?

[APPELLANT]: I was in CMU, the Case Management Unit.

They closed my case out. They said I didn’t need it.

* * *

THE COURT: CMU is the mental health component of

Dauphin County.

MS. GETTLE: In terms of the fact that you do have a

mental health diagnosis and you’re not taking your

prescriptions at this time, are you having any types of

difficulties understanding what you’re doing here today?

[APPELLANT]: No.

MS. GETTLE: Now, you’ve indicated that you do

understand the fact that you in this case could have the

representation of the Public Defender’s Office. You

understand that?

[APPELLANT]: I understand that.

MS. GETTLE: You qualify for their services and Ms. [Mary

L.] Klatt was representing you in this case.

[APPELLANT]: I understand that.

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MS. GETTLE: And that is your─you have a constitutional

right to have─

[APPELLANT]: And to refuse counsel also, right?

MS. GETTLE: And to refuse counsel . . . .

* * *

MS. GETTLE: . . . In terms of the nature of the charges

that have been filed against you, do you understand the

elements that the Commonwealth must prove beyond a

reasonable doubt in this case?

[APPELLANT]: In understand that.

MS. GETTLE: . . . And you’ve also been advised, and we’ve

talked about already this morning, the different types of

sentences if you are convicted of any of those offenses?

[APPELLANT]: I understand that.

MS. GETTLE: Do you understand that if you waive your

right to have counsel that you are going to be bound by

the same rules, court rules, that apply to attorneys when

they try cases?

[APPELLANT]: I understand that.

* * *

MS. GETTLE: Do you understand that there may be

possible defenses to the trial and that if you because of the

fact that you do not have a law license, you’re not

necessarily as familiar with the rules, that you can

permanently lose those defenses if you do not argue them

in court? Do you understand that?

[APPELLANT]: I understand.

* * *

MS. GETTLE: Do you understand that in the event that

something were to occur during court that procedurally

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J.S45036/15

shouldn’t have happened or something of that nature and

you don’t object, that then later on down the road you

can’t then say on appeal . . . I missed the objection,

you’ve lost that right to make that objection on appeal?

Do you understand that?

[APPELLANT]: What do you mean by that?

MS. GETTLE: . . . Let’s say something were to come into

evidence and an attorney would normally . . . object to it,

the evidence.

If that comes into evidence and if you haven’t lodged an

objection, then if you are convicted, you can’t argue . . . I

missed this objection and I should have done this and

objected here; you’ve lost the right to take that any

further on appeal. Do you understand that?

[APPELLANT]: I understand that.

Id. at 4-9, 11-13. The trial court continued the colloquy, addressed the

elements and permissible range of sentences for the charges against

Appellant. Id. at 13-19.

In the instant case, the trial court opined:

A review of the transcript reflects that the court and the

Commonwealth’s Attorney fully addressed each requisite

element of the colloquy. [Appellant] acknowledged that:

he had the right to counsel; he qualified for representation

by a public defender; he understood the nature of the

charges and possible sentences; if he chose to represent

himself, he would be bound by the same rules as an

attorney familiar with such rules including rules relating to

preservation of rights for purposes of appeal; if he invoked

the right to remain silent, he could not present testimony

by way of opening or closing statements.

The court further inquired into [Appellant’s] ability to

understand the proceedings. [Appellant] stated that he

had been diagnosed with depression with psychotic

features but had been discharged from care. [Appellant]

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J.S45036/15

consistently acknowledged that he understood the

information provided. [Appellant’s] prior counsel . . . who

served as standby counsel, stated that based upon her

extensive dealings with him she had no doubt as to

[Appellant’s] complete competency to stand trial.

Nevertheless, out of an abundance of caution, prior to trial,

[standby counsel] requested that a mental health advocate

meet with [Appellant]. The advocate believed [Appellant]

to be competent to stand trial. Further, the court placed

on the record its observations of [Appellant] and its

conclusion that it found [Appellant] competent to stand

trial.

Accordingly, [Appellant] knowingly, intelligently and

voluntarily waived the right to counsel.

Trial Ct. Op. at 5.

We find Appellant’s claim that the trial court’s failure to inquire about

his age rendered the colloquy deficient is unavailing. Instantly, the colloquy

satisfied Rule 121. See Pa.R.Crim.P. 121(A)(2)(a)-(f). Applying the totality

of the circumstances test, we find that Appellant’s waiver of the

constitutional right to counsel was knowing, voluntary and intelligent. 6 See

Phillips, 93 A.3d at 853-54; El, 977 A.2d at 1162-1163.

Next, Appellant argues “his convictions were against the weight of the

evidence”7 because he “was never shown to have engaged in acts which

6

We note that Appellant’s date of birth was readily apparent from the Court

of Common Pleas’ docket sheet.

7

We note that in his brief Appellant only addresses the aggravated assault

conviction. Appellant’s Brief at 21.

[I]t is an appellant’s duty to present arguments that are

sufficiently developed for our review. The brief must

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constitute the crimes of which he was convicted, and [he] acted in self-

defense.” Appellant’s Brief at 20. He contends his “use of force on the

victim was justifiable as he believed that such force was immediately

necessary to protect him against the victim’s hitting him in the head with a

towel rack.” Id. at 22.

Our standard of review is well-established:

A motion for a new trial alleging that the verdict was

against the weight of the evidence is addressed to the

discretion of the trial court. An appellate court, therefore,

reviews the exercise of discretion, not the underlying

question whether the verdict is against the weight of the

evidence. The factfinder is free to believe all, part, or

none of the evidence and to determine the credibility of

the witnesses. The trial court will award a new trial only

when the jury’s verdict is so contrary to the evidence as to

shock one’s sense of justice. In determining where this

standard has been met, appellate review is limited to

whether the trial judge’s discretion was properly exercised,

and relief will only be granted where the facts and

inferences of record disclose a palpable abuse of

discretion. Thus, the trial court’s denial of a motion for a

new trial based on a weight of the evidence claim is the

least assailable of its rulings.

support the claims with pertinent discussion, with

references to the record and with citations to legal

authorities. Pa.R.A.P. 2119(a), (b), (c). Citations to

authorities must articulate the principles for which they are

cited. Pa.R.A.P. 2119(b).

This Court will not act as counsel and will not develop

arguments on behalf of an appellant.

Commonwealth v. Kane, 10 A.3d 327, 331 (Pa. Super. 2010) (some

citations omitted). Therefore, we need not consider whether the verdict was

against the weight of the evidence for terroristic threats. See id.

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Commonwealth v. Ramtahal, 33 A.3d 602, 609 (Pa. 2011) (citation

omitted).

Additionally, our Supreme Court opined:

[A defendant] cannot prevail on his claim merely because

he believes that all of the evidence presented at trial, his

statement was the most truthful. It is within the province

of the jury, as the finder of fact, to decide whether a

witness’ testimony lacks credibility. The fact that the jury

did not credit [the defendant’s] statement does not

militate that the verdicts are against the weight of the

evidence; rather, that merely establishes that the jury did

not find [the defendant] to be credible, a conclusion that

they [are] empowered to make.

Commonwealth v. Smith, 861 A.2d 892, 896 (Pa. 2004) (citation

omitted).

In the instant case, the trial court opined:

In reaching the verdict of guilty of Aggravated Assault,

the jury considered and accepted the evidence that

[Appellant] brutally beat [Victim] with a towel bar causing

head injury, punched her in the stomach and strangled her

to the point of unconsciousness.

In his Statement of Matters Complained of on Appeal,

[Appellant] raised the claim that [he] acted in self-

defense. The record is devoid of evidence to support

[Appellant’s] suggestion that he acted in self-defense.

Even if the jury considered such claim, it was free to

accept the testimony of [the] Detective . . . that he did not

observe any bruises or injuries on [Appellant] and

therefore conclude that [Appellant] did not act in self-

defense.

Trial Ct. Op., at 7.

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J.S45036/15

Victim testified that Appellant chocked her until she lost consciousness

and told her if she reported the incident to the police he would kill her. N.T.,

6/15/14, at 46.

Detective John O’Connor of the Harrisburg City Police Department

testified. Id. at 73. He was shown the certification of medical records of

Victim from the Harrisburg Hospital on the date of the incident which

contained the discharge summary. Id. at 76. The discharge summary was

read to the jury. It indicated that Victim reported that Appellant physically

assaulted her on November 12, 2013. Id. at 79. Appellant hit her over the

head, choked her around the neck, kicked her in the chest, neck, shoulder,

abdomen and back. Id. Victim was discharged from the hospital on

November 14th. Id. at 81.

Detective O’Connor interviewed Appellant on November 14, 2013. Id.

at 106. He stated that Appellant “was trying to make himself out to be the

victim.” Id. at 107. Appellant told the Detective that Victim “continued to

come at him with the metal pole.” Id. at 113. He claimed to be defending

himself and he “pushed her again and she hit her head on the wall and

ended up in the bathtub.” Id.

Appellant asks this Court to reweigh the evidence. This we cannot do.

See Smith, 861 A.2d at 896. We discern no abuse of discretion by the trial

court, finding the verdict for aggravated assault was not against the weight

of the evidence. See Ramtahal, 33 A.3d at 609.

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J.S45036/15

Lastly, Appellant contends the trial court abused its discretion in

sentencing him to seven-and-one-half to fifteen years’ imprisonment and

restitution. He avers that his sentence is excessive and unreasonable given

his lack of a significant prior record, his mental health issues, and the court’s

failure to inquire into his background. Appellant’s Brief at 23.

Appellant challenges the discretionary aspects of his sentence. This

Court has stated:

[D]iscretionary aspects of [a defendant’s] sentence are not

appealable as of right. Rather, an appellant challenging

the sentencing court’s discretion must invoke this Court’s

jurisdiction by satisfying a four-part test.

We conduct a four-part analysis to determine: (1)

whether appellant has filed a timely notice of appeal,

see Pa.R.A.P. 903 and 903; (2) whether the issue

was properly preserved at sentencing or in a motion

to reconsider and modify sentence, see Pa.R.Crim.P.

720; (3) whether appellant’s brief has a fatal defect,

Pa.R.A.P. 2119(f); and (4) whether there is a

substantial question that the sentence appealed from

is not appropriate under the Sentencing Code, 42

Pa.C.S.A. § 9781(b).

An appellate court will find a “substantial question” and

review the decision of the trial court only where an

aggrieved party can articulate clear reasons why the

sentence imposed by the trial court compromises the

sentencing scheme as a whole.

Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (some

citations omitted).

Instantly, Appellant timely filed this appeal, preserved the issue of an

excessive sentence in his post-sentence motion, and included a statement in

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J.S45036/15

his brief which conforms with Pa.R.A.P. 2119(f). Accordingly, we ascertain

whether Appellant has raised a substantial question. See id.

[W]e hold that Rule 2119(f) requires only that a concise

statement of reasons relied upon for allowance of appeal

allow us to determine the allegation of trial court error and

the immediate context of the allegations as it relates to the

prescribed sentencing norms. Thus, the Rule 2119(f)

statement must specify where the sentence falls in

relation to the sentencing guidelines are what

particular provision of the Code is violated (e.g., the

sentence is outside the guidelines and the court did not

offer any reasons either on the record or in writing, or

double-counted factors already considered). Similarly, the

Rule 2119(f) statement must specify what

fundamental norm the sentence violates and the

manner in which it violates the norm (e.g., the

sentence is unreasonable or the result of prejudice

because it is 500 percent greater than the extreme end of

the aggravated range). If the Rule 2119(f) statement

meets these requirements, we can decide whether a

substantial question exists. The nature of the crime

underlying the sentence and the specific sentence in

months or years imposed for that crime are therefore not

required in a Rule 2119(f) statement because they are

unnecessary to determining the existence of a substantial

question.

Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (some

citations omitted).

In the Rule 2119(f) statement, Appellant cites Commonwealth v.

Kellly, 33 A.3d 638 (Pa. Super. 2011).8 In Kelly, this Court opined: “A

claim that a sentence is manifestly excessive such that it constitutes too

8

We note that the Kelly Court found that the defendant had waived the

issue because the brief was devoid of any argument on the issue. Kelly, 33

A.3d 640.

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J.S45036/15

severe a punishment raises a substantial question. See Commonwealth v.

Mouzon, [ ] 812 A.2d 617, 624 ([Pa.] 2002).” Id. at 640. The Mouzon

Court opined:

This does not mean, however, that the Superior Court

must accept bald allegations of excessiveness. Rather,

only where the appellant’s Rule 2119(f) statement

sufficiently articulates the manner in which the sentence

violates either a specific provision of the sentencing

scheme set forth in the Sentencing Code or a particular

fundamental norm underlying the sentencing process, will

such a statement be deemed adequate to raise a

substantial question so as to permit a grant of allowance of

appeal of the discretionary aspects of the sentence.

Mouzon, 812 A.2d at 627 (emphasis added and citation omitted).

In the case sub judice, Appellant’s bald reference to Kelly in his Rule

2119(f) statement does not raise a substantial question. See id. Appellant

avers that his sentence was excessive because the court failed to consider

his lack of a significant prior record and his significant mental health issues.

Appellant’s Brief at 14. This does not raise a substantial question. See

Goggins, 748 A.2d at 727. Therefore, we do not address the merits of his

challenge to discretionary aspects of his sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/30/2015

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COMMONWEALTH : IN THE COURT OF COMMON PLEAS

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Brian Leeks ("Defendanf') appeals the judgment of sentence imposed on June 12, 2014. For

the reasons set forth, the judgment should be affirmed.

RELEVANT PROCEDURAL HISTORY

The Defendant was tried before a jury on June 4, 2013 and found guilty of Aggravated

Assault and Terroristic Threats with Intent to Terrorize Another. Defendant was found not guilty

of Criminal Attempt-Homicide; Defendant represented himself at trial.

On June 12, 2014, the court sentenced Defendant to an aggregate sentence of 7 !4 to 15 years

as follows:

Count 2- 78 to 156 months in a state correctional institute, a fine of $25 plus costs of the

proceedings;

Count 3- 12 to 24 months in a state correctional institute consecutive to Count 2, a fine of

$25 plus costs of the proceedings.

On June 23, 2014, appellate counsel filed a post-sentence motion. The trial court denied the

post-sentence motion on October 21, 2014. Defendant filed a Notice of Appeal on November

,' ) Circulated 08/31/2015 01:05 PM

I 8, 20 I 4. Pursuant to the court's order, Defendant filed a Concise Statement of Matters

Complained of on Appeal on December 10, 2014.

·----F-A-e-'Pl:1Ah·B-A-eK6R01::JND--------·-----------------

The evidence at trial revealed that on the evening of November 11, 2013, Leelawattie Jagdeo

-----aoo--Dcfoooant-m:guoo-aboui--Defendant' s re1ationship-with-another woman. (Transeript"-fl-f--------

Proceedings, Jury Trial, June 5, 2014- June 6, 2014, p. 33)(hereinafter, "N.T. 2''). The argument

became physical, at which point Ms. Jagdeo attempted to flee from the downstairs living room of

the home to the upstairs bathroom. (Id. p. 34). Defendant chased her to the bathroom. Ms. Jagdeo

told Defendant she did not want to fight anymore. (Id. p. 35). However, Defendant dismantled a

towel rack and repeatedly struck Ms. Jagdeo on the head.(/d. p. 35). Ms. Jagdeo attempted to

shield her head from the multiple blows. At some point during the attack, Defendant hit Ms.

Jagdeo with a shower curtain rod, kicked her in the stomach and hit her in the head with his

hands. (Id.pp. 36-38). He then choked her to the point of unconsciousness. (Id. p. 38). When

Ms. Jagdeo regained consciousness, she was in a bathtub filled with water, fully clothed. She

recalled that that the water was up to her hair. (Id. p. 29).

A neighbor, Vickie Thompson, testified that she heard the loud fighting that evening and heard

Defendant tell Ms. Jagdeo that he was going to kill her. Ms. Thompson called 911. (Id. p. 9). An

ambulance took Ms. Jagdeo to the hospital.

Medical evidence revealed that Ms. Jagdeo suffered a small post traumatic scalp contusion at

the cerebral convexity. (Id. p. 81 ). She was admitted as an inpatient with diagnoses of intramural

hematoma of distal duodenum, proximal jejunum and brain contusion of the cerebral convexity.

(Id. pp. 82-83).

2

( ) /.") Circulated 08/31/2015 01:05 PM

Officer Charles Pensyl responded to the domestic violence call. At the hospital, Officer

Pensyl questioned Ms. Jagdeo. She told what happened to her, but refused to tell the officer who

did this to her. Officer Pensyl testified that he had never seen a domestic violence victim in such

Detective John O'Connor was assigned to this case. Detective O'Connor executed a search

----'-Narrant of Ms-Jagdee's-home-ea-Neveraber

13, 2013. (/d.p~eteetive-G'Connor observed--·~---

a blood smear on the neighbor, Ms. Thompson's door. (Id.) He found the living room of Ms.

Jagdco's home in disarray. (Id. p. 90). Detective O'Connor found an apology letter with a heart

on it which read, "Sorry for everything. I'll come back. Love always." (Id. pp. 95-96).

In an interview with Detective John O'Connor, Defendant stated that Ms. Jagdeo was the

aggressor, that he pushed her into a wall and she hit her head and foll into the bathtub.(Jd. p.

113 ). Defendant stated that Ms. Jagdeo threatened to kill him and that he became afraid and ran

away. (Id.)

DISCUSSION

A. THE COURT AND THE COMMONWEALTH ATTORNEY CONDUCTED A

THOROUGH AND COMPLETE COLLOQUY WHICH DEMONSTRATED THAT

DEFENDANT KNOWINGLY) INTELLIGENTLY AND VOLUNTARILY CHOSE TO

PROCEED PRO SE.

The colloquy conducted on the record on June 4, 2013 at pages 5-14 provided a complete and

thorough explanation of Defendant's rights, the charges he faced and the risk of proceeding pro

se which satisfied the requirements of Pennsylvania Rule of Criminal Procedure 121 (a)(2).

Rule 12l(a)(2) requires that,

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;

To ensure that the defendant's waiver of the right to counsel is knowing,

voluntary and intelligent, the judge or issuing authority, at a minimum, shall elicit

the following information from the defendant:

represented by counsel, and the right to have free counsel appointed if

-------------the-defe11dant-is-indigent;·---·---~----------------

(b) that the defendant understands the nature of the charges against the

defendant and the elements of each of those charges;

(c) that the defendant is aware of the permissible range of sentences

and/or fines for the offenses charged;

(d) that the defendant understands that if he 01· she waives the right to

counsel, the defendant will still be bound by all the normal rules of

procedure and that counsel would be familiar with these rules;

(e) that the defendant understands that there are possible defenses to these

charges that counsel might be aware of, and if these defenses are not

raised at trial, they may be lost permanently; and

(f) that the defendant understands that, in addition to defenses, the

defendant has many rights that, if not timely asserted, may be lost

permanently; and that if errors occur and are not timely objected to, or

otherwise timely raised by the defendant, these errors may be

permanently lost.

Pa.R.Crim.P. 121 (a)(2).

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·' )

A review of the transcript reflects that the court and the Commonwealth's Attorney fully

addressed each requisite element of the colloquy. Defendant acknowledged that: he had the right

to counsel; he qualified for representation by a public defender; he understood the nature of the

· -- -----clmrges·~arrd-pussibh~· sentenc-es;·if-Ire-c-hoseto represent rnllTSelf;he wou){I-bebmmd-bylhe same

rules as an attorney familiar with such rules including rules relating to preservation of rights for

----ttplli'j3oses of appealjif-heinvoked-the right to-remain-silent, he-eoold--flet-prescnt testwim-owll)\1-' ...,b,~1--------

way of opening or closing statements. (N.T. 2, pp. 6-19).

The court further inquired into Defendant's ability to understand the proceedings. Defendant

stated that he had been diagnosed with depression with psychotic features but had been

discharged from care. (Id. p. 6). Defendant consistently acknowledged that he understood the

information provided. Defendant's prior counsel, Attorney Mary Klatt, who served as standby

counsel, stated that based upon her extensive dealings with him she had no doubt as to

Defendant's complete competency to stand trial. Nevertheless, out ofan abundance of caution,

prior to trial, Attorney Klatt requested that a mental health advocate meet with Defendant. The

advocate believed Defendant to be competent to stand trial. (Id. pp. 23-24). Further, the court

placed on the record its observations of Defendant and its conclusion that it found Defendant

competent to stand trial. (Id. p. 24)

Accordingly, Defendant knowingly, intelligently and voluntarily waived the right to counsel.

A. THE WEIGHT OF EVIDENCE SUPPORTS THE VERDICT.

The court properly denied the Defendant's Motion for a New Trial or Arrest of Judgment

which challenged that the verdict was against the weight of the evidence.

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.)

The Superior Court has explained the "crucial distinction between evidentiary weight and

sufficiency" as follows:

Sufficiency of the evidence and weight of evidence are discreet inquiries.

In reviewing the sufficiency of the evidence, we must view the evidence presented

---~anu-aH-remrmmb-Jeinferences1akentherefrom in tneltgnt most favoraoletotn~e----

Commonwealth, as verdict winner. The test is whether the evidence> thus viewed>

is sufficient to prove guilt beyond a reasonable doubt. .. A motion for a new trial on

grounds that the verdict s contrary to the weight of the

----~·----evideace concedes thatthere is sttfficient-cvidenee-to-sustain-the--ver"Hdwic4-t-"'bu™tt-------------

contends> nevertheless, that the verdict is against the weight of the evidence.

Whether a new trial should be granted on grounds that the verdict is against

the weight of the evidence is addressed to the sound discretion of the trial

judge, and his discretion will not be reversed on appeal unless there has been

an abuse of discretion ... The test is not whether the court would have decided the

same way but whether the verdict is so contrary to the evidence as to make

the award of a new trial imperative so that right may be given another opportunity to

prevail.

Commonwealth v. Whiteman, 336 Pa. Super 120, 124-25, 485 A.2d 459, 461-62 (1984),

citing, Commonwealth v. Taylor, 324 Pa. Super, 420, 425, 471 A.2d 1228, 1229-30 (1984);

Commonwealth v. Sample, 321 Pa. Super.457, 468 A.2d 799 (1983)(allocatur denied);

Commonwealth v. Miller, 303 Pa. Super. 504, 450 A.2d 40 (1982) and Commonwealth v. Vogel,

501 Pa. 314, 461 A.2d 604 (1983) cert. denied, ~U.S._, 104 S.Ct. 1603, 80 L.Ed. 2d J 33

(1984).

We note at the outset that neither Defendant's Motion for a New Trial nor Arrest of Judgment

nor Statement of Matters Complained of On Appeal identify which of the charges arc

unsupported by the weight of evidence. Rather, Defendant asserts only the boilerplate claim that

"the verdict was against the weight of the evidence so as to shock one's sense of justice where

Defendant was never shown to have engaged in acts which constitute the crimes of which he was

convicted." (Defendant's Post-Sentence Motion, para. 7).

The facts set forth briefly in this Opinion and at greater length in the Commonwealth's Brief

For Appellee, with complete citation to the testimony, demonstrate that ample evidence supports

the verdict of guilty at each charge. Findings as to "the weight of the evidence [are] exclusively

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for the finder of fact who is free to believe all, part, or none of the evidence, and to determine the

credibility of the witnesses." Commonwealth v. Champney, 574 Pa. 435, 832 A.2d 403, 408 (Pa.

2003).

·------~1mevtcl"enceeastlysatisfieo1heelements oftliecliarge ofAggravatea Assaulr.Thestatute

provides:

·~------A-person is guiltyof-aggreveted-assaelt-if-her- ------·~----------

(1) attempts to causes serious bodily injury to another, or causes such injury

intentionally, knowingly or recklessly under circumstances manifesting extreme

indifference to the value of human life[.]

18 Pa. C.S.§2702.

In reaching the verdict of guilty of Aggravated Assault, the jury considered and accepted the

evidence that Defendant brutally beat Ms. Jagdeo with a towel bar causing head injury, punched

her in the stomach and strangled her to the point of unconsciousness.

In his Statement of Matters Complained of on Appeal, Defendant raised the claim that

Defendant acted in self-defense. The record is devoid of evidence to support Defendant's

suggestion that he acted in self defense. Even if the jury considered such claim, it was free to

accept the testimony of Detective John O'Connor that he did not observe any bruises or injuries

on the Defendant and therefore conclude that Defendant did not act in self-defense.

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Further, the weight of evidence well supports the verdict of guilty on the charge of Terroristic

Threats with Intent to Terrorize Another pursuant to 18 PA.C.S. § 2706 (A)(l) which provides,

in relevant part:

'I'e11'{)ristic 1'~ts.

(a) Offense defined.- A person commits the crime of terroristic threats if the person

---~eommanieates, either directly or indirectly, a threat to:

(1) commit any crime of violence with intent to terrorize another;

***

18 PA.C.S. § 2706 (A)(l).

The jury heard and accepted testimony of the victim's neighbor, Ms. Thompson, that she

heard loud fighting noises at the victim Ms. Jagdeo's home next door and a voice she identified

as Defendant's state that he was going to kill her. (N.T. 2, pp. 10-12).

Therefore, the weight of the evidence supports the verdict and the trial court properly denied

Defendant' s Motion for a New Trial or An-est of Judgment.

B. THE COURT PROPERLY EXERCISED ITS DISCRETION IN SENTENCING

DEFENDANT.

Defendant challenges the discretionary aspects of the sentence by his assertion that the

sentence was excessive and unreasonable and failed to consider Defendant's lack of prior record

and to inquire as to Defendant's mental health concerns. The transcript belies Defendant's

arguments.

The court properly imposed a sentence in the aggravated range and stated its reasons therefore

on the record. 1The court sentenced Defendant as follows:

I

The court ordered Defendant removed from the courtroom following Defendant's profanity laced outburst.

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THE COURT: On count two, the aggravated assault, the Court presided over the

proceeding, Also, observed some things in the courtroom and was at least informed of

what happened out at the prison with the assaults.

This assa~lt·wasimrtic1Thn:Iy-dtsconcerting,tl~lengtlroftr,mttmgher 'yV_lt_n_a_m_e_t_a_l _

towel rack, poking her with a shower rod to the extent she had internal bleeding, bleeding

------ .....o-n-,.,her-bram,aad--ether-injuries that she-had. So v.·e recogt1i-ze-thtt•'f-.-------------

I do believe I'm going to [g]o outside the standard range and impose a sentence of not

less than 78 months to 156 months, fine of $25 and costs of prosecution.

Condition of his sentence would be that he gets the mental health treatment, anger

management, and any other mental health treatment that is recommended by a

professional, while he is incarcerated.

He can't keep himself in prison without fighting with others, so I have a serious

concern about public safety issues should he be released without any treatment while he

is in prison.

On the terroristic threats count, at count three, impose a sentence of not less than one

year nor more than two years in the state correctional institute, and that will run

consecutively to the previous count; $25 fine and costs of prosecution.

Twill give him the time credit from November 14, 2013 until today's date.

We will set up a time to read him his appellate rights. We will do that promptly. Again,

we are not going to start the thirty days until he knows his rights. We can do that from the

prison.

The restitution amount is $768.30.

(Transcript of Proceedings, June 12, 13, 2014, pp. 5-9).

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! )

In the exercise of its discretion, the court properly considered "the character of the defendant

and the particular circumstances of the offense in light of the legislative guidelines for sentencing

and [imposed] a sentence [that was] consistent with the protection of the public, the gravity of

'Sentencing is a matter vested in the sound discretion of the sentencing judge, and a

sentence will not be disturbed on appeal absent a manifest abuse of discretion.' In this

context> an-abuse of discretion-4s--net-shown---merely by an error in judgment.Ritthe1.,-thc

appellant must establish by reference to the record that the sentencing court ignored or

misplaced the 1aw, exercised its judgment for reasons of partiality, prejudice, bias or ill

will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Rodda, 723 A.2d 212, 214(Pa. Super. 1999)(quoting Commonwealth v.

Johnson, 666 A.2d 690,693(P A. Super. I 995).

As reflected in its observations on the record, the court considered a sentence in the

aggravated range proper based upon the particularly brutal and prolonged attack upon Ms.

Jagdeo.

Also, contrary to Defendant's argument, the court considered Defendant's mental health

concerns in imposing the condition that Defendant undergo mental health treatment. The court

deemed such treatment necessary to reduce danger to the community upon Defendant's release.

Accordingly, the court properly denied Defendant's Post-Sentence Motion.

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CONCLUSION

For all of the foregoing reasons, the judgment of sentence should be affirmed.

o EWIS

PRESIDENT JUDGE

FOR TODD A HOOVER

June 26, 2015

Distribution:

Joseph Cardinale, Esq., Dauphin County District Attorney's Office

Ryan Lysaght, Esq., Dauphin County Public Defender's Office

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