Reply Brief — Cynthia Lynn Pollick, Petitioner v. Pennsylvania

No. 25-6449

IN THE

SUPREME COURT OF THE UNITED STATES

CYNTHIA LYNN POLLICK — PETITIONER

Vv.

COMMONWEALTH OF PENNSYLVANIA - RESPONDENT

ON PETITION OF A WRIT OF CERTIORARI TO

SUPREME COURT OF PENNSYLVANIA

REPLY BRIEF TO RESPONDENT'S BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

Respectfully Submitted:

Cth Rade —

Cynthia L. Pollick, Pro Se

PO Box 724

Clarks Summit PA 18411

(570) 510-7630

II.

II.

CONCLUSION

TABLE OF CONTENTS

A newly imprisoned pro se litigant cannot waive her

constitutional right to a fair trial when the trial judge was

required to provide legal counsel before the misdemeanor

jury trial began pursuant to this Court’s precedent in

Argersinger because Petitioner no longer had access to her

laptop, law library, rules of criminal procedure, evidence

or makeup while im pViSON......scseseereeeeee eres eee enee tener tess

This Court has jurisdiction over Petitioner’s challenge to

18 Pa. C.S. § 5503 since she preserved this issue by

arguing the trial court’s jury instructions that directed the

jury to find 11059 Valley View Drive (Newton Township),

Clarks Summit was “public” in both appellate courts.......

Respondent incorrectly asserts that this Court lacks

jurisdiction to find 18 Pa. C.S. § 5503 unconstitutional

since she challenged the sufficiency of evidence in both

appellate courts; it was Respondent who waived

opposition by not addressing the merits that § 5503 is

vague, overbroad and discriminatory applied.......cccecereens

peewee tere ere mn sse seer sess erst HoesoesrrsoHasessveseseurereseserererere®

ml

12

14

TABLE OF AUTHORITIES

CASES

Argersinger v. Hamlin,

407 U.S. 25 (1972)

Berger v. United States,

295 U.S. 78 (1935)

Garza v. Idaho,

586 U.S. 232 (2019)

Gibbs v. Burke,

337 U.S. 778 (1949)

Glasser v. United States,

315 U.S. 60 (1942)

Hemphill v. New York,

595 U.S. 140 (2022)

Illinois v. Gates,

462 U.S. 213 (1983)

Jewell v. Maynard,

383 S.E.2d 536 (W. Va. 1989)

Lakeside v. Oregon,

435 U.S. 333 (1978)

Schell v. United States,

423 F.2d 101 (7th Cir. 1970)

United States v. Cronic,

466 U.S. 648 (1984)

United States v. Harrison,

451 F.2d 1013 (2nd Cir. 1971)

ii

ee

eee ee eee eee

eee eee eee

eee eee eee eee

ee

SOOO eee eee

ee

ee

eee eee eee ee

eee eee ee eee eee)

eee ee eee eee eee ee ee

ee

1, 7-8

14

12

2-3

6-7

7-8

3-4

Uveges v. Pennsylvania,

335 U.S. 487 (1948)

Vachon v. New Hampshire,

414 U.S. 478 (1974)

STATUTES AND RULES

18 Pa. C.S. § 5503

il

Cee eee eer rveseereosesesereeeseee

eee eee reer eeereeerereeseseeere

re

I. A newly imprisoned pro se litigant cannot waive her

constitutional right to a fair trial when the trial judge was

required to provide legal counsel before the misdemeanor

jury trial began pursuant to this Court’s precedent in

Argersinger because Petitioner no longer had access to her

laptop, law library, rules of criminal procedure, evidence or

makeup while in prison

Instead of arguing Lackawanna County District Attorney’s Office

honored its oath to follow the Constitution and treated Petitioner fairly,

tellingly, it argues that Petitioner waived her constitutional right to

counsel although she had no control over being imprisoned in the divorce

when the criminal trial began. Petitioner!, who was not a criminal

lawyer, would not know what options were available to her after she was

imprisoned in the divorce; however, the four (4) skilled criminal trial

lawyers in the District Attorney’s Office would have known.

This Court has held “[t]o preserve the protection of the Bill of Rights

for hardpressed defendants, we indulge every reasonable presumption

1 The divorce imprisonment order of 4/12/22, was appealed on 4/22/22,

which should have stopped any imprisonment in the divorce but not in

Lackawanna County Court of Common Pleas. See Pollick v. Trozzolillo,

20 FC 40119 (Lackawanna CCP); 620 MDA 2022 (Pa. Super 2022).

Petitioner told Lackawanna County jurists that Pennsylvania had

abolished debtors’ prison yet they imprisoned her anyway. Id.

Specifically, within the body of the 4/22/22 notice of appeal, Petitioner

stated, ‘... ‘{ilmprisonment for civil debt is abhorrent to the law of this

Commonwealth.” Jd.

against the waiver of fundamental rights.” Glasser v. United States, 315

U.S. 60, 69-70 (1942). “This is one of the safeguards deemed necessary to

snsure fundamental human rights of life and liberty,’ and a federal court

cannot constitutionally deprive an accused, whose life or liberty is at

stake, of the assistance of counsel.” Td.

As noted by this Court in Glasser, “... we have held that the right

to the assistance of counsel is so fundamental that ... the failure of that

court to make an effective appointment of counsel, may so offend our

concept of the basic requirements of a fair hearing as to amount to a

denial of due process of law contrary to the Fourteenth Amendment ...”

Id. at 70 (cleaned up).

Respondent makes much ado about the fact that Petitioner was a

practicing lawyer and referred to herself as “Pro Se’; however, the key

facts are Petitioner was newly incarcerated and unskilled in criminal

law, which is a specialty. “Criminal law is a demanding, rapidly changing

2 ADA Jordan Mazzoni in her opening statement referred to Petitioner as

an attorney and stated, “May it please the Court, Your Honor. No one 1s

above the law. Lawyers, politicians, even judges aren't above the law. So

most certainly the Defendant, Attorney Cynthia Pollick is not above the

law.” (N.T. 5/2/22 pg. 12:7-11)(emphasis added). Respondent unfairly

prejudiced Petitioner by calling her “Attorney Pollick” in front of the jury

when she was not in that capacity when arrested or in court proceedings.

2

and complex specialty. And the constitutional right to counsel is not

satisfied by the compelled or random appointment of a specialist in real

estate law. ‘Simply because one has a license to practice law does not

make one competent to practice in every area of the law.” Jewell v.

Maynard, 383 S.E.2d 536, 542 (W. Va. 1989). As noted by this Court,

“(tlhe fact that Glasser is an attorney is, of course, immaterial to a

consideration of his right to the protection of the Sixth Amendment.”

Glasser, 315 U.S. at 70.

Just like every other citizen, Petitioner was entitled to her

constitutional right to counsel and never waived’ her right to trial

counsel when she was imprisoned in the divorce when trial began on

5/2/22. “The fact that appellant is an attorney does not necessarily mean

that he is capable of adequately defending himself.” United States v.

Harrison, 451 F.2d 1018, 1014 (2nd Cir. 1971). As noted by the Second

Circuit, “[i]t appears that the trial court was well aware of defendant's

inability to adequately defend himself without the assistance of counsel.

3 Petitioner wrote only “FOR PRELIMINARY HEARING”, so Petitioner

could be free from incarceration after being held 10 days after the 7/9/21

arrest since Petitioner’s family did not pay the $150.00 bail and she was

a solo practitioner. This Court does not allow a waiver to cover more than

its scope. See Garza v. Idaho, 586 U.S, 232, 237 (2019).

3

Appellant's constitutional guarantees cannot be discarded so easily.” Id.

at 1014.

Judge Bisignani-Moyle specifically noted Petitioner would not be

incarcerated when the 10/25/21 trial was originally set to occur; however,

Judge Bisignani-Moyle sua sponte recused herself and trial was

continued. At the October 6, 2021 hearing, which was more than six (6)

months earlier than trial on 5/2/22, the following occurred:

MS. POLLICK: If your internet works, if your law library is

open, then a defendant has access to those types of things. I

could tell you 12 days in prison I never got to go to the law

library.

THE COURT: Okay, but now — now that you are no longer

incarcerated, ...

THE COURT: Except. of course, if we're in trial -- | think you

could ask a lawyer to come in in the middle of trial* ... (N.T.

10/6/21 pg. 8:24-15:7)(emphasis added).

Respondent misapplies this Court’s precedent because it is the fact

that Petitioner was imprisoned at the start of her pro se misdemeanor

criminal trial that was determinative not the trial courts’ ultimate

sentence. The divorce imprisonment was a change of circumstances that

4 The District Attorney’s Office apparently forgot to include that

disclaimer along with the fact that the purported pro se colloquy occurred

six (6) months earlier and it was before a different jurist.

4

Petitioner would not have known would happen; nonetheless, she

informed Judge Bisignani-Moyle that was a problem six (6) months

earlier and Judge Bisignani-Moyle realized the same; however, Judge

Joseph M. Augello, the trial judge, failed to appreciate the significance

and allowed Petitioner to be slaughtered at trial by Respondent.

As this Court noted in Cronic, a criminal trial “... [is not] a sacrifice

of unarmed prisoners to gladiators." United States v. Cronic, 466 U.S.

648, 656-657 (1984). Petitioner did not have a crystal ball to know she

was going to be imprisoned in the divorce. It was the trial court that

wanted the trial to proceed when he stated, “It doesn't matter. We're

proceeding today”, and “That's not related to anything I have here. So

there is no relief I could grant you on that.” (N.T. 5/2/22 pg. 9:15-10:5).

Petitioner stated that she was “prejudiced” four (4) times to no

avail. (N.T. 5/2/22 pg. 3:25, 9:11, 11:14; 5/4/22 pg. 109:3). “Since it is clear

that a failure to request counsel does not constitute a waiver when the

defendant does not know of his right to counsel ...” Gibbs v. Burke, 337

U.S. 773, 780 (1949). “Obviously a fair trial test necessitates an appraisal

before and during the trial of the facts of each case to determine whether

the need for counsel is so great that the deprivation of the right to counsel

” Td.(emphasis added). Here, the trial

works a fundamental unfairness.

court moved forward fully knowing Petitioner was prejudiced.

It was not for Petitioner to determine what could be done, but

rather the trial court. The trial court failed to offer Petitioner her right

to legal counsel when he knew she was imprisoned in the divorce and

severely prejudiced. Petitioner would not have known that was an option

or she would have accepted it as she did at sentencing. “MS. POLLICK:

Thank you. And is there any way that there is a pro se person that can

help me logistically since am imprisoned and J am handicapped by that?

THE COURT: I can appoint counsel for you” (N.T. 7/21/22 Sentencing pg.

8:12-17).

“It is the judge, not counsel, who has the ultimate responsibility for

the conduct of a fair and lawful trial. ‘[T]he judge is not a mere moderator,

but is the governor of the trial for the purpose of assuring its proper

conduct and of determining questions of law.” Lakeside v. Oregon, 435

U.S. 333, 341-342 (1978). Judge Augello should have known that he was

required by law to appoint counsel to Petitioner the moment she was

imprisoned in the divorce before her misdemeanor jury trial began. This

Court instructs “... every judge will know when the trial of a

misdemeanor starts that no imprisonment may be imposed, even though

local law permits it, unless the accused is represented by counsel.”

Argersinger, 407 U.S. at 40 (emphasis added).

Here, it appears local law allowed Judge Michael Barrasse to

imprison Petitioner on a bench warrant in the divorce one week before

her pro se criminal trial. However, this Court does not allow such

disadvantage to a pro se criminal defendant to occur without the guided

hand of legal counsel. “In an adversary system of criminal justice, there

is no right more essential than the right to the assistance of counsel.”

Lakeside, 435 U.S. at 341.

Petitioner did not waive what she did not know would occur in the

future — that she would be imprisoned in the divorce on 4/25/22 through

9/15/225. As the Schell Court held, “[w]e conclude that under all the

circumstances -- the youth and inexperience of Schell, the lapse of six

months between the two hearings, the change in posture of the case due

to the events in the interim and due to questions as to the validity of the

5 Respondent was required to try Petitioner pursuant to the Speedy Trial

Act by 7/9/22, which Petitioner was still wrongly incarcerated in the

divorce at that time; and therefore, a continuance would not have

changed anything.

March plea -- the express waiver of counsel in March should not be

deemed effective in September.” Schell v. United States, 423 F.2d 101,

103 (7th Cir. 1970)(emphasis added).

Likewise, here, since more than six (6) months passed after the

purported pro se colloquy and Petitioner was not free but incarcerated in

the divorce at the time of trial on 5/2/22 any purported waiver on 10/6/21

could never be deemed valid since drastic circumstances changed.

“Where the gravity of the crime and other factors -- ... the conduct

of the court or the prosecuting officials, ... and the complicated nature of

the offense charged and the possible defenses thereto ... -- render

criminal proceedings without counsel so apt to result in injustice as to be

fundamentally unfair, the latter group holds that the accused must have

legal assistance under the Amendment whether he pleads guilty or elects

to stand trial, whether he requests counsel or not.” Uveges v.

Pennsylvania, 335 U.S. 487, 441 (1948)(emphasis added)(cleaned up).

Respondent should have advocated for a fair fight, and told the trial

court that Argersinger required the trial court to appoint counsel because

of the 4/25/22 divorce imprisonment, but it didn’t to its advantage.

Lackawanna County District Attorney’s Office wanted a slam dunk win

regardless of its obligation to uphold the Constitution. The District

Attorney’s obligation “... 1s not that it shall win a case, but that justice

shall be done.” Berger v. United States, 295 U.S. 78, 88 (1935). “It is as

much his duty to refrain from improper methods calculated to produce a

wrongful conviction as it is to use every legitimate means to bring about

a just one.” Berger, 295 U.S. at 88.

“Upon the trial judge rests the duty of seeing that the trial is

conducted with solicitude for the essential rights of the accused. ... The

trial court should protect the right of an accused to have the assistance

of counsel.” Glasser, 315 U.S. at 71. Here, unskilled in criminal law and

incarcerated, the trial court should have appointed counsel when

Petitioner was imprisoned in the divorce one week before trial. As this

Court has held, “... the fair conduct of a trial depends largely on the

wisdom and understanding of the trial judge. He knows the essentials of

a fair trial.” Gibbs, 337 U.S. at 781. It is clear the trial court failed

Petitioner and the convictions must be vacated since she was not given a

fair trial with appointed legal counsel.

To ensure there is not another criminal defendant behind Petitioner

who suffers as she did, Petitioner lists the burdens she faced:

1)

2)

3)

4)

5)

6)

7)

8)

9)

No access to her laptop;

No access to evidence;

No legal research database;

No access to jury instructions;

No access to law library;

No access to Pennsylvania Rules of Criminal Procedure or

Evidence;

No right to freely remain in the courtroom during breaks;

No right to use the bathrooms outside the courtroom,

No access to makeup, shower or clean cloths;

10) No access to the court when out of session as a free litigant

would;

11) No preparation time at night to review evidence to make

strategic decisions;

12) No iPhone access to ensure wireless hearing aids worked

properly;

13) No ability to subpoena witnesses.

Any one of the burdens listed above would have been sufficient to

cause the trial court to appoint counsel yet the trial court refused stating,

“there is no relief I could grant you on that”, which violated Petitioner's

due process rights to a fair trial and right to counsel that requires this

Court to vacate the convictions and instruct Lackawanna County Court

of Common Pleas to heed this Court’s precedent.

10

Il. This Court has jurisdiction over Petitioner’s challenge

to 18 Pa. C.S. § 5503 since she preserved this issue by

arguing the trial court’s jury instructions that directed

the jury to find 11059 Valley View Drive (Newton

Township), Clarks Summit was “public” in both

appellate courts

Petitioner continued to preserve her objection to the court's

instructions in appellate courts. Respondent admitted that Petitioner

presented the issue in the Superior Court of Pennsylvania. Respondent

claims the issue was not included in the discretionary review before the

Supreme Court of Pennsylvania; however, that is incorrect since

Petitioner, in her Pro Se Petition for Allowance of Appeal included in her

third issue, “[r]eview is warranted because “public” within the meaning

of public drunkenness and disorderly conduct statutes cannot constitute

one step onto the rural street from a private driveway when no harm

occurred; and therefore, there was insufficient evidence to sustain

convictions”. See Pro Se Petition for Allowance of Appeal page 19.

This Court has jurisdiction over this matter related to whether the

trial court erred when it instructed the jury that Petitioner was in

“public” and failed to allow the jury to determine whether Respondent

met its burden of proof that Petitioner was in “public” at her home in

11

rural Newton Township, Pennsylvania. Since Respondent failed to

address the merits of this issue, Petitioner’s arguments carry the day.

III. Respondent incorrectly asserts that this Court lacks

jurisdiction to find 18 Pa. C.S. § 5503 unconstitutional

since she challenged the sufficiency of evidence in both

appellate courts; it was Respondent who waived

opposition by not addressing the merits that § 5503 is

vague, overbroad and discriminatory applied

Petitioner preserved her federal constitutional challenges to the

statutes as vague, overbroad and discriminatory applied when she filed

her Pro Se Second Amended Statement of Errors Complained of on

Appeal Pursuant to PA R.A.P. 1925(b) on February 14, 2023. Specifically,

Petitioner noted “.. U. Is persistently disorderly conduct statute

unconstitutional since it is vague and overbroad?”

As noted by this Court in Gates, “... "[if] the question were only an

enlargement of the one mentioned in the assignment of errors, or if it

were so connected with it in substance as to form but another ground or

reason for alleging the invalidity of the [lower court's] judgment, we

should have no hesitation in holding the assignment sufficient to permit

the question to be now raised and argued.” JIlinois v. Gates, 462 U.S. 213,

229-220 (1983)(emphasis added). "It is beyond question, of course, that a

conviction based on a record lacking any relevant evidence as to a crucial

12

element of the offense charged . . . violate[s] due process." Vachon v. New

Hampshire, 414 U.S. 478, 480 (1974). To uphold a conviction, the

appellate courts were required to determine that Petitioner was in

“nublic”. Consequently, the federal questions were properly preserved for

this Court’s review.

Interestingly, after sentencing on July 21, 2022, the trial court

appointed a part-time Lackawanna County Public Defender who also had

a private law office for Petitioner's Superior Court appeal — Attorney

Jillian Kochis®, and declined Petitioner’s request to appoint conflict-free

Carey Law School Clinic.

Nonetheless, Attorney Kochis argued there was insufficient

evidence on appeal, which covered the unconstitutionally vague and

overbroad challenges along with appealing the jury instruction that

decided for the jury that Petitioner’s rural road was public when it should

eee

have been a jury question. This Court has held, “[nJo particular form of

6 Attorney Kochis was rewarded for her work in this matter by being

offered a full-time job with the Lackawanna County Public Defenders’

Office and sought to withdraw from representing Petitioner at the

Supreme Court of Pennsylvania. Interestingly, when Petitioner wanted

different counsel appointed to handle the Superior Court appeal due to

differences of opinion, Attorney Kochis refused to withdraw and

disregarded Petitioner’s appellate requests.

13

words or phrases is essential for satisfying the presentation

requirement, so long as the claim is ‘brought to the attention of the state

court with fair precision and in due time.” Hemphill v. New York, 595

U.S. 140, 148 (2022).

Admirably, this Court does not require perfection when preserving

federal questions. “The federal question was adequately if inartistically

raised in the petition for a writ of habeas corpus.” Gibbs, 337 U.S. at 779.

Consequently, this Court has jurisdiction to hear constitutional

challenges to 18 Pa. C.S. § 5503.

CONCLUSION

The petition for writ of certiorari should be granted.

Respectfully Submitted,

Crorthna ts Rubi d—

Cynthia L. Pollick, Pro Se

|

Date: 1/28/25

14