from the Judgment of Sentence October 6, 2015 In the Court of
Common Pleas of Huntingdon County Criminal Division at No(s):
BEFORE: BOWES, OLSON AND STABILE, JJ.
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.
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 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.
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.
Id. at 17. Appellant was thereafter removed from the
courtroom. Counsel then moved for mistrial and asked to
withdraw, both of which were granted.One week later, the judge
recused and the matter was reassigned.
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.
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.
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.
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
I. Whether the trial court erred and/or abused its discretion
in sentencing Appellant without benefit of Pre-Sentence
II. Whether the trial court erred in conducti[ng]
Appellant's Jury Selection, Trial, and Sentencing via
brief at 8.
first address Appellant's second issue since an erroneous
deprivation of the right to be present warrants a new trial.
Commonwealthv. Vega, 719 A.2d 227 (Pa.
1998) (waiver of right to ...