from the Order December 18, 2015 In the Court of Common Pleas
of Erie County Criminal Division at No(s):
from the Order January 11, 2016 In the Court of Common Pleas
of Erie County Criminal Division at No(s):
from the Order December 17, 2015 In the Court of Common Pleas
of Erie County Criminal Division at No(s):
from the Order March 9, 2016 In the Court of Common Pleas of
Erie County Criminal Division at No(s): CP-25-CR-0002407-2015
BEFORE: BOWES, J., SOLANO, J., AND FORD ELLIOTT, P.J.E.
Tejada appeals from the judgment of sentence of four to eight
years incarceration imposed following his convictions for two
counts of aggravated harassment by a prisoner. Appellant
elected to act as his own counsel, but was removed from the
courtroom due to his behavior during voir dire. The
trial court, which did not appoint standby counsel and
rejected Appellant's request for same, conducted the
entire trial without any representation of Appellant's
interests. We reverse.
herein is the defendant's constitutional rights to be
present for trial, have counsel, and represent himself if he
so wishes. The United States Supreme Court has not held that
appointment of standby counsel is required when a defendant
elects to represent himself. It is, however, well-settled that
a defendant may forfeit his right to be present for his
trial. In this issue of first impression in Pennsylvania, we
address an intersection of those lines of case law: whether a
pro se defendant forfeits his right to
representation when his behavior results in the loss of right
to be present for trial. For the reasons that follow, we
conclude that a defendant cannot forfeit his right of
representation, and therefore vacate Appellant's judgment
of sentence and remand for a new trial.
counsel previously filed a petition to withdraw from
representation and a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009), which we denied.
Commonwealth v. Tejada, 176 A.3d 355 (Pa.Super.
2017). We directed counsel to file a merits brief on the
question of whether the trial court erred in proceeding with
trial after ordering Appellant's removal.
previously set forth the factual and procedural
history of this matter in our decision denying the
petition to withdraw, which we reproduce herein:
Appellant elected to represent himself at trial. Appellant
appeared for a scheduled jury trial on January 11, 2016, and
the proceedings commenced with the trial court asking,
"it's my understanding you are representing
yourself; is that correct?" Appellant confirmed that he
intended to act as his own attorney. Following a waiver
colloquy, the trial court concluded that Appellant validly
waived his right to counsel.
. . . .
Appellant then claimed that he was incompetent to proceed and
demanded a competency hearing, which the trial court denied
on the basis that Appellant's behavior did not indicate
any incompetency. Following that discussion, the trial court
informed Appellant that jury selection would proceed "as
soon as we get a jury panel available."
Following a recess the trial court asked, "[Appellant],
I need to know if you are going to stay for your trial?"
Appellant claimed that he was "not the defendant"
and argued that the court "has no jurisdiction to
proceed." Appellant does not appear to have been
otherwise disruptive of the proceedings, as reflected by the
fact that the trial court stated, "I'm going to
allow you to remain, but if you disrupt the proceeding, in
any way, you will be removed and the trial will go on without
jury panel then entered the room. Appellant requested to
admit into evidence the voir dire sheets, claiming
that the sheets were "illegible and incomprehensible
because of the writing." Significantly, Appellant
followed that statement with the following request:
The defense also makes it known for the record he requires
counsel. I told you numerous times I don't understand.
You're trying to push the trial on me. I got a
6th Amendment right to counsel. It's not
filled out and I told you, I'm asking for my
constitutional 6th amendment right since
you're forcing the trial on me improperly.
THE COURT: Mr. Tejada, you waived your right to counsel.
MR. TEJADA: And I got a constitutional right to get it
THE COURT: Excuse me. Mr. Tejada, I'm speaking. I
didn't interrupt you and don't interrupt me. You
waived your right to counsel approximately one hour ago
before this [c]ourt. I went over the rights waiver in detail
with you. You answered the questions appropriately and waived
your right to counsel....
interjected, "The constitution doesn't put no
restraints on when I can reinstate that right. I'm timely
reinstating it." Following more discussion, the trial
court stated, "[Y]our outbursts will not be tolerated,
you will be removed from this courtroom, you will be tried
in absentia." Finally, the trial court stated
that Appellant could communicate with the court so long as he
followed the rules, to which Appellant replied, "Then
appoint standby counsel to communicate with the
[c]ourt." The trial court repeated that outbursts would
not be tolerated. The following exchange occurred:
MR. TEJADA: So are you saying I'm denied the right to
standby counsel? If not, appoint me counsel. Is that what
you're saying for the record?
THE COURT: I'm saying that we are going to begin voir
MR. TEJADA: If you conduct voir dire, then I need
THE COURT: You already waived your right to counsel.
MR. TEJADA: And I'm petitioning to reinstate in
accordance with the Pennsylvania Rules of Criminal Procedure
The COURT: Well, it's too late at this point.
MR. TEJADA: So you're waiving my right to counsel or
THE COURT: All right. Take Mr. Tejada out, please.
Id. at 357-58 (footnotes and citations omitted).
stated that the issue appeared to be one of first impression
in this Commonwealth, and the parties' substituted briefs
likewise view it as such. Appellant largely relies on
precedents by our sister courts who have addressed this
issue. The Oregon Court of Appeals cogently summarized the
position that Appellant asks this Court to take:
[A] situation like that confronted by the trial court here
raises "complex constitutional issues, " because it
implicates three related but distinct Sixth Amendment rights:
(1) the right to be present at trial; (2) the right to
self-representation; and (3) the right to representation.
Persuaded by the Ninth Circuit's analysis in United
States v. Mack, 362 F.3d 597 (9th Cir. 2004), we held
that a defendant may forfeit the first two of those rights by
misconduct, but does not forfeit the third: "although a
defendant who acts out at trial may forfeit the right to be
present and the right to self-representation in the
proceeding, the defendant does not also forfeit the right to
any representation at trial." Consequently, because a
criminal defendant does not forfeit the right to
representation by misconduct (only the rights to
self-representation and to be present), "after a trial
court has removed a pro se defendant for his or her
misconduct, the trial court cannot proceed in the
defendant's absence unless and until the trial court has
either secured the defendant's waiver of his or her right
to representation at trial or has taken some other course of
action that protects the defendant's right to
representation, which may include the appointment of
counsel." Id. at 185, 341 P.3d 229.
State v. Lacey, 385 P.3d 1151, 1152-53 (Or.Ct.App.
2016), review allowed, 393 P.3d 1176 (Or.
2017) (emphasis added). Accord People v.
Ramos, 210 Cal.Rptr.3d 242 (Cal.Ct.App. 2016)
(holding that involuntary removal of pro se
defendant violates Sixth Amendment); People v. Cohn,
160 P.3d 336, 343 (Colo.App. 2007) (holding a pro se
defendant's conduct did not result in loss of right to
representation, as "the trial court could have found
defendant had waived his right to proceed pro se and
appointed counsel to represent defendant's interests
during the time he was excluded from the courtroom.").
Commonwealth does not take a position on whether we should
accept or reject the foregoing analysis. Its argument is
reproduced in full:
The Appellant's persistent belligerence resulted in the
trial proceeding in his absence. The Appellant had sufficient
opportunity to amend his behavior and declined to do so.
Under the principles of Pa.R.Crim.P. 1117 and
Commonwealth v. Ford, 650 A.2d 433, 440 (Pa. 1994)
the case proceeded in the Appellant's absence, as was
appropriate and within the sound discretion of the trial
judge. The Appellant's decisions and behaviors, despite
repeated warnings, constituted an implicit waiver of his
right to be present at trial. If the accused is abusive and
disruptive to the proceedings it is not an ...