Case Information
NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA [1] IN THE SUPERIOR COURT OF PENNSYLVANIA
Appellee
v.
JAMES WALTERS
Appellant No. MDA 2016 Appeal from the Judgment of Sentence 2016 In the Court of Common Pleas Berks County Criminal Division at No(s): CP- 06 -CR- 0002768 BEFORE: LAZARUS, J., STABILE, J., and RANSOM, J. FILED JANUARY 2017
MEMORANDUM BY LAZARUS, J.: James appeals from judgment of sentence entered in Court of Common Pleas Berks County following conviction fleeing elude officer' driving while operating privilege suspended or revoked.2 Upon review, affirm. June 4, 2011, at approximately 3:00 a.m., Police Peter saw traveling south State Route minivan. O'Brien observed cross fog line at least three times make drastic overcorrection each time. Officer O'Brien suspected Walter intoxicated, activated lights sirens order ' 75 Pa.C.S. § 3733(a). 75 Pa.C.S. § 1543(b)(1).
stop him. Walters continued drive at the same speed. O'Brien used his spotlights and intercom system direct Walters to pull over, but Walters continued driving. Eventually, overtook Walters' van and forced him off road. Thereafter, criminal charges were filed against Walters.
On February 16, 2016, after continuances, four lawyers approximately four years, the trial court conducted status hearing in response motion filed by Walters' counsel, Kevin Wray, Esquire, seeking withdraw from case. The court denied the motion and advised Walters case would go March 29, 2016. At trial, Walter appeared without Attorney Wray. Walters indicated Attorney Wray no longer associated him he had fired Attorney Wray. The denied Walters' continuance, finding forfeited to counsel. Standby counsel was appointed proceeded Following found guilty of the aforementioned offenses. The jury found of driving under the influence.
On 2016, the sentenced Walters to 133 days 23 months' incarceration fine of $2,500 the eluding conviction. April 2016, following timely post- sentence motion, the judgment sentence modified reduce the fine $500. Walters filed timely notice of appeal court -ordered concise statement errors complained
J-S80007-16 of on appeal pursuant to Pa.R.A.P. 1925(b). appeal, Walters raises the following issues for our review:
1. Whether the trial erred in requiring Appellant James to represent himself pro se at a jury trial when he hired private attorney, Attorney Kevin Wray, when said attorney failed to appear on the day of despite being instructed his petition to withdraw was denied and that was to continue to represent [Walters] through trial, unless another attorney entered his /her appearance and any consent [Walters] to the withdrawal of Attorney Wray's appearance on [the] day of was knowing, intelligent and voluntary and violation 6th Amendment to pursuant to the federal constitution and Article Section of the Pennsylvania Constitution.
2. Whether the trial court erred in failing to instruct jury on defenses fleeing and eluding pursuant Pa.C.S.A. [ §] 3733(c)(1) and (c)(2), which are complete defenses jury instruction where there was part of the standard testimony regarding the late hour, single driver, unsure it was in fact an police there was glass and other items side of the road making it unsafe to pull over, coupled failure evade the and then coming stop when felt there safe place do so, making the defenses applicable subject credibility factual determinations for consider then accept or reject. 3. Whether the trial court erred failing order new trial upon post sentence motion[,] as verdict shocked conscience insufficient matter law[,] since support the conviction [f]leeing [e]luding was lacking [Walters] not increase speed exit the roadway at approved exits [commit] any other evasive maneuvers, [and the evidence] not establish he willfully failed to respond any signal stop[,] coupled with good faith concern personal safety. Brief for Appellant, 5.
J-S80007-16
We although criminal defendant has right to be represented by counsel, right can be waived or forfeited; defendant forfeits her right to counsel where her conduct results sequence of dilatory dismissals of counsel withdrawals of counsel. See Commonwealth Coleman, 905 A.2d 1003, 1006 -08 Super. 2006) (holding right to counsel forfeited where defendant (1) continuously dismissed substituted counsel or appeared se; (2) capable retaining for or her defense; (3) refused heed trial court's warning trial would commence date certain, with or without representation by counsel). Further, where the to counsel is forfeited by defendant, the trial not obliged to conduct waiver of counsel colloquy with the defendant before requiring the defendant to proceed to pro Id. at 1008.
The posture of the instant matter mirrors Coleman, prior had proceeded eve trial multiple times, with multiple counsel, only continuance each time. As noted,
[Walters'] conduct can described nothing but dilatory. Before case was assigned this trial judge, [Walters'] been granted more than thirty continuances had been represented four different attorneys. [Walters'] modus operandi disagree his lawyers the point of prompting them file motion withdraw, which allowed [Walters] further delay the proceedings while seeking to hire another lawyer. [Walters] requested continuances counsel status twenty times. His case listed disposition six
J-S80007-16 It was continued once due to [Walters'] request a times. bench and jury trials scheduled multiple times. Trial Court Opinion, 6/7/16, 3. Ultimately, the court informed Walters that would proceed on 2016, whether or not he had an attorney. appeared day without attorney stated he fired him. Thus, the trial took place Walters representing himself with standby appointed. Under the circumstances, conclude that the court not err requiring Walters to proceed pro Coleman, supra.
Next, Walters asserts the erred by not instructing jury as the defenses fleeing or attempting to elude police, claiming that was unsure was being pulled over an glass and debris were side of the road, stopped when he felt it was safe to do so.
The record reveals trial judge gave the standard jury instruction regarding fleeing or attempting to elude police. No objection made to this instruction, nor made judge instruct the jury regarding defenses the crime. We that the fact proceeding se not relevant this regard, since pro se defendants are held same standards as licensed attorneys. See Commonwealth Blakeney, 108 A.3d 2014) ( "pro se status confers no special benefit upon litigant, cannot expected to become litigant's counsel "). Accordingly, the court err not instructing defenses to fleeing or elude police.
J-S80007-16
Finally, Walters asserts that the evidence insufficient convict him of fleeing or to elude police.3 In considering sufficiency the evidence claims, must determine whether the evidence admitted
all reasonable inferences drawn therefrom, when viewed light most favorable the Commonwealth verdict winner, support the conviction beyond a reasonable doubt. . . Where . there is sufficient evidence to enable the trier fact to find every element of the crime has established beyond a reasonable doubt, the sufficiency of the evidence claim must fail. Of course, the evidence established at need not preclude every possibility of innocence the fact -finder is free believe all, part or none of the evidence presented.
Commonwealth Watley, A.3d 108, Super. 2013) (en banc). A driver is of fleeing or eluding police when he "willfully fails or refuses to bring vehicle stop, or . . otherwise flees or attempts to elude . pursuing when given visual audible signal bring vehicle stop[.]" 75 Pa.C.S. § 3733.
Here, Walters baldly argues fact that he did not increase his speed exit the roadway at approved exits demonstrates he did not willfully fail stop respond to signal from police. However, Walters fails provide any legal authority support claim the mere fact speed up indicates not willfully fail to stop. In brief, Walters asserts that verdict shocks conscience, which implies weight of the evidence claim. However, extent the claim is developed, it focused lack of willfully failed stop vehicle.
J-S80007-16 Moreover, Officer O'Brien testified that that used only lights and siren to signal to pull over, but also used his spotlight intercom system communicate stop. also clearly marked police vehicle. Additionally, we continued drive at least two -and -one -half miles after O'Brien activated lights sirens forced off the roadway. Accordingly, find sufficient presented to show of fleeing officer. Watley, supra.
Judgment of sentence affirmed.
Judgment Entered.
J: seph D. Seletyn,
Prothonotary
Date: 1/17/2017