J-A26007-17

2018 PA Super 86

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

PATRICK TIGHE

Appellant No. 266 MDA 2017

Appeal from the Judgment of Sentence January 13, 2016

In the Court of Common Pleas of Lackawanna County

Criminal Division at No(s): CP-35-CR-0001297-2012

BEFORE: BOWES, OLSON, AND RANSOM, JJ.

OPINION BY BOWES, J.: FILED APRIL 12, 2018

Patrick Tighe appeals from the judgment of sentence of twenty to forty

years incarceration, imposed following his convictions for, inter alia, rape, 

involuntary deviate sexual intercourse (“IDSI”), and sexual assault. We 

affirm the convictions, but vacate the judgment of sentence. 

The trial court thoroughly set forth the facts underlying Appellant’s 

convictions in its Pa.R.A.P. 1925(a) opinion, which we adopt herein: 

On May 29, 2012, J.E. was 15 years of age. J.E. did not have a 

permanent residence. She lived at both her father's home and 

her grandmother's home in Scranton, Pennsylvania. On the 

night in question, J.E, resided at her father's residence with her 

older sister, [M.L.], and [M.L.]'s boyfriend, [C.E.]. J.E.'s mother 

and father were both incarcerated for drug usage. J.E. called the 

Defendant to drive her to a Wal-Mart to purchase tampons. The 

Defendant was 58 years of age. The Defendant agreed, and he 

drove his white minivan to meet J.E. J.E. entered the minivan 

and they proceeded to Wal-Mart. J.E purchased tampons at 
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Wal-Mart and left the store with the Defendant a few minutes 

later. After the purchase, J.E. asked the Defendant to take her 

to a McDonald's restaurant. The Defendant agreed. Before 

reaching McDonalds, the Defendant expressed his desire to stop 

at his friend's house. The owner of the home was Joseph 

Hasham. The Defendant and J.E. entered the unoccupied home. 

J.E. used the restroom and searched the refrigerator—located in 

the kitchen—for a beverage. The Defendant entered the kitchen 

and pulled J.E. by the back of her shorts without warning. J.E. 

asked the Defendant what he was doing, but he did not reply. 

The Defendant took her into the living room, placed her on a 

couch, and flipped her on her back. J.E. repeatedly asked the 

Defendant to stop, but he covered her mouth. Despite J.E.'s 

protests, the Defendant removed her shorts; ripped out her 

tampon; and inserted his penis into her mouth and vagina. The 

incident lasted about 5 minutes. 

After the Defendant raped J.E., she pleaded for the Defendant to 

drive her home. He eventually agreed, on the condition that she 

would not tell anybody about the incident. He also asked her to 

call him the next day. The Defendant drove J.E. to McDonalds. 

He borrowed Joseph Hasham's car because of a broken taillight 

in his own vehicle. Afterwards, he dropped her off at J.E.'s 

father's residence. J.E. rushed inside. She found [M.L.] and 

[C.E.] sleeping on the couch. The next morning—on May 30, 

2012—J.E exhibited signs of distress and nervousness. J.E. told 

[M.L.] that the Defendant raped her, but J.E. asked [M.L.] not to 

discuss the incident with anyone else. Instead, [M.L.] called the 

police. Detective Vincent Uher from the Scranton Police 

Department responded and transported J.E. to the Children's 

Advocacy Center. The Children's Advocacy Center conducted a 

medical examination and collected a rape kit under the 

supervision of various experts. Joann Armaghan, a Forensic 

Scientist Supervisor for the Pennsylvania State Police, 

corroborated J.E.'s testimony and concluded that the test for the 

presence of saliva on J.E.'s neck and right breast was positive. 

Sara Harrier, a forensic DNA scientist for the Commonwealth of 

Pennsylvania, also corroborated J.E.'s testimony. Hamer 

testified that DNA on J.E.'s pubic hair contained a mixture of 

DNA from two individuals. Under statistical calculation, Hamer 

concluded that the most likely combination contained DNA of 

both J.E. and the Defendant. 
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Detective Uher learned that the Defendant tried to contact J.E. 

on her telephone, so he conducted a consensual phone 

intercept—also known as a wiretap—to gather additional 

information and/or evidence of the case. J.E. consented to the 

phone call. During the phone call, the Defendant made several 

incriminating statements, which eventually led to his arrest. 

Trial Court Opinion, 7/28/16, at 7-10 (citations to transcript omitted).

Appellant represented himself at trial, and was convicted and 

sentenced on October 25, 2013 to an aggregate sentence of twenty to forty 

years incarceration. That sentence included the imposition of mandatory 

minimum sentences of ten to twenty years incarceration at the counts of 

rape and IDSI. The trial court imposed a concurrent sentence of one to two 

years at indecent assault, and an additional concurrent sentence of eight to 

sixteen years incarceration at unlawful contact with a minor. 

Appellant filed post-sentence motions. The transcription of the notes 

of testimony was significantly delayed, leading to a September 18, 2015 

motion requesting reinstatement of his post-sentence motion rights nunc pro 

tunc. The Commonwealth consented to this request, leading to a second set 

of post-sentence motions. While those motions remained active, the 

Commonwealth requested that the trial court vacate and resentence 

Appellant due to subsequent caselaw pertaining to mandatory minimum 

sentences. 

On January 13, 2016, the trial court resentenced Appellant to the 

same aggregate sentence of twenty to forty years incarceration. However, 
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as relevant to one of his issues on appeal, the trial court imposed a 

consecutive sentence for indecent assault whereas the original scheme called 

for a concurrent sentence at that charge. 

Appellant filed a timely notice of appeal, and complied with the trial 

court’s order to file a concise statement.1 The trial court authored its 

opinion, and the matter is ready for review. Appellant raises eleven issues, 

which we have reordered for ease of discussion.2

1. Whether the trial court violated the Appellant's 6th 

Amendment rights under the United States Constitution and 

Article I, Section 9 of the Pennsylvania Constitution by refusing 

to allow Appellant, acting pro se at trial, to cross-examine and/or 

____________________________________________

1 The appeal was originally docketed at 884 MDA 2016, which this Court 

dismissed on December 15, 2016, due to counsel’s failure to file a brief. The 

trial court subsequently reinstated Appellant’s appellate rights nunc pro tunc.

2 Appellant's statement of questions presented calls to mind the view of the 

often quoted Honorable Ruggero J. Aldisert of the United States Court of 

Appeals for the Third Circuit regarding this shotgun approach to appellate 

advocacy:

With a decade and a half of federal appellate court experience 

behind me, I can say that even when we reverse a trial court it 

is rare that a brief successfully demonstrates that the trial court 

committed more than one or two reversible errors. I have said in 

open court that when I read an appellant's brief that contains 

ten or twelve points, a presumption arises that there is no merit 

to any of them ... [and] it is [this] presumption . . . that 

reduces the effectiveness of appellate advocacy.

Commonwealth v. Robinson, 864 A.2d 460, 480, n.28 (Pa. 2004) 

(quoting Aldisert, “The Appellate Bar: Professional Competence and 

Professional Responsibility–A View From the Jaundiced Eye of the Appellate 

Judge,” 11 Cap. U.L. Rev. 445, 458 (1982) (emphasis in original)).
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question the victim at any time during trial or bail hearing, but 

instead required standby counsel to ask the victim all questions 

on Appellant's behalf using written questions prepared by 

Appellant in advance of cross-examination and/or questioning?

2. Whether the trial court committed an error of law and/or an 

abuse of discretion and/or otherwise violated the Appellant's 

right to a fair trial as guaranteed under both the United States 

Constitution and the Pennsylvania Constitution by refusing to 

rule on the Appellant's motion to recall thereby prejudicing the 

Appellant and his ability to properly present his defense?

3. Whether the trial court committed an error of law and/or an 

abuse of discretion, when it required Appellant to state every 

question he intended to ask the victim on recall with opposing 

counsel present thereby denying Appellant's right to a fair trial 

as guaranteed by both the United States Constitution and the 

Pennsylvania Constitution?

4. Whether the trial court abused its discretion and denied the 

Appellant's right to a fair trial as guaranteed by the United 

State[s] Constitution and the Pennsylvania Constitution when it 

allowed the victim to remain in the courtroom throughout the 

trial despite a sequestration order being issued and Appellant's 

intention to recall her despite the fact that Appellant requested 

to examine her in his case in chief?

5. Whether the trial court committed an error of law and/or an 

abuse of discretion, when it failed to grant a mistrial after the 

victim was allowed to hear her testimony, evidence and the 

subject matter of questions Appellant intended to ask her upon 

recall thereby prejudicing Appellant and denying him his right to 

a fair trial?

6. Whether the Appellant was denied his right to counsel in 

violation of the 6th Amendment of the United States Constitution 

and/or Article I, Section 9 of the Pennsylvania Constitution?

7. Whether the trial court abused its discretion in appointing 

"stand-by counsel" for Appellant with whom the Appellant 

expressly stated he had irreconcilable differences and/or in 

failing to examine on the record whether such conflict actually 

existed as Appellant claimed?
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8. Whether the trial court abused its discretion when it denied 

[Appellant’s] request for an expert [to] be appointed to conduct 

independent testing, DNA testing and/or to assist him in his 

defense?

9. Whether the trial court committed an error of law and/or an 

abuse of discretion in limiting Appellant's right to cross-examine 

the Commonwealth's witness, [M.L.], about her drug use on the 

date of the incident?

10. Whether the trial court abused its discretion by denying 

Appellant's request to have his own psychological evaluation 

prior to the hearing to determine whether he was a sexually 

violent predator?

11. Whether the trial court issued an illegal sentence by finding 

that indecent assault did not merge for sentencing purposes or

in the alternative abused its discretion when increas[ing] the 

sentence for indecent assault on resentence than what was 

originally imposed?

Appellant’s brief at 5-7 (reordered).

I. Limitation Upon Cross-Examination of J.E.

Appellant’s first argument appears to be an issue of first impression in 

this jurisdiction, and addresses the fact that the trial court granted the 

Commonwealth’s motion to prohibit Appellant from personally crossexamining J.E. The Commonwealth filed the motion after Appellant, while at 

liberty and awaiting trial, contacted J.E. and asked her, “Why are you doing 

this to me? I didn’t hurt you. Please don’t put me in jail for life.” N.T., 

6/4/13, at 42. Following an evidentiary hearing at which J.E. testified to 

those facts and that the call scared her, the trial court granted the motion 

and required Appellant to provide Attorney Christopher Osborne, Appellant’s 
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stand-by counsel, with the questions he wished to ask J.E. at trial. The 

court directed that Attorney Osborne was to ask J.E. the questions. 

Appellant maintains that “Prohibiting Appellant from questioning the 

victim is a violation of his constitutional rights.” Appellant’s brief at 23. The 

constitutional right he asserts is at issue is his right of self-representation. 

Succinctly stated, Appellant argues that the right to represent himself 

necessarily includes the right to act as attorney for all purposes, and cannot 

be limited. Appellant also notes that requiring counsel to ask the questions 

amounts to hybrid representation, which is impermissible. 

In Faretta v. California, 422 U.S. 806 (1975), the United States 

Supreme Court recognized that the Sixth Amendment right to counsel 

implicitly includes the right to self-representation, which applies to the 

States through the Fourteenth Amendment’s guarantee of due process of 

law. Pennsylvania has recognized the same right under Article I, Section 9 

of the Pennsylvania Constitution. See Commonwealth v. Szuchon, 484 

A.2d 1365 (Pa. 1984). The denial of the right to proceed pro se cannot be 

harmless, and a violation requires a new trial. See Commonwealth v. 

Starr, 664 A.2d 1326, 1334–35 (Pa. 1995) (citing McKaskle v. 

Wiggins, 465 U.S. 168, 177 n.8 (1984)). Whether that right was violated 

presents a question of law, for which our review is de novo. See 

Commonwealth v. El, 933 A.2d 657, 662 (Pa.Super. 2007), aff’d, 977 A.2d 
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1158 (Pa. 2009). For purposes of this claim, the question of whether 

Appellant validly asserted his right to represent himself is not at issue. 

Before addressing Appellant’s substantive claim, we note that 

Appellant explicitly distances himself from the analysis offered by the 

Commonwealth and the trial court, which focused on the Sixth Amendment 

right of confrontation. Since other jurisdictions that have considered this 

issue have drawn parallels to that right, we begin our analysis there.

“In all criminal prosecutions, the accused shall enjoy the right . . . . to 

be confronted with the witnesses against him[.]” U.S. Const.Amend. VI. The 

trial court principally relied on Maryland v. Craig, 497 U.S. 836 (1990), 

which reviewed a Maryland statute that permitted a judge to present the 

testimony of a child abuse victim to the jury via one-way closed circuit 

television. That procedure could be invoked only if the judge determined 

that testifying in the courtroom would “result in the child suffering serious 

emotional distress such that the child cannot reasonably communicate.” Id. 

at 841 (quoting statute). In such cases, the statute called for the witness to 

testify in a separate room with only the prosecutor and defense counsel 

present. The judge, jury, and defendant remained in the courtroom, where 

a monitor would relay the testimony, with the defendant remaining in 

communication with defense counsel through electronic means. The child 

witness and the defendant could not see each other. 
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The Craig Court explained that prior precedents interpreted the 

Confrontation Clause to guarantee a face-to-face meeting with witnesses at 

trial, which derived from both the literal reading of the Clause as well as its 

historical roots. Id. at 844. Craig nevertheless stated that this right is not 

absolute, citing Coy v. Iowa, 487 U.S. 1012 (1988). In Coy, the High 

Court held that the Confrontation Clause was violated by the use of a 

protective screen which prevented the child witnesses in an abuse case from 

seeing the defendants as they testified. However, Craig explained that the

holding in Coy turned on the fact the procedure examined applied a 

presumption of trauma, and suggested that an exception would be allowed 

“when necessary to further an important public policy[.]” Craig, supra at 

845 (quoting Coy, supra at 1021). Resolving the question left open by 

Coy, Craig held that the Maryland statute did not violate the defendant’s 

Confrontation Clause rights. Craig determined that face-to-face 

confrontation is not “an indispensable element of the Sixth Amendment's 

guarantee of the right to confront one's accusers.” Id. at 849-50. 

Simultaneously, that requirement could not “easily be dispensed with.” Id. 

at 850. The State could justify its limitation “only where denial of such 

confrontation is necessary to further an important public policy and only 

where the reliability of the testimony is otherwise assured.” Id. 

Applying those principles to the Maryland statute, Craig determined 

that a “State's interest in the physical and psychological well-being of child 
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abuse victims may be sufficiently important to outweigh, at least in some 

cases, a defendant's right to face his or her accusers in court.” Id. at 853. 

Simultaneously, the Court required “an adequate showing of necessity” to 

justify the use of the procedure, which “of necessity must of course be a 

case-specific one[.]” Id. at 855. The mere fact that face-to-face 

confrontation is generically traumatic and unpleasant was not sufficient.3 As 

to the second component, that the reliability of the testimony is otherwise 

assured, the Court determined that the statute protected

all of the other elements of the confrontation right: The child 

witness must be competent to testify and must testify under 

oath; the defendant retains full opportunity for contemporaneous 

cross-examination; and the judge, jury, and defendant are able 

to view (albeit by video monitor) the demeanor (and body) of 

the witness as he or she testifies. Although we are mindful of the 

many subtle effects face-to-face confrontation may have on an 

adversary criminal proceeding, the presence of these other 

elements of confrontation—oath, cross-examination, and 

observation of the witness' demeanor—adequately ensures that 

the testimony is both reliable and subject to rigorous adversarial 

testing in a manner functionally equivalent to that accorded live, 

in-person testimony. 

Id. at 851.

Craig is a Confrontation Clause case and does not address the right of 

self-representation. The trial court extensively relied on Fields v. Murray, 

____________________________________________

3 The Court declined to specify the minimum showing of emotional trauma 

required, holding only that the Maryland statute’s requirement of “serious 

emotional distress such that the child cannot reasonably communicate” 

passed constitutional muster. 
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49 F.3d 1024 (4th Cir. 1995) (en banc), in making its ruling. In Fields, the 

United States Court of Appeals for the Fourth Circuit held that a court could 

properly prevent a pro se defendant from cross-examining the child victims 

where the defendant conceded that the motivation for representing himself

was to cross-examine the victims. 

If a defendant's Confrontation Clause right can be limited in the 

manner provided in Craig, we have little doubt that a 

defendant's self-representation right can be similarly limited. 

While the Confrontation Clause right is guaranteed explicitly in 

the Sixth Amendment, U.S. Const. amend. VI (“In all criminal 

prosecutions, the accused shall enjoy the right . . . to be 

confronted with the witnesses against him.”), the selfrepresentation right is only implicit in that Amendment, Faretta 

v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 2533, 45 

L.Ed.2d 562 (1975). The self-representation right was only firmly 

established in 1975 in Faretta, and then only over the dissent of 

three justices, id. at 836, 95 S.Ct. at 2542 (Burger, C.J., 

dissenting, joined by Blackmun and Rehnquist, JJ.). Moreover, it 

is universally recognized that the self-representation right is not 

absolute. See, e.g., McKaskle v. Wiggins, 465 U.S. 168, 176–

77, 104 S.Ct. 944, 950, 79 L.Ed.2d 122 (1984); Bassette v. 

Thompson, 915 F.2d 932, 941 (4th Cir.1990), cert. denied, 499 

U.S. 982, 111 S.Ct. 1639, 113 L.Ed.2d 734 (1991).

. . . . 

Fields' self-representation right could have been properly 

restricted by preventing him from cross-examining personally 

some of the witnesses against him, which is one “element” of the 

self-representation right, if, first, the purposes of the selfrepresentation right would have been otherwise assured and, 

second, the denial of such personal cross-examination was 

necessary to further an important public policy.

Id. at 1035. 
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Murray then noted that the purpose of self-representation was “to 

allow the defendant ‘to affirm [his] dignity and autonomy’ and to present 

what he believes is his ‘best possible defense.’” Id. at 1035 (quoting 

McKaskle, supra at 176-78). Murray recognized that the defendant’s

dignity and autonomy were obviously limited by preventing personal crossexamination, thus affecting the jury’s perception that he was representing 

himself. However, the court determined that this restriction only “reduced 

slightly” his ability to present a chosen defense. That ability was 

otherwise assured because he could have personally presented 

his defense in every other portion of the trial and could even 

have controlled the cross-examination by specifying the 

questions to be asked. As a result, we are convinced that the 

purposes of the self-representation right were better “otherwise 

assured” here, despite the denial of personal cross-examination, 

than was the purpose of the Confrontation Clause right 

in Craig when the defendant was denied face-to-face 

confrontation with the witnesses.

Id. at 1035–36. Addressing the second aspect of Craig, the State’s 

interest, the court determined that since Craig held that the interest in the 

physical and psychological well-being of child abuse victims could outweigh 

the right to face-to-face confrontation, it followed that the right to selfrepresentation could be limited for the same reason. 

Since Appellant does not claim a deprivation of his Confrontation 

Clause rights, we do not address whether the unquestionable right to 
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confront J.E. meant that Appellant could avail himself of that right when

serving as his own counsel.4 Instead, the question is whether the principles 

announced in Craig, which permitted a procedure that limited the 

Confrontation Clause rights due to the countervailing interests of the victim

when the procedure otherwise preserved the reliability of the crossexamination, should be adopted in this Commonwealth as a permissible 

restriction on the right of self-representation. We conclude that the answer 

is yes.

Preliminarily, we are not persuaded by Appellant’s fundamental 

assertion that the right of self representation is an absolute right that cannot 

be curtailed. Significantly, in McKaskle, supra, the High Court considered 

whether Faretta permitted the participation of standby counsel even without 

the express consent of the defendant. Therein, Wiggins informed the court 

he would proceed pro se and “objected even to the court's insistence that 

____________________________________________

4 Craig has not been overruled by the High Court. However, later cases, 

such as Crawford v. Washington, 541 U.S. 36 (2004), may cast some 

doubt on the analysis employed by Craig insofar as Craig determined that 

the constitutional right of confrontation could be satisfied on something less 

than actual face-to-face confrontation so long as the testimony was 

otherwise reliable. Crawford rejected that proposition as applied to 

testimonial statements. “Where testimonial statements are at issue, the 

only indicium of reliability sufficient to satisfy constitutional demands is the 

one the Constitution actually prescribes: confrontation.” Id. at 68-69. 

However, the issue of face-to-face confrontation was not at issue in 

Crawford, and neither was the related context presented herein. 
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counsel remain available for consultation.” Id. at 172. That request was 

denied and the trial judge appointed two attorneys to act as standby 

counsel. Throughout the trial, Wiggins occasionally consulted with standby 

counsel, and the attorneys sometimes initiated private consultations. The 

Court of Appeals held that Wiggins’ Sixth Amendment rights were “violated 

by the unsolicited participation of overzealous standby counsel[.]” Id. at 

173 (citation omitted).

5

The High Court reversed and held that Faretta’s “logic . . . indicate[s] 

that no absolute bar on standby counsel's unsolicited participation is 

appropriate or was intended.” Id. at 176. The Court explained:

In determining whether a defendant's Faretta rights have been 

respected, the primary focus must be on whether the defendant 

had a fair chance to present his case in his own 

way. Faretta itself dealt with the defendant's affirmative right to 

participate, not with the limits on standby counsel's additional 

involvement. The specific rights to make his voice heard that 

Wiggins was plainly accorded, form the core of a defendant's 

right of self-representation.

Id. at 177 (internal citation omitted). 

McKaskle is not directly on point as that case did not involve any 

limitation upon the pro se defendant’s ability to present his case, but rather 

____________________________________________

5 Wiggins abandoned his claim that the mere presence of standby counsel 

over his objection warranted reversal; the Court examined only whether the 

“Faretta right to present his defense pro se was impaired by the distracting, 

intrusive, and unsolicited participation of counsel throughout the trial.” 

McKaskle v. Wiggins, 465 U.S. 168, 176 (1984).
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limitations on standby counsel’s ability to participate absent the express 

invitation of the defendant. However, McKaskle declined to hold that 

Faretta is susceptible to the all-or-nothing approach advanced by Appellant. 

If the primary focus of the right of self-representation is whether the 

defendant had a fair chance to present his defense, that goal was 

undoubtedly met herein despite Appellant’s inability to personally ask his 

questions. Appellant supplied a list of questions to be asked, and there is 

nothing to indicate that Appellant was prevented from consulting with 

standby counsel in the event he wished to ask additional questions in 

response to J.E.’s answers. This is similar to the fact that the defendant in 

Craig was in electronic communication with his counsel. Therefore, his right 

to cross-examine J.E. was met in a broad sense, and was limited only in the 

narrow sense that he was not allowed to personally ask the questions. 

Appellant cites the following quotations as establishing his preferred 

rule: Commonwealth v. Davido, 868 A.2d 431, 438 n.12 (Pa. 2005) (“In 

fact, requiring counsel to take further action on a defendant's behalf after 

the defendant has requested to proceed pro se would undermine the Sixth 

Amendment right to self representation.”); Commonwealth v. Spotz, 47 

A.3d 63, 83 (Pa. 2012) (“[A] defendant's choice to proceed pro se must be 

honored out of that respect for the individual which is the lifeblood of the law

even when the defendant acts to his or her own detriment.”) (internal 

quotation marks and citation omitted). Both quotations reference situations 
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markedly different from the present case. Distilled to its essence, we view 

the bar against intrusions by standby counsel—which is not an absolute bar 

in any event—as referring to situations in which the intrusions pose a risk of 

undermining the pro se defendant’s chosen defense.6 Herein, Attorney 

Osborne’s participation did not impede Appellant’s defense in any way;

rather, Attorney Osborne acted as a conduit for Appellant’s own questions. 

Therefore, we cannot agree with Appellant’s claim that the court “den[ied] 

Appellant his right to question the victim.” Appellant’s brief at 21. The trial 

court denied Appellant the right to personally question the victim.7 The

right to confront J.E. was fully honored, albeit through standby counsel 

serving as Appellant’s mouthpiece. While we do not downplay the 

significance of this intrusion, we reject Appellant’s position that it is 

categorically impermissible.

Having established that the right to self-representation can be limited 

in this fashion, we briefly address whether that intrusion was warranted in 

____________________________________________

6 For instance, that rationale would apply if standby counsel refused to ask a 

question submitted by Appellant on the basis it was unwise as a matter of 

strategy. 

7 We recognize Appellant’s assertion that the procedure utilized in this case 

can create analytical difficulties in the event standby counsel interferes, 

since such claims would amount to ineffective assistance which generally 

cannot be raised when a defendant represents himself. We do not reach 

that issue, as Appellant’s complaint is that his rights were violated by the 

mere act of standby counsel asking the questions.
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this particular case. We are persuaded by the analysis set forth in Fields

that, if the constitutional right of confrontation can be limited on the basis of 

emotional trauma to the victim, then it follows that the same State interest 

serves to justify the restriction at issue.

8

 Indeed, the fact that Craig

permitted a limitation of actual face-to-face confrontation suggests that the 

lesser intrusion herein, where J.E. was subjected to that face-to-face 

confrontation, is permissible. Additionally, we find that this intrusion did not 

affect the jury’s perception that Appellant was representing himself, any 

more than the intrusions in McKaskle did. With the exception of this one 

witness, Appellant cross-examined all other witnesses, made opening and 

closing statements, and otherwise presented his own defense according to

his wishes. 

____________________________________________

8 Whether the Commonwealth sufficiently established as a matter of degree 

that J.E. would suffer emotional trauma as contemplated by Craig is not 

before us, as Appellant avers that his right to act as counsel precludes any

limitation upon his right to represent himself, regardless of any trauma to 

the witness. “The Appellant had every right to question the victim in this 

case and there was no basis for limiting that right.” Appellant’s brief at 27. 

Simultaneously, we find, consistent with Craig, that the limitation could be 

justified as a matter of law only if the Commonwealth established that this 

minor victim was likely to suffer some emotional trauma by being directly 

cross-examined by her accuser beyond the natural trauma accompanying 

that confrontation. To hold otherwise would apply a presumption of trauma, 

which Craig indicates is impermissible. We find that the extra evidence 

adduced by the Commonwealth respecting Appellant’s violation of the no 

contact order and J.E.’s testimony regarding her fear of Appellant served to 

remove this case from that unconstitutional presumption.
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Finally, Appellant maintains that the trial court necessarily erred 

because no statutory authority existed to permit its ruling. Relatedly, 

Appellant concedes that authority such as Fields exists, but argues that it is

irrelevant since no Pennsylvania decision had cited or adopted that rationale

at the time of the trial court’s decision. The salient issue is whether 

Appellant’s constitutional right to self-representation was violated, not 

whether a statute or prior authority permitted the instant restriction. Since 

we have determined that Appellant’s constitutional rights were not violated, 

the trial court did not err.

II. Limitations Upon Appellant’s Recalling J.E.

We consider Appellant’s second, third, fourth, and fifth claims

together, as they all broadly relate to various rulings regarding Appellant’s 

request to recall J.E. as a witness in his case-in-chief.

9

We review the first three claims for an abuse of discretion. “The trial 

judges of this Commonwealth exercise broad powers while presiding at the

trial of cases assigned to them. These powers include ruling on the 

admission or exclusion of evidence and controlling the scope of examination 

and cross-examination of witnesses.” Commonwealth v. Pittman, 466 

____________________________________________

9 The claims are that the trial court erred in: delaying its ruling on 

Appellant’s motion to recall J.E.; requiring Appellant to state which questions 

he intended to ask J.E. if she were recalled; allowing J.E. to remain in the 

courtroom; and failing to grant a mistrial. 
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A.2d 1370, 1373 (Pa.Super. 1983). “We review a trial court's decision to 

limit re-direct examination for an abuse of discretion.” Commonwealth v. 

Berry, 167 A.3d 100, 109–10 (Pa.Super. 2017). The same principle applies 

to the court’s decision to permit recall of a witness. “[T]he decision whether 

a party may be recalled is, under Pennsylvania law, left to the trial court's 

discretion. The decision is not reversed unless it constitutes a ‘very gross 

abuse of discretion.’” Commonwealth v. Crosby, 297 A.2d 114, 116–17 

(Pa. 1972) (citation omitted). As to sequestration, the abuse of discretion 

standard applies, and an appellant must show prejudice. See 

Commonwealth v. Stevenson, 894 A.2d 759, 767 (Pa.Super. 2006). 

Regarding the mistrial claim, we likewise review the trial court’s 

decision for an abuse of discretion. See Commonwealth v. Stafford, 749 

A.2d 489, 500 (Pa.Super. 2000) (citations omitted). These additional 

principles apply: 

“[A] mistrial [upon motion of one of the parties] is required only 

when an incident is of such a nature that its unavoidable effect is 

to deprive the appellant of a fair and impartial 

trial.” Commonwealth v. Lease, 703 A.2d 506, 508 

(Pa.Super.1997). It is within the trial court's discretion to 

determine whether a defendant was prejudiced by the incident 

that is the basis of a motion for a mistrial. Id. On appeal, our 

standard of review is whether the trial court abused 

that discretion. Stafford, 749 A.2d at 500.

An abuse of discretion is more than an error in 

judgment. Commonwealth v. Griffin, 804 A.2d 1, 7 (Pa.Super.

2002). On appeal, the trial court will not be found to have 

abused its discretion unless the record discloses that the 

judgment exercised by the trial court was manifestly 
J-A26007-17

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unreasonable, or the result of partiality, prejudice, bias, or illwill. Id.

Commonwealth v. Tejeda, 834 A.2d 619, 623 (Pa.Super. 2003) (footnote 

omitted). 

Factually, all four claims relate to Appellant’s desire to recall J.E. 

during his case-in-chief, and we examine those facts in detail.10 Prior to the 

Commonwealth presenting its case, the trial court granted Appellant’s

request for a sequestration order. N.T., 7/8/13, at 118-19 (“I'm going to

grant the motion. Any witnesses must be sequestered until after they 

testify. And please instruct the witnesses that they're not to discuss their 

testimony with any witness who is waiting to testify.”). Following the 

conclusion of his cross-examination of J.E., Appellant sought to reserve the 

right to recall her. During a break in the proceedings, the judge addressed 

that request and indicated a belief that the sequestration order remained in 

effect.

MR. TIGHE: Your Honor, you said you will rule later on about 

keeping [J.E.] available?

THE COURT: Yeah. We can discuss it. When we get to that point, 

we'll discuss if you want to call her in your case in chief, we'll 

discuss it out of the presence of the jury. I don't think she's 

going anywhere. I think she's available today and tomorrow, 

right?

____________________________________________

10 The parties frame the issue as one of recalling a witness, as opposed to 

calling a witness as part of the Appellant’s case-in-chief.
J-A26007-17

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ATTY. TALERICO: Actually, Your Honor, I would object to her not 

being in the courtroom. She has specifically requested the 

opportunity to be here. I think she has a right to be here. He 

had the opportunity to cross.

THE COURT: Okay.

ATTY. TALERICO: I'm not comfortable waiting and then from the 

jury's standpoint seeing her not physically here to care about 

what's happening.

THE COURT: Okay. So do you understand the point that he's 

making? The issue of whether you may recall her as a witness in 

your case in chief has not yet been decided. And we will cross 

that bridge when we come to it. But there is a sequestration 

order in effect and what Attorney Talerico is asking is that she be 

permitted to sit in now because she is the alleged victim in the 

case. And understood under Pennsylvania Constitution, victims 

enjoy many rights. I'm going to grant that request.

MR. TIGHE: All right. Your Honor, I would just like to state on 

the record, too, part of your ruling on me not being able to cross 

examine the [victim] and how it brought up how she couldn't 

stand being in the room with me, how it caused her to have 

flashbacks, and trauma, and now they want her to come in the 

courtroom, like, this is having your cake and eating it, too. I'm 

just putting it on the record.

THE COURT: I know. I understand.

MR. TIGHE: Your Honor, we'll probably be revisiting this again in 

the near future.

THE COURT: Okay. I appreciate that.

MR. TIGHE: I object to her being in the courtroom. I still want to 

cross examine.

THE COURT: Whether you will be allowed to call her in your case 

in chief is completely not clear. I haven't ruled on it yet. I have 

no idea what your rational[e]--I'm willing to listen to your 

argument. However, since it is not clear to me that she will be 

allowed to be recalled in your case in chief because she is the 
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victim in this case and she does have rights under 

Pennsylvania's Constitution. I'm going to allow her to sit in for

testimony until we get to that point, okay, if she chooses to. She 

may choose not to, I don't know what she's going to do. I have 

to balance. Remember it's a balancing test. It's balancing her 

rights against yours.

MR. TIGHE: The prosecution just said, she said she wanted to 

come in and listen. The prosecution just said it.

THE COURT: Well, that's what they're saying, but I don't know. I 

don't know what she wants to do. I'm not going to take what 

they say that she says. Do you understand? Okay. We're in 

recess for lunch then. Thank you. See you at 1:00.

N.T., 7/9/13, at 85-88. Later that day, Appellant informed the court he still 

intended to recall J.E., to which the court replied, “Potentially. We have to 

address that.” Id. at 278. J.E. was permitted to remain in the courtroom. 

The next day, the trial court asked Appellant why he desired to recall 

J.E. He explained that he wished to cross-examine her based on phone 

records that were admitted after J.E. testified, and which he stated would 

impeach her testimony. The Commonwealth opposed the request, on the 

grounds that the phone records were in evidence and Appellant could argue

in closing that the actual records contradicted J.E.’s testimony. During this 

discussion, the trial court asked Appellant to list the questions he wished to 

ask. 

THE COURT: Tell me the question, now, on the record.

MR. TIGHE: I need a copy of the transcript. I can't remember all 

of it.
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THE COURT: No. You're saying that you want to recall her for the 

purpose of asking her a few questions. Tell me what the 

questions are, now, that you want to ask.

MR. TIGHE: The phone call she denied taking that she called me 

that I called her. I'm trying to say that -- I don't want -- every 

time -

THE COURT: Okay. Here's what we're going to do, over the 

lunch--in recess, I'm going to ask the court reporter to prepare a 

portion of [J.E.]'s testimony that relates to cross examination on 

this topic. Once we have that record, we will review it. At that 

time, I will be able to mae [sic] a decision as to whether or not 

she'll be able to be recalled. 

N.T., 7/10/13 at 117. Later, the trial court then stated in open court that it

had read J.E.’s direct testimony. 

THE COURT: The record should reflect, that during the recess I 

requested the court reporter to transcribe the portion of the 

transcript that relates to cross examination and redirect of [J.E.]. 

I have determined what questions have been asked on crossexamination. I just had the opportunity to read to the parties, in 

open [c]ourt, the portion of the transcript as it relates to those

issues.

Now, sir, are there questions that you want to have asked of 

[J.E.] that were not asked during that -- during the time when 

she was first on the witness stand?

MR. TIGHE: Yes.

THE COURT: Tell me the question.

MR. TIGHE: The questions I want to ask is, was she presented 

with the evidence that shows when she said there was no phone 

calls between --

THE COURT: Okay. Wait. Wait. Wait. She has to leave the 

courtroom.

(Victim exited courtroom.)
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MR. TIGHE: Your Honor, was she here the whole time you were 

reading that?

THE COURT: I have no idea. I didn't see her. I don't know what 

time she came in. All right. So your question is? What's the 

question that you want to have asked -- that you want to ask?

MR. TIGHE: First of all, Your Honor, I would like to have it on the 

record you read off the transcript while the victim of the crime 

was here. I asked to have her sequestered. And I would ask for 

a mistrial.

THE COURT: I did not -- first of all, does anybody know -- go 

find out when she came in the courtroom.

MR. TIGHE: They were in here when I came in.

Id. at 226-28. The court denied his request for a mistrial, and permitted 

Appellant to recall J.E. She was shown the records, which indicated that she 

made phone calls during the time period between 10:06 p.m. and 10:10 

p.m. to Appellant on the night of the rape. Id. at 237. She did not dispute 

the records but stated, “I just don’t know why or how.” Id. at 238. The 

records also established that a call was made from her phone at 10:22 p.m. 

that evening. J.E. agreed that the phone call occurred around the time she 

was assaulted, but denied making it. 

With respect to his legal complaints, Appellant links all of these

circumstances and rulings together. He posits that the trial court violated its 

own sequestration order by permitting the victim to remain in the courtroom

following her testimony, which prejudiced all of his later attempts to 

impeach her. Additionally, he states that the delay in the recall ruling 
J-A26007-17

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hampered his case, because he did not know if he would be able to call J.E.

for further cross-examination. Finally, he argues that a mistrial was 

warranted because J.E. heard her prior testimony and received a preview of 

the questions he sought to ask.

We disagree that the trial court abused its discretion in delaying its 

ruling on Appellant’s motion; in requiring Appellant to explain why he wished 

to recall the witness; and in allowing the victim to remain in the courtroom 

throughout trial. With respect to the first two points, the trial court is 

permitted great latitude. As extensively discussed in the first issue, the trial 

court was clearly concerned that Appellant’s attempt to recall J.E. may have 

been procedural gamesmanship designed to evade its ruling regarding 

personal cross-examination of J.E. Indeed, Pa.R.E. 611, Mode and Order of 

examining Witnesses and Presenting Evidence, states in pertinent part:

(a) Control by the Court; Purposes. The court should 

exercise reasonable control over the mode and order of 

examining witnesses and presenting evidence so as to:

(1) make those procedures effective for determining the truth;

(2) avoid wasting time; and

(3) protect witnesses from harassment or undue 

embarrassment.

Pa.R.E. 611 (emphasis added). We find that requiring Appellant to explain 

the purpose of recalling J.E. did not constitute an abuse of discretion under 

these facts. 
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Furthermore, Appellant’s decision to represent himself was a factor in 

these rulings. The trial court asked why Appellant did not simply impeach 

J.E. using the phone records during cross-examination, to which Appellant 

responded that the records were not authenticated at the time of her 

testimony. The Commonwealth noted in reply that it did not object to the 

admission of those records, which Appellant accomplished on crossexamination of a Commonwealth witness. The trial court responded, “If I 

had known that that's what you were waiting for, we would've let you do 

that out of order, just like the other witness. But to have her come back on 

the stand, that's not a light decision.” N.T., 7/10/13, at 108. Thus, given 

the fact that the Commonwealth did not force Appellant to move the 

evidence into the record during his case-in-chief, it appears that any 

authentication dispute could have been resolved had Appellant simply 

conferred with the Commonwealth at the appropriate time. While Appellant 

correctly recognized an authentication objection to the records had he 

attempted to immediately impeach J.E., his ignorance of common 

professional courtesies, such as the stipulation to authenticity of documents 

whose provenance is not in dispute, largely explains the trial court’s decision 

to defer its ruling. That failure strikes us as one of the pitfalls of proceeding 

pro se. Accordingly, we find no abuse of discretion. 

Turning to the decision to permit J.E. to remain in the courtroom, we 

note that the court’s sequestration order specifically stated that it applied 
J-A26007-17

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only until the witnesses testified. Once J.E. testified, the sequestration order 

had no effect.11

Finally, we address the refusal to grant a mistrial based on a violation 

of the sequestration order. We find no error, as we have determined that 

the sequestration request was limited to J.E.’s direct testimony. Assuming 

arguendo that Appellant’s claim is not defeated by that point, we 

alternatively find no abuse of discretion. Appellant highlights that one 

remedy for a violation of a sequestration order is a mistrial. See Comment,

Pa.R.E. 615 (“The trial court has discretion in choosing a remedy for 

violation of a sequestration order. Remedies include ordering a mistrial, 

forbidding the testimony of the offending witness, or an instruction to the 

jury.”) (citations omitted). The fact that a trial judge may declare a mistrial 

____________________________________________

11 The trial court granted the Commonwealth’s request to permit the victim 

to stay in the courtroom on the basis that victims have a right to be present 

at trial under the Pennsylvania Constitution. Our constitution does not 

appear to contain any such right, and the Crime Victims Act, 18 P.S. §§ 

11.101-11.5102, likewise does not refer to any right to be present in the 

courtroom for trial. Many states, however, provide that right in their 

constitutions or by statute. See The Crime Victim’s Right to Attend the 

Trial: The Reascendant National Consensus, 9 Lewis & Clark L. Rev. 481 

(2005) (Beloof, Douglas, and Cassel, Paul). 

We agree that the trial court’s broad discretionary powers permit 

consideration of J.E.’s interest in observing the proceedings following her 

testimony, including the Commonwealth’s assertion that the jury may look 

unfavorably upon the victim’s absence. Moreover, we are unaware of any 

authority that gives a defendant the right to exclude a victim from the 

courtroom. 
J-A26007-17

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as a permissible sanction for violation of a sequestration order does not 

mean that the trial court must grant that remedy. A mistrial is required 

“only when an incident is of such a nature that its unavoidable effect is to 

deprive the appellant of a fair and impartial trial.” Tejeda, supra at 623. 

Appellant’s only argument to that effect is that J.E. could tailor her 

testimony in response to his questions. However, as the Commonwealth 

noted at trial, the records spoke for themselves and Appellant fails to explain 

why there was a danger that J.E. could “explain away” these discrepancies. 

III. Challenges to Appellant’s Right to Counsel 

The reordered sixth and seventh claims concern Appellant’s decision to 

proceed pro se, which Appellant avers was not a free choice. It is wellsettled that while an indigent defendant is entitled to counsel, “the right to 

appointed counsel does not include the right to counsel of the defendant's 

choice.” Commonwealth v. Albrecht, 720 A.2d 693, 709 (Pa. 1998) 

(citation omitted). 

We first review the circumstances concerning Appellant’s courtappointed counsel. On June 5, 2012, the instant charges were held for trial 

at the Court of Common Pleas. The docket reflects that Public Defender 

Sandra Stepkovitch, Esquire, represented Appellant, and filed pre-trial 

motions on his behalf. Pretrial conferences were held on July 20, 2012, and 

August 8, 2012, before the Honorable Michael J. Barrasse, who was 

originally assigned to preside over this matter. The docket also indicates 
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that on February 15, 2013, Judge Barrasse entered an order appointing 

Christopher Osborne, Esquire, as standby counsel. Attorney Stepkovitch did 

not file a motion seeking withdrawal.

On February 19, 2013, the parties appeared for jury selection, with 

the Honorable Margaret Bisignani-Moyle presiding.12 At this hearing, the 

Commonwealth informed Judge Bisignani-Moyle that Appellant had informed 

Judge Barrasse that he did not want his lawyer to represent him and

indicated a desire to proceed pro se, resulting in Judge Barrasse appointing 

Attorney Osborne as standby counsel. At that juncture, Judge BisignaniMoyle asked for a summary of what had occurred. Attorney Osborne stated:

I went out to Mr. Tighe at the prison on February the 12th and 

had a meeting with him. Went over my appointment of standby 

counsel. Mr. Tighe did not approve of my appointment of 

standby counsel because I actually served in this role with Mr. 

Tighe once before back in, I think, 2002 or 2003. However, I did 

express to Mr. Tighe that the Court is not going to let him shop 

the bar for an attorney of his choosing and that I would probably 

remain as standby counsel.

The next day on February 13, we appeared in front of Judge 

Barrasse. Judge Barrasse did explain to Mr. Tighe that, you 

know, he doesn't get to shop around. He either hires a private 

attorney, accepts me, or represents himself.

At that time he chose to accept [me] as his court-appointed 

counsel. I then met with Mr. Tighe on the 13th and the 14th of 

last week. Friday I couldn't get to see him; Saturday I couldn't 

get to [see him] because of court personnel. I was able to meet 

____________________________________________

12 The trial court opinion states that the case was transferred to Judge 

Bisignani-Moyle’s courtroom, but does not indicate the reason. 
J-A26007-17

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with him yesterday. He indicated to me that he had the colloquy 

filled out. He was ready to proceed pro se. Judge, after he does 

go through the colloquy he has a number of -- he's made me 

aware of a number of pretrial motions he'd like to make.

I told him I didn't have to make them on his behalf. I would be 

more than happy to assist him. But once he is accepted as pro 

se, he can make his own motions.

N.T., 2/19/13, at 4-5. Attorney Osborne stated that he was prepared to 

proceed as Appellant’s counsel. At that juncture, the trial court heard 

testimony from Appellant, who agreed with the summary of what occurred 

before Judge Barrasse. However, Appellant disputed that Attorney Osborne 

was prepared for trial and expressed a desire to proceed pro se. The judge 

reminded Appellant that trial would not commence until the next week, 

giving additional time for him and Attorney Osborne to discuss the case. 

The following conversation then occurred:

THE COURT: So even with the additional time and the expertise 

that Attorney Osborne brings to the table, you still don't want to 

have Attorney Osborne represent you?

MR. TIGHE: No.

THE COURT: Do you want to have the court appoint Attorney 

Osborne as standby counsel?

MR. TIGHE: If you want to.

THE COURT: Okay. He could stay and assist you in strategy, voir 

dire, things like that, but you would be doing the speaking. Do 

you understand?

MR. TIGHE: Yes.

THE COURT: Is that what you want?
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MR. TIGHE: Yes.

THE COURT: I'm not familiar with your case from 2003, where 

apparently you either represented yourself or you represented 

yourself with the assistance of standby counsel. Which was it? 

Do you remember?

MR. TIGHE: It was, more or less, by myself. We didn't really get 

along at the time.

THE COURT: Okay. But have those arguments, or whatever 

disagreements there were, have they subsided?

MR. TIGHE: Yes.

Id. at 12-13. The court then conducted a lengthy colloquy to determine if 

Appellant was knowingly and voluntarily electing to proceed pro se. Thus, as 

of February 13, 2013, Appellant was acting as his own attorney.

Appellant now claims that he was “denied his right to counsel and he 

was appointed counsel with whom he had irreconcilable differences.” 

Appellant’s brief at 31-32. The source of that claim, however, does not 

relate to the aforementioned proceeding before Judge Bisignani-Moyle. 

Instead, he claims that he informed Judge Barasse that he “previously tried 

to sue Attorney Osborne for prior representation by him.” Appellant’s brief 

at 35. Appellant apparently equates that statement to a motion seeking 

appointment of new counsel on the basis of irreconcilable differences. 

However, Appellant did not inform Judge Bisignani-Moyle of this complaint, 

and he recognizes this fact as he claims that the trial court “seemed to be 

aware of Appellant’s claimed conflict with Attorney Osborne since it 
J-A26007-17

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referenced what Appellant stated on February 13.” Id. (emphasis added). 

Aside from sheer speculation that Judge Bisignani-Moyle was privy to what 

was discussed at the February 13 hearing—an unlikely circumstance given 

the fact that the judge asked the parties to tell her what happened at that 

proceeding—the only other citation to the record offered by Appellant in

reference to this conflict comes from a statement he made immediately prior 

to commencement of trial. 

Q. I would, again, urge you to consider permitting counsel to 

represent you and for you to assist counsel and provide a full 

defense on your behalf. Do you understand that I have 

suggested that you consider permitting counsel to represent 

you?

A. Your Honor, just for the record, I stated many of times, I'd 

like to have counsel represent me, but me and Mr. Osborne don't 

get along. I don't trust him with my defense.

Q. You haven't stated that.

A. Yes, I did; a couple times.

Q. No, you haven't. You've asked for different standby counsel.

A. Yes.

N.T., 7/8/13, at 47.

Having set forth the factual background, we turn to Appellant’s legal 

arguments. He claims that the “irreconcilable differences” between him and 

Attorney Osborne effectively forced Appellant to represent himself. 

Appellant’s argument largely relies upon Commonwealth v. Smith, 626 

A.2d 614, 619 (Pa.Super. 1993).
J-A26007-17

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Smith is readily distinguishable. Therein, counsel filed a motion to 

withdraw, citing irreconcilable differences with her client. Smith also 

“vehemently sought the withdrawal of [counsel].” Id. at 616. The trial 

court denied the motions and instead entered an order stating Smith would 

either continue with counsel or represent himself. Appellant elected to 

represent himself, with counsel acting as standby counsel. We reversed, 

finding that the trial court “effectively forc[ed] [Smith] to proceed pro se,” 

thus denying him the right to counsel. Id. at 620. 

Smith is thus inapposite, as Appellant was not “forced” to proceed pro 

se through an improper denial of a motion to appoint alternative counsel. 

Unlike Smith, Appellant herein informed the trial court that he wished to 

proceed pro se. Indeed, in Smith, our holding did not turn on whether the 

trial court abused its discretion in ruling on the motion for substitute 

counsel; instead, we found that the waiver of counsel was not knowing or 

voluntary: 

Instantly, we find that appellant did not tender a knowing and 

voluntary waiver of his right to counsel. No colloquy was 

conducted to inform appellant, inter alia, of the permissible 

range of punishments, possible defenses, and the danger of 

permanently losing his right to assert defenses and other rights 

if they are not raised at trial. Rather he was merely given a 

choice between proceeding by himself or with counsel in whom 

he had no confidence and who had herself filed a petition to 

withdraw. Accordingly, we find that by effectively forcing 

appellant to proceed pro se, the trial court denied appellant his 

constitutionally guaranteed right to counsel.
J-A26007-17

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Id. at 619–20 (footnotes omitted). That error in Smith required a new trial, 

notwithstanding whether there was an actual conflict entitling the defendant 

to a different attorney.

Commonwealth v. Neal, 563 A.2d 1236 (Pa.Super. 1989), cited and 

discussed in Smith as supporting its holding, demonstrates that there is no 

issue with denying a motion to appoint substitute counsel on the basis of a 

spurious conflict. Therein, following jury selection, but before trial, the trial 

judge received a letter from Neal stating that he wanted his public defender 

dismissed and new counsel appointed. The trial court thereafter discussed 

the matter on the record, with Neal stating, “I don’t have the confidence that 

[appointed counsel] is going to represent me correctly.” Id. at 1239

(quoting transcript). The court responded, “I'm going to honor your request, 

I'm going to relieve [counsel] of her representation in this case. It makes no 

sense to have her represent you if you don't have confidence in her, but I'm 

following up with what I just told you, I'm not going to appoint other counsel 

to represent you.” Id. at 1240. Neal objected, stating he had no ability or 

desire to defend himself. The trial court nevertheless ordered him to 

proceed pro se.

On appeal, we reversed. As it pertains to the issue herein, we stated 

that the error was excusing counsel instead of informing Neal that he was 

not entitled to a different attorney. 
J-A26007-17

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It is not difficult to empathize with the trial court's frustration 

when appellant, after a jury already had been selected, sought 

the dismissal of his lawyer and the appointment of new counsel. 

Appellant was unable to demonstrate irreconcilable differences 

between himself and his lawyer, and his request to replace 

counsel may well have been calculated to delay the trial. Under 

the circumstances, the trial court would not have abused 

its discretion by denying appellant's request to dismiss 

his public defender. The trial court committed error, however, 

when it excused counsel from representing appellant and forced 

appellant to proceed pro se. That appellant did not want to 

proceed pro se is clear. He told the court that he did not 

know how to defend himself and had no knowledge regarding 

“motions, how to do anything along these lines.” In the face of 

this, it is clear that appellant did not voluntarily waive the right 

to be represented by counsel. Instead, he was literally forced by 

the court to represent himself without being apprised of the 

consequences and pitfalls thereof. This, the courts have refused 

to countenance.

Id. at 1242–43 (emphases added). 

Thus, Neal is likewise distinguishable, as these circumstances do not

concern the removal of counsel but rather a claim that the trial court 

somehow erred by failing to appoint new counsel in the absence of an 

irreconcilable conflict. Instantly, Appellant asked to proceed pro se and 

waived his right to counsel, as opposed to seeking removal of counsel on the 

basis of a conflict. 

Perhaps recognizing that the cases are distinguishable on this basis, 

Appellant argues in the alternative that the waiver of his right to counsel was 

invalid due to the trial court’s failure to inquire regarding this purported 

conflict. We disagree. Appellant neglected to alert the trial court to any 

perceived conflict between him and Attorney Osborne, and he fails to cite 
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any case that holds a valid waiver of the right to counsel requires the trial 

court to sua sponte ask if any type of conflict motivated the request. “To 

make a knowing and intelligent waiver, the defendant must be aware of both 

the right and of the risks of forfeiting the right to counsel.”

Commonwealth v. Doyen, 848 A.2d 1007, 1012 (Pa.Super. 2004). 

Furthermore, even if legally viable, this claim is meritless since Appellant 

was asked if there was any remaining disagreement between him and 

Attorney Osborne. He said that there was not. Since Appellant denied any 

conflict with Attorney Osborne when given the opportunity to inform of any 

such issue, we therefore find that Appellant failed to establish that his right 

to counsel was violated.

IV. Expert witness claim 

Appellant’s eighth claim is that the trial court abused its discretion in 

denying his request for an independent expert “to conduct independent 

testing, DNA testing and/or to assist him in his defense[.]” Appellant’s brief 

at 44. We apply the following principles to this type of claim. 

It is well-established that indigent defendants have a right to 

access the same resources as non-indigent defendants in 

criminal proceedings. The state has an affirmative duty to 

furnish indigent defendants the same protections accorded those 

financially able to obtain them. Procedural due process 

guarantees that a defendant has the right to present competent 

evidence in his defense, and the state must ensure that an 

indigent defendant has fair opportunity to present his defense.
J-A26007-17

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Commonwealth v. Machicote, 172 A.3d 595, 604 (Pa.Super. 2017)

(quoting Commonwealth v. Konias, 136 A.3d 1014, 1019 (Pa.Super. 

2016)). As we stated in Commonwealth v. Curnutte, 871 A.2d 839

(Pa.Super. 2005):

It is true that the Commonwealth is not obligated to pay for the 

services of an expert simply because a defendant requests 

one. See Commonwealth v. Carter, 537 Pa. 233, 643 A.2d 61, 

73 (1994); [Commonwealth v. Gelormo, 475 A.2d 765 

(Pa.Super. 1984)]. There must be some showing as to the 

content and relevancy of the proposed expert testimony before 

such a request will be granted. See Commonwealth v. 

Bell, 706 A.2d 855, 862 (Pa.Super.1998).

Id. at 842. Finally, “[t]he provision of public funds to hire experts to assist 

in the defense against criminal charges is a decision vested in the sound 

discretion of the court and a denial thereof will not be reversed absent an 

abuse of that discretion.” Commonwealth v. Cannon, 954 A.2d 1222, 

1226 (Pa.Super. 2008) (quoting Albrecht, supra at 707).

We first set forth the additional facts pertinent to this issue. Following 

Appellant’s decision to proceed pro se, he requested an independent DNA 

test as the Commonwealth intended to introduce DNA evidence regarding 

saliva recovered from J.E.’s neck and breast. Appellant’s motion for 

“independent testing” was, in truth, a request for an expert witness to assist 

him in cross-examination. We begin by quoting the initial discussion of this 

topic, which occurred on February 21, 2013: 
J-A26007-17

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THE COURT: Motion for writ of habeas corpus for an independent 

DNA test. Sir, this is your opportunity to persuade to me why 

you should be granted independent testing of the DNA.

THE DEFENDANT: Your Honor, it's my 14th amendment right to 

due process to call a witness on my behalf. They're calling two 

DNA specialist[s]. I'm not a DNA specialist. I should have 

someone in my, on my team, that I can have testify as to the 

DNA sample, too, and the sampler. Like I'm not a DNA specialist. 

Like they can be talking Greek and I wouldn't understand 

nothing. They have two. They're calling two DNA specialists. 

They're saying that the only DNA, a lot of it came back negative. 

The only positive DNA was a neck swab and a breast swab. Now 

I can't argue because I'm not a DNA specialist, that if there was 

saliva on the neck and she removed the clothe[s] or put her 

clothes on, they transferred from the neck to the breast like –

THE COURT: But right there, you're showing that you have the 

ability to ask questions effectively on cross –

THE DEFENDANT: Yeah, but I can't argue the technicality of it, 

Your Honor, like a DNA specialist could. And how do I not know

that their DNA was swabbed. Like I don't know how to break --

to go about questioning a DNA specialist. Like they start talking 

FD-256; like I'm lost. So I feel that I should have a DNA analyst 

on my team, too[.]

N.T., 2/21/13, at 28-29. The next day, the Commonwealth consented to 

Appellant’s motion to postpone the case, due to the fact that a brown pubic 

hair was recovered during a rape kit examination but was not tested. 

Appellant agreed to have pubic hair samples taken for DNA purposes. 

Appellant asked that everything be retested: “I would like to have it all 

redone, neck swab and the breast swab.” N.T., 2/22/13, at 4. The trial 

court denied that request, stating that the Pennsylvania State Police would 
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test the pubic hair first, and informed Appellant that he could renew his 

motion for independent testing depending on the results. 

On July 3, 2013, the parties appeared for additional pre-trial motions, 

at which Appellant sought to suppress the DNA evidence. The trial court and 

Commonwealth summarized what was determined by the additional testing:

THE COURT: Okay, so in this case what they're saying is that 

when they tested the hair, they discovered that there was DNA 

on or in the hair itself from two or more people.

MR. TALERICO: Correct.

THE COURT: Am I reading that correct?

MR. TALERICO: Correct. And the two people that were identified 

or were able to be identified were Mr. Tigue13 and the victim, 

[J.E.].

. . . . 

THE COURT: Okay, basically they're saying that based on 

statistical probability, the hair consists of DNA from two --

MR. TALERICO: Two sources.

THE COURT: And based on their known sources, I just want to 

make sure I understand what you're saying.

MR. TALERICO: Sure.

THE COURT: They're saying based on the known sources that 

they have, because they have a swab from Mr. Tigue and 

presumably a swab from [J.E.]?

____________________________________________

13 Some transcripts refer to Appellant as Patrick Tigue, while the certified 

documents use the Tighe spelling. 
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MR. TALERICO: From [J.E.].

THE COURT: They're saying that the DNA on this hair from the 

two sources is consistent with the DNA of Mr. Tigue and the DNA 

of [J.E.].

MR. TALERICO: Perfect.

N.T., 7/3/13, at 30-34. Appellant believed that the further testing was for 

purposes of comparing his pubic hair to the hair recovered from the rape kit, 

and complained that proper DNA testing could definitively match whether 

the pubic hair taken from him was the same as the hair recovered from the 

kit. “If they were going to take a hair, there wouldn't be a conclusion of two 

DNAs, it would be one DNA. A hair can only have one possible DNA.” The 

trial court accurately identified Appellant’s misapprehension, informing him 

that “[W]hat you’re missing the point, sir, is that apparently there’s bodily 

fluid or skin cells on the hair from a person other than the person who 

belongs to the hair.” Id. at 36. The trial court denied the suppression 

motion and Appellant did not renew his motion for independent testing.

We now apply the foregoing principles to this claim. We first note that 

Appellant made two separate requests. The first was the motion for 

independent testing of the already-completed DNA testing. The second was 

a motion for an expert to assist with his cross-examination. As to the 

former claim, we find that it is waived since he did not renew his motion for 
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independent testing following the further pubic hair analysis.14 Next, we find 

that Appellant has failed to establish that he is entitled to the appointment of 

an expert to assist him with understanding and cross-examining the 

Commonwealth’s DNA expert. We find that his inability to do so is directly 

attributable to his lack of expertise, which is a risk associated with the 

decision to proceed pro se. In fact, it is commonly stated that attorneys are 

not ineffective for failing to obtain independent experts when effective crossexamination can elicit helpful testimony. See Commonwealth v. 

Showers, 782 A.2d 1010, 1021 (Pa.Super. 2001). Hence, this claim fails. 

V. Impeachment claim 

Appellant’s reordered ninth claim concerns the trial court’s ruling on a 

Commonwealth objection made after Appellant attempted to impeach the 

victim’s sister. On cross-examination, Appellant asked M.L., the victim’s 

sister, if she was impaired when J.E. reported the rape. Appellant then 

stated, “Did we have a chance to meet each other earlier in that day on the 

29th?” N.T., 7/9/13, at 120. The Commonwealth objected and at sidebar 

Appellant explained that he was with M.L. and the victim on the day in 

____________________________________________

14 Even if preserved, we would deem the claim meritless. Appellant’s desire 

to have the evidence retested is impossible to separate from his argument 

that he was entitled to an expert to assist with his cross-examination. Thus, 

Appellant failed to make the required “showing as to the content and 

relevancy of the proposed expert testimony[.]” Commonwealth v. 

Bell, 706 A.2d 855, 862 (Pa.Super. 1998).
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question, and M.L. bought and consumed drugs in his presence, thereby 

establishing that she was possibly impaired later that evening. See 

Commonwealth v. Small, 980 A.2d 549, 570 (Pa. 2009) (jury may not 

consider drug use by witnesses for impeachment purposes, but may if the 

intoxication pertains to time of occurrence about which witness testified). 

The Commonwealth responded that its pre-trial motion to introduce evidence 

that drug use was part of the relationship between Appellant and the victim 

was denied. The trial court agreed, stating “[w]hat’s good for the goose is 

good for the gander.” N.T., 7/9/13, at 126. Following more discussion, the 

trial court remarked, “[Y]ou’re going to withdraw your question for now, is 

that what you’re telling me?” Id. at 126-27. Appellant agreed, and when 

the sidebar concluded Appellant stated, “I withdraw that question, Your 

Honor.” Id. at 127.

Appellant now argues that his question was directly addressed to 

M.L.’s ability to perceive and recall the actual events she testified to, as 

opposed to introducing general evidence concerning drug use and its role in 

his relationship to the victim and her sister. We agree with the trial court 

that Appellant waived any objection to the trial court’s ruling by withdrawing 

the question. While Appellant claims he was forced to do so by the trial 

court stating “[Y]ou’re going to withdraw your question,” we agree that 

Appellant could have preserved his objection by disagreeing. Moreover, 

Appellant then repeated in open court that he would withdraw the question. 
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See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and 

cannot be raised for the first time on appeal.”).

VI. Sentencing Claims

Appellant’s remaining arguments all pertain to sentencing. He argues 

that the trial court abused its discretion by failing to appoint an expert for 

his sexually violent predator (“SVP”) hearing. Second, he avers that the 

crimes of sexual assault and rape merge. Third, he asserts that the trial 

court vindictively increased his sentence when resentencing him. We vacate 

the SVP designation, vacate judgment of sentence, and remand for 

resentencing.

Following briefing in this matter, we issued Commonwealth v. 

Butler, 173 A.3d 1212 (Pa.Super. 2017). Butler applied Commonwealth 

v. Muniz, 164 A.3d 1189 (Pa. 2017), which held that the sexual offender 

requirements under the Sexual Offender Registration and Notification Act, 

including its SVP framework, constitute punishment. Butler determined 

that, as a result of Muniz, the SVP procedure is subject to the constitutional

requirement that the facts constituting that punishment must be found by a 

fact-finder beyond a reasonable doubt. Thus, 42 Pa.C.S. § 9799.24(e)(3), 

which requires the trial court to find the relevant facts by clear and 

convincing evidence, was deemed unconstitutional. Id. at 1218. As Butler 

explained: 
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As the sole statutory mechanism for SVP designation is 

constitutionally flawed, there is no longer a legitimate path 

forward for undertaking adjudications pursuant to section 

9799.24. As such, trial courts may no longer designate convicted 

defendants as SVPs, nor may they hold SVP hearings, until our 

General Assembly enacts a constitutional designation 

mechanism. Instead, trial courts must notify a defendant that he 

or she is required to register for 15 years if he or she is 

convicted of a Tier I sexual offense, 25 years if he or she is 

convicted of a Tier II sexual offense, or life if he or she is 

convicted of a Tier III sexual offense. 

Id. at 1218 (citation and footnote omitted). 

Since Butler finds that this issue pertains to the legality of the 

sentence, which we may reach sua sponte, we find that Appellant’s sentence 

illegally included an SVP designation. In Butler, the SVP designation 

resulted in an increase of his registration requirements. “In this case, if 

[Butler] were not designated an SVP, he would be required to register for 

only 15 years. In other words, the SVP designation increased [his]

registration exposure from 15 years to life.” Id. at 1215-16 (citations and 

footnotes omitted). Since Appellant was convicted of a Tier III offense, he is 

still required to register for life. See 42 Pa.C.S. § 9799.14 (classifying rape 

as a Tier III offense). Hence, we vacate Appellant’s SVP designation. 

Next, we address the assertion that his sentences for rape and 

indecent assault merge. The trial court agreed and asks this Court to vacate 

the sentence, while the Commonwealth states that the sentences “probably” 

merge. Commonwealth’s brief at 59. For the following reasons, we disagree 

with Appellant and the trial court with respect to the crimes of rape and 
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indecent assault. However, we find that the sentences for IDSI and indecent 

assault merge. 

We first set forth the statutory text for the crimes identified by 

Appellant. The crime of rape reads: 

(a) Offense defined.--A person commits a felony of the first 

degree when the person engages in sexual intercourse with a 

complainant:

(1) By forcible compulsion.

. . . . 

18 Pa.C.S. § 3121(a)(1). As to indecent assault, Appellant was charged with 

violating the following subsection:

(a) Offense defined.--A person is guilty of indecent assault if 

the person has indecent contact with the complainant, causes 

the complainant to have indecent contact with the person or 

intentionally causes the complainant to come into contact with 

seminal fluid, urine or feces for the purpose of arousing sexual 

desire in the person or the complainant and:

. . . . 

(8) the complainant is less than 16 years of age and the person 

is four or more years older than the complainant and the 

complainant and the person are not married to each other.

18 Pa.C.S. § 3126. Additionally, “indecent contact” is defined to include

“[a]ny touching of the sexual or other intimate parts of the person for the 

purpose of arousing or gratifying sexual desire, in either person.” 18 Pa.C.S.

§ 3101. 
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“A claim that crimes should have merged for sentencing purposes 

raises a challenge to the legality of the sentence. Therefore, our standard of 

review is de novo and our scope of review is plenary.” Commonwealth v. 

Nero, 58 A.3d 802, 806 (Pa.Super. 2012) (quoting Commonwealth v. 

Quintua, 56 A.3d 399, 400 (Pa.Super. 2012)). Whether sentences merge is 

governed by statute:

No crimes shall merge for sentencing purposes unless the crimes 

arise from a single criminal act and all of the statutory elements 

of one offense are included in the statutory elements of the 

other offense. Where crimes merge for sentencing purposes, the 

court may sentence the defendant only on the higher graded 

offense.

42 Pa.C.S. § 9765. 

The trial court opined that these crimes merge due to the fact that 

“the act upon which indecent assault is predicated has already been taken 

into account by the rape or involuntary sexual assault and merges[.]” Trial 

Court Opinion, 4/10/17, at 40. As to that facet of the merger analysis, we 

agree. See Commonwealth v. Lomax, 8 A.3d 1264 (Pa.Super. 2010)

(engaging in vaginal intercourse with child met requirement of sexual 

intercourse for rape of a child as well as “indecent contact” for indecent 

assault). However, the trial court’s inquiry was incomplete, as that analysis 

only accounted for whether “the crimes arise from a single criminal act[.]” 

42 Pa.C.S. § 9765. Appellant did not address whether the second 

requirement, that “all of the statutory elements of one offense are included 
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in the statutory elements of the other offense,” was met. Therefore, we 

conclude that Appellant’s argument is waived.

15

 

Nevertheless, legality of sentence may be raised sua sponte, and we 

find that the charged subsection of indecent assault merged with the 

charged subsection of IDSI. The latter statute reads: 

(a) Offense defined.--A person commits a felony of the first 

degree when the person engages in deviate sexual intercourse 

with a complainant:

. . . . 

(7) who is less than 16 years of age and the person is four or 

more years older than the complainant and the complainant and 

person are not married to each other.

18 Pa.C.S. § 3123.

16

 

____________________________________________

15 It would appear that the crimes do not merge under the statute. See 

Commonwealth v. Baldwin, 985 A.2d 830 (Pa. 2009) (crime of carrying a 

firearm without a license did not merge with crime of carrying firearm in 

Philadelphia without a license; while the crimes had the shared element of a 

lack of license, each crime included an element the other did not). Here, the 

crime of rape required proof of sexual intercourse by forcible compulsion, 

whereas indecent assault under § 3126(a)(8) does not require any proof of 

force. Additionally, indecent assault required proof that J.E. was less than 

sixteen years of age; that Appellant was four or more years older; and that 

the two were not married, whereas rape does not. Thus, each crime 

requires proof of at least one element that the other does not. See 

Commonwealth v. Parham, 969 A.2d 629 (Pa.Super. 2009) (rape and 

statutory sexual assault do not merge, as the latter crime requires proof that 

the complainant is under sixteen years of age, perpetrator is at least four 

years older, and that the complainant and perpetrator are unmarried, while 

former requires proof of forcible compulsion or threat thereof).
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“Deviate sexual intercourse” is defined as “Sexual intercourse per os or 

per anus between human beings[.]” 18 Pa.C.S. § 3101. Proof of the 

“deviate sexual intercourse” requirement of § 3123(a)(7) satisfies the

“indecent contact” element of § 3126(a)(8). Thus, proof of involuntary 

deviate sexual intercourse with a person under sixteen necessarily proved 

indecent assault of a person under sixteen. Accordingly, the convictions 

merge for sentencing purposes. See Commonwealth v. Brown, 159 A.3d 

531 (Pa.Super. 2017) (rape of a child merged with IDSI of a child). Since 

the trial court imposed a consecutive sentence on the charge of indecent 

assault, our finding disrupts the sentencing scheme and requires that we 

vacate the judgment of sentence and remand for resentencing.

17

 

(Footnote Continued) _______________________

16 The public docket sheet states that Appellant was convicted of 18 Pa.C.S. 

§ 3123(b), which criminalizes deviate sexual intercourse “with a complainant 

who is less than 13 years of age.” J.E. was fifteen years old, and hence 

Appellant could not be convicted of this crime. We have reviewed the jury 

instructions and verdict slip, both of which show that Appellant was, in fact, 

convicted of 18 Pa.C.S. § 3123(a)(7). 

17 We note that Appellant committed the instant crimes on May 29, 2012,

prior to the enactment of the Sexual Offender Registration Notification Act, 

which became effective December 20, 2012, but was sentenced after its 

effective date. In Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), 

our Supreme Court held that application of SORNA constituted an ex post 

facto violation when a previous version was in effect “at the time of his 

offense and conviction.” Id. at 1193. Herein, the law changed between the 

commission of Appellant’s criminal conduct and sentencing, and Appellant

would presumably be entitled to relief under Muniz. See e.g. Peugh v. 

United States, 133 S.Ct. 2072 (2013) (ex post facto violation where a 

(Footnote Continued Next Page)
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Appellant’s final complaint is that the trial court vindictively 

resentenced him when it imposed a consecutive sentence at indecent 

assault, whereas the original scheme called for a concurrent sentence. Since 

we have vacated judgment of sentence on the merger basis, we need not 

reach this issue.

Judgment of sentence vacated. Case remanded for resentencing. 

Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/12/2018

(Footnote Continued) _______________________

defendant was sentenced under federal guidelines promulgated after the 

commission of his criminal acts).

Since Appellant is entitled to resentencing the parties may address this issue 

at that juncture, and we note that the Legislature has amended SORNA, 

effective February 21, 2018, to address Muniz. See e.g. 42 Pa.C.S. §§

9799.51 – 9799.75.