J-S66009-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

EUGENE DOUGLAS MANNING

Appellant No. 2003 MDA 2015

Appeal from the Judgment of Sentence May 15, 2013

In the Court of Common Pleas of Franklin County

Criminal Division at No(s): CP-28-CR-0001169-2012

CP-28-CR-0001173-2012

CP-28-CR-0001674-2011

BEFORE: BOWES, PANELLA AND JENKINS, JJ.

MEMORANDUM BY BOWES, J.: FILED NOVEMBER 29, 2016

Eugene Douglas Manning appeals pro se from the judgment of 

sentence of seventy-two to 144 months imprisonment that was imposed

after he was convicted of two counts of stalking and twenty-eight counts of 

harassment by anonymous communication. We affirm. 

This appeal involves three criminal actions that were consolidated for 

purposes of trial. At 1674 of 2011, Appellant was charged with stalking 

Pamela Ross. Appellant was arrested for that offense on September 7, 

2011, and, after his September 13, 2011 release on bail, Appellant did not 

contact Ms. Ross again until April 30, 2012, when he called her twice. On 

May 1, 2012, and May 2, 2012, Appellant sent the victim numerous text 
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messages. These 2012 actions resulted in an additional stalking charge 

leveled against him at criminal case number 1169 of 2012, and, at criminal 

action number 1173 of 2012, twenty-eight counts of harassment by 

anonymous communication. 

The facts underlying Appellant’s convictions follow. In June, 2011, 

Appellant went to the Center for Dermatology (the “Center”) in 

Chambersburg, Pennsylvania, due to the existence of lumps on his back. He 

was seen by Ms. Ross, who was a board-certified physician’s assistant. On 

July 21, 2011, Ms. Ross removed a cyst from Appellant’s back using local 

anesthetic. On the discharge form, Appellant was told to call Ms. Ross’ cell 

phone number in the event that complications arose after the out-patient 

surgery, and he received an appointment to have sutures removed on 

August 4, 2011. Ms. Ross’s cell phone was utilized on the Center form 

because the business did not have an answering service at that time. That 

procedure was altered due to Appellant’s subsequent behavior toward Ms. 

Ross. 

After another office employee removed his sutures on August 2, 2011, 

Ms. Ross examined the surgical site to ensure that the wound was healed. 

The June, July, and August office visits were the extent of Ms. Ross’ direct 

contact with Appellant. In August 2011, Appellant began to send letters 

nearly every day to the Center, and they were addressed to Ms. Ross. In 

one, Appellant called the victim “a true life queen” and said that her 
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“husband must wait at the door for [her] to get home.” N.T. Trial, 3/12/13, 

at 50. After she received the second letter, Ms. Ross advised her office 

manager about the situation, and the Center notified Appellant that he was 

discharged as a patient and told him not to contact Ms. Ross “in any way.” 

Id. at 55. 

Appellant continued to send Ms. Ross letters at the Center and also 

mailed her a twig and a CD. The letters, introduced as exhibits, were 

rambling, strange, and indicated that Appellant was in love with Ms. Ross 

and believed that he and Ms. Ross were involved in a relationship with each 

other. The communications rendered the victim fearful for both her safety 

and that of her husband and four children. 

Appellant also kept a notebook, which was recovered pursuant to a 

search warrant. It was titled, “Gene and his Little Pammy and a Life Lesson 

of What True Love really is, and how God meant us to Love. I Love you 

Pamela, Love your outlaw Stalker, Gene.” Commonwealth’s Exhibit 20 at 1 

(emphasis in original). The notebook contained rambling diatribes similar to 

the one on the cover. For example, Appellant reported that he was madly in 

love with Ms. Ross, considered her his soul mate, pleaded with her to 

divorce her husband for him, and said that he knew that one day he and Ms. 

Ross would become involved in a romantic relationship. 

Since Appellant did not desist in sending letters, on August 23, 2011, 

Ms. Ross contacted police about the situation. Two Chambersburg police 
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officers personally discussed the matter at length with Appellant and told 

him to stop contacting Ms. Ross. Instead of heeding the officers’ warning, 

Appellant began to telephone Ms. Ross, and he left eight or nine messages 

on her cell phone. The victim contacted the police, who listened to the 

messages and verified that they were from Appellant. Based upon his 

behavior toward Ms. Ross in August, 2011, Appellant was arrested for 

stalking on September 7, 2011, and he was released on bail on September 

13, 2011. One of the conditions of his release was that he have “no contact 

with the victim or victims in person, by mail or telephone.” Id. at 67. 

Upon his release, Appellant initially did not contact Ms. Ross, but he 

then defied the condition by twice telephoning her on April 30, 2012. On 

May 1, 2012, and May 2, 2012, Appellant sent the victim twenty-eight 

bizarre and rambling text messages. Appellant repeatedly asked the victim 

to contact him and referred to her as “baby.” Commonwealth Exhibit 5. Ms. 

Ross called the police and contacted her cell phone provider to block calls 

from Appellant’s phone number. 

At trial, Appellant, who was proceeding pro se,

1

called Dr. Joanna 

Brady as a witness. She told the jury that, after she saw Appellant 

professionally as a patient, he sent her flowers and left multiple 

inappropriate messages on her telephone. In response to a question by 

____________________________________________

1 The status of Appellant’s legal representation is discussed infra. 
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Appellant about how the messages were inappropriate, Dr. Brady 

responded: “You would leave messages where you breathed heavily, where 

you threatened to kill me, where you threatened to hurt my family. You 

threatened to kill my husband. You sent letters that contained the same.” 

N.T. Trial, 3/13/13, at 187-88. 

After a three-day trial, a jury convicted Appellant of all counts in the 

three criminal actions, and he was sentenced on May 15, 2013, to seventytwo to 144 months incarceration. Appellant filed a pro se direct appeal, and 

was ordered to file a Pa.R.A.P. 1925(b) statement. He never complied with 

that directive. After protracted proceedings, which are described in detail 

infra as they are pertinent to the central issue involved in this appeal, the 

Commonwealth moved to have that appeal dismissed based upon Appellant’s 

failure to file a Pa.R.A.P. 1925(b) statement. We dismissed the appeal on 

February 24, 2015. Appellant then filed a timely pro se PCRA petition on 

September 17, 2015. After a hearing, the trial court reinstated Appellant’s 

right to a direct appeal on October 26, 2015, and this pro se appeal followed 

on November 13, 2015. 

Appellant’s Pa.R.A.P. 2116 Statement of Questions Involved spans 

eight pages and raises about twenty-six issues:

1. Whether it was an abuse of discertion [sic] or error of law by 

the trial court, and whether Mr. Manning was denied his right to 

counsel pursuant to the Sixth and Fourteenth Amendments of 

the Federal Constitution and pursuant to Article 1 section 9 of 

the Pennsylvania Constitution of the right to counsel by failing to 
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conduct the required on -the -record waiver of counsel colloquy 

to be certain Mr. Manning's waiver of counsel was knowing, 

voluntary and intelligent, pursuant to Pa.R.Crim.P. 120, 121, 

122, to permit Mr. Manning to proceed pro se:

A. Throughout all pretrial critical stages of the criminal 

proceedings.

B. Jury selection.

C. A jury trial.

D. A jury trial for misdemeanors and felony charges which Mr. 

Manning faced substantial prison sentences.

E. Sentencing to imprisonment.

F. Post sentence motions stage.

2. Whether the Commonwealth of Pennsylvania criminal stalking 

statute and laws are unconstitutional, facially overbroad, facially 

vague, or were so overbroad and vague as applied to Mr. 

Manning's conduct, and whether the stalking statute and laws 

permit and or promote arbitrary and or discriminatory 

enforcement or were so as applied to Mr. Manning's conduct, and 

criminalized non criminal conduct as applied to Mr. Manning. In 

violation of Mr. Manning's Federal First amendment and 

Pennsylvania Constitution Article 1., section 7 of the right to 

legitimate freedom of speech ,expression, association, the 

freedom to think and feel privately. In violation of the Federal 

Ninth amendment against ex post facto laws, Federal Fourteenth 

amendment of due process. In violation of the Pennsylvania 

Constitution, Article 1 section 1. and the right to privacy, Article 

1 section B against unreasonable searches and seizures and 

rights of privacy. In violation of Article 1 section 9 due process, 

in violation of Article 1 section 17 ex post facto clause.

3. Whether the sentences are illegal, unconstitutional, and 

whether the trial court abused its discretion or committed error 

of law sentencing Mr. Manning to prison for:

A. Mandatory minimum sentences.
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B. Non statutory aggravating factors.

C. Aggravating factors not submitted to the factfinder, jury.

D. Resentencing Mr. Manning for 2003 -2004 cases.

E. Impermissable [sic] sentencing factors, sex crimes, 

constitutionally protected conduct, activity, freedom of speech, 

expression, association, authorized conduct, legitimate doctorpatient medical appointment, legitimate communication, non 

communication, non criminal conduct, activity, petitioning the 

courts for redress of grievances.

4. Whether it was an abuse of discretion or error of law by the 

trial court in charging the jury with improper jury instructions:

A. "Now ordinarily, it is not possible to prove intent" "knowledge 

or what someone is thinking, what purpose they have, and 

whether this instruction lowered the Commonwealth's burden of 

proof, shifting the burden onto Mr. Manning to prove innocence 

or non specific intent to commit stalking and harassment.

B. Submitting jury verdict slips to the jury that permitted a 

finding of guilt based on speculation, suspicion, conjecture, 

constitutionally protected conduct, proper legal, authorized 

activity, conduct, legitimate freedom of speech, expression, 

association, legitimate communication, non communication, non 

criminal conduct.

5. Whether it was an abuse of discretion or error of law by the 

trial court to permit over Mr. Manning's objections, the highly 

prejudicial, irrelevant, hearsay testimony by the alleged victim 

Mrs. Ross that her son had nightmares that a faceless Mr. 

Manning killed his baby sister.

6. Whether the [C]ommonwealth failed to prove each element 

of the crimes against Mr. Manning beyond a reasonable doubt, 

specific intent, non legitimate communication, and whether the 

evidence was insufficient to prove guilt, and whether it was an 

abuse of discretion or error of law by the trial court to deny Mr. 

Manning's motion to dismiss the charges.
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7. Whether it was an abuse of discretion or error of law by the 

trial court to permit the Commonwealth to introduce prior bad 

acts from 2003, 2004, and to permit known false testimony, 

perjury from a witness that in 2003, 2004 Mr. Manning treatened 

[sic] to kill her, her husband and hurt her family. This witness 

was Mrs. Brady. Mr. Manning objected.

B. Whether Mr. Mannìng was illegally, unconstitutionally arrested 

without arrest warrants, or defective invalid arrest warrants. 

9. Whether the Commonwealth of Pennsylvania Rules of Criminal 

Procedure 513 are unconstitutional, or were so as applied to Mr. 

Manning, or were the rules not properly followed as; The affiant 

of the police criminal complaint, probable cause affidavit for 

count 1674 -2011 was not required to appear in person or to

swear and or affirm his statements in the affidavit in person 

before the issuing authority to have the complaint approved. 

And whether the affidavits of probable cause for counts 1674 -

2011, 1169- 2012, 1173 -2012 failed to set-forth any criminal 

allegations, and whether the issuing authority abandoned his 

nuetral [sic] and detached role in approving the complaints and 

or arrest warrants.

10. Whether it was an abuse of discretion or error of law by the 

trial court to deny Mr. Manning's motions to suppress the 

evidence searched and seized from the Waite residence on June. 

13, 2012, denyiing [sic] Mr. Manning standing to challenge, and 

wheteher [sic] the search warrant lacked probable cause, was 

defective, overbroad, violated Mr. Manning's right's [sic] of

privacy, and whether the issuing authority abandon his nuetral 

[sic] and detached role in issuing the warrant.

11. Whether it was an abuse of discretion or error of law by the 

trial court, over Mr. Manning's objections, to deny Mr. Manning 

his right to call witness in his favor by quashing the jury trial 

subpoena to Dr. Muhkerjee, a psychiatrist who could have 

explained the evidence searched and seized from the Waite 

residence, Mr. Manning's private thoughts, feelings, writings, 

diaries and journals.

12. Whether it was an abuse of discretion or error of law by the 

trial court, over Mr. Manning's objections to quash the trial 

subpoenas to Mrs. Ross and Dr. Epstein, and two exculpatory 
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eyewitnesses who could have offered substantial impeachment 

value testimony against Mr. Manning's accuser Mrs. Ross.

13. Whether it was an abuse of discretion or error of law by the 

trial court to deny Mr. Manning his right to call witnesses in his 

favor by quashing the trial subpoena to Mrs. Ross when the trial 

court told Mr. Manning he would be able to call Mrs. Ross later 

for questioning for his case in chief. 

14. Whether it was presecutorial [sic] misconduct, overreaching 

by the prosecutor to permit and elicit known false testimony and 

perjury from a witness, Mrs. Brady regarding prior bad acts, that 

in 2003, 2004 Mr. Manning threatened to kill Mrs. Brady, her 

husband, and hurt her family.

15. Whether the Commonwealth of Pennsylvania harassment 

statute and laws are unconstitutional, facially overbroad, facially 

vagues [sic], or were so overbroad and vague as applied to Mr. 

Manning's counduct [sic], and whether the harassment statute 

and laws permit and or promote arbitrary and or discriminatory 

enforcement or were so as applied to Mr. Manning's conduct, and 

criminalize non criminal conduct as applied to Mr. Manning, as 

26 counts of harassment against the Center for Dermatology, 

count 1173 -2012 required no victim, no testimony from anyone 

,and there was no actual communication with anyone, no 

messages left.

Appellant’s brief at 3-10.

Despite this expansive Pa.R.A.P. 2116 statement, the argument 

portion of Appellant’s brief is actually divided into three parts: 1) pages 

sixteen to thirty-five are devoted to a position that he was improperly denied 

his right to counsel since he never was afforded a Pa.R.Crim.P. 121 colloquy 

at his jury trial; 2) at pages thirty-five to seventy-three, Appellant claims 

that the criminal stalking statute is unconstitutional as overbroad and vague; 

and 3) his final averment, leveled at pages seventy-three to eighty of the 
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brief, is that the harassment statute is unconstitutionally vague and 

overbroad. The only arguments that we will address are those advanced in 

the argument portion of Appellant’s brief. Commonwealth v. Jackson,

431 A.2d 944, 945 n.1 (Pa. 1981) (where issue presented in the “Statement 

of Questions Involved” section of defendants brief was not addressed in “the 

‘Argument’ portion of his brief,” it was waived); accord Commonwealth v. 

Jones, 815 A.2d 598, 604 n. 3 (Pa. 2002); Pa.R.A.P. 2119(a) (“The 

argument shall be divided into as many parts as there are questions to be 

argued; and shall have at the head of each part--in distinctive type or in 

type distinctively displayed--the particular point treated therein, followed by 

such discussion and citation of authorities as are deemed pertinent.”).

Appellant first claims that he is entitled to a new trial because the trial 

court did not provide a waiver-of-counsel colloquy at the time of trial. 

Appellant’s brief at 16 (Appellant was deprived of his right to counsel “as his 

trial counsel Brian Williams was permitted to withdraw and the trial court 

failed . . . . to conduct the required on-the-record waiver of counsel 

colloquy”). Initially, we note that this position was never raised at any point 

in the trial-court proceedings and, instead, was presented for the first time 

in Appellant’s Pa.R.A.P. 1925(b) statement. Nevertheless, we hesitate to 

find the issue waived since in Commonwealth v. Davido, 868 A.2d 431 

(Pa. 2005), our Supreme Court stated it is the trial court’s responsibility to 

sua sponte ensure that a valid waiver-of-counsel colloquy is performed. 
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Due to the serious nature of the failure to conduct a waiver-of-counsel 

colloquy, we set forth the tortured procedural history of Appellant’s 

representation during these cases. At criminal action number 1674 of 2011, 

the first one filed, Appellant claimed indigence following his arrest and was 

granted court-appointed counsel. After Appellant obtained bail, that 

appointment was revoked by a September 13, 2011 order wherein the 

Honorable Douglas W. Herman, stated: “[T]he Public Defender’s Officer was 

appointed to represent the within defendant while in jail but he is no longer 

in jail, therefore, IT IS ORDERED that the appointment of the Public 

Defendant is rescinded and the defendant will need to reapply for 

representation.” Order of Court, 9/13/11, at 1 (emphasis added). This 

order was served on Appellant personally. 

Appellant did not reapply for appointed counsel. On November 16, 

2011, Appellant executed a statement of rights wherein he was told, “You 

have a right to be represented by counsel. You have the right to have an 

attorney appointed to you free of charge if you cannot afford to employ 

one.” Statement of Rights, 11/16/11, at 1. On December 19, 2011, 

Appellant appeared pro se before the trial court for a call of the list. At that 
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time, Appellant executed a written waiver-of-counsel form that was fully 

compliant with Pa.R.Crim.P. 1212in that it stated:

____________________________________________

2 That rule states: 

(1) The defendant may waive the right to be represented by 

counsel.

(2) To ensure that the defendant's waiver of the right to counsel 

is knowing, voluntary, and intelligent, the judge or issuing 

authority, at a minimum, shall elicit the following information 

from the defendant:

(a) that the defendant understands that he or she 

has the right to be represented by counsel, and the 

right to have free counsel appointed if the defendant 

is indigent;

(b) that the defendant understands the nature of the 

charges against the defendant and the elements of 

each of those charges;

(c) that the defendant is aware of the permissible 

range of sentences and/or fines for the offenses 

charged;

(d) that the defendant understands that if he or she 

waives the right to counsel, the defendant will still be 

bound by all the normal rules of procedure and that 

counsel would be familiar with these rules;

(e) that the defendant understands that there are 

possible defenses to these charges that counsel 

might be aware of, and if these defenses are not 

raised at trial, they may be lost permanently; and

(f) that the defendant understands that, in addition 

to defenses, the defendant has many rights that, if 

not timely asserted, may be lost permanently; and 

(Footnote Continued Next Page)
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1. I understand that I have the right to be represented by an 

attorney, and have a right to a free attorney if I cannot afford 

to employ an attorney of my choosing.

2. I understand the nature of the charges against me and the 

elements of each of these charges.

3. I understand the permissible range of sentences and/or fines 

which may be imposed for the offense for which I am charged.

4. I understand that if I waive my right to an attorney and 

proceed today, I will still be bound by all the normal rules of 

procedure and that an attorney appointed for me or hired by 

me would be familiar with these rules.

5. I understand that there may be possible defenses to these 

charges which an attorney might be aware of, and if these 

defenses are not raised at trial, they may be lost forever. 

6. I understand that I have many additional rights which if not 

timely raised may be lost forever.

7. I understand that if errors occur in my case that are not timely 

objected to or otherwise timely raised by me, the ability to 

address these errors with the court may be lost permanently. 

Waiver of Counsel Pursuant to Pa.R.Crim.P. 121, 12/19/11, at 1. 

Appellant then asked for a continuance of his trial date, which had 

been scheduled for January 9, 2012, and requested that it be moved to 

March 12, 2012. The application for continuance was executed by Appellant, 

(Footnote Continued) _______________________

that if errors occur and are not timely objected to, or 

otherwise timely raised by the defendant, these 

errors may be lost permanently.

Pa.R.Crim.P. 121(A). 
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the Commonwealth, and Judge Herman, and, in it, Appellant indicated that 

he needed time to prepare for trial. The Commonwealth reports that, when 

Appellant asked for a continuance and executed the Pa.R.Crim.P. 121 written 

waiver, “an on-the-record waiver of counsel colloquy pursuant to 

Pa.R.Crim.P. 121 was performed.” Commonwealth’s brief at 3. See 

Pa.R.Crim.P. 121(B) (“When the defendant seeks to waive the right to 

counsel after the preliminary hearing, the judge shall ascertain from the 

defendant, on the record, whether this is a knowing, voluntary, and 

intelligent waiver of counsel.”). 

Appellant does not dispute the accuracy of the Commonwealth’s 

representation that Judge Herman conducted an on-the-record oral waiver 

colloquy on December 19, 2011. Since Appellant failed to obtain a 

transcription of the December 19, 2011 proceeding, we cannot 

independently confirm that this colloquy occurred. We therefore are 

compelled to recite the following regarding Appellant’s capacity to order 

transcripts. 

After Appellant filed his first appeal, he presented a petition for 

records. As requested in that document, Judge Herman ordered 

transcription of: a May 8, 2012 bail hearing, a July 3, 2012 pretrial and bail 

reduction hearing, an October 2, 2012 hearing on Appellant’s suppression 

motion, an October 24, 2012 continued suppression hearing, a January 25, 

2013 Pa.R.Crim.P. 600 hearing, a February 21, 2013 hearing on Appellant’s 
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various pre-trial motions, the March 11, 2013 jury selection, all three days 

of the jury trial, and the May 15, 2013 sentencing hearing. Appellant 

thereafter asked for and obtained a transcript of a December 28, 2012 pretrial conference. 

Appellant filed yet another motion for transcripts, asking for 

transcription of an October 26, 2012 call-of-the-list proceeding. Appellant 

also demanded a copy of the docket entries at all three case numbers. 

Judge Herman granted these two requests, and a transcript of the October 

26, 2012 call-of-the-list was filed, and Appellant was disseminated copies of 

the docket entries for all three matters. The docket entries for 1674 of 2011 

clearly show the filing of the written waiver of counsel on December 19, 

2011, and indicate that there was a call of-the-list proceeding conducted on 

that date. 

Despite being aware of the procedure to obtain transcripts, having 

notice of the December 19, 2011 call-of-the-list proceeding and filing of the 

written waiver of counsel, and having ordered transcription of a different 

call-of-list proceeding, Appellant never asked for the notes of testimony from 

the hearing held before Judge Herman on December 19, 2011. Thus, we 

have no hesitation in accepting the Commonwealth’s representation that 

Judge Herman, concomitant with obtaining a written waiver, did conduct an 

oral colloquy on December 19, 2011. Furthermore, it was Appellant’s 

responsibility to ensure that the transcript was part of the record. 
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Commonwealth v. Preston, 904 A.2d 1, 7 (Pa.Super. 2006) (“Our law is 

unequivocal that the responsibility rests upon the appellant to ensure that 

the record certified on appeal is complete in the sense that it contains all of 

the materials necessary for the reviewing court to perform its duty.”).

The history of Appellant’s representation at case numbers 1169-2012 

and 1173 of 2012 follows. After those 2012 charges were filed, Appellant 

was appointed counsel, Scott J. Thomas, from the public defender’s office. 

On July 25, 2012, Mr. Thomas filed a motion to suppress evidence, wherein 

he challenged the sufficiency of a warrant used to search the home of people 

to whom Appellant had given materials related to his stalking of Ms. Ross. 

On August 1, 2012, private counsel, Brian Oliver Williams, Esquire, entered 

his appearance. On October 2, 2012, Mr. Williams filed a petition to 

withdraw indicating that Appellant had fired him, and the motion was 

granted on October 16, 2012. Appellant proceeded to represent himself at 

trial, which was presided over by Judge Herman. 

After Appellant was convicted and sentenced, he filed a timely pro se 

appeal. We remanded for the conduct of a hearing pursuant to

Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998), which holds, 

“When a waiver of the right to counsel is sought at the post-conviction and 

appellate stages, an on-the-record determination should be made that the 

waiver is a knowing, intelligent, and voluntary one.” That hearing was held 

before Judge Herman on July 11, 2013, and Judge Herman indicated he 
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ascertained that Appellant wanted to proceed pro se and knowingly and 

voluntarily waived his right to counsel. Appellant asked for and obtained a 

copy of the transcript of that hearing.

On March 27, 2014, after filing a number of pro se motions with the 

trial court, Appellant then asked for the appointment of counsel. David 

Breschi, Esquire, was appointed, and, after Mr. Breschi moved to withdraw, 

Matthew Karasic, Esquire, was appointed. Thereafter, private counsel, Scott 

Nathan Pletcher, Esquire, entered his appearance. After Mr. Pletcher moved 

to withdraw, a second Grazier hearing was held on August 27, 2014, before 

Judge Herman. At that hearing, Judge Herman ascertained that Appellant 

did not want to proceed pro se but actually wanted court-appointed counsel 

so Kristopher Accardi, Esquire, was appointed to represent Appellant. 

After the previous appeal was dismissed, Mr. Accardi moved to 

withdraw. This matter was re-assigned to the Honorable Angela R. Krom, 

who conducted another Grazier hearing and concluded that after “extensive

discussion with the Defendant, the Court determines that he has in fact, 

waived his right to counsel and will proceed to represent himself.” Order of 

Court, 8/5/15, at 1. Appellant asked for and obtained a copy of a transcript 

of that Grazier hearing.

Appellant then filed a pro se PCRA petition, and, at a hearing on that 

petition, Mr. Accardi appeared. Judge Krom again colloquied Appellant and 

ascertained that he wanted to proceed pro se. After that hearing, Appellant 
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obtained reinstatement of his appellate rights, and this pro se appeal 

followed. 

On appeal, Appellant faults the trial court, Judge Herman, with failing 

to conduct a Pa.R.Crim.P. 121 colloquy at the beginning of trial, after 

Appellant’s private counsel, Mr. Williams, asked to withdraw after Appellant 

fired him.3 As noted, under Davido, supra, the trial court must sua sponte 

conduct such a colloquy. However, Judge Herman had presided over the 

December 19, 2011 proceeding, and knew that a waiver colloquy was 

conducted then. There is no case law to support the notion that a judge is 

required to conduct two Pa.R.Crim.P. 121 colloquies. Appellant was fully 

apprised on December 19, 2011, of the ramifications of his desire to proceed 

pro se, and Judge Herman did not have to repeat information already 

disseminated to Appellant. 

In addition, in light of Appellant’s behavior herein, we agree with 

Judge Krom’s and the Commonwealth’s position that Commonwealth v. 

Lucarelli, 971 A.2d 1173 (Pa. 2009), applies in this case. Therein, our High 

Court made a clear distinction between waiver of counsel and forfeiture of 

counsel. Waiver is present when the defendant knowingly and voluntarily 

relinquishes his right to counsel while forfeiture occurs when a defendant’s 

____________________________________________

3

Judge Krom prepared the Pa.R.A.P. 1925(a) opinion in this matter. She 

acknowledged that a colloquy was not performed prior to trial, but did not 

realize that Judge Herman conducted one on December 19, 2011. 
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conduct is abusive, threatening, or extremely dilatory. Id. “Pa.R.Crim.P. 

121 and its colloquy requirements do not apply to situations where forfeiture 

is found.” Id. at 1179. 

The Lucarelli Court concluded that the defendant therein forfeited his 

right to counsel, obviating the need for a Pa.R.Crim.P. 121 colloquy, based 

upon obstructive conduct sufficient to be characterized as extremely dilatory. 

Specifically, Lucarelli had the financial means to secure private counsel, fired 

several lawyers that he hired, was accorded over eight months to prepare 

for trial, and then appeared at trial without an attorney or an explanation for 

why counsel was not present. Our Supreme Court reversed our decision to 

grant Lucarelli a new trial due to the trial court’s failure to conduct any 

Pa.R.Crim.P. 121 colloquy, ruling that the colloquy was not required since, 

based upon his conduct, Lucarelli forfeited his right to counsel. See also 

Commonwealth v. Coleman, 905 A.2d 1003 (Pa.Super. 2006). 

As the above-procedural history demonstrates, Appellant initially had 

an appointed lawyer in all three cases, hired and then fired private counsel, 

asked to proceed pro se on numerous occasions, was given a Pa.R.Crim.P. 

121 colloquy once prior to trial and three times after trial, retracted his 

request to represent himself after receiving one of those hearings, thereafter 

obtained a series of appointed lawyers, and then demanded to proceed pro 

se again. 
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In addition to this conduct with respect to representation, the record is 

replete with evidence of other obstructionist behavior by Appellant. 

Appellant’s pro se filings are so voluminous that they fill a large box. Some 

of the pro se documents were presented while Appellant was represented by 

counsel, and they are largely indecipherable. Appellant was openly rude to 

Judge Herman at various points during these proceedings, reported him to 

the Judicial Conduct Board, and called him corrupt. Prior to trial, Appellant 

obtained a plethora of subpoenas, the vast majority of which were quashed 

after the people subpoenaed petitioned the court. Specifically, the quashed 

subpoenas were issued to: a member of the Office of Disciplinary Counsel, 

the entire Judicial Conduct Board, the Clerk of Courts of Franklin County, 

The Pennsylvania State Board of Medicine, a state senator, the mayor of 

Chambersburg, four magisterial district judges, two health care providers, 

nine correctional officers, the local warden and deputy wardens, the health 

providers for the Franklin County jail, and the Franklin County 

Commissioners and Administrator. 

At trial, Appellant continuously interrupted both Judge Herman and the 

district attorney, even during closing arguments. He attempted to file a 

private criminal complaint raising perjury charges against Dr. Brady after her 

testimony at his trial. Appellant also moved to have the Franklin County 

District Attorney’s Office disqualified from prosecuting him, and filed a 

disciplinary action against Mr. Williams, who represented him for only two 
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months. Appellant’s behavior in this matter is far and above more 

obstructionist and abusive than that analyzed in Lucarelli, and we find it 

applicable herein. Simply put, the absence of a Pa.R.Crim.P. 121 colloquy 

after Mr. Williams was fired does not entitle Appellant to a new trial. 

Appellant’s other two contentions on appeal are that the stalking and 

harassment statutes are unconstitutional. We find Appellant’s position as to 

the unconstitutionality of these statutes to be so rambling and confusing as 

to be virtually indecipherable. In Ibn–Sadiika v. Riester, 551 A.2d 1112, 

1114 (Pa.Super. 1988), we ruled that “when an appellant fails to carry 

forward, or is indecipherably vague in, argumentation upon a certain point in 

his appellate brief, that point is waived.” Accord Commonwealth v. 

Gooding, 649 A.2d 722 (Pa. Super. 1994). That precept certainly applies 

herein. 

Moreover, in Commonwealth v. Schierscher, 668 A.2d 164 

(Pa.Super. 1995), we ruled that the crimes of harassment and stalking, 

which were previously contained in a single statute, were not 

unconstitutionally vague and that they did not violate a person’s first 

amendment rights to free speech. We also note that Appellant raises a 

claim that he had no notice that his behavior was criminal. The record belies 

this position. The Center and the police both informed Appellant that he was 

to stop contacting the victim, and he continued to do so. Additionally, as a 

condition of his bail in the first action filed herein, he was ordered not to 
J-S66009-16

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contact the victim. Appellant, after a brief respite, began to stalk and harass 

his victim again. For the foregoing reasons, we reject Appellant’s challenges 

to the constitutionality of the stalking and harassment statutes. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/29/2016