J.S45036/15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

BRIAN ANTHONY LEEKS, :

:

Appellant : No. 1961 MDA 2014

Appeal from the Judgment of Sentence June 12, 2014

In the Court of Common Pleas of Dauphin County 

Criminal Division No(s).: CP-22-CR-0000105-2014

BEFORE: BOWES, WECHT, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 30, 2015

Appellant, Brian Leeks, appeals from the judgment of sentence 

entered in the Dauphin County Court of Common Pleas. He contends (1) the 

trial court failed to conduct a sufficient colloquy before allowing him to 

proceed pro se, (2) the verdict was against the weight of the evidence, and 

(3) the court imposed an excessive and unreasonable sentence. We affirm.

We adopt the recitation of facts as set forth by the trial court. Trial Ct. 

Op., 6/26/14, at 1-3. On June 4, 2013, following a colloquy, the trial court 

permitted Appellant to proceed pro se with stand-by counsel. On June 6, 

2014, following a jury trial, Appellant was found guilty of aggravated 

 

*

Former Justice specially assigned to the Superior Court.
J.S45036/15

- 2 -

assault1and terroristic threats with intent to terrorize another.2 On June 12, 

2014, Appellant was sentenced to seven-and-a-half to fifteen years’ 

imprisonment. He was ordered to pay restitution in the amount of $768.30.

On June 23, 2014, appellate counsel filed a post-sentence motion 

contending his sentence was excessive and the verdict was against the 

weight of the evidence. The trial court denied the motion on October 21, 

2014. This timely appeal followed. Appellant filed a court-ordered Pa.R.A.P. 

1925(b) statement of errors complained of on appeal. The trial court filed a 

responsive opinion.

Appellant raises the following issues for our review:

I. Whether the trial court erred by failing to conduct a 

complete and thorough, on-the-record colloquy of 

Appellant before allowing him to proceed to his trial pro se

in violation of Pa.R.Crim.P. Rule 121, resulting in an 

unknowing, involuntary, and unintelligent waiver of his 

right to counsel under the Fifth and Sixth Amendments to 

the United States Constitution and Articles I and V, Section 

9 of the Pennsylvania Constitution?

II. Whether the trial court erred in denying Appellant’s 

Post-Sentence Motion where his convictions were against 

the weight of the evidence so as to shock one’s sense of 

justice where: Appellant was never shown to have 

engaged in acts which constitute the crimes of which he 

was convicted, and[ ] Appellant acted in self-defense?

III. Whether the trial court erred in denying Appellant’s 

Post-Sentence Motion where Appellant’s sentence of 7.5 to 

15 years’ incarceration and $768.30 in restitution is 

 

1 18 Pa.C.S. § 2702(a)(1).

2 18 Pa.C.S. § 2706(a)(1).
J.S45036/15

- 3 -

excessive and unreasonable given Appellant’s lack of a 

significant prior record, this [h]onorable [c]ourt’s failure to 

inquire into Appellant’s background during sentencing, and 

Appellant’s significant history of mental health issues?

Appellant’s Brief at 7.

First, Appellant argues that when a defendant seeks to waive his right 

to counsel, the trial court “must conduct a colloquy on the six elements 

listed in Pa.R.Crim.P. 121.” Id. at 17. Additionally, he contends “the trial 

court must inquire about the defendant’s age, educational background, and 

basic comprehension skills.” Id. at 18. Appellant argues the court did not 

comply with these precepts. We disagree.

Our review is governed by the following principles:

A criminal defendant’s right to counsel under the Sixth 

Amendment includes the concomitant right to waive 

counsel’s assistance and proceed to represent oneself at 

criminal proceedings. Faretta v. California, 422 U.S. 806 

. . . (1975). The right to appear pro se is guaranteed as 

long as the defendant understands the nature of his 

choice. [Id.] at 835. In Pennsylvania, Rule of Criminal 

Procedure 121 sets out a framework for inquiry into a 

defendant’s request for self-representation. Pa.R.Crim.P. 

121. Where a defendant knowingly, voluntarily, and 

intelligently seeks to waive his right to counsel, the trial 

court, in keeping with Faretta, must allow the individual 

to proceed pro se. See also Commonwealth v. 

McDonough . . . 812 A.2d 504, 508 ([Pa.] 2002) 

(concluding that Faretta requires an on-the-record 

colloquy in satisfaction of Pa.R.Crim.P. 121, which colloquy 

may be conducted by the court, the prosecutor, or defense 

counsel.)

Commonwealth v. El, 977 A.2d 1158, 1162-63 (Pa. 2009) (footnotes and 

some citations omitted).
J.S45036/15

- 4 -

Rule 121 provides as follows: 

(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 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)(2)(a)-(f). In Commonwealth v. Phillips, 93 A.3d 847 

(Pa. Super. 2014), this Court stated:

When reviewing a trial court’s basic compliance with the 

requirements of Rule 121, we do not first apply a “totality 

of the circumstances” test. In this context, we look at the 

totality of the relevant circumstances only after we decide 
J.S45036/15

- 5 -

the trial court has met the minimum requirements of Rule 

121, to determine whether the defendant’s waiver of the 

constitutional right to counsel was a knowing, voluntary, 

and intelligent waiver.

Id. at 853-54 (emphases added).3 

Appellant relies on the following footnote in McDonough in support of 

his argument that the trial court failed to conduct a thorough colloquy 

because “the court failed to inquire into [Appellant’s] age before permitting 

him to proceed pro se.” Appellant’s Brief at 19. 

In addition to these six factors, a waiver colloquy must, of 

course, always contain a clear demonstration of the 

defendant’s ability to understand the questions posed to 

him during the colloquy. Although Appellant does not 

challenge his colloquy in this regard, the record clearly 

demonstrates that Appellant understood the questions 

posed during the colloquy. See infra p. 507 (prosecutor 

inquiring during colloquy about Appellant’s age, 

educational background, and basic comprehension skills).

McDonough, 812 A.2d 507 n.1.4

 

3 We note that this Court in Phillips stated “[t]he court should also inquire 

about the defendant’s age, educational background, and basic 

comprehension skills. McDonough, supra.” Phillips, 93 A.3d at 853. The 

Supreme Court in McDonough did not hold that the court shall elicit the 

defendant’s age in the colloquy. Given the totality of the circumstances test 

enunciated in Phillips, the absence of an inquiry into a defendant’s age 

alone would not be dispositive of whether the defendant’s waiver of the right 

to counsel was knowing, voluntary, and intelligent. 

4 The defendant in McDonough contended “his waiver was invalid because 

it was the prosecutor rather than the judge who conducted the waiver 

colloquy.” McDonough, 812 A.2d at 508. Our Pennsylvania Supreme Court 

rejected this argument. Id. at 508-09. 
J.S45036/15

- 6 -

In the case sub judice, the following colloquy was conducted by the 

Commonwealth:

MS. GETTLE:5 How far did you go in school?

[APPELLANT]: To the 11th –or to the 12th grade.

MS. GETTLE: Did you graduate?

[APPELLANT]: No.

MS. GETTLE: Did you get a GED?

[APPELLANT]: No.

MS. GETTLE: Do you read, write, and understand the 

English language?

[APPELLANT]: I do.

 * * *

MS. GETTLE: [A]re you under the influence of any alcohol 

or controlled substances that are impacting your ability to 

understand what you’re doing here today?

[APPELLANT]: No.

MS. GETTLE: Now, you take prescription medications, is 

that correct?

[APPELLANT]: That’s correct.

 * * *

MS. GETTLE: What types of prescriptions are you 

prescribed?

 

5

Jennifer W. Gettle was the Commonwealth’s attorney and was instructed 

by the court to conduct the colloquy after she informed Appellant of the 

charges he faced and the potential maximum sentences. N.T. Trial, 6/4/14, 

at 2-4.
J.S45036/15

- 7 -

[APPELLANT]: [M]y therapist at the jail has tooken [sic] 

me off the medications. I’m not prescribed any medication 

at this time.

 * * *

MS. GETTLE: What is your diagnosis?

 * * *

[APPELLANT]: Major depression, psychotic features or 

something like that.

MS. GETTLE: . . . And you have been seeing a therapist 

for that?

[APPELLANT]: I was in CMU, the Case Management Unit. 

They closed my case out. They said I didn’t need it.

 * * *

THE COURT: CMU is the mental health component of 

Dauphin County.

MS. GETTLE: In terms of the fact that you do have a 

mental health diagnosis and you’re not taking your 

prescriptions at this time, are you having any types of 

difficulties understanding what you’re doing here today?

[APPELLANT]: No.

MS. GETTLE: Now, you’ve indicated that you do 

understand the fact that you in this case could have the 

representation of the Public Defender’s Office. You 

understand that?

[APPELLANT]: I understand that.

MS. GETTLE: You qualify for their services and Ms. [Mary 

L.] Klatt was representing you in this case.

[APPELLANT]: I understand that.
J.S45036/15

- 8 -

MS. GETTLE: And that is your─you have a constitutional 

right to have─

[APPELLANT]: And to refuse counsel also, right?

MS. GETTLE: And to refuse counsel . . . .

 * * *

MS. GETTLE: . . . In terms of the nature of the charges 

that have been filed against you, do you understand the 

elements that the Commonwealth must prove beyond a 

reasonable doubt in this case?

[APPELLANT]: In understand that.

MS. GETTLE: . . . And you’ve also been advised, and we’ve 

talked about already this morning, the different types of 

sentences if you are convicted of any of those offenses?

[APPELLANT]: I understand that.

MS. GETTLE: Do you understand that if you waive your 

right to have counsel that you are going to be bound by 

the same rules, court rules, that apply to attorneys when 

they try cases?

[APPELLANT]: I understand that.

 * * *

MS. GETTLE: Do you understand that there may be 

possible defenses to the trial and that if you because of the 

fact that you do not have a law license, you’re not 

necessarily as familiar with the rules, that you can 

permanently lose those defenses if you do not argue them 

in court? Do you understand that?

[APPELLANT]: I understand.

 * * *

MS. GETTLE: Do you understand that in the event that 

something were to occur during court that procedurally 
J.S45036/15

- 9 -

shouldn’t have happened or something of that nature and 

you don’t object, that then later on down the road you 

can’t then say on appeal . . . I missed the objection, 

you’ve lost that right to make that objection on appeal? 

Do you understand that?

[APPELLANT]: What do you mean by that?

MS. GETTLE: . . . Let’s say something were to come into 

evidence and an attorney would normally . . . object to it, 

the evidence.

If that comes into evidence and if you haven’t lodged an 

objection, then if you are convicted, you can’t argue . . . I 

missed this objection and I should have done this and 

objected here; you’ve lost the right to take that any 

further on appeal. Do you understand that?

[APPELLANT]: I understand that.

Id. at 4-9, 11-13. The trial court continued the colloquy, addressed the 

elements and permissible range of sentences for the charges against 

Appellant. Id. at 13-19. 

In the instant case, the trial court opined:

A review of the transcript reflects that the court and the 

Commonwealth’s Attorney fully addressed each requisite 

element of the colloquy. [Appellant] acknowledged that: 

he had the right to counsel; he qualified for representation 

by a public defender; he understood the nature of the 

charges and possible sentences; if he chose to represent 

himself, he would be bound by the same rules as an 

attorney familiar with such rules including rules relating to 

preservation of rights for purposes of appeal; if he invoked 

the right to remain silent, he could not present testimony 

by way of opening or closing statements. 

The court further inquired into [Appellant’s] ability to 

understand the proceedings. [Appellant] stated that he 

had been diagnosed with depression with psychotic 

features but had been discharged from care. [Appellant] 
J.S45036/15

- 10 -

consistently acknowledged that he understood the 

information provided. [Appellant’s] prior counsel . . . who 

served as standby counsel, stated that based upon her 

extensive dealings with him she had no doubt as to 

[Appellant’s] complete competency to stand trial. 

Nevertheless, out of an abundance of caution, prior to trial, 

[standby counsel] requested that a mental health advocate 

meet with [Appellant]. The advocate believed [Appellant] 

to be competent to stand trial. Further, the court placed 

on the record its observations of [Appellant] and its 

conclusion that it found [Appellant] competent to stand 

trial.

Accordingly, [Appellant] knowingly, intelligently and 

voluntarily waived the right to counsel.

Trial Ct. Op. at 5.

We find Appellant’s claim that the trial court’s failure to inquire about 

his age rendered the colloquy deficient is unavailing. Instantly, the colloquy 

satisfied Rule 121. See Pa.R.Crim.P. 121(A)(2)(a)-(f). Applying the totality 

of the circumstances test, we find that Appellant’s waiver of the 

constitutional right to counsel was knowing, voluntary and intelligent.6 See 

Phillips, 93 A.3d at 853-54; El, 977 A.2d at 1162-1163. 

Next, Appellant argues “his convictions were against the weight of the 

evidence”7 because he “was never shown to have engaged in acts which 

 

6 We note that Appellant’s date of birth was readily apparent from the Court 

of Common Pleas’ docket sheet.

7 We note that in his brief Appellant only addresses the aggravated assault 

conviction. Appellant’s Brief at 21. 

[I]t is an appellant’s duty to present arguments that are 

sufficiently developed for our review. The brief must 
J.S45036/15

- 11 -

constitute the crimes of which he was convicted, and [he] acted in selfdefense.” Appellant’s Brief at 20. He contends his “use of force on the 

victim was justifiable as he believed that such force was immediately 

necessary to protect him against the victim’s hitting him in the head with a 

towel rack.” Id. at 22. 

Our standard of review is well-established:

A motion for a new trial alleging that the verdict was 

against the weight of the evidence is addressed to the 

discretion of the trial court. An appellate court, therefore, 

reviews the exercise of discretion, not the underlying 

question whether the verdict is against the weight of the 

evidence. The factfinder is free to believe all, part, or 

none of the evidence and to determine the credibility of 

the witnesses. The trial court will award a new trial only 

when the jury’s verdict is so contrary to the evidence as to 

shock one’s sense of justice. In determining where this 

standard has been met, appellate review is limited to 

whether the trial judge’s discretion was properly exercised, 

and relief will only be granted where the facts and 

inferences of record disclose a palpable abuse of 

discretion. Thus, the trial court’s denial of a motion for a 

new trial based on a weight of the evidence claim is the 

least assailable of its rulings.

 

support the claims with pertinent discussion, with 

references to the record and with citations to legal 

authorities. Pa.R.A.P. 2119(a), (b), (c). Citations to 

authorities must articulate the principles for which they are 

cited. Pa.R.A.P. 2119(b).

This Court will not act as counsel and will not develop 

arguments on behalf of an appellant.

Commonwealth v. Kane, 10 A.3d 327, 331 (Pa. Super. 2010) (some 

citations omitted). Therefore, we need not consider whether the verdict was 

against the weight of the evidence for terroristic threats. See id.
J.S45036/15

- 12 -

Commonwealth v. Ramtahal, 33 A.3d 602, 609 (Pa. 2011) (citation 

omitted).

Additionally, our Supreme Court opined:

[A defendant] cannot prevail on his claim merely because 

he believes that all of the evidence presented at trial, his 

statement was the most truthful. It is within the province 

of the jury, as the finder of fact, to decide whether a 

witness’ testimony lacks credibility. The fact that the jury 

did not credit [the defendant’s] statement does not 

militate that the verdicts are against the weight of the 

evidence; rather, that merely establishes that the jury did 

not find [the defendant] to be credible, a conclusion that 

they [are] empowered to make.

Commonwealth v. Smith, 861 A.2d 892, 896 (Pa. 2004) (citation 

omitted).

In the instant case, the trial court opined: 

In reaching the verdict of guilty of Aggravated Assault, 

the jury considered and accepted the evidence that 

[Appellant] brutally beat [Victim] with a towel bar causing 

head injury, punched her in the stomach and strangled her 

to the point of unconsciousness.

In his Statement of Matters Complained of on Appeal, 

[Appellant] raised the claim that [he] acted in selfdefense. The record is devoid of evidence to support 

[Appellant’s] suggestion that he acted in self-defense. 

Even if the jury considered such claim, it was free to 

accept the testimony of [the] Detective . . . that he did not 

observe any bruises or injuries on [Appellant] and 

therefore conclude that [Appellant] did not act in selfdefense.

Trial Ct. Op., at 7. 
J.S45036/15

- 13 -

Victim testified that Appellant chocked her until she lost consciousness 

and told her if she reported the incident to the police he would kill her. N.T., 

6/15/14, at 46. 

Detective John O’Connor of the Harrisburg City Police Department 

testified. Id. at 73. He was shown the certification of medical records of 

Victim from the Harrisburg Hospital on the date of the incident which 

contained the discharge summary. Id. at 76. The discharge summary was 

read to the jury. It indicated that Victim reported that Appellant physically 

assaulted her on November 12, 2013. Id. at 79. Appellant hit her over the 

head, choked her around the neck, kicked her in the chest, neck, shoulder, 

abdomen and back. Id. Victim was discharged from the hospital on 

November 14th. Id. at 81.

Detective O’Connor interviewed Appellant on November 14, 2013. Id.

at 106. He stated that Appellant “was trying to make himself out to be the 

victim.” Id. at 107. Appellant told the Detective that Victim “continued to 

come at him with the metal pole.” Id. at 113. He claimed to be defending 

himself and he “pushed her again and she hit her head on the wall and 

ended up in the bathtub.” Id.

Appellant asks this Court to reweigh the evidence. This we cannot do. 

See Smith, 861 A.2d at 896. We discern no abuse of discretion by the trial 

court, finding the verdict for aggravated assault was not against the weight 

of the evidence. See Ramtahal, 33 A.3d at 609.
J.S45036/15

- 14 -

Lastly, Appellant contends the trial court abused its discretion in 

sentencing him to seven-and-one-half to fifteen years’ imprisonment and 

restitution. He avers that his sentence is excessive and unreasonable given 

his lack of a significant prior record, his mental health issues, and the court’s 

failure to inquire into his background. Appellant’s Brief at 23.

Appellant challenges the discretionary aspects of his sentence. This 

Court has stated:

[D]iscretionary aspects of [a defendant’s] sentence are not 

appealable as of right. Rather, an appellant challenging 

the sentencing court’s discretion must invoke this Court’s 

jurisdiction by satisfying a four-part test.

We conduct a four-part analysis to determine: (1) 

whether appellant has filed a timely notice of appeal, 

see Pa.R.A.P. 903 and 903; (2) whether the issue 

was properly preserved at sentencing or in a motion 

to reconsider and modify sentence, see Pa.R.Crim.P. 

720; (3) whether appellant’s brief has a fatal defect, 

Pa.R.A.P. 2119(f); and (4) whether there is a 

substantial question that the sentence appealed from 

is not appropriate under the Sentencing Code, 42 

Pa.C.S.A. § 9781(b).

An appellate court will find a “substantial question” and 

review the decision of the trial court only where an 

aggrieved party can articulate clear reasons why the 

sentence imposed by the trial court compromises the 

sentencing scheme as a whole.

Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (some 

citations omitted).

Instantly, Appellant timely filed this appeal, preserved the issue of an 

excessive sentence in his post-sentence motion, and included a statement in 
J.S45036/15

- 15 -

his brief which conforms with Pa.R.A.P. 2119(f). Accordingly, we ascertain 

whether Appellant has raised a substantial question. See id.

[W]e hold that Rule 2119(f) requires only that a concise 

statement of reasons relied upon for allowance of appeal 

allow us to determine the allegation of trial court error and 

the immediate context of the allegations as it relates to the 

prescribed sentencing norms. Thus, the Rule 2119(f) 

statement must specify where the sentence falls in 

relation to the sentencing guidelines are what 

particular provision of the Code is violated (e.g., the 

sentence is outside the guidelines and the court did not 

offer any reasons either on the record or in writing, or 

double-counted factors already considered). Similarly, the 

Rule 2119(f) statement must specify what 

fundamental norm the sentence violates and the 

manner in which it violates the norm (e.g., the 

sentence is unreasonable or the result of prejudice 

because it is 500 percent greater than the extreme end of 

the aggravated range). If the Rule 2119(f) statement 

meets these requirements, we can decide whether a 

substantial question exists. The nature of the crime 

underlying the sentence and the specific sentence in 

months or years imposed for that crime are therefore not 

required in a Rule 2119(f) statement because they are 

unnecessary to determining the existence of a substantial 

question.

Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (some 

citations omitted).

In the Rule 2119(f) statement, Appellant cites Commonwealth v. 

Kellly, 33 A.3d 638 (Pa. Super. 2011).8 In Kelly, this Court opined: “A 

claim that a sentence is manifestly excessive such that it constitutes too 

 

8 We note that the Kelly Court found that the defendant had waived the 

issue because the brief was devoid of any argument on the issue. Kelly, 33 

A.3d 640. 
J.S45036/15

- 16 -

severe a punishment raises a substantial question. See Commonwealth v. 

Mouzon, [ ] 812 A.2d 617, 624 ([Pa.] 2002).” Id. at 640. The Mouzon

Court opined:

This does not mean, however, that the Superior Court 

must accept bald allegations of excessiveness. Rather, 

only where the appellant’s Rule 2119(f) statement 

sufficiently articulates the manner in which the sentence 

violates either a specific provision of the sentencing 

scheme set forth in the Sentencing Code or a particular 

fundamental norm underlying the sentencing process, will 

such a statement be deemed adequate to raise a 

substantial question so as to permit a grant of allowance of 

appeal of the discretionary aspects of the sentence.

Mouzon, 812 A.2d at 627 (emphasis added and citation omitted). 

In the case sub judice, Appellant’s bald reference to Kelly in his Rule 

2119(f) statement does not raise a substantial question. See id. Appellant 

avers that his sentence was excessive because the court failed to consider 

his lack of a significant prior record and his significant mental health issues. 

Appellant’s Brief at 14. This does not raise a substantial question. See

Goggins, 748 A.2d at 727. Therefore, we do not address the merits of his 

challenge to discretionary aspects of his sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/30/2015
post-sentence motion on October 21, 2014. Defendant filed a Notice of Appeal on November 

On June 23, 2014, appellate counsel filed a post-sentence motion. The trial court denied the 

$25 plus costs of the proceedings. 

Count 3- 12 to 24 months in a state correctional institute consecutive to Count 2, a fine of 

proceedings; 

Count 2- 78 to 156 months in a state correctional institute, a fine of $25 plus costs of the 

as follows: 

On June 12, 2014, the court sentenced Defendant to an aggregate sentence of 7 !4 to 15 years 

of Criminal Attempt-Homicide; Defendant represented himself at trial. 

Assault and Terroristic Threats with Intent to Terrorize Another. Defendant was found not guilty 

The Defendant was tried before a jury on June 4, 2013 and found guilty of Aggravated 

RELEVANT PROCEDURAL HISTORY 

the reasons set forth, the judgment should be affirmed. 

Brian Leeks ("Defendanf') appeals the judgment of sentence imposed on June 12, 2014. For 

TRIAL COURT OPINION 

.... , 

(") 5!. 

V1 r- 

(.._ rn 

-~ 

?JO~ ;:o 

.,, rn 

N o:'.::!c-, o, -i1('?~ 

,,, (Jrrl< 

:x oon'J 

w 

c:: ""il C:~! 

.. ';;"..) 

x: 

_, 

\l) (f) 

BRIAN LEEKS 

: SUPERIOR COURT DOCKET 

. ---- ·----------------NU: :-f9<5rivfDA-ZOT4---,---------- 

----·------------------_:_...:..:..::::.:....::..::...-::_:__:_:=::.:~=..:..~--~---~~---,...._---- 

: IN THE COURT OF COMMON PLEAS 

: DAUPHIN COUNTY, PENNSYLVANIA 

v. : NO. 105 CR Z014 

COMMONWEALTH 

,,· \ 

} ·: . ) Circulated 08/31/2015 01:05 PM
2 

(Id. pp. 82-83). 

The evidence at trial revealed that on the evening of November 11, 2013, Leelawattie Jagdeo 

-----aoo--Dcfoooant-m:guoo-aboui--Defendant' s re1ationship-with-another woman. (Transeript"-fl-f- ------ 

Proceedings, Jury Trial, June 5, 2014- June 6, 2014, p. 33)(hereinafter, "N.T. 2''). The argument 

became physical, at which point Ms. Jagdeo attempted to flee from the downstairs living room of 

the home to the upstairs bathroom. (Id. p. 34). Defendant chased her to the bathroom. Ms. Jagdeo 

told Defendant she did not want to fight anymore. (Id. p. 35). However, Defendant dismantled a 

towel rack and repeatedly struck Ms. Jagdeo on the head.(/d. p. 35). Ms. Jagdeo attempted to 

shield her head from the multiple blows. At some point during the attack, Defendant hit Ms. 

Jagdeo with a shower curtain rod, kicked her in the stomach and hit her in the head with his 

hands. (Id. pp. 36-38). He then choked her to the point of unconsciousness. (Id. p. 38). When 

Ms. Jagdeo regained consciousness, she was in a bathtub filled with water, fully clothed. She 

recalled that that the water was up to her hair. (Id. p. 29). 

A neighbor, Vickie Thompson, testified that she heard the loud fighting that evening and heard 

Defendant tell Ms. Jagdeo that he was going to kill her. Ms. Thompson called 911. (Id. p. 9). An 

ambulance took Ms. Jagdeo to the hospital. 

Medical evidence revealed that Ms. Jagdeo suffered a small post traumatic scalp contusion at 

the cerebral convexity. (Id. p. 81 ). She was admitted as an inpatient with diagnoses of intramural 

hematoma of distal duodenum, proximal jejunum and brain contusion of the cerebral convexity. 

·--- F-A-e-'Pl:1Ah·B-A-eK6R01::JND--------·----------------- 

I 8, 20 I 4. Pursuant to the court's order, Defendant filed a Concise Statement of Matters 

Complained of on Appeal on December 10, 2014. 

,' ) Circulated 08/31/2015 01:05 PM
3 

Rule 12l(a)(2) requires that, 

se which satisfied the requirements of Pennsylvania Rule of Criminal Procedure 121 (a)(2). 

thorough explanation of Defendant's rights, the charges he faced and the risk of proceeding pro 

The colloquy conducted on the record on June 4, 2013 at pages 5-14 provided a complete and 

A. THE COURT AND THE COMMONWEALTH ATTORNEY CONDUCTED A 

THOROUGH AND COMPLETE COLLOQUY WHICH DEMONSTRATED THAT 

DEFENDANT KNOWINGLY) INTELLIGENTLY AND VOLUNTARILY CHOSE TO 

PROCEED PRO SE. 

DISCUSSION 

away. (Id.) 

113 ). Defendant stated that Ms. Jagdeo threatened to kill him and that he became afraid and ran 

aggressor, that he pushed her into a wall and she hit her head and foll into the bathtub.(Jd. p. 

In an interview with Detective John O'Connor, Defendant stated that Ms. Jagdeo was the 

on it which read, "Sorry for everything. I'll come back. Love always." (Id. pp. 95-96). 

Jagdco's home in disarray. (Id. p. 90). Detective O'Connor found an apology letter with a heart 

a blood smear on the neighbor, Ms. Thompson's door. (Id.) He found the living room of Ms. 

----'-Narrant of Ms-Jagdee's-home-ea-Neveraber 13, 2013. (/d.p~eteetive-G'Connor observed--·~--- 

Detective John O'Connor was assigned to this case. Detective O'Connor executed a search 

did this to her. Officer Pensyl testified that he had never seen a domestic violence victim in such 

Pensyl questioned Ms. Jagdeo. She told what happened to her, but refused to tell the officer who 

Officer Charles Pensyl responded to the domestic violence call. At the hospital, Officer 

( ) /.") Circulated 08/31/2015 01:05 PM
4 

Pa.R.Crim.P. 121 (a)(2). 

permanently lost. 

otherwise timely raised by the defendant, these errors may be 

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

defendant has many rights that, if not timely asserted, may be lost 

(f) that the defendant understands that, in addition to defenses, the 

raised at trial, they may be lost permanently; and 

charges that counsel might be aware of, and if these defenses are not 

(e) that the defendant understands that there are possible defenses to these 

procedure and that counsel would be familiar with these rules; 

counsel, the defendant will still be bound by all the normal rules of 

( d) that the defendant understands that if he 01· she waives the right to 

and/or fines for the offenses charged; 

( c) that the defendant is aware of the permissible range of sentences 

defendant and the elements of each of those charges; 

(b) that the defendant understands the nature of the charges against the 

-------------the-defe11dant-is-indigent;·---·---~---------------- 

represented by counsel, and the right to have free counsel appointed if 

the following information from the defendant: 

voluntary and intelligent, the judge or issuing authority, at a minimum, shall elicit 

To ensure that the defendant's waiver of the right to counsel is knowing, 

.\ 

; 

Circulated 08/31/2015 01:05 PM
5 

A. THE WEIGHT OF EVIDENCE SUPPORTS THE VERDICT. 

The court properly denied the Defendant's Motion for a New Trial or Arrest of Judgment 

which challenged that the verdict was against the weight of the evidence. 

A review of the transcript reflects that the court and the Commonwealth's Attorney fully 

addressed each requisite element of the colloquy. Defendant acknowledged that: he had the right 

to counsel; he qualified for representation by a public defender; he understood the nature of the 

· -- -----clmrges·~arrd-pussibh~· sentenc-es;·if-Ire-c-hoseto represent rnllTSelf;he wou){I-bebmmd-bylhe same 

rules as an attorney familiar with such rules including rules relating to preservation of rights for 

----ttplli'j3oses of appealjif-he invoked-the right to-remain-silent, he-eoold--flet-prescnt testwim-owll)\1-' ...,b,~1-------- 

way of opening or closing statements. (N.T. 2, pp. 6-19). 

The court further inquired into Defendant's ability to understand the proceedings. Defendant 

stated that he had been diagnosed with depression with psychotic features but had been 

discharged from care. (Id. p. 6). Defendant consistently acknowledged that he understood the 

information provided. Defendant's prior counsel, Attorney Mary Klatt, who served as standby 

counsel, stated that based upon her extensive dealings with him she had no doubt as to 

Defendant's complete competency to stand trial. Nevertheless, out ofan abundance of caution, 

prior to trial, Attorney Klatt requested that a mental health advocate meet with Defendant. The 

advocate believed Defendant to be competent to stand trial. (Id. pp. 23-24). Further, the court 

placed on the record its observations of Defendant and its conclusion that it found Defendant 

competent to stand trial. (Id. p. 24) 

Accordingly, Defendant knowingly, intelligently and voluntarily waived the right to counsel. 

·' ) Circulated 08/31/2015 01:05 PM
6 

the verdict of guilty at each charge. Findings as to "the weight of the evidence [are] exclusively 

For Appellee, with complete citation to the testimony, demonstrate that ample evidence supports 

The facts set forth briefly in this Opinion and at greater length in the Commonwealth's Brief 

convicted." (Defendant's Post-Sentence Motion, para. 7). 

Defendant was never shown to have engaged in acts which constitute the crimes of which he was 

"the verdict was against the weight of the evidence so as to shock one's sense of justice where 

unsupported by the weight of evidence. Rather, Defendant asserts only the boilerplate claim that 

nor Statement of Matters Complained of On Appeal identify which of the charges arc 

We note at the outset that neither Defendant's Motion for a New Trial nor Arrest of Judgment 

Commonwealth v. Whiteman, 336 Pa. Super 120, 124-25, 485 A.2d 459, 461-62 (1984), 

citing, Commonwealth v. Taylor, 324 Pa. Super, 420, 425, 471 A.2d 1228, 1229-30 (1984); 

Commonwealth v. Sample, 321 Pa. Super.457, 468 A.2d 799 (1983)(allocatur denied); 

Commonwealth v. Miller, 303 Pa. Super. 504, 450 A.2d 40 (1982) and Commonwealth v. Vogel, 

501 Pa. 314, 461 A.2d 604 (1983) cert. denied, ~U.S._, 104 S.Ct. 1603, 80 L.Ed. 2d J 33 

(1984). 

Sufficiency of the evidence and weight of evidence are discreet inquiries. 

In reviewing the sufficiency of the evidence, we must view the evidence presented 

---~anu-aH-remrmmb-Jeinferences1akentherefrom intneltgnt most favoraoletotn~e---- 

Commonwealth, as verdict winner. The test is whether the evidence> thus viewed> 

is sufficient to prove guilt beyond a reasonable doubt. .. A motion for a new trial on 

grounds that the verdict s contrary to the weight of the 

----~·----evideace concedes that there is sttfficient-cvidenee-to-sustain-the--ver"Hdwic4-t-"'buTMtt------------- 

contends> nevertheless, that the verdict is against the weight of the evidence. 

Whether a new trial should be granted on grounds that the verdict is against 

the weight of the evidence is addressed to the sound discretion of the trial 

judge, and his discretion will not be reversed on appeal unless there has been 

an abuse of discretion ... The test is not whether the court would have decided the 

same way but whether the verdict is so contrary to the evidence as to make 

the award of a new trial imperative so that right may be given another opportunity to 

prevail. 

sufficiency" as follows: 

The Superior Court has explained the "crucial distinction between evidentiary weight and 

.) Circulated 08/31/2015 01:05 PM
7 

on the Defendant and therefore conclude that Defendant did not act in self-defense. 

accept the testimony of Detective John O'Connor that he did not observe any bruises or injuries 

suggestion that he acted in self defense. Even if the jury considered such claim, it was free to 

Defendant acted in self-defense. The record is devoid of evidence to support Defendant's 

In his Statement of Matters Complained of on Appeal, Defendant raised the claim that 

her in the stomach and strangled her to the point of unconsciousness. 

evidence that Defendant brutally beat Ms. Jagdeo with a towel bar causing head injury, punched 

In reaching the verdict of guilty of Aggravated Assault, the jury considered and accepted the 

18 Pa. C.S.§2702. 

indifference to the value of human life[.] 

intentionally, knowingly or recklessly under circumstances manifesting extreme 

(1) attempts to causes serious bodily injury to another, or causes such injury 

·~------A-person is guiltyof-aggreveted-assaelt-if-her- ------·~---------- 

provides: 

·-----~1mevtcl"enceeastlysatisfieo1heelements oftliecliarge ofAggravatea Assaulr.The statute 

2003). 

credibility of the witnesses." Commonwealth v. Champney, 574 Pa. 435, 832 A.2d 403, 408 (Pa. 

for the finder of fact who is free to believe all, part, or none of the evidence, and to determine the 

Circulated 08/31/2015 01:05 PM
8 

I The court ordered Defendant removed from the courtroom following Defendant's profanity laced outburst. 

on the record. 1The court sentenced Defendant as follows: 

The court properly imposed a sentence in the aggravated range and stated its reasons therefore 

arguments. 

and to inquire as to Defendant's mental health concerns. The transcript belies Defendant's 

sentence was excessive and unreasonable and failed to consider Defendant's lack of prior record 

Defendant challenges the discretionary aspects of the sentence by his assertion that the 

B. THE COURT PROPERLY EXERCISED ITS DISCRETION IN SENTENCING 

DEFENDANT. 

Defendant' s Motion for a New Trial or An-est of Judgment. 

Therefore, the weight of the evidence supports the verdict and the trial court properly denied 

as Defendant's state that he was going to kill her. (N.T. 2, pp. 10-12). 

heard loud fighting noises at the victim Ms. Jagdeo's home next door and a voice she identified 

The jury heard and accepted testimony of the victim's neighbor, Ms. Thompson, that she 

18 PA.C.S. § 2706 (A)(l). 

*** 

(1) commit any crime of violence with intent to terrorize another; 

---~eommanieates, either directly or indirectly, a threat to: 

(a) Offense defined.- A person commits the crime of terroristic threats if the person 

'I'e11'{)ristic 1'~ts. 

in relevant part: 

Threats with Intent to Terrorize Another pursuant to 18 PA.C.S. § 2706 (A)(l) which provides, 

Further, the weight of evidence well supports the verdict of guilty on the charge of Terroristic 

Circulated 08/31/2015 01:05 PM
9 

THE COURT: On count two, the aggravated assault, the Court presided over the 

proceeding, Also, observed some things in the courtroom and was at least informed of 

what happened out at the prison with the assaults. 

This assa~lt·wasimrtic1Thn:Iy-dtsconcerting,tl~lengtlroftr,mttmgher 'yV_lt_n_a_m_e_t_a_l _ 

towel rack, poking her with a shower rod to the extent she had internal bleeding, bleeding 

- ---- ..... o-n-,.,her-bram,aad--ether-injuries that she-had. So v.·e recogt1i-ze-thtt•'f-.------------- 

I do believe I'm going to [g]o outside the standard range and impose a sentence of not 

less than 78 months to 156 months, fine of $25 and costs of prosecution. 

Condition of his sentence would be that he gets the mental health treatment, anger 

management, and any other mental health treatment that is recommended by a 

professional, while he is incarcerated. 

He can't keep himself in prison without fighting with others, so I have a serious 

concern about public safety issues should he be released without any treatment while he 

is in prison. 

On the terroristic threats count, at count three, impose a sentence of not less than one 

year nor more than two years in the state correctional institute, and that will run 

consecutively to the previous count; $25 fine and costs of prosecution. 

Twill give him the time credit from November 14, 2013 until today's date. 

We will set up a time to read him his appellate rights. We will do that promptly. Again, 

we are not going to start the thirty days until he knows his rights. We can do that from the 

prison. 

The restitution amount is $768.30. 

(Transcript of Proceedings, June 12, 13, 2014, pp. 5-9). 

Circulated 08/31/2015 01:05 PM
10 

Accordingly, the court properly denied Defendant's Post-Sentence Motion. 

deemed such treatment necessary to reduce danger to the community upon Defendant's release. 

concerns in imposing the condition that Defendant undergo mental health treatment. The court 

Also, contrary to Defendant's argument, the court considered Defendant's mental health 

Jagdeo. 

aggravated range proper based upon the particularly brutal and prolonged attack upon Ms. 

As reflected in its observations on the record, the court considered a sentence in the 

Johnson, 666 A.2d 690,693(P A. Super. I 995). 

Commonwealth v. Rodda, 723 A.2d 212, 214(Pa. Super. 1999)(quoting Commonwealth v. 

'Sentencing is a matter vested in the sound discretion of the sentencing judge, and a 

sentence will not be disturbed on appeal absent a manifest abuse of discretion.' In this 

context> an-abuse of discretion-4s--net-shown---merely by an error in judgment.Ritthe1.,-thc 

appellant must establish by reference to the record that the sentencing court ignored or 

misplaced the 1aw, exercised its judgment for reasons of partiality, prejudice, bias or ill 

will, or arrived at a manifestly unreasonable decision. 

and [imposed] a sentence [that was] consistent with the protection of the public, the gravity of 

and the particular circumstances of the offense in light of the legislative guidelines for sentencing 

In the exercise of its discretion, the court properly considered "the character of the defendant 

! ) 

Circulated 08/31/2015 01:05 PM
11 

Ryan Lysaght, Esq., Dauphin County Public Defender's Office 

Joseph Cardinale, Esq., Dauphin County District Attorney's Office 

Distribution: 

June 26, 2015 

o EWIS 

PRESIDENT JUDGE 

FOR TODD A HOOVER 

For all of the foregoing reasons, the judgment of sentence should be affirmed. 

CONCLUSION 

Circulated 08/31/2015 01:05 PM