J-A10035-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DASHAUN LAQUINN JAMISON

Appellant No. 1262 MDA 2013

Appeal from the Judgment of Sentence March 25, 2013

In the Court of Common Pleas of Northumberland County

Criminal Division at No(s): CP-40-CR-00000068-2011

BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.: FILED MAY 05, 2015

Appellant DaShaun Laquinn Jamison appeals from the judgment of 

sentence entered in the Northumberland County Court of Common Pleas. 

Appellant’s counsel filed an Anders1 brief and a motion for leave to 

withdraw as counsel. We conclude Appellant’s claim that he was denied his 

right to counsel is not frivolous. We further find counsel failed to comply 

with the technical requirements of Anders and Santiago2as to Appellant’s 

denial of his right to counsel claim. We, therefore, deny counsel’s motion for 

leave to withdraw as counsel and remand for counsel to prepare an 

____________________________________________

1 Anders v. California, 386 U.S. 738 (1967).

2 Commonwealth v. Santiago, 978 A.2d 349 (Pa.2009).
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advocate’s brief as to whether Appellant was denied the right to counsel. 

We find the remaining issues raised in the Anders brief to be frivolous.

On November 29, 2010, a criminal complaint charged Appellant with 

two counts of aggravated assault, two counts of criminal attempt 

(aggravated assault), and two counts of simple assault.3 Police Criminal 

Complaint at 2-3. The complaint alleged that on November 18, 2010, 

Appellant, a prisoner at the State Correctional Institution at Coal Township, 

assaulted two correctional officers. Id. On January 4, 2011, public defender 

James Rosini represented Appellant at a preliminary hearing. On March 31, 

2011, Mr. Rosini filed a motion to withdraw, alleging Appellant failed to 

cooperate with counsel, insisted counsel file frivolous motions, and 

requested counsel issue subpoenas to witnesses who would not assist the 

defense. The motion also stated Appellant requested that Mr. Rosini 

withdraw. Motion to Withdraw, 3/31/2011, at ¶¶ 2-7. Although the trial 

court scheduled a hearing on the motion to withdraw for April 21, 2011, it 

granted the motion on April 15, 2011, ordered the court administrator to 

appoint new counsel, and cancelled the hearing. Order, 4/15/2011.4 

____________________________________________

3 18 Pa.C.S. § 2702(a)(3), 901(a), and 2701(a)(1), respectively.

4 The Anders brief, the Commonwealth, and the trial court repeatedly state 

Mr. Rosini withdrew because he left the Public Defender’s Office. N.T., 

3/8/2012, at 3, 7; N.T., 5/23/2012, at 3 (stating John Broda was Appellant’s 

second counsel); Opinion, 1/6/2014, at 1 n.2; Anders Brief at 9; Appellee’s 

Brief at 3. Further, the trial court did not rely on Mr. Rosini’s motion to 

(Footnote Continued Next Page)
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Following Mr. Rosini’s departure, Michael Seward from the Public Defender’s 

Office represented Appellant. 

On July 7, 2011, the trial court scheduled Appellant’s trial for 

November 7, 2011. Trial Order, 7/7/2011. The trial court ordered that 

pretrial motions be filed within 60 days. Id. On October 14, 2011, 

Appellant filed a pro se motion for appointment of new counsel. On 

November 4, 2011, Mr. Seward filed a motion for leave to withdraw from 

representation. On November 10, 2011, Mr. Seward filed an application for 

a trial continuance because he was awaiting additional discovery. 

Application for Trial Continuance, 11/10/2011. On January 10, 2012, the 

trial court scheduled a pretrial conference for February 3, 2012. Criminal 

Pretrial Order, 1/10/2011.5 On February 6, 2012, Appellant filed a pro se

application for a continuance requesting additional time to obtain counsel. 

Application for Continuance, 2/6/2012. That same day, the trial court 

appointed John Broda, also from the Public Defender’s Office, to represent 

Appellant.6 

(Footnote Continued) _______________________

withdraw when it found Appellant was not denied his right to counsel. 

Opinion, 1/6/2012, at 1-2.

5 The trial court had issued prior orders scheduling trial and/or pretrial 

proceedings on various dates in January and February. 

6 This order was dated January 3, 2012, but filed February 6, 2012. It 

states the trial court “previously granted Defendant’s Motion to Remove 

Counsel/Defense Counsel’s Motion to Withdraw.” Order, 2/6/2012.
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On February 10, 2012, Mr. Broda filed a motion for leave to withdraw 

as counsel. On March 8, 2012, the Honorable Robert B. Sacavage conducted 

a hearing on Mr. Broda’s motion. At the hearing, the following occurred:

THE DEFENDANT: Your Honor, the rationale for Mr. 

Seward was that he wasn’t communicating with me, he 

was disagreeing as far as receiving certain evidence that I 

think we would need for trial, he didn’t want to go to trial.

THE COURT: So I granted your motion and appointed 

somebody else for you.

THE DEFENDANT: But I feel as though Mr. Broda – he’s 

from the same office – and as soon as I talked to Mr. 

Broda, he said him and Mr. Seward had already talked 

about it. I said I felt as though it’s a conflict that he’s from 

the same office. I challenged Mr. Seward on his – his 

competence and I just feel that it’s a conflict of interest. 

. . . 

MR. BRODA: I don’t believe it’s the nature of that. Again, 

I believe it’s a personal conflict with Mr. – as [Mr.] 

Seward’s – I don’t mean to put words in Mr. Jamison’s 

mouth, but I believe he wasn’t happy with Mr. Seward’s 

representation in the way he was handling his case.

THE DEFENDANT: That’s correct.

MR. BRODA: So that’s –

THE COURT: Why do you think Mr. Broda can’t help you?

THE DEFENDANT: Because the conflicts office, I just don’t 

think that they’re correctly representing me. And like I 

said, I feel as though Mr. Seward felt some type of way as 

far as how I challenged his – you know, his competence. 

And like I said, as soon as I talked to Mr. Broda, it seemed 

like they already had discussion about my case already 

[sic].

THE COURT: Well, I would expect that they would have 

to, whoever the prior counsel was. In fact –
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THE DEFENDANT: No, I mean –

THE COURT: -- the rules of ethics require[] that a lawyer 

who is assuming the case –

THE DEFENDANT: I don’t mean it – I mean, as far as not 

wanting to take this case to trial, that’s the first thing, it 

don’t seem like he had any confidence in it. Like Mr. 

Seward has already said like this is a loss or its not triable, 

I should take a plea. They want me to take an open plea. 

I feel as though it’s a conflict in that aspect, that’s just 

how I feel.

. . . 

MR. BRODA: I did advise him of my opinion of his 

defense.

THE DEFENSE: His opinion was the same as Mr. Seward. 

That’s why I feel as though they already talked and Mr. 

Seward’s already, you know, put in his mind that I need to 

take a plea. His opinion was the same thing, if not exactly 

what Mr. Seward was saying. That’s just how I feel.

THE COURT: Okay.

THE DEFENDANT: I know I can't pick what attorney I have, 

I understand that, I just want an attorney that's going to 

represent me. I’m ready for trial. That’s the first thing I 

say, I’m trying to go to trial. I’m not trying to take no 

plea. So for someone to keep trying to convince me to 

take a plea — I’m not guilty, why should I plead guilty to 

something I didn’t do. 

I also got a problem, Mr. Broda said he’s been to trial like 

fifteen times and only won two. Well, I need a lawyer 

that’s going to represent me and willing — that has 

experience in trial, that’s going to fight for me.

THE COURT: Well, the Court will — and this is your last 

opportunity to reconsider your decision because I am not 

inclined to just keep removing lawyers and appointing 

somebody that you’re going to wait us out until you are 

happy with [sic]. There are two individuals — three 

individuals, the first one left the case through other 

employment; the second one, you disagreed with their 

performance; now, what I’m hearing here is another 
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performance-related argument. So you either have Mr. 

Broda, or if you don’t want him around, I will allow him to 

withdraw and appoint him as standby counsel and you can 

represent yourself.

THE DEFENDANT: That’s my only choice?

THE COURT: Well, you can take Mr. Broda. I’m not going 

to appoint another person. But I will assign — if you're 

going to be representing yourself, I will require him to be 

in the courtroom, anytime you can reconsider bringing him 

back and he will be readily available for you. So, do you 

want him to withdraw?

THE DEFENDANT: I don’t want to represent myself, I don’t 

know the law, I guess I’m forced to stay with Mr. Broda.

THE COURT: Mr. Broda, you will continue to – Mr. Broda, I 

will deny your motion to withdraw.

N.T., 3/8/2012, at 3-8.

On March 23, 2012, the trial court scheduled a pretrial conference for 

May 4, 2012, jury selection for May 7, 2012, and trial for May 18, 2012. 

Criminal Pretrial Order, 3/23/2012. On May 7, 2012, the Honorable Charles 

H. Saylor conducted jury selection for Appellant’s trial. At the jury selection, 

Mr. Broda requested a sidebar conference, which Appellant attended. The 

following exchange occurred:

MR. BRODA: Yes, Your Honor. Mr. Jamison told me in his 

letter before and he’s telling me again to make a 

statement to the judge. I mentioned that – he’s saying 

he’s not ready to proceed to trial. I mean, judge made a 

pretrial determination –

. . . 

MR. BRODA: Okay. Your Honor, the judge made a 

determination that the case is ready to go to trial. Mr. 

Jamison is saying he’s not ready to proceed.

THE COURT: And the – well, what’s the basis.
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MR. BRODA: Well, he’s wanting – asking me to file 

motions and saying he has inmates from other institutions 

he wants to have subpoenaed and that hasn’t been 

completed for this case to go to trial.

THE COURT: When is the trial scheduled for?

MR. BRODA: May 18th.

THE COURT: So that’s 11 days off so we will pick the jury 

today and whatever motions you – you want to file 

between now and then, you can do so but we will – I think 

perhaps many of them can be between now and the 18th, 

but we’ll proceed today.

N.T., 5/7/2012, at 3-4. The jury selection briefly resumed before the 

following exchange occurred at sidebar:

THE DEFENDANT: I don’t understand why it wasn’t 

brought up at the pretrial. If it was brought up at pretrial 

then this all would have been addressed. I would like all 

this to be on record because of dealing with Mr. Broda.

I requested Mr. Broda to file a habeas corpus on the 

grounds that the Commonwealth didn’t present enough 

evidence on the charges held for trial. He failed to do that. 

I requested Mr. Broda to file an omnibus pretrial motion[] 

requesting an appointment of an investigator for this case. 

He failed to do that. Dismiss all the charges and 

information. He failed to do that. Sequester enough 

evidence. He failed to do that.

Continuously prepare for trial, he’s failed to do that. I 

requested Mr. Broda to file a subpoena for [personnel] files 

of all officers and CO’s that would testify in this case to 

prepare for my defense.

THE COURT: Let me – you’re reading from something, 

right?

THE DEFENDANT: Yes, sir.

THE COURT: How about if you just submit that?

THE DEFENDANT: What?
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THE COURT: How about if you just submit that?

THE DEFENDANT: This is a rough draft, Your Honor. It’s 

just a rough draft. I prepared it for pretrial. It’s not that 

long. It’s only –

THE COURT: What I told Mr. Broda was we pick the jury 

and then we’ll consider whatever motions he wants to file.

THE DEFENDANT: But he’s not filing any. He’s telling me 

–

THE COURT: He has the opportunity to file these motions.

THE DEFENDANT: But he’s telling me he’s not going to file 

them, Your Honor. 

THE COURT: Well –

THE DEFENDANT: He’s told me straight up.

THE COURT: We’re going to pick the jury today.

THE DEFENDANT: All right. So if we pick the jury today 

and then it would be standby and then if we don’t get 

these filed, the things that we’re requesting at the time of 

trial, will it be continued?

THE COURT: We will deal with those all those motions at 

some point, but we’re picking the jury.

THE DEFENDANT: I don’t understand that because then 

with the rules of court I thought these motions have to be 

filed before – before – seven days before pretrial, which is 

why I told Mr. Broda to file them. So how is it that we file 

them between now and a trial?

THE COURT: We’ll deal with any other motions at that 

time. The jury will be picked.

THE DEFENDANT: I would at least like to read the rest of 

this so that it could be on the record.

THE COURT: Okay. Keep your voice down.

THE DEFENDANT: All right. Where did I stop at? I 

stopped at Mr. – I was requesting Mr. Broda to file a 

subpoena for [personnel] files of all officers and CO’s that 

would testify in this case and prepare for a defense. I 
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think I have a right to those files. Mr. Broda failed to do 

that. He failed to contact me since the denial of the 

motion for Mr. Broda to withdraw as defense counsel. Mr. 

Broda has not spoken to –

MR. TOOMEY: What was that last one?

THE DEFENDANT: Mr. Broda has failed to contact me since 

the denial of the motion to withdraw as he – when we had 

the motion to withdraw as my defense counsel. Mr. Broda 

has not spoken with me about any trial strategy. 

I requested Mr. Broda to file subpoenas to have any of the 

officers who can testify for this case. He’s failed to do 

that. And the last one, Mr. Broda has failed to file 

transportation orders for all the prison witnesses that’s 

needed for trial. I requested Mr. Broda to provide me with 

a copy of the [b]ill of [p]articulars and he failed to do that. 

I filed a motion myself requesting the [b]ill of [p]articulars 

and I still haven’t gotten that.

THE COURT: I understand – is that [President] Judge 

Sacavage who already ruled this that it’s ready for trial?

MR. TOOMEY: Your Honor, we have – we had – he filed a 

motion that he wanted to represent himself or Mr. Broda to 

withdraw.

THE DEFENDANT: May I ask –

MR. TOOMEY: And the judge gave him the option of either 

he’s going to have Mr. Broda as his attorney or he could 

represent himself and have Mr. Broda as standby. He 

elected at that time – correct me if I’m wrong.

THE DEFENDANT: I elected to keep Mr. Broda because I 

don’t know nothing about the law. But at the same time 

Mr. Broda is refusing – he’s telling me straight to my face 

that he’s not going to file none of these motions.

THE COURT: Did you tell that – at the earlier sidebar with 

Mr. Broda, didn’t you say that [President] Judge Sacavage 

ruled that this case was ready to go to trial?

MR. TOOMEY: He said it’s – he said it’s ready for trial. I 

said, it’s an old case. November of 2010 was when the 
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incidents happened and I’m ready for trial. I have my 

witnesses subpoenaed, Mr. Broda had subpoenaed certain 

inmates from the State Correctional Institution, I filed a 

motion [in] limine that I wanted an offer of proof as to 

what these inmates were going to say because their 

inmates and it’s a security risk for the courthouse to have 

all these SCI inmates in our county jail and county facilities 

waiting for testimony. I was coordinating with the 

Correctional Institution of Coal Township to have a video 

conference to determine that the admissibility –

THE COURT: But question was [sic] these issues have 

already been ruled on?

THE DEFENDANT: No, they have not.

MR. TOOMEY: He has not filed any other motions.

THE COURT: There’s no –

THE DEFENDANT: And that is because Mr. Broda is 

refusing to file these motions. How can I prepare my –

how can I fight this case if I don’t have the records of the 

officers? This is case is based [sic] solely on the testimony 

of the officers.

THE COURT: But all the – all the witnesses are being 

brought in.

THE DEFENDANT: No.

THE COURT: You’ve subpoenaed everybody and is [sic] 

ready to go?

MR. TOOMEY: Yes, sir.

THE COURT: And you have some witnesses that you want 

to subpoena?

THE DEFENDANT: Yes. I have more witnesses. Staff 

members that were there.

THE COURT: You can do that by May 18th so we can 

proceed.

THE DEFENDANT: He’s telling me no.

THE COURT: Okay. I made –
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THE DEFENDANT: Are you going to order him to do that? 

He’s telling me no. Are you going to order him to file the 

motions that I asked and subpoena the witnesses?

THE COURT: I can’t order him to do that. We’re here for 

purposes of jury selection and we’re going to proceed with 

the jury selection. That’s all.

N.T.5/7/2012, at 6-12. Following the above exchange, Mr. Broda 

represented Appellant at jury selection.

On May 11, 2012, while still represented by Mr. Broda, Appellant filed 

a “Motion for the Subpoena of Witnesses” and a “Motion for the Subpoena of 

Documents and Records,” and on May 15, 2012, Appellant filed an “Omnibus 

Pretrial Motion for Relief.” 

On May 21, 2012,7 Appellant filed a pro se motion to withdraw counsel 

and Mr. Broda filed a motion to withdraw as counsel. That same day, 

Appellant filed a motion for continuance. On May 23, 2012, the Honorable 

William Harvey Wiest held a hearing. The following exchange occurred:

[THE COURT]: Mr. Jamison, again, on the same day that 

Mr. Broda filed, May 21st, you filed a handwritten motion to 

withdraw counsel, I believe, requesting the same thing, 

that Mr. Broda no longer be involved in your case and that 

you be allowed to proceed pro se; is that correct?

[APPELLANT]: That is correct.

[THE COURT]: Okay. Anything else you would like to say 

about that?

____________________________________________

7

 It appears Appellant’s trial was continued from the May 18, 2012 trial 

date. The certified record, however, does not contain an order continuing 

the trial or setting a new trial date.
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[APPELLANT]: Well, I was wondering, I was requesting 

within the motion – I was asking for a new counsel. If 

that’s not for not, then I will proceed pro se. I was already 

shot down once by [President Judge] Sacavage for new 

counsel, so if I’m going to be shot down again, I’ll proceed 

pro se.

[THE COURT]: It’s the second counsel you have had. 

When your counsel is appointed, you don’t have the 

choices that you do if you are hiring counsel on your own.

I’m not going to appoint new counsel for you, but I will 

appoint Mr. Broda to remain as stand-by counsel. You will 

be conducting your own trial, but he will be in the 

courtroom, so that if at any point you have any questions 

you would like to confer with him on, you will have that 

opportunity. But he will not take an active role in it; only 

to consult with you.

[APPELLANT]: All right. I understand that. I understand 

that. Would it be possible that I be appointed another 

different stand-by counsel? Me and Mr. Broda just don’t 

see eye to eye. He disagree with me on everything.

[THE COURT]: No, sir. Again, this is your second counsel. 

We have done what we needed to in appointing counsel for 

you. We do not have to keep appointing new ones.

In addition – I know this is not on the schedule – but you 

had several motions filed, handwritten motions filed, the 

11th of May two of them and one on the 15th of May, 

entitled motion for subpoena of witnesses, motion for 

subpoena of documents and records, and the last one 

omnibus pretrial motion for relief.

[APPELLANT]: That’s what I filed for a continuance on.

[THE COURT]: That is part of the omnibus pretrial. I’m 

going to deny all of these motions on the basis that they 

are not timely filed. We have a jury selected. We are 

going to go ahead with the jury trial on Friday. All the 

witnesses that you subpoenaed, the arrangements have 

been made for them to be here, so it will not be delayed. 

It will occur on Friday as scheduled.
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[APPELLANT]: I disagree that it is timely filed now to 

represent myself [sic]. I know I have to – how am I not 

supposed to be prepared for trial, seeing how Mr. Broda 

and I disagreed on the motions? You yourself told me you 

gave me leave of court at jury selection to file the motions.

[THE COURT]: I did not conduct jury selection.

MR. TOOMEY: It was Judge Saylor.

MR. JAMISON: He gave me leave of court to file all the 

motions necessary. That’s the reason I filed them myself, 

because Mr. Broda refused to file them. 

. . . 

THE COURT: So all these motions are going to have to be 

ruled upon?

. . .

[THE COURT]: Are you prepared, Mr. Jamison, to defend 

those motions or to present those motions and any 

testimony required with them now?

[APPELLANT]: No, I am not, Your Honor.

. . . 

THE COURT: After consideration with my law clerk and the 

statement made by Judge Saylor at the time of jury 

selection, I’m going to grant [Appellant] an opportunity to 

present his motions. We will schedule a half day for it as 

soon as possible. Of course, you will have notice of when 

that half day is going to be. It probably will not be until 

sometime next month. 

Of course, that means a delay in the trial.

N.T., 5/23/2012, at 2-5.

Appellant filed additional pro se pre-trial motions. On August 30, 

2012, Judge Saylor held a hearing on Appellant’s motions, which he denied. 
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On February 11, 2013,8 prior to jury selection, the following exchange 

occurred in the chambers of President Judge Sacavage:

THE COURT: Now, you have a right to remain silent. You 

understand your rights of a trial. You don’t have to put on 

a defense, you don’t have to call any witnesses. If you 

choose to present a defense, then – and you choose to 

testify, your character then comes into –

THE DEFENDANT: I understand that.

THE COURT: – issue. Also the – you have – I think I 

discussed this with you at an earlier time. Your decision to 

represent yourself is up to you. You’re an intelligent, 

competent adult, and – but you must be responsible and 

follow the same rules of trial that anyone has to.

THE DEFENDANT: I understand, sir.

THE COURT: So –

MR. TOOMEY: Was there a waiver of his right to have an 

attorney represent him, a written waiver?

THE DEFENDANT: I waived my rights in front of –

MR. TOOMEY: I thought there may have to be a written 

waiver.

THE DEFENDANT: Well, I filed the motion myself to 

withdraw counsel and everything. I have the motion here, 

I believe, Your Honor.

THE COURT: Here’s an August 21st, 2012, footnote 

number one. Defendant’s motion to withdraw counsel was 

filed May 21st, 2012, is moot as the defendant has elected 

____________________________________________

8 Between September 2012 and February 2013, Appellant filed various 

motions, which Judge Saylor ruled upon in a January 25, 2013 order. He 

granted Appellant’s motion for communication, denied his motion for 

reconsideration, denied his motion for disqualification, and granted in part 

and denied in part his motion for additional juror information questionnaires. 

Order, 1/25/2013. In addition, trial was continued on various occasions.
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to represent himself and [Mr.] Broda has been appointed 

standby.

THE DEFENDANT: Did we have a hearing that day in front 

of [Judge] Wiest, and he asked me, do I want to represent 

myself. Because I had filed the motion and then we had 

the hearing. Remember we had the hearing, and he asked 

me if I wanted to represent myself, so I understand 

everything.

THE COURT: I think the District Attorney’s asking about –

it’s a one page written form. The form advises you of your 

right to counsel. It discusses what an attorney can do for 

you. I will go over the contents of it at this point.

The Court has to make a decision that you’re – has to 

agree that you should represent yourself because you are 

making an intelligent, voluntary, competent, knowing 

decision to do so, and that had never really come into 

play. My observations of you are that you are competent, 

intelligent, and you’re doing this voluntarily.

An attorney – you had previous attorneys before 

representing you, so in your experience you have some 

idea, I take it, as to what attorneys can do for you. Is that 

correct?

THE DEFENDANT: Yes, I do.

THE COURT: An attorney can help pick a jury, can file 

motions on your behalf. And this is a 2011 case. There 

have been many motions filed and disposed of. Your 

attorney can cross-examine witnesses that are brought 

against you. An attorney can [negotiate] a plea 

agreement, could represent you at trial, represent you on 

appeal, make objections to evidentiary matters, to 

procedural matters, so that they can be preserved for later 

review at the appellate court level.

He can make opening statements, closing arguments 

during the trial, and generally represent you and protect 

your rights under the constitution at all stages of the 

proceedings. And you are aware of this?

THE DEFENDANT: Yes.
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THE COURT: And there has been attorneys [sic] 

appointed, and at this juncture Mr. Broda was appointed 

by this Court in August to act as standby counsel. 

Correct?

THE DEFENDANT: Yes.

THE COURT: And he is here. He’s in the room here at the 

time. And, Mr. Broda, for the record you are still standby 

counsel, are you not?

MR. BRODA: Yes, Your Honor.

THE COURT: So you will be sitting in the courtroom 

behind the defendant.

MR. BRODA: Yes, Your Honor.

THE COURT: If you wish to change your mind, take him 

on as counsel, you may do so at any time.

THE DEFENDANT: I understand, Your Honor.

THE COURT: I’m satisfied that he can represent himself. 

N.T., 2/11/2013, at 10-13.

A jury convicted Appellant of one count of aggravated assault and 

acquitted him of all other charges. Verdict, 2/25/2013. On March 25, 2013, 

the trial court sentenced Appellant to three to six years’ imprisonment. On 

April 5, 2013, Appellant filed post-sentence motions, which the trial court 

denied on May 13, 2013. On July 11, 2013, a letter from Appellant to 

President Judge Sacavage was docketed.9 That same day, the trial court 

issued an order treating the letter as a motion for allowance of appeal nunc 

pro tunc, granting the motion, and ordering the clerk of courts to file 

____________________________________________

9 The letter stated Appellant filed a notice of appeal on May 28, 2011 and 

had the prison cash slips as proof of filing. 
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Appellant’s notice of appeal. On August 2, 2013, Appellant filed a pro se

concise statement of errors complained of on appeal pursuant to 

Pennsylvania Rule of Appellate Procedure 1925(b) and the trial court issued 

its Rule 1925(a) opinion on January 6, 2014. 

On May 30, 2014, Appellant filed an application for appointment of 

counsel. On June 18, 2014, this Court ordered that the trial court appoint 

counsel to represent Appellant on appeal. The trial court appointed counsel 

on July 21, 2014. On November 14, 2014, counsel filed an Anders brief and 

a motion for leave to withdraw.

The Anders brief raises the following issues:

1. Denial of Right to Counsel: The [trial court] erred in not 

providing counsel to [Appellant] at trial.

2. Excluded Hearsay: The [trial court] erred in excluding 

certain hearsay evidence which [Appellant] wished to use 

at trial.

3. Motion to Suppress: The [trial court] erred in not 

suppressing video footage.

4. Brady Violation: The trial court erred in not sanctioning 

the Commonwealth for untimely disclosure of certain video 

footage.

5. Inconsistent Verdict: The guilty verdict should be 

thrown out as inconsistent with the acquittal on the other 

charges.

6. Evidence Not in Possession of the Jury: The [trial court] 

erred in not allowing the jury to possess certain evidence 

in deliberations.

7. Weight and Sufficiency of the Evidence: The verdict was 

contrary to the weight and sufficiency of the evidence.
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Anders Brief at 6 of 20. 

When appellate counsel files an Anders brief, we must conduct an 

independent review of the record to ensure there are no non-frivolous 

arguments that could be raised on appeal.10 See Santiago, 978 A.2d at 

359 (reviewing court must make independent determination of merits of 

appeal).

Our Supreme Court has stated the:

[L]ack of merit in an appeal is not the legal equivalent of 

frivolity. Anders “appears to rest narrowly on the 

distinction between complete frivolity and absence of 

merit. The latter is not enough to support either a request 

by counsel to withdraw, nor the granting of such a request 

by the court.”

Commonwealth v. Greer, 314 A.2d 513, 514 (Pa.1974) (quoting ABA 

Project on Standards for Criminal Justice, Standards Relating to the Defense 

Function § 8.3, commentary at 297 (Approved Draft, 1971)); accord 

Commonwealth v. Edwards, 906 A.2d 1225, 1231 (Pa.Super.2006). 

Further, this Court has stated:

Our system of appellate review is based upon the notion 

that an adversarial process will best advance the interests 

of the parties and the development of the law. In this 

process, each side is expected to make its best 

argument(s) and the appellate court decides which 

argument is of greater merit. It appears that unless a 

position is without question defeated by existing caselaw, 

an appointed counsel should advance the best argument 

____________________________________________

10 Counsel must also comply with the technical requirements of Anders and 

Santiago. We discuss these requirements below. 
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he/she is capable of constructing and allow the appellate 

court to make the ultimate determination that the 

argument lacks merit. It may be that counsel believes 

that the argument advanced is unlikely to ultimately 

prevail. Nevertheless, this does not mean that the appeal 

is wholly frivolous.

Commonwealth v. Kearns, 896 A.2d 640, 647 (Pa.Super.2006).

Appellant’s first issue maintains Appellant was denied his right to 

counsel. We find this issue is not wholly frivolous.

The trial court found:

[Appellant] first claims that his right to effective assistance 

of counsel was violated and claims that he was allowed to 

proceed pro se without the benefit of a Court colloquy as 

to the knowing, voluntary and intelligent waiver of counsel. 

The facts underlying [Appellant’s] representation status 

belie his claim. [Appellant] was represented by three 

separate attorneys during the course of proceedings in this 

case.2 

2

[Appellant’s] first attorney, from the Public Defender’s 

office, left the office for another position, at which point 

[Appellant] was assigned to [Mr.] Michael Seward. At 

some point, [Appellant] and his new counsel did not see 

eye to eye, at which point his request for new counsel 

was granted and he was assigned to [Mr.] John Broda. 

[Appellant] then attempted several times to dismiss [Mr.] 

Broda, culminating in his status as set forth above.

Of equal importance is that the request to proceed pro 

se be unequivocal. While this court has not considered 

when a request to proceed pro se is deemed 

“unequivocal” a review of federal case law reveals that 

the courts generally consider a myriad of factors in 

concluding whether a request was unequivocal 

including: whether the request was for hybrid 

representation, see, e.g., [United States v. 

Callwood, 66 F.3d 1110, 1113 (10th Cir. 1995)], or 

merely for the appointment of standby or advisory 

counsel, [United States v. Baker, 84 F.3d 1263, 1267 

(10th Cir.1996)]; the trial court’s response to a 

request, [United States v. Hernandez, 203 F.3d 614 
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(9th Cir. 2000)]; whether a defendant has consistently 

vacillated in his request, Brown v. Wainwright, 665 

F.2d 607 (5th Cir. 1982); and whether a request is the 

result of an emotional outburst, Jackson v. Ylst, 921 

F.2d 882 (9th Cir. 1990); see also Reese v. Nix, 942 

F.2d 1276 (8th Cir. 1991) (finding that request that 

was merely an impulsive response to the trial court’s 

denial of a request for new counsel was not 

unequivocal). The essence of these cases is that the 

inquiry surrounding whether a request to proceed pro 

se is unequivocal is fact intensive and should be based 

on the totality of the circumstances surrounding the 

request. 

Commonwealth v. Davido, [868 A.2d 431 (Pa.2005)].

Here, [Appellant] elected to proceed with standby counsel, 

and standby counsel was available to him at all times. He 

consulted with standby counsel several times during 

various proceedings, up to and including jury selection and 

trial. Thus, [Appellant’s] right to counsel was not violated, 

and the [trial court] was not obligated to conduct a 

colloquy, although it in fact did so.

Opinion, 1/6/2012, at 1-2.11

The Anders brief maintains, without citing any case law, that 

Appellant was not denied his right to counsel. It notes Appellant had three 

court-appointed attorneys. The Anders brief reasons that the trial court 

appointed stand-by counsel, Appellant was not aggrieved by the stand-by 

counsel arrangement, Appellant did not object when the court reminded him 

that he chose to proceed pro se, and Appellant “ably represented himself at 

trial and won acquittal on 5 of 6 counts.” The Anders brief further states 

____________________________________________

11 The trial court opinion is not paginated. All page numbers are supplied by 

this Court.
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that “as the [trial court] note[d] in its [o]pinion, Mr. Broda was present 

throughout and was consulted by [Appellant],” and “[the trial court] had 

conducted an adequate colloquy with [Appellant].” Anders Brief at 9-10. 

Counsel did not conduct any analysis of the colloquy the court allegedly 

conducted; he merely relied on the trial court’s conclusion that it conducted 

an adequate colloquy.12

The Sixth Amendment to the United States Constitution and Article I, 

Section 9 of the Pennsylvania Constitution provide defendants with the right 

to counsel for his or her defense. Commonwealth v. Lucarelli, 971 A.2d 

1173, 1178 (Pa.2009) (quoting Rothgery v. Gillespie County, --- U.S. ---, 

128 S.Ct. 2578, 2583 n. 8, 171 L.Ed.2d 366 (2008) and Commonwealth v. 

McDonough, 812 A.2d 504, 506 (Pa.2002)). The right to counsel, 

however, is not absolute. Id. (quoting Commonwealth v. Randolph, 873 

A.2d 1277, 1282 (Pa.2005)). 

A defendant who seeks court-appointed counsel “does not have a right 

to choose the particular counsel to represent him.” Commonwealth v. 

Rucker, 761 A.2d 541, 542 n.1 (Pa.2000) (citing Commonwealth v. 

Moore, 633 A.2d 1119, 1125 (Pa.1993)). After counsel has been appointed, 

____________________________________________

12 The Commonwealth concedes the trial court did not conduct a proper 

colloquy and argues Appellant forfeited his right to counsel. Appellee’s Brief 

at 3 (noting the colloquy did not comply with all requirements of 

Pa.R.Crim.P. 121).
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the defendant cannot “change to other assigned counsel unless a substantial 

reason exists for the change.” Id. (citing Pa.R.Crim.P. 316(c)(ii)).

A defendant can waive or forfeit his right to counsel. Lucarelli, 971 

A.2d at 1178-79. Our Supreme Court has explained:

Waiver is “an intentional and voluntary relinquishment of a 

known right.” By contrast, forfeiture . . . does not require 

that the defendant intend to relinquish a right, but rather 

may be the result of the defendant’s “extremely serious 

misconduct” or “extremely dilatory conduct.”

Id. at 1179 (internal citations omitted).

If a defendant seeks to waive his right to counsel, “the judge shall 

ascertain from the defendant, on the record, whether this is a knowing, 

voluntary, and intelligent waiver of counsel.” Commonwealth v. Phillips, 

93 A.3d 847, 852 (Pa.Super.2014) (citing Pa.R.Crim.P. 121(c)). The waiver 

colloquy must “contain a clear demonstration of the defendant’s ability to 

understand the questions posed to him during the colloquy.” Id. (quoting 

Commonwealth v. McDonough, 812 A.2d 504, 507 n.1 (Pa.2002)). A 

trial court must “fully advise the accused [of the nature and elements of the 

crime] before accepting waiver of counsel.” Id. at 853 (quoting 

Commonwealth v. Clyburn, 42 A.3d 296, 299 (Pa.Super.2012) (emphasis 

deleted and alteration in original). Pennsylvania Rule of Criminal Procedure 

121 governs waiver of the right to counsel and provides:

(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:
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(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). The trial court must further inquire “about the 

defendant’s age, educational background, and basic comprehension skills.” 

Phillips, 93 A.3d at 853 (citing Pa.R.Crim.P. 121(C)). Further, this Court 

reviews “the totality of the relevant circumstances only after we decide 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 854.
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In Lucarelli, our Supreme Court held that Rule 121 does not apply 

where a defendant forfeits his right to counsel. 971 A.2d at 1179. The Rule 

applies only where the defendant waives his right to counsel. Id. The 

Court held a defendant forfeits his right to counsel where his “course of 

conduct demonstrates his or her intention not to seek representation by 

private counsel, despite having the opportunity and financial wherewithal to 

do so.” Id. It further noted that:

Upon examining the jurisprudence developed by other 

jurisdictions regarding forfeiture of the right to counsel, we 

observe that defendants have been held to have forfeited 

the right to counsel where they have either engaged in 

physically abusive and threatening conduct, or have 

engaged in dilatory conduct. See e.g., Minnesota v. 

Lehman, 749 N.W.2d 76, 81-82 (Minn.Ct.App.2008), 

review denied, 2008 Minn. LEXIS 478 (Minn. filed August 

5, 2008) (collecting cases and holding that defendant 

forfeited his right to court-appointed counsel where 

defendant attacked and beat the attorney in open court); 

Bultron v. State, 897 A.2d 758 (Del.2006) (holding that 

defendant forfeited his right to counsel where he engaged 

in ongoing abuse of his attorney and requiring defendant 

to proceed pro se at trial); Wilkerson v. Klem, 412 F.3d 

449, 454 (3d Cir. 2005) (holding that a defendant who had 

been duly notified of the date of his trial, who had been 

advised to obtain counsel in sufficient time to be ready for 

trial, and who appeared on the scheduled date without 

counsel and with no reasonable excuse for his failure to 

have counsel present, forfeited his right to counsel).

Id. at 1179-80. 

In Commonwealth v. Kelly, this Court found a defendant who was 

appointed counsel forfeited his right to counsel. 5 A.3d 370 

(Pa.Super.2010). We reasoned: 
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Kelly was a criminal defendant who had been unwilling to 

cooperate with all three counsel assigned to him; who 

argued all counsel were incompetent because they refused 

to argue what he believed was the law; who, the day after 

his pro se motion to withdraw his first guilty plea was 

granted, filed pro se an omnibus pre-trial motion seeking 

suppression of evidence on a ground the trial court had 

already addressed (validity of search warrant); who 

wanted a counsel, but only one who would please him; 

who treated appointed counsel with disdain; whose trial 

had been already postponed because he could not agree 

with assigned counsel (counsel 2); who had been warned 

by the trial court that failure to cooperate with assigned 

counsel (counsel 3) would result in him representing 

himself pro se at trial; who sought to have other counsel 

appointed to him (who would have been counsel 4) and 

postpone the trial instead of trying to cooperate with 

counsel 3; and who clearly was not interested in listening 

closely [to] what [the trial judge] was telling him, 

consumed as he was in making his point counsel were 

ineffective and he knew the law better than assigned 

counsel. 

Id. at 381-82.13

____________________________________________

13 The court in Kelly noted the case differed from Lucarelli and the other 

Pennsylvania forfeiture cases because, in Kelly, the defendant was eligible 

for court-appointed counsel. 5 A.3d at 379 n.7.

The Kelly court also noted a “hybrid situation” where a defendant loses his 

right to counsel, stating:

[T]here is a hybrid situation (“waiver by conduct”) that 

combines elements of waiver and forfeiture. Once a 

defendant has been warned that he will lose his attorney if 

he engages in dilatory tactics, any misconduct thereafter 

may be treated as an implied request to proceed pro se 

and, thus, as a waiver of the right to counsel.

....

(Footnote Continued Next Page)
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The trial court did not conduct a proper colloquy of Appellant at any 

stage of the proceedings. Although President Judge Sacavage inquired as 

to some elements of Rule 121 prior to the February 11, 2013 jury selection, 

his colloquy was not complete. He did not ensure Appellant understood the 

nature of the charges, the elements of each charge, or the permissible range 

of sentences of the charges. He did not inform Appellant there were possible 

defenses that counsel might be aware of which would be permanently lost if 

not raised or that Appellant had rights that would be lost permanently if not 

timely raised, and he did not advise Appellant his right to challenge errors 

would be lost permanently if not timely asserted. N.T., 2/11/2012, at 10-

13. Further, the trial court did not inquire about the defendant’s age, 

educational background, and basic comprehension skills. Because the trial 

court failed to comply with the minimum requirements of Rule 121, and 

failed to inquire as to Appellant’s background, Appellant did not waive his 

(Footnote Continued) _______________________

These are not “waiver” cases in the true sense of the word. 

In many situations there will be defendants who engage in 

dilatory conduct but who vehemently object to being 

forced to proceed pro se. These defendants cannot truly 

be said to be “waiving” their Sixth Amendment rights 

because although they are voluntarily engaging in 

misconduct knowing what they stand to lose, they are not 

affirmatively requesting to proceed pro se. Thus, instead of 

“waiver by conduct,” this situation more appropriately 

might be termed “forfeiture with knowledge.”

Id. at 379 (quoting United States v. Goldberg, 67 F.3d 1092, 1100-01 

(3d Cir. 1995)).
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right to counsel. See Phillips, 93 A.3d at 855 (vacating judgment of 

sentence and remanding for further proceedings where trial court failed to 

meet minimum requirements of Rule 121 and failed to question appellant on 

qualitative aspects of waiver of counsel at critical stages of proceedings).

Because Appellant did not waive his right to counsel, his constitutional 

right to counsel was violated unless he forfeited this right. See Lucarelli, 

971 A.2d at 1179. Appellant filed pro se motions to remove two courtappointed attorneys because he disagreed with their assessment of his case, 

they refused to advance legal arguments Appellant believed had merit, and 

Appellant believed a conflict of interest existed because they both were from 

the Public Defender’s Office.14 There is no evidence, however, that Appellant 

treated either counsel with disrespect or disdain. Further, although 

Appellant filed motions which delayed trial, it is not clear that any delay was 

intentional. See N.T., 3/8/2012, at 3-8; N.T., 5/7/2012, at 3-4, 6-12. It 

appears Appellant may not have known counsel did not file the motions he 

requested until after the pretrial conference. N.T., 5/7/2012, at 6-12. Nor 

is there evidence Appellant “engaged in physically abusive and threatening 

conduct.” See Lucarelli, 971 A.2d at 1179. Although the issue of whether 

____________________________________________

14 As noted above, Appellant’s first court-appointed counsel filed a motion to 

withdraw, but the trial court did not rely on this motion when finding 

Appellant was not denied his right to counsel. Motion to Withdraw, 

3/31/2011; Opinion, 1/6/2014.
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Appellant was denied his right to counsel may not merit relief on appeal, it is 

not wholly frivolous.

We further note that, as to the issue concerning Appellant’s right to 

counsel, appointed counsel did not comply with the technical requirements 

of Anders and Santiago. Prior to withdrawing as counsel on a direct appeal 

under Anders, counsel must file a brief that meets the requirements 

established by the Pennsylvania Supreme Court in Santiago. The brief 

must:

(1) provide a summary of the procedural history and facts, with 

citations to the record; (2) refer to anything in the record that 

counsel believes arguably supports the appeal; (3) set forth 

counsel’s conclusion that the appeal is frivolous; and (4) state 

counsel’s reasons for concluding that the appeal is frivolous. 

Counsel should articulate the relevant facts of record, controlling 

case law, and/or statutes on point that have led to the 

conclusion that the appeal is frivolous. 

Santiago, 978 A.2d at 361. Counsel must also provide a copy of the 

Anders brief to the appellant, together with a letter that advises the 

appellant of his or her right to “(1) retain new counsel to pursue the appeal; 

(2) proceed pro se on appeal; or (3) raise any points that the appellant 

deems worthy of the court’s attention in addition to the points raised by 

counsel in the Anders brief.” Commonwealth v. Nischan, 928 A.2d 349, 

353 (Pa.Super.2007). Substantial compliance with these requirements is 

sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 

(Pa.Super.2007). 
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Appellant’s counsel’s motion for leave to withdraw as counsel states: 

“Counsel has carefully considered this matter and can find no basis which is 

not frivolous to appeal [Appellant’s] conviction for one count of aggravated 

assault.” Motion for Leave to Withdraw as Counsel, at ¶ 2; see also Letter 

from James L. Best, Esq. to DaShaun Laquin Jamison, dated 11/10/2014 

(“Letter to Appellant”). Counsel notified Appellant of the withdrawal request, 

supplied him with copies of the motion for leave to withdraw and the 

Anders brief, and sent Appellant a letter explaining his right to proceed pro 

se or with new, privately-retained counsel to raise any additional points or 

arguments that Appellant believed had merit. See Motion for Leave to 

Withdraw as Counsel at ¶ 5; Letter to Appellant. Counsel’s Anders brief 

provides a “Statement of the Facts,” which briefly summarizes the factual 

and procedural history of the case. The section, however, is incomplete and 

does not contain citations to the record. Anders Brief at 7. For six of the 

seven arguments, it provides citations to the record, refers to evidence of 

record that might arguably support the issues raised on appeal, provides 

citations to relevant case law, states counsel’s conclusion that the appeal is 

wholly frivolous, and states his reasons for concluding the appeal is 

frivolous. Id. at 10-20. However, for the issue regarding whether 

Appellant was denied his right to counsel, the Anders brief provides no 

citations to case law and states that the trial court conducted an adequate 

colloquy, even though it failed to do so. Id. at 9-10. Accordingly, in 

addition to finding Appellant’s argument concerning his right to counsel is 
J-A10035-15

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non-frivolous, we conclude counsel failed to comply with the technical 

requirements of Anders for that issue.15

Appellant’s remaining issues are frivolous. 

Appellant’s second issue maintains the trial court erred when it failed 

to admit into evidence a written report authored by Captain Charles Stetler 

prior to Captain Stetler’s testimony and failed to admit testimony from 

Appellant’s mother, father, and grandmother about telephone conversations 

they had with individuals who did not testify. Anders Brief at 10-11.

“[T]he admissibility of evidence is within the discretion of the trial 

court, and such rulings will not form the basis for appellate relief absent an 

abuse of discretion.” Commonwealth v. Hoover, 107 A.3d 723, 729 

(Pa.2014) (quoting Commonwealth v. Rivera, 983 A.2d 1211, 1228 

(Pa.2009)). Pennsylvania Rule of Evidence 802 provides that “[h]earsay is 

not admissible except as provided by these rules, by other rules prescribed 

by the Pennsylvania Supreme Court, or by statute.” Hearsay is defined as 

an out-of-court statement offered “to prove the truth of the matter asserted 

in the statement.” Pa.R.Evid. 801. Both Captain Stetler’s report and the 

proposed testimony of Appellant’s family members constitute inadmissible 

____________________________________________

15 Although the “Statement of the Facts” section of the brief does not contain 

citations to the record, the argument sections for the remaining six issues 

contain citations to the record. Anders Brief, at 10-20. Therefore, the brief 

as to the remaining sections substantially complies with Anders and 

Santiago.
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hearsay. The court acted within its discretion when it refused to admit 

Captain Stetler’s report until he testified. N.T., 2/19/2013, at 172. Further, 

the trial court acted within its discretion when it refused to admit the 

testimony of Appellant’s family members. N.T., 2/19/2013, at 223. This 

claim is frivolous.

Appellant’s third issue claims the trial court erred in denying his 

motion to suppress a videotaped recording of the incident. Appellant claims 

the prison staff tampered with the video captured by the prison facility 

cameras, that the videotape included only a portion of the relevant incident, 

and that it failed to include an earlier encounter between the prison guards 

and Appellant. Anders Brief at 11; N.T., 8/30/2012, at 11-12. We review 

a denial of a suppression motion to determine “whether the record supports 

the trial court’s factual findings and whether the legal conclusions drawn 

therefrom are free from error.” Commonwealth v. Reppert, 814 A.2d 

1196, 1200 (Pa.Super.2002) (quoting Commonwealth v. McClease, 750 

A.2d 320, 323 (Pa.Super.2000)). Judge Saylor determined at the August 

30, 2012 pre-trial hearing that Appellant presented no evidence the prison 

staff manipulated the videotape. N.T., 8/30/2012. Further, the 

Commonwealth presented testimony from an electronics technician from the 

prison who stated the tape was extracted from digital recordings made by 

the facility’s cameras and the facility does not have the ability to edit the 

videotapes. N.T., 8/30/2012, at 6-7. Judge Saylor found Appellant’s claims 

that the prison staff included only a portion of the relevant incident “may be 
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arguments at trial,” but were not a basis for suppression. Id. at 12. The 

trial court acted within its discretion in admitting the videotape, and 

Appellant’s claim is frivolous. 

In his fourth issue, Appellant alleges the Commonwealth violated 

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963), when it failed to 

disclose a portion of a video and audio recording from a handheld camera 

(“video/audio recording”)16 that would have captured the moments prior to 

the incident at issue.17 Anders Brief at 11-12, N.T., 2/15/13, at 162-193. 

Pursuant to Brady, “the prosecution’s failure to divulge exculpatory 

evidence is a violation of a defendant’s Fourteenth Amendment due process 

rights.” Commonwealth v. Com Ly, 980 A.2d 61, 75 (Pa.2009). To 

establish a Brady violation, a defendant must “demonstrate that exculpatory 

or impeaching evidence, favorable to the defense, was suppressed by the 

____________________________________________

16 The prison had cameras at different locations throughout the prison 

facility. The facility cameras did not have audio. N.T., 2/15/2013, at 164. 

In addition, a guard captured a portion of the incident on a handheld 

camera, that had video and audio. Id. at 164-65. The guard had the 

camera because a prisoner housed near Appellant needed to be recorded 

when he exited his prison cell and the guards had taken that prisoner to the 

shower prior to the incident. Id.

17 It appears the Commonwealth produced a portion of the video/audio 

recording that captured the incident, but not the moments leading up to the 

incident, which Appellant claimed would have captured relevant 

conversation. N.T., 2/15/13, at 162-193.
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prosecution, to the prejudice of the defendant.” Id. (quoting 

Commonwealth v. Gibson, 951 A.2d 1110, 1126 (Pa.2008)).

At the end of the first day of trial, after the video/audio recording of 

the incident was admitted, the trial court ordered the Commonwealth to 

attempt to locate the portion of the video/audio recording that preceded the 

admitted portion. N.T., 2/15/2013, at 184-86. At the next trial day,18 the 

Commonwealth admitted the requested portion of the video/audio recording 

from the handheld camera. N.T., 2/19/2013, at 4. Appellant was able to 

cross-examine the witness regarding the video/audio recording. 

The trial court found, although the “Commonwealth may have 

inadvertently at best, caused the initial suppression of evidence,” Appellant 

did not contend he was prejudiced by the evidence or establish the evidence 

had exculpatory or impeachment value. Opinion, 1/6/2014, at 5. This was 

not error, and Appellant’s Brady claim is frivolous.

In his fifth issue, Appellant argues the verdict was inconsistent 

because the jury found him guilty of aggravated assault, but acquitted him 

of simple assault, a lesser included offense. Anders Brief at 12. Although 

“often perplexing,” inconsistent verdicts “are not considered mistakes and do 

not constitute a basis for reversal.” Commonwealth v. Thomas, 65 A.3d 

939, 944 (Pa.Super.2013) (quoting Commonwealth v. Stokes, 38 A.3d

____________________________________________

18 The first day of trial was a Friday. The next day of trial was a Tuesday, as 

the Monday was a court holiday.
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846, 855 (Pa.Super.2011)). “[T]he rationale for allowing inconsistent

verdicts is that it is the jury’s sole prerogative to decide on which counts to 

convict in order to provide a defendant with sufficient punishment.” Id. at 

944-45 (quoting Stokes, 38 A.3d at 855). The trial court did not err in 

denying relief based on an inconsistent verdict and we agree the claim is 

wholly frivolous.

Appellant claims in his sixth issue that the trial court erred in refusing 

to send certain items to the jury room during deliberations. Anders Brief at 

13. The Pennsylvania Rules of Criminal Procedure provide: “the jury may 

take with it such exhibits as the trial judge deems proper.” 

Pa.R.Crim.P.646(A). “Whether an exhibit should be allowed to go out with 

the jury during its deliberation is within the sound discretion of the trial 

judge.” Commonwealth v. Barnett, 50 A.3d 176, 194 (Pa.Super.2012) 

(quoting Commonwealth v. Merbah, 411 A.2d 244, 247 (Pa.Super.1979)). 

“The underlying reason for excluding certain items from the jury’s 

deliberations is to prevent placing undue emphasis or credibility on the 

material, and de-emphasizing or discrediting other items not in the room 

with the jury.” Id. (quoting Commonwealth v. Dupre, 866 A.2d 1089, 

1103 (Pa.Super.2005)).

Appellant requested that Captain Stetler’s report be sent to the jury. 

The court denied this request, noting only portions of the report were read 

into the record. N.T., 2/19, at 167-68. Appellant also requested that a 

document he wrote to the superintendent be sent to the jury, and the trial 
J-A10035-15

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court denied the request because it would place undue emphasis on the 

exhibit. Id. at 168-69.19 The trial court did not abuse its discretion in 

denying Appellant’s request to send exhibits with the jury, and this claim is 

frivolous.

Appellant’s last claim maintains the evidence was insufficient to 

support the verdict and the verdict is against the weight of the evidence. 

Anders Brief at 13.

We apply the following standard when reviewing a sufficiency of the 

evidence claim: “[W]hether viewing all the evidence admitted at trial in the 

light most favorable to the verdict winner, there is sufficient evidence to 

enable the fact-finder to find every element of the crime beyond a 

reasonable doubt.” Commonwealth v. Lehman, 820 A.2d 766, 772 

(Pa.Super.2003), affirmed, 870 A.2d 818 (2005) (quoting Commonwealth 

v. DiStefano, 782 A.2d 574 (Pa.Super.2001)). When we apply this 

standard, “we may not weigh the evidence and substitute our judgment for 

the fact-finder.” Id.

“[T]he facts and circumstances established by the Commonwealth 

need not preclude every possibility of innocence.” Lehman, 820 A.2d at 

772. Moreover, “[a]ny doubts regarding a defendant’s guilt may be resolved 

____________________________________________

19 The trial court agreed with Appellant that, under its reasoning, it would 

deny Appellant’s request to send any document to the jury. N.T., 

2/19/2013, at 369-70. Appellant noted his objection for the record. Id. at 

370.
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by the fact-finder unless the evidence is so weak and inconclusive that as a 

matter of law no probability of fact may be drawn from the combined 

circumstances.” Id. “The Commonwealth may sustain its burden of proving 

every element of the crime beyond a reasonable doubt by means of wholly 

circumstantial evidence.” Id.

In applying the above test, we must evaluate the entire record and we 

must consider all evidence actually received. DiStefano, 782 A.2d at 582.

Further, “the trier of fact while passing upon the credibility of witnesses and 

the weight of the evidence produced, is free to believe all, part or none of 

the evidence.” Id.

A jury convicted Appellant of aggravated assault of a correctional 

officer. To sustain an aggravated assault of a correctional officer conviction, 

the Commonwealth must establish the appellant “attempt[ed] to cause or 

intentionally or knowingly cause[d] bodily injury to [an officer or employee 

of a correctional institution], in the performance of duty.” 18 Pa.C.S. § 

2702(a)(3). Bodily injury is defined as “[i]mpairment of physical condition 

or substantial pain.” 18 Pa.C.S. § 2301. Here, Correctional Officer Todd 

Kepner testified that, while working in the restrictive housing unit of SCI 

Coal Township, Appellant punched him in the jaw. N.T., 2/15/2013, at 94, 

96. Officer Kepner experienced redness and pain in the jaw. Id. at 99. The 

jury was entitled to believe Correctional Officer Kepner’s testimony, which 

was sufficient to establish the elements of aggravated assault beyond a 

reasonable doubt. Commonwealth v. Richardson, 636 A.2d 1195, 1196 
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(Pa.Super.1994) (evidence sufficient where officer testified Appellant’s punch 

broke officer’s glasses, caused officer to stumble backwards, and caused 

pain for next few days). Appellant’s sufficiency of the evidence claim is 

frivolous. 

Whether a verdict is against the weight of the evidence is “addressed 

to the discretion of the trial court.” Commonwealth v. Clay, 64 A.3d 1049, 

1054-55 (citing Commonwealth v. Widmer, 744 A.2d 745, 751–52 

(2000)). “A new trial should not be granted because of a mere conflict in 

the testimony or because the judge on the same facts would have arrived at 

a different conclusion. Rather, ‘the role of the trial judge is to determine 

that notwithstanding all the facts, certain facts are so clearly of greater 

weight that to ignore them or to give them equal weight with all the facts is 

to deny justice.’” Id. at 1055 (quoting Widmer, 744 A.2d at 752). Courts 

should award “a new trial . . . when the jury’s verdict is so contrary to the 

evidence as to shock one’s sense of justice and the award of a new trial is 

imperative so that right may be given another opportunity to prevail.” Id.

(quoting Commonwealth v. Brown, 648 A.2d 1077, 1189 (Pa.1994)).

Further, “[a]ppellate review of a weight claim is a review of the 

exercise of discretion, not of the underlying question of whether the verdict 

is against the weight of the evidence.” Clay, 64 A.3d at 1055 (quoting

Widmer, 744 A.2d at 753). “Because the trial judge had the opportunity to 

hear and see the evidence presented, an appellate court will give the gravest 

consideration to the findings and reasons advanced by the trial judge when 
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reviewing a trial court’s determination that the verdict is against the weight

of the evidence.” Id. (quoting Widmer, 744 A.2d at 753).

The jury heard testimony from 17 witnesses, including the victims of 

the alleged assaults, eyewitnesses, and the investigating officer. It viewed 

32 exhibits, including witness statements and videotape recordings depicting 

the events. The trial court found the verdict not against the weight of the 

evidence. Opinion, 1/6/2014, at 7. The trial court acted within its discretion 

and Appellant’s weight of the evidence claim is frivolous.

Our independent review of the record reveals no additional nonfrivolous claims.

Case remanded for the filing of an advocate’s brief consistent with this 

memorandum. Counsel shall file the advocate’s brief within 45 days of the 

issuance of this opinion. The Commonwealth shall have 30 days from the 

filing of Appellant’s brief to file an Appellee’s brief. Jurisdiction retained.

President Judge Gantman joins in the memorandum.

Judge Mundy concurs in the result.