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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

WEIWU ZHAO, : No. 2862 EDA 2019

:

 Appellant :

Appeal from the Judgment of Sentence Entered December 18, 2017,

in the Court of Common Pleas of Northampton County

Criminal Division at No. CP-48-CR-0000665-2016

BEFORE: NICHOLS, J., McCAFFERY, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: Filed: July 23, 2020

Weiwu Zhao appeals from the December 18, 2017 judgment of sentence 

entered in the Court of Common Pleas of Northampton County following his 

conviction in a jury trial of sexual abuse of children (dissemination of 

photographs, videotapes, computer depictions and films depicting a child 

under the age of 18 years engaging in prohibited sexual act); sexual abuse of 

children (child pornography); criminal use of communication facility; and 

obscene and other sexual materials and performances (selling, lending, 

distributing, transmitting, exhibiting, giving away or showing any obscene 

materials to a person 18 years of age or older).

1

 The trial court imposed an 

aggregate sentence of 48 to 180 months of imprisonment. We affirm.

 

1 18 Pa.C.S.A. §§ 6312(c), 6312(d), 7512(a), and 5903(a)(2), respectively.
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The facts giving rise to appellant’s convictions are not germane to this 

appeal. Suffice it to say that appellant was found to have possessed 14 videos 

on his computer that depicted girls under the age of 13 being sexually 

assaulted by adult males, including forcible rape and penetration with foreign 

objects.

Following imposition of sentence, appellant filed a timely post-sentence 

motion, which the trial court denied. Appellant then filed a notice of appeal, 

which this court docketed at No. 1679 EDA 2018. On March 4, 2019, this 

court dismissed appellant’s appeal for failure to file a brief. Thereafter, the 

trial court granted appellant PCRA2relief and reinstated his direct appeal rights 

nunc pro tunc. Appellant filed a notice of appeal.3 The trial court ordered 

appellant to file a concise statement of errors complained of on appeal 

 

2 Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.

3 We note that the trial court permitted appellant to file a direct appeal 

nunc pro tunc within 60 days of its order granting PCRA relief. (Order of 

court, 8/14/19.) The note to Pennsylvania Rule of Criminal 

Procedure 720(A)(2) provides that a PCRA petitioner who is granted leave to 

appeal nunc pro tunc must comply with the 30-day appeal period provided 

in Rule 720(A). Appellant filed his notice of appeal on September 27, 2019, 

which was outside of the 30-day appeal period set forth in Rule 720(A), but 

within the 60-day appeal period set forth in the trial court’s order. In 

accordance with our supreme court’s per curiam order in Commonwealth v. 

Miller, 824 A.2d 298 (Pa. 2003), we will not quash this appeal because 

appellant filed his notice of appeal within the 60-day period allotted in the trial 

court’s August 14, 2019 order. See id. (vacating superior court’s quashal 

order for violation of Rule 720(A) where PCRA court afforded petitioner 

60 days to file appeal). The Miller per curiam order provided no rationale for 

permitting the PCRA court to provide 60 days for the filing of a direct appeal 

nunc pro tunc. Presumably, the court granted relief based on a breakdown 

in the operation of the PCRA court by providing an improper appeal instruction.
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pursuant to Pa.R.A.P. 1925(b). Appellant timely complied. The trial court 

then filed a Rule 1925(a) statement wherein it relied on the opinion it filed 

when it denied appellant’s post-trial motions.

Appellant raises the following issues for our review:

[1.] [Whether t]he trial court erred in holding that 

[a]ppellant forfeited his right to counsel at 

trial[?]

[2.] [Whether t]he trial court erred in holding that 

[a]ppellant waived his right to counsel at trial[?]

3. Because [a]ppellant was not represented by 

counsel, [whether a]ppellant’s failure to make 

objections and raise legal issues at trial did not 

waive his right to raise these issues on appeal 

and to seek remand[?]

Appellant’s brief at 10.4

Appellant’s issues involve his constitutional right to counsel under the 

Fifth, Sixth, and Fourteenth Amendments to the United States Constitution 

and Article I, Section 9 of the Pennsylvania Constitution. Where an issue 

involves a constitutional right, it is a question of law. Commonwealth v. 

Baldwin, 58 A.3d 754, 762 (Pa. 2012). As with all questions of law, our 

standard of review is de novo and our scope of review is plenary. Id.

Appellant first complains that the trial court erred in finding that 

appellant forfeited his right to counsel.

 

4 We have reordered appellant’s issues for ease of disposition.
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In Commonwealth v. Lucarelli, 971 A.2d 1173 (Pa. 2009), our 

supreme court made a clear distinction between waiver of counsel and 

forfeiture of counsel. Waiver occurs when the defendant knowingly and 

voluntarily relinquishes his right to counsel while forfeiture results when a 

defendant’s conduct is abusive, threatening, or extremely dilatory. Id. at 

1179-1180. Where forfeiture is found, Pennsylvania Rule of Criminal 

Procedure 121 and its colloquy requirements for waiver of counsel do not 

apply. Id. at 1179.

The facts of Lucarelli are instructive. There, the defendant had the 

financial means to retain private counsel, fired several lawyers that he had 

hired, was afforded over eight months to prepare for trial, and then appeared 

at trial without an attorney or an explanation as to why counsel was not 

present. Id. at 1180. On discretionary review, our supreme court flatly 

rejected Luccarelli’s claim that the Commonwealth was required to 

demonstrate that he “‘knowingly and intelligently’ engaged in conduct that 

had the inevitable effect of impairing his constitutional right to counsel.” Id.

at 1179. Rather, our supreme court held that “where a defendant’s 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, a determination that the defendant be required to proceed pro se is 

mandated because that defendant has forfeited the right to counsel” and 

Rule 121 and its colloquy requirements do not apply. Id. at 1179. 
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Here, the record reflects that appellant was arraigned on April 28, 2016. 

On the same date, Hala Tahan Khouly, Esq., filed an entry of appearance on 

appellant’s behalf. Although the record is unclear as to the circumstances of 

Attorney Khouly’s withdrawal from representation, it reflects that 

Attorney Khouly was the first of three lawyers that appellant had privately 

retained and then fired. (Notes of testimony, 9/15/17 at 7, 9; see also notes 

of testimony, 10/20/17 at 11.)

The second attorney to enter an appearance on appellant’s behalf was 

Kevin Santos, Esq., who did so on May 6, 2016. At that point, appellant’s trial 

had been scheduled to begin on July 5, 2016. In order to accommodate 

appellant’s computer expert, and at appellant’s request, the trial court 

thereafter granted two continuances.

On March 3, 2017, the trial court held a hearing on Attorney Santos’s 

motion to withdraw because appellant requested that he withdraw. At this 

juncture, we note that the record reflects that at all of the proceedings that 

were stenographically recorded and included in the certified record before us, 

Aixue Wang, an interpreter, was present to translate as needed by appellant.

At the hearing, the following colloquy took place:

THE COURT: All right. [Appellant], you don’t want 

Mr. Santos to represent you anymore?

[APPELLANT]: Yes.

THE COURT: Okay. Is it your intention to hire new 

counsel, sir?
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[APPELLANT]: Yes.

THE COURT: Do you know who you’re going to hire?

[APPELLANT]: I still haven’t found one now [sic].

Notes of testimony, 3/3/17 at 2.

THE COURT: Well, [appellant], you have the right to 

have a lawyer of your own choice. If you don’t want 

Mr. Santos, that’s fine with me. But I’m going to be 

very clear with you, sir. I postponed your case several 

times at your request as a result of motions that you 

have filed and your attorney, Mr. Santos, asked for 

additional time as a result of some of those requests 

and you got it.

I’m not postponing this trial again. It’s been 

postponed. Your trial is June 5th. And that is 

happening. So you have the right to counsel. You can 

hire new counsel if you wish. If you cannot afford 

counsel, you can apply for a public defender. If you 

meet their criteria, a lawyer will be appointed to 

represent you free of charge but it’s your 

responsibility to do those things. And you should do 

these things in short order because I’m not delaying 

your trial again.

And I can’t act on any motions that you have filed until 

you are represented. Or the other option that you 

have you can represent yourself, which is not a smart 

thing to do, but it’s your right to do if you want to.

So if you don’t want Mr. Santos to represent you, 

that’s fine. I’m going to let him out of the case. But 

I’m going to schedule a conference in ten days and I 

want to know in ten days if you’re representing 

yourself, if you have a public defender, or if you have 

a lawyer. Do you understand?

[APPELLANT]: I understand.

Id. at 4-5.
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On April 19, 2017, Robert Marc Gamburg, Esq., entered his appearance 

on appellant’s behalf. Although the reason is unclear from the record before 

us, it does indicate that at that point, trial was rescheduled to begin on July 31, 

2017. On June 30, 2017, a pre-trial conference was held. At the 

Commonwealth’s request, the case was continued until October 30, 2017. The 

trial court then scheduled appellant’s omnibus pre-trial motions to be heard 

on September 15, 2017.

On the date set for omnibus pre-trial motions, the trial court also heard 

Attorney Gamburg’s motion to withdraw. At the hearing, Attorney Gamburg

explained that appellant filed a pro se motion5 and that he “received an e-mail 

from [appellant] and his family instructing [him] to move to withdraw as 

counsel.” (Notes of testimony, 9/15/17 at 2-3.) The record reflects that when 

the trial court repeatedly asked appellant if he wanted Attorney Gamburg to 

represent him, appellant would not answer the question. (Id. at 3-8.) The 

following took place:

THE COURT: Okay. Stop. [Appellant is] arguing 

some of his omnibus pretrial motions now. Before we 

get to that, I need to know if [appellant] still wants 

Mr. Gamburg to represent him. Tell him to calm down 

and stop yelling.

[APPELLANT:] I don’t need him to represent me.

Id. at 8. 

 

5 The record reflects that appellant filed several pro se motions while he was 

represented by counsel.
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The trial court then permitted Attorney Gamburg to withdraw, and the 

following then took place:

THE COURT: Is it your intention to hire new counsel 

or to act as your own lawyer?

[APPELLANT]: I myself am not a lawyer. And I have 

no right to apply to deliver myself and apply for myself 

to the qualifications of a lawyer. Even if that were 

true, I’ll still consider to have a lawyer. But in view of 

the fact that in the past all the three lawyers I hired 

to present [sic] me, so I would be very cautious for 

me to hire another lawyer.

Id. at 9.

The trial court then rescheduled the hearing on omnibus pretrial motions 

to be heard on September 27, 2017. On September 25, 2017, the trial court 

appointed Alex Karam, Esq., as stand-by counsel for appellant. At the 

September 27, 2017 hearing, appellant appeared without legal counsel. 

Attorney Karam, however, appeared as appointed stand-by counsel. At the 

hearing, the trial court noted that appellant had subpoenaed Northampton 

County President Judge Stephen Baratta to appear and testify. (Notes of 

testimony, 9/27/17 at 3.) Appellant was then provided with a copy of Judge 

Baratta’s order quashing the subpoena. (Id. at 3-4.) Thereafter, appellant 

was provided with a waiver of counsel form. (Id. at 4.) Appellant stated that 

he was unable to read the form. (Id.) The trial court afforded Mr. Wang, the 

interpreter, time to read the form to appellant and to make sure that appellant

understood the form. (Id. at 4, 7.) The trial court also explained to appellant 

that it appointed Attorney Karam as appellant’s stand-by counsel, not because 
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it believed appellant was indigent, but because of the seriousness of the 

charges. (Id. at 5-6.) Appellant acknowledged that he understood 

Attorney Karam’s role. (Id. at 6.)

With respect to the waiver of counsel form, the following took place:

THE COURT: . . . Sir, did I give you an unlimited 

amount of time to read the form to [appellant]?

THE INTERPRETER: Yes.

THE COURT: You read the form to him in its entirety; 

correct, sir?

THE INTERPRETER: Yes, I did.

THE COURT: I would first like to discuss the contents 

of the form, then I’ll address his question.

[Appellant], that form reiterates discussions I’ve had 

with you on the record on two prior occasions about 

your right to counsel, including most recently a very 

lengthy and detailed discussion on September 15th 

when you fired Mr. Gamburg and I discussed with you

your right to hire counsel of your choosing at that time 

and on one prior occasion.

And I discussed with you your right to apply to have 

a free attorney appointed for you through the Public 

Defender’s Office. And I informed you very carefully 

that I would not delay today’s hearing or your trial if 

you did not hire counsel.

You can hire a lawyer whenever you want. But I’m 

not giving any further continuances on anything 

because there have been too many. I have appointed 

Mr. Karam to be of assistance to you out of courtesy 

to protect your rights.

The form that the interpreter just read to you reduces 

everything that we have previously discussed to 
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writing and further informs you of your rights. Do you 

understand?

[APPELLANT]: I understand.

THE COURT: Will you sign the form?

[APPELLLANT]: I’ll not sign right away.

THE COURT: Okay. Then give me the form. 

Mr. Karam, bring it up to me, please. I’m admitting it 

as Court 1. He can continue.

[APPELLANT]: I don’t need the help of an attorney 

right now based on the amendment six of our 

constitution. I’ll pronounce my desire to hire an 

attorney.

THE COURT: Is that it?

[APPELANT]: Yes.

THE COURT: Okay. The waiver of counsel form is 

admitted as Court 1. Let the record reflect that it has 

been read to [appellant] by the interpreter with an 

unlimited amount of time provided by the Court for 

that to take place. [Appellant] has refused to sign it. 

Okay.

Id. at 7-9. The omnibus pre-trial motions hearing then proceeded. At its 

conclusion, the trial court again cautioned appellant 

that he does not have a clue what he is doing with 

respect to representing himself. And while he has the 

right to represent himself here in court now and at the 

time of trial, he has that right, [it is the trial court’s]

personal belief if he chooses to represent himself at 

trial it will be a disaster. But [the trial court has]

discussed that with him several times and he can do 

whatever he wants.

But [the trial court is] going to hold him to the 

standard of an attorney and he is only going to be 
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permitted to ask legally appropriate questions and he 

will follow [the trial court’s] instructions. Does he 

understand?

[APPELLANT]: I understand.

THE COURT: He has the option of using Mr. Karam as 

his lawyer if he wants to. He can confer with 

Mr. Karam at any time or he can go hire someone. 

But I don’t think he should do it himself. Okay?

[APPELLANT]: I heard that.

Id. at 61-62.

On October 20, 2017, the trial court held a pretrial hearing at which 

time it

emphasize[d] again to [appellant], as [it had] 

discussed with him many times previously and [as it 

cannot] stress it enough, he should hire counsel. And 

if he cannot afford counsel, he should apply to the 

Public Defender’s Office.

Because he does not know what he’s doing. And he’s 

going to do himself an incredible disservice in this 

matter by acting as his own lawyer. 

And he’s going to cause prejudice to himself from a 

legal standpoint, but I discussed that with him at least 

four other times. And he’s fired three lawyers.

Notes of testimony, 10/20/17 at 11.

At the beginning of trial on October 30, 2017, appellant appeared 

without counsel and requested a continuance, which the trial court denied. 

(Notes of testimony, 10/30/17 at 2.) The trial court explained that if appellant 

wanted a lawyer, Attorney Karam was ready to represent him. (Id.) The trial 

court also explained to appellant that he had two choices: to represent himself 
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or have Attorney Karam represent him. The record reflects that appellant 

responded, while seated in a chair with his back facing the trial court, as 

follows: “I cannot represent myself, nor would I like Mr. Karam to represent 

me.” (Id. at 3-4.)

The record is clear that appellant’s course of conduct demonstrated his 

intention to not seek representation by private counsel. Appellant had the 

financial means to privately retain three lawyers, all of whom he fired. 

Appellant was afforded several continuances and had approximately 

18 months to prepare for trial. When he appeared at trial, appellant arrived 

without counsel and requested another continuance. Although appellant 

forfeited his right to counsel, requiring him to proceed pro se and abrogating 

the need for a Rule 121 colloquy, the trial court made sure that stand-by 

counsel was available to appellant. Appellant’s complaint that the trial court 

erred in determining that appellant forfeited his right to counsel lacks merit.

In light of our disposition on this issue, we need not address appellant’s 

second issue.

In his final issue, appellant claims that because he was not represented 

by counsel, his failure to preserve appellate issues in the trial court should be 

excused. Appellant requests a remand so he can raise numerous issues with 

the trial court. In support, appellant relies on Commonwealth v. Monica, 

597 A.2d 600, 603 (Pa. 1991), wherein our supreme court recognized the 

“general rule [that] failure to raise an issue in a criminal proceeding does not 
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constitute waiver where the defendant is not represented by counsel in the 

proceeding.” (Appellant’s brief at 17, n.8); see also Monica, 597 A.2d at 

603. Appellant, however, ignores that part of Monica that held that the

general rule does not apply when a defendant waives his right to counsel. Id.; 

see also Commonwealth v. Johnson, 158 A.3d 117, 121 (Pa.Super. 2017). 

Certainly, then, the general rule does not apply where, as here, a defendant 

forfeits his right to counsel and is required to proceed pro se.

With respect to pro se litigants, we note that it is well settled that while 

a pro se litigant is granted the same rights, privileges, and considerations as 

those accorded a party represented by counsel, pro se status does not entitle 

the litigant to any particular advantage because he or she lacks legal training. 

See Commonwealth v. Rivera, 685 A.2d 1011, 1013 (Pa.Super. 1996).

Accordingly, "a pro se litigant must comply with the procedural rules set forth 

in the Pennsylvania Rules of the Court." Commonwealth v. Lyons, 833 A.2d 

245, 252 (Pa.Super. 2003) (citation omitted).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/23/20