J-A15002-15

*

 Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CHANDLER P. SMITH,

Appellant No. 3152 EDA 2014

Appeal from the Judgment of Sentence September 26, 2014

In the Court of Common Pleas of Bucks County

Criminal Division at No(s): CP-09-SA-0000426-2014

BEFORE: BOWES, MUNDY, AND FITZGERALD* JJ.

MEMORANDUM BY BOWES, J.: FILED JULY 13, 2015

Appellant Chandler P. Smith appeals from the September 26, 2014 

judgment of sentence of a $100.00 fine imposed after the trial court found 

him guilty of the summary offense of disorderly conduct. For the reasons 

set forth herein, we reverse and remand for a new trial.

The trial court related the following underlying facts, which were 

adduced by the citing officer during trial:

[Morrisville Borough Police Officer John Aspromonti] was 

on patrol and observed [Appellant] on South Delaware Avenue in 

Morrisville, Bucks County, Pennsylvania, in an agitated state and 

loudly screaming profanities in public. Officer Aspromonti 

testified that when he stopped to investigate, Smith charged at 

him in a violent and menacing manner and Officer Aspromonti, 

fearing for his safety, hit Smith with his car door and knocked 

him back. He said Smith then appeared to try to unstrap his 

prosthetic leg which Officer Aspromonti thought Smith was going 
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to use as a weapon. When Officer Aspromonti asked Smith what 

was the problem, he testified that Smith accused him and his 

partner of “giving him the finger” that morning, although he had 

never had any contact with Smith prior to this incident. Officer 

Aspromonti said he pulled out his taser and warned Smith to 

calm down. When two additional officers arrived on the scene, 

Smith “stopped,” and after several refusals finally provided 

identification to Officer Aspromonti who then issued Smith a 

citation for disorderly conduct.

Trial Court Opinion, 12/10/14, at 1-2. Appellant was found guilty of 

disorderly conduct at a June 24, 2014 hearing in magisterial district court, 

and appealed to the court of common pleas thereafter. The events at his 

September 26, 2014 de novo trial before the Honorable Clyde W. Waite give 

rise to the instant appeal.

Officer Aspromonti testified to the above facts on direct examination 

and then was briefly cross-examined by Appellant. At the conclusion of 

cross-examination, the following discussion ensued:

Commonwealth: The Commonwealth has no further evidence at 

this time, Your Honor.

Court: All right. Any evidence, Mr. Smith?

Appellant:[1] Not at this time.

Court: All right, then. You were charged with 

disorderly conduct. The officer testified that 

you approached him in an aggressive manner; 

that you continued to go after him to the point 

where he had to push you away, and it got to 

____________________________________________

1 Though presumed to be Appellant’s response, this statement was 

attributed to the Commonwealth.
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the point where he pulled his taser. You don’t 

believe that that’s – if that is true, and you 

haven’t presented anything to say that it was’s 

[sic] not true.

N.T., 1/12/15, at 14-15. 

After this exchange, Appellant expressed “significant doubt” that the 

events transpired as Officer Aspromonti testified and that it was “[h]is word 

against my word.” Id. at 15. Reminded by the court that Appellant “didn’t 

say anything” and that “there is nothing on the record that says that that 

didn’t happen,” Appellant offered to testify on his own behalf:

Appellant: I could testify as to what happened.

Court: You decided not to testify.

Appellant: I decide[d] not to testify?

Court: I asked if you had anything to present and you 

said no.

Appellant: I just, what is it that I said – you asked me if I 

had any questions.

Id. at 16. Instead of granting Appellant’s request, the court turned to the 

Commonwealth and asked if counsel wanted “to allow [Appellant] to testify 

at this time.” Id. The Commonwealth responded that it would be 

procedurally improper to allow him to do so unless the court permitted 

Appellant to reopen his case. 

Agreeing with counsel and declining to allow Appellant to reopen his 

case, the court again engaged Appellant:
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Court: But are you suggesting that there is something 

that you were not given the opportunity to tell 

your side of the story?

Appellant: Well, you know, when I called the lawyer that 

represented me at first, he thought that 

probably what would happen is that the officer 

would go ahead and take the stand and then I 

would be given a choice to do that.

Court: Yes, and you were given that choice to either 

testify or not. And my understanding is that 

you decided not to.

Appellant: Well, at this point you know, there [was] a 

hearing and I had an attorney. I know what 

was said and I know there was two officers 

there. I know that the lady at Dairy Queen 

heard me say those words, and I know he 

asked me to approach him. And he said, “You 

called me?”

Court: Well, based on the evidence of the record at 

this point, the officer’s testimony is more than 

sufficient to establish all of the elements of 

disorderly conduct. The defendant is found 

guilty with a fine of $100. That’s all.

Id. at 16-18. 

Appellant appealed to this Court on October 20, 2014. He then 

complied with the trial court’s order to provide a Pa.R.A.P. 1925(b) concise 

statement of errors complained of on appeal, and the trial court filed its 

responsive Pa.R.A.P. 1925(a) opinion shortly thereafter. In his timely 

appeal, Appellant presents just one issue for our consideration: “Was it 

wrong that I wasn’t given the opportunity to testify?” We therefore look to 

whether Appellant knowingly, voluntarily, and intelligently waived his 
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fundamental right to testify on his own behalf when he said he had no 

evidence to produce “at this time.” 

It is axiomatic that Appellant had a fundamental right to testify at trial, 

which is explicitly protected by Article I, § 9 of the Pennsylvania 

Constitution. Commonwealth v. Nieves, 746 A.2d 1102, 1105 (Pa. 2000). 

“Waivers of constitutional rights not only must be voluntary but must be 

knowing, intelligent acts done with sufficient awareness of the relevant 

circumstances and likely consequences.” Brady v. United States, 397 U.S. 

742 (1970). Importantly, “the presumption must always be against the 

waiver of a constitutional right,” and we are bound to “place the burden of 

proving waiver on the Commonwealth.” Commonwealth v. Robinson, 970 

A.2d 455, 458 (Pa.Super. 2009) (citations omitted).

This Court has recognized that a trial court is not required to conduct a 

colloquy to determine whether a party has knowingly, voluntarily, and 

intelligently waived his right to testify on his own behalf. Commonwealth 

v. Todd, 820 A.2d 707, 711 (Pa.Super. 2003). Those cases, however, 

clearly indicate that a criminal defendant must understand his decision not 

to testify if not by colloquy, then by the presumed competent advice of 

counsel in order to have knowingly, intelligently, and voluntarily waived that 

right. See, e.g., Commonwealth v. Baldwin, 8 A.3d 901, 909-10 

(Pa.Super. 2010) (finding waiver where Appellant “was clearly advised of his 

rights and what testifying in his own defense would entail” and “was given 
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ample opportunity to consider his decision and discuss the matter with his 

attorney”); Todd, supra at 712 (relying upon counsel’s testimony that he 

advised his client of client’s right to testify in holding that waiver of that 

right was “knowing, voluntary, and intelligent”). 

Appellant, appearing pro se, plainly argues that he was denied his 

constitutional right to testify on his own behalf. The Commonwealth 

responds by contending that, in telling the court that he did not have any 

evidence “at this time,” Appellant waived his right to testify and that the 

court did not abuse its discretion in disallowing Appellant to reopen his case 

so that he may do so. We agree with Appellant.

Herein, the court also did not engage in a colloquy to determine 

whether Appellant knowingly, voluntarily, and intelligently waived his 

fundamental right to testify on his own behalf when he answered “not at this 

time,” despite Appellant’s obvious confusion at the court’s finding that he 

had waived that right. Instead, the court, while seemingly acknowledging 

Appellant’s misunderstanding, refused to permit Appellant to present the 

testimony due to his purported waiver.

The Commonwealth’s argument that “Appellant was given the 

opportunity to testify, but he decided to not exercise that right” is 

misguided. The record does not support a finding that Appellant’s purported 

waiver was knowing, voluntary, and intelligent. In fact, the record reflects 

the opposite. Specifically, Appellant clearly indicates that he did not 
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understand that his response of “not at this time” equated to a rejection of 

his right to testify at all. N.T., 1/12/15, at 14-16. Appellant’s alleged 

waiver was not given “with sufficient awareness of the relevant 

circumstances and likely consequences” as to be understood as a knowing 

and voluntary waiver of a fundamental constitutional right. Brady, supra. 

Having found that the trial court denied Appellant his constitutional 

right to testify on his own behalf, we need only turn briefly to the 

Commonwealth’s concomitant argument regarding a trial court’s significant 

discretion in determining whether to reopen the evidence for further 

testimony. While reopening the matter may have been a curative measure 

to afford Appellant the opportunity to testify, the trial court’s decision not to 

reopen the matter does not excuse its initial denial of Appellant’s rights. The 

Commonwealth’s reliance on Baldwin, supra, is therefore mistaken. 

In Baldwin, our High Court affirmed the trial court’s decision not to 

reopen the evidence after the counseled criminal defendant offered, 

following colloquy, a valid waiver of his right to testify. Id. at 902. In that 

case, the trial court obtained a knowing, intelligent, and voluntary waiver 

from the defendant. There, unlike here, the trial did not violate the criminal 

defendant’s constitutional right to testify, as he had been afforded – and 

properly waived – that opportunity. The Commonwealth cannot rely on 

Baldwin to assert that the trial court had discretion to lock the door that it 

had already closed on Appellant’s testimony. Whether the trial court abused 
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its discretion in declining to reopen the matter is irrelevant in light of the 

trial court’s silencing of Appellant during the September 26, 2014 

proceeding.

The Commonwealth reminds us that we “may affirm the trial court’s 

decision on any basis supported by the record.” Barren v. 

Commonwealth, 74 A.3d 250, 254 (Pa.Super. 2013). It urges us to affirm 

since the record contains evidence sufficient to sustain Appellant’s 

conviction. In light of the trial court’s denial of Appellant’s fundamental 

constitutional right to testify, we reject that invitation. The infringement 

warrants a new and complete trial. 

Judgment of sentence reversed. Matter remanded for a new trial. 

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/13/2015