Com. v. Swift, J.

• Court: Superior Court of Pennsylvania
• Decided: April 10, 2025
• Docket: 860 WDA 2023
• Status: Unpublished

Opinion

J-S34030-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAMES MICHAEL SWIFT : : Appellant : No. 860 WDA 2023

Appeal from the Judgment of Sentence Entered June 28, 2023 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0010274-2019

BEFORE: DUBOW, J., LANE, J., and STEVENS, P.J.E.*

CONCURRING STATEMENT BY DUBOW, J.: FILED: April 10, 2025

I agree with the majority that Appellant’s issues warrant no relief. I

write separately only to note that, notwithstanding the court’s conclusion that

Appellant forfeited his right to counsel, the court ultimately did not deprive

Appellant of his Sixth Amendment right to the assistance of counsel. The day

after finding Appellant had forfeited his right to counsel, the court appointed

Attorney Jeffrey Wasak as stand-by counsel who, contrary to Appellant’s

assertion, was available to provide “consultation and advice” to Appellant.

Pa.R.Crim.P. 121(D); see, e.g., Lucarelli, 971 A.2d at 1177 (applying the

precept of standby counsel where defendant forfeited the right to counsel).

See N.T., 2/8/23, at 2. The record reflects that Attorney Wasak participated

in the hearing addressing Appellant’s pro se pre-trial motions, including his

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* Former Justice specially assigned to the Superior Court. J-S34030-24

Rule 600 motion, and was available to both Appellant and the court to provide

assistance and consultation. See N.T., 2/8/23, at 2 (Attorney Wasak entering

appearance as appointed stand-by counsel), 7 (Attorney Wasak indicating he

was assisting with Appellant’s bond modification issues), 27 (court telling

Appellant to vet his arguments with Attorney Wasak to protect his defense

rights), 33-34 (court encouraging Appellant to consult with Attorney Wasak

for purposes of representation at trial). Moreover, stand-by counsel thereafter

entered his appearance as “appointed counsel” for Appellant and represented

him at trial.

Accordingly, notwithstanding the court’s forfeiture of counsel finding,

Appellant at all times had the assistance of counsel for consultation, advice

and representation at trial.

President Judge Emeritus Stevens joins the concurring statement.

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