Com. v. Zhao, W.

Superior Court of Pennsylvania

Com. v. Zhao, W.

DecidedJuly 23, 2020

Docket2862 EDA 2019

StatusUnpublished

This text of Com. v. Zhao, W. (Com. v. Zhao, W.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Com. v. Zhao, W., (Pa. Ct. App. 2020).

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Opinion

J. S23038/20

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. J. S23038/20

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 PCRA2 relief 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.

-2- J. S23038/20

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.

-3- J. S23038/20

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.

-4- J. S23038/20

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

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