Commonwealth v. Clyburn

19 Pa. D. & C.5th 179
CourtPennsylvania Court of Common Pleas, Montgomery County
DecidedDecember 3, 2010
DocketCP-46-CR-0006860-2008
StatusPublished

This text of 19 Pa. D. & C.5th 179 (Commonwealth v. Clyburn) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Montgomery County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Clyburn, 19 Pa. D. & C.5th 179 (Pa. Super. Ct. 2010).

Opinion

CARPENTER, J,

FACTUAL AND PROCEDURAL HISTORY

Appellant, Anne L. Clyburn, appeals from the judgment of sentence imposed on September 9, 2009, following her conviction of theft by unlawful taking or disposition (over $2,000)1, theft by unlawful taking or disposition ($200 - $2,000)2, theft by deception, false impression (over $2,000)3, theft by deception, false impression ($200 - $2,000)4, receiving stolen property (over $2,000)5, receiving stolen property ($200 - $2,000)6, tampering with records or identification7 and unlawful use of a computer8.

Appellant’s convictions arose from her former position as Chief Executive Officer at the United Food and Commercial Workers Local 1776 Federal Credit Union. During her approximately six and one-half years as CEO, appellant awarded herself raises which were never approved by the credit union’s board of directors, she manipulated the line of credit on her credit union issued debit card and wrote checks from the credit union’s operating account for her personal expenses. Appellant stole more than $32,400.00 from the credit union’s members, a credit union which serves people [182]*182of very modest means.

On July 7, 2010, appellant was brought before this court for a three-day jury trial, stating that she wished to represent herself. (Trial 7/7/10 p.4) Thereafter, this court conducted a colloquy in order to assure the validity of appellant’s waiver of counsel. Satisfied that appellant knowingly, intelligently and voluntarily waived her right to counsel, this court proceeded to conduct the trial with appellant promoting a pro se defense.

At trial, the Commonwealth called Joseph Bressi, the current CEO of the credit union and appellant’s successor, to testify. The Commonwealth also presented Mary Dunne, the treasurer of the credit union, Sergeant Rocco Wack and a forensic accountant, Steven A. Witten, to testify. After the Commonwealth rested, appellant presented the testimony of Professor Stephan Clybum, appellant’s husband. The Commonwealth then presented a rebuttal witness, Nans Lassen, a union-side labor attorney.

At the conclusion of the trial, appellant was found guilty of the aforementioned charges. On September 9, 2010, appellant, who was then represented by counsel, was sentenced. Subsequently, with the assistance of counsel, appellant filed post-sentence motions. These were denied on September 13, 2010. This timely counseled appeal followed.

ISSUES

I. Whether appellant knowingly, voluntarily and intelligently waived her right to counsel at trial.

II. Whether the verdict was against the weight of the evidence, and whether the evidence was sufficient to convict [183]*183appellant.

III. Whether this court properly warned appellant to ask proper questions at trial.

IV. Whether appellant had the opportunity to voir dire the expert witness, Steve Whitten.

V. Whether Steve Whitten’s expert opinion was proper.

VI. Whether this court was responsible for directing the court reporter to transcribe the notes of testimony of the opening statements and closing arguments.

VII. Whether this court properly allowed the jury to take back, during deliberations, the forensic accounting reports.

VIII. Whether the testimony of Nans Lassen was proper.

IX. Whether this court was required to colloquy appellant on her decision not to testify at trial.

X. Whether the accountant’s report was properly introduced during the testimony of Joseph Bressi.

XI. Whether appellant had the opportunity to question Joseph Bressi on re-cross examination.

XII. Whether Mary Dunne properly referenced the forensic report.
XIII. Whether testimony regarding a severance package was proper.

DISCUSSION

I. Appellant Knowingly, Voluntarily and Intelligently Waived Her Right to Counsel at Trial

First, appellant argues that she did not have a knowing, [184]*184voluntary and intelligent waiver of her right to counsel. This court disagrees.

A criminal defendant’s right to counsel under the Sixth Amendment includes the concomitantrightto waive counsel’s assistance and proceed to represent oneself at criminal proceedings. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Commonwealth v. El, 602 Pa. 126, 134, 977 A.2d 1158, 1162 (2009). The right to appear pro se is guaranteed as long as the defendant understands the nature of his choice. Faretta, 422 U.S. at 835, 95 S.Ct. 2525. In Pennsylvania, Rule of Criminal Procedure 121 sets out a framework for inquiry into a defendant’s request for self-representation. Pa.R.Crim.P. 121. Where a defendant knowingly, voluntarily, and intelligently seeks to waive his right to counsel, the trial court must allow the individual to proceed pro se. See, El, supra; Commonwealth v. Starr, 541 Pa. 564, 664 A.2d 1326, 1335 (1995) (holding that a defendant must demonstrate a knowing waiver).

To ensure that a waiver of counsel is knowing, voluntary and intelligent, a defendant must be colloquied on her understanding of at least the following six elements: (1) whether she understands her right to free counsel, (2) whether she understands the nature of the charges against her and their elements, (3) whether she is aware of the possible sentences, (4) whether she understands that if she waives her right to counsel, she will still be bound by the rules of procedure and that counsel would be familiar with these rules, (5) whether she understands that there are possible defenses of which counsel might be aware and which may be lost permanently and (6) whether she understands that she has other rights that may be lost permanently if not timely asserted, including objections to errors. Pa.R.Crim.P 121(A)(2); Commonwealth [185]*185v. Houtz, 856 A.2d 119 (Pa.Super. 2004).

In this case, appellant affirmatively stated that she wished to represent herself. (Trial 7/7/ 10 p. 4). This was not the first time that appellant expressed to the court that she wished to do so. Id. at 13. It is a conversation that appellant had with this court on more than one occasion in the courtroom. Id. at 13-14. Appellant had previously expressed that she had some difficulty with attorneys in the past and finally got to the point where she intended to represent herself. Id. at 13. The decision to waive the right to counsel was not a decision appellant made on the day of trial. Id.

Appellant reviewed, understood and signed the waiver of counsel form. Id. at 4-5, 13.9

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Related

Faretta v. California
422 U.S. 806 (Supreme Court, 1975)
Commonwealth v. Duffy
832 A.2d 1132 (Superior Court of Pennsylvania, 2003)
Commonwealth v. Hawkins
701 A.2d 492 (Supreme Court of Pennsylvania, 1997)
Commonwealth v. Montalvo
641 A.2d 1176 (Superior Court of Pennsylvania, 1994)
Commonwealth v. Starr
664 A.2d 1326 (Supreme Court of Pennsylvania, 1995)
Commonwealth v. El
977 A.2d 1158 (Supreme Court of Pennsylvania, 2009)
Commonwealth v. Steward
775 A.2d 819 (Superior Court of Pennsylvania, 2001)
Commonwealth v. Fox
619 A.2d 327 (Superior Court of Pennsylvania, 1993)
Commonwealth v. Bryant
855 A.2d 726 (Supreme Court of Pennsylvania, 2004)
Commonwealth v. Banks
311 A.2d 576 (Supreme Court of Pennsylvania, 1973)
Commonwealth v. Bullock
518 A.2d 824 (Supreme Court of Pennsylvania, 1986)
Commonwealth v. Houtz
856 A.2d 119 (Superior Court of Pennsylvania, 2004)
Commonwealth v. Schoff
911 A.2d 147 (Superior Court of Pennsylvania, 2006)

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Bluebook (online)
19 Pa. D. & C.5th 179, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-clyburn-pactcomplmontgo-2010.