Commonwealth v. Clyburn

42 A.3d 296, 2012 Pa. Super. 47, 2012 WL 604420, 2012 Pa. Super. LEXIS 53
CourtSuperior Court of Pennsylvania
DecidedFebruary 27, 2012
StatusPublished
Cited by32 cases

This text of 42 A.3d 296 (Commonwealth v. Clyburn) 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
Commonwealth v. Clyburn, 42 A.3d 296, 2012 Pa. Super. 47, 2012 WL 604420, 2012 Pa. Super. LEXIS 53 (Pa. Ct. App. 2012).

Opinion

OPINION BY

SHOGAN, J.:

Appellant, Anne L. Clyburn, appeals from the judgment of sentence entered following her convictions of multiple counts of theft in relation to her conduct while she was an officer of a credit union. We vacate the judgment of sentence and remand the matter for a new trial.

The trial court presented the underlying facts of this case as follows:

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 of 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 [298]*298a forensic accountant, Steven A. Witten, to testify. After the Commonwealth rested, Appellant presented the testimony of Professor Stephan Clyburn, Appellant’s husband. The Commonwealth then presented a rebuttal witness, Nans Lassen, a union-side labor attorney.

Trial Court Opinion, 12/3/10, at 1-2.

At the conclusion of the three-day trial, Appellant was found guilty of Theft by Unlawful Taking or Disposition (over $2,000), Theft by Unlawful Taking or Disposition ($200-$2,000), Theft by Deception, False Impression (over $2,000), Theft by Deception, False Impression ($200-$2,000), Receiving Stolen Property (over $2,000), Receiving Stolen Property ($200-$2,000), Tampering With Records or Identification, and Unlawful Use of a Computer. On September 9, 2010, Appellant, who was then represented by counsel, received an aggregate sentence of one to seven years of incarceration, followed by ten years of probation. Subsequently, with the assistance of counsel, Appellant filed post-sentence motions, which were denied on September 13, 2010. This timely counseled appeal followed.

Appellant presents the following issues for our review:

1. Did the Appellant, Anne L. Clyburn, knowingly, voluntarily and intelligently waive her constitutional right to counsel at the beginning of her jury trial? Is the colloquy of record concerning the waiver of counsel insufficient and defective? Were the procedures required in Pennsylvania Rules of Criminal Procedure 121 not followed? Did the Court err in allowing Ms. Clyburn to proceed without counsel or in not appointing back up counsel or offering court appointed counsel?
2. Did Judge Carpenter err and deprive Ms. Clyburn her right to a proper trial and fundamental due process when he continually threatened her with contempt because she could not properly frame her questions? Did the Court’s repeated threats of contempt and incarceration chill Ms. Clyburn’s right to advocacy and her ability to effectively represent herself?
3.Did Judge Carpenter err in not properly advising or colloquying Ms. Clyburn concerning her right to testify during the trial? Ms. Clyburn did not testify, but was not in a position to make a rational choice and should have been advised she had a right to testify and not to testify. Did the trial judge err in not advising Ms. Clyburn of her right to so testify, particularly since the trial judge had repeatedly chilled her self[-]representation during the trial by repeated threats of criminal contempt?

Appellant’s Brief at 5-6.

Appellant first argues that the trial court erred in allowing her to waive her right to counsel. She asserts that, despite the fact that she completed a written waiver colloquy, the trial court erred in not having a full and complete waiver of counsel colloquy prior to jury selection on the day of trial. Appellant contends that, as a result, the waiver was not done in a knowing, voluntary and intelligent manner.

A criminal defendant’s right to counsel is guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section 9 and Article V, Section 9 of the Pennsylvania Constitution. Commonwealth v. Owens, 750 A.2d 872, 875 (Pa.Super.2000). Alternatively, a criminal defendant has a well-settled constitutional right to dispense with counsel and to defend himself before the court. Commonwealth v. Starr, 541 Pa. 564, 580, 664 A.2d 1326, 1334 (1995) (citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)). “Deprivation of [299]*299these rights can never be harmless.” Commonwealth v. Payson, 723 A.2d 695, 699-700 (Pa.Super.1999).

As our Supreme Court explained in Starr:

In short, this highly personal constitutional right operates to prevent a state from bringing a person into its criminal courts and in those courts force a lawyer upon him when he asserts his constitutional right to conduct his own defense. Faretta, supra, at 807 [95 S.Ct. 2525]. Further, the denial of a criminal defendant’s right to proceed pro se is not subject to a harmless error analysis. McKaskle v. Wiggins, 465 U.S. 168, 177, n. 8, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) (“the right to self-representation is either respected or denied; its deprivation cannot be harmless”).

Starr, 541 Pa. at 580-581, 664 A.2d at 1334-1335. However, a criminal defendant’s right to self-representation is not absolute. Commonwealth v. Vaglica, 449 Pa.Super. 188, 673 A.2d 371, 373 (1996).

Our Supreme Court mandates a “probing colloquy” to determine whether the defendant’s waiver is knowing, voluntary and intelligent. Starr, at 581, 664 A.2d at 1335. The court must also inquire whether:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Com. v. Hornberger, R.
Superior Court of Pennsylvania, 2025
Com. v. Robinson, D.
Superior Court of Pennsylvania, 2025
Com. v. Pagan, N.
Superior Court of Pennsylvania, 2024
Com. v. Southerland, U.
Superior Court of Pennsylvania, 2023
Com. v. Lampley, M.
Superior Court of Pennsylvania, 2023
Com. v. Collins, J.
Superior Court of Pennsylvania, 2023
Com. v. Hosler, H.
Superior Court of Pennsylvania, 2023
Com. v. Watson, A.
Superior Court of Pennsylvania, 2023
Com. v. Mastin, E.
Superior Court of Pennsylvania, 2023
Com. v. Griffin, A., Jr.
Superior Court of Pennsylvania, 2023
Com. v. Phillips, C.
Superior Court of Pennsylvania, 2021
Com. v. Johnson, L.
Superior Court of Pennsylvania, 2020
Com. v. Bieber, E.
Superior Court of Pennsylvania, 2020
Commonwealth v. Isaac
205 A.3d 358 (Superior Court of Pennsylvania, 2019)
Com. v. Turner, B.
Superior Court of Pennsylvania, 2019
Com. v. Gibson, J.
Superior Court of Pennsylvania, 2017
Commonwealth v. Johnson
158 A.3d 117 (Superior Court of Pennsylvania, 2017)
Com. v. Helms, R., Sr.
Superior Court of Pennsylvania, 2016
Com. v. Brisco, D.
Superior Court of Pennsylvania, 2016
Com. v. Isaac, P.
Superior Court of Pennsylvania, 2016

Cite This Page — Counsel Stack

Bluebook (online)
42 A.3d 296, 2012 Pa. Super. 47, 2012 WL 604420, 2012 Pa. Super. LEXIS 53, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-clyburn-pasuperct-2012.