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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA v. GREGORY B. BARTUCCI

Appellant No. 1686 MDA 2015

Appeal from the Judgment of Sentence July 8, 2015 in the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0001286-2014

BEFORE: MUNDY, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J. FILED SEPTEMBER 15, 2017

Appellant, Gregory B. Bartucci, appeals pro se from the judgment of sentence entered in the Court of Common Pleas of Lancaster County, following his conviction by a jury of theft by unlawful taking, 1 theft by deception,2 and forgery.3 Appellant challenges (1) the denial of his right to self-representation; (2) his appearance before the jury in prison clothes; (3) the denial of his right to a speedy trial; (4) the preclusion of Hollinger Inc.’s insurance loss claim; and (5) the alleged denial of credit for time spent in New Jersey custody. We affirm.

* Former Justice specially assigned to the Superior Court. 1 18 Pa.C.S. § 3921(a). 2 18 Pa.C.S. § 3922(a)(1). 3 18 Pa.C.S. § 4101(a)(2). J-S50005-16 We adopt the facts and procedural history set forth by the trial court’s opinion. See Trial Ct. Op., 6/22/17, at 1-4. This appeal followed. Appellant raises the following issues for our review:4 I. Was the core of the defendant’s “Faretta” right to self- representation egregiously violated under the Federal Sixth Amendment guarantee which subsequently created the existence of a structural error requiring the automatic reversal of his conviction? II. Was the integrity of the defendant’s trial structure under the Federal Fifth, Sixth, and Fourteenth Amendment guarantee’s rendered so fundamentally unfair and undermined, when he was forced to appear before the venire and petit jury panel’s wearing prison clothes and appeared dishevelled, creating the existence of plain error requiring the reversal of his conviction? III. Was the defendant’s speedy trial rights as guaranteed by the Sixth Amendment of the U.S. Constitution and its implementation under the Commonwealth’s Rule 600 limits violated, requiring dismissal of the criminal information with prejudice? IV. Was the trial court’s preclusion of Hollinger Inc.’s insurance loss claim as inadmissible hearsay a violation of defendant’s constitutional rights to due process, fundamental fairness and compulsory process under the Sixth Amendment and Fourteenth Amendment’s of the U.S. Constitution? V. Did the trial court abuse its discretion when it denied defendant credit for time spent in New Jersey custody pursuant to Pennsylvania’s fugitive warrant? Appellant’s Brief at 5.5

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First “[A]ppellant contends that the trial court failed to comply with the dictates of Faretta v. California, 422 U.S. 806 (1975), and that this automatically violated his right of self-representation since the right to

appear pro se exists to affirm the accused’s individual dignity and autonomy.” Id. at 9. Appellant, who was permitted to represent himself at

trial, claims “[t]he trial court disregarded [A]ppellant’s dignity and autonomy, under the ‘core’ Faretta right when it excluded his [sic] from directly participating in the voire [sic] dire sidebar conferences.” Id. at 12.

Appellant concludes that his “conviction must be reversed in it’s [sic] entirety.” Id. at 9.

It is well-established that

Potentially disruptive defendants, like all defendants, have the right to represent themselves if counsel is validly waived. Whenever a defendant seeks to represent himself, and particularly when he may be disruptive, standby counsel should be appointed. The court should explain to the defendant the standards of conduct he will be expected to observe. If the defendant misbehaves, he should be warned that he will be removed from the court . ...

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Commonwealth v. Africa, 353 A.2d 855, 864 (Pa. 1976).

After a thorough review of the record, Appellant’s brief, and the well- reasoned opinion of the Honorable Howard F. Knisley,6 we conclude

Appellant’s first issue merits no relief. The trial court opinion comprehensively discusses and properly disposes of the first question presented. See Trial Court Op. at 6-10 (holding Appellant’s conduct prior to trial required the court to take precautions and not permit Appellant to approach the bench for sidebar conferences in close proximity to four prospective jurors).

Second, Appellant avers that “[i]t is axiomatic, the fair trial right

encompassed under the Federal Sixth Amendment, precludes the Commonwealth from requiring that a defendant appear at trial in distinctive prison garb, or appearing disheveled [sic].” Id. at 19.

Prior to trial, the following exchange took place between the court and Appellant:

The Court: [to Appellant], I sent [Public Defender, Daniel M. Straszynski] out to see you two weeks ago to tell you to have your clothing ready to proceed to trial today. I notice you’re still in your prison garb. Why is that and are you going to change or are you going to trial in a prison outfit?

Sit. You don’t stand.

[Appellant]: Sorry. Sorry. I didn’t know the rules and regulations.

6 We note that the Commonwealth’s brief incorporated the trial court’s opinion as its own.

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The Court: You better know them because that’s what you’re here for. [Appellant]: We’re going to start that? You’re gonna shout? I can shout, too. The Court: Guess what? [Appellant]: How’s that? The Court: You shout; you’ll be out of the courtroom. [Appellant]: You wanna shout? You wanna disrespect me? The Court: [to Appellant], answer my question. [Appellant]: You’re─you’re not supposed to even be proceeding here, sir. You have a motion for recusal. You’re not supposed to even be presiding over these proceedings, sir. The Court: Oh, that’s how we’re going to be. Are you going to be dressed for trial or not? I haven’t ruled on anything yet. [Appellant]: No. I don’t run the goddamned jail. I filled out three slips to have my stuff approved. The Court: Calm your voice down or─ [Appellant]: Those hillbilly rednecks down there don’t give a shit about me complying with the law in your courtroom, Your Honor. The Court: I asked─ [Appellant]: Now, do you hear that? The Court: I didn’t hear a thing you said except what’s responsive to my question. Are you going to go to trial in that outfit, or would you like Mr. Straszynski to provide J-S50005-16 you with some clothing before the jury’s brought into the courtroom?

* * *

Let me just say for the record, the defendant continues to scream in the courtroom and be unresponsive to the judge’s question.

[Appellant]: You’re not no judge; you’re a clown. That’s what you are.

The Court: [to Appellant], do you wish to have clothing provided by Mr. Straszynski? That’s what─

[Appellant]: I’m not proceeding in these proceedings, Your Honor, because I have none of my materials, which have been taken away from me, none of my materials.

The Court: You were told trial is today.

[Appellant]: Yeah. Well, guess what? You go down there and call them redneck hillbillies down there and ask them why they take my materials and why I’m being denied access to the─to the law library. And they know that I wrote request after request; I have a trial on this date, Your Honor.

The Court: You have been to the law library 125 separate occasions, more than anyone else in the history of Lancaster County Prison. You have had 22 prior appearances before Courts, predominantly in New Jersey, but also in the state of Louisiana, all of which indicate you have had opportunities to appear and understand what’s happening in this court. This is the day for trial.

[Appellant]: Um-hum.

The Court: The answer to─my question is, do you wish to have clothing provided, or do you want to go to trial in your prison outfit?

[Appellant]: No. I’m objecting. I’m objecting to the proceedings . . . .

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* * * The Court: [to Appellant] will be─ [Appellant]: Now─ The Court: ─removed from the jury room─or the courtroom. The jurors will be brought here promptly at 1:30. Clothing will be prepared for him and given to him. If he chooses to wear them, fine. If he doesn’t, then it’s his prejudice that he’s providing to the jurors, not the Court’s, because the court has properly provided clothing for him to change into. N.T., 4/13/15, at 5-11. Following our review of the record, we find no merit to Appellant’s claim and adopt the reasoning of the trial court. See Trial Ct. Op. at 10-13 (holding Appellant rejected the civilian clothes being offered to him, therefore, he “failed to show that any prejudice caused by his appearance was in any way the result of the actions, requirements or policy of this [c]ourt”). Id. at 13. Third, Appellant argues, regarding his application for dismissal under Rule 600, that the cursory findings of the trial court cannot be considered binding where the decision was not supported by adequate, substantial and credible evidence and was in complete error. * * * The trial courts supercilious efforts to ensure the denial of [A]ppellant’s Rule 600 motion was judgment exercised in a manifestly unreasonable manner, a misapplication of the law and was the result of partiality, prejudice, bias or

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ill-will as affirmatively shown by evidence appearing from the record. For these reasons, [A]ppellant’s conviction must be vacate [sic] and reversed in its entirety, a writ of habeas corpus issued releasing him from confinement on nominal bail terms or dismiss the criminal information in its entirety with prejudice.

Id. at 35, 37 (citation omitted).

Our standard and scope of review in analyzing a Rule 600 7 claim is as follows:

In evaluating Rule 600 issues, our standard of review of a trial court’s decision is whether the trial court abused its discretion. Judicial discretion requires action in conformity with law, upon facts and circumstances judicially before the court, after hearing and due consideration. An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence or the record, discretion is abused.

Commonwealth v. Peterson, 19 A.3d 1131, 1134-35 (Pa. Super. 2011)

(citations omitted) (en banc). Following our review of the record, we discern no abuse of discretion by the trial court. See id. We find the trial court opinion properly disposes of the issue and we rely upon it. See Trial Ct. Op. at 13-19 (noting periods of delay caused by Appellant).

Fourth, Appellant contends

7 We note that a new Rule 600 was adopted, effective July 1, 2013, “to reorganize and clarify the provisions of the rule in view of the long line of cases that have construed the rule.” Pa.R.Crim.P. 600, Cmt. However, because the criminal complaint in this case was filed on April 9, 2013, prior to the new rule, we will apply the former version of Rule 600. The amendments to Rule 600 do not affect the result in this case.

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the trial court abused it’s judicial discretion in refusing the admit into evidence, J.L. Hollinger Inc.’s insurance loss claim that irrefutably reimbursed the complainant in the amount of $60500. This insurance claim which exceeded the $42500 amount as charged in the Commonwealth’s criminal information, would have shed light on this unexplained reason for this loss discrepancy, and further, these issues go to the weight of the evidence the trier-of- fact may have given to the insurance claim in reaching their verdict. Therefore, [A]ppellant was subjected to an erroneous denial of his constitutional rights to due process, fundamental fairness and compulsory process under the Sixth and Fourteenth Amendments to the U.S. Constitution. Accordingly, [A]ppellant’s conviction must be vacated in it’s [sic] entirety.

Appellant’s Brief at 40.

Our review is governed by the following principles:

The admission of evidence is solely within the discretion of the trial court, and a trial court’s evidentiary rulings will be reversed on appeal only upon an abuse of that discretion. An abuse of discretion will not be found based on a mere error of judgment, but rather occurs where the court has reached a conclusion that overrides or misapplies the law, or where the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will.

Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015), (citations and quotation marks omitted), cert. denied, 137 S. Ct. 92 (2016).

Whether a document should be admitted under the business records exception to the hearsay rule is within the discretion of the trier of fact provided that his or her discretion is exercised within the dictates of Section 6108.[8] This type of evidentiary ruling may only be

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reversed on appeal if an error of law was committed or there was a clear abuse of discretion. A document not prepared by the person testifying is not automatically rendered inadmissible, as long as the authenticating witness can provide sufficient information relating to the preparation and maintenance of the records to justify a presumption of reliability.

Toth v. W.C.A.B. (USX Corp.), 737 A.2d 838, 841 (Pa. Commw. 1999).9

At trial, Chad Michael Hollinger10 testified, inter alia, as follows regarding a document pro se Appellant showed him: