Com. v. Jones, A. ( 2018 )

J-S34018-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
ALIQUE DAJON JONES
Appellant No. 1603 WDA 2017
Appeal from the Judgment of Sentence entered October 9, 2017
In the Court of Common Pleas of Erie County
Criminal Division at No.: CP-25-CR-0001254-2017
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
ALIQUE DAJON JONES
Appellant No. 1606 WDA 2017
Appeal from the Judgments of Sentence entered October 9, 2017
In the Court of Common Pleas of Erie County
Criminal Division at No.: CP-25-CR-0000986-2017
BEFORE: BOWES, STABILE, and STRASSBURGER,* JJ.
MEMORANDUM BY STABILE, J.: FILED AUGUST 23, 2018
Appellant Alique Dajon Jones appeals from the October 9, 2017
judgments of sentence entered in the Court of Common Pleas of Erie County
(“trial court”), following his jury convictions for possession with intent to
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* Retired Senior Judge assigned to the Superior Court.
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deliver (“PWID”) a controlled substance (marijuana) and possession of drug
paraphernalia (baggies) at docket number 0986-2017 (“First Case”),1 and
PWID a controlled substance (marijuana), possession of small amounts of
marijuana and two counts of possession of drug paraphernalia at docket
number 1254-2017 (“Second Case”).2 Upon review, we vacate and remand.
Prior to trial on the foregoing charges, and while represented by
Attorney David G. Ridge, Appellant pro se filed an omnibus pretrial motion to
suppress evidence in the First Case on May 25, 2017.3 The following day, the
pretrial motion was forwarded to Attorney Ridge. On May 30, 2017, Attorney
Ridge filed a motion to withdraw, arguing that Appellant “was no longer
satisfied with [his] services and that [Appellant] did not want to be
represented by [him] any longer.” Motion to Withdraw, 5/30/17, at ¶ 3. On
May 31, 2017, without conducting a hearing, the trial court granted Attorney
Ridge’s motion to withdraw. Appellant proceeded pro se.
On June 25, 2017, Appellant pro se filed a motion to suppress in the
Second Case. On August 1, 2017, nearly two months after Attorney Ridge
was permitted to withdraw from the case, the trial court conducted an on-the-
record Grazier4 hearing to determine whether Appellant intended to proceed
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1 35 P.S. § 780-113(a)(30) and (32).
2 35 P.S. § 780-113(a)(30), (31), and (32).
3Because Appellant was represented by Attorney Ridge, his pro se omnibus
motion was a legal nullity. See Commonwealth v. Ali, 10 A.3d 282 (Pa.
2010) (explaining hybrid representation is not permitted).
4 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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pro se. Following the hearing, the trial court permitted Appellant to represent
himself at trial. On August 18, 2017, without conducting a hearing, the trial
court denied Appellant’s June 25, 2017 suppression motion. On August 23,
2017, the trial court amended its order denying the suppression motion to the
extent the order referred to Appellant’s possession of a loaded handgun.
Following a consolidated trial, a jury found Appellant guilty of multiple drug
offenses in both cases and the trial court sentenced him to, inter alia, an
aggregate term of 9 to 60 months’ incarceration. Appellant filed post-
sentence motions, which the trial court denied. Appellant timely appealed to
this Court. The trial court directed Appellant to file a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal. Appellant complied. In
response, the trial court issued a Pa.R.A.P. 1925(a) opinion.
On appeal, Appellant raises three issues for our review:
[I.] Whether the trial court erred in denying Appellant’s motion to
sever?
[II.] Whether the trial court erred in denying Appellant’s [June 25,
2017] pretrial motion to suppress evidence?
[III.] Whether the Commonwealth presented sufficient evidence
to establish Appellant’s guilt beyond a reasonable doubt of
possession with intent to deliver and possession of drug
paraphernalia?
Appellant’s Brief at 3 (unnecessary capitalizations omitted).
At the outset, we note that the trial court here failed to conduct a
suppression hearing as required by Pa.R.Crim.P. 581, which provides in
relevant part:
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(E) A hearing shall be scheduled in accordance with Rule
577 (Procedures Following Filing of Motion). A hearing may be
either prior to or at trial, and shall afford the attorney for the
Commonwealth a reasonable opportunity for investigation. The
judge shall enter such interim order as may be appropriate in the
interests of justice and the expeditious disposition of criminal
cases.
(F) The hearing, either before or at trial, ordinarily shall be held
in open court. The hearing shall be held outside the presence of
the jury. In all cases, the court may make such order concerning
publicity of the proceedings as it deems appropriate under Rules
110 and 111.
(G) A record shall be made of all evidence adduced at the hearing.
(H) The Commonwealth shall have the burden of going forward
with the evidence and of establishing that the challenged evidence
was not obtained in violation of the defendant’s rights. The
defendant may testify at such hearing, and if the defendant does
testify, the defendant does not thereby waive the right to remain
silent during trial.
(I) At the conclusion of the hearing, the judge shall enter on the
record a statement of findings of fact and conclusions of law as to
whether the evidence was obtained in violation of the defendant's
rights, or in violation of these rules or any statute, and shall make
an order granting or denying the relief sought.
Pa.R.Crim.P. 581(E), (F), and (G) (emphasis added). Because no suppression
hearing was held, the trial court was unable to make the necessary findings
of fact or conclusions of law as to whether the challenged evidence was
obtained in violation of Appellant’s rights. Moreover, for us, as an appellate
court, to entertain a suppression issue, it is vitally important that the trial
court not only hold a suppression hearing, but also render necessary findings
of fact and conclusions of law, as our scope of review is limited to the evidence
presented at the suppression hearing. In the interest of L.J., 79 A.3d 1073,
1088-89 (Pa. 2013). Given the trial court’s failure to hold a suppression
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hearing, we are constrained to vacate Appellant’s judgments of sentence and
remand this case to the trial court to conduct a proper suppression hearing.
We also are troubled by the trial court’s failure to hold a Grazier hearing
prior to granting Attorney Ridge’s motion to withdraw. In Commonwealth
v. Johnson, 158 A.3d 117 (Pa. Super. 2017), we recently noted that “a
suppression hearing constituted a critical stage requiring judicial inquiry into
the defendant’s right to counsel.” Johnson, 158 A.3d at 122 (citations
omitted). Thus, on remand, we remind the trial court to hold a Grazier
hearing prior to conducting the suppression hearing. Appellant must be
afforded an opportunity to be represented by counsel and, if he so chooses,
his new counsel must be given an opportunity to amend the suppression
motions. See Commonwealth v. Payson, 723 A.2d 695, 700 (Pa. Super.
1999) (“Both the right to counsel and the right to self-representation are
guaranteed by the Sixth Amendment to the United States Constitution and by
Article I, Section 9 of the Pennsylvania Constitution. Deprivation of these
rights can never be harmless.”).
Judgments of sentence vacated. Cases remanded. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
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Date: 8/23/2018
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