Com. v. Ray, T., Jr. , 2016 Pa. Super. 37 ( 2016 )

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2016 PA Super 37COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TRAVIS MAURICE RAY, JR.
Appellant No. 681 MDA 2015
Appeal from the Judgment of Sentence March 4, 2015
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0005164-2014
BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED FEBRUARY 17, 2016
Appellant, pro se, appeals from the judgment of sentence entered in
the York County Court of Common Pleas by the Honorable Richard K. Renn
on March 4, 2015, following a bench trial. Upon our review of the record, we
affirm.
Appellant was convicted of one count each of fleeing or attempting to
elude police officer, accidents involving damage to attended vehicle or
property, and five counts of accidents involving damage to unattended
vehicle or property.1 Also on that date, the trial court imposed a sentence of
eleven and one half months to twenty-three months in prison on the fleeing
or attempting to elude a police officer conviction and a consecutive term of
twelve months of probation on the accidents involving damage to attended
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1
75 Pa.C.S.A. §§ 3733(a), 3743(a) and 3745(a), respectively.
*Former Justice specially assigned to the Superior Court.
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vehicle or property conviction. Appellant was ordered to pay the costs of
prosecution for the remaining counts.
Appellant’s trial counsel filed a motion to withdraw on March 9, 2015,
asserting that Appellant had filed a complaint against him with the
Disciplinary Board. The trial court granted the motion to withdraw on March
10, 2015, and Appellant filed a pro se post-sentence motion on March 17,
2015, which was denied April 1, 2015. On April 15, 2015, Appellant filed a
pro se notice of appeal. The next day, the trial court directed Appellant to
file a statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b) within twenty-one days and notified him that a failure to do so may
result in his issues being waived on appeal.2
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2
We note that a notice of appeal must be filed within 30 days of the
entry of the order being appealed. See Pa.R.A.P. 903(a); Commonwealth
v. Moir, 766 A.2d 1253 (Pa.Super. 2000). This Court may not extend the
time for filing a notice of appeal. See Pa.R.A.P. 105(b). Pa.R.Crim.P. 720
provides that a party may file post-sentence motions no later than 10 days
after imposition of sentence.
Appellant’s pro se post-sentence motion, dated March 4, 2015, is
entered on the trial court docket on March 17, 2015. Because the tenth day
from March 4, 2015, fell on a Saturday, March 14, 2015, Appellant had until
Monday, March 16, 2015, to file a timely post-sentence motion. See 1
Pa.C.S. § 1908 (relating to computation of time for the rule of construction
and relating to the omission of the last day of a time-period which falls on
Saturday, Sunday or legal holiday). The certified record indicates that
Appellant mailed his post-sentence motion to the York County Clerk of
Courts and to the trial court judge. The envelope addressed to the Clerk of
Courts bears a time-stamp of March 17, 2015, and does not contain a
postmark date. However, the envelope addressed to the trial court does
include a mailing stamp date of March 13, 2015. Both envelopes evince
(Footnote Continued Next Page)
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On May 5, 2015, Appellant filed a document entitled “Notice” wherein
he indicated he intended to raise the following matters on appeal:
1. Jurisdiction over the person of [Appellant] or jurisdiction of
the Court of Common Pleas to even hear the case.
2. Grading of offense
3. Violation of 6 amendment and Pa.Constitution § 9.
4. Sufficiency of evidence
5. Weight of evidence
6. Violation of the 13th amendment excessive bail or fines or
punishment
7. Duress or extortionate credit loaning.
See “Notice,” filed 5/5/15, at ¶¶ 1-7.
In this Court’s April 24, 2015, Order, the trial court was directed to
hold a hearing, pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa.
1988) (requiring on-the-record inquiry to determine whether waiver of
counsel is knowing, intelligent and voluntary). In its Order of April 28, 2015,
the trial court noted that while a Grazier hearing had been held on April 1,
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(Footnote Continued)
they were mailed from prison. Because the post-sentence motion was
postmarked within the ten-day window to file a timely post-sentence motion,
it follows that Appellant placed the post-sentence motion in the hands of the
prison authorities within the ten-day window as well. See Pa.R.A.P. 121(a)
(A pro se filing submitted by a prisoner incarcerated in a correctional facility
is deemed filed as of the date it is delivered to the prison authorities for
purposes of mailing or placed in the institutional mailbox, as evidenced by a
properly executed prisoner cash slip or other reasonably verifiable evidence
of the date that the prisoner deposited the pro se filing with the prison
authorities); see also Commonwealth v. Patterson, 931 A.2d 710 (Pa.
Super. 2007)(even when no postmark definitively notes the date of mailing,
this Court may avoid quashal where the date of receipt indicates an
appellant likely placed the notice of appeal in the hands of prison authorities
before the expiration of thirty days). In light of the above, this Court has
jurisdiction over the instant appeal.
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2015, prior to proceeding to arguments on Appellant’s post sentence
motions, the issue of Appellant’s waiver of his right to counsel on appeal had
not been addressed. As such, it stated it would convene a hearing to
determine whether Appellant wished to waive his right to counsel on direct
appeal as he had expressed his desire to do for purposes of arguing post-
sentence motions.
On June 3, 2015,3 the trial court held a Grazier hearing at which time
it informed Appellant he would be bound by the same rules of appellate
procedure should he choose to proceed pro se as would a defendant
represented by counsel; notwithstanding, Appellant indicated he wished to
continue to proceed pro se. N.T, 6/4/15, at 2-6. He later stated he wanted
the assistance of “backup counsel just for the formatting.” Id. at 6-7.
Following the Grazier hearing, the trial court provided this Court with its
finding that Appellant knowingly, voluntarily, and intelligently elected to
proceed pro se on appeal. In an order of June 4, 2015, the trial court
appointed Marc J. Semke, Esquire as standby counsel.
On August 20, 2015, the trial court filed its Opinion Pursuant to
Pa.R.A.P. 1925(a) of the Pennsylvania Rules of Appellate Procedure.
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3
The Grazier hearing initially had been scheduled for May 22, 2015, but
Appellant was not present at that time. The trial court indicated on the
record it was advised on that date that Appellant had been released from
custody and prior notice of the hearing had been sent to him at the York
County Prison. Accordingly, the trial court rescheduled the hearing.
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Therein, the court indicated standby counsel’s attempts to reach Appellant
had been unsuccessful, but counsel informed the court “he was making
every attempt” to do so. In addition, the trial court also stated that to date,
it had not received Appellant’s statement pursuant to Pa.R.A.P. 1925(b), and
as a result it was unsure as to what issues he intended to raise on appeal or
whether he planned to pursue his appeal at all. Trial Court Opinion,
8/19/15, at 2.
On August 26, 2015, Appellant filed his “Statement of Matters
Complained of Under Pa.R.A.P. 1925(b)” wherein he indicated he intended to
raise the following issues on appeal:
I. Whether the Commonwealth had sufficient evidence to
sustain a guilty verdict of felony three fleeing or
attempting to elude police officer in that:
A. The Commonwealth failed to establish that [Appellant]
endangered a law enforcement officer or member of the
general public due to the defendant engaging in a high
speed chase.
II. Whether the trial court erred in denying Appellant’s post
sentence motion arguing that the juries [sic] verdicts were
against the weight of the evidence as:
A. There was a lack of physical evidence
B. Officer Craven’s testimony contradicted the affidavit of
probable cause.
C. Officer Craven’s testimony contradicted his own
testimony during the preliminary hearing.
D. Dash camera video did not provide evidence that
[Appellant] was driving the vehicle.
III. Whether [Appellant] was denied rights granted by the 6th
Amendment and Section 9 of the PA constitution by not
compelling Sunciarai Manning to Testify.
IV. Whether the Court had jurisdiction over the defendant?
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In the “Statement of the Questions Involved” portion of his appellate
brief, Appellant presents these same claims. See Brief for Appellant at 5.
Before we consider the merits of the questions Appellant has raised for
our consideration, we must first determine whether he has preserved them
for our review. The Commonwealth asserts Appellant has waived all issues
for our review for his failure file a Pa. R.A.P. 1925(a) statement. While the
Commonwealth acknowledges Appellant filed his “Notice” with the Clerk of
Courts on May 5, 2015, it posits it cannot be considered filed due to its
vagueness. The Commonwealth further avers the fact that the trial court
indicated in its August 20, 2015, Opinion it had not received a Pa.R.A.P.
1925 statement from Appellant evinces the latter failed to serve both the
trial court and the Clerk of Courts with this document in accordance with the
Pennsylvania Rules of Appellate Procedure. Finally, the Commonwealth
stresses that the “Statement of Matters Complained of Under Pa.R.A.P.
1925” which Appellant ultimately filed on August 26, 2015, was not
accompanied by a motion requesting the trial court to accept the filing nunc
pro tunc as Pa.R.A.P. 1925(b)(2) provides it with the authority to do in
extraordinary circumstances.4 As such, the Commonwealth reasons this
filing was a legal nullity and should not be considered by this Court.
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4
Pa.R.A.P. 1925(b)(2) provides that: “[u]pon application of the appellant
and for good cause shown, the judge may enlarge the time period initially
specified or permit an amended or supplemental Statement to be filed. . . .
(Footnote Continued Next Page)
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Upon our review of the record, we disagree that Appellant did not
timely file his “Notice” as a purported Pa.R.A.P. 1925(a) statement. While
the trial court did indicate in its Opinion it had not yet received Appellant’s
Pa.R.A.P. 1925(b) statement, it makes no mention of the previously filed
Notice which purports to be one. Appellant, who was incarcerated at the
time he prepared the Notice, addressed the document to the trial court and
attached a Certification of Service thereto indicating that on April 27, 2015,
he served it upon the trial court, the Clerk of Courts, and the Prothonotary of
this Court. Notwithstanding, the certified record indicates that on May 5,
2015, a pro se correspondence was served only upon the York County
District Attorney’s Office. As such, it appears Appellant attempted to file
properly his Notice which bears a time stamp of the Clerk of Court Office;
thus, we will deem Appellant’s Notice to have been a timely filing of 1925(b)
statement under these circumstances, as it was filed within twenty-one days
of the trial court’s order.
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(Footnote Continued)
In extraordinary circumstances, the judge may allow for the filing of a
Statement of amended or supplemental Statement nunc pro tunc.” See
also Commonwealth v. Woods, 909 A.2d 372, 378 (Pa.Super 2006)
(stating that an appellant who has filed a timely Pa.R.A.P. 1925(b)
statement and later for good cause shown discovers additional time is
required in which to file a supplemental Pa.R.A.P. 1925(b) statement, he
may file a separate petition seeking permission to file a supplemental
Pa.R.A.P. 1925(b) statement nunc pro tunc).
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In any event, as this Court has noted, a timely-filed Pa.R.A.P. 1925(b)
statement does not automatically equate to issue preservation. Jiricko v.
Geico Ins. Co., 947 A.2d 206, 210 (Pa.Super. 2008). “[T]he
Pa.R.A.P.1925(b) statement must be sufficiently ‘concise’ and ‘coherent’
such that the trial court judge may be able to identify the issues to be raised
on appeal. . . .” Id.Rule 1925 is intended to aid trial judges in identifying and
focusing upon those issues which the parties plan to raise on
appeal. Rule 1925 is thus a crucial component of the appellate
process. When a court has to guess what issues an appellant is
appealing, that is not enough for meaningful review. When an
appellant fails adequately to identify in a concise manner the
issues sought to be pursued on appeal, the trial court is impeded
in its preparation of a legal analysis which is pertinent to those
issues. In other words, a Concise Statement which is too vague
to allow the court to identify the issues raised on appeal is the
functional equivalent of no Concise Statement at all. While
[Commonwealth v.] Lord[,] [553 Pa. 415, 719 A.2d 306(1998)] and its progeny have generally involved situations
where an appellant completely fails to mention an issue in his
Concise Statement, for the reasons set forth above we conclude
that Lord should also apply to Concise Statements which are so
vague as to prevent the court from identifying the issue to be
raised on appeal.
Commonwealth v. Dowling, 778 A.2d 683, 686-87 (Pa.Super. 2001)
(citations and quotation marks omitted).
We find that the issues Appellant listed in his “Notice” fail to
adequately and concisely identify the issues he sought to pursue on appeal.
Instead, he presented vague fragmented statements and phrases without
specifying to which of his convictions they pertained. As such, even if it had
had the document in its possession, the trial court would have been impeded
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in its preparation of a meaningful legal analysis. Similarly, Appellant’s
attempt to preserve his issues for appellate review by filing a Rule 1925(b)
statement on August 26, 2015, must fail. As noted, the trial court ordered
Appellant to file his Rule 1925(b) statement within twenty-one days in its
April 16, 2015, Order. Appellant filed his Rule 1925(b) statement over four
months later; therefore, it is patently untimely.
We acknowledge that Appellant is proceeding pro se in this appeal,
and had requested the assistance of standby counsel simply to aid in his
“formatting” of the appeal; however, his status as a pro se litigant does not
entitle him to any advantage due to his lack of legal training. Further, a
layperson choosing to represent himself in a legal proceeding to a
reasonable extent assumes the risk that his lack of legal training will place
him at a disadvantage. Kovale v. Sowell, 839 A.2d 359, 367 n. 7 (Pa.
Super. 2003). Accordingly, a pro se litigant must still comply with the
Pennsylvania Rules of Appellate Procedure. Jones v. Rudenstein, 585 A.2d
520, 522 (Pa.Super. 1991) (citing Farretta v. California, 422 U.S. 806,
834 n. 46 (1975)).
Herein, the trial court specifically informed Appellant as it had done
previously with regard to his filing of post-sentence motions that by
proceeding pro se he would be bound by the rules of appellate procedure
and his failure to abide by them would put him at risk of waiving important
issues on appeal. N.T., 6/4/15, at 2-6. Nevertheless, Appellant indicated
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he wished to proceed pro se, and only after the trial court filed its Opinion
pursuant to Pa.R.A.P. 1925(a) did he file his Pa.R.A.P. 1925(b) statement.
At no time did he indicate he wanted standby counsel to assist with the
substantive aspects of his appeal, like the preparation of a Pa.R.A.P. 1925(b)
statement. Even were his declaration that he wanted the assistance of
standby counsel “just for the formatting” to be so construed, the trial court
advised him he bore the responsibility of adhering to the Pennsylvania Rules
of Appellate Procedure which required him to file a corresponding motion
seeking permission to supplement his previously-filed Notice by filing a
Pa.R.A.P. 1925(b) statement nunc pro tunc. See Pa.R.A.P. 1925(b)(2);
Woods, supra. Appellant never did so.
For all of the foregoing reasons, we find Appellant has failed to
preserve the issues he may have raised on appeal in a properly filed Rule
1925(b) statement. As such, we affirm his judgment of sentence.
Judgment of Sentence Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/17/2016
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