Com. v. Sanders, J. ( 2018 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JERMAINE SANDERS, : No. 1258 MDA 2017
:
Appellant :
Appeal from the Judgment of Sentence, July 10, 2017,
in the Court of Common Pleas of York County
Criminal Division at No. CP-67-CR-0002003-2015
BEFORE: SHOGAN, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 27, 2018
Jermaine Sanders appeals pro se from the July 10, 2017 judgment of
sentence of 538 days’ imprisonment imposed, with the possibility of
re-parole after 180 days, following the revocation of his parole.1 For the
following reasons, we affirm the judgment of sentence.
The underlying facts and procedural history of this case are as follows.
On November 17, 2015, appellant was found guilty of fleeing or attempting
to elude a police officer2 following a two-day jury trial. On December 29,
2015, the trial court sentenced appellant to 9 to 23 months’ imprisonment.
Appellant filed timely post-sentence motions on January 7, 2016, wherein he
1 Appellant also received 112 days credit for time-served.
2 75 Pa.C.S.A. § 3733(a).
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asked the trial court to reconsider his sentence and challenged the weight of
the evidence. On April 21, 2016, the trial court granted appellant’s motion
in part, resentencing him to 6 to 23 months’ imprisonment, but denied his
request for a new trial. On May 18, 2016, appellant timely filed a notice of
appeal. A panel of this court dismissed his appeal on December 7, 2016, for
failure to file a brief.
On December 12, 2016, appellant filed a petition to reinstate his direct
appeal rights nunc pro tunc, which was granted on December 13, 2016.
Appellant timely filed a notice of appeal nunc pro tunc on December 30,
2016. On January 5, 2017, the trial court ordered appellant to file a concise
statement of errors complained of on appeal, in accordance with
Pa.R.A.P. 1925(b). On January 26, 2017, appellant’s counsel filed a
Pa.R.A.P. 1925(c)(4) statement of his intent to file a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), and its progeny. On March 21,
2017, counsel filed an Anders brief and petition to withdraw representation.
Appellant filed pro se responses to counsel’s request to withdraw on April 24
and May 5, 2017. Thereafter, on July 6, 2017, a panel of this court affirmed
appellant’s judgment of sentence and granted counsel’s petition to withdraw.
See Commonwealth v. Sanders, 2017 WL 2875426 (Pa.Super. July 6,
2017) (unpublished memorandum).
On July 10, 2017, a parole violation hearing was held after appellant
failed to report to the York County Adult Probation Office on three separate
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occasions between December 2016 and January 2017. At this hearing, the
Commonwealth recommended that appellant serve the unserved balance of
his sentence, with the possibility of re-parole after 180 days. (Notes of
testimony, 7/10/17 at 6.) Appellant acknowledged at the hearing that he
did not personally appear at the Adult Probation Office, but argued that he
was not in violation of his parole because he contacted his probation officer
by email each month. (Id. at 6-7.) Appellant failed to present any evidence
at the hearing that email was an acceptable alternative in this
Commonwealth to reporting in-person at the Adult Probation Office.
As noted, on July 10, 2017, the trial court determined that appellant
had violated the terms of his parole and sentenced him to serve 538 days’
imprisonment, with the possibility of re-parole after 180 days. Appellant
also received 112 days’ credit for time-served. On August 7, 2017,
appellant filed a timely pro se notice of appeal. On August 21, 2017, the
trial court ordered appellant to file a Rule 1925(b) statement within 21 days.
On September 1, 2017, this court filed a per curiam order directing the trial
court to conduct a Grazier3 hearing to determine if appellant’s waiver of
counsel was knowing, intelligent, and voluntary. A Grazier hearing was
held on September 20, 2017. On October 3, 2017, the trial court filed an
order and memorandum concluding that appellant’s waiver of counsel
satisfied Grazier. Thereafter, on October 11, 2017, the trial court filed a
3 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988).
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Rule 1925(a) opinion, wherein it noted, inter alia, that appellant failed to
comply with its Rule 1925 order. (See trial court’s Rule 1925(a) opinion,
10/11/17 at 3.)4
Although appellant filed an appellate brief with this court, he has not
presented a clear “Statement of the Questions Involved,” as required by
Pa.R.A.P. 2116(a). Rather, the crux of appellant’s argument on appeal is
that he complied with the reporting requirements of his parole by contacting
his probation officer via email each month. (“Motion of Appeal,” 8/7/17 at
¶ 2; notes of testimony, 7/10/17 at 6-7.) In support of this contention,
appellant notes that jurisdictions like Florida permit parolees to report by
email. (Id.) Appellant also takes issue with the fact that he was
represented at the July 10, 2017 hearing by an “unlicensed” legal intern,
who was acting in coordination with and under the supervision of an
attorney from the York County Public Defender’s Office. (Id.; see also
appellant’s brief at 2-3.)
Before we reach the merits of the instant appeal, we first must
determine whether appellant has properly preserved any claims for our
review. The record reflects that appellant attached an August 29, 2017
document to his pro se brief that appears to be a response to the trial
court’s Rule 1925 order. (See “Brief Response,” dated 8/29/17.) However,
4 Our review of the Grazier hearing transcript reveals that appellant’s
waiver of counsel was knowing, intelligent, and voluntary. (See notes of
testimony, 9/20/17 at 2-9.)
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this document is not part of the certified record, and we agree with the trial
court that appellant never filed a concise statement. This court has long
recognized that the failure to file a concise statement when ordered by the
trial court results in a waiver of issues on appeal. Commonwealth v.
Pettus, 860 A.2d 162, 164 (Pa.Super. 2004) (citations omitted), appeal
denied, 885 A.2d 41 (Pa. 2005). “In order to preserve their claims for
appellate review, [an] appellant[] must comply whenever the trial court
orders them to file a Statement of Matters Complained of on Appeal
pursuant to Pa.R.A.P. 1925. Any issues not raised in a Pa.R.A.P. 1925(b)
statement will be deemed waived.” Commonwealth v. Hill, 16 A.3d 484,
494 (Pa. 2011) (citation and some brackets omitted). Accordingly, we
conclude that appellant has failed to preserve any issues for appellate
review.
Alternatively, even if appellant had complied with Rule 1925(b), we
would nonetheless dismiss this appeal because his brief fails to adhere to the
Pennsylvania Rules of Appellate Procedure. It is well settled that parties to
an appeal are required to submit briefs in conformity, in all material
respects, with the requirements of the Rules of Appellate Procedure, as
nearly as the circumstances of the particular case will permit.
Pa.R.A.P. 2101. “Although this Court is willing to liberally construe materials
filed by a pro se litigant, pro se status confers no special benefit upon the
appellant.” Commonwealth v. Adams, 882 A.2d 496, 498 (Pa.Super.
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2005) (citation omitted). “This Court may quash or dismiss an appeal if the
appellant fails to conform to the requirements set forth in the Pennsylvania
Rules of Appellate Procedure.” Id.Instantly, appellant’s four-page pro se brief falls well below the
standards delineated in our Rules of Appellate Procedure. Specifically,
appellant’s entire brief is comprised of three paragraphs and contains no
statement of jurisdiction, no specification of the order or determination
sought to be reviewed, no statement of the scope or standard of review, no
statement of the case, no summary of argument section, and does not set
forth a specific statement of the questions involved. See
Pa.R.A.P. 2111(a)(1)-(6). The omission of a statement of the questions
involved “is particularly grievous since [it] defines the specific issues this
Court is asked to review.” Commonwealth v. Maris, 629 A.2d 1014, 1016
(Pa.Super. 1993). Additionally, the “Argument” portion of appellant’s brief
does not contain separate sections of the issues he purportedly wishes to
raise on appeal, in violation of Rule 2119(a). We further note that
appellant’s brief lacks the necessary citations to the record in violation of
Rule 2119(b), and fails to provide this court with references to the record, in
violation of Rule 2119(c).
Based on the foregoing, we find all of appellant’s issues waived.
Accordingly, we affirm the trial court’s July 10, 2017 judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/27/2018
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