Com. v. Burgwin, H. ( 2023 )

J-S05031-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HAZEL BURGWIN, JR. :
:
Appellant : No. 168 WDA 2022
Appeal from the Judgment of Sentence Entered January 26, 2022
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-SA-0001235-2019
BEFORE: BENDER, P.J.E., LAZARUS, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED: MAY 11, 2023
Hazel Burgwin, Jr. appeals the judgment of sentence entered following
his conviction for driving with a suspended license – DUI related.1 Burgwin
argues that the officer illegally stopped him. We affirm.
The trial court aptly summarized the facts of the case as follows:
Port Vue Borough Police Officer Adams testified that on April
13, 2019, he was dispatched to a convenience store to check
on an alleged harassment of customers. Upon his arrival,
the clerk pointed out [Burgwin], who was standing outside
by a vehicle. Adams followed [Burgwin] after he drove to his
residence, about a block away. When Adams asked for
identification, [Burgwin] produced a DUI-related suspended
driver’s license. During direct examination of Adams,
[Burgwin], through [his trial counsel], stipulated to the
elements of the offense.
____________________________________________
1 75 Pa.C.S.A. § 1543(b)(1)(i).
J-S05031-23
Rule 1925(a) Opinion (“1925(a) Op.”), filed 7/20/22, at 1 (unpaginated)
(citations to record omitted).
The court found Burgwin guilty and sentenced him to 60 days reporting
probation. Burgwin filed a timely pro se notice of appeal. The court appointed
appellate counsel who filed in the trial court a “Statement of Intent to File
Anders/Santiago Brief in Lieu of Filing Concise Statement of Errors
Complained of on Appeal.” See Statement of Intent to File Anders/Santiago
Brief in Lieu of Filing Concise Statement of Errors Complained of on Appeal
(“Statement"), filed 2/22/22. Counsel stated that “[a]fter a conscientious
review of the record and extensive legal research, . . . there are no
meritorious, non-frivolous issues to raise on appeal[.]” Id. at ¶ 32.
Two days later, counsel filed a motion to withdraw as counsel and a
motion for a Grazier2 hearing.3 The court held such a hearing, where counsel
stated that after filing the Statement, he received a call from Burgwin that he
did not want to be represented by him and wanted to proceed pro se. See
N.T., Grazier Hearing, 5/4/22, at 6. Burgwin agreed on the record with
counsel’s recitation of what occurred and affirmed that he wished to proceed
pro se on appeal. Id. The court then had the Commonwealth conduct a
thorough colloquy with Burgwin. It asked Burgwin if he understood that he
____________________________________________
2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
3 The docket reflects that counsel filed a Motion to Withdraw as well as a
Motion for a Grazier hearing. However, these motions are not included in the
certified record.
-2-
J-S05031-23
had a right to counsel, that he could ask the court to appoint another attorney,
and that if he changed his mind about proceeding pro se, he had a right to
ask the court to reappoint counsel. Id. at 6-7, 9. After stating that he
understood, the Commonwealth asked if he still wished to proceed pro se, to
which Burgwin responded “yes.” Id. at 9. The court granted counsel’s motion
to withdraw and Burgwin’s request to proceed pro se. Id. at 10; see Order of
Court, filed 5/4/22. Burgwin then filed a Rule 1925(b) statement.
On appeal, Burgwin raises the following claims:
1. Mr. Officer Adams had no reason to make me give him
my license. So how can he charge me with having a
suspended license if he didn’t know it was suspended
until after he made me give it to him? He violated my
rights. This is in the transcripts, and everybody act like
this don’t matter.
2. He knew he was wrong, so he said he’d let me go with
an A instead of a B. The Judge said it ain’t up to him. But
it should be because he the one that violated my rights.
Burgwin’s Br. at 3 (verbatim).
Here, Burgwin’s brief includes an argument section that is a little over
two pages. It is not separated into the issues he presents. See Pa.R.A.P.
2119(a). His argument for each issue is somewhat unclear but we will review
the issues to the extent we can discern his arguments. To the extent Burgwin
intended to make other arguments, they are waived. See Commonwealth
v. Johnson, 985 A.2d 915, 924–25 (Pa. 2009) (appellant waives an issue on
appeal if he fails to meaningfully develop it).
-3-
J-S05031-23
It appears that Burgwin is challenging the legality of his encounter with
Officer Adams. Burgwin cites Commonwealth v. Parker, 161 A.3d 357(Pa.Super. 2017), and argues that it is similar to the instant case. Officers
stopped Parker by placing their bicycles in front of him and suggested that he
was involved in criminal activity. Parker, 161 A.3d at 361. Officers then asked
for Parker’s name, date of birth, address, telephone phone number, and social
security number. Id. Parker provided this information and officers allowed
Parker to leave. Id. Officers used the phone number provided by Parker to
connect him to drug-related offenses stemming from earlier dates. Id. at 360
n.4. Police arrested Parker on those offenses which led to him filing a motion
to suppress the information he initially gave to the officers. The trial court
denied Parker’s motion and the court found him guilty of the drug offenses.
Parker appealed and challenged the denial of the motion to suppress. He
maintained that the officers “subjected him to an investigatory detention
without reasonable suspicion that he was involved in illegal activity[.]” Id. at
361.
A panel of this Court determined that the officers suggested that Parker
had been “involved in a criminal disturbance at McDonald’s, and therefore a
reasonable person in [Parker’s] position would not have felt free to leave.” Id.
at 365. Because of this, this Court determined that the officers had subjected
Parker to an investigative detention without reasonable suspicion. Id. at 364-
65. This Court vacated the judgment of sentence, reversed the suppression
order, and remanded for a new trial.
-4-
J-S05031-23
Here, Burgwin did not file a motion to suppress. As such, unlike Parker,
Burgwin has waived review of any challenge to the legality of his encounter
with Officer Adams. See Pa.R.Crim.P. 581 (A), (B) (stating motion to suppress
evidence must be filed if there is an allegation of a violation of defendant’s
right and failure to do so results in waiver of issue); Commonwealth v.
Grays, 167 A.3d 793, 810 (Pa.Super. 2017) (raising an issue for the first time
in Rule 1925(b) statement does not cure the failure to first present issue to
the trial court).
Burgwin also argues that Officer Adams “knew he was wrong” and told
him that he would cite him for a violation of driving with a suspended license
under Section 1543(a), instead of driving with a suspended license that is DUI
related under Section 1543(b)(1)(i). See 75 Pa.C.S.A. § 1543(a), (b)(1)(i).
Burgwin states the court told him that Officer Adams could not determine what
his criminal charge would be.
Burgwin waived this issue because it is not in his Rule 1925(b)
statement. See Pa.R.A.P. 1925(b)(4)(vii). However, even if he had properly
preserved it, it is meritless. Burgwin concedes that he was told that “this ain’t
like the Bill Cosby case because the prosecutor, not the police officer, made
that agreement.” Burgwin’s Br. at 6. He also concedes that “a police officer
cannot bind a prosecutor to an agreement,” citing Commonwealth v.
Stipetich, 652 A.2d 1294 (Pa. 1995). Id. However, he maintains that his case
may be different because it involves a suspended license. Burgwin provides
no authority to support this last point.
-5-
J-S05031-23
Even assuming Officer Adams told Burgwin that he would charge him
under Section 1543(a), the agreement would not have been binding on the
Commonwealth. See Stipetich, 652 A.2d at 1295 (stating “[w]hile the police
exercise, as a practical matter, a certain discretion in deciding whether to
make an arrest, issue a citation, or seek a warrant, the ultimate discretion to
file criminal charges lies in the district attorney”). Additionally, Burgwin’s
argument that his case is different because it involves the charge of driving
with a suspended license is to no avail as no precedent supports his position.
The charge does not change the officer’s authority to bind the prosecution in
this regard. Any agreement that existed between Officer Adams and Burgwin
as it related to charging was invalid. We thus affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/11/2023
-6-