Com. v. Blackwell, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL BLACKWELL
Appellant No. 283 EDA 2016
Appeal from the Judgment of Sentence December 22, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): MC-51-CR-0036731-2014
BEFORE: STABILE, J., MOULTON, J., and MUSMANNO, J.
MEMORANDUM BY MOULTON, J.: FILED JULY 26, 2017
Michael Blackwell appeals, pro se, from the December 22, 2015
judgment of sentence entered in the Philadelphia County Court of Common
Pleas following his bench trial conviction for indirect criminal contempt for
violation of a protection from abuse (“PFA”) order or agreement. 1 In a prior
judgment order, we remanded this matter for the trial court to conduct a
Grazier2 hearing because Blackwell had engaged in hybrid representation by
filing, among other things, a pro se Pennsylvania Rule of Appellate Procedure
1925(b) statement while represented by Philip Andrew Smoker, Esquire.
See Commonwealth v. Blackwell, 283 EDA 2016, unpublished
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1
23 Pa.C.S. § 6114.
2
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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memorandum (Pa.Super. filed Mar. 24, 2017). On remand, the trial court
held a hearing, concluded that Blackwell knowingly, intelligently, and
voluntarily waived his right to counsel, discharged Attorney Smoker, and
allowed Blackwell to proceed pro se. See Short Certificate, 4/11/17. The
matter is now ripe for review. We affirm.
The trial court set forth the following factual and procedural history:
On September 10, 2014, a [PFA] Order was entered
against [Blackwell] prohibiting him from having any
contact, direct or indirect, with Charmaine Prater. (See PFA
1409V7806.) [Blackwell] had been in a relationship with
Prater for approximately three and a half years. (N.T.,
12/22/15, p. 11, 6.) The Order provides, in pertinent part,
that [Blackwell] “is prohibited from having any contact
with plaintiff...either directly or indirectly, at any
location...” and became effective immediately “until
otherwise modified or terminated by this Court after notice
and hearing.” (See PFA 1409V7806, P3, 9.)
On October 12, [2014], [Blackwell] was served with the
PFA by Philadelphia Police Officer, Nannette Cheatum.
(N.T. p.47, 4-5.) Prater testified that after being served
with the PFA and despite being prohibited from doing so,
[Blackwell] began contacting her by way of telephone.
(N.T., 12/22/15, p. 13, 11-19.) Without being provoked to
do so, [Blackwell] sent Prater a plethora of unsolicited text
messages and called her cell phone numerous times. (N.T.
p. 21, 23-25; p. 22, 1-5.) Prater testified to and presented
proof that [Blackwell] sent her the following text
messages, despite the PFA Order prohibiting him from
doing so . . . . In addition to receiving unsolicited text
messages, Prater testified that she also received uninvited
telephone calls from the same phone number that
[Blackwell] used to send the text messages from. (N.T. p.
20, 18-23---p. 21, 23-25 -p. 22, 1-5.)
Prater, whom has known [Blackwell] since Junior High
School, credibly testified that she was extremely familiar
with Appellant's telephone number and voice as she had
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prior communications with Appellant over the course of
their three and a half year relationship. (N.T. p. 10, 1-2, 8-
9; p. 14, 19-25; p. 15, 1-8.)
...
On October 27, 2014, [Blackwell] was subsequently
arrested and charged with two counts of Contempt for
Violation of an Order or Agreement, 23 Pa. C.S. § 6114
and two counts of Harassment-Subject Other to Physical
Contact, 18 Pa. C.S. § 2709.
On December 22, 2015, [Blackwell] waived formal
arraignment and ple[]d not guilty to the charges brought
against him. [Blackwell] proceeded to a one-day bench
trial, at the conclusion of which [Blackwell] was found the
guilty of one count of Contempt for Violation of an Order or
Agreement, 23 Pa. C.S. § 6114. The trial court
immediately imposed a sentence of six months probation.
[Blackwell] did not file a post-sentence motion.
Opinion, 6/9/16, at 3-5, 1-2 (“1925(a) Op.”). On January 19, 2016,
Blackwell timely filed a notice of appeal.
Blackwell raises3 seven issues4 on appeal:
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3
Preliminarily, we must discuss Blackwell’s failure to comply with the
Pennsylvania Rules of Appellate Procedure. Blackwell’s brief fails to include
a statement of jurisdiction, a statement of the scope and standard of review,
a statement of the questions involved, or a summary of the argument. See
Pa.R.A.P. 2114, 2116, 2117. The argument section of Blackwell’s brief
contains very little citation to relevant authority or matters in the record,
fails to show where in the record Blackwell preserved these issues for
appeal, and does not specify the appropriate relief for each issue. See
Pa.R.A.P. 2119(b), (c), (e). “Although Pennsylvania courts endeavor to be
fair to pro se litigants in light of the challenges they face conforming to
practices with which attorneys are far more familiar, [we] nonetheless long
have recognized that we must demand that pro se litigants comply
substantially with our rules of procedure.” Commonwealth v. Spuck, 86
A.3d 870, 874 (Pa.Super. 2014) (internal citation omitted). Further, “‘[t]his
Court will not act as counsel’ for an appellant who has not substantially
(Footnote Continued Next Page)
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1. The [trial] court erred and abused its discretion as
well as denied [Blackwell] due process because the
[trial] court did not compel the [Commonwealth] to
meet its burden of proof showing that the [trial]
court had subject matter jurisdiction.
2. Did the [trial] court err[] and abuse[] its discretion
as well as den[y Blackwell] due process, by allowing
insufficient ev[]idence to establish probable cause for
the arrest of indirect criminal contempt and
har[]as[s]ment on two separate occas[]ions, when
thirteen (13) of the eighteen (18) of the alleged text
messages submitted for probable cause, failed to
indicate times and dates.
3. Did the [trial] court err[] and abuse[] its discretion
as well as den[y Blackwell] due process, when [the
trial] judge . . . who hears both PFA cases (common
pleas court) and violations of PFA cases (municipal
court) presided over and/or had knowledge and
information of both [Blackwell’s] PFA and criminal
contempt, in v[io]lation of any and all governing
conflict of interest statutes and laws.
_______________________
(Footnote Continued)
complied with our rules.” Id. (quoting Bombar v. W. Am. Ins. Co., 932
A.2d 78, 93 (Pa.Super. 2007)).
Based on Blackwell’s failure to adhere to the Rules of Appellate
Procedure, this Court has the right to quash or dismiss Blackwell’s appeal
pursuant to Rule 2101. See Pa.R.A.P. 2101 (noting that parties appearing
before this Court “shall conform in all material respects with the
requirements of these rules as nearly as the circumstances of the particular
case will admit . . . and, if the defects are in the brief or reproduced record
of the appellant and are substantial,” we may quash or dismiss the appeal).
However, “in the interest of justice we address the arguments that can
reasonably be discerned from this defective brief.” Commonwealth v.
Lyons, 833 A.2d 245, 252 (Pa.Super. 2003).
4
Because Blackwell’s brief does not contain a statement of questions
involved, we have aggregated these issues from the headings in the
argument section of his brief.
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4. Did the [trial] court err[] and abuse[] its discretion
as well as deny [Blackwell] due process, by
arbitrarily and capriciously waiv[ing] [Blackwell’s]
right to a formal arraignment, when [Blackwell] “did
not” knowingly and voluntarily waive this right, as at
no time, did the court colloquy [Blackwell], either
orally or in writing.
5. The [trial] court erred and abused its discretion as
well as denied [Blackwell] due process, by failing to
find the plaintiff in contempt for violating the mutual
PFA as admitted to by the plaintiff and established by
the record.
6. Throughout these proceedings, all documents from
the court pertaining to MC-51-CR-0036731-2014,
were captioned, “Municipal Court”, conversely and
[w]ithout [Blackwell’s] knowledge or information, the
court arbitrarily change[d] the [j]urisdiction of the
court by sitting common pleas court officials [o]n the
[b]ench of a [m]unicipal [c]ourt [p]roceedings.
7. As the right to effective [a]ssistance of [c]ounsel is
well established [a]nd constitutionally protected, did
the court [commit an] error of law by its failure [t]o
assure the [a]ppellant competent legal
counsel/attorney/lawyer [t]hroughout proceedings.
Blackwell’s Br. at 2-6, 8-9.
In his first and sixth issues, Blackwell argues that the trial court lacked
subject matter jurisdiction to hear this case. Blackwell asserts that he
challenged the subject matter jurisdiction of the trial court by motion and,
without explaining how the trial court lacks subject matter jurisdiction,
asserts that the Commonwealth failed to prove that the trial court had
subject matter jurisdiction.
“Subject matter jurisdiction relates to the competency of a court to
hear and decide the type of controversy presented[,] . . . and is a matter of
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substantive law.” Commonwealth v. Bethea, 828 A.2d 1066, 1074 (Pa.
2003). Such a “question is purely one of law, [for which] our standard of
review is de novo, and our scope of review is plenary.” Id. at 1071.
Blackwell’s argument is without merit. It is well settled that a judge of
the Court of Common Pleas has jurisdiction over the adjudication of indirect
criminal contempt, regardless of whether a defendant’s case has a municipal
court docket number. See Commonwealth v. Burton, 624 A.2d 138, 143
(Pa.Super. 1993) (“the Protection From Abuse Act provides specifically that
its protection and violations thereof are to be, unless the court is
unavailable, under the auspices of the Court of Common Pleas”) (emphasis
in original).
Next, Blackwell argues that the evidence was insufficient to establish
probable cause for his arrest. Blackwell asserts that police lacked probable
cause to arrest him because 13 of the 18 text messages that the victim
showed to police “did not have a date or time attached[.]” Blackwell’s Br. at
4. Although Blackwell’s claim could be read as a challenge to the sufficiency
of the evidence to convict him of indirect criminal contempt,5 in the
argument section of his brief Blackwell argues that the police lacked
probable cause to arrest him. Because the proper vehicle “to test the
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5
To the extent that Blackwell argues that evidence was insufficient to
convict, we conclude the claim lacks merit for the reasons stated in the
thorough and well-reasoned opinion of the Honorable Michael Fanning, which
we adopt and incorporate herein. See 1925(a) Op. at 6-9.
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sufficiency of the Commonwealth’s evidence pre-trial . . . . is a petition for a
writ of habeas corpus,” Commonwealth v. Marti, 779 A.2d 1177, 1179 n.1
(Pa.Super. 2001), and Blackwell raises this claim for the first time on
appeal,6 we conclude that Blackwell has waived this argument. See
Pa.R.A.P. 302; see also Commonwealth ex rel. Kress v. Rundle, 228
A.2d 772 (Pa. 1967) (finding waiver of claims raised by habeas corpus
petitioner for first time on appeal).
Next, Blackwell argues that the trial court erred and abused its
discretion because the Honorable Holly F. Ford hears petitions for PFA orders
and indirect criminal contempt cases for violations of PFA orders. Blackwell
baldly asserts that he was denied due process because Judge Ford “had
information and knowledge of both [Blackwell’s] PFA case and [c]riminal
[c]ases resulting from the PFA, and as such should have recused herself
from [Blackwell’s] cases[.]” Blackwell’s Br. at 4.
Blackwell has waived this claim as well. The issue of recusal is waived
where the “appellant presents no evidence that he sought a recusal at any
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6
On October 1, 2015, Blackwell filed a pro se motion that included a
motion to dismiss for failure to state a claim upon which relief can be
granted. Even if we were to construe Blackwell’s motion as a petition for a
writ of habeas corpus, this motion did not preserve Blackwell’s issue for
appeal because he was counseled at that time. As such, Blackwell engaged
in hybrid representation, and his pro se motion was a legal nullity. See
Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa.Super. 2007)
(concluding that defendant’s pro se post-sentence motion, filed when
defendant was represented by counsel, was “a nullity, having no legal
effect”).
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time before the . . . verdict.” Commonwealth v. Johnson, 719 A.2d 778,
790 (Pa.Super. 1998). Further, even if Blackwell had filed an appropriate
motion to recuse, the record shows that Judge Fanning presided over
Blackwell’s bench trial, not Judge Ford. Although Judge Ford presided over a
motion in limine hearing, Blackwell fails to explain how this prejudiced him.
Next, Blackwell argues that the trial court abused its discretion and
denied him due process by denying him a formal arraignment. Blackwell
claims he never waived a formal arraignment. Blackwell’s Br. at 5.
We conclude that Blackwell’s claim is waived for failure to develop his
argument under Rule 2119(a). See Pa.R.A.P. 2119(a); Commonwealth v.
Hardy, 918 A.2d 766, 771 (Pa.Super. 2007) (“When briefing the various
issues that have been preserved, it is an appellant’s duty to present
arguments that are sufficiently developed for our review. . . . [W]hen
defects in a brief impede our ability to conduct meaningful appellate review,
we may . . . find certain issues to be waived”). Blackwell fails to cite any
case law regarding the waiver of formal arraignment and provides no basis
for relief or any indication as to what type of relief would be available. “This
Court will not act as counsel and will not develop arguments on behalf of an
appellant,” Coulter v. Ramsden, 94 A.3d 1080, 1088 (Pa.Super. 2014),
and we make no exception here.
Next, Blackwell argues that the trial court erred and abused its
discretion in failing to find the victim in contempt for violating a PFA order
that directed her not to contact Blackwell. Blackwell asserts that the trial
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court should have recognized that the victim “enticed [Blackwell] into a
violation and then use[d] the police and the legal system to punish [him].”
Blackwell’s Br. at 7. Additionally, Blackwell asserts that the victim’s actions
show that he did not act with wrongful intent. We disagree.
While the trial court, out of an abundance of caution, appointed the
victim Fifth Amendment counsel, the victim was neither charged with nor
tried for indirect criminal contempt. “The district attorney,” not the trial
court, “is afforded the power to prosecute on behalf of the Commonwealth,
and to decide whether and when to prosecute.” Hearn v. Myers, 699 A.2d
1265, 1267 (Pa.Super. 1997). Further, to the extent Blackwell argues he
lacked the required intent because of the victim’s conduct, this claim lacks
merit. See 1925(a) Op. at 7; Commonwealth v. Brumbaugh, 932 A.2d
108, 111 (Pa.Super. 2007) (“[W]rongful intent can be imputed by virtue of
the substantial certainty that [one’s actions will be] . . . in violation of the
PFA [o]rder.”).
Finally, Blackwell argues that he received ineffective assistance from
the multiple trial counsel who represented him in this matter. However, we
cannot reach this argument, as it is well settled that claims of ineffective
assistance of counsel, except in rare circumstances,7 must be raised in a
Post Conviction Relief Act (“PCRA”) petition. See Commonwealth v.
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7
Blackwell does not argue that these circumstances apply.
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Harris, 114 A.3d 1, 5 (Pa.Super. 2015) (“Our Supreme Court determined
[in Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013),] that, absent
certain circumstances, ‘claims of ineffective assistance of counsel are to be
deferred to PCRA review; . . . such claims should not be reviewed upon
direct appeal.’”) (quoting Holmes, 79 A.3d at 576). Therefore, we do not
reach the merits of Blackwell’s ineffectiveness claims.8
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/26/2017
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8
Our decision does not preclude Blackwell from raising these claims in
a timely PCRA petition.
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