Com. v. Evans, S., Sr.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
STEFAN EVANS, SR. :
:
Appellant : No. 696 MDA 2017
Appeal from the Judgment of Sentence April 13, 2017
In the Court of Common Pleas of Bradford County Criminal Division at
No(s): CP-08-CR-0000357-2016
BEFORE: SHOGAN, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY SHOGAN, J.: FILED MARCH 23, 2018
Appellant, Stefan Evans, Sr., appeals pro se from the judgment of
sentence entered April 13, 2017, following his entry of a guilty plea to one
count of aggravated assault with a deadly weapon, 18 Pa.C.S. § 2702(a)(4),
on January 24, 2017. We affirm.
Count two of the information, aggravated assault with a deadly
weapon graded as a second-degree felony, charged that Appellant “used a
buck knife to cut Stefan Evans, Jr.[, his son, in the] stomach with the folding
knife causing a deep long end laceration across the victim’s torso,
approximately 17 inches long, also cut the victim’s hand in two locations….”
Information, 6/20/16, at Count 2.
The trial court summarized the procedural history of the case, as
follows:
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The charges arose from an alleged physical altercation between
Appellant and his adult son wherein Appellant attacked his son
with a pocket knife and cut his abdomen 17 inches. Appellant
waived his May 24, 201[6] preliminary hearing and June 27,
2016 formal arraignment while being represented by counsel,
Richard Wilson, Esquire of the Bradford County Public Defender’s
Office. A plea hearing was scheduled for August 29, 2016. On
August 8, 2016 Appellant filed a “Waiver of Counsel” pro se
seeking a hearing to proceed without counsel. A Grazier[1]
hearing was held on the date of the scheduled plea hearing,
August 29, 2016. After an extensive colloquy, an Order dated
August 29, 2016 was entered finding Appellant knowingly and
voluntarily waived [his] right to counsel. . . . Appellant did not
enter a plea on said date. A criminal pretrial conference was
then scheduled for September 13, 2016. The pretrial conference
was continued two times at Appellant’s request so that he may
prepare for trial. Appellant also filed various motions in the
meantime such as an Omnibus Pretrial Motion on December 16,
2016, a Motion to Recuse and a Motion Seeking Change of
Venue. All such motions were denied as untimely or without
merit.
Appellant did file a Motion to Appoint Standby Counsel on
December 19, 2016[,] which was granted and his prior counsel,
Attorney Richard Wilson, Chief Public Defender, was appointed
as standby counsel. At the January 18, 2017 criminal pretrial
conference Appellant again waived counsel, but continued to
desire standby counsel. Jury selection and trial was scheduled to
begin January 23, 2017. On January 23, 2017 Appellant with
standby counsel waived jury trial. An extensive colloquy was
conducted regarding the waiver of jury trial which is similar to
that of waiving counsel. Thereafter further colloquy was
conducted to insure Appellant continued to waive counsel.
Appellant decided at that time he wanted counsel and standby
counsel, Richard Wilson, Esquire, became his counsel of record.
Trial was to commence on January 24, 2017 at which time
Appellant, represented by counsel, entered a plea of guilty to
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1 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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Aggravated Assault, 2702(a)(4) as a Felony of the Second
degree.[2]
On February 23, 2017, Appellant again filed a “Motion to
Waive Counsel” seeking a hearing on said Motion. He also filed a
Motion to Withdraw Guilty Plea on March 10, 2017. On April 10,
2017, a Grazier hearing was held. See Trans, 4/10/17 Grazier
Hearing, Pgs. 3-5. As Appellant had already entered a plea of
guilty, the colloquy questions were limited to his motion to
withdraw guilty plea and sentencing. Appellant knowingly and
voluntarily waived counsel. See Trans. 4/10/17 Grazier Hearing
at pg. 5. Further hearing on Appellant’s Motion to Withdraw
Guilty Plea was held and denied by Order dated April 12, 2017.
See Trans. 4/10/17 Motion to Withdraw Guilty Plea, pgs. 6-10.
Appellant was sentenced on April 13, 2017 to a minimum
of 40 months and a maximum of 96 months.[3]
Appellant filed a Notice of Appeal on April 24, 2012
appealing from orders entered on April 10 and April 12, 2017.
Appellant was ordered to file a concise statement of Matters
Complained of on Appeal which he initially complied with on
May 5, 2017. Appellant’s statement seeks “review of the abuses
of discretion and unlawful rulings exercised by” the trial court
and refers to Orders of January 20, 2017 (denying Appellant’s
Omnibus Motion and Motion in Limine), February 17, 2017
(unaware of an Order with this date) and Order of April 12, 2017
(denial of Motion to Withdraw Guilty Plea). Appellant also makes
bare assertions that all involved in his case denied him of [his]
right to competent counsel, right to a preliminary hearing, right
to challenge evidence, right to confront accusers, right to
compulsory process to obtain witnesses, right to withdraw guilty
plea and right to trial by judge or jury. On May 9, 2017,
Appellant filed an Amended Concise Statement of Matters
Complained Of to include “the complaint that the court failed to
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2 The negotiated plea included a sentencing agreement at the “low end of
the standard range minimum with the maximum open to the [c]ourt.” N.T.
(Guilty Plea), 1/24/17, at 1.
3 The minimum sentence imposed, forty months, was “the very bottom of
the standard range,” which was “forty months to fifty-two months.” N.T.
(Sentencing), 4/13/17, at 21.
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conduct adequate waiver of counsel colloquy’s [sic] as required
by law.” See footnote to Appellant’s Amendment to Concise
Statement of Matters Complained of on Appeal.
Trial Court Opinion, 7/26/17, at 1–3. On November 20, 2017, this Court
dismissed the appeal for Appellant’s failure to file a brief, but we reinstated it
sua sponte on December 7, 2017, following Appellant’s November 30, 2017
filing of “Extraordinary Writ, Constitutional Deprivation,” which we accepted
as a timely filed brief. Order, 12/7/17.
As noted, on April 26, 2017, the trial court directed Appellant to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). Appellant filed a concise statement on May 5, 2017, and an
amended concise statement on May 9, 2017. Appellant’s statements failed
to identify sufficiently the issues to be raised on appeal. Noting this
insufficiency, the trial court stated as follows:
Here Appellant’s Amendment to Concise Statement of
Matters Complained sets forth that he is
“seeking review of the abuses of discretion and the
unlawful rulings by Maureen T. Beirne, President
Judge, as is evidenced by the Orders she issued on:
the 20th of January 2017 (related to a Motion in
Limine); February 17, 2017, (related to an Omnibus
Motion; and the Order of April 12, 2017 (related to
the Argument held on April 10, 2017 pursuant to my
filing of a Motion to Withdraw My Induced Guilty
Plea.”
See Appellant’s Statement filed May 9, 2017.
Although Appellant concisely identifies each ruling he
wishes to challenge, he fails to provide “sufficient detail to
identify all pertinent issues.” Therefore, Appellant has waived
any error or complaint and his sentence should be affirmed.
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Appellant also sets forth in his statement that he will show
through documents that the judge, assistant DA and public
defender worked in cooperation to deny him due process. He
sets forth the rights and protections violated as:
The right to competent counsel, but fails to set forth
how counsel was incompetent.
Failure to conduct legal and adequate waiver of counsel
colloquy, but fails to state he did not know what he was
doing or that it was involuntary.
Right to preliminary hearing but fails to set forth how
this right was violated.
Right to challenge the evidence held against him, but
fails to set forth how this right was violated.
Right to confront accusers, but fails to set forth how this
right was violated.
Right to compulsory process to obtain witnesses, but
fails to state how this right was violated.
Right to withdraw an illegally induced guilty plea, but
fails to set forth how this right was violated.
Right to trial by judge or jury, but fails to set forth how
this right was violated.
These are general boilerplate allegations. Again, Appellant
fails to concisely identify each ruling in which the listed general
issues were raised and fails to provide “sufficient detail to
identify all pertinent issues.” The [c]ourt is unable to provide
reasons for its rulings without sufficient detail as to what
Appellant is claiming was error. Therefore, Appellant has waived
said issues and his sentence should be affirmed.
Trial Court Opinion, 7/26/17, at 4–5. We concur that Appellant’s Pa.R.A.P.
1925(b) statements are “too vague to allow the court to identify the issues
raised on appeal [and are] the functional equivalent of no concise statement
at all.” Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa. Super. 2011).
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Moreover, “[a]ppellate briefs must conform materially to the
requirements of the Pennsylvania Rules of Appellate Procedure, and this
Court may quash or dismiss an appeal if the defect in the brief is
substantial.” Commonwealth v. Tchirkow, 160 A.3d 798, 804 (Pa. Super.
2017); Pa.R.A.P. 2101. “Although this Court is willing to construe liberally
materials filed by a pro se litigant, a pro se appellant enjoys no special
benefit. Accordingly, pro se litigants must comply with the procedural rules
set forth in the Pennsylvania Rules of the Court.” Id.Appellant’s brief fails to comply with multiple rules of appellate
procedure, beginning with Pa.R.A.P. 2111(a). The brief fails to include a
Statement of the Scope and Standard of Review, a Statement of the
Questions Involved,4 Pa.R.A.P. 2116, a Statement of the Case, Pa.R.A.P.
2117, and a Summary of the Argument, Pa.R.A.P. 2118. Moreover, the
argument section of the brief fails to present identifiable, cogent legal
arguments with citation to pertinent law and/or the record, in violation of
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4 While there is no statement of the question involved, Appellant peppers
his argument with “questions.” For example, Appellant poses:
Question; when the tree of justice has been contaminated by
unjustified actions of Court Officials, the fruit of that tree can not
ripen until that injustice that contaminated the tree of justice has
been corrected and the manifest injustices that has caused that
contamination has been removed; Does the Superior Court
Justices agree with this analysis?
Appellant’s Brief at 4 (verbatim).
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Pa.R.A.P. 2119(c), (e), and Pa.R.A.P. 2132. We find that the considerable
defects in Appellant’s brief impair our review. Thus, for this reason as well,
we conclude that Appellant’s issues are waived.
We further note the trial court’s reasons for its rulings, as follows:
[T]he reasons for the [c]ourt’s [o]rders of January 20, 2017[,
relating to Appellant’s motions in limine,] are set forth in said
[o]rders . . . . Appellant’s Omnibus Motion was untimely.
Appellant’s Motion in Limine repeated his Omnibus Motion.
The April 12, 2017 [o]rder denying Appellant’s Motion to
Withdraw Guilty Plea was entered because there was no
colorable demonstration such that permitting withdrawal would
promote fairness and justice. “The proper inquiry on
consideration of such a withdrawal motion is whether the
accused has made some colorable demonstration, under the
circumstances, such that permitting withdrawal of the plea would
promote fairness and justice. The policy of liberality remains
extant but has its limits, consistent with the affordance of a
degree of discretion to the common pleas courts.”
Commonwealth v. Carrasquillo, 631 Pa. 692, 706[, 115 A.3d
1284, 1292] (Pa. June 15, 2015). Here Appellant made no such
colorable demonstration. Appellant made a bare assertion of
innocence in the motion. At the hearing/argument, he
commented that he [was] not guilty of aggravated assault but
guilty of simple assault. Trans 4/10/17 at pg. 7–8. The facts set
forth at the sentencing hearing supported the offense of
aggravated assault, otherwise, the [c]ourt would not have
accepted the plea. The Appellant entered a guilty plea the day
trial was to commence. He then filed his petition to withdraw
guilty plea within [one] month. Appellant’s assertion of
innocence is not credible. [5] Throughout the proceedings,
Appellant has wavered between requesting counsel and
requesting to proceed self-represented. . . .
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5 We observe, in addition, that Appellant stated at the April 10, 2017
hearing on Appellant’s motion to withdraw his guilty plea, “I have never, I
have never tried to say I was innocent of this charge . . . .” N.T., 4/10/17,
at 8.
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The only issue that may have been raised properly is
Appellant’s complaint regarding adequate waiver of counsel
colloquy. Therefore that will be addressed here.
At the August 29, 2016 [hearing,] an extensive waiver-of-
counsel colloquy was conducted, however, Appellant did not
request this transcript. Therefore, the [c]ourt will have same
prepared and submitted as a supplement to the record.
Appellant answered questions about his age, educational
background, and mental health and mental defects and
medications. Appellant stated that he understood he had a right
to counsel, including the right to be appointed counsel free of
charge in the event he could not afford an attorney. The nature
of the charges and elements of the offenses were read to
Appellant as well as the allegations against him and he stated he
understood. Appellant acknowledged he understood the
maximum possible penalty for each of the offenses charged.
Appellant also indicated he understood he would be held to the
same procedural and evidentiary rules as an attorney, and that
an attorney would be familiar with those rules[.] In addition,
Appellant acknowledged he might have possible defenses that an
attorney may be aware of that if not raised at trial could be lost
permanently. Finally, Appellant stated he understood that he
had many rights that he would have to assert in a timely manner
in order to avoid losing them permanently.
Appellant complains in his [Rule 1925(b)] statement that
“the court failed to conduct adequate waiver of counsel
colloquy’s as required by law.” He does not state that his waiver
was not voluntary, knowing or intelligent. However, the
extensive colloquy is more than adequate to comply with
Pa.R.Crim.Proc. Rule 121.
Appellant does not state which waiver of counsel colloquy
was inadequate, but refers to the transcript of [the] hearing held
on April 10, 2017 and April 13, 2017[.] Appellant’s complaint is
without merit because Pennsylvania Superior [C]ourt has
adopted the “ongoing waiver rule.” This rule provides that “once
a[n] Appellant has made a competent waiver of counsel, that
waiver remains in effect through all subsequent proceedings in
that case absent a substantial change in circumstances.”
Commonwealth v. Phillips, 141 A.3d 512, 521 (Pa. Super. Ct.
May 19, 2016). Thus the original waiver remained valid. Here
there was no substantial change in circumstances. Appellant
requested counsel for his trial, then entered a plea of guilty while
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represented by counsel. Within one month[], Appellant again
requested to proceed pro se. This does not establish a
substantial change in circumstances.
Further, a colloquy for waiver of jury trial was conducted
on January 23, 2017 providing Appellant with all his rights
connected with a jury trial. The colloquy further included
questions regarding waiver of counsel and explaining what
standby counsel is. It was at this time Appellant requested
counsel to represent him. On April 10, 2017, the issues
remaining in the matter were [A]ppellant’s Motion to Withdraw
Guilty Plea and potential sentencing scheduled for 2 days later.
Appellant was again asked about his age, education and
medications. Further Appellant was advised and acknowledged
he understood that he would still be bound by all rules of
procedure and knowledge of law that an attorney would be
familiar with. Appellant also acknowledged he understood that if
he failed to raise issues during his argument on Motion to
Withdraw Guilty Plea, and if that was denied, at his sentencing in
3 days, his right to raise such issues would be lost. These were
the only rights Appellant needed to be advised of. He had been
appointed counsel and was aware . . . that he could have
counsel. He had been advised of the elements of the charges in
the August 29, 2016 waiver of counsel proceeding and at the
time he entered his plea of guilty. Therefore, the waiver of
counsel colloquy at that time of the proceedings was adequate.
To have advised Appellant of all the elements of all the charges
against him again would have been “mere ceremony”. See i.e.
Davis v. United States, 226 F.2d 834, 840 (8th Cir. 1955). This
matter is similar to that of Arnold v. United States, 414 F.2d
1056 (9th Cir. 1968) wherein the Ninth Circuit Court of Appeals
found that “Appellant had not triggered the need for a new
colloquy” where Appellant had competently waived counsel, but
then requested appointment of counsel as indicated in initial
waiver that said waiver was limited to that particular stage of the
proceedings. Id. at 1057.
Trial Court Opinion, 7/26/17, at 6–8.
In sum, we agree with the trial court that Appellant’s vague and
imprecise Pa.R.A.P. 1925(b) statements fail to preserve issues for review.
See Commonwealth v. Lemon, 804 A.2d 34, 38 (Pa. Super. 2002)
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(stating that when an appellant’s Pa.R.A.P.1925(b) statement is too vague
to identify a specific issue, the issue is waived). Further, Appellant’s
appellate brief fails to provide identifiable, coherent legal arguments and
fails to comply with our rules of appellate procedure, resulting in waiver on
this basis, as well. Tchirkow, 160 A.3d 798. Finally, even if not waived,
the denial of Appellant’s motion to withdraw his guilty plea and the
sufficiency of the colloquy to waive counsel lack merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/23/2018
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