Com. v. Barosh, C.

J-S04013-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHRISTOPHER BAROSH,
Appellant No. 930 EDA 2016
Appeal dated March 6, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008461-2010
BEFORE: SHOGAN and OTT, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 23, 2017
Appellant, Christopher Barosh, after filing a petition pursuant to the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546, filed a pro se
notice of appeal on March 6, 2016. Appellant purports to appeal from an
order denying his request for a Grazier1 hearing and his right to proceed pro
se. After careful consideration, we quash.
A prior panel of this Court summarized the partial procedural history of
this case as follows:
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*
Former Justice specially assigned to the Superior Court.
1
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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A jury trial was held and on December 11, 2012,
[A]ppellant was convicted of arson and insurance fraud.[2] At the
February 11, 2013 sentencing hearing, the trial court read into
the record a letter he received from [A]ppellant’s brother
describing how [A]ppellant had offered him money not to appear
at trial and, when that failed, threatened to kill him. The
Honorable Chris R. Wogan sentenced [A]ppellant to consecutive
sentences of 6½ to 19 years’ imprisonment for arson and 6
months to 3 years for insurance fraud. Additionally, he ordered
[A]ppellant to pay restitution for the damage caused by the fire.
On February 18, 2013, [A]ppellant filed a post-sentence
motion seeking reconsideration of his sentence; the motion was
denied after a hearing on March 15, 2013. On April 2, 2013, a
timely notice of appeal was filed.
Commonwealth v. Barosh, 108 A.3d 105, 1103 EDA 2013 (Pa. Super.
filed October 7, 2014) (unpublished memorandum at 6) (internal citation
omitted).
This Court affirmed Appellant’s judgment of sentence on October 7,
2014, and the Pennsylvania Supreme Court denied Appellant’s petition for
allowance of appeal on February 4, 2015. Id., appeal denied, 109 A.3d 677
(Pa. 2015). Appellant filed a PCRA petition on September 22, 2015, followed
by numerous pro se pleadings with the PCRA court, including a notice of
appeal to this Court on March 6, 2016.
Following the filing of his notice of appeal, Appellant continued to file
multiple pleadings. On April 21, 2016, this Court issued an Order that stated
the following:
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2
18 Pa.C.S. § 3301(A)(1)(i) and 18 Pa.C.S. § 4117(A)(3), respectively.
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Appellant is directed to show cause, within ten days of the
date that this Order is filed, why this appeal should not be
quashed as having been taken from a purported order which is
not entered upon the appropriate docket of the lower court. See
Pa.R.A.P. 301(a)(1).
Order, 4/21/16, at 1. Appellant filed a response which provided, in relevant
part, as follows, verbatim:
2. Pursuant to Pa.R.A.P. 301(e), the instant appeal is an
emergency appeal as the exigency of the case is such as to
impel an emergency appeal pursuant to 301(e).
3. Appellant is on PCRA, and has a Rule-based-right to
counsel on his 1st PCRA Pa.R.Crim.P. 904.
4. Pennsylvania Supreme Court has found that a denial of a
rule based right is the functionally equivalent of a denial of the
Civil Right to Counsel embodied in Pennsylvania Constitution
Article I section 9, and United States Constitution Amendment 6.
5. Petitioner has sought to proceed pro se on his PCRA since
9/22/15 to date of Appeal.
6. The PCRA Court has failed and refused to conduct a
Grazier Colloquy for Appellant to proceed pro se as required by,
Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (Pa. 1998).
7. Petitioner has Praeciped the Lower Court for an Order to
grant on denying Petitioner a Constitutional right to proceed pro
se in accordance with Com. v. Grazier.
8. Pursuant to Pa.R.A.P. 301(e), Appellant’s actions, “shall
constitute entry of an appealable order for the purpose of these
rules”.
9. Pursuant to a post-it note from the Clerk of Courts after
Appellant has filed this instant appeal in order to preserve his
right to proceed pro se on PCRA collateral appeal and to obtain
Order from this Honorable Court demanding the lower Court to
conduct a Grazier Colloquy utilizing Pa.R.Crim.P.
121(A)(2)(a)(d), (e) and (f).
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***
WHEREFORE, for the foregoing reasons, Appellant
respectfully moves this Honorable Court to order the lower Court
to submit an opinion in accordance with Pa.R.A.P. 1925(a), and
to schedule a Grazier Colloquy, and for all other remedies
deemed just and proper.
“Appellant’s Response to Rule to Show Cause dated 4/21/16,” 5/2/16, at 1-
2.
This Court issued an order on May 9, 2016, which provided as follows:
In accordance with this Court’s Order of April 21, 2016 and
in consideration of Appellant’s response, the issue raised by this
Court’s Order will be referred to the panel assigned to decide the
merits of this appeal and the issue will be considered by that
panel.
Order, 5/9/16, at 1.
Appellant continued his practice of filing multiple pleadings.3 On June
20, 2016, this Court issued an order directing the PCRA court to transmit the
certified record to this Court.
The Superior Court Prothonotary’s Office received a letter on July 18,
2016, from Anu Koodathil, a law clerk in the Philadelphia Court of Common
Pleas, which provided clarification on the procedural status of this case. The
letter provides, in pertinent part, as follows:
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3
We note the record reflects that among his many filings, Appellant also
filed a motion for stand-by counsel on June 28, 2016. This request for
counsel is in apparent contradiction to his stated desire to proceed pro se, as
outlined in his response to show cause to this Court’s April 21, 2016 order.
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I am writing in response to the Superior Court’s June 22, 2016
Order directing the Post Conviction Relief Act (PCRA) Court to
certify and transmit the record, including its opinion pursuant to
PA.R.A.P. 1925(a) to the Prothonotary of the Superior Court.
This Order was entered in response to Appellant Christopher
Barosh’s Notice of Appeal filed March 6, 2016.
Upon review of this record and the docket, we are respectfully
requesting that the Notice of Appeal be dismissed as Mr.
Barosh’s appeal is premature. No order has . . . been entered
on this matter, and his appeal was accepted and docketed in
error by the clerk of courts.
The procedural history in this case is as follows: Mr. Barosh was
convicted and sentenced by the Honorable Chris Wogan on
February 11, 2013. Following his direct appeal, Mr. Barosh filed
his first PCRA Petition on September 22, 2015. Judge Wogan
had retired at this point, and Mr. Barosh’s PCRA petition was
awaiting reassignment to another judge as well as appointment
of counsel. On December 21, 2015, Mr. Barosh filed a “Motion
for Pro Se Correspondence-Motion for a Grazier Hearing.” He
apparently believed his Motion was denied, but in fact, an order
had not yet been entered on this matter. The instant Notice of
Appeal filed March 6, 2016 is attempting to appeal this
nonexistent order.
Mr. Barosh’s Notice of Appeal should not have been accepted as
an appealable order has not been entered on this case. There
was some confusion due in part to Mr. Barosh being a prolific
filer- in fact, he has filed forty-eight (48) amended filings to
date. We sincerely apologize for the oversight, and respectfully
request that the Superior Court issue an order dismissing Mr.
Barosh’s Notice of Appeal as premature. Once this case is
remanded, we will ensure a judge is assigned to this case
immediately for final disposition.
Letter, 7/18/16, at 1-2.
By order filed September 28, 2016, this Court directed the PCRA court
to comply with the June 20, 2016 order to transmit the certified record to
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the Superior Court Prothonotary. Order, 9/28/16, at 1. The record was
subsequently transmitted to this Court.
Appellant presents the following issue for our review, which we
reproduce verbatim:
Did the Court err or abuse it’s discretion by denying Appellant’s
request to proceed pro se after Court’s notification of County
wide attorney unavailability for appointment to indigent
Defendants with indefinite time in which Court could appoint an
attorney to Appellant with time sensitive motions, favorable
witnesses willing and able to cooperate on Appellant’s behalf,
exculpatory material evidence threatened with spoliation, to the
prejudice of Appellant, and in violation of Grazier?
Appellant’s Brief at 4.
Before addressing the merits of Appellant’s claims, we must determine
whether this matter is properly before us. “We do not have jurisdiction over
non-appealable orders.” Commonwealth v. Frey, 41 A.3d 605, 609 (Pa.
Super. 2012). An order is appealable if it is: (1) a final order, see Pa.R.A.P.
341–342; (2) an interlocutory order appealable by right or permission, see
42 Pa.C.S. § 702(b); Pa.R.A.P. 311–312, 1311–1312; or (3) a collateral
order, see Pa.R.A.P. 313. Frey, 41 A.3d at 609.
Appellant’s notice of appeal filed March 6, 2016, provides as follows:
Notice is hereby given that Mr. Christopher A. Barosh,
Defendant, in the above-named matter, hereby appeals to the
Superior Court of Pennsylvania from Order entered in this matter
as evidenced by the attached copy of Docket entry of, “Motion
for Grazier Hearing”, filed 12/21/15 and Denied Defendant to
proceed pro se 3/6/16.
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Notice of appeal, 3/6/16, at 1. The docket reveals that Appellant did in fact
file a motion for Grazier Hearing, in addition to several other motions, on
December 21, 2015. The docket, however, reflects no order disposing of
that motion. Additionally, review of the docket indicates that there was no
order issued on Appellant’s PCRA petition filed September 22, 2015. Thus,
there does not appear to be any order, final or otherwise, from which
Appellant can appeal.
This conclusion is supported by the letter this Court received from the
PCRA court. As outlined, the letter explained that the notice of appeal was
accepted by that court in error, as there was no final order from which
Appellant can appeal. Additionally, the letter indicates that the PCRA court
was endeavoring to assign Appellant’s case to a new judge and appoint
counsel.
Because there is no final order, no interlocutory order appealable by
right or permission, and no collateral order, Appellant’s current appeal is
premature. Thus, we lack jurisdiction to review Appellant’s claims and are
constrained to quash his appeal.4, 5
Appeal quashed. Jurisdiction relinquished.
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4
Upon quashal of this appeal, the PCRA court will have authority to appoint
counsel and a new judge to address Appellant’s PCRA petition.
5
We note that during the pendency of this appeal, Appellant has filed
multiple applications for relief in this Court. Due to this Court’s lack of
jurisdiction to review his claims, these applications are denied as moot.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/23/2017
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