J-A22025-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
TYRON BROWN, SR., :
:
Appellant : No. 1839 MDA 2013
Appeal from the Judgment of Sentence Entered October 7, 2013,
In the Court of Common Pleas of Schuylkill County,
Criminal Division, at No. CP-54-CR-0001519-2012.
BEFORE: PANELLA, SHOGAN and FITZGERALD*, JJ.
MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 29, 2014
Appellant, Tyron Brown, Sr., appeals from the judgment of sentence
entered October 7, 2013, following his conviction by a jury of aggravated
assault of a police officer involving bodily injury, disarming a law-
enforcement officer, resisting arrest, two counts of simple assault, and
disorderly conduct. We affirm.
The notes of testimony from trial indicate that on September 2, 2012,
Todd Dunlap arrived at 1111 East Center Street in Mahanoy City,
Pennsylvania, at approximately 5:00 p.m. to give his eleven-year-old
daughter, who resided there with her mother and grandmother, some
money. N.T., 8/28/13, at 34–35. As he pulled up to the curb in front of the
house, Mr. Dunlap observed his daughter standing on the front porch and
__________________
*Former Justice specially assigned to the Superior Court.
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heard Appellant, who stood on the sidewalk “a few doors down,” engaging in
“very loud cursing.” Id. at 35. Mr. Dunlap exited his car, and when he
asked Appellant to refrain from using profanity in front of Mr. Dunlap’s
daughter, Appellant began approaching Mr. Dunlap, who retreated into his
vehicle. Appellant “opened [his] car door as if he was going to pull [him]
out” and a woman standing nearby pushed Appellant “back to the sidewalk.”
Id. at 37. Mr. Dunlap exited his vehicle and proceeded to the house where
his daughter, who had retreated inside, resided. Id. at 38. His daughter’s
grandmother indicated police had been called. Id.
Mr. Dunlap left the house to return to his car whereupon Appellant
yelled at him and poked him in the face. N.T., 8/28/13, at 39. Shortly
thereafter, Mahanoy City Borough Police Officer Charles Kovalewski arrived
at 5:15 p.m. and attempted to calm Appellant. Id. at 40, 102. When the
cursing and belligerent behavior continued, Officer Kovalewski told Appellant
that if he did not desist, he would be placed under arrest for disorderly
conduct. Id. at 41. Appellant continued cursing and “when Officer
Kovalewski pulled out the handcuffs, [Appellant] got up from the top step
and pushed the officer in the chest.” Id. Mr. Dunlap described the scenario
as follows:
At that point I seen [sic] the officer was the only one on
duty at the time and there was no back up and I walked down to
where the officer was. When I walked down there, [Appellant]
went and sat on the steps again, in the middle of the steps. And
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the officer told him if, pretty much if the behavior continues, that
he was going to get tasered.
* * *
As Officer Kovalewski went to put handcuffs on him again, he
was pushed again, which this time [the officer] went backwards.
* * *
And at that point that is when Officer Kovalewski fired the
[T]aser.
* * *
[Appellant] pulled the barbs out of his chest and threw the wires
. . . and got into a fight with the officer.
N.T., 8/28/13, at 41–42.
At that point, Mr. Dunlap attempted to bear hug Appellant, whereupon
someone punched Mr. Dunlap repeatedly on the back of his head. N.T.,
8/28/13, at 43. Mr. Dunlap observed Appellant continuing to assault Officer
Kovalewski, and Appellant “picked him up by the shirt . . . and slammed him
against the ground.” Id. Mr. Dunlap testified that he “clearly remember[ed]
Officer Kovalewski’s head hitting the sidewalk numerous times.” Id. at 43–
44. At some point, Appellant ran into his house “followed by one of the
younger black males that was punching [Mr. Dunlap] and shut the door.”
Id. at 44. Mr. Dunlap remembers seeing Appellant and the two males who
beat Mr. Dunlap “being brought out of the house in handcuffs,” whereupon
Mr. Dunlap passed out and was taken to the hospital in an ambulance. Id.
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at 46. Officer Kovelewski testified similarly at trial, as did another
eyewitness, John Garber. Id. at 75–82, 102–105. The Commonwealth also
played a cellular telephone video at trial that was recorded by another
witness, Anthony Bennett. Id. at 104–105.
On August 29, 2013, Appellant was convicted by a jury of the crimes
described above and acquitted of aggravated assault of a police officer
involving serious bodily injury and escape.1 On October 7, 2013, the day of
sentencing, Appellant filed a motion for extraordinary relief requesting a new
trial, which the trial court denied. The court sentenced Appellant to an
aggregate term of imprisonment of sixteen to thirty-two months on October
7, 2013. No post-sentence motions were filed. On October 17, 2013,
Appellant filed a timely notice of appeal. On October 18, 2013, the trial
court directed Appellant to comply with Pa.R.A.P. 1925(b) by November 12,
2013. Order, 10/18/13.
While still represented by counsel, Appellant filed a pro se document
titled, “Legal Grounds for Appeal” on November 4, 2013.2 Thereafter,
1
At the close of the Commonwealth’s case, the trial court dismissed two
counts of simple assault with regard to Mr. Dunlap.
2
The motion is time stamped and docketed in accordance with Pa.R.Crim.P.
576(A)(4). Our Supreme Court has stated:
[T]he disapproval of hybrid representation is effective at all
levels. See Commonwealth v. Ellis, 534 Pa. 176, 626 A.2d
1137, 1139 (1993) (criminal defendant has no right to hybrid
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pursuant to Pa.R.A.P. 1925(b), Appellant filed a counseled, timely concise
statement of matters complained of on appeal on November 7, 2013,
identifying the following two issues:
1. The Court erred in allowing [Appellant’s] entire criminal
record to come into evidence and allowed [Appellant] to be
cross-examined.
2. The prosecut[ion’s] closing was a smear on [Appellant’s]
character by use of his prior improperly admitted record. The
Prosecutor called [Appellant] a liar and used the diety as a basis
for conviction. A mistrial was improperly denied.
Concise Statement of Matters Complained of on Appeal, 11/7/13.
The docket reveals that approximately one week later, on November
14, 2013, Appellant sent a pro se letter to the Schuylkill County Clerk of
Courts requesting the “removal of defense counsel.” Correspondence,
11/14/13, docket entry 28. On November 26, 2013, counsel filed a motion
to withdraw pursuant to Appellant’s request. Motion, 11/26/13. In an order
entered December 3, 2013, this Court granted defense counsel’s request to
withdraw and directed Appellant to “retain new counsel, apply to the trial
representation in either trial or appellate courts). Criminal Rule
576(A)(4) addresses hybrid representation before the courts of
common pleas, mandating that the pro se filing be received and
docketed, but then forwarded to counsel: “In any case in which
a defendant is represented by an attorney, if the defendant
submits for filing a written motion, notice, or document that has
not been signed by the defendant’s attorney, the clerk of courts
shall accept it for filing” and send a copy to the attorneys of
record in the case.
Commonwealth v. Cooper, 27 A.3d 994, 1000 (Pa. 2011).
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court for the appointment of new counsel, or express his choice to proceed
pro se.” Order, 12/3/13. We further directed the trial court to hold a
hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988),
should Appellant choose to proceed pro se.
On December 5, 2013, Appellant, pro se, filed a Motion to Amend
Legal Grounds of Appeal, docket entry 32, presumably amending his
Pa.R.A.P. 1925(b) statement, in which he raised eighteen issues of trial
counsel’s ineffective assistance. On January 16, 2014, Appellant filed a
motion of intent to proceed pro se “in appellate court.” Motion, 1/16/14.
This Court entered an order on January 24, 2014, directing the trial court to
conduct an on-the-record inquiry “to determine whether appellant’s waiver
of counsel is knowing, intelligent, and voluntary, pursuant to” Grazier. The
trial court held a Grazier hearing on February 18, 2014, and entered an
order that day indicating that Appellant’s waiver of the right to be
represented by counsel was knowing, voluntary, and intelligent. Order,
2/18/14. Since that time, Appellant has proceeded pro se.
Appellant lists the following fourteen issues in the Statement of
Questions Involved in his brief, which we reproduce verbatim:
1. Wheather probable cause was established, to support lawful
arrest. And the resisting arrest charge.
2. Wheather the officer, bound by oath to protect and serve the
pubic violated the Defendants 14th right as a citizen of the United
States of America, to equal protection.
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14th Ammendment (equal protection).
3. Wheather the officer was within lawful parameters in his use
and discharge of his Taser weapon.
4. Wheather the officer’s lack of protical, as to proper
proceedure for answering a disturbance call with multiple
suspects in an undetermined, crowded situation was influenced
by the preexisting relationship testified to during trial
proceedings between officer and Todd Dunlap.
5. Wheather the transport of defendant to Mahanoy City Police
Dept. and the dentintion without marandise, charge, or warrant
complied with Pa. Criminal Rule of Procedure, as it refers to
suspects arrested after business hours (4:30 pm).
Pa.R.C.P. Rule 519 (a)(1).
6. Wheather the arraignment judge and Cheif of Police of
Mahanoy City’s combined efforts in the defendants pre-
arraignment proceedings interfeared with the natural
administration of court violating the defendants ammendment
right to due process.
14th Ammendment (Due Process).
7. Wheather the conduct of MDJ Platchko was prejudicial to the
defendants case. And in compliance with the MDJ Code of
Conduct and the Judicial Code of Ethics with respect to probable
cause and criminal documents.
Right to Due Process. Pa.R.C.P. Rule 2(a); Pa.R.C.P. Rule
8(a)(1); 8/14 Ammendment rights (Due Process, Fair Bail).
8. Wheather the eccessiveness of the bail ammout assessed to
the defendant could legally be in standard range without the
melestation of the Probable cause affidavit and charge complaint
documentation.
Pa.R.C.P. Rule 2(a); Pa.R.C.P. Rule 8(a)(1); 8 th Ammendment
(Eccessive Fines & Bail).
9. Wheather trial counsel ineffectively represented the Appellant
by his failure to comply with the Defendant direct request to
challenge conflicts in written statements, victim/witness
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testimonies video evidence and justification plea of self defense
whhich may have effected the overall outcome of the trial.
Strickland v. Washington, Jones v. Simpson, Coffio v. United
States.
10. Wheather the ADA’s misrepresentation of video facts,
[pursuit] of criminal charges without sufficient evidence to
support and used of any if not all 6 prior offenses from
Defendants past. Crossed recognized boundaries an
administration of justice with a responsibility, not to be
vindictive, or attempt in any manner to influence the jury by
arousing their prejudice. ADA asserted during closing Defendant
was a liar and has no respect for the law.
Commonwealth v. Potter, Commonwealth v. Toney,
Commonwealth v. Meyers.
11. Wheather trial court erred by denying trial counsels motion
of acquittal, challenging the sufficiency of evidence to disprove
reasonable doubt as to Ct #2, Ct #6, and Ct #8.
Jones v. Simpson Coffio v. United States Commonwealth v.
Cicere.
12. Wheather trial court erred by denying trial counsels motion
for acquittal, challenging the sufficiency of evidence to disprove
reasonable doubt as to Ct #4 disarming law enforcement officer
without lawful authority.
Jones v. Simpson, Coffio v. United States.
13. Wheather the trial court complied with the judicial obligation
he personally outlined in jury instruction (“I’m the umpire, the
referee”) as to jury resposibilities and considerations applied
when determining witness credibility facts of video evidence, and
prosecution obligation to disprove self defense beyond
reasonable doubt.
Pa.R.C.P. Rule 2(a).
14. Wheather the trial court prejudice the defenses case by
failing to have prosecution address their burden of proof. In
regard to Defendants on record justification plea of self defense.
And allowing diliberations to be conducted without that burden
being met violating the Defendants.
Pa.R.C.P. Rule 2(a); 14th Ammendment (Due Process).
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Appellant’s Brief at 8–9 (verbatim).
As previously noted, before counsel withdrew in this case, Appellant
filed a counseled concise statement pursuant to Pa.R.A.P. 1925(b) on
November 7, 2013, identifying two issues to be raised on appeal. The trial
court addressed these two issues in its Pa.R.A.P. 1925(a) opinion. Trial
Court Opinion, 1/16/14. Appellant, however, has failed to raise them in his
brief to this Court; instead, he lists the above fourteen issues in his
statement of questions. Our appellate rules define the content of appellate
briefs. Pa.R.A.P. 2116(a) addresses the statement of questions involved and
provides, in pertinent part, “No question will be considered unless it is stated
in the statement of questions involved or is fairly suggested thereby.”
Appellant’s pro se status does not relieve him of the responsibility to
conform to the applicable rules, and Appellant is not entitled to any
particular advantage because he lacks legal training. Commonwealth v.
Maris, 629 A.2d 1014, 1017 n.1 (Pa. 1993). As the two issues raised in the
counseled 1925(b) statement have been abandoned in the appellate brief,
they are waived. Pa.R.A.P. 2116(a).
The only other issues that would be preserved for review, then, are
the issues raised in Appellant’s purported pro se amended Pa.R.A.P. 1925(b)
statement filed December 5, 2013, in the form of the “Motion to Amend
Legal Grounds of Appeal,” filed as docket entry 32. As previously noted, in
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that document, Appellant raised eighteen issues of trial counsel’s ineffective
assistance of counsel. Of the fourteen issues set forth in Appellant’s
statement of questions involved, only issue number nine is an issue of
ineffective assistance of counsel. For the reasons that follow, we defer this
claim, and any of Appellant’s other issues of ineffective assistance of counsel
set forth in his Motion to Amend Legal Grounds of Appeal, to be raised in a
subsequent petition pursuant to the Post-Conviction Relief Act (“PCRA”),
42 Pa.C.S. §§ 9541–9546.
In Commonwealth v. Holmes, 79 A.3d 562 (Pa 2013), our Supreme
Court considered “the reviewability of claims of ineffective assistance (“IAC”)
of counsel on post-verdict motions and direct appeal.” Id. at 563. Following
a comprehensive review of the language codified in the PCRA and decisions
from our courts, our Supreme Court revisited the exception to
Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), as described in
Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003), and held that absent
either good cause or exceptional circumstances and a waiver of PCRA
review, IAC claims must await collateral review. See also Commonwealth
v. Barnett, 25 A.3d 371, 373 (Pa. Super. 2011) (en banc) (“[T]he Supreme
Court has limited the applicability of Bomar” such that most assertions of
ineffective assistance of counsel “are appropriately raised only on collateral
review.”); Commonwealth v. Britt, 83 A.3d 198, 203 (Pa. Super. 2013)
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(“[A]bsent either good cause or exceptional circumstances and a waiver of
PCRA review, ineffective assistance of counsel claims must await collateral
review.”).
Herein, there is no indication in the record that good cause or
extraordinary circumstances exist such that Appellant’s IAC claims warrant
review on direct appeal or that Appellant expressly waived his right to PCRA
review. See also Barnett (holding that this Court cannot review IAC claims
on direct appeal absent a defendant’s waiver of PCRA review).
Consequently, in light of Holmes, we dismiss Appellant’s claims of
ineffective assistance of counsel without prejudice to his ability to raise them
in a subsequent PCRA petition, if he so chooses.
Clearly, then, the other thirteen issues set forth in Appellant’s
Statement of Questions Involved in his brief have not been preserved for
review because they were not set forth in either the counseled Pa.R.A.P.
1925(b) statement filed on November 7, 2013, or Appellant’s pro se Motion
to Amend Legal Grounds of Appeal filed on December 5, 2013.3 Thus,
3
We note, as well, that most of the issues set forth in the Statement of
Questions Involved have been abandoned in the brief, thereby providing an
alternative basis for waiver. Appellant presents four issues in the body of
his brief, one of which is issue nine, presented as Argument (3) in the brief,
the single issue of IAC discussed above. Arguments (1), (2), and (4) in the
brief correspond to issues eleven, twelve, and fourteen in the Statement of
Questions Involved. All other issues were abandoned in the argument
section of the brief. Issues that are abandoned in the brief, are waived.
Commonwealth v. Heggins, 809 A.2d 908, 912 (Pa. Super. 2002).
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because there are no issues before us that have been properly preserved or
that have not been waived, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/29/2014
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Com. v. Brown, T.
Combined Opinion