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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
ERIK LYBARGER, : No. 1692 WDA 2013
:
Appellant :
Appeal from the Judgment of Sentence September 5, 2013,
in the Court of Common Pleas of Cambria County
Criminal Division at No. CP-11-CR-0000929-2012
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND ALLEN, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 27, 2015
Erik Lybarger appeals from the judgment of sentence entered on
September 5, 2013. We affirm.
The relevant facts and procedural history of this appeal are as follows.
On March 6, 2012, appellant and William McGinnis were involved in an
altercation at the Point Stadium in Johnstown. Thirty minutes later, another
altercation occurred between the two men in the parking lot of a deli.
Appellant slashed McGinnis’ chest with a box cutter resulting in serious
injury. Appellant was charged with aggravated assault and recklessly
endangering another person.
On May 16, 2012, a preliminary hearing was held. At the beginning of
the hearing, defense counsel informed the court that appellant wished to
represent himself. (Notes of testimony, 5/16/12 at 3.) Initially, the
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magistrate denied appellant’s request to proceed pro se. (Id. at 11.)
However, when it was time for the defense to question the first
Commonwealth witness, appellant again expressed that he wished to
represent himself and averred, “Mr. Filia does not represent me.” (Id. at
18.) The court summarily read the waiver of counsel form to appellant and
appellant signed the form. (Id. at 19.) Thereafter, Attorney Filia was
instructed he was standby counsel and appellant would be cross-examining
the witness. (Id. at 19-20.) At the end of the hearing, the magistrate
found a prima facie case had been established, and the charges were
bound over to the Cambria County Court. (Id. at 27.)
A criminal information was filed on June 13, 2012. On June 15, 2012,
more than a year before trial commenced, the Honorable Timothy P. Creany
conducted a Rule 121 colloquy and permitted appellant to represent himself
with the assistance of stand-by counsel, Michael Filia, Esq. (Notes of
testimony, 6/15/12 at 20-21.) (See also Docket #27.) However, while
incarcerated, it was recommended that appellant undergo mental health
treatment at another facility. On September 14, 2012, Judge Creany filed
an order which continued appellant’s case. (Docket #49.)
On November 16, 2012, Judge Creany directed that appellant be
evaluated at Torrance State Hospital pursuant to a mental health proceeding
recommendation. (Docket #54.) On December 5, 2012, following a review
of the psychological evaluation and reports from Torrance, Judge Creany
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denied self-representation and directed that Attorney Filia would represent
appellant. (Docket #63.)
On May 10, 2013, at a hearing regarding appellant’s pro se motion for
nominal bail under Rule 600, the Honorable David J. Tulowitzki filed an order
directing Attorney Filia to be appointed as standby counsel for appellant.
(Docket #113.) Thereafter, on May 23, 2013, Judge Tulowitzki filed an
order denying appellant’s pro se motion for nominal bail under Rule 600.
(Docket #133.)
On May 30, 2013, pre-trial motions were heard prior to jury selection
before the Honorable Linda Rovder Fleming, and appellant represented
himself with Attorney Filia present as standby counsel. On June 6, 2013, the
trial began; appellant appeared pro se with Attorney Filia present as
standby counsel. The trial court disposed of six pro se pre-trial motions
appellant had filed. Judge Fleming then provided instructions to the jury and
heard opening statements. During appellant’s cross-examination of the
Commonwealth’s first witness, Judge Fleming asked appellant to approach
for a sidebar conference and appellant refused. (Notes of testimony, 6/6/13
at 93.)
The jury was dismissed and the court conducted another Rule 121
colloquy, stating it was no longer convinced appellant had made a knowing,
intelligent, and voluntary waiver of his right to counsel. (Id. at 107.)
Judge Fleming subsequently found that appellant voluntarily and knowingly
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waived his right to counsel. (Id. at 106-120.) Immediately thereafter, a
contempt hearing was conducted in relation to appellant’s open defiance of
the judge in view of the jury. (Id. at 124.) Appellant was found to be in
contempt, sentenced to 48 hours of incarceration, and barred from the
courtroom for contempt with the opportunity to purge by complying with
future court directives. Attorney Filia was directed to act as primary counsel
while appellant remained incarcerated. (Id. at 130.) The jury was
instructed not to take any adverse inference from appellant’s absence. (Id.
at 129-130.) The trial continued and appellant was ultimately found guilty
on all counts.
On September 5, 2013, appellant was sentenced to a term of
imprisonment of 96 months to 192 months for aggravated assault and a
concurrent term of 12 to 24 months for REAP. On September 9, 2013,
appellant filed a “letter of notice” with the clerk of courts, requesting it to be
considered a notice of appeal.1 By order dated October 14, 2013, appellant
was directed to file a concise statement of errors complained of on appeal
within 21 days pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A. Appellant
failed to comply, and a panel of this court, by order dated December 18,
2013, directed the trial court to consider whether appellant was financially
entitled to appointed counsel.
1
This document was not initially docketed as a notice of appeal by the
Cambria County Clerk of Courts.
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Thereafter, on December 27, 2013, the trial court issued an order
granting appellant in forma pauperis status and appointing Arthur T.
McQuillan, Esq., as appellant’s counsel. On February 4, 2014, appellant filed
a nunc pro tunc Rule 1925(b) statement raising the following issue:
1. Whether the defendant’s waiver of the right to
counsel four months prior to trial was:
(a) timely; and
(b) sufficient to determine the
defendant’s competency to
understand the nature of the
charges pending against him, and
to completely represent himself at
trial; and
(c) knowing, voluntary and intelligent
in view of the prior Court Orders of
mental health commitment,
evaluation and treatment?
Docket #268; appellant’s brief at 6.2
The trial court finds appellant’s claim to be waived as the court was
unable to identify a ruling on this issue on or about the time period cited by
appellant -- four months prior to jury selection. (Trial court opinion, 3/7/14
at 3.) In his brief on appeal, appellant explains that he misstated the date
and “[u]pon applying for and examining additional transcripts, it became
apparent that [he] had waived his right to counsel before President Judge
Timothy P. Creany 12 months prior to trial, on June 15, 2012.” (Appellant’s
2
A second claim presented in the nunc pro tunc Rule 1925(b) statement
has been abandoned on appeal.
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brief at 12 (emphasis in original).) Appellant then acknowledged that
Judge Creany reversed his decision in December of 2012. (Id.) Appellant
posits that “counsel’s mistaken averment that the waiver took place
four months prior to trial should not affect the Superior Court’s review of
the issue.” (Id.) Additionally, we note the argument presented in his brief
concerns the timeliness and adequacy of the colloquy conducted during trial
on June 6, 2013, before Judge Fleming. (Id. at 15-17.)
We find appellant’s colloquy issue waived because of the failure to
properly identify for the trial court the particular Rule 121 colloquy in
question. Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa.Super.
2011), appeal denied, 632 A.3d 1275 (Pa. 2011) (citation omitted) (“[T]he
Rule 1925(b) statement must be specific enough for the trial court to
identify and address the issue an appellant wishes to raise on appeal.”).
“When a court has to guess what issues an appellant is appealing, that is not
enough for meaningful review.” Commonwealth v. Dowling, 778 A.2d
683, 686 (Pa.Super. 2001) (citation omitted). As counsel points out, there
were numerous hearings in this matter and multiple times when appellant’s
request to proceed pro se was reviewed. Moreover, more than one judge
was involved in appellant’s case as it proceeded through the court system.
Thus, pursuant to the date specified in appellant’s Rule 1925(b) statement,
the trial court could not identify and address the claim. Because appellant’s
concise statement has completely hampered appellate review, this issue is
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waived. Pa.R.A.P. 1925(b)(4)(vii) (issues not included in statement are
waived).
Moreover, our review of the Rule 121 colloquies administered by the
various judges involved were, in fact, defective in that there was no inquiry
into Subsections (e) and (f). However, no relief is due under the
circumstances of this case. Following a psychological evaluation, on
December 5, 2012, Judge Creany specifically made a determination that
appellant was not competent to represent himself and appointed
Attorney Filia to represent him at trial. This order is not challenged on
appeal.3 The issue of any previous colloquy being defective was made moot
by Judge Creany’s December 12th order. Presently, the court is at a loss as
to why both Judge Tulowitzki and Judge Fleming thereafter considered the
issue of self-representation. In any event, once appellant was barred from
the trial due to the contempt finding, Attorney Filia did in fact represent
appellant at trial. Appellant received all the rights to which he was entitled.
Finally, appellant has repeatedly filed pro se motions during this
appeal while represented by Attorney McQuillan. These motions are denied
pursuant to Commonwealth v. Jette, 23 A.3d 1032 (Pa. 2011).
Judgment of sentence affirmed. The “motion for court order and
directive to counsel to withdraw,” the “application for an order to compel
3
Appellant is not asserting on appeal that he wanted to proceed pro se but
that the colloquy to proceed pro se was defective.
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pro se,” and the motion entitled “jettes sui-juris/pro se brief fraud-upon-
the-court supplement” are denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/27/2015
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Com. v. Lybarger, E.
Combined Opinion