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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JAMES LESLIE FLOWERS, JR., : No. 97 MDA 2017
:
Appellant :
Appeal from the Judgment of Sentence, October 12, 2016,
in the Court of Common Pleas of Schuylkill County
Criminal Division at No. CP-54-CR-0001181-2015
BEFORE: OLSON, J., MOULTON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 30, 2018
James Leslie Flowers appeals pro se from the October 12, 2016
judgment of sentence entered in the Court of Common Pleas of Schuylkill
County1 following his conviction in a jury trial of delivery of a controlled
substance, possession with intent to deliver a controlled substance, and
1 Appellant filed his appeal from the December 7, 2016 order denying his
post-sentence motion. In the criminal context, an appeal properly lies from
the judgment of sentence, not an order denying post-sentence motions.
Commonwealth v. Dreves, 839 A.2d 1122, 1125 n.1 (Pa.Super. 2003)
(en banc). The caption, therefore, has been amended to reflect that this
appeal is from the October 12, 2016 judgment of sentence.
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possession of a controlled substance.2 The trial court imposed a sentence of
27 to 54 months of imprisonment.3 We affirm.
In a prior memorandum, we set forth the following procedural history:
The record reflects that on June 15, 2015,
Attorney Andrea Thompson of the Office of the Public
Defender entered her appearance on appellant’s
behalf and represented appellant through trial.
Following trial, but before sentencing, and while still
being represented by Attorney Thompson, appellant
commenced pro se filings with the trial court, which
included a “notice of appeal,” a “motion for stay of
sentencing pending appeal,” and a Post-Conviction
Relief Act[Footnote 4] petition alleging, among other
things, ineffective assistance of Attorney Thompson.
(Pro se notice of appeal, 9/13/16; pro se motion for
stay of sentencing pending appeal, 9/13/16; pro se
PCRA petition, 9/13/16; Docket ##30, 32 & 33,
respectively). On September 16, 2016,
Attorney Thompson filed a motion to withdraw as
counsel, alleging her inability to represent appellant
because of the “outrageous and spurious allegations”
appellant made against her. (Motion to withdraw as
counsel, 9/16/16.) On September 26, 2016, the trial
court entered an order granting
Attorney Thompson’s motion to withdraw as counsel
and appointing Claude A.L. Shields, Esq., to
represent appellant. (Order of court, 9/26/16.)
Despite being represented by Attorney Shields,
appellant filed a pro se motion challenging the trial
court’s jurisdiction over appellant. (Pro se motion
to challenge jurisdiction, 10/11/16; Docket #40.)
[Footnote 4] 42 Pa.C.S.A. §§ 9541-9546.
The trial court held a sentencing hearing on
October 12, 2016, at which Attorney Shields
2 Counts I and II in violation of 35 P.S. § 780-113(a)(30) and Count III in
violation of 35 P.S. § 780-113(a)(16).
3 For sentencing purposes, Counts II and III merged with Count I.
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represented appellant. Because appellant disrupted
those proceedings, the trial court held appellant in
direct criminal contempt of court, sentenced him to
30 days in prison, and had him removed from the
sentencing hearing and taken into custody. (Notes
of testimony, 10/12/16 at 3.) The sentencing
hearing then proceeded without appellant. Prior to
imposition of sentence, Attorney Shields informed
the trial court that appellant had indicated to counsel
that appellant did not want counsel’s representation.
(Id. at 6-7.) Attorney Shields further informed the
trial court that communication between counsel and
appellant is “totally broke [sic] down.” (Id. at 7.)
Attorney Shields stated that although he would be
representing appellant at the sentencing hearing, he
would be filing a motion to withdraw. (Id.)
Thereafter, the trial court imposed sentence. (Id.
at 11; see also order of court, 10/12/16; Docket
#41.)
On October 13, 2016, Attorney Shields filed a
post-sentence motion on appellant’s behalf and
simultaneously filed a motion to withdraw as
counsel. In that motion to withdraw,
Attorney Shields alleged that because counsel
informed appellant that appellant had no basis to
challenge the trial court’s jurisdiction over him,
appellant refused to communicate with counsel.
(Motion to withdraw as counsel, 10/13/16; Docket
#44.) On November 10, 2016, the trial court
granted Attorney Shields’s motion to withdraw as
counsel and further “ordered that [appellant] may
represent himself pro se and that [Attorney] Shields
is appointed to serve as standby counsel.” (Order of
court, 11/10/16; Docket #53.) On December 7,
2016, the trial court denied appellant’s
post-sentence motion.
The record further reveals that appellant filed a
“motion for extraordinary relief to the [trial] court,”
which was docketed on November 29, 2016, and
states:
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And now, [appellant]/pro se,
James Leslie Flowers, hereby motions the
court as follows:
1. The order of court on the 10th
day of November, granted
the motion of defense
counsel to withdraw his
appearance in the matter,
and his appearance is
withdrawn.
2. It is further ordered that
[appellant] may represent
himself pro se, and that
Claude A. Lord Shields,
Esquire is appointed to serve
as standby counsel.
WHEREFORE, [appellant]/pro se,
James Leslie Flowers request that this
Honorable Court to grant, extraordinary
relief, so that pro se [appellant] may
seek proper legal advice from attorney’s
at law, who specialize in the nature of
these charges brought forth, and further
be appointed appeal bail to reinstate the
bail that [appellant]/pro se,
James Flowers is therefore capable, and
knowledgeable to properly litigate these
proceedings.
Pro se motion for extraordinary relief to the court,
11/29/16; Docket #56 (numerous grammatical
errors occur in original).
On December 2, 2016, the trial court entered
an order denying appellant’s motion for
extraordinary relief. (Order of court, 12/2/16;
Docket #58.) Appellant then filed a pro se notice of
appeal to this court.[Footnote 5] (Pro se notice of
appeal, docketed 1/13/17; Docket #65.) The trial
court then ordered appellant to file a concise
statement of errors complained of on appeal
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pursuant to Pa.R.A.P. 1925(b), and appellant timely
complied pro se. The trial court then filed its
Rule 1925(a) opinion.
[Footnote 5] The notice of appeal is
dated January 6, 2017, but
time-stamped as being docketed on
January 13, 2017. In an abundance of
caution, based upon the prisoner mailbox
rule, we deem the notice of appeal timely
filed. See Commonwealth v.
Chambers, 35 A.3d 34, 38 (Pa.Super.
2011) (holding “a pro se prisoner’s
document is deemed filed on the date he
delivers it to prison authorities for
mailing”) (citation omitted)).
Appellant has now filed a pro se brief with this court
raising six issues. Based on the record before us,
however, we cannot consider the issues that
appellant requests that we review because we find
that the trial court violated appellant’s right to
counsel on direct appeal. See Commonwealth v.
Wrecks, 931 A.2d 717, 722 (Pa.Super. 2007)
(reiterating that a criminal appellant has a
constitutional right to counsel on direct appeal).
Here, nothing in the record supports the conclusion
that appellant requested Attorney Shields to
withdraw, waived his right to counsel on appeal, or
desired to proceed pro se on appeal. We are,
therefore, constrained to remand for a
Grazier[Footnote 6] hearing. If appellant wishes to
represent himself, we will proceed to the merits on
appeal considering his pro se brief.
[Footnote 6] Commonwealth v.
Grazier, 713 A.2d 81 (Pa. 1998).
Commonwealth v. Flowers, 2017 Lexis 3136, at *1-7 (Pa.Super.
August 18, 2017) (unpublished memorandum).
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On August 18, 2017, we remanded this matter to the trial court to
conduct a Grazier hearing to determine whether appellant’s decision to
proceed pro se on direct appeal was a knowing, intelligent, and voluntary
one. On September 14, 2017, the trial court filed an order with this court,
dated September 12, 2017, attaching a certified transcript of its
November 10, 2016 hearing with counsel and appellant with respect to
Attorney Shields’s motion to withdraw as appellant’s counsel and certifying
its conclusion that appellant “was acting knowingly, intelligently, voluntarily
and understandingly, and that the Grazier requirements had been fulfilled.”
(Order of court, 9/12/17.) The attached hearing transcript, however, failed
to demonstrate that the trial court conducted a proper colloquy of appellant
that examined the relevant factors set forth in Pa.R.Crim.P. 121 with respect
to appellant representing himself on direct appeal. Therefore, by order
entered October 11, 2017, we remanded again to the trial court to conduct a
proper Grazier hearing.
This court has recognized that following a trial, there are several
factors regarding waiver of counsel that are no longer relevant.
Commonwealth v. Meehan, 628 A.2d 1151, 1157 (Pa.Super. 1993),
appeal denied, 649 A.2d 670 (Pa. 1994). Our decision in Meehan was
“specifically cited with approval in our supreme court’s pronouncement in
Grazier.” Commonwealth v. Robinson, 970 A.2d 455, 459 (Pa.Super.
2009). The Meehan court “addressed whether the defendant had validly
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waived his rule-based right to counsel for purposes of a [Post Conviction
Relief Act (“PCRA”)] hearing.” Id. Similar to a PCRA proceeding, several
Pa.R.Crim.P. 121 factors regarding waiver of counsel are not relevant during
post-sentence motions and direct appeal.
When a defendant waives his or her right to counsel after trial, the
waiver of counsel colloquy must demonstrate that the defendant understood
“(1) his right to be represented by counsel; (2) that if he waived this right,
he will still be bound by all normal procedural rules; and (3) that many
rights and potential claims may be permanently lost if not timely asserted.”
Id., citing Meehan, 628 A.2d at 1157; see also Commonwealth v.
Powell, 787 A.2d 1017, 1019 (Pa.Super. 2001) (establishing test for
knowing, intelligent, and voluntary waiver of counsel in post-conviction and
appellate proceedings).
On October 27, 2017, and in accordance with our remand order, the
trial court filed a Grazier hearing transcript with this court of the proceeding
that it conducted on October 13, 2017. That colloquy demonstrates that
appellant acknowledged that he understood his right to be represented by
counsel. (Notes of testimony, 10/13/17 at 2-3, 5.) The colloquy also
reveals that appellant acknowledged that he understood that he would be
bound by the applicable procedural rules of court and that if he failed to
timely assert rights, those rights may be permanently lost. (Id. at 7, 9.)
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Therefore, the colloquy demonstrates that appellant’s decision to proceed
pro se on direct appeal was a knowing, intelligent, and voluntary one.
With respect to this appeal, we preliminarily note that the trial court
ordered appellant to file a concise statement of errors of complained of on
appeal pursuant to Pa.R.A.P. 1925(b) by February 7, 2017. Appellant timely
complied. In that statement, appellant framed his issues, as follows:
[1.] Defendant and [a]ppellant believes that he was
ineffectively represented by Attorney
Andre [sic] Thompson in the Schuylkill County
Public Defender’s Office for lack of motions to
surpress [sic] evidence, actually refusing to,
motions to challenge probable cause for arrest
warrant, and absence of impeachment of the
Commonwealth’s witness[.]
[2.] Defendant and [a]ppellant believes that in
accord with Pennsylvania Rules [sic] 403 –
Impeachment Evidence, Bias, Interest, or
Curruption [sic] states, if a witness testifies for
the Commonwealth either pursuant to a deal
or while criminal charges are pending against
him/or her the accused is entitled to establish
those facts to demonstrate interest and bias.
A witness testifying under grant of immunity
may be impeached thereby. If an accomplice
testifies in a criminal case, bias and interest
may always be explored. Failure of the
prosecution to disclose an agreement to the
defense may violate the defendant’s
constitutional rights, even if the agreement is
contingent or not fully defined. For example,
in criminal cases, it is customary for
prosecution to reveal the existence of a plea
bargain with a witness, although prosecution
questioning eliciting the details of a plea
agreement from a cooperating witness may
represent improper bolstering. Failure to cross
examine [sic] a prosecution witness on bias
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may be ineffective assistance of counsel. Proof
of bias, interest, or corruption may incidentally
expose otherwise inadmissible facts to the
jury. All of which were never executed by
Attorney Thompson which inevitably led
Attorney Thompson to recuse herself from my
case after verdict of guilty, authorized by you,
yourself Judge Dolbin.
[3.] Defendant and [a]ppellant reiterates, that for
failure of the public defender’s office or trial
court to adequately address the breakdown in
attorney client [sic] relationship in the prior
months to trial, rendered the [d]efendant and
[a]ppellant with ineffective counsel, along with
the prosecutorial misconduct and bad acts
which was [sic] a direct result of a
mis trial [sic] in front of The Honorable Judge
Baldwin in a very similar almost identical
situation.
Appellant’s “motion to court in compliance to rule 1925-opinion in support of
order,” 2/1/17 at unnumbered pages 2-3 (alphabetic paragraph references
replaced with numerals).
On February 15, 2017, the trial court filed its Rule 1925(a) opinion4 in
which it concluded that appellant’s “principle issues in this appeal are not
discernable” from his Rule 1925(b) statement and that his ineffective
assistance of counsel claims are not cognizable on direct appeal. (Trial court
opinion, 2/15/17.) The trial court attached its December 7, 2016 order
4 We note that on February 21, 2017, which was after the trial court filed its
Rule 1925(a) opinion on February 15, 2017, appellant filed a document
titled, “supplemental reasons for notice of appeal Pa.R.A.P. Rules 902, 904,
905.” Although this document is largely unintelligible, to the extent that
appellant filed this as a supplemental Rule 1925(b) statement, he did so
without leave of court and in an untimely manner.
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denying appellant’s post-sentence motion which contained its reasoning for
denying that motion to its Rule 1925(a) opinion. (Id.)
A concise statement on appeal must be specific enough for the trial
court to identify and address the issue or issues that the appellant wishes to
raise on appeal. In re A.B., 63 A.3d 345, 350 (Pa.Super. 2013).
Pennsylvania Rule of Appellate Procedure 1925
provides that a Rule 1925(b) statement “shall
concisely identify each ruling or error that the
appellant intends to challenge with sufficient detail to
identify all pertinent issues for the judge.”
Pa.R.A.P. 1925(b)(4)(ii). “Issues not included in the
Statement and/or not raised in accordance with the
provisions of this [Rule] are waived.”
Pa.R.A.P. 1925(b)(4)(vii).
This Court has considered the question of what
constitutes a sufficient 1925(b) statement on many
occasions, and it is well-established that “Appellant’s
concise statement must properly specify the error to
be addressed on appeal.” Commonwealth v.
Hansley, 2011 PA Super 129, 24 A.3d 410, 415 (Pa.
Super. 2011), appeal denied, 613 Pa. 642, 32 A.3d
1275 (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.” Id. (brackets, internal quotation
marks, and citation omitted). Further, this Court
may find waiver where a concise statement is too
vague. Id. “When a court has to guess what issues
an appellant is appealing, that is not enough for
meaningful review.” Commonwealth v. Dowling,
2001 PA Super 166, 778 A.2d 683, 686 (Pa. Super.
2001) (citation omitted). “A Concise Statement
which is too vague to allow the court to identify the
issues raised on appeal is the functional equivalent of
no Concise Statement at all.” Id. at 686-87.
Id.
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Here, appellant’s “concise statement” is the functional equivalent of no
statement at all. Therefore, appellant waives all issues on appeal. Even if,
however, appellant’s issues were not waived for failure to comply with
Pa.R.A.P. 1925(b), appellant’s claims of ineffectiveness of counsel are not
cognizable on direct appeal. “It is well-settled that, absent circumstances
not present in the case at bar, ‘claims of ineffective assistance of counsel are
to be deferred to PCRA review[.]’” Commonwealth v. Reid, 117 A.3d 777,
786 (Pa.Super. 2015), quoting Commonwealth v. Holmes, 79 A.3d 562,
576 (Pa. 2013).
Nevertheless, we have reviewed appellant’s “brief.” Preliminarily, we
note that it fails to include a statement of questions presented. We have
recognized that the omission of a statement of questions presented is
“particularly grievous since the statement . . . defines the specific issues this
court is asked to review.” Smathers v. Smathers, 670 A.2d 1159, 1160
(Pa.Super. 1996), quoting Commonwealth v. Maris, 629 A.2d 1014, 1016
(Pa.Super. 1993). “When the omission of the statement of questions
presented is combined with the lack of any organized and developed
arguments, it becomes clear that appellant’s brief is insufficient to allow us
to conduct meaningful judicial review.” Smathers, 670 A.2d at 1160. Here,
in addition to failing to include a statement of questions presented, appellant
also failed to include a statement of jurisdiction, a statement of both the
scope of review and the standard of review, and a statement of the case.
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Appellant’s “brief” also lacks organization, as well as citations to the record.
Consequently, even if appellant did not waive his appellate issues for failure
to comply with Pa.R.A.P. 1925(b), the substantial defects in his “brief” would
have precluded us from conducting any meaningful judicial review, and we
would have dismissed this appeal.5 See Pa.R.A.P. Rule 2101; see also
Smathers, 670 A.2d at 1160-1161.
Order affirmed.
Judge Moulton did not participate in the consideration of this decision.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/30/18
5 Finally, we note that within appellant’s “brief,” appellant attempts to raise
a double jeopardy issue, a discovery issue, a claim that his right to allocution
was violated, and a jurisdictional challenge. Appellant failed to raise these
issues below and notwithstanding the deficiencies in appellant’s
Rule 1925(b) statement and in his brief, he would have waived these issues
on appeal for that reason. See Pa.R.A.P. 302(a) (“Issues not raised in the
lower court are waived and cannot be raised for the first time on appeal.”).
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