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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
FRANCIS IVAN SMITH, III
Appellant No. 626 WDA 2017
Appeal from the Judgment of Sentence imposed October 18, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No: CP-02-CR-0001502-2015
BEFORE: STABILE, DUBOW, and NICHOLS, JJ.
MEMORANDUM BY STABILE, J.: FILED OCTOBER 22, 2018
Appellant, Francis Ivan Smith, III, appeals pro se from the judgment of
sentence imposed on October 18, 2016 in the Court of Common Pleas of
Allegheny County. Upon review, we affirm.
As the trial court explained:
On August 15, 2016, a jury found Appellant [] guilty of resisting
arrest and disorderly conduct.1 This court, on October 18, 2017,
sentenced Appellant to nine to twenty-four months of
incarceration on the resisting arrest count and no further penalty
at the disorderly conduct count. Appellant’s post-sentence motion
was denied on March 27, 2017. Appellant filed a notice of appeal
on April 25, 2017 and a concise statement of errors complained of
on appeal on June 16, 2017.
Additionally, counsel for Appellant filed a motion to withdraw on
June 6, 2017. In that motion, counsel alleged that Appellant was
unhappy that counsel would not raise certain matters on appeal.
Counsel further asserted that he informed Appellant that, as an
attorney, counsel was ethically unable to raise some of Appellant’s
requested issues. This court denied the motion on June 22, 2017.
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On July 5, 2017, counsel filed a second motion to withdraw, this
time alleging that Appellant wished to fire counsel and represent
himself. This court conducted a Grazier2 hearing on August 16,
2017. At the Grazier hearing, Appellant initially indicated that he
was not firing his attorney, then said that he was firing his
attorney. During the Grazier colloquy, however, Appellant stated
that he was not waiving his right to counsel of his own free will.
As a result, this court found that Appellant was not voluntarily
waiving his right to counsel and in order to protect Appellant’s
legal interests, this court denied the second motion to withdraw.
1
18 Pa.C.S.A. §§ 5104 and 5503(a)(1), respectively.
2
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
Trial Court Rule 1925(a) Opinion, 8/18/17, at 1-2 (some capitalization and
additional footnote omitted).
In its Rule 1925(a) opinion, the trial court explained that Appellant
alleged three errors on appeal as follows:
Appellant alleges his verdicts were against the weight of the
evidence. Next, Appellant alleges that the verdicts were
insufficient to establish the elements of resisting arrest and
disorderly conduct. Lastly, Appellant alleges this court abused its
discretion in sentencing [him] in the aggravated range in the
absence of substantial sentencing factors.
Id. at 2 (citing Appellant’s Rule 1925(b) statement of errors at 3-4) (some
capitalization omitted).
The trial court examined each of the three issues presented in
Appellant’s Rule 1925(b) statement, with citations to case law and the
transcript of Appellant’s jury trial, and concluded the verdicts were not against
the weight of the evidence, that the evidence was sufficient to support the
verdicts, and that the court properly exercised its discretion by imposing an
aggravated range sentence for resisting arrest. Id. at 3-10.
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Appellant’s counsel requested and was granted an extension to file
Appellant’s brief with this Court. Order, 10/5/17. On October 13, 2017,
Appellant filed a motion to proceed pro se. On October 24, we remanded to
the trial court for a Grazier hearing. By order of January 9, 2018, the trial
court determined “that Appellant has made a knowing, voluntary and
intelligent waiver of his right to counsel and indicated his desire to proceed in
this matter pro se. Having met this standard, Appellant is permitted to
proceed pro se and remains in forma pauperis.” Trial Court Order, 1/9/18, at
1.
On March 22, 2018, we dismissed Appellant’s appeal for failure to file a
brief in accordance with the briefing schedule, which established February 20,
2018 as the deadline for filing his brief. Appellant requested reinstatement of
his appeal and this Court granted his request, setting May 7, 2018 as the new
deadline for filing his brief. Order, 4/10/18, at 1. Appellant complied.
In his “Statement of the Questions Involved,” Appellant presents the
following seven issues:
1. Did the trial court err when it committed a myriad of violations
of the Mental Health Procedures Act culminating in: the
constructive denial of counsel at a critical state, an unlawful
involuntary committment (sic) and a Rule 600/6th Amendment
speedy trial right’s violation?
2. Did the trial court err when it allowed [Appellant] to proceed
pro se and appointed standby counsel without conducting a
waiver colloquy as required by Pa.R.Crim.P. 121?
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3. Did the trial court err when it excluded [Appellant] from his
trial for exercising his 6th Amendment right to counsel?
4. Did the trial court err when it denied a suppression motion for
technical violations [Appellant] was neither arrested nor
charged with violating?
5. Did the trial court err when it failed to recuse itself from the
recusal hearing on allegations challenging the court’s integrity
and summarily dismissing the motion without developing the
record?
6. Did the trial court err when it sentenced [Appellant] in the
aggravated range based on a competency evaluation that he
neither consented to nor was [Appellant] assisted by counsel
in deciding whether to comply with the evaluation?
7. Did trial counsel provide ineffective assistance for the
following: failing to represent [Appellant] at two competency
hearings, failing to represent [Appellant] after he was declared
incompetent, failing to raise the illegality of 37 Pa. Code 65.4[,]
failing to raise the illegality of the burglary convictions 18
Pa.C.S. [§] 3502(d) and failing to raise the illegality of the
sentence modification per 42 Pa.C.S. [§] 5505?
Appellant’s Brief at 3-4.
As indicated above, the three issues raised in Appellant’s Rule 1925(b)
statement included weight of the evidence, sufficiency of the evidence, and
abuse of discretion with respect to the sentence imposed for resisting arrest.
However, his Statement of Questions Involved reveals that Appellant is now
asking us to consider seven issues, the first five of which are unrelated to any
of the issues preserved for appellate review. As this Court has recognized:
It is well settled that issues not raised before the trial court cannot
be advanced for the first time on appeal. Pa.R.A.P. 302(a).
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Issue preservation is foundational to proper appellate
review. . . . By requiring that an issue be considered waived
if raised for the first time on appeal, our courts ensure that
the trial court that initially hears a dispute has had an
opportunity to consider the issue. This jurisprudential
mandate is also grounded upon the principle that a trial
court . . . must be given the opportunity to correct its errors
as early as possible. Related thereto, we have explained in
detail the importance of this preservation requirement as it
advances the orderly and efficient use of our judicial
resources. Finally, concepts of fairness and expense to the
parties are implicated as well.
In re F.C. III, 607 Pa. 45, 2 A.3d 1201, 1212 (2010) (citations
omitted) (finding appellant’s constitutional claims waived where
he failed to raise them before the lower court, depriving that
tribunal of the opportunity to consider and rule upon them); see
also Commonwealth v. Hawkins, 295 Pa. Super. 429, 441 A.2d
1308, 1312, n.6 (1982) (even issues of constitutional dimension
cannot be raised for the first time on appeal pursuant to Pa.R.A.P.
302(a)). Appellant’s failure to raise his constitutional claims
before the trial court impedes appellate review, and his failure to
develop the record before the trial court interferes with our ability
to conduct a meaningful evaluation of the issues raised in
Appellant’s brief.
Commonwealth v. Miller, 80 A.3d 806, 811 (Pa. Super. 2013). Because
Appellant’s first five issues were not properly preserved for review, we shall
not consider them.1 Pa.R.A.P. 302(a).
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1 After we reinstated Appellant’s appeal, Appellant filed (for the second time)
a “Petition for Writ of Mandamus.” Appellant requested, and we denied (for
the second time) his petition, stating Appellant’s “request[] that the lower
court be directed to reply to his untimely, unrequested 1925(b) statement and
seek[ing] permission to amend his new 1925(b) statement . . . is DENIED.”
Order, 4/18/18, at 1.
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In his sixth issue, Appellant asserts trial court error for imposing a
sentence in the aggravated range for Appellant’s resisting arrest conviction.
As such, Appellant presents a challenge to the discretionary aspects of
sentence. As this Court reiterated in Commonwealth v. Schrader, 141 A.3d
558 (Pa. Super. 2016):
Preliminarily, we note that “there is no absolute right to appeal
when challenging the discretionary aspect of a sentence.”
Commonwealth v. Ahmad, 961 A.2d 884, 886 (Pa. Super.
2008). An appellant must first satisfy a four-part test to invoke
this Court’s jurisdiction. We examine
(1) whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and
modify sentence, see Pa.R.Crim.P. 720; (3) whether
appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that the sentence
appealed from is not appropriate under the Sentencing
Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. [Antwine] Griffin, 65 A.3d 932, 935 (Pa.
Super. 2013) (citation omitted).
Id. at 563. Here, Appellant’s appeal was timely filed and his sentencing issue
was preserved in his post-sentence motion. Therefore, he has satisfied the
first two parts of the test. However, Appellant has not included a Rule 2119(f)
statement of reasons relied upon for allowance of appeal. “If the
Commonwealth objects to the appellant’s failure to comply with Pa.R.A.P.
2119(f), the sentencing claim is waived for purposes of review.”
Commonwealth v. [Tyrice] Griffin, 149 A.3d 349, 353 (Pa. Super. 2016)
(citation omitted). Because the Commonwealth objected to Appellant's failure
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to include a separate Rule 2119(f) statement in his appellate brief, see
Commonwealth Brief at 13, this issue is waived for our review. Griffin, 149
A.3d at 353-54.2
In his final issue, Appellant contends that trial counsel was ineffective
for failing to represent him at two competency hearings, failing to represent
him after he was declared incompetent, failing to raise the illegality of the
underlying burglary sentences for which he was on probation when arrested
for resisting arrest and disorderly conduct, and failing to raise the illegality of
a sentence modification. This claim, just as Appellant’s first five claims, was
not preserved for appeal in his Rule 1925(b) statement. Therefore, we may
not consider it. Pa.R.A.P. 302(a).
Appellant recognizes that claims of ineffectiveness are generally to be
raised on collateral review. Appellant’s Brief at 24. Without citation to case
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2 Even if not waived, Appellant’s sentencing issue is devoid of merit. As the
trial court explained in its Rule 1925(a) opinion, the court had the benefit of
a pre-sentence report, evidencing its awareness of relevant information. Trial
Court Opinion, 8/18/17, at 9 (citing Commonwealth v. Devers, 546 A.2d
12, 18 (Pa. Super. 1988)). Further, the trial court noted that Appellant had
“demonstrated both an inability and unwillingness to conform his behavior to
the reasonable rules of society;” exhibited a “do whatever he wants to do”
attitude, making him unusually resistant to treatment; “was openly hostile,
disrespectful and defiant even when redirected by the court;” “refused to
cooperate with trial counsel and to participate respectfully at every court
proceeding;” and used offensive, vulgar language in addressing the trial judge
and in referring to his probation officer. Id. at 9-10. Consequently, “[f]or the
protection of the community, and to give Appellant a reasonable amount of
time to address his addiction and his need for long-term mental health
treatment,” the court imposed a sentence in the aggravated range. Id. at 10.
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law, he suggests that the ineffectiveness here is so “blatant” that it should be
considered on direct appeal and represents that he “waives his right to PCRA
review of these issues.” Id.
In Commonwealth v. Baker, 72 A.3d 652 (Pa. Super. 2013), this
Court explained:
As the law currently stands, a valid waiver of PCRA review is a
prerequisite to appellate review of ineffectiveness claims on
appeal. Because our Supreme Court and this Court en banc have
instructed that ineffectiveness claims are generally not reviewable
on direct appeal, before reviewing such a claim on direct appeal,
it is incumbent upon this Court to determine whether a defendant
expressly, knowingly and voluntarily waived his or her right to
PCRA review.
Id. at 665-66 (citations omitted). Because Appellant’s purported waiver does
not constitute an express, knowing and voluntary of waiver of his right to
PCRA review, this Court would not be in a position to review an ineffectiveness
claim, even if preserved. Appellant is entitled to raise his ineffectiveness
issues in a PCRA petition, along with any other claims for post-conviction
relief, if he so chooses and as the law allows.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
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Date: 10/22/2018
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