Com. v. Morales, A.

J-S60021-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDREW HECTOR MORALES :
:
Appellant : No. 452 MDA 2018

Appeal from the Judgment of Sentence March 5, 2018
In the Court of Common Pleas of Snyder County Criminal Division at
No(s): CP-55-CR-0000174-2017

BEFORE: SHOGAN, J., NICHOLS, J., and STRASSBURGER, J.*

MEMORANDUM BY NICHOLS, J.: FILED DECEMBER 19, 2018

Appellant Andrew Hector Morales appeals from the judgment of

sentence following a jury trial and convictions for multiple counts of robbery,1

simple assault,2 retail theft,3 and receiving stolen property.4 Appellant

challenges the trial court’s denial of his pretrial motion to proceed pro se and

the sufficiency of evidence. We affirm the judgment of sentence, deny

Appellant’s pro se motion to proceed pro se, and deny Appellant’s pro se

combined motion for new counsel and post-sentence relief.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 3701(a)(1)(iv).
2 18 Pa.C.S. § 2701(a)(1).
3 18 Pa.C.S. § 3929(a)(1).
4 18 Pa.C.S. § 3925(a).
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Because we write for the parties, we adopt the facts and procedural

history set forth in the trial court’s opinion. See generally Trial Ct. Op. at 1-

2. In pertinent part, on December 11, 2017, Appellant’s trial counsel filed a

motion to withdraw with the trial court. Mot. to Withdraw and Appoint

Counsel, 12/11/17. Trial counsel’s motion noted that Appellant had filed a

letter with the court raising claims of trial counsel’s ineffective assistance. Id.

The motion also claimed that Appellant “stated to [d]efense counsel his desire

. . . in the alternative to proceed at trial pro se.” Id.

Consistent with Pa.R.Crim.P. 121, the trial court held a Grazier5 hearing

and conducted its colloquy of Appellant in order to determine if Appellant

knowingly, voluntarily, and intelligently waived his right to counsel. See

Pa.R.Crim.P. 121. After the trial court informed Appellant of the charges and

possible sentences, the following exchange occurred:

The court: . . . do you understand that?

[Appellant]: I want to go to trial. I got four photos right here –

The court: [Appellant], hold on. I want to make sure—I am trying
to make sure if you want to go trial representing yourself that you
are making a knowing, intelligent, and voluntary decision to do
this, okay that’s why I’m asking you these questions. So do you
understand the maximum punishments you face on each of the
charges?

[Appellant]: I understand I have a right to speak for myself. I do
understand that right and—

____________________________________________

5 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

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The court: [Appellant], you said—

[Appellant]: I’ve been here in excess of eight months. I’ve been
refused a bail reduction by you five times with no legal reason as
to why. I’ve been refused five different times—six, seven, eight,
nine. I’ve been in my community over 20 years in Pennsylvania
so I’m clearly not going nowhere. I got all my—most of my child
support paid up. I like paid the probation. I paid them all the
money to get off probation. I’ve been doing good in here. I
haven’t got one write-up in over eight months in here. I’ve been
going to the law library. I’ve been wrongly accused here. It’s no
evidence to hold me. Like, it’s crazy but all in the end everybody’s
going to get a lawsuit coming to them for all this stuff that’s going
on.

The court: [Appellant], I will try one more time to get [sic] explain
to you. If you wish to represent yourself—

[Appellant]: Yes, I do. I’m writing to the Supreme Court and
everybody. Like, everybody’s going to find out what’s going on in
your courtroom there.

The court: That’s fine. That’s not what we’re here to talk about.
We are here to talk about whether your decision is knowing,
intelligent, and voluntary. First question I have now is within the
last 24 hours have you had any alcohol or drugs including
prescription meds?

* * *

The court: [Appellant,] the fact that you may be taking a
prescription drug that may have a bearing on whether you are
aware of what we are doing today, the legal issues involved, and
your ability to make a knowing, intelligent, and voluntary decision.

[Appellant]: Zoloft and I took Remeron last night. Zoloft this
morning and Remeron last night.

The court: What is the Remeron for? I’m not familiar with that
medication?

[Appellant]: I’m not sure either. You can look it up. I know how
the court system works. I know how the games go. I know all
about this court stuff.

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The court: Do you mind if I ask you some questions about that?

[Appellant]: This hasn’t got nothing to do with trial or the case.
I’m not going to answer the question. I plead the Fifth on the
question. I’ve been denied bail by you five times. I’ve been good.
I’ve been, like, loyal. I’ve been doing everything I could. You got
no evidence on this case. I’m going to trial and then lawsuits are
coming to all of you’s, that’s basically it. I’ll sit here. I’ll keep on
doing this little bit of time, okay. I’ve been nice too long for
nothing, for nothing, to get bamboozled into this. Clearly you got
no evidence on me. Clearly it’s a lawsuit on a whole bunch of
you’s.

The court: [Appellant], do you understand the nature of the
charges . . . that you are charged with? Are you aware of the
nature of the elements of each of those charges?

[Appellant]: I understand that for false imprisonment it’s going to
be a lawsuit on you’s for false imprisonment knowing that you
don’t got a real case. It’s going to be a big lawsuit.

N.T. Hr’g, 3/5/18, at 5-8 (some all-capitalization omitted). The trial court

then continued its colloquy, but Appellant responded with similar non-

responsive and accusatory answers.

The hearing ended as follows:

The court: . . . So all I want to know is do you understand you’re
going to be held to the same level of knowledge of the law[,] the
rules of evidence and court procedure as a lawyer like [the district
attorney,] do you understand that?

[Appellant]: I understand that I’m going to do my part to make
the jury understand that this is a big charade you’re pulling on
me. You’re taking me away from my family, you’re taking me
away from my kids, you got no case. You got no—like, these
photos I don’t know what ya’ll do in here, like, what’s going on.
Your Honor, I went to you five times and you refused my bail five
different times. Like, it’s crazy.

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The court: [Appellant], do you understand that your [appointed
trial counsel], is more familiar than you with law, the courtroom,
the rules of evidence.

[Appellant]: I can’t tell, Your Honor. I put more paperwork in than
both of my ex-lawyers.[6]

The court: Okay.

[Appellant]: Look at all the bail reductions denied for no legal
reason.

Id. at 8-10 (some all-capitalization omitted).

The court then orally issued the below order, during which Appellant

interjected as follows:

[Appellant]: The Supreme court is going to find out about this.

The court: We will enter the following order: And now, December
13, 2017, after hearing on counsel’s motion to withdraw as
counsel and the letter of [Appellant] to the clerk of courts in which
he stated that he no longer wished to be represented by
[Appellant’s counsel]—

[Appellant]: Look at this, I sent this to the court, look how it came
to me crinkled. Somebody crinkled it up and put it in the court.
It’s stamped crinkled up from your courtroom.[7]

The court: --The court finds based on [Appellant’s] answers to the
questions that [Appellant’s] request to represent himself is not
knowing, intelligent, or voluntary. Therefore—

[Appellant]: Oh, yes it is.

The court: --The court denies [Appellant’s] request to proceed pro
se. . . .

____________________________________________

6 Prior counsel had withdrawn.
7 It is unclear what Appellant is referring to.

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Id. at 10-11 (some all-capitalization omitted).

Subsequently, on December 15, 2017, Appellant’s counsel filed a motion

in limine requesting, among other items, to preclude the Commonwealth from

presenting any documentation or witnesses not previously provided or

identified during discovery. Appellant’s Mot. in Limine, 12/15/17; see

generally Pa.R.Crim.P. 573. The court granted the order the same day.

Order, 12/15/17.

Appellant’s jury trial also began on December 15, 2017. At trial, three

eyewitnesses/victims testified that they recognized Appellant while he was in

or immediately outside the store. See, e.g., N.T. Trial, 12/15/17, at 28, 59,

74. They also made unequivocal in-court identifications of Appellant. See,

e.g., id. at 27, 55, 74. Because they saw Appellant’s license plate, they

relayed that information to the police officer who arrived ten to fifteen minutes

later. Id. at 82. The officer, based on that information, retrieved Appellant’s

driver’s license photo, which all three witnesses agreed was Appellant. Id. at

98. At no point during trial did Appellant’s counsel object or otherwise bring

to the trial court’s attention any purported discovery violation by the

Commonwealth. The jury found Appellant guilty of the above crimes.

On March 5, 2018, the court sentenced Appellant to an aggregate

sentence of forty-two months to thirteen years’ incarceration. At the

sentencing hearing, Appellant’s counsel made a one-sentence oral motion for

acquittal, which the court denied. N.T. Trial, 12/15/17, at 162 (“Your Honor,

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we would make a motion for acquittal notwithstanding the verdict.”).

Appellant’s counsel did not file a post-sentence motion, but timely appealed

and timely filed a court-ordered Pa.R.A.P. 1925(b) statement.

Before Appellant’s counsel filed an appellate brief with this Court,

Appellant sent a two-page handwritten appellate brief to this Court, which we

forwarded to Appellant’s counsel. See Commonwealth v. Jette, 23 A.3d

1032, 1044 (Pa. 2011) (holding, “the proper response to any pro se pleading

is to refer the pleading to counsel, and to take no further action on the pro se

pleading unless counsel forwards a motion”).8 Appellant’s counsel filed his

appellate brief in August of 2018.

On October 10, 2018, this Court docketed Appellant’s pro se petition to

proceed pro se. On October 16, 2018, this Court docketed Appellant’s pro se

combined motions for new counsel and post-sentence motion. We deny

Appellant’s petition and motion. See id. (holding, “once the brief has been

filed, any right to insist upon self-representation has expired” (citation

omitted)).

Appellant raises the following issues:

1. Whether the trial court erred in denying [Appellant’s] pretrial
motion to withdraw and Appellant’s request to proceed pro se?

____________________________________________

8 The Jette Court approvingly quoted Commonwealth v. Reid, 642 A.2d
453, 462 (Pa. 1994), as follows: defendants “in criminal cases possess no
constitutional right to hybrid representation, and thus, any pro se briefs that
they may file while represented by counsel will not be considered.” Jette, 23
A.3d at 1036.

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2. Whether the trial court erred in admitting impermissibly
suggestive witness identification of Appellant and denying [his]
motion to acquit on this basis?

Appellant’s Brief at 6 (reordered to facilitate disposition).

In support of his first issue, Appellant contends that at the hearing on

counsel’s motion to withdraw, Appellant testified that counsel was ineffective

and there was a conflict. Id. at 11-12. He adds that at the hearing, he

testified he would like to proceed pro se and “was making a knowing,

voluntary, and intelligent decision.” Id. at 12. Appellant acknowledges he

did not respond to the complete colloquy, but insists he “was clear in his

testimony he wanted to proceed pro se.” Id.

In considering whether a defendant’s request to proceed pro se is valid,

the standard of review is de novo. Cf. Commonwealth v. Davido, 868 A.2d

431, 439 (Pa. 2005) (reviewing the totality of the circumstances de novo to

determine whether a defendant’s request to proceed pro se was

unequivocal).9 We set forth the following as guidance:

Before a defendant is permitted to proceed pro se, however, the
defendant must first demonstrate that he knowingly, voluntarily
and intelligently waives his constitutional right to the assistance
of counsel. If the trial court finds after a probing colloquy that the
defendant’s putative waiver was not knowingly, voluntarily or
intelligently given, it may deny the defendant’s right to proceed
pro se. The “probing colloquy” standard requires Pennsylvania
trial courts to make a searching and formal inquiry into the

____________________________________________

9 In determining whether a defendant’s request to proceed pro se is timely,
the standard of review is abuse of discretion. Davido, 868 A.2d at 438.

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questions of (1) whether the defendant is aware of his right to
counsel or not and (2) whether the defendant is aware of the
consequences of waiving that right or not. Specifically, the court
must inquire whether or not: (1) the defendant understands that
he has the right to be represented by counsel, and the right to
have free counsel appointed if he is indigent; (2) the defendant
understands the nature of the charges against him and the
elements of each of those charges; (3) the defendant is aware of
the permissible range of sentences and/or fines for the offenses
charged; (4) the defendant understands that if he waives the right
to counsel he will still be bound by all the normal rules of
procedure and that counsel would be familiar with these rules; (5)
defendant understands that there are possible defenses to these
charges which counsel might be aware of, and if these defenses
are not raised at trial, they may be lost permanently; and (6) the
defendant understands that, in addition to defenses, the
defendant has many rights that, if not timely asserted, may be
lost permanently; and that if errors occur and are not timely
objected to, or otherwise timely raised by the defendant, the
objection to these errors may be lost permanently.

Commonwealth v. Starr, 664 A.2d 1326, 1335 (Pa. 1995) (citations

omitted); see also Indiana v. Edwards, 554 U.S. 164, 175-76 (2008)

(explaining that a defendant competent to stand trial may not necessarily be

competent to waive the right to counsel).

Turning to this case, the instant trial court conducted a probing colloquy

into whether Appellant could knowingly, voluntarily, and intelligently waive his

right to counsel and proceed pro se. See generally N.T. Hr’g, 3/5/18, at 5-

11. Appellant’s responses, however, reflected an apparent inability to

understand or an unwillingness to respond to the court’s questions. See

Starr, 664 A.2d at 1335. For example, Appellant did not answer the court’s

inquiry into whether he understood the charges against him, N.T. Hr’g,

3/5/18, at 8, and would be held to the same level of legal knowledge as a

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lawyer. Id. at 9-10. We acknowledge, however, that Appellant answered,

“Oh, yes it is” in response to the court’s finding that Appellant was not

answering the court’s questions knowingly, intelligently, or voluntarily. Id. at

11. But having reviewed the totality of the circumstances, we agree with the

trial court that Appellant’s non sequiturs and non-responsive answers did not

evidence an awareness of the consequences of waiving his right to counsel.

See Starr, 664 A.2d at 1335.

Appellant next argues the court abused its discretion by admitting

impermissibly suggestive eyewitness identification. Appellant’s Brief at 13.

Appellant opines that the police here erred by showing Appellant’s driver’s

license photo to the eyewitnesses/victims and the Commonwealth erred by

introducing such evidence in violation of the trial court’s order. Id. at 14-16.

Appellant also identifies what he perceives to be conflicting testimony

undermining the reliability of the identification. Id.10 Appellant concludes by

asserting that trial counsel preserved this issue because the Commonwealth

violated the trial court’s December 15, 2017 order barring the Commonwealth

from introducing any evidence or witness not previously disclosed during

____________________________________________

10 Appellant does not explicitly frame his argument as a challenge to the
sufficiency or weight of the evidence. See generally Commonwealth v.
Orr, 38 A.3d 868, 874 (Pa. Super. 2011) (stating, “Out-of-court identifications
are relevant to our review of sufficiency of the evidence claims [and g]iven
additional evidentiary circumstances, ‘any indefiniteness and uncertainty in
the identification testimony goes to its weight.’” (citations omitted)).

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discovery. Id. at 16. Appellant adds that trial counsel also preserved this

issue with his one-sentence oral motion for acquittal after the jury’s verdict.

Appellant’s Brief at 16; N.T. Trial, 12/15/17, at 162 (“Your Honor, we would

make a motion for acquittal notwithstanding the verdict.”).

Before addressing the substantive merits of Appellant’s argument, we

must resolve whether he properly preserved the issue for appellate review.

See generally Pa.R.A.P. 302; Commonwealth v. Freeman, 827 A.2d 385,

396 (Pa. 2003) (noting, “Requiring a timely specific objection to be taken in

the trial court will ensure that the trial judge has a chance to correct alleged

trial errors.” (citation omitted)). Here, at no point during trial did Appellant

alert the trial court of any purported discovery violation. Thus, although

Appellant obtained a successful ruling in his favor on his motion in limine, he

failed to alert the trial court or otherwise object when the Commonwealth

purportedly violated the order. Thus, Appellant has waived the issue for

review. See Pa.R.A.P. 302; Freeman, 827 A.2d at 396.11

But even if Appellant had complied with Rule 302, he has waived it on

appeal by failing to develop his argument properly on appeal. See Pa.R.A.P.

2119 (stating argument must include discussion and citation of pertinent

____________________________________________

11 We acknowledge that the Commonwealth argues that Appellant withdrew
his motion to suppress and therefore waived the issue. Commonwealth’s Brief
at 2. Respectfully, contrary to the Commonwealth’s representation, the record
reflects that Appellant did not file a motion to suppress. Appellant, however,
is attempting to shoehorn an evidentiary issue into a discovery violation.

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authorities); Commonwealth v. Plante, 914 A.2d 916, 924 (Pa. Super.

2006) (“We have repeatedly held that failure to develop an argument with

citation to, and analysis of, relevant authority waives the issue on review.”

(citation omitted)); see Jackson v. Vaughn, 777 A.2d 436, 439 n.4 (Pa.

2001) (waiving, pursuant to Pa.R.A.P. 2119, argument limited to bald

allegation); see generally Diamond v. Chulay, 811 F. Supp. 1321, 1335

(N.D. Ill. 1993). Here, Appellant simply has not identified which witnesses

and documents were purportedly not identified during discovery. It is not the

responsibility of this Court to act as counsel and develop arguments on

Appellant’s behalf. See Commonwealth v. Kane, 10 A.3d 327, 331 (Pa.

Super. 2010). Accordingly, we find Appellant has also waived his issue for

failure to develop a detailed argument. See generally Pa.R.A.P. 2119;

Jackson, 777 A.2d at 439 n.4.12 For these reasons, we affirm the judgment

of sentence.

Appellant’s pro se petition and motion denied. Judgment of sentence

affirmed.

____________________________________________

12 Even assuming that Appellant had preserved his issue for appellate review,
we would conclude he was not entitled to relief. Under the totality of the
circumstances, the eyewitnesses/victims identified Appellant from the driver’s
license photo the police retrieved just ten to fifteen minutes after the incident.
See generally Commonwealth v. Milburn, 191 A.3d 891, 899-900 (Pa.
Super. 2018). After careful review of the record, we do not perceive any
impermissible suggestiveness in this process. See id.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/19/2018

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