J-S67032-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRISTOPHER PATRICK MCGOWAN :
:
Appellant : No. 896 MDA 2019
Appeal from the Judgment of Sentence Entered November 7, 2018
In the Court of Common Pleas of Franklin County Criminal Division at
No(s): CP-28-CR-0001505-2016
BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JANUARY 31, 2020
Appellant Christopher McGowan files this pro se appeal from the
judgment of sentence entered by the Court of Common Pleas of Franklin
County after Appellant was convicted of conspiracy to commit theft by
deception. After careful review, we affirm.
This case has a convoluted procedural history which is relevant to review
in detail to determine whether this appeal was timely filed. On September 28,
2018, a jury convicted Appellant of conspiracy to commit theft by deception.
On November 7, 2018, the trial court sentenced Appellant in absentia to 30 to
60 months’ imprisonment and issued a bench warrant for Appellant’s arrest.
Appellant was apprehended and taken into custody on November 10, 2018.
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* Former Justice specially assigned to the Superior Court.
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In a letter dated November 11, 2018, Appellant, while in custody, sent
the Pennsylvania Supreme Court a “Motion to Appeal Judgement [sic] and
Conviction.” As Appellant was represented by counsel, the Supreme Court
sent the pro se filing to Appellant’s counsel of record, Anthony E. Miley, Esq.,
pursuant to Pa.R.A.P 3304 (“Hybrid Representation”) and Commonwealth v.
Jette, 23 A.3d 1032, 1042 (Pa. 2011).
On November 30, 2018, Attorney Miley sought to withdraw his
representation. Although Appellant was previously apprehended on
November 10, 2018, the return of warrant was not filed in the trial court until
December 3, 2019. On that date, the trial court issued an order committing
Appellant to the Department of Corrections to begin serving his sentence in
this case and giving Appellant credit for time served from the date of his
apprehension. On the same date, the trial court allowed Attorney Miley to
withdraw and appointed the Public Defenders’ Office.
On December 6, 2018, the Public Defenders’ Office filed a petition for
the appointment of conflict counsel as the trial court had previously rescinded
the appointment of the Public Defender in this case on June 16, 2017, citing
irreconcilable differences. The same day, the trial court issued an order
appointing Eric Westbrod, Esq. as conflict counsel. Eventually, Appellant filed
a request to proceed pro se and the trial court scheduled a Grazier hearing.
Before the Grazier hearing was held, Appellant filed in this Court a
“Motion to Appeal Judgment, Conviction, and Correctly Record Jury Verdict.”
Although this Court received this document on December 10, 2018, Appellant
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mailed this pro se filing from prison on December 3, 2018, which was
submitted within the thirty-day appeal period after Appellant’s sentencing.
As such, this Court forwarded the motion to the trial court as a notice of
appeal pursuant to Pa.R.A.P. 905, which provides:
If a notice of appeal is mistakenly filed in an appellate court, or is
otherwise filed in an incorrect office within the unified judicial
system, the clerk shall immediately stamp it with the date of
receipt and transmit it to the clerk of the court which entered the
order appealed from, and upon payment of an additional filing fee
the notice of appeal shall be deemed filed in the trial court on the
date originally filed.
Pa.R.A.P. 905(a)(4). However, the trial court did not docket this pro se filing
as a notice of appeal.
On December 6, 2018, Appellant subsequently mailed the trial court a
pro se “Motion to Correct Illegal Sentence.” On December 6, 2018, this Court
received Appellant’s pro se “Motion to Appeal Judgment, Conviction, and
Correctly Record Jury Verdict.” This Court again forwarded this pro se
document to the trial court as a notice of appeal pursuant to Pa.R.A.P. 905.
The trial court did not docket this filing as a notice of appeal.
Appellant continued to file multiple pro se documents in the trial court.
The trial court held an initial Grazier hearing after which it entered an order
on January 17, 2019, indicating that Appellant had agreed to proceed pro se.
Nevertheless, as Appellant continued to file documents raising numerous
claims on his own and again asking to represent himself, a second Grazier
hearing was scheduled.
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On February 11, 2019, the trial court amended its sentencing order to
correct a clerical error in which it had incorrectly listed the charge of
Conspiracy to Commit Theft by Deception as Count 1, when it should have
been listed as Count 2.1
On March 14, 2019, the trial court held a second Grazier hearing at
which it granted counsel’s petition to withdraw and allowed Appellant to
proceed pro se. At this hearing, the trial court decided to construe Appellant’s
November 11, 2018 “Motion to Appeal Judgement [sic] and Conviction” that
was filed in the Supreme Court as a timely post-sentence motion. In addition,
the trial court deemed all of Appellant’s subsequent pro se filings as
supplements to that motion. On March 19, 2019, the trial court entered an
order purportedly denying Appellant’s post-sentence motion.
On March 22, 2019, the trial court received Appellant’s pro se filing
which he titled “Formal Grievance and Complaint for Civil Rights Violations.”2
On March 27, 2019, the trial court filed an order indicating that it would take
no action on this pro se submission as it was uncertain how to interpret the
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1 Section 5505 of the Judicial Code, which relates to the modification of orders,
provides that “a court ... may modify ... any order within 30 days after its
entry ... if no appeal from such order has been taken.” 42 Pa.C.S.A. § 5505.
Generally, after an appeal is taken, the trial court “may no longer proceed
further in the matter.” Pa.R.A.P. 1701(a). Nevertheless, our courts have
recognized that the limits of jurisdiction set forth in Section 5505 do not
impinge on the trial court’s inherent power to correct any patent or obvious
mistakes in its orders. Commonwealth v. Holmes, 593 Pa. 601, 615, 933
A.2d 57, 65 (2007).
2 This Court cannot ascertain the mailing date of this motion as there was no
accompanying postmarked envelope in the record.
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filing. The trial court directed Appellant to comply with the Pennsylvania Rules
of Appellate Procedure if Appellant intended to file an appeal from its March
19, 2019 order.
On April 30, 2019, the trial court filed an order granting counsel’s
petition to withdraw and allowing Appellant to proceed pro se; the trial court
noted that the docket did not reflect that it had permitted counsel to withdraw
at the March 14, 2019 Grazier hearing.
On May 22, 2019, Appellant filed the instant notice of appeal.3 Appellant
complied with the trial court’s direction to file a Concise Statement of Errors
Complained of on Appeal pursuant to Pa.R.A.P. 1925(b). Thereafter, Appellant
filed an application in this Court seeking habeas corpus relief on July 18, 2019.
This document, which Appellant characterized as a habeas petition, simply
reiterates all the claims Appellant raises in his 1925(b) statement.
Appellant lists the following issues, verbatim, in his 1925(b) statement:
1) US Constitution rights Violation, Pennsylvania Constitutional
rights Violation and Court rules Violations.
2) 4th Amendment of the Constitution and Pennsylvania Court
rule 543 Violation – Prosecution without Probable Cause and
Failure to Hold a Prelim[i]nary Hearing for New charge prior to
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3 Appellant also filed a pro se notice of appeal in the Supreme Court,
attempting to appeal from the same judgment of sentence as the instant
appeal. The Supreme Court transferred the notice to this Court pursuant to
Pa.R.A.P. 751(b); this matter was given an appellate docket number of 987
MDA 2019. The trial court was also directed to docket the notice of appeal,
which was returned to this court and docketed at 1389 MDA 2019. However,
both of these appeals were subsequently dismissed as duplicative of the
instant appeal.
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Trial. This is a Violation of my right to Due process of law (5th
Amendment).
3) 5th Amendment of the US Constitution and Pennsylvania
Constitution 42 Const. § 8931 Constitutional Rights Violation –
Prosecution of a felony Charge by information only, failure to
obtain a Required Grand Jury Indictment. This is a Violation Of
Due Process of Law.
4) 6th Amendment of the US Constitution and Pennsylvania
Constitution Artic[le] 1 Section 9 Violation – Inadequate notice
of amendment of information to prepare a defense for a New
Charge of Conspiracy
5) 6th Amendment of the US Constitution and Pennsylvania Court
rule 600 Violation – Right to Speedy Trial within 365 days.
6) Lack of Presence on said Date of alleged Crime, On or about
may 1st 2015.
7) Violation of 5th Amendment due process of Law.
8) Illegal Amendment of Conspiracy Charge.
9) On September 11, 2018 in the 39th district of Franklin County
trial was held for Count one “Theft by Deception” and Count
Two “Conspiracy.” The Jury Voted Me “Not Guilty” on Count
One and Guilty on Count Two “Conspiracy[.]” The Illegally
Added charge 17 hours before trial and without holding a
required Pre[limin]ary for a new charge with new elements of
a crime.
10) My Attorney Anthony Miley Objected to the Amendment and
asked for a continuance but the Judge Angela Krom Denied
Continuance and allowed the illegally amended charge. (My
attorney did state he was not prepared for a Conspiracy
Defense).
11) 6th Amendment of the US Constitution Violation and
Pennsylvania Constitution Art[icle] 1 Section 9 Violation.
States: I have a right to proper notice of any accusation, the
Commonwealth violated this right by waiting 2½ years to
charge me with a[n] additional charge and only gave a 17 hour
notice of amendment.
12) 5th Amendment of the US Constitution and Pennsylvania
Constitution and Pennsylva[n]ia Court rule 564 violation.
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States: The Court may allow an Information to be amended
when there is a defect in form, the description of offense, the
description of any person or property, or the date charged,
provided the information as amended does not charge an
additional or different offense. The Commonwealth violated
Pennsylvania Court rule 564 by allowing this amendment.
13) Lack Of Presence on said date of Crime – Petitioner was not
present date and time alleged crime took place[.] On or about
May 1st 2015 I was not in Franklin County or Pennsylvania at
all and provided an Alibi of my whereabouts that day[.] I was
working as a Truck drive in Wyoming and provided Federal log
books of service and rec[e]ipts into Evidence.
1925(b) Statement, 6/17/19, at 1-2.
Before we reach the merits of Appellant’s claims, we must determine
whether this appeal was timely filed. A notice of appeal must be filed within
thirty days of the entry of the order being appealed. Pa.R.A.P. 903(a). If the
defendant files a timely post-sentence motion, the notice of appeal shall be
filed within thirty days of the entry of the order deciding the motion. See
Pa.R.Crim.P. 720(A)(2)(a). This Court may not extend the time for filing a
notice of appeal. Pa.R.A.P. 105(b).
As noted above, Appellant filed numerous motions while represented by
counsel. As hybrid representation is not permitted in the Commonwealth, our
courts “will not accept a pro se motion while an appellant is represented by
counsel; indeed, pro se motions have no legal effect and, therefore, are legal
nullities.” Commonwealth v. Williams, 151 A.3d 621, 623 (Pa.Super. 2016)
(citing Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa. Super. 2007)
(finding pro se post-sentence motion filed while the appellant was represented
by counsel was a legal nullity with no legal effect)).
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Generally, when a counseled defendant files a pro se document, courts
do not act on the filing, but instead note it on the docket and forward it to
counsel pursuant to Pa.R.Crim.P. 576(A)(4). Further, “a pro se document has
no tolling effect.” Williams, 151 A.3d at 623 (quoting Pa.R.Crim.P. 576 cmt.
which states “[t]he requirement that the clerk time stamp and make docket
entries of the filings in these cases only serves to provide a record of the filing,
and does not trigger any deadline nor require any response”).
However, when a counseled defendant files a pro se notice of appeal,
the appeal is not a legal nullity and has legal effect. Commonwealth v.
Cooper, 611 Pa. 437, 27 A.3d 994, 1007 (2011). While a defendant does not
have a right to hybrid representation, “there is right of appeal pursuant to
Article 5, § 9 of the Pennsylvania Constitution.” Williams, 151 A.3d at 624
(citing Commonwealth v. Ellis, 534 Pa. 176, 626 A.2d 1137 (1993)).
“Because a notice of appeal protects a constitutional right, it is distinguishable
from other filings that require counsel to provide legal knowledge and strategy
in creating a motion, petition, or brief.” Williams, 151 A.3d at 624.
In this case, the trial court erred in deeming Appellant’s numerous pro
se filings, submitted while Appellant was represented by counsel, to be timely-
filed post-sentence motions that had legal effect and tolled the appeal period.
Appellant was not entitled to hybrid representation and was not permitted to
file post-sentence motions while represented by counsel.
However, the trial court also erred in failing to recognize that Appellant
was entitled to file a notice of appeal while represented by counsel. Therefore,
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the trial court should have deemed Appellant’s December 3, 2018 “Motion to
Appeal Judgement [sic] Conviction, and Correctly Record Jury Verdict” 4 and
his December 6, 2018 “Motion to Appeal Judgment, Conviction, and Correctly
Record Jury Verdict” as two timely filed notices of appeal, as they were both
filed in this Court within the thirty-day appeal period after Appellant’s
sentencing on November 7, 2018.5
When this Court forwarded both of these documents to the trial court as
notices of appeal pursuant to Pa.R.A.P. 905, the trial court was required to
deem the notices of appeal as filed in the trial court on the dates they were
originally filed in this Court. Pa.R.A.P. 905(a)(4). The trial court’s failure to
docket these filings as notices of appeal constitutes a breakdown in the
operation of the courts. See Williams, 151 A.3d at 624 (finding breakdown
in court processes occurred when pro se appeal filed by counseled defendant
was not properly docketed and sent to this Court). Accordingly, we deem this
appeal to be timely filed.
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4 Appellant sent this filing to this Court from prison on December 3, 2018. The
“prisoner mailbox rule” states that “in the interest of fairness, a pro se
prisoner's appeal shall be deemed to be filed on the date that he delivers the
appeal to prison authorities and/or places his notice of appeal in the
institutional mailbox.” Commonwealth v. Chambers, 35 A.3d 34, 39
(Pa.Super. 2011) (quoting Smith v. Board of Probation and Parole, 546
Pa. 115, 122, 683 A.2d 278, 281 (1996)).
5 While Appellant filed a “Motion to Appeal Judgement [sic] and Conviction”
in the Pennsylvania Supreme Court on November 11, 2018, the Supreme
Court likely did not ask the trial court to treat this pro se filing as a notice of
appeal, but forwarded it to counsel as it was filed within three days of
Appellant’s November 7, 2018 sentencing, which was within the ten-day time
period for filing a post-sentence motion.
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Nevertheless, we must dismiss this appeal as Appellant’s brief does not
comply with our Rules of Appellate Procedure. Appellant’s “brief” consists of
two paragraphs in which he indicates that he has raised several issues in his
Concise Statement and contends the Commonwealth has failed to dispute his
arguments.
As such, Appellant’s pro se brief contains substantial defects. For
example, Appellant’s brief fails to comply with nearly every requirement in
Pa.R.A.P. 2111(a)(1)-(12) as it does not contain any factual background,
procedural history, statement of the questions involved, citation to authority,
legal argument or analysis. Our rules of appellate procedure allow this Court
to quash or dismiss an appeal if the appellate brief contains substantial
defects. Pa.R.A.P. 2101.
While we acknowledge Appellant is proceeding pro se and we construe
his brief liberally, he is not entitled to special deference as a pro se litigant as
this Court has held that “[a]ny layperson choosing to represent [himself] in a
legal proceeding must, to some reasonable extent, assume the risk that [his]
lack of expertise and legal training will prove [his] undoing.” Branch Banking
& Tr. v. Gesiorski, 904 A.2d 939, 942 (Pa.Super. 2006). Moreover,
[w]hen briefing the various issues that have been
preserved, it is an appellant's duty to present arguments that are
sufficiently developed for our review. The brief must support the
claims with pertinent discussion, with references to the record and
with citations to legal authorities. We will not act as counsel and
will not develop arguments on behalf of an appellant. Moreover,
when defects in a brief impede our ability to conduct meaningful
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appellate review, we may dismiss the appeal entirely or find
certain issues to be waived.
In re R.D., 44 A.3d 657, 674 (Pa.Super. 2012) (citations omitted).
As noted above, Appellant’s brief does not state the issues he wishes to
raise on appeal and does not contain any legal discussion. As a result,
Appellant’s failure to properly raise and develop an argument precludes any
meaningful judicial review of this appeal. Thus, we find all of Appellant’s
issues to be waived and dismiss this appeal.
Moreover, we decline to review Appellant’s application for habeas corpus
relief filed directly in this Court after the instant appeal was docketed. We
observe the claims in Appellant’s application do not sound in habeas corpus
but merely reiterate the arguments which Appellant attempted to raise on
appeal in his 1925(b) Statement that had been addressed and dismissed by
the trial court. This Court has held that:
[t]raditionally, a writ of habeas corpus is a civil remedy that tests
the legality of the detention. The writ can never be used as a
substitute for an appeal to test the correctness of the
administration of the law in connection with a commitment, but
where such an order is beyond the power or jurisdiction of the
tribunal entering it, the one thereby detained may be released on
habeas corpus.
Chadwick v. Caulfield, 834 A.2d 562, 566 (Pa.Super. 2003) (citations
omitted).
Even assuming arguendo that Appellant’s claims in his application could
be construed to properly sound in habeas relief, we do not have jurisdiction
over such a petition as “matters sounding in habeas corpus lie in the
jurisdiction and venue of the court of record from which the order of detention
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came.” Brown v. Pennsylvania Dep't of Corr., 622 Pa. 742, 744, 81 A.3d
814, 815 (2013) (citing 42 Pa.C.S.A. § 6502).
Judgment of sentence affirmed. Application for Writ of Habeas Corpus
dismissed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/31/2020
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