J-A17006-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MICHAEL HARRISON RUBIN :
:
Appellant : No. 189 EDA 2017
Appeal from the Judgment of Sentence March 3, 2017
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0005019-2016
BEFORE: GANTMAN, P.J., RANSOM, J., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 09, 2017
Appellant, Michael Harrison Rubin, appeals pro se from the judgment
of sentence entered in the Bucks County Court of Common Pleas, following
his jury trial conviction for possession of a small amount of marijuana for
personal use.1 For the following reasons, we remand with instructions,
strike the case from the A17-17 argument list, and continue the matter to a
later argument panel to be decided.
The relevant facts and procedural history of this case are as follows.
As stated in the affidavit of probable cause, on May 19, 2016, at
approximately 8:05 p.m., Officer Michael Rodgers was on duty and observed
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1
35 P.S. § 780-113(a)(31)(i).
_____________________________
*Retired Senior Judge assigned to the Superior Court.
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a red Nissan Altima parked on the grass near a field. The vehicle was
unoccupied and registered to Appellant. Officer Rodgers approached the
vehicle, looked inside the passenger side window, and observed what
appeared to be a marijuana stem in the passenger side interior door grab.
Officer Rodgers observed Appellant walking across the field toward him.
Officer Rodgers asked Appellant what he was doing and where he had been.
According to Officer Rodgers, Appellant appeared nervous and smelled of
burnt marijuana. Appellant said he was driving down the road and stopped
to take pictures of the sunset and countryside. Officer Rodgers said he
detected an odor of marijuana on Appellant’s person and observed what the
officer believed was a marijuana stem in Appellant’s vehicle. Officer Rodgers
stated his intent to search the vehicle based on his observations. Officer
Rodgers asked Appellant if there was any marijuana inside the vehicle.
Appellant replied that if there was any marijuana, it would only be a small
amount. Officer Rodgers arrested Appellant for possession of marijuana and
conducted a search incident to arrest, which revealed several other small
amounts of marijuana.
The Commonwealth charged Appellant with possession of a small
amount of marijuana and possession of drug paraphernalia. On September
9, 2016, Appellant filed a pro se pre-trial motion for judgment of acquittal,
claiming, inter alia, violation of Pa.R.Crim.P. 519(B)(2) (requiring prompt
filing of criminal complaint). The court held a hearing on December 5, 2016,
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after which the court denied relief. The court also denied relief on
Appellant’s suppression motion.2 Appellant proceeded to a jury trial the next
day. At the conclusion of trial, the jury convicted Appellant of possession of
a small amount of marijuana for personal use;3 the jury found Appellant not
guilty of the remaining offense. The court deferred sentencing pending
completion of another matter involving Appellant. Appellant filed a
premature, pro se notice of appeal on January 4, 2017. The court sentenced
Appellant on March 3, 2017, to pay costs of prosecution.4 The court did not
order Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b), and Appellant filed none.
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2
The certified record and docket entries show no written pre-trial
suppression motion was filed. The record suggests Appellant made an oral
suppression motion at the December 5, 2016 hearing.
3
Appellant’s offense was graded as a misdemeanor. See 35 P.S. § 780-
113(g) (explaining any person who violates clause (31) of subsection (a) is
guilty of misdemeanor and upon conviction, shall be sentenced to
imprisonment not exceeding thirty days, or to pay fine not exceeding five
hundred dollars, or both).
4
As a general rule, this Court has jurisdiction only over final orders.
Commonwealth v. Rojas, 874 A.2d 638 (Pa.Super. 2005). “A direct
appeal in a criminal proceeding lies from the judgment of sentence.”
Commonwealth v. Patterson, 940 A.2d 493, 497 (Pa.Super. 2007),
appeal denied, 599 Pa. 691, 960 A.2d 838 (2008). “A notice of appeal filed
after the announcement of a determination but before the entry of an
appealable order shall be treated as filed after such entry and on the day
thereof.” Pa.R.A.P. 905(a)(5). Here, Appellant filed a pro se notice of
appeal prior to sentencing and was sentenced on March 3, 2017, while his
appeal was pending. Thus, we will relate Appellant’s premature notice of
appeal forward to March 3, 2017, to resolve any jurisdictional impediments.
See id.
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As a preliminary matter, Pennsylvania Rule of Criminal Procedure 122
provides:
Rule 122. Appointment of Counsel
(A) Counsel shall be appointed:
* * *
(2) in all court cases, prior to the preliminary hearing
to all defendants who are without financial resources or
who are otherwise unable to employ counsel;
(3) in all cases, by the court, on its own motion, when
the interests of justice require it.
(B) When counsel is appointed,
* * *
(2) the appointment shall be effective until final
judgment, including any proceedings upon direct appeal.
Pa.R.Crim.P. 122(A), (B). Under paragraph (A)(3), the court has authority
to appoint counsel regardless of eligibility, when the interests of justice
require it. Pa.R.Crim.P. 122, Comment; Commonwealth v. Cannon, 954
A.2d 1222 (Pa.Super. 2008), appeal denied, 600 Pa. 743, 964 A.2d 893
(2009) (explaining Rule 122 authorizes court to conduct case-by-case
evaluations of individual defendants’ circumstances to ascertain whether
counsel should be appointed).
Instantly, the record lacks any foundation for Appellant’s pro se status
on appeal. Appellant claims he has no money to order the pre-trial and jury
trial transcripts in this case and insists he spent the last of his money
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producing and filing his appellate brief. (See Appellant’s Brief at 5).
Appellant challenges the court’s suppression ruling on appeal, which we are
unable to review without the necessary transcripts. Given the significant
rights at issue, the gaps in the certified record, and in the interests of
justice, we decline to proceed with the pro se appeal at this juncture. The
better resolution at this time is to continue the case from the A17-17
argument session scheduled to convene on June 27, 2017, in Philadelphia,
and remand for further proceedings.
Upon remand, the trial court shall hold a hearing to determine
Appellant’s indigency status and if he is entitled to counsel on appeal under
Pa.R.Crim.P. 122. If the court appoints counsel, counsel must order the
relevant transcripts and file a Pa.R.A.P. 1925(b) concise statement of errors,
within 30 days of receipt of the transcripts. The trial court shall
subsequently file a supplemental Pa.R.A.P. 1925(a) opinion. If Appellant is
entitled to counsel and elects to proceed pro se on appeal, the court must
conduct a Grazier5 hearing to ascertain whether his waiver of counsel is
knowing, intelligent, and voluntary. If the trial court decides Appellant is not
indigent or otherwise entitled to the appointment of counsel, it must direct
Appellant to order the relevant transcripts in a timely manner or face waiver
of his issues on appeal. The trial court shall have 60 days to advise this
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5
Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998).
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Court of the outcome of the remand proceedings, after which the
Prothonotary shall order a new briefing schedule, if appropriate, and list this
case for the next available argument session in Philadelphia.
Case remanded with instructions. Case is stricken from the A17-17
argument list and continued to a later argument panel to be decided.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/9/2017
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