Com. v. Brown, J.

Superior Court of Pennsylvania·Decided May 21, 2018·No. 41 WDA 2017·Unpublished

Opinion

J-S85006-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOHN FREDERICK BROWN, JR. : : Appellant : No. 41 WDA 2017

Appeal from the PCRA Order December 9, 2016 In the Court of Common Pleas of McKean County Criminal Division at No(s): CP-42-CR-0000394-2013

BEFORE: BOWES, J., PANELLA, J., and STABILE, J.

MEMORANDUM BY BOWES, J.: FILED MAY 21, 2018

John Frederick Brown, Jr., appeals pro se from the order that

dismissed his petition filed pursuant to the Post Conviction Relief Act. We

vacate the order and remand with instructions.

The record reveals the following. Appellant was charged with rape,

attempted rape, two counts of indecent assault, aggravated assault, and

simple assault resulting from his attack on his former paramour. Douglas J.

Garber, Esquire, of the Public Defender’s Officer, was appointed to represent

Appellant because he could not afford to hire a private attorney. Leading up

to trial, Attorney Garber sought discovery materials from the

Commonwealth, including results of any testing done upon the rape kit

collected from the victim at the hospital. However, he withdrew a motion to

compel after the Commonwealth’s represented that no testing had been J-S85006-17

done on the rape kit. Attorney Garber did not have testing done on the rape

kit for the defense, although Appellant had so requested. N.T. PCRA

Hearing, 12/9/16, at 10-11.

Following a jury trial, Appellant was convicted on all counts except

aggravated assault. Before Appellant was sentenced, he filed a pro se

document purporting to notify Attorney Garber that his services were

terminated based upon ineffective assistance, complaining, inter alia, of a

lack of discovery materials and counsel’s badgering him into declining to

testify at trial. The trial court conducted a hearing on Appellant’s motion

immediately prior to sentencing on January 17, 2014.

At the hearing at which Attorney Garber was present, Appellant first

argued pro se that the Commonwealth failed to comply with discovery rules

and Brady v. Maryland, 373 U.S. 83 (1963). The trial court advised

Appellant: “That’s a matter for Appeal that’s not a matter for me at this

time.” N.T. Motion for Substitute Counsel and Sentencing, 1/17/14, at 5.

Appellant next sought to argue Attorney Garber’s ineffectiveness, but the

court informed him: “That’s for Post-Conviction Relief Act that’s not before

me now.” Id. The trial court denied Appellant’s motion, and Attorney

Garber thus remained Appellant’s counsel.

The trial court then immediately proceeded to sentencing, imposing an

aggregate term of imprisonment of eight to twenty-two years. Regarding

post-sentence rights, the trial court informed Appellant that he had the right

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to the assistance of an attorney in pursing a direct appeal, and that if he

could not afford one, the trial court “will appoint an attorney to represent

you free of charge.” Id. at 7. The trial court did not explain that the

attorney whose assistance was available was Attorney Garber, who had

already been appointed to represent Appellant based upon his indigence.

In a pro se post-sentence motion docketed on January 27, 2014,

Appellant again raised issues regarding the rape kit and Attorney Garber’s

ineffectiveness, and sought the appointment of substitute counsel. The

docket does not reflect that Appellant’s motion was forwarded to counsel as

is required by Pa.R.Crim.P. 576(A)(4). On the same day on which

Appellant’s motion was docketed, the trial court entered two orders, both of

which were served on Appellant and the Public Defender’s office. One of the

orders indicated that Appellant’s post-sentence motion was denied without a

hearing, stated that Appellant had thirty days from the date of that order to

file an appeal,1 and again informed already-represented Appellant that he

had the right to have counsel appointed for an appeal if he was proceeding

in forma pauperis (“IFP”). Order, 1/27/14 (document 44 in the certified

record). The other order, noting “it appearing that no PCRA petition and no

appeal is pending before this [c]ourt,” denied Appellant’s request for the

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1 A pro se post-sentence motion filed by a represented party is “a nullity, having no legal effect.” Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa.Super. 2007).

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appointment of substitute counsel on the basis that Appellant had failed to

show irreconcilable differences between himself and trial counsel. Order,

1/27/14 (document 45 in the certified record).

On February 4, 2014, the prothonotary docketed yet another pro se

motion for appointment of substitution of counsel filed by Appellant. The

docket does not reflect that it was forwarded to counsel as required by

Pa.R.Crim.P. 576(A)(4). The trial court denied it the same day, which was

within the thirty-day appeal period, on the bases that “the docket reflect[s]

that there is no pending matter before the [c]ourt for which appointed

counsel is necessary, and [Appellant] [had] baldly alleged ‘irreconcilable

differences.’” Order, 2/4/14.

The next docket entry is a pro se motion to amend notice of appeal2

filed by Appellant on May 2, 2014.3 In the motion, Appellant indicated that

his appeal was from his January 17, 2014 judgment of sentence rather than

the January 27, 2014 order that denied his post-trial motions. Once again,

the docket does not reflect compliance with Pa.R.Crim.P. 576(A)(4). Rather

2 The certified record contains no indication that Appellant had filed a notice of appeal at that point, and it does not appear Appellant filed a notice in this Court during the relevant time.

3The motion is dated April 23, 2014, and its envelope is postmarked April 29, 2014.

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than treat the motion as a PCRA petition,4 the PCRA court denied it, “it

appearing that there is no pending matter regarding this criminal action.”

Order, 5/2/14. The Public Defender’s office was copied on the order denying

Appellant’s motion.

On May 15, 2014, Attorney Garber filed a petition for leave to

withdraw his appearance, stating therein that the case was complete, as

there were no outstanding issues and no notice of appeal filed. Petition for

Leave to Withdraw, 5/15/14. The petition was denied by an order that was

filed May 21, 2014, but not served upon Appellant. However, Attorney

Garber’s subsequent praecipe to withdraw appearance was served on

Appellant on May 22, 2014.

In August 2014, Appellant filed a motion for transcripts and a motion

seeking leave to appeal IFP. By orders filed September 2, 2014, the PCRA

court denied the former on the basis that no appeal was filed within thirty

days of Appellant’s judgment of sentence, and the latter because there was

neither an appeal nor PCRA petition pending.

On January 8, 2015, Appellant filed a timely pro se PCRA petition.

Therein he claimed that Attorney Garber coerced him into not testifying at

trial, advocated for the prosecution, and failed to: file post-trial or post-

4 See, e.g., Commonwealth v.

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