Com. v. Brown, T.

Opinion

J-A22025-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : TYRON BROWN, SR., : : Appellant : No. 1839 MDA 2013

Appeal from the Judgment of Sentence Entered October 7, 2013, In the Court of Common Pleas of Schuylkill County, Criminal Division, at No. CP-54-CR-0001519-2012.

BEFORE: PANELLA, SHOGAN and FITZGERALD*, JJ.

MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 29, 2014

Appellant, Tyron Brown, Sr., appeals from the judgment of sentence

entered October 7, 2013, following his conviction by a jury of aggravated

assault of a police officer involving bodily injury, disarming a law-

enforcement officer, resisting arrest, two counts of simple assault, and

disorderly conduct. We affirm.

The notes of testimony from trial indicate that on September 2, 2012,

Todd Dunlap arrived at 1111 East Center Street in Mahanoy City,

Pennsylvania, at approximately 5:00 p.m. to give his eleven-year-old

daughter, who resided there with her mother and grandmother, some

money. N.T., 8/28/13, at 34–35. As he pulled up to the curb in front of the

house, Mr. Dunlap observed his daughter standing on the front porch and

__________________ *Former Justice specially assigned to the Superior Court. J-A22025-14

heard Appellant, who stood on the sidewalk “a few doors down,” engaging in

“very loud cursing.” Id. at 35. Mr. Dunlap exited his car, and when he

asked Appellant to refrain from using profanity in front of Mr. Dunlap’s

daughter, Appellant began approaching Mr. Dunlap, who retreated into his

vehicle. Appellant “opened [his] car door as if he was going to pull [him]

out” and a woman standing nearby pushed Appellant “back to the sidewalk.”

Id. at 37. Mr. Dunlap exited his vehicle and proceeded to the house where

his daughter, who had retreated inside, resided. Id. at 38. His daughter’s

grandmother indicated police had been called. Id.

Mr. Dunlap left the house to return to his car whereupon Appellant

yelled at him and poked him in the face. N.T., 8/28/13, at 39. Shortly

thereafter, Mahanoy City Borough Police Officer Charles Kovalewski arrived

at 5:15 p.m. and attempted to calm Appellant. Id. at 40, 102. When the

cursing and belligerent behavior continued, Officer Kovalewski told Appellant

that if he did not desist, he would be placed under arrest for disorderly

conduct. Id. at 41. Appellant continued cursing and “when Officer

Kovalewski pulled out the handcuffs, [Appellant] got up from the top step

and pushed the officer in the chest.” Id. Mr. Dunlap described the scenario

as follows:

At that point I seen [sic] the officer was the only one on duty at the time and there was no back up and I walked down to where the officer was. When I walked down there, [Appellant] went and sat on the steps again, in the middle of the steps. And

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the officer told him if, pretty much if the behavior continues, that he was going to get tasered.

* * *

As Officer Kovalewski went to put handcuffs on him again, he was pushed again, which this time [the officer] went backwards.

And at that point that is when Officer Kovalewski fired the [T]aser.

[Appellant] pulled the barbs out of his chest and threw the wires . . . and got into a fight with the officer.

N.T., 8/28/13, at 41–42.

At that point, Mr. Dunlap attempted to bear hug Appellant, whereupon

someone punched Mr. Dunlap repeatedly on the back of his head. N.T.,

8/28/13, at 43. Mr. Dunlap observed Appellant continuing to assault Officer

Kovalewski, and Appellant “picked him up by the shirt . . . and slammed him

against the ground.” Id. Mr. Dunlap testified that he “clearly remember[ed]

Officer Kovalewski’s head hitting the sidewalk numerous times.” Id. at 43–

44. At some point, Appellant ran into his house “followed by one of the

younger black males that was punching [Mr. Dunlap] and shut the door.”

Id. at 44. Mr. Dunlap remembers seeing Appellant and the two males who

beat Mr. Dunlap “being brought out of the house in handcuffs,” whereupon

Mr. Dunlap passed out and was taken to the hospital in an ambulance. Id.

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at 46. Officer Kovelewski testified similarly at trial, as did another

eyewitness, John Garber. Id. at 75–82, 102–105. The Commonwealth also

played a cellular telephone video at trial that was recorded by another

witness, Anthony Bennett. Id. at 104–105.

On August 29, 2013, Appellant was convicted by a jury of the crimes

described above and acquitted of aggravated assault of a police officer

involving serious bodily injury and escape.1 On October 7, 2013, the day of

sentencing, Appellant filed a motion for extraordinary relief requesting a new

trial, which the trial court denied. The court sentenced Appellant to an

aggregate term of imprisonment of sixteen to thirty-two months on October

7, 2013. No post-sentence motions were filed. On October 17, 2013,

Appellant filed a timely notice of appeal. On October 18, 2013, the trial

court directed Appellant to comply with Pa.R.A.P. 1925(b) by November 12,

2013. Order, 10/18/13.

While still represented by counsel, Appellant filed a pro se document

titled, “Legal Grounds for Appeal” on November 4, 2013.2 Thereafter,

1 At the close of the Commonwealth’s case, the trial court dismissed two counts of simple assault with regard to Mr. Dunlap. 2 The motion is time stamped and docketed in accordance with Pa.R.Crim.P. 576(A)(4). Our Supreme Court has stated:

[T]he disapproval of hybrid representation is effective at all levels. See Commonwealth v. Ellis, 534 Pa. 176, 626 A.2d 1137, 1139 (1993) (criminal defendant has no right to hybrid

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pursuant to Pa.R.A.P. 1925(b), Appellant filed a counseled, timely concise

statement of matters complained of on appeal on November 7, 2013,

identifying the following two issues:

1. The Court erred in allowing [Appellant’s] entire criminal record to come into evidence and allowed [Appellant] to be cross-examined.

2. The prosecut[ion’s] closing was a smear on [Appellant’s] character by use of his prior improperly admitted record. The Prosecutor called [Appellant] a liar and used the diety as a basis for conviction. A mistrial was improperly denied.

Concise Statement of Matters Complained of on Appeal, 11/7/13.

The docket reveals that approximately one week later, on November

14, 2013, Appellant sent a pro se letter to the Schuylkill County Clerk of

Courts requesting the “removal of defense counsel.” Correspondence,

11/14/13, docket entry 28. On November 26, 2013, counsel filed a motion

to withdraw pursuant to Appellant’s request. Motion, 11/26/13. In an order

entered December 3, 2013, this Court granted defense counsel’s request to

withdraw and directed Appellant to “retain new counsel, apply to the trial

representation in either trial or appellate courts). Criminal Rule 576(A)(4) addresses hybrid representation before the courts of common pleas, mandating that the pro se filing be received and docketed, but then forwarded to counsel: “In any case in which a defendant is represented by an attorney, if the defendant submits for filing a written motion, notice, or document that has not been signed by the defendant’s attorney, the clerk of courts shall accept it for filing” and send a copy to the attorneys of record in the case.

Commonwealth v. Cooper, 27 A.3d 994, 1000 (Pa. 2011).

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court for the appointment of new counsel, or express his choice to proceed

pro se.” Order, 12/3/13. We further directed the trial court to hold a

hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988),

should Appellant choose to proceed pro se.

On December 5, 2013, Appellant, pro se, filed a Motion to Amend

Legal Grounds of Appeal, docket entry 32, presumably amending his

Pa.R.A.P. 1925(b) statement, in which he raised eighteen issues of trial

counsel’s ineffective assistance. On January 16, 2014, Appellant filed a

motion of intent to proceed pro se “in appellate court.” Motion, 1/16/14.

This Court entered an order on January 24, 2014, directing the trial court to

conduct an on-the-record inquiry “to determine whether appellant’s waiver

of counsel is knowing, intelligent, and voluntary, pursuant to” Grazier. The

trial court held a Grazier hearing on February 18, 2014, and entered an

order that day indicating that Appellant’s waiver of the right to be

represented by counsel was knowing, voluntary, and intelligent. Order,

2/18/14. Since that time, Appellant has proceeded pro se.

Appellant lists the following fourteen issues in the Statement of

Questions Involved in his brief, which we reproduce verbatim:

1. Wheather probable cause was established, to support lawful arrest. And the resisting arrest charge.

2. Wheather the officer, bound by oath to protect and serve the pubic violated the Defendants 14th right as a citizen of the United States of America, to equal protection.

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14th Ammendment (equal protection).

3. Wheather the officer was within lawful parameters in his use and discharge of his Taser weapon.

4. Wheather the officer’s lack of protical, as to proper proceedure for answering a disturbance call with multiple suspects in an undetermined, crowded situation was influenced by the preexisting relationship testified to during trial proceedings between officer and Todd Dunlap.

5. Wheather the transport of defendant to Mahanoy City Police Dept. and the dentintion without marandise, charge, or warrant complied with Pa. Criminal Rule of Procedure, as it refers to suspects arrested after business hours (4:30 pm). Pa.R.C.P. Rule 519 (a)(1).

6. Wheather the arraignment judge and Cheif of Police of Mahanoy City’s combined efforts in the defendants pre- arraignment proceedings interfeared with the natural administration of court violating the defendants ammendment right to due process. 14th Ammendment (Due Process).

7. Wheather the conduct of MDJ Platchko was prejudicial to the defendants case. And in compliance with the MDJ Code of Conduct and the Judicial Code of Ethics with respect to probable cause and criminal documents. Right to Due Process. Pa.R.C.P. Rule 2(a); Pa.R.C.P. Rule 8(a)(1); 8/14 Ammendment rights (Due Process, Fair Bail).

8. Wheather the eccessiveness of the bail ammout assessed to the defendant could legally be in standard range without the melestation of the Probable cause affidavit and charge complaint documentation. Pa.R.C.P. Rule 2(a); Pa.R.C.P. Rule 8(a)(1); 8 th Ammendment (Eccessive Fines & Bail).

9. Wheather trial counsel ineffectively represented the Appellant by his failure to comply with the Defendant direct request to challenge conflicts in written statements, victim/witness

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testimonies video evidence and justification plea of self defense whhich may have effected the overall outcome of the trial. Strickland v. Washington, Jones v. Simpson, Coffio v. United States.

10. Wheather the ADA’s misrepresentation of video facts, [pursuit] of criminal charges without sufficient evidence to support and used of any if not all 6 prior offenses from Defendants past. Crossed recognized boundaries an administration of justice with a responsibility, not to be vindictive, or attempt in any manner to influence the jury by arousing their prejudice. ADA asserted during closing Defendant was a liar and has no respect for the law. Commonwealth v. Potter, Commonwealth v. Toney, Commonwealth v. Meyers.

11. Wheather trial court erred by denying trial counsels motion of acquittal, challenging the sufficiency of evidence to disprove reasonable doubt as to Ct #2, Ct #6, and Ct #8. Jones v. Simpson Coffio v. United States Commonwealth v. Cicere.

12. Wheather trial court erred by denying trial counsels motion for acquittal, challenging the sufficiency of evidence to disprove reasonable doubt as to Ct #4 disarming law enforcement officer without lawful authority. Jones v. Simpson, Coffio v. United States.

13. Wheather the trial court complied with the judicial obligation he personally outlined in jury instruction (“I’m the umpire, the referee”) as to jury resposibilities and considerations applied when determining witness credibility facts of video evidence, and prosecution obligation to disprove self defense beyond reasonable doubt. Pa.R.C.P. Rule 2(a).

14. Wheather the trial court prejudice the defenses case by failing to have prosecution address their burden of proof. In regard to Defendants on record justification plea of self defense. And allowing diliberations to be conducted without that burden being met violating the Defendants. Pa.R.C.P. Rule 2(a); 14th Ammendment (Due Process).

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Appellant’s Brief at 8–9 (verbatim).

As previously noted, before counsel withdrew in this case, Appellant

filed a counseled concise statement pursuant to Pa.R.A.P. 1925(b) on

November 7, 2013, identifying two issues to be raised on appeal. The trial

court addressed these two issues in its Pa.R.A.P. 1925(a) opinion. Trial

Court Opinion, 1/16/14. Appellant, however, has failed to raise them in his

brief to this Court; instead, he lists the above fourteen issues in his

statement of questions. Our appellate rules define the content of appellate

briefs. Pa.R.A.P. 2116(a) addresses the statement of questions involved and

provides, in pertinent part, “No question will be considered unless it is stated

in the statement of questions involved or is fairly suggested thereby.”

Appellant’s pro se status does not relieve him of the responsibility to

conform to the applicable rules, and Appellant is not entitled to any

particular advantage because he lacks legal training. Commonwealth v.

Maris, 629 A.2d 1014, 1017 n.1 (Pa. 1993). As the two issues raised in the

counseled 1925(b) statement have been abandoned in the appellate brief,

they are waived. Pa.R.A.P. 2116(a).

The only other issues that would be preserved for review, then, are

the issues raised in Appellant’s purported pro se amended Pa.R.A.P. 1925(b)

statement filed December 5, 2013, in the form of the “Motion to Amend

Legal Grounds of Appeal,” filed as docket entry 32. As previously noted, in

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that document, Appellant raised eighteen issues of trial counsel’s ineffective

assistance of counsel. Of the fourteen issues set forth in Appellant’s

statement of questions involved, only issue number nine is an issue of

ineffective assistance of counsel. For the reasons that follow, we defer this

claim, and any of Appellant’s other issues of ineffective assistance of counsel

set forth in his Motion to Amend Legal Grounds of Appeal, to be raised in a

subsequent petition pursuant to the Post-Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541–9546.

In Commonwealth v. Holmes, 79 A.3d 562 (Pa 2013), our Supreme

Court considered “the reviewability of claims of ineffective assistance (“IAC”)

of counsel on post-verdict motions and direct appeal.” Id. at 563. Following

a comprehensive review of the language codified in the PCRA and decisions

from our courts, our Supreme Court revisited the exception to

Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), as described in

Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003), and held that absent

either good cause or exceptional circumstances and a waiver of PCRA

review, IAC claims must await collateral review. See also Commonwealth

v. Barnett, 25 A.3d 371, 373 (Pa. Super. 2011) (en banc) (“[T]he Supreme

Court has limited the applicability of Bomar” such that most assertions of

ineffective assistance of counsel “are appropriately raised only on collateral

review.”); Commonwealth v. Britt, 83 A.3d 198, 203 (Pa. Super. 2013)

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(“[A]bsent either good cause or exceptional circumstances and a waiver of

PCRA review, ineffective assistance of counsel claims must await collateral

review.”).

Herein, there is no indication in the record that good cause or

extraordinary circumstances exist such that Appellant’s IAC claims warrant

review on direct appeal or that Appellant expressly waived his right to PCRA

review. See also Barnett (holding that this Court cannot review IAC claims

on direct appeal absent a defendant’s waiver of PCRA review).

Consequently, in light of Holmes, we dismiss Appellant’s claims of

ineffective assistance of counsel without prejudice to his ability to raise them

in a subsequent PCRA petition, if he so chooses.

Clearly, then, the other thirteen issues set forth in Appellant’s

Statement of Questions Involved in his brief have not been preserved for

review because they were not set forth in either the counseled Pa.R.A.P.

1925(b) statement filed on November 7, 2013, or Appellant’s pro se Motion

to Amend Legal Grounds of Appeal filed on December 5, 2013.3 Thus,

3 We note, as well, that most of the issues set forth in the Statement of Questions Involved have been abandoned in the brief, thereby providing an alternative basis for waiver. Appellant presents four issues in the body of his brief, one of which is issue nine, presented as Argument (3) in the brief, the single issue of IAC discussed above. Arguments (1), (2), and (4) in the brief correspond to issues eleven, twelve, and fourteen in the Statement of Questions Involved. All other issues were abandoned in the argument section of the brief. Issues that are abandoned in the brief, are waived. Commonwealth v. Heggins, 809 A.2d 908, 912 (Pa. Super. 2002).

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because there are no issues before us that have been properly preserved or

that have not been waived, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/29/2014

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