Com. v. Clark, K., III

• Court: Superior Court of Pennsylvania
• Decided: March 31, 2022
• Docket: 1071 MDA 2021
• Status: Unpublished

Opinion

J-S05009-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KENNETH DOUGLAS CLARK, III : : Appellant : No. 1071 MDA 2021

Appeal from the Judgment of Sentence Entered July 22, 2021 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0004921-2020

BEFORE: PANELLA, P.J., STABILE, J., and DUBOW, J.

MEMORANDUM BY PANELLA, P.J.: FILED MARCH 31, 2022

Kenneth D. Clark, III appeals pro se from his judgment of sentence for

aggravated assault and possessing an instrument of crime (“PIC”). The trial

court directed Clark to file a Pa.R.A.P. 1925(b) statement of errors complained

of on appeal, but Clark did not comply. We therefore find Clark has waived his

issues on appeal, and affirm his judgment of sentence.

Clark was arrested and charged with one count of aggravated assault

and one count of PIC based on an incident that occurred on October 21, 2020.

On that date, Clark approached Harry Vidro, Nancy Vidro-Perez and Vidro-

Perez’s three year-old son on the porch of their home, asked for a lighter, and

became agitated and aggressive when he was told they did not have a lighter.

Clark and Vidro started to fight, and Clark stabbed Vidro twice in the abdomen.

Vidro was transported to the hospital for surgery, and later identified Clark as J-S05009-22

the person who stabbed him. Clark was interviewed and admitted he had

gotten into a fight with a man he did not know, though he denied stabbing

him.

The case proceeded to a jury trial. As the Commonwealth’s first witness

was being sworn in, Clark became agitated and started speaking out, flailing

his hands and spewing profanities. The jury was removed from the courtroom.

Clark continued to yell profanities and direct racial slurs to the court, and he

repeatedly demanded to be taken back to his jail cell. Clark was ultimately

removed from the courtroom and the trial proceeded in his absence.

The following day, the court made arrangements for Clark to be

transported to the courthouse after counsel represented to the court that Clark

may wish to testify at trial. After being transported, Clark:

began banging uncontrollably in the holding cell. When sheriff’s deputies attempted to escort [Clark] to the courtroom, he began yelling and cursing at the deputies, grabbing at them, challenging them to a fight, flailing around, kicking the cell door, and not cooperating at all. It took five deputies to carry [Clark] from the cell to a transport van as they were trying to bring him to the courtroom. The deputy concluded there was ‘zero chance’ that [Clark] would sit through the proceedings and he was a security risk because there was likely to be an altercation in the courtroom. The court then decided to proceed in [Clark]’s absence.

Trial Court Opinion, 10/19/21, at 18-19 (citations to notes of testimony

omitted).

The jury convicted Clark of both the aggravated assault and the PIC

count. The court ordered a pre-sentence investigation, and subsequently

sentenced Clark to an aggregate term of 12½ to 25 years’ imprisonment. After

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the court imposed the sentence, Clark stated he wished to represent himself

on appeal. The court held a Grazier1 hearing, and found Clark had entered a

valid waiver of his right to counsel on appeal and could proceed pro se.

Clark filed a timely post-sentence motion, which the court denied. Clark

then filed a notice of appeal to this Court. The trial court ordered Clark to file

a 1925(b) statement.2 Instead of filing a 1925(b) statement, Clark filed a

“motion for extension,” requesting additional time for his appeal process. He

contended he did not have time to file a proper appeal, primarily because of

the strict quarantine procedures at SCI facilities due to COVID-19. The court

denied the motion, explaining:

[The court] may enlarge the time period initially specified [for filing a 1925(b) statement] ‘[u]pon application of the appellant and for good cause shown.’ Pa.R.A.P. 1925(b)(2)(i). However, [Clark] has failed to show good cause for an enlargement of time to file his Statement. [Clark] does not adequately explain how he has been prevented from filing a timely Statement, nor does he identify any breakdown in the court process. To the contrary, [Clark] was able to timely prepare and file a request for an extension of time, which shows there has been no breakdown of the process. The Statement does not require a legal brief or citation to the authorities or to the record. See Pa.R.A.P. 1925(b)(4). Furthermore, [Clark] has already identified in his post-sentence motion and notice of appeal certain errors he intend[ed] to assert on appeal, which could have been contained in a timely Statement. ____________________________________________

1 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). 2 The trial court’s original order directing Clark to file a 1925(b) statement, entered August 11, 2021, was sent to the SCI facility at which Clark had formerly been incarcerated. A second order, entered September 13, 2021, was sent to Clark at SCI Camp Hill, where Clark was incarcerated. The order gave Clark a new deadline to file the 1925(b) statement of October 4, 2021.

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Trial Court Opinion, 10/19/21, at 9 (footnote omitted). The court also noted

in its order denying Clark’s motion for extension that it had confirmed Clark

has “remained at SCI Camp Hill since August 4, 2021, he is not on any

quarantine restrictions, and he does have access to the law library.” Order,

10/18/21, at 1 n.1.

Despite the denial of this motion, Clark did not file a timely 1925(b)

statement. In fact, the docket does not reflect that Clark ever filed the court-

ordered 1925(b) statement. Accordingly, the trial court, in its 1925(a) opinion,

urged this Court to find Clark’s issues waived in light of his failure to file the

1925(b) statement.

We agree we must find that Clark’s issues on appeal are waived. “In

Commonwealth v. Lord, 553 Pa. 415, 420, 719 A.2d 306, 309 (1998), our

Supreme Court held that in order to preserve claims for appellate review, an

appellant must comply with a trial court order to file a Statement of Matters

Complained of on Appeal, pursuant to Pa.R.A.P. 1925(b).” In re L.M., 923

A.2d 505, 509 (Pa. Super. 2007); see also Commonwealth v. Carr, 227

A.3d 11, 18 (Pa. Super. 2020) (observing that appellants must comply with a

trial court’s order to file a 1925(b) statement in order to preserve their claims

for appellate review, and any issues not raised in a 1925(b) statement will

generally be deemed waived). Clark did not comply with the court’s order to

file a 1925(b) statement here. Further, as Clark was pro se when directed to

file his 1925(b) statement, he does not benefit from the procedure outlined in

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Pa.R.A.P. 1925(c)(3) (providing for remand where Court is convinced counsel

has been ineffective for failing to file a 1925(b) statement). In his appellate

brief, Clark does not address or try to explain his failure to file a 1925(b)

statement in any way, and we are therefore constrained to find that Clark has

waived his issues on appeal.3

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 03/31/2022

____________________________________________

3 We note that, although the trial court found Clark had waived his issues by failing to file a 1925(b) statement, the court nonetheless went on to thoroughly explain why it had not erred by removing Clark from the courtroom due to his “abusive verbal tirade, contemptuous demeanor and aggressive behavior,” Trial Court Opinion, 10/19/21, at 18, why that removal did not unconstitutionally prevent Clark from testifying, and why it had not abused its discretion when sentencing Clark.

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