Com. v. Hosler, H.

Opinion

J-S26026-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : HARRY EDWARD HOSLER : : Appellant : No. 99 MDA 2022

Appeal from the Judgment of Sentence Entered December 13, 2021 In the Court of Common Pleas of Schuylkill County Criminal Division at No(s): CP-54-CR-0002137-2016

BEFORE: KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY McCAFFERY, J.: FILED: JUNE 29, 2023

Harry Edward Hosler (Appellant) appeals pro se from the judgment of

sentence entered in the Schuylkill County Court of Common Pleas, following

the revocation of his probation pursuant to a 2020 guilty plea to criminal

trespass.1 This matter returns to us after remanding to the trial court to allow

Appellant to file a concise statement of matters complained of on appeal

pursuant to Pa.R.A.P. 1925(b). We affirm.

The factual and procedural history of this case are as follows. On June

30, 2020, Appellant pled guilty to one count of criminal trespass and was

sentenced to a term of 18 months’ probation.

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* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. § 3503(a)(1)(ii). J-S26026-22

On July 12, 2021, while Appellant was serving this term of probation,

Pottsville Police Department Detective Joseph Krammes served a search

warrant for a home on East Market Street in Pottsville, Pennsylvania in relation

to a burglary. See N.T. Revocation, 12/13/21, at 3-4. Appellant listed this

home as his address with the office of probation. Id. at 12; County of

Schuylkill Adult Probation/Parole Department Conditions Governing Probation,

7/14/2020, at 1 (unpaginated). While searching the home, Detective

Krammes located a digital scale, sandwich bags, and a “metal container”

holding 17.87 grams of methamphetamines in a room Appellant shared with

his former girlfriend, Beth Shiner. N.T. at 4-5. Detective Krammes arrested

both Appellant and Shiner and interviewed them at the police station. Id. at

5. During a video-recorded interview, Appellant initially denied ownership of

the narcotics, but then admitted to making multiple “deliveries” of the

substance “per week.” Id. at 5-6, 8-9.

As a result of the investigation, Appellant was charged with possession

with intent to distribute (PWID), possession of a controlled substance, and

possession of drug paraphernalia.2 Due to these charges, the Office of

Probation/Parole filed a motion to revoke Appellant’s probation. See Motion

to Revoke Probation, 12/3/21.

On December 13, 2021, the trial court held a hearing where the

Commonwealth presented the above testimony of Detective Krammes. ____________________________________________

2 35 P.S. §§ 780-113(a)(32), (a)(30), (a)(16), respectively.

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Appellant also testified, stating that he did not live in the East Market Street

home in Pottsville despite providing his probation officer with that address.

See N.T. at 12, 14. He indicated, instead, that he lived in Minersville and was

at the East Market Street home to give Shiner a pack of cigarettes. Id. at 15,

21. Appellant stated that for “about an hour[,]” he continued to tell Detective

Krammes the narcotics did not belong to him. Id. at 18. He later admitted

possessing the drugs, noting:

[I]t seem[ed] like everybody [at the police station] who said they had drugs were getting let go. And I was told that if I worked with the officer, that we could make these charges disappear. So I agreed that they were mine. . . . I was telling [Detective Krammes] what I thought I had to say.

Id. at 18-19.

At the close of the hearing, the trial court revoked Appellant’s probation3

and resentenced him to a term of 12 to 24 months’ incarceration. Appellant

filed a timely, counseled4 notice of appeal. On January 13, 2022, the trial

court ordered Appellant to file a Rule 1925(b) statement within 25 days —

February 7th. However, counsel for Appellant did not file a Rule 1925(b)

statement. Instead, Attorney Conville filed a petition to withdraw on February

1, 2022, six days before the concise statement was due. In his petition to

withdraw, Attorney Conville noted Appellant “no longer desire[d] the services

3During the hearing, the court also revoked Appellant’s parole at Docket No. CP-54-CR-0000852-2020. This matter is not subject to this appeal.

4 Appellant was represented by James G. Conville, Esquire, at the time.

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of . . . counsel[.]” Petition to Withdraw, 2/1/22, at 2 (unpaginated). It also

merits mention that counsel did not file a Pa.R.A.P. 1925(c)(4) statement of

intent to withdraw in lieu of a concise statement. See Pa.R.A.P. 1925(c)(4)

(where counsel intends to withdraw from representation, they shall file a

statement of intent to withdraw in lieu of a Rule 1925(b) statement, allowing

any arguably meritorious claims to withstand waiver).

Upon receipt of Attorney Conville’s petition to withdraw, this Court

stayed the matter and directed the trial court to hold a Grazier5 hearing to

determine whether Appellant wished to proceed with counsel or pro se. Order,

2/3/22. After the Grazier hearing, the trial court granted counsel’s petition

on February 14, 2022. See Trial Court’s Response to Superior Court Order of

Feb. 3, 2022, 2/14/22.6 The trial court did not re-notify Appellant that he

needed to file a timely Rule 1925(b) statement, nor was he informed he risked

waiver for not filing any statement at all.

Meanwhile, Appellant proceeded pro se and filed a litany of motions.

See Appellant’s Pro Se “Motion of Relief,” 5/4/22; Appellant’s Pro Se “Motion

of Relief,” 3/9/22; Appellant’s Pro Se “Motion to Compell [sic],” 3/9/22;

Appellant’s Pro Se Motion for “Suppression of Evidence,” 1/28/22; Appellant’s ____________________________________________

5 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) (requiring on the record inquiry to determine whether waiver of counsel is knowing, intelligent, and voluntary).

6 Here, the trial court found Appellant “unequivocally” stated he did not wish to proceed with Attorney Conville and wanted to proceed pro se. See Trial Court’s Response to Superior Court Order of 2/3/22, at 1 (unpaginated).

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Pro Se “Motion to Dismiss,” 1/28/22; Appellant’s Pro Se Motion for “Grounds

for Mistrial,” 1/28/22; Appellant’s Pro Se Motion for “Modification of

Sentence,” 1/28/22; Appellant’s Pro Se “Motion to Dismiss,” 1/27/22;

Appellant’s Pro Se Motion for “Sentence Modification,” 1/21/22; Appellant’s

Pro Se Motion for “Habious Corpes [sic] (Suppression of Evidence),” 1/18/22.

The trial court entered an order staying some of the above-mentioned

motions. See Order, 5/18/22 (staying Appellant’s “Motion of Relief” filed May

4, 2022); Order 4/14/22 (staying several of Appellant’s pro se motions

pending this Court’s disposition on Appellant’s appeal).7

On March 16, 2022, the trial court issued a Pa.R.A.P. 1925(a) opinion,

concluding Appellant failed to file a Rule 1925(b) statement and as such,

waived all potential claims on appeal. See Trial Ct. Op., 3/16/22, at 2

(unpaginated).

In a January 6, 2023, memorandum, this Court noted that Attorney

Conville was not permitted to withdraw until after the deadline to file a timely

Rule 1925(b) statement, and accordingly, was required to comply with the

trial court’s order. See Commonwealth v. Hosler, 99 MDA 2022 (Pa. Super.

Jan. 6, 2023) (unpub. memo. at 5-6); see also Pa.R.Crim.P. 120(B)(1)

(providing counsel may only withdraw his or her appearance by leave of

court); Commonwealth v. Librizzi, 810 A.2d 692, 693 (Pa. Super. 2002)

7The April 14, 2022, order did not stay all of Appellant’s various pro se motions. See Order, 4/14/22.

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(stating that once counsel enters his appearance, he must “diligently and

competently represent the client until his or her appearance is withdrawn” and

counsel may not withdraw his representation until granted leave by the court)

(citation omitted). This Court concluded that Attorney Conville’s failure to do

so amounted to per se ineffectiveness. See Hosler, 99 MDA 2022, at 6; see

also Pa.R.A.P. 1925(c)(3); Commonwealth v. West, 883 A.2d 654, 657-58

(Pa. Super. 2005) (where counsel failed to file a substantive concise

statement, they have effectively abandoned their client). We remanded the

matter for the filing of a Rule 1925(b) statement nunc pro tunc and the

preparation of an opinion by the trial court. See Hosler, 99 MDA 2022, at 6.

On remand, Appellant filed a pro se Rule 1925(b) statement on March

24, 2023. The trial court filed a responsive Rule 1925(a) opinion on May 11,

2023. This matter now returns to us on appeal.

Before we may address the merits of Appellant’s appeal, we must first

determine whether he has properly preserved the claims. In pertinent part,

Appellant stated the following in his Rule 1925(b) statement:

In [the present] case[,] I found a few matters seemingly judged in a premature manner based upon irrelevant opinion. At the time of the revocation hearing[,] I was still, very much, fighting my case to which spawned my revocation. . . .

[The trial court] stated [it] was revoking my probation solely because I am a “drug dealer.” None of my priors support such an outlandish statement nor [were] my open charges settled. His accusation was a mere opinion with no factual basis.

Furthermore, the supporting evidence presented by Adult Probation was falsified. Their evidence says I was arrested and charged with possession on [July 12, 2021,] when the supporting

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criminal complaint and warrant is dated [September 24, 2021]. Also I feel a full revocation when, by the time, 17 1/2 months of an 18 month probation to be turned to a 12 to 24 month sentence is a bit excessive without a supporting verdict[. sic]

Appellant’s Pro Se 1925(b) Statement, 3/24/23, at 2 (unpaginated).

It is well-settled that a Rule 1925(b) statement that is not specific

enough for the trial court to identify or address any of the appellant’s claims

may result in waiver. See Pa.R.A.P. 1925(b)(4)(ii) (a statement “shall

concisely identify each error that the appellant intends to assert with sufficient

detail to identify the issue to be raised for the judge.”); Commonwealth v.

Reeves, 907 A.2d 1, 2-3 (Pa. Super. 2006) (waiving issues not raised before

the trial court due to lack of specificity).

When a court has to guess what issues an appellant is appealing, that is not enough for meaningful review. When an appellant fails adequately to identify in a concise manner the issues sought to be pursued on appeal, the trial court is impeded in its preparation of a legal analysis which is pertinent to those issues. In other words, a [c]oncise [s]tatement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent of no [c]oncise [s]tatement at all.

Id. at 2 (citation omitted).

The trial court found that Appellant’s concise statement “never state[d]

an actual error or issue on appeal.” Trial Ct. Op., 5/11/23, at 3. As such, it

determined Appellant again waived his claims on appeal. Id. at 4-5.

Specifically, it noted:

[The court] is unable to discern the issues Appellant wishes to raise on appeal because he has failed to concisely identify any particular errors with sufficient detail in violation of Pa.R.A.P. 1925(b). Rather, his handwritten paragraphs are redundant, lengthy, and are set forth in a vague, non-concise manner. “[A

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c]oncise [s]tatement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent to no [c]oncise [s]tatement at all.”

Here, Appellant’s filing is too general and vague to apprise the court of the precise issue(s) to be raised. We cannot act as counsel for Appellant and try to anticipate, guess, or predict what he seeks to appeal. We respectfully assert that the vagueness of Appellant’s [c]oncise [s]tatement renders all issues purportedly raised therein waived.

Id. at 4 (citations omitted).

We agree with the trial court that Appellant’s Rule 1925(b) statement is

rambling and disjointed. See Appellant’s Pro Se 1925(b) Statement, 3/24/23.

We also agree that Appellant’s purported “concise statement” lacks specificity

to the extent that it violates or fails to conform to Rule 1925(b). See Pa.R.A.P.

1925(b)(ii), (vii); Trial Ct. Op. at 4. The trial court cannot effectively address

Appellant’s claims on their merits if it must speculate what those issues are.

See Reeves, 907 A.2d at 2-3. For this reason, Appellant has waived any

potential errors on appeal and is entitled to no relief. See id.

Moreover, even if Appellant adequately identified his claims on appeal,

from what we can discern, he would be entitled to no relief. Appellant

seemingly raises the following concerns: (1) the trial court “stated [it] was

revoking [his] probation solely because [he was] a ‘drug dealer[;]” (2)

evidence supporting his revocation of probation was “falsified” due to a

purported typographical error concerning the date of his arrest; and (3) his

revocation sentence was a “bit excessive[.]” See Appellant’s Pro Se 1925(b)

Statement, at 2; see also Trial Ct. Op. at 3.

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To the extent Appellant argues the court “stated” it revoked his

probation “solely because [he was] a ‘drug dealer[,]’” he would not be entitled

to relief. See Appellant’s Pro Se 1925(b) Statement, at 2. A review of the

revocation hearing transcript reveals no statement from the trial court either

calling Appellant a “drug dealer,” or basing Appellant’s revocation on any such

assertion. See generally N.T. at 3-25. Rather, the trial court found Appellant

violated his probation “[b]ased on [Detective Krammes’] testimony[.]” N.T.

at 10. Thus, even if Appellant preserved this claim, it would be meritless.

With regard to Appellant’s argument that the trial court relied upon

“falsified” evidence to revoke his probation, this claim would also have no

merit. The office of probation listed July 12, 2021 — the date of the offense

— as Appellant’s arrest date. See Schuylkill County Adult Probation/Parole

Department Violation Report, 11/29/21, at 1 (unpaginated). Appellant

asserted in his “concise statement” that the criminal complaint and arrest

warrant for this offense were dated September 24th. See Appellant’s Pro Se

1925(b) Statement, at 2; Criminal Complaint, 9/24/21. This alleged

“falsification” is a typographical error and does not amount to a substantive

defect as Appellant’s arrest date was not at issue during the hearing.

Moreover, from the record before us, it appears Appellant was, in fact, in

custody on July 12, 2021, due to the underlying drug offenses. See Affidavit

of Probable Cause, 9/24/21, at 1-2 (stating that after completing the July 12,

2021, search of the East Market Street home, police took Appellant into

custody); N.T. at 8 (on July 12, 2021, Appellant was taken into custody and

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waived his Miranda8 rights). Nevertheless, regardless of when Appellant was

arrested or charged with the underlying offenses, this typographical error does

not negate the substantive evidence — which the trial court concluded

demonstrated Appellant violated his probation. See N.T. at 10.

With regard to Appellant’s challenge to the discretionary aspects of his

revocation sentence, no relief would be due. Appellant purportedly alleges

that his revocation sentence is a “bit excessive” considering he was “17 1/2”

months through his original 18-month term of probation. See

Commonwealth v. Lutes, 793 A.2d 949, 964 (Pa. Super. 2002) (a claim that

sentence is manifestly excessive challenges discretionary aspects of

sentencing); see Appellant’s Pro Se 1925(b) Statement, at 2. Appellant did

not rase any objection at the time of sentencing, nor did he file a post-

sentence motion raising this argument. For this reason, this challenge would

be waived. See Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super.

2015) (to raise a challenge to the discretionary aspects of sentencing, an

appellant must, inter alia, preserve the claim either at the time of sentencing

or in a post-sentence motion).

Lastly, it merits mention that Appellant’s pro se brief materially fails to

conform to the requirements set forth in the Pennsylvania Rules of Appellate

Procedure. See Pa.R.A.P. 2111(a). The Rules mandate that a brief submitted

by a party — whether counseled or pro se — “shall conform in all material ____________________________________________

8 Miranda v. Arizona, 384 U.S. 436 (1966).

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respects with the requirements of [the] rules as nearly as the circumstances

of the particular case will admit[.]” Pa.R.A.P. 2101. If the defects in the brief

are substantial, “the appeal . . . may be quashed or dismissed.” Id. Rule

2111 sets forth the required sections in an appellate brief, including a

statement of jurisdiction, the order on appeal, a statement of the scope and

standard of review, a statement of the questions involved, a statement of the

case, a summary of the argument, argument of the issues raised, and a

conclusion. See Pa.R.A.P. 2111(a)(1)-(6), (8)-(9). Rules 2114 through 2119

provide further detail as to the information required in each section. See

Pa.R.A.P. 2114-2119.

We reiterate that Appellant proceeded pro se on appeal. Although this

Court will “liberally construe materials filed by a pro se litigant, [an] appellant

it not entitled to any particular advantage because [he] lacks legal training.”

Elliot-Greenleaf, P.C. v. Rothstein, 255 A.3d 539, 542 (Pa. Super. 2021)

(citation omitted).

Here, Appellant’s three-page brief fails to comply with Pa.R.A.P. 2111 in

any respect. His brief either entirely omits or does not adequately include a

statement of jurisdiction, reference to the order or other determination in

question, statement of the scope and standard of review, statement of the

questions involved, a statement of the case, a summary of the argument,

argument for Appellant, or a conclusion identifying the relief sought. See

Pa.R.A.P. 2111(a)(1)-(6), (8)-(9), 2114, 2115(a), 2116(a), 2117(a), 2118,

2119(a)-(e). Moreover, Appellant failed to provide a statement of the

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questions involved, any argument to support a potential claim, or any citation

to relevant authority. This Court cannot simply infer Appellant’s claims from

the limited information before us or develop arguments on his behalf. See In

re R.D., 44 A.3d 657, 674 (Pa. Super. 2012) (this Court “will not act as

counsel” or develop arguments on behalf of an appellant). Further, we

emphasize:

[T]he omission of a statement of questions presented is particularly grievous since the statement . . . defines the specific issues this [C]ourt is asked to review. When the omission of the statement of questions presented is combined with the lack of any organized and developed arguments, it becomes clear that appellant’s brief is insufficient to allow us to conduct meaningful judicial review.

Smathers v. Smathers, 670 A.2d 1159, 1160 (Pa. Super. 1996) (citations

omitted).

Even a liberal reading of Appellant’s brief fails to remedy these

significant deficiencies. We emphasize that Appellant's “pro se status does

not entitle [him] to any particular advantage because of his . . . lack of legal

training[, and] pro se litigants are bound by our procedural rules.” Deek Inv.,

L.P. v. Murray, 157 A.3d 491, 494 (Pa. Super. 2017) (citations & quotation

marks omitted). We have observed, when a pro se litigant represents

themselves in a legal proceeding, they must, “to some reasonable extent,

assume the risk that [their] lack of expertise and legal training will prove

[their] undoing.” Elliot-Greenleaf, 255 A.3d at 542 (citation omitted).

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Because we cannot discern any argument presented before us, we

conclude Appellant’s claims are waived on this basis as well. See Pa.R.A.P.

2119(a) (the argument section of an appellate brief must provide “discussion

and citation of authorities as are deemed pertinent.”); see In re R.D., 44

A.3d at 674 (“when defects in a brief impede our ability to conduct meaningful

appellate review, we may dismiss the appeal entirely or find certain issues to

be waived”); see Butler v. Illes, 747 A.2d 943, 944 (Pa. Super. 2000)

(“When issues are not properly raised and developed in briefs, when briefs are

wholly inadequate to present specific issues for review, a court will not

consider the merits thereof.”) (citation and internal quotation marks omitted).

Because Appellant failed to file a concise statement that conforms with

Rule 1925(b), and because his appellate brief does not comply with the rules

of appellate procedure, we affirm Appellant’s judgment of sentence.9

Judgment of sentence affirmed.

President Judge Emeritus Stevens joins this memorandum.

Judge Kunselman files a concurring statement.

9We remind the trial court to dispose of Appellant’s outstanding pro se motions.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 06/29/2023

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