Com. v. Smith, Z.

• Court: Superior Court of Pennsylvania
• Decided: May 3, 2024
• Docket: 296 WDA 2023
• Status: Unpublished

Opinion

J-A06024-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ZAIRE MALACHI SMITH : : Appellant : No. 296 WDA 2023

Appeal from the Judgment of Sentence Entered October 25, 2022 In the Court of Common Pleas of Cambria County Criminal Division at No(s): CP-11-CR-0000361-2022

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and BECK, J.

MEMORANDUM BY PANELLA, P.J.E.: FILED: May 3, 2024

Zaire Malachi Smith appeals pro se from his judgment of sentence for

person prohibited from possessing a firearm pursuant to 18 Pa. C.S.A. § 6105.

He raises or attempts to raise multiple claims of ineffective assistance of

counsel, as well as claims that the trial court abused its discretion by refusing

to grant a continuance, that the verdict was not supported by sufficient

evidence and that several of his constitutional rights were violated. As we

conclude these claims do not entitle Smith to relief, we affirm.

Only a general recitation of the facts is necessary to resolve the issues

brought by Smith on appeal. Smith was convicted of the manufacture, delivery

or possession of a controlled substance with the intent to manufacture or

deliver, a felony, in 2017. See N.T. Jury Trial, 10/12/2022, at 58. On January

18, 2022, police executed a search warrant at a residence in Johnstown. See J-A06024-24

id. at 35. During the search, the police discovered an ID card belonging to

Smith and a shotgun in a bedroom in the residence. See id. at 36. Smith was

arrested and charged with person prohibited from possessing a firearm.

On August 4, 2022, Smith pleaded guilty to person prohibited from

possessing a firearm. The trial court ordered a pre-sentence investigation

(“PSI”) report and scheduled sentencing for September 21, 2022. At the

sentencing hearing, it was noted that the PSI showed that Smith’s prior record

score was a “3”, resulting in a standard range minimum sentence of 42 to 54

months. A probation officer from the Cambria County Probation Department

testified how Smith’s prior record score had been calculated as a “3”. See

N.T., 11/21/2022, at 4-6.

Smith maintained that he had entered the plea under the belief that his

prior record score was a “2” and that the plea deal included an agreed-upon

sentence of 36 to 72 months’ imprisonment. See id. at 7, 9. In light of these

circumstances, the court vacated the guilty plea, and scheduled the matter

for a jury trial. See id. at 8-9.

Following a one-day trial, the jury convicted Smith of person prohibited

from possessing a firearm. The court sentenced him to 54 to 108 months’

incarceration on October 25, 2022. Smith’s trial counsel filed a timely post-

sentence motion on November 3, 2022.

On March 3, 2023, while the post-sentence motion was still pending,

Smith filed a pro se notice of appeal. Trial counsel filed an application to

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withdraw as counsel. The trial court held a hearing on the application on March

28, 2023, at which time Smith stated he wished to proceed with his appeal

pro se and that he was waiving his right to counsel. See N.T., 3/28/2023, at

2. The trial court granted counsel’s application to withdraw. The following day,

on March 29, 2023, the trial court entered an order denying Smith’s post-

sentence motion by operation of law.

The trial court ordered Smith to file a statement of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(b), and Smith complied. In its

responsive opinion, the trial court found Smith could not raise his

ineffectiveness claims on direct appeal and had waived the remainder of his

issues. Smith now raises these four issues for our review:

I. Ineffective assistance of trial counsel[’]s failure to interview/investigate [Smith’s] case prior to forcing [Smith] to accept a guilty plea; (2) Adequately prepare [Smith] for trial; (3) Abandonment of counsel where counsel failed to file [Smith’s] initial appeal; and (4) [Smith’s] motion for Rule 600 was never addressed or argued by counsel.

II. Abuse of discretion where the court failed to grant the defendant a continuance after [Smith] was ambushed by the prosecution[’]s presentation of a change in [Smith’s] prior record score which affected the deal that he was initially offered and his request that counsel be removed due to his ineffectiveness.

III. Sufficiency of evidence did not support the jury’s finding of a conviction.

IV. Violation of [Smith’s] constitutional rights under Article I, Section 9, and Article 5, Section 9 of Pennsylvania’s Constitution; the Fourth, Sixth, and Fourteenth Amendments of the United States Constitution.

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Appellant’s Brief at 7.

Before we address Smith’s claims, we must determine whether the

timing of Smith’s notice of appeal implicates our jurisdiction. See

Commonwealth v. Parker, 173 A.3d 294, 296 (Pa. Super. 2017) (stating

that appellate courts may raise jurisdictional issues sua sponte). As noted

above, Smith filed his pro se notice of appeal before the trial court had entered

an order resolving his post-sentence motion. Under Pa.R.Crim.P. 720(A)(2),

an appellant may not file a direct appeal while his post-sentence motion is still

pending. However, this Court has previously found that if a notice of appeal is

filed prematurely, and the trial court subsequently denies the post-sentence

motion, this Court will treat the appellant’s premature notice of appeal as

having been properly filed after the entry of the order denying the post-

sentence motion. See Commonwealth v. Ratushny, 17 A.3d 1269, 1271

n.4 (Pa. Super. 2011). We do so here and find that Smith’s appeal is ripe for

review.

In his first claim, Smith challenges trial counsel’s representation on

several fronts. These claims do not offer any basis for relief.

As the trial court pointed out, an appellant can generally only raise

ineffectiveness claims on collateral appeal. See Commonwealth v. Holmes,

79 A.3d 562, 576 (Pa. 2013). Our Supreme Court has delineated three

exceptions to this general deferral rule. See Commonwealth v. Delgros,

183 A.3d 352, 360-361 (Pa. 2018). The first exception allows trial courts to

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entertain ineffectiveness claims on direct appeal in extraordinary

circumstances, while the second exception allows trial courts to address

ineffectiveness claims on direct appeal if there is good cause shown and the

defendant expressly waives his entitlement to seek collateral review of his

claim. See id. at 360. The third exception requires trial courts to consider

ineffectiveness claims on direct appeal where the defendant is statutorily

precluded from obtaining subsequent collateral review. See id. at 361.

Here, as the Commonwealth notes, Smith does not address the general

deferral rule or its three recognized exceptions, much less argue that the trial

court erred by finding there were no exceptions applicable to Smith’s

circumstances. Despite Smith’s failure in this regard, we reviewed the certified

record and note that we fail to see how any of these exceptions to the general

deferral rule apply here. Therefore, Smith must, as the trial court concluded,

wait to raise his ineffectiveness claims in any collateral appeal he may file.

In his second claim, Smith argues the trial court erred by denying his

motion for a continuance. For the following reasons, this claim fails.

In rejecting this issue, the trial court found that Smith failed to identify

the place in the record where he requested a continuance or where the court

denied any such request. Therefore, the court did not address the merits of

the issue. Smith now essentially argues in his appellate brief that he made an

oral motion for a continuance at the “opening of the proceedings,” but does

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not cite any relevant page numbers in the notes of testimony. Appellant’s Brief

at 17.

Although it is an appellant’s burden to point to the place in the record

where he preserved his issue, see Pa.R.A.P. 2119(e), and Smith has not

properly done so here, our independent review of the notes of testimony

reveal that there was an oral motion for a continuance and a denial of that

motion. See N.T. Jury Trial, 10/12/2022, at 3, 4. Notwithstanding this, Smith

completely fails to cogently argue how the trial court abused its discretion by

denying him a continuance. Smith now baldly claims he needed the

continuance for “him and his [trial counsel] to properly prepare for trial,” but

then turns around and alleges he needed the continuance to secure his counsel

of choice. Appellant’s Brief at 18. No explanation or justification is provided

by Smith as to the reasons these considerations were not resolved prior to

trial. Smith’s undeveloped and inconsistent claim, even if properly preserved,

does not warrant any relief. See Commonwealth v. Love, 896 A.2d 1276,

1287 (Pa. Super. 2006) (stating that claims that are not sufficiently developed

are waived).

Inside this claim, Smith also makes an argument that the court

demonstrated bias against him at a sidebar during closing arguments. This

claim is waived for multiple reasons. First, it is not in Smith’s brief’s statement

of the questions involved section, in violation of Pa.R.A.P. 2116(a). It is also

not included in the heading of Smith’s argument, in violation of Pa.R.A.P.

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2119(a). Further, Smith offers no legal authority in support of this claim, also

in violation of Pa.R.A.P. 2119(a). We recognize Smith is pro se, but even pro

se appellants are required to follow our Rules of Appellate Procedure. See

Commonwealth v. Vurimindi, 200 A.3d 1031, 1037-1038 (Pa. Super.

2018). Smith has not done so here.

In his third issue, Smith argues the evidence was insufficient to support

his conviction. The trial court found, and the Commonwealth argues, that this

sufficiency challenge is also waived. We agree.

In addressing this issue, the trial court first noted that Smith made only

a boilerplate sufficiency claim in his Rule 1925(b) statement without

identifying which element of his convicted offense he was challenging. This

Court has clearly held that a sufficiency claim is waived if the Rule 1925(b)

statement fails to articulate the specific elements of the crime which the

appellant is challenging as having been insufficiently proven. See

Commonwealth v. Williams, 959 A.2d 1252, 1257-1258 (Pa. Super. 2008).

Nonetheless, the trial court found that Smith had also waived the issue

because he had not properly ordered a transcript of the jury trial, as was his

burden to do. While we certainly agree with the trial court that it is the

appellant’s burden to ensure the necessary transcripts are part of the certified

record, we note that the notes of testimony from the jury trial were included

in the certified record sent to this Court.

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Although the record contains the relevant transcript, we nonetheless

find that Smith has waived this issue for failure to sufficiently develop it. As

was the case in his Rule 1925(b) statement, Smith does not specify which

element of person prohibited from possessing a firearm he is arguing the

Commonwealth did not prove. He does not even set out the elements

necessary to sustain a conviction for person prohibited from possessing a

firearm. Smith does generally mention possession, but he does not attempt

to explain how the Commonwealth failed to prove possession here. As the

Commonwealth argues:

Smith does not identify in anything approaching a legal analysis how his unsubstantiated sufficiency claims merit relief. There is no discussion about which element(s) the Commonwealth failed to prove. The Commonwealth cannot adequately respond to such a dearth of argument. Smith inexplicably argues that upon granting his appeal in this regard, the case be remanded so that new counsel can “properly address this claim.” He does not cite any authority that supports such a remedy when a sufficiency claim is raised on appeal.

Commonwealth’s Brief at 11 (citation omitted).

We agree with the Commonwealth that this issue is waived. Not only

does Smith’s failure to develop his claim preclude this Court from engaging in

any meaningful review of his claim, but Smith completely fails to explain how

he is entitled to the relief requested. See Love, 896 A.2d at 1287. Therefore,

no relief is due.

In his final claim, Smith maintains his constitutional rights were violated

“by the actions of the police, the Commonwealth, [his trial counsel] and the

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Court.” Appellant’s Brief at 22. We are constrained to find, as the trial court

did, that this final claim is also waived.

The trial court found that Smith failed to adequately raise this issue in

his Rule 1925(b) statement:

Smith has failed to specify which right or rights were violated and further has failed to explain how those rights were violated by the actions or lack of action by the Court or counsel. This lack of specificity makes review of these claims impossible and as such Smith has waived this issue on appeal.

Trial Court Opinion, 5/24/2023, at 9.

We agree with the trial court that Smith has waived his constitutional

challenges for this reason alone. See Commonwealth v. Lord, 719 A.2d

306, 308 (Pa. 1998) (stating that issues not properly raised in the Rule

1925(b) statement are waived); Pa.R.A.P. 1925(b)(4)(ii), (vii).

We also agree with the Commonwealth that Smith has waived his

constitutional challenges because, although Smith purports to raise violations

of several of his constitutional rights, he fails to divide his argument in

compliance with Pa.R.A.P. 2119(a), which mandates:

[t]he argument shall be divided into as many parts as there are questions to be argued; and shall have at the head of each part … the particular point treated therein, followed by such discussion and citation of authorities as are deemed pertinent.

Pa.R.A.P. 2119(a).

Instead, Smith offers an argument under a single heading, where he

makes several boilerplate assertions of constitutional infringements, including

that the search of his home was illegal, the search warrant for his home was

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not supported by probable cause, and the trial court was biased and acted as

an advocate for the Commonwealth during a sidebar discussion during closing

arguments. However, Smith fails to offer a coherent argument substantiating

any of these claims or establishing how they entitle him to relief. He also, at

times, veers back into challenging trial counsel’s representation. As the

Commonwealth asserts, “Smith’s arguments are either misdirected back to

collateral review issues or simply broad and boilerplate.” Commonwealth’s

Brief at 13. We agree with both the trial court and the Commonwealth that

Smith’s constitutional claims are waived, see Love, 896 A.2d at 1287, and

that Smith has not raised any claims that entitle him to relief.

Judgment of sentence affirmed.

DATE: 05/03/2024

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