J-S34018-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellee

                        v.

    ALIQUE DAJON JONES

                             Appellant               No. 1603 WDA 2017


        Appeal from the Judgment of Sentence entered October 9, 2017
                  In the Court of Common Pleas of Erie County
              Criminal Division at No.: CP-25-CR-0001254-2017


    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellee

                        v.

    ALIQUE DAJON JONES

                             Appellant               No. 1606 WDA 2017


        Appeal from the Judgments of Sentence entered October 9, 2017
                  In the Court of Common Pleas of Erie County
               Criminal Division at No.: CP-25-CR-0000986-2017


BEFORE: BOWES, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                          FILED AUGUST 23, 2018

        Appellant Alique Dajon Jones appeals from the October 9, 2017

judgments of sentence entered in the Court of Common Pleas of Erie County

(“trial court”), following his jury convictions for possession with intent to

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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deliver (“PWID”) a controlled substance (marijuana) and possession of drug

paraphernalia (baggies) at docket number 0986-2017 (“First Case”),1 and

PWID a controlled substance (marijuana), possession of small amounts of

marijuana and two counts of possession of drug paraphernalia at docket

number 1254-2017 (“Second Case”).2 Upon review, we vacate and remand.

        Prior to trial on the foregoing charges, and while represented by

Attorney David G. Ridge, Appellant pro se filed an omnibus pretrial motion to

suppress evidence in the First Case on May 25, 2017.3 The following day, the

pretrial motion was forwarded to Attorney Ridge. On May 30, 2017, Attorney

Ridge filed a motion to withdraw, arguing that Appellant “was no longer

satisfied with [his] services and that [Appellant] did not want to be

represented by [him] any longer.” Motion to Withdraw, 5/30/17, at ¶ 3. On

May 31, 2017, without conducting a hearing, the trial court granted Attorney

Ridge’s motion to withdraw. Appellant proceeded pro se.

        On June 25, 2017, Appellant pro se filed a motion to suppress in the

Second Case. On August 1, 2017, nearly two months after Attorney Ridge

was permitted to withdraw from the case, the trial court conducted an on-the-

record Grazier4 hearing to determine whether Appellant intended to proceed
____________________________________________


1   35 P.S. § 780-113(a)(30) and (32).
2   35 P.S. § 780-113(a)(30), (31), and (32).
3Because Appellant was represented by Attorney Ridge, his pro se omnibus
motion was a legal nullity. See Commonwealth v. Ali, 10 A.3d 282 (Pa.
2010) (explaining hybrid representation is not permitted).
4   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).


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pro se. Following the hearing, the trial court permitted Appellant to represent

himself at trial. On August 18, 2017, without conducting a hearing, the trial

court denied Appellant’s June 25, 2017 suppression motion. On August 23,

2017, the trial court amended its order denying the suppression motion to the

extent the order referred to Appellant’s possession of a loaded handgun.

Following a consolidated trial, a jury found Appellant guilty of multiple drug

offenses in both cases and the trial court sentenced him to, inter alia, an

aggregate term of 9 to 60 months’ incarceration.          Appellant filed post-

sentence motions, which the trial court denied. Appellant timely appealed to

this Court.   The trial court directed Appellant to file a Pa.R.A.P. 1925(b)

statement of errors complained of on appeal.         Appellant complied.     In

response, the trial court issued a Pa.R.A.P. 1925(a) opinion.

      On appeal, Appellant raises three issues for our review:

      [I.] Whether the trial court erred in denying Appellant’s motion to
      sever?

      [II.] Whether the trial court erred in denying Appellant’s [June 25,
      2017] pretrial motion to suppress evidence?

      [III.] Whether the Commonwealth presented sufficient evidence
      to establish Appellant’s guilt beyond a reasonable doubt of
      possession with intent to deliver and possession of drug
      paraphernalia?

Appellant’s Brief at 3 (unnecessary capitalizations omitted).

      At the outset, we note that the trial court here failed to conduct a

suppression hearing as required by Pa.R.Crim.P. 581, which provides in

relevant part:




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      (E) A hearing shall be scheduled in accordance with Rule
      577 (Procedures Following Filing of Motion). A hearing may be
      either prior to or at trial, and shall afford the attorney for the
      Commonwealth a reasonable opportunity for investigation. The
      judge shall enter such interim order as may be appropriate in the
      interests of justice and the expeditious disposition of criminal
      cases.

      (F) The hearing, either before or at trial, ordinarily shall be held
      in open court. The hearing shall be held outside the presence of
      the jury. In all cases, the court may make such order concerning
      publicity of the proceedings as it deems appropriate under Rules
      110 and 111.

      (G) A record shall be made of all evidence adduced at the hearing.

      (H) The Commonwealth shall have the burden of going forward
      with the evidence and of establishing that the challenged evidence
      was not obtained in violation of the defendant’s rights. The
      defendant may testify at such hearing, and if the defendant does
      testify, the defendant does not thereby waive the right to remain
      silent during trial.

      (I) At the conclusion of the hearing, the judge shall enter on the
      record a statement of findings of fact and conclusions of law as to
      whether the evidence was obtained in violation of the defendant's
      rights, or in violation of these rules or any statute, and shall make
      an order granting or denying the relief sought.


Pa.R.Crim.P. 581(E), (F), and (G) (emphasis added). Because no suppression

hearing was held, the trial court was unable to make the necessary findings

of fact or conclusions of law as to whether the challenged evidence was

obtained in violation of Appellant’s rights. Moreover, for us, as an appellate

court, to entertain a suppression issue, it is vitally important that the trial

court not only hold a suppression hearing, but also render necessary findings

of fact and conclusions of law, as our scope of review is limited to the evidence

presented at the suppression hearing. In the interest of L.J., 79 A.3d 1073,

1088-89 (Pa. 2013).     Given the trial court’s failure to hold a suppression




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hearing, we are constrained to vacate Appellant’s judgments of sentence and

remand this case to the trial court to conduct a proper suppression hearing.

      We also are troubled by the trial court’s failure to hold a Grazier hearing

prior to granting Attorney Ridge’s motion to withdraw. In Commonwealth

v. Johnson, 158 A.3d 117 (Pa. Super. 2017), we recently noted that “a

suppression hearing constituted a critical stage requiring judicial inquiry into

the defendant’s right to counsel.”     Johnson, 158 A.3d at 122 (citations

omitted).   Thus, on remand, we remind the trial court to hold a Grazier

hearing prior to conducting the suppression hearing.        Appellant must be

afforded an opportunity to be represented by counsel and, if he so chooses,

his new counsel must be given an opportunity to amend the suppression

motions. See Commonwealth v. Payson, 723 A.2d 695, 700 (Pa. Super.

1999) (“Both the right to counsel and the right to self-representation are

guaranteed by the Sixth Amendment to the United States Constitution and by

Article I, Section 9 of the Pennsylvania Constitution.     Deprivation of these

rights can never be harmless.”).

      Judgments of sentence vacated.          Cases remanded.        Jurisdiction

relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

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Date: 8/23/2018




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