J. S72020/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                                           :
                    v.                     :
                                           :
JASON EDWARD EDDINGTON,                    :
                                           :
                         APPELLANT         :
                                           :
                                           :     No. 210 MDA 2016

            Appeal from the Judgment of Sentence October 20, 2014
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0007170-2012
                                          CP-67-CR-0007172-2012
                                          CP-67-CR-0007173-2012
                                          CP-67-CR-0008156-2012

BEFORE: GANTMAN, P.J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY DUBOW, J.:                              FILED APRIL 26, 2017

        Jason Edward Eddington (“Appellant”) appeals from the Judgment of

Sentence entered by the York County Court of Common Pleas after a jury

convicted him of multiple offenses committed as part of a tree trimming and

roofing scam. Appellant’s counsel, Christopher D. Moore, Esq., has filed an

Anders-McClendon1 Brief and a Petition to Withdraw as Counsel.          We

affirm the Judgment of Sentence and grant counsel’s Petition to Withdraw.




*
    Retired Senior Judge assigned to the Superior Court.
1
  Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).
J. S72020/16


        The certified record contains the following facts and procedural history.

In July 2012 Appellant, using the alias “Frank Winans,”2 and two co-

conspirators, ran a tree trimming and roofing scam under the company

name of Above the Rest Tree Service targeting elderly women who appeared

to be living alone.    Appellant would frequently provide proposals or have

discussions with the victims about work he and his co-conspirators had

spotted as allegedly needing done. The co-conspirators would frequently do

the physical labor, and Appellant would act as the supervisor/administrator,

occasionally assisting in the physical work.      When the job was allegedly

finished, Appellant and his co-conspirators intimidated the victims into

paying between $1,000 and $6,000 for low-quality, minimal work, insisting

that the check be written out to Frank Winans, the name Appellant gave

them as his own.      In one case, Appellant gave the victim an estimate of

$750 to trim a tree, but then told her they did some additional work on her

chimney while they were up there, and presented her with a bill for $4,000.

She paid $4,000 out of fear that the large men standing in her kitchen with

her would hurt her if she did not pay the full amount.         In another case,

Appellant would not give an estimate, and when the work was done, he

charged the victim $5,000 and one of his co-defendants drove her to the

bank to get the payment in cash.


2
    Appellant also used the alias “Mark Cummins.”




                                       -2-
J. S72020/16


        The police arrested Appellant and his co-defendants on July 25, 2012

at a bank when they went to cash another one of their victim’s checks.

        The Commonwealth filed the first criminal complaint on July 26, 2012,

in case CP-67-CR-00007173; the second and third were filed at CP-67-CR-

00007170 and 7172 on August 27, 2012; and the fourth at CP-67-CR-

00008156 on September 11, 2012. The Commonwealth charged Appellant

with    17   offenses,   including   multiple   counts   of   Theft   by   Deception,

Conspiracy, Home Improvement Fraud, and Deceptive Business Practices.3

On January 2, 2013, the court consolidated the cases for trial.

        Appellant filed numerous counseled4 and pro se pre-trial motions,

sometimes serially in quadruplicate despite the consolidation, including

Motions to Suppress, Motions for Removal of Counsel, and Rule 600

Motions.5     As discussed infra, the trial court denied Appellant’s Rule 600

Motions after a hearing on October 29, 2013. See N.T. Hearing, 10/29/13,

at 12, 24-25; Order, dated 10/29/13, at 3.          Appellant ultimately chose to

represent himself at trial, with assistance from stand-by counsel (his third

appointed attorney). See N.T. Hearing at 13-14; Order at 2-3.


3
  It was later determined that at the time of his arrest, Appellant had
outstanding bench warrants from two other states, one of which was in the
name of “Frank Winans.”
4
    The public defenders’ office initially represented Appellant.
5
 The court clerk forwarded all documents filed pro se to counsel, although
many of them are also included in the certified record.



                                        -3-
J. S72020/16


      Appellant’s jury trial lasted from September 3 to September 5, 2014,

at which investigating detectives, tree experts, and the victims, among

others, testified on behalf of the Commonwealth.        Appellant presented

testimony from the arresting and investigating officers, an elderly man who

testified that he was married to one of the victims and was himself

incapacitated, and a private investigator, who had sent handwriting samples

to an expert at the behest of Appellant. The jury found Appellant guilty of

four counts of theft by deception, four counts of conspiracy to commit theft

by deception, three counts of deceptive business practices, and one count of

home improvement fraud.6,7 The court ordered a pre-sentence investigation

(“PSI”).

      Appellant filed a pro se Notice of Appeal on September 12, 2014,

which he subsequently withdrew as prematurely filed.     On September 19,

2014, the court appointed counsel at Appellant’s request.    On October 20,

2014, the court noted, inter alia, its review of the PSI report and sentenced

Appellant to consecutive sentences for an aggregate term of 3 to 16 years’



6
  18 Pa.C.S. § 3922(a)(1); 18 Pa.C.S. § 903(a); 18 Pa.C.S. § 4107(a)(2); 73
P.S. § 517.8(a)(3), respectively.
7
  In addition, during trial, the court found Appellant in contempt of court
three times, for which the court sentenced him to two consecutive six-month
terms of incarceration and a $1,000 fine. The two terms were to run
consecutive to the sentences imposed for his criminal convictions. The
contempt convictions are not part of this appeal.




                                    -4-
J. S72020/16


incarceration. The court also ordered restitution as part of the sentences. 8

On December 1, 2014, upon Appellant’s Motion for Reconsideration, the

court amended the sentences to an aggregate of 24 to 84 months’

incarceration, and to include RRRI eligibility.9

      Appellant filed a counseled Notice of Appeal on December 4, 2014.

Counsel filed a Pa.R.A.P. 1925(b) Statement; Appellant submitted a 17-page

pro se letter indicating 17 issues he wanted raised in his appeal; the trial

court forwarded that letter to counsel.10       Ultimately, this Court dismissed

that appeal for failure to file an appellate brief.

      On December 23, 2015, Appellant filed a pro se letter seeking

reinstatement of his appeal rights nunc pro tunc, which the trial court


8
  In three of the four cases, the trial court ordered Appellant to pay his pro
rata share of restitution.        In case number 7170, however, the
Commonwealth sought $2,000 only from Appellant, solely in connection with
count one, Home Improvement Fraud - Misrepresents or Conceals Contractor
Identifying Information, 73 P.S. § 517.8(a)(3).        See N.T. Sentencing,
10/20/14, at 21; Court Commitment, dated 12/15/14, at 4.
9
  The trial court ordered the following terms of incarceration: On CP-67-CR-
0007172-2012, 12 months; on CP-67-CR-0007173-2012, a consecutive
term of 12 to 24 months; on CP-67-CR-0007170-2012, 12 to 84 months to
run concurrent to CP-67-CR-0008156-2012; on CP-67-CR-8156-2012, 12 to
24 months to run concurrent to nos. 7173, 7172, and 7170. See Sentence
Reconsideration Orders.
10
    When that counsel refused to raise issues Appellant had deemed
meritorious, Appellant filed a pro se petition in this Court alleging ineffective
assistance of appellate counsel. We remanded with instructions, and the
trial court held a Grazier hearing in which Appellant stated he did not want
to proceed pro se and would continue with his appellate counsel. Appellate
counsel failed to file a brief, however, and this Court dismissed the appeal.



                                       -5-
J. S72020/16


granted on January 8, 2016.          The court appointed current counsel,

Christopher D. Moore, Esq.

      On February 2, 2016, Attorney Moore filed a Notice of Appeal.          On

March 16, 2016, after the grant of an extension, counsel filed a Pa.R.A.P.

1925(b) Statement.     On March 30, 2016, the trial court filed a Pa.R.A.P.

1925(a) Opinion.

      In July 2016, Attorney Moore filed a Motion to Withdraw as Counsel

and what purported to be an Anders-McClendon Brief.            Appellant filed a

response, referencing a letter he had allegedly sent to the trial court and to

Attorney Moore that raised “numerous relevant issues for direct appeal.”

See Appellant’s Response to Anders-McClendon Brief, filed 7/27/16.

Appellant did not annex a copy of that letter to his Response.

      On September 29, 2016, Appellant filed pro se with this Court a

document entitled “Motion for Withdrawal of Counsel Inter Alia Ineffective

Assistance of Counsel,” requesting that he be allowed to proceed pro se and

to file an Amended Pa.R.A.P. 1925(b) Statement and an “Extensive All-

inclusive Detailed Appellate Brief, Pro-se.” Motion for Withdrawal of Counsel

Inter Alia Ineffective Assistance of Counsel, filed 9/29/16.

      On January 18, 2017, we filed a memorandum decision denying both

Appellant’s Motion and counsel’s Motion to Withdraw, and directing counsel




                                     -6-
J. S72020/16


to file a proper Anders brief.11 See Commonwealth v. Eddington, 210

MDA 2016 (Pa. Super. filed Jan. 18, 2017) (finding counsel’s Brief deficient).

On March 13, 2017, Counsel filed a Motion to Withdraw and a new Anders

Brief, which are now before us.

      The Anders Brief raises the following 12 issues on Appellant’s behalf:

      WHETHER THE COURT ABUSED ITS DISCRETION IN THE
      FOLLOWING ISSUES:

        1. Judge failing to recuse self as a witness was a neighbor of
        the Judge 20 years ago;

        2. Failure to allow handwriting expert to testify as witness;

        3. Judge referring to defendant as noise machine in front of
        the jury;

        4. Judge failing to allow defendant to submit his legal
        documents as handwriting samples to the jury;

        5. Judge failure to allow defendant to call correctional officer
        regarding defendant’s handwriting;

        6. Judge failing to instruct jury on contract law;

        7. Judge ordering restitution to witness who testified she was
        not owed any money;

        8. Ruling on Rule 600 issue;

        9. Brady violation regarding bank video;


11
  Appellant thereafter filed two pro se letters requesting that we not grant
counsel any extensions of time to file, and further requesting that, because
he filed a Petition for Writ of Habeas Corpus in the federal district court that
we “relinquish jurisdiction immediately” to that court. See Appellant’s
Letter, dated 2/23/17.




                                     -7-
J. S72020/16


      10.    Failure to allow subpoena of Officer Davenport;

      11.    Unlawful seizure by police of signature of Frank Winans;

      12. Failure to allow defendant to explain theory of the case in
      closing argument.

See Anders Brief at 4-5 (numbered for clarity); Pa.R.A.P. 1925(b)

Statement.

      On April 11, 2017, Appellant filed a 95-page Response to counsel’s

Anders Brief (“Response Brief”) setting forth extensive and repetitive

arguments with respect to the above issues, in addition to directing our

attention to his recently-filed federal habeas corpus petition.         He also

challenges the discretionary aspects of his sentence.12,   13



Anders Brief

      “When presented with an Anders brief, this Court may not review the

merits of the underlying issues without first passing on the request to


12
    Appellant also challenges the sentences imposed as a result of his
contempt convictions and the trial court’s denial of his Motion to Dismiss the
civil forfeiture Petition filed by the Commonwealth. See Appellant’s Response
Brief at 59-62. Neither the contempt sentences nor the disposition of the
civil forfeiture Petition is part of this appeal. We, thus, decline to address
these issues.
13
   Appellant also claims that each of the judges who had been involved at
each stage of his case abused their discretion, misapplied the law, made
“reckless, biased, prejudicial, malicious, vindictive rulings, decisions, and
judgments out of retaliation against this Petitioner [sic].” Response Brief at
64. Appellant presents a self-serving, repetitive, irrational, vituperative,
nearly incomprehensible argument incorporating each of the other
arguments he made on all of the other issues raised. His assertions are
unsupported by the record and, at best, meritless.



                                     -8-
J. S72020/16


withdraw.”    Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.

2010) (citation omitted). In order for counsel to withdraw from an appeal

pursuant to Anders, our Supreme Court has determined that counsel must

meet certain requirements, including:

      (1)    provide a summary of the procedural history and facts,
             with citations to the record;

      (2)    refer to anything in the record that counsel believes
             arguably supports the appeal;

      (3)    set forth counsel's conclusion that the appeal is frivolous;
             and

      (4)    state counsel's reasons for concluding that the appeal is
             frivolous. Counsel should articulate the relevant facts of
             record, controlling case law, and/or statutes on point that
             have led to the conclusion that the appeal is frivolous.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

      Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super.

2005), and its progeny, counsel seeking to withdraw on direct appeal must

also meet the following obligations to his or her client:

      Counsel also must provide a copy of the Anders brief to his
      client. Attending the brief must be a letter that advises the
      client of his right to: (1) retain new counsel to pursue the
      appeal; (2) proceed pro se on appeal; or (3) raise any points
      that the appellant deems worthy of the court’s attention in
      addition to the points raised by counsel in the Anders brief.

Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (internal

quotation marks and citation omitted).       “Once counsel has satisfied the

above requirements, it is then this Court’s duty to conduct its own review of

the trial court’s proceedings and render an independent judgment as to


                                      -9-
J. S72020/16


whether the appeal is, in fact, wholly frivolous.”          Commonwealth v.

Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc). Further, “this

Court must conduct an independent review of the record to discern if there

are   any   additional,   non-frivolous    issues     overlooked   by   counsel.”

Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015)

(footnote and citation omitted).

      In this appeal, we conclude that counsel’s Anders Brief substantially

complies with the requirements of Santiago. First, counsel has provided a

procedural and factual summary of the case with references to the record.

Second, counsel advances relevant portions of the record that arguably

support Appellant’s claims on appeal.          Third, counsel concludes that the

instant appeal is wholly frivolous.    Lastly, counsel has complied with the

requirements set forth in Millisock. See Letter from Counsel to Appellant,

dated 3/13/17. As a result, we proceed to our independent review to

ascertain if the appeal is indeed wholly frivolous.

Issue 1 - Recusal

      In his first issue, Appellant avers that the trial court should have

recused itself or declared a mistrial because the judge and a witness/victim

had been neighbors 22 years ago. We find this issue waived.

      In his Pa.R.A.P. 1925(b) Statement, Appellant asserted that it was a

juror, not a witness, who had been a neighbor of the trial court. See

Pa.R.A.P. 1925(b) Statement, filed 3/16/16. In the Anders Brief, counsel



                                      - 10 -
J. S72020/16


reframes the issue as involving a witness/victim in one of the four cases, not

a juror.   Because Appellant failed to raise this first issue in his 1925(b)

Statement, it is waived.

      Moreover, even if it were not waived, we would conclude the issue is

without merit. Appellate courts presume judges are fair and competent. In

re Lokuta, 11 A.3d 427, 435 (Pa. 2011).

      A jurist's impartiality is called into question whenever there are
      factors or circumstances that may reasonably question the
      jurist's impartiality in the matter. There is no need to find actual
      prejudice, but rather, the appearance of prejudice is sufficient to
      warrant the grant of new proceedings.

Id. at 435-36 (internal quotation marks and citations omitted).

      The party requesting recusal has the burden to produce evidence

establishing bias, prejudice, or unfairness, which raises a substantial doubt

as to the jurist's ability to preside impartially. Arnold v. Arnold, 847 A.2d

674, 680 (Pa. Super. 2004).

      If the judge determines he or she can be impartial, the judge must

then decide “whether his or her continued involvement in the case creates

an appearance of impropriety and/or would tend to undermine public

confidence in the judiciary.”   Chadwick v. Caulfield, 834 A.2d 562, 571

(Pa. Super. 2003) (citations omitted).

      In the instant case, the following relevant exchange occurred just

before the start of trial:

      Prosecutor: There’s one minor issue that has been brought to
      my attention this morning. It’s on case 7170-2012. The victim


                                     - 11 -
J. S72020/16


     in that case is a woman named Ann Sheffer. She is here today.
     I actually brought her into the courtroom because she is my first
     witness this morning anyway. Ms. Sheffer informed me today, it
     actually hasn’t come up before but she wanted –

     Court: I know Ms. Sheffer.

     Prosecutor: Yes. She indicated to me that you were her
     neighbor like 20-some years ago.

     Court: Yeah. It’s a long time ago. Any objection, sir, to this
     witness testifying?

     Appellant: Actually, yes, sir. I mean, I don’t think it’s right
     that people should know each other involved in a trial.

     Court: I have not lived with her – or not lived next to her for
     probably 22 years.

     Appellant: Yes, sir.

     Court: And I think I might have run into her once with a hi.
     She told me – I could be wrong, Red Lion or something like that,
     but that I remember something in passing running into her. You
     know, I don’t know what to do then under the circumstances.
     Any suggestions?

     Prosecutor: Your Honor, given that it was more than 20 years
     ago, I mean, I am for one satisfied the Court can be fair and
     impartial.

     Court: Yeah, I mean, I can.

     Prosecutor: It’s not the Court that makes the findings of fact in
     any event. I don’t see any reason why she wouldn’t be treated
     like any of the other vicitms.

     Court: Yeah. So what is your position?

     Appellant: Well, like I said, I have spoken my position. I don’t
     think it’s right [or] proper, but then again, I mean, I’ve been
     waiting 25 months to get to trial. I can’t see not being – I can’t
     see being denied my right to trial now at this point after it’s
     taken so long to get here.


                                   - 12 -
J. S72020/16



      Court: No, I know.       But you’re the person who is having the
      objection.

      Appellant: Yes, sir, and I don’ [sic] think it is right at all.

      Court: Okay. But what is the remedy you are seeking? Great.
      You don’t think it’s right –

      Appellant: What remedy is there: What options id [sic] there
      for a remedy sir?

      Court: Have we started testimony in that case?

      Prosecutor: In that case?

      Court: Well, never mind. The jury’s impaneled. I am going to
      deny any motion that you might have which wasn’t actually
      made with specificity. I can be fair and impartial and I don’t
      think that someone living next door to someone 22 years ago
      would give the appearance of impropriety. So that is it.

      Appellant: Very well.

Notes of Testimony (“N.T.”) Trial, 9/4/14, at 237-39.

      Although Appellant expressed his discomfort with the judge’s prior

acquaintance with the victim/witness, any objection he had was to the

witness testifying.   He did not request the judge’s recusal, nor did he

“produce evidence establishing bias, prejudice[,] or unfairness which raises a

substantial doubt as to the jurist's ability to preside impartially.”   Arnold,

supra, at 680.    Moreover, we agree with the trial court that a neighborly

acquaintanceship 22 years in the past does not support a conclusion that

there is an appearance of impropriety.         Appellant’s first issue is, thus,

without merit.



                                      - 13 -
J. S72020/16


Issue 2 – Handwriting Expert

      In his second issue, Appellant claims that the trial court abused its

discretion by failing to allow his handwriting expert to testify regarding the

signature of “Frank Winans” on the back of a business card. Appellant had

requested and was granted leave to hire a handwriting expert. The expert

provided an opinion to Appellant’s then-counsel, and counsel informed the

Commonwealth nearly a year before trial that it would not be calling that

individual at trial. N.T. Hearing, 10/23/13, at 5.

      We review the trial court's evidentiary rulings for an abuse of

discretion.   Commonwealth v. Tyack, 128 A.3d 254, 257 (Pa. Super.

2015) (citation omitted).

      “In determining the admissibility of evidence, the trial court must

decide whether the evidence is relevant and, if so, whether its probative

value outweighs its prejudicial effect.” Commonwealth v. Hawk, 709 A.2d

373, 376 (Pa. 1998).

      Evidence is relevant if it logically tends to establish a material
      fact in the case, tends to make a fact at issue more or less
      probable, or supports a reasonable inference or presumption
      regarding the existence of a material fact. Evidence that merely
      advances an inference of a material fact may be admissible,
      even where the inference to be drawn stems only from human
      experience. Moreover, even in the case of expert testimony, to
      be relevant, evidence need not be conclusive.

Id., (internal quotation marks, brackets, and citations omitted).

      In Pennsylvania criminal cases, the accused is entitled to relief for an

erroneous ruling unless the court finds beyond a reasonable doubt that the


                                     - 14 -
J. S72020/16


error is harmless. Pa.R.E. 103 Comment (citing Commonwealth v. Story,

383 A.2d 155 (Pa. 1978)).

     In the instant case, Appellant had subpoenaed the Commonwealth’s

handwriting expert, John Gencavage.          Mr. Gencavage had looked at a

contract that Appellant had admitted to the investigating officer was in his

handwriting, and stated that the handwriting on the contract matched

Appellant’s. Appellant’s own handwriting expert, Gus Lesovich, had looked

at a signature of “Frank Winans” on the back of a business card and on a

proposal, but reached inconclusive results14 and did not compile a report.

     The following relevant exchange took place during trial:

     Appellant: And that’s my defense.           That was not me that
     signed the name Frank Winans.

     Court: But you admit that that proposal was written by you?

     Appellant: The job description itself was.

     Court: Okay.

     Appellant: But I didn’t know for who.

     Court: Why don’t you stipulate that that’s not Frank Winan’s
     signature?

     Prosecutor: I’m sorry? On the contract?

     Court: Yeah.


14
   See N.T., 9/3/14, at 85 (where stand-by defense counsel explains to the
court that he told Appellant that “the handwriting [Appellant] wants to
question, … it’s script and somewhat hurried handwriting, it’s different than
all the samples I have that are more careful [sic] presented[.]”).



                                    - 15 -
J. S72020/16


     Prosecutor: You mean the signature here?

     Court: Yeah.

     Prosecutor: It’s signed Frank Winans.

     Court: I understand. Apparently that name can be used by
     anyone who deems it appropriate including the Defendant.

     Prosecutor: Well, I mean the Defendant – we’ve already seen
     a driver’s license for Frank Winans with the Defendant’s picture
     on it.

     Court: All right. So we have – do you want to call both
     handwriting experts?

     Appellant: If at all possible.

     Court: Have they been subpoenaed?

     Stand-by Defense Counsel: Your Honor, Mr. Gencavage is
     under subpoena although he wasn’t on the second witness list
     that I got from [Appellant]. He is still under subpoena. Mr.
     Lesovich I’ve talked to.     He was the one that had the
     inconclusive report. I’ve talked to the Court about if we are
     going to pay him funds to come down and say he had an
     inconclusive report. I know in my past conversations with
     [Prosecutor], I imagine we could stipulate that he analyzed it
     and was not able to be conclusive. I don’t think his findings are
     in dispute. I know [Prosecutor] –

     Court: I think they might be in dispute by your client, although
     I don’t know why he would call an expert when he is in dispute
     with the expert. Also, I don’t know, is the handwriting expert
     paid for by the Commonwealth of Pennsylvania?

     Stand-by Defense Counsel: Yes.

     Court:     All right. You can’t call a second expert with an
     inconclusive report. Sir, think this through, why would you call
     an expert who says I can’t tell. Okay. But that’s just as likely
     that it is your handwriting is just as likely that it isn’t. So that
     does not hurt the Commonwealth at all because if it didn’t
     appear to be your handwriting he’d say that, but he is saying I


                                      - 16 -
J. S72020/16


      can’t tell which is the same thing as saying legally maybe.
      Okay. So you can’t call the second one. You can call the first
      one. Other than that expert and the medical testimony which
      we are going to have at 1:30, are there any other defenses you
      have to this case?

      Appellant: Yes, sir.        Actually that’s the reason I wanted the
      handwriting expert –

      Court: I don’t need to know the reason. I just need you to
      answer my question.

N.T., 9/4/14, at 314-319.

      In its Rule 1925(a) Opinion, the trial court stated:    “As this expert’s

opinion would not have helped the jury understand the evidence or

determine a fact in issue, we find no error in not permitting Appellant to call

this expert.” Trial Ct. Op. at 4-5.

      We note that evidence need not be conclusive to be relevant.

However, under the facts of this case, we agree that the expert’s testimony

— about his inability to conclude that the handwriting matched or did not

match other writings by “Frank Winans” — would not have assisted the jury

in determining a fact in issue.

      Moreover, in light of the plethora of evidence supporting Appellant’s

identification as the individual using the name “Frank Winans” during the

commission of the crimes, see N.T. at 69, 73, 103, 149, 201, 217, 333, and

368; and Appellant’s own acknowledgement that he had been using the

name “Frank Winans” as an alias since 2000, see N.T. at 120, we conclude

that Appellant was not prejudiced by the court’s ruling. Accordingly, the trial



                                       - 17 -
J. S72020/16


court did not abuse its discretion in declining Appellant’s request to present

Mr. Lesovich’s testimony.

Issue 3 – “Noise Machine”

      Appellant’s third issue raises a claim that the judge referred to

Appellant as a “noise machine” before excusing the jury for a break. Our

review of the transcript reveals that the judge did not refer to Appellant as a

“noise machine.”     Rather, upon a request from counsel to approach the

bench to discuss potential exhibits, the court said to the jury: “Rather than

have you listen to my noise machine any longer, I’m going to send you back.

You can take a break for 10 minutes.” N.T., 9/5/14, at 431-32. As the trial

court noted in its Rule 1925(a) Opinion, the reference to “noise machine”

referred to the background noise which the trial judge regularly turns on

during side bars. Appellant’s mischaracterization is, at best, disingenuous.

This issue is meritless.

Issue 4 – Prison handwriting samples

      In his fourth issue, Appellant challenges the trial court’s refusal to

allow Appellant to submit into evidence letters that he had written from

prison and filed with the court so the jury could compare his handwriting to

that which is contained on the various contracts and proposals and the one

business card submitted into evidence. The letters written from prison were

“voluminous” and included, as the prosecutor noted, “a series of accusations

about what’s going on in his case.” N.T. at 551.



                                    - 18 -
J. S72020/16


      As noted above, we review evidentiary rulings for an abuse of

discretion. Tyack, supra. Further, we note that evidence must be relevant

and admitted to prove a fact in issue.

      The “proponent [of evidence] must produce evidence sufficient to

support a finding that the item is what the proponent claims it is.” Pa.R.E.

901(a).   When there is a question of authenticity, a specimen used for

comparison must be authenticated.        Pa.R.E. 901(b)(3).   With respect to

handwriting evidence, it may be authenticated by “a nonexpert’s opinion

that handwriting is genuine, based on a familiarity with it that was not

acquired for the current litigation.” Pa.R.E. 901(b)(2).

      At trial, in response to Appellant’s request made immediately after

Appellant waived his right to testify, the following exchange occurred:

      Court: The rule allows a lay witness to discuss the issue of
      whether or not writings are and the same. That witness cannot
      have prepared his or her knowledge for purposes of the trial.
      They have to be familiar with your writing.

      In this case, we have no witness that has analyzed them, or is a
      lay witness who is familiar with your writing. To send those
      items out to the jury would allow them to engage in speculation
      to consider things that are beyond the scope of their expertise
      and I’m not going [to] allow it.
      ...
      Do you have any lay witnesses that are familiar with your
      writing?

      Appellant: I was going to say the CO at the jail. He’s very
      familiar with my handwriting because he – I give him stuff all the
      time, request slips, and everything.

      Court: Okay. What’s your response to that, Counsel?



                                    - 19 -
J. S72020/16


     Appellant: He’s very familiar with my handwriting.

     Prosecutor: Your Honor, it’s – I’m also concerned that the
     documents that he’s trying to get in – obviously I’m very familiar
     with Mr. Eddington’s voluminous correspondence, and usually it’s
     a series of – a series of accusations about what’s going on in his
     case, and sometimes he’s ready to go to trial and sometimes
     he’s not.

     I think another hurdle we have to cross here is I seriously doubt
     he can present any handwriting sample that’s appropriate to go
     back to the jury.

     Court: I think that we would need testimony from a lay witness
     who is familiar with your handwriting which familiarity came
     before these charges:

     Appellant: Before these charges:

     Court: Before these charges. So someone who is familiar with
     your handwriting before July 25, 2012.

     Appellant: Okay.

     Court: Do you have any witnesses?

     Appellant: No, sir . . . .

                                  ****
N.T., 9/5/14, at 550-52.

     In its Pa.R.A.P. 1925(a) Opinion, the court stated, “[t]here was no

witness testimony presented at trial in relation to these letters to help the

jury determine a fact at issue. Appellant did not have a witness who was

familiar with his handwriting, and familiar with his handwriting prior to the

charges filed in these cases, therefore, the trial judge properly denied this

request.” Trial Ct. Op. at 5. See also N.T. at 550-52.




                                    - 20 -
J. S72020/16


        We agree, and conclude that the trial court properly denied Appellant’s

request to admit his post-arrest writings.          Accordingly, this issue has no

merit.

Issues 5 and 10 – Correctional Officer Davenport

        In issues 5 and 10, Appellant avers the trial court erred in “fail[ing] to

allow    Appellant   to   call   a   correctional   officer   regarding   Appellant’s

handwriting.” Anders Brief at 4.

        As noted above, ”it appears Appellant did not have a witness ready to

testify but engaged in a dialogue discussing who could be a potential

witness.”    Trial Ct. Op. at 6.     Our review indicates that Appellant had not

subpoenaed the CO and, in fact, had not made any request of the court to

allow him to call the CO. Thus, it is a mischaracterization to state the court

“failed to allow” him to call a witness whom Appellant never actually asked

to call. These issues are without merit.

Issue 6 – Contract law

        Appellant next challenges the trial court’s denial of his request to enter

into evidence a document explaining what a civil contract is.

        The following exchange occurred at trial:

        Appellant: … Also, I have that I’d like to enter as evidence it is
        identity of party. It just basically states the law that where one
        contracts with an individual face-to-face, and intends to contract
        with that individual before him, the contract, if any, is made with
        that particular individual regardless of the name he assumed
        from the transaction.

        Court: Okay.


                                        - 21 -
J. S72020/16



      Appellant: That’s marked as Exhibit 40.

                                      ***
      Court: . . . I’m not going to give them an instruction on
      contract law under these situations. In many situations, you’ve
      been charged as a conspirator because of the various
      descriptions of the individuals who, on specific dates, actually
      physically dealt with the victims. There has been information
      that you were at each and every one of the job sites. So I’m
      going to deny that motion as well.

      In its Pa.R.A.P. 1925 Opinion, the trial court observed:

      The trial judge is the authority on determining   what law applies
      in any individual case. Here, the trial judge      determined that
      whatever contract law provision Appellant           requested was
      inapplicable and possibly in contradiction        to the criminal
      conspiracy law that would be charged[.]

Trial Ct. Op., at 6.

      In light of the fact that contract law was not relevant to the crimes

with which Appellant was charged, the court did not err in denying

Appellant’s request to admit a document explaining contract law.           See

Hawk, supra at 376 (stating “[e]vidence is relevant if it logically tends to

establish a material fact in the case”).     See also Theft by Deception, 18

Pa.C.S. § 3922; Deceptive Business Practices, 18 Pa.C.S. § 4107; Home

Improvement Fraud, 73. P.S. § 517.8 (defining elements of crimes charged).

      In addition, to the extent Appellant asserts that the trial court refused

to give a jury instruction pertaining to contract law, we conclude that

argument has no merit.




                                    - 22 -
J. S72020/16


      Our standard of review applicable to challenges to jury instructions is

well settled: we must review the jury charge as a whole to determine if it is

fair and complete. See Commonwealth v. Hawkins, 701 A.2d 492, 511

(Pa. 1997). A trial court has wide discretion in phrasing its jury instructions,

and “can choose its own wording so long as the law is clearly, adequately,

and accurately presented to the jury for its consideration.” Id., at 511. The

trial court commits an abuse of discretion only when there is an inaccurate

statement of the law. See id.

      In light of the fact that the crimes charged pertained to criminal

offenses and there was no evidence admitted regarding contract law, the

court properly denied Appellant’s request for a contract law instruction.

Issue 7 - Restitution

      In his next issue, Appellant avers that the trial court erred in ordering

that he pay $2,000 in restitution as part of his sentence in CP-67-CR-

0007170-2012 (“Case 7170”).15

      We note initially that the Anders Brief states this issue as trial court

error because of the “Judge ordering restitution to witness who testified she

was not owed any money.”        See Anders Brief at 29.      Counsel does not

indicate where in the transcript the victim so testified. Our thorough reading


15
  Case 7170 involved the victim, Ann Sheffer, giving Appellant a check for
$6,000 for minimal and incomplete work. The victim closed the checking
account, however, just as Appellant entered the bank to cash the check. He
was arrested at the bank. The check was never cashed.



                                     - 23 -
J. S72020/16


of the transcript indicates that there was no testimony from the victim in

Case 7170 that “she was not owed any money.”          On that basis alone, we

could find the issue to be meritless. We nonetheless address the issue as

part of our independent review.

      We are guided by the following principles in addressing challenges

pertaining to restitution:

      An appeal from an order of restitution based upon a claim that a
      restitution order is unsupported by the record challenges the
      legality, rather than the discretionary aspects, of sentencing. The
      determination as to whether the trial court imposed an illegal
      sentence is a question of law; our standard of review in cases
      dealing with questions of law is plenary.

Commonwealth v. Holmes, __ A.3d __, 2017 WL 337093, at *6 (Pa.

Super. filed. Jan. 4, 2017). “The illegality of a sentence of restitution is not

a waivable issue[.]”    Commonwealth v. Reed, 543 A.2d 587, 589 (Pa.

Super. 1988) (citations omitted).

      Authority to order restitution as part of a sentence is conferred by

Section 1106 of the Crimes Code, which provides:

      § 1106. Restitution for injuries or property

      (a)   General rule.-Upon conviction for any crime wherein
            property has been stolen, converted or otherwise
            unlawfully obtained, or its value substantially decreased as
            a direct result of the crime, or wherein the victim suffered
            personal injury directly resulting from the crime, the
            offender shall be sentenced to make restitution in addition
            to the punishment prescribed therefor.

18 Pa.C.S. § 1106.




                                     - 24 -
J. S72020/16


      “[T]he primary purpose of restitution is rehabilitation of the offender

by impressing upon him that his criminal conduct caused the victim's loss or

personal injury and that it is his responsibility to repair the loss or injury as

far as possible.” Commonwealth v. Runion, 662 A.2d 617, 618 (Pa. 1995)

(superseded by statute on other grounds). Thus, recompense to the victim

is secondary, as “[a] sentence imposing restitution is not an award of

damages.”    Commonwealth v. Wright, 722 A.2d 157, 160 (Pa. Super.

1998).

      When imposed as a sentence, the injury to property or person for

which restitution is ordered must directly result from the crime.        See 18

Pa.C.S. § 1106(a); Commonwealth. v. Harner, 617 A.2d 702, 704 (Pa.

1992).   To determine the correct amount of restitution, a “but-for” test is

used—damages which occur as a result of the crime are those which should

not   have     occurred   but    for    the     defendant's   criminal   conduct.

Commonwealth v. Oree, 911 A.2d 169, 174 (Pa. Super. 2006).

      In the instant case, the victim testified that Appellant gave her a

detailed, itemized invoice indicating that he and his co-conspirators had

made repairs to her sun roof and chimney. A roof and chimney expert, who

had examined Appellant’s chimney, testified that Appellant and his co-

conspirators had not done most of the work that they had listed on the bill.

Further, the expert opined that the materials that were used in the little bit

of work they did do were diluted or otherwise subpar.           This resulted in



                                       - 25 -
J. S72020/16


cracks and staining on the victim’s house, and a sun roof that continued to

leak despite Appellant’s assurance that they had fixed it.      See N.T. Trial,

9/4/14, at 214-65, 285-309.

      Based on the testimony of the roofing expert, the victim did suffer

some damages around her chimney and on her house as a direct result of

Appellant’s and the co-conspirator’s criminal conduct.        Accordingly, we

conclude that the trial court’s order of restitution is supported by the record.

Appellant is entitled to no relief on this issue.

      Issue 8 – Rule 600

      The next issue challenges the trial court’s dismissal of his Pa.R.Crim.P.

600 Motion.     We review the denial of a Rule 600 Motion guided by the

following principles:

      In evaluating Rule 600 issues, our standard of review of a trial
      court's decision is whether the trial court abused its discretion.
      Judicial discretion requires action in conformity with law, upon
      facts and circumstances judicially before the court, after hearing
      and due consideration. An abuse of discretion is not merely an
      error of judgment, but if in reaching a conclusion the law is
      overridden or misapplied or the judgment exercised is manifestly
      unreasonable, or the result of partiality, prejudice, bias, or ill
      will, as shown by the evidence or the record, discretion is
      abused.

      The proper scope of review is limited to the evidence on the
      record of the Rule 600 evidentiary hearing, and the findings of
      the trial court. An appellate court must view the facts in the light
      most favorable to the prevailing party.

      Additionally, when considering the trial court's ruling, this Court
      is not permitted to ignore the dual purpose behind Rule 600.
      Rule 600 serves two equally important functions: (1) the
      protection of the accused's speedy trial rights, and (2) the


                                      - 26 -
J. S72020/16


      protection of society. In determining whether an accused's right
      to a speedy trial has been violated, consideration must be given
      to society's right to effective prosecution of criminal cases, both
      to restrain those guilty of crime and to deter those
      contemplating it. However, the administrative mandate of Rule
      600 was not designed to insulate the criminally accused from
      good faith prosecution delayed through no fault of the
      Commonwealth.

      So long as there has been no misconduct on the part of the
      Commonwealth in an effort to evade the fundamental speedy
      trial rights of an accused, Rule 600 must be construed in a
      manner consistent with society's right to punish and deter crime.
      In considering these matters, courts must carefully factor into
      the ultimate equation not only the prerogatives of the individual
      accused, but the collective right of the community to vigorous
      law enforcement as well.

Commonwealth v. Ramos, 936 A.2d 1097, 1100–01 (Pa. Super. 2007)

(internal citations, brackets, and ellipses omitted).

      Rule 600 provides that trial shall commence within 365 days after the

filing of the criminal complaint. Pa.R.Crim.P. 600(A)(2)(a). This is referred

to as the “mechanical run date.” Rule 600 provides, however, that certain

time periods may be excluded, which then results in an “adjusted run date.”

See Ramos, supra at 1102.           “[P]eriods of delay at any stage of the

proceedings caused by the Commonwealth when the Commonwealth has

failed to exercise due diligence shall be included in the computation of the

time within which trial must commence. Any other periods of delay shall be

excluded from the computation.” Pa.R.Crim.P. 600(C)(1).

      Our review of the record indicates that Appellant filed numerous pro se

and counseled motions for, among other things, discovery, suppression,



                                     - 27 -
J. S72020/16


removal of his attorneys, and Rule 600 violations. Following is a portion of

the procedural history that supports the trial court’s denial of Appellant’s

Rule 600 motion.

     Appellant filed his first pro se Rule 600 Motion on January 22, 2013,

seeking release on nominal bail, 181 days following the filing of the first

criminal complaint against him.     The court clerk sent the Motion to

Appellant’s counsel.   On February 6, 2013, counsel filed a Motion to

Suppress. The trial court scheduled a status hearing for March 15, 2013.

     On February 8, 2013, Appellant filed numerous pro se motions

including, but not limited to, a “Notice of Ineffective Counsel,” another

Motion to Suppress, a Motion for Return of Property, and a “Motion to

Dismiss for Violation of Right to Speedy Trial.”   On February 28, 2013,

Appellant’s counsel moved for a status hearing, and on March 6, 2013, the

court rescheduled the Rule 600 Motion hearing to April 15, 2013.

     At a hearing on March 25, 2013, the trial court granted Appellant’s

request and removed Appellant’s attorney. On April 1, 2013, the trial court

appointed new counsel.      A hearing commenced on April 15, 2013, and

continued on April 24, 2013; however, the court did not deal with the Rule

600 Motions at that time.

     Notwithstanding the appointment of counsel, Appellant continued to

send pro se motions and correspondence to the court. On June 13, 2013,

Appellant filed another “Notice of Ineffective Counsel” to remove his new



                                   - 28 -
J. S72020/16


counsel.   On June 24, 2013, he filed, inter alia, a “Notice to All Parties

Concerned” that he had terminated his counsel, and a new pro se Rule 600

Motion, seeking release on nominal bail because 180 days had passed since

the fourth criminal complaint had been filed on September 11, 2012.      On

July 2, 2013, and July 10, 2013, he refiled the same Rule 600 Motion,

among other things, and the court scheduled a status hearing and pre-trial

conference for July 31, 2013.

      At the hearing on July 31, 2013, Appellant’s counsel noted that

Appellant had never filed a nominal bail petition, and noted that during the

“substantial amount of time he’s been in jail,” there had been continuances

in each of his cases to address his various motions, including the

suppression motion. N.T. Hearing, 7/31/13, at 3. Counsel stated he did not

want to file a Rule 600 motion for nominal bail, which would “eat more time

until we got the order back,” particularly when there was a suppression

motion pending that would have caused a Rule 600 motion to be dismissed.

Id. at 3, 8. The court then denied Appellant’s request to remove counsel,

noted counsel’s promise to review the Rule 600 time, instructed Appellant

not to submit any more pro se filings, and listed the case for the August

2013 trial term.

      On August 16, 2013, Appellant filed a pro se Application to terminate

his counsel’s representation, and requested stand-by counsel.       He also

requested that the court “except” his Rule 600 motions. Letter annexed the



                                   - 29 -
J. S72020/16


Motion and Application for Stand-by Counsel, filed 8/16/13. He refiled the

same documents on September 5, 2013, and September 13, 2013.                      On

September 20, 2013, Appellant filed a “Re-Amended” Rule 600 Motion. The

court scheduled a hearing for October 17, 2013, on Appellant’s Motion to

Remove Counsel of Record and several pro se motions. On October 8, 2013,

Appellant filed another letter and Application for Stand-By Counsel. The trial

court rescheduled the hearing for October 23, 2013.

       On October 23, 2013, the court granted Appellant’s Motion to

represent himself, but continued the hearing to October 29, 2013, to deal

with   Appellant’s   remaining   motions,     including   the   Rule   600    Motion.

Appellant’s counsel indicated that he had reviewed the cases, and all of the

continuances resulting from Appellant’s motions, and had determined that of

422 days Appellant had been in jail, 316 days were excludable.               See N.T.

Hearing, 10/23/13, at 7. The court instructed Appellant to submit his own

calculation.

       At a hearing on Appellant’s Rule 600 Motion, the trial court ruled as

follows:

       I’m marking up what I’m going to attach to the record as Court
       Exhibit 1, which are my findings of the number of days
       excludable thus far due to the filing of defense motions and
       defense actions that have caused delay.      We’re 262 days
       excluded to this point. The adjusted Rule 600 date is May 16,
       2014.

       Commonwealth has demonstrated due diligence in bringing this
       matter forward. It’s been on the trial list twice. It’s been taken
       off due to the pendency of defense motions. I find no indication


                                     - 30 -
J. S72020/16


         that the Commonwealth has been dilatory in any regard. If they
         had pushed forward and tried to force it to trial and these
         motions for ineffective counsel were on the cusp and pending, it
         would have been setting it up for reversible error.

         So despite defense assertion that they were ready to go every
         single day, actually they weren’t. They were certainly entitled to
         file these motions, and the Court’s not suggesting that the filing
         of these motions was inappropriate, but filing of motions has
         consequences, and this is one of these consequences. The Rule
         600 time was running on the defense for at least 262 days. The
         defense motion under Rule 600 is denied.

N.T. Hearing, 10/29/13, at 12-13.

         Later, during the same hearing the court stated:

         [B]oth times when the case was removed from the trial list, his
         two pending defense motions (one was his ineffective assistance
         of counsel motion, the other time there was a pending omnibus
         motion that required rescheduling after the trial period), in both
         instances it was not due to Commonwealth lack of diligence. It
         was to give the Defendant an opportunity to present legal issues
         that could potentially have been either dispositive of his case or
         dispositive of his right to have effective counsel.       For the
         Commonwealth to push those matters to trial at that point would
         have potentially violated significant constitutional rights of the
         Defendant and resulted in the cases being thrown out.

         So for those reasons, and incorporating the reasoning previously
         stated in the Rule 600 issue, the Court denies the Defendant’s
         motion for dismissal under speedy trial provisions.

Id. at 24-25.

         The voluminous record in this case is rife with prolix and redundant

motions and correspondence that Appellant filed. As noted above, many of

the motions required hearings and proceedings that necessarily delayed

trial.    See Trial Court Exh. 1 (listing dates of filed motions, length of

continuances, and reasons for continuances, concluding that 262 days were


                                       - 31 -
J. S72020/16


excluded due to Appellant’s motions, and setting adjusted run date for

nominal bail as November 21, 2013, and the mechanical run date for trial as

May 16, 2014).    Based on our detailed review of the record, we conclude

that the trial court did not abuse its discretion in denying Appellant’s Rule

600 Motion.

Issue 9 – Brady Violation

      In his next issue, Appellant claims that a Brady violation occurred

because he was not given a copy of the surveillance video from one of the

banks at which he cashed or attempted to cash one of the checks.

      In Brady v. Maryland, 373 U.S. 83 (1963), the United States

Supreme Court held that “suppression by the prosecution of evidence

favorable to an accused upon request violates due process where the

evidence is material either to guilt or to punishment... .” Id. at 87.

      We are guided by the following principles when considering an

allegation that a Brady violation has occurred.

      Under Brady and subsequent decisional law, a prosecutor has
      an obligation to disclose all exculpatory information material to
      the guilt or punishment of an accused, including evidence of an
      impeachment nature.        To establish a Brady violation, an
      appellant must prove three elements: (1) the evidence at issue
      was favorable to the accused, either because it is exculpatory or
      because it impeaches; (2) the evidence was suppressed by the
      prosecution, either willfully or inadvertently; and (3) prejudice
      ensued. The burden rests with the appellant to prove, by
      reference to the record, that evidence was withheld or
      suppressed by the prosecution. . . .

      The duty to disclose is limited to information in the possession of
      the government bringing the prosecution, and the duty does


                                     - 32 -
J. S72020/16


      extend to exculpatory evidence in the files of police agencies of
      the government bringing the prosecution. Brady is not violated
      when the appellant knew or, with reasonable diligence, could
      have uncovered the evidence in question, or when the evidence
      was available to the defense from other sources. Brady sets
      forth a limited duty, not a general rule of discovery for criminal
      cases.

Commonwealth v. Ovalles, 144 A.3d 957, 965 (Pa. Super. 2016).

      Detective Snell testified about Appellant cashing a check at Sovereign

Bank that he had received from one of his victims.

      Appellant: …[D]id you get any type of surveillance video of this
      action?

      Detective: I attempted to get the surveillance video. I had
      gotten the information from the manager at the corporate
      headquarters at the Sovereign Bank located in New Jersey. In
      order to get the surveillance video I put in a request on
      letterhead. I faxed that request in. I never got the video from
      Sovereign Bank, for some reason Sovereign Bank has problems,
      you know, sending surveillance video because I have had bank
      robberies before where I haven’t gotten videos like I asked. So
      to answer your question, … I put in a request for it. I never got
      the video.

N.T. Trial, 9/4/14, at 368–70.

      Our review of the record indicates that the video evidence was never

available to the Commonwealth. Since it did not exist, it was not available

to either party; since it did not exist, it was impossible to ascertain if it was

exculpatory.16   We conclude no Brady violation occurred and Appellant’s

issue is, thus, without merit.


16
  There is no evidence that Appellant or his counsel attempted to obtain a
copy of the video with a subpoena.



                                     - 33 -
J. S72020/16


Issue 11 – Suppression Motion

     In his next issue, Appellant avers that the trial court abused its

discretion in denying his Motion to Suppress documents signed by “Frank

Winans.” See Anders Brief at 36.17 At the suppression hearing, he argued

that the warrant was not issued or executed appropriately. We conclude this

issue has no merit.

     This Court's well-settled standard of review of a denial of a motion to

suppress evidence is as follows:

     [An appellate court's] standard of review in addressing a
     challenge to the denial of a suppression motion is limited to
     determining whether the suppression court's factual findings are
     supported by the record and whether the legal conclusions
     drawn from those facts are correct. Because the Commonwealth
     prevailed before the suppression court, we may consider only
     the evidence of the Commonwealth and so much of the evidence
     for the defense as remains uncontradicted when read in the
     context of the record as a whole. Where the suppression court's
     factual findings are supported by the record, [the appellate court
     is] bound by [those] findings and may reverse only if the court's
     legal conclusions are erroneous. Where ... the appeal of the
     determination of the suppression court turns on allegations of
     legal error, the suppression court's legal conclusions are not
     binding on an appellate court, whose duty it is to determine if
     the suppression court properly applied the law to the facts. Thus,


17
   We note that the Anders Brief provides no citation to the record and no
law relevant to suppression. We independently review the issue as required
pursuant to Commonwealth v. Flowers, 113 A.3d 1246, 1249 (Pa. Super.
2015). Our review indicates that Appellant filed an omnibus pretrial motion
generally asserting a “fruit of the poisonous tree” argument. Although
Appellant did not specifically seek to suppress documents signed by “Frank
Winans,” the nature of his omnibus pretrial suppression motion was such
that it encompassed the documents, inter alia, obtained from Appellant’s
vehicle, including documents signed by Appellant as “Frank Winans.”



                                   - 34 -
J. S72020/16


      the conclusions of law of the courts below are subject to [ ]
      plenary review.

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (internal citations

and quotation marks omitted).

      Pa.R.Crim.P. 203(C) provides as follows:

      (C)     Immediately prior to submitting a search warrant
      application and affidavit to an issuing authority using advanced
      communication technology, the affiant must personally
      communicate with the issuing authority by any device which, at
      a    minimum,       allows    for    simultaneous     audio-visual
      communication.       During the communication, the issuing
      authority shall verify the identity of the affiant, and orally
      administer an oath to the affiant.

Pa.R.Crim.P. 203(C).

      The exclusionary rule provides that “[e]vidence discovered as a result

of a search that violates the fundamental constitutional guarantees of Article

I, Section 8 will be suppressed.”   Commonwealth v. Gordon, 683 A.2d

253, 256 (Pa. 1996).

      [I]t is important to distinguish between a violation of the
      fundamental constitutional guarantees of Article I, Section 8 and
      mere technical noncompliance with the Pennsylvania Rules of
      Criminal Procedure. We have, in fact, specifically “reject[ed] the
      automatic application of the exclusionary rule to suppress
      evidence seized pursuant to a search which in some way violates
      the Pennsylvania Rules of Criminal Procedure relating to the
      issuance and execution of search warrants.” Commonwealth v.
      Gerald Mason, [ ]490 A.2d 421, 423 ([Pa.] 1985). Indeed, it is
      only when violations of the Rules “assume constitutional
      dimensions and/or substantially prejudice the accused” that
      suppression may be necessary. Id. at 425.

Commonwealth v. Ruey, 892 A.2d 802, 808 (Pa. 2006).




                                    - 35 -
J. S72020/16


      In the instant case, Detective David Bixler of the West Manchester

Township police department testified at the suppression hearing regarding

his obtaining a search warrant for Appellant’s vehicle from Magistrate District

Judge (“MDJ”) Dwayne A. Dubs. He stated that, on July 25, 2012, he spoke

with MDJ Dubs, and faxed an application and affidavit of probable cause to

him around 9:00 p.m. MDJ Dubs testified that he administered the oath to

Detective Bixler when he spoke to him over the phone regarding the affidavit

of probable cause. MDJ Dubs also testified regarding the transmission report

from his fax machine that was admitted into evidence showing that he had

faxed the warrant back to Detective Bixler at 9:49 p.m. He testified that he

had written 10:00 p.m. on the 48-hour warrant itself to round up to the next

quarter hour, as was his habit with search warrants, but as relayed during

their phone call, he had wanted Detective Bixler to search the vehicle

immediately.   See N.T., 4/24/12, at 6-7.       Detective Bixler executed the

search warrant at 9:55 p.m. Police seized cash, documents, and other items

from the vehicle.

      Appellant’s counsel argued that the officers did not have a warrant

when they went into the vehicle at 9:55 p.m. on July 25 th, and the MDJ had

violated Pa.R.Crim.P. 203 because he had not visually clarified that he was

speaking to Detective Bixler.

      On July 19, 2013, the suppression court denied Appellant’s motion,

providing the following analysis, in relevant part:



                                     - 36 -
J. S72020/16


     Initially, we note that the Supreme Court of Pennsylvania has
     rejected the automatic application of the exclusionary rule to
     suppress evidence seized pursuant to a search which in some
     way violates the Pennsylvania Rules of Criminal Procedure
     relating to the issuance and execution of search warrants. Such
     a drastic remedy – the automatic exclusion of evidence obtained
     during a search that is found to have technically violated the
     Rules of Criminal Procedure – is unwarranted and is not
     supported      by    decisions  of    the    appellate   courts.
     Commonwealth v. Mason, 490 A.2d 421 (Pa. 1985).

     The Supreme Court of Pennsylvania has not fashioned an
     automatic rule of exclusion of evidence for violations of the Rules
     of Criminal Procedure generally, nor for Rule 203 specifically.
     Indeed, it has been made clear that the execution of a search
     warrant which violates these Rules will not automatically require
     the exclusion of evidence so obtained.

                                ***

     The Defendant argues that the purpose of Rule 203(C) is to
     ensure that a person who is requesting the warrant prove who
     they say they are. The Commonwealth of Pennsylvania has long
     had a requirement that the affiant for a warrant appear
     personally to confirm his or her identity with the court. Rule
     203(c) permits the use of technology for the request and
     issuance of warrants with the specific requirement that the
     affiant be made known by audio and visual confirmation in lieu
     of the person having to appear personally before the magistrate.

     We note that this technical defect does not “assume a
     constitutional dimension nor does it substantially prejudice the
     accused.” See [ ] Mason, supra at [ ] 425. Accordingly, the
     technical defect should not result in the suppression of evidence
     and we determine that the evidence obtained from the
     Defendant’s vehicle was not obtained via an illegal search and
     seizure. Therefore, the Defendant’s Omnibus Pretrial Motion to
     Suppress Evidence is hereby DENIED and REFUSED.

Order, dated 7/19/13, at 5-7.

     We agree with the suppression court’s analysis, which is supported by

the facts of the case and relevant legal authority. Accordingly, we conclude


                                   - 37 -
J. S72020/16


Appellant’s challenge to the court’s denial of his suppression motion is

without merit.

Issue 12 – Appellant’s Closing Argument

      In his last issue, Appellant avers that the trial court abused its

discretion by denying him the right to explain his theory of the case in his

closing argument. See Anders Brief at 37 (citing N.T., 9/5/14, at 567).

      The trial court summarized the issue as follows:

      During Appellant’s closing argument, the prosecutor and trial
      judge interrupted [ ] Appellant [at] various times to object and
      caution Appellant about not arguing facts not admitted into
      evidence, not to comment on the trial judge’s legal rulings, and
      not to testify during closing. The trial judge found Appellant in
      contempt three times during his closing. We do not find that
      [Appellant] was deprived [of] the opportunity to explain his
      theory of the case, but was unable to do so while comporting
      with the rules of evidence.      Therefore, we find this claim
      meritless.

Trial Ct. Op., dated 3/30/16, at 9.   See Commonwealth v. Abu–Jamal,

555 A.2d 846, 852 (Pa. 1989) (pro se litigant “is subject to the same rules of

procedure as is a counseled defendant”); Jones v. Rudenstein, 585 A.2d

520, 522 (Pa. Super. 1991) (noting that a pro se litigant is not absolved of

complying with procedural rules and substantive law, citing Faretta v.

California, 422 U.S. 806, 834 n.46 (1975)).

      Our review of the complete trial transcript indicates that Appellant was

not deprived of the opportunity to present his theory of the case.        It is

apparent from his cross-examination of the Commonwealth’s witnesses, the

direct examination of his own witnesses, and his closing argument that he


                                    - 38 -
J. S72020/16


was able to convey his theory of defense to the jury.          During closing

arguments, he quite clearly informed the jury that he was just an employee

of Above the Rest Tree Service, and at the time of the crimes, he was not

able to do physical labor that some of the victims had testified they had seen

him doing. See N.T. at 567-68. The court properly forbid Appellant from

arguing facts not in evidence and from testifying during his closing

argument. This issue, thus, lacks merit.

Discretionary Aspects of Sentence

      In his Response Brief, Appellant avers that the trial court vindictively

imposed sentences that are harsh and excessive. See Response Brief at 58.

He asserts that the court did not properly consider his prior record score, his

educational background, or his “Cronic [sic] Illnesses and Medical Needs.”

Id.   He concludes that the court erred in ordering the sentences to run

consecutively. Each of these claims challenges the discretionary aspects of

his sentences.

      A challenge to the discretionary aspects of sentencing is not

automatically reviewable as a matter of right. Commonwealth v. Hunter,

768 A.2d 1136, 1144 (Pa. Super. 2001). Prior to reaching the merits of a

discretionary sentencing issue:

         We conduct a four part analysis to determine: (1) whether
         appellant has filed a timely notice of appeal, see Pa.R.A.P.
         902 and 903; (2) whether the issue was properly
         preserved at sentencing or in a motion to reconsider and
         modify sentence, see [Pa.R.Crim.P. 720]; (3) whether
         appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and


                                    - 39 -
J. S72020/16


           (4) whether there is a substantial question that the
           sentence appealed from is not appropriate under the
           Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (citations

omitted).

         In the instant case, Appellant filed a timely Post-Sentence Motion and

Notice of Appeal. Appellant did not include in his Response Brief a separate

Pa.R.A.P. 2119(f) Statement.        We may conclude this is a fatal defect

because a substantial question is not obvious from Appellant’s Response

Brief.    See Commonwealth v. Kneller, 999 A.2d 608, 614 (Pa. Super.

2010) (holding that this Court may overlook an appellant’s failure to comply

with Rule 2119(f) where the Commonwealth fails to object to the omission

and a substantial question is obvious from the appellant’s brief.).        We

nonetheless provide the following analysis.

         When considering whether an Appellant has presented a substantial

question, we note:

           The determination of what constitutes a substantial
           question must be evaluated on a case-by-case basis. A
           substantial question exists only when the appellant
           advances a colorable argument that the sentencing judge’s
           actions were either: (1) inconsistent with a specific
           provision of the Sentencing Code; or (2) contrary to the
           fundamental norms which underlie the sentencing process.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations

and quotation omitted).




                                      - 40 -
J. S72020/16


      Where the trial court has the benefit of a PSI, our Supreme Court has

held that “it is presumed that the court is aware of all appropriate

sentencing factors and considerations, and that where the court has been so

informed, its discretion should not be disturbed.”            Commonwealth v.

Ventura,    975    A.2d   1128,    1135       (Pa.   Super.   2009)   (discussing

Commonwealth v. Devers, 546 A.2d 12, 18-19 (Pa. 1988)).

      An argument that the sentencing court failed to consider mitigating

factors in favor of a lesser sentence does not present a substantial question

appropriate for our review.   Commonwealth v. Hanson, 856 A.2d 1254,

1257-58 (Pa. Super. 2004).        See also Commonwealth v. Griffin, 804

A.2d 1, 9 (Pa. Super. 2002) (citing Commonwealth v. Williams, 562 A.2d

1385, 1388 (Pa. Super. 1989) (en banc) (an allegation that the sentencing

court did not adequately consider various factors is, in effect, a request that

this court substitute its judgment for that of the lower court in fashioning a

defendant’s sentence)).

      Finally, an appellant’s challenge to the consecutive nature of his

sentence raises a substantial question only where the defendant articulated

particular reasons why consecutive sentences were unreasonable.              See

Commonwealth v. Dodge, 77 A.3d 1263, 1273 (Pa. Super. 2013).

      Appellant generally asserts that he “was sentenced contrary to the

fundamental norms” but does not provide a colorable argument to support

his bald assertion. Response Brief at 59 (unnecessary capitalization



                                     - 41 -
J. S72020/16


omitted).    Moreover, he does not point to any specific provision of the

Sentencing Code that the sentencing court ostensibly violated.           His bald

assertions that the court failed to consider various mitigating factors and

that it should have imposed concurrent rather than consecutive sentences do

not raise a substantial question.    See Commonwealth v. Trippett, 932

A.2d 188, 201-03 (Pa. Super. 2007) (bald allegations of excessiveness

insufficient to permit discretionary review).

      Because we conclude that Appellant has failed to raise a substantial

question as to the appropriateness of his sentence, we will not address the

merits of Appellant’s sentencing claim.

Conclusion

      In addition to considering the issues raised on Appellant’s behalf in the

Anders Brief and those asserted in Appellant’s Response Brief, we have

conducted    an   independent    review   of    the   record,   as   required   by

Commonwealth v. Flowers, 113 A.3d 1246, 1249 (Pa. Super. 2015). We

conclude that there are no preserved, non-frivolous issues that can be raised

on appeal.     We, thus, concur with counsel that this appeal is wholly

frivolous, and allow him to withdraw.18

      Petition of Christopher Moore, Esq., to withdraw granted. Judgment of

Sentence affirmed.

18
   Because Appellant has not filed a praecipe with this Court to discontinue
this Appeal, his pro se request to “relinquish jurisdiction to the United States
District Court” is denied. See Letter, dated 2/23/17, at (unpaginated) 2.



                                     - 42 -
J. S72020/16


President Judge Gantman joins the memorandum.

Judge Strassburger concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/26/2017




                                   - 43 -
