J-A05026-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 THOMAS EUGENE BEEBE, II                 :
                                         :
                    Appellant            :   No. 247 WDA 2018

          Appeal from the Judgment of Sentence January 31, 2018
  In the Court of Common Pleas of Erie County Criminal Division at No(s):
                         CP-25-CR-0000880-2017


BEFORE: GANTMAN, P.J.E., SHOGAN, J., and MURRAY, J.

MEMORANDUM BY SHOGAN, J.:                              FILED MAY 14, 2019

      Appellant, Thomas Eugene Beebe, II, appeals pro se from the judgment

of sentence entered on January 31, 2018, in the Erie County Court of Common

Pleas. We affirm.

      The relevant facts in this matter were set forth by the trial court as

follows:

             On December 3rd, 2016, Kristen Ross and Amanda
      Hutchings were at the Tamarack bar in Corry, Pennsylvania. (See
      Notes of Testimony, Jury Trial, Day 2, Dec. 19, 2017, pg. 64:16-
      23). Sometime during the evening, Appellant, who had an “on and
      off” romantic relationship with Ms. Ross, entered the bar, spoke
      with Ms. Ross, and Appellant and Ms. Ross exited the bar. (Id. at
      65:14-19; 66:7-9; 89:8-13). Appellant and Ms. Ross talked for “a
      while” outside “down a little ways up the road.” (Id. at 66:14-21;
      70:24-71:1). Ms. Hutchings left the bar to check on Ms. Ross and
      Appellant, who were standing three to four feet apart from each
      other, and [Ms. Hutchings] observed Appellant remove a firearm
      from inside his coat and discharge[] a single round away from the
      bar. (Id. at 66:10-16; 71:4-72-4; 72:13-25). Ms. Hutchings then
      entered the bar and notified the bartender, Sandra Vantassel, who
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     locked down the bar for the safety of the patrons and called the
     police (Id. at 72:16-17; 73:9-14; 73:24-74:1; 89:10-23; 90:17-
     91:-6). Ms. Vantassel stated she heard a “pop” before Ms.
     Hutchings reentered the bar. (Id. at 89:20-23; 90:12-16).

           After Ms. Vantassel called the police, Officer Richard
     Bayhurst of the Corry City Police Department arrived at the bar in
     response to information regarding “shots fired outside the location
     of the Tamarack Bar.” (Id. at 115:16-19). Officer Bayhurst arrived
     at the bar and made contact with Ms. Ross and obtained a
     statement from Ms. Ross, which was recorded with Officer
     Bayhurst’s body camera. (Id. at 116:7-16). Officer Bayhurst
     attempted to locate Appellant, but when unable to do so, he began
     searching the area for evidence and recovered pieces of a
     magazine for a Smith and Wesson [firearm] as well as a .380
     caliber shell casing. (Id. at 117:5-18; 121:8-14; 125:4-9;
     125:20-22). Officer Bayhurst later made contact with Steve
     Holton, the owner of the Smith and Wesson, who reported the
     same Smith and Wesson missing on November 8th, 2016. (Id. at
     127:8-20; 132:8-12; 133:9-18). Ultimately, [on December 5th,
     2016,] Deputy U.S. Marshall Brent Novak apprehended Appellant
     in [Buffalo, New York. When the Marshall apprehended Appellant,
     Appellant had the Smith and Wesson firearm and the firearm’s
     magazine concealed on his person]. (Id. at 109:3-111:4; 132:18-
     133:8).

           On April 19th, 2017, the District Attorney’s Office filed a
     Criminal Information, charging Appellant with: (1) Terroristic
     Threats Causing Serious Public Inconvenience, in violation of 18
     Pa.C.S. § 2706([a])(3); (2) Terroristic Threats With Intent to
     Terrorize Another in violation of 18 Pa.C.S. § 2706([a])(1); (3)
     Recklessly Endangering Another Person in violation of 18 Pa.C.S.
     § 2705; (4) Harassment in violation of 18 Pa.C.S. § 2709([a])(2);
     (5) Discharging of a Firearm Inside City Limits in violation of [Local
     Ordinance] 750(1); (6) Receiving Stolen Property in violation of
     18 Pa.C.S. § 3925([a]); and (7) Firearms Not to Be Carried
     Without a License in violation of 18 Pa.C.S. § 6106([a])(1).

            On December 18th, 2017, a jury trial was held; however,
     this [t]rial [c]ourt declared a mistrial shortly after the trial began.
     Specifically, the Commonwealth called [Ms.] Ross as a witness to
     testify, but the Commonwealth’s direct examination of Ms. Ross
     prompted Appellant’s counsel to object and move for a mistrial
     [because Ms. Ross stated that, at the time of the incident,

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     Appellant was on probation and not permitted to be at the bar.] …
     [The trial court granted Appellant’s motion for a] mistrial and a
     new jury trial was rescheduled for the next day on December 19,
     2017.

            On December 19th, 2017, a new jury was selected and a
     second jury trial [began]. During the Commonwealth’s case-in-
     chief, Assistant District Attorney Grant T. Miller called Ms. Ross,
     who testified that when she provided a statement to Officer
     Bayhurst on December 3rd, 2016, she “did not tell the police the
     truth” and specifically testified that she “told the police that
     [Appellant] had a gun, but [she] . . . did not see a gun.” (See
     Notes of Testimony, Jury Trial, Day 2, Dec. 19, 2017, pg. 32:4-
     11). In order to impeach Ms. Ross’ testimony, ADA Miller played
     to the jury the body camera video footage capturing Ms. Ross’
     statements to Officer Bayhurst recorded on December 3rd, 2016.
     After a portion of the body camera footage was played to the jury,
     this [t]rial [c]ourt excused the jury. [Appellant’s trial counsel,]
     Attorney [John M.] Bonanti then objected to the display of the
     body camera footage and orally moved for a mistrial. (Id. at 33:8-
     22). In essence, Attorney Bonanti articulated his objection as
     follows:

           Officer Bayhurst was trying to figure out where
           Appellant lived and Officer Bayhurst is talking about
           other drug criminals in Corry and Officer Bayhurst said
           Appellant lives in an area where there’s a trade—drug
           trade, and Appellant is making lots of money off the
           trade. And there’s no relevance and it’s certainly not
           unforeseeable that the jury takes that and makes an
           inference—a nasty inference from it.

     (Id. at 38:22-39:4). After a lengthy discussion outside the
     presence of the jury on the record among Attorney Bonanti, ADA
     Miller, and the undersigned judge, and after this [t]rial [c]ourt
     reviewed the remainder of the video outside of the presence of
     the jury, this [t]rial [c]ourt permitted ADA Miller to display the
     remainder of the video footage to the jury for the limited purpose
     of impeaching Ms. Ross with the aid of a carefully worded and
     helpful curative instruction. (Id. at 47:14; 33:8-55:19; 58:11-
     13). Specifically, this [t]rial [c]ourt issued the following curative
     instruction to the jury before the remainder of the footage was
     displayed:


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J-A05026-19


               Hello, again, jurors. I have to give you a very
               important cautionary instruction. And I’m going to
               direct you to disregard anything on the tape said by
               Patrol Officer Bayhurst. You are to totally disregard
               anything Officer Bayhurst said on the tape. Officer
               Bayhurst tried to infer things that are definitely untrue
               and prejudicial and not relevant to this case. His
               statements are not evidence of anything. You may
               proceed.

        (Id. at 55:22-56:5).[1] Again, Attorney Bonanti objected to the
        curative instruction arguing the evidence was irrelevant and
        “caused an improper taint or prejudice” despite this [t]rial [c]ourt
        issuing a[] proper curative instruction. (Id. at 56:10-18).
        Appellant was ultimately convicted of all criminal charges and on
        January 31st, 2018, this [t]rial [c]ourt entered the following
        Sentencing Order:

              Count 1 - Terroristic Threats Cause Serious Public
               Inconvenience - To be confined for a minimum period
               of 2 Year(s) and a maximum period of 5 Year(s) at PA
               Dept. of Corrections in the standard range.

              Count 2 - Terroristic Threats With Intent To Terrorize
               Another - To be confined for a minimum period of 1
               Year(s) and a maximum period of 2 Year(s) at PA
               Dept. of Corrections in the standard range and
               consecutive to Count 1.

              Count 3 - Recklessly Endangering Another Person - To
               be confined for a minimum period of 6 Month(s) and
               a maximum period of 2 Year(s) at PA Dept. of
               Corrections in the standard range and consecutive to
               Count 2.

              Count 4 - Harassment - Follow In Public Place -A
               determination of guilty without further penalty.

              Count 5 - Discharge Any Firearm Within The City
               Limits - A determination of guilty without further
               penalty.
____________________________________________


1   Errant left-margin indentation omitted.

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             Count 6 - Receiving Stolen Property - To be confined
              for a minimum period of 18 Month(s) and a maximum
              period of 4 Year(s) at PA Dept. of Corrections in the
              standard range and consecutive to Count 3.

             Count 7 - Firearms Not To Be Carried Without a
              License - To be confined for a minimum period of 3
              Year(s) and a maximum period of 6 Year(s) at PA
              Dept. of Corrections in the standard range and
              consecutive to Count 6.

Trial Court Opinion, 4/17/18, at 2-5 (emphasis omitted).

       Appellant filed a timely notice of appeal on February 16, 2018.        On

February 20, 2018, the trial court ordered Appellant to comply with Pa.R.A.P.

1925(b) and file a concise statement of errors complained of on appeal.

Appellant filed a counseled Rule 1925(b) statement on March 2, 2018.

       On March 5, 2018, Appellant filed a pro se petition to waive his right to

counsel. On March 21, 2018, Appellant’s counsel filed a motion to withdraw

from   representing    Appellant   and   requested   a   hearing   pursuant   to

Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). On April 4, 2018, the

trial court held a Grazier hearing, concluded that Appellant knowingly,

intelligently, and voluntarily waived his right to counsel, and permitted

Appellant to proceed on appeal pro se. Order, 4/4/18. The trial court also

granted counsel’s motion to withdraw. Id. On April 17, 2018, the trial court

filed its Rule 1925(a) opinion.

       At the outset, we are constrained to point out the myriad deficiencies in

Appellant’s pro se brief. Appellant’s brief is merely an eight-page argument


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J-A05026-19


in narrative form with the trial court’s opinion appended.      Appellant has

violated nearly every briefing requirement set forth in our Rules of Appellate

Procedure as he failed to include in his brief: a statement of jurisdiction

pursuant to Pa.R.A.P. 2114; the order in question pursuant to Pa.R.A.P. 2115;

a statement of the scope and standard of review pursuant to Pa.R.A.P.

2111(a); a statement of the questions involved pursuant to Pa.R.A.P. 2116;

a statement of the case pursuant to Pa.R.A.P. 2117; a summary of the

argument pursuant to Pa.R.A.P. 2118; and a copy of his Pa.R.A.P. 1925(b)

statement pursuant to Pa.R.A.P. 2111(d).      We note that it is within our

discretion to quash this appeal due to these violations. See Commonwealth

v. Adams, 882 A.2d 496, 497 (Pa. Super. 2005) (“This Court may quash or

dismiss an appeal if the appellant fails to conform to the requirements set

forth in the Pennsylvania Rules of Appellate Procedure.”).      However, our

further review reveals an additional error that precludes appellate review.

      As noted above, Appellant filed a counseled Rule 1925(b) statement of

errors complained of on appeal on March 2, 2018.          In that statement,

Appellant’s counsel raised the following issue: “The lower court erred in

admitting testimony by [Ms. Ross] indicating that [the] responding Police

Officer was in the area because he was looking for [Appellant] who was maybe

on probation and not allowed to be at the bar (scene of the offense).”

Pa.R.A.P. 1925(b) Statement, 3/2/18. However, in his pro se brief on appeal,

Appellant presents and argues a markedly different issue; he asserts the trial


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J-A05026-19


court erred in allowing into evidence the video and audio recording from the

arresting officer’s body camera. Appellant’s Brief at unnumbered 4-6.2

       By failing to raise this issue in his Rule 1925(b) statement, Appellant

deprived the trial court of the opportunity to address Appellant’s claim of

error; it is well settled that issues not presented in a court-ordered Rule

1925(b) statement are waived on appeal. See Commonwealth v. Castillo,

888 A.2d 775, 780 (Pa. 2005) (citing Commonwealth v. Lord, 719 A.2d 306,

309 (Pa. 1998)) (“Any issues not raised in a Pa.R.A.P. 1925(b) statement will

be deemed waived.”).         Because Appellant failed to preserve any issue for

appellate review, we affirm Appellant’s judgment of sentence.3

____________________________________________


2  “Although this Court is willing to liberally construe materials filed by a pro se
litigant, pro se status confers no special benefit upon the appellant.”
Commonwealth v. Vurimindi, 200 A.3d 1031, 1037 (Pa. Super. 2018)
(citation omitted). “To the contrary, any person choosing to represent himself
in a legal proceeding must, to a reasonable extent, assume that his lack of
expertise and legal training will be his undoing.” Id.

3 Were we to reach this issue, we would conclude that Appellant is entitled to
no relief. As noted by the trial court in its opinion, following the introduction
of the audio and video from Officer Bayhurst’s body camera, Appellant’s
counsel objected, and the trial court allowed the evidence only insofar as it
impeached Ms. Ross’s statement that she did not see a gun. Trial Court
Opinion, 4/17/18, at 4-5 (citing N.T. 12/19/17, at 38). The trial court then
gave a curative instruction and told the jury it was to disregard any statements
made by Officer Bayhurst on the body camera recording that was made during
his interaction with Ms. Ross. Id. at 5 (citing N.T. 12/19/17, at 55-56). The
admission of evidence is left to the sound discretion of the trial court, and such
a decision shall be reversed only upon a showing that the trial court abused
its discretion. Commonwealth v. Storey, 167 A.3d 750, 758 (Pa. Super.
2017) (citation omitted). In determining what evidence should be admitted,
the trial court must weigh the relevant and probative value of the evidence



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J-A05026-19


       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/14/2019




____________________________________________


against any prejudicial impact. Id. Where the trial judge gives a curative
instruction, it is presumed that the jury will follow the instructions of the court.
Id. Because the audio and video from the body camera was used solely for
impeachment purposes, and because the trial court gave a curative instruction
as to how this evidence was to be considered, if we were to reach this issue,
we would discern no abuse of discretion in the trial court’s evidentiary ruling.


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