J-A21012-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 JOHNNIE MIDDOUGH                          :
                                           :
                    Appellant              :   No. 2817 EDA 2017

            Appeal from the Judgment of Sentence July 31, 2017
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0001661-2013


BEFORE: PANELLA, J., OLSON, J., and McLAUGHLIN, J.

MEMORANDUM BY PANELLA, J.                            FILED MARCH 05, 2019

      Appellant, Johnnie Middough, challenges the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his

convictions for insurance fraud and related offenses. We previously remanded

this case for the trial court to determine Appellant’s eligibility for appointed

counsel. In light of the trial court’s failure to do so, we again remand.

      Briefly, Appellant entered a no-contest plea to attempted theft by

deception and insurance fraud. Based on this plea, the Commonwealth

withdrew several other charges. Appellant submitted to a plea colloquy, and

the court ordered a pre-sentence investigation report and a mental health

evaluation. Before sentencing, Appellant filed a motion to withdraw his plea,

which the court granted. Appellant thereafter entered an open guilty plea to
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attempted theft by deception, insurance fraud, and criminal conspiracy.1 The

court sentenced him to 5 years’ probation.

        Appellant filed a timely, pro se notice of appeal. Appellant’s counsel filed

a motion to withdraw from representation, stating Appellant had decided to

appeal against counsel’s advice and indicated Appellant was “unable to hire

counsel at this time for his appeal.” Motion to Withdraw as Counsel, filed

10/18/17, at 1. In an order, this Court granted counsel’s motion to withdraw

and remanded the case to the trial court, directing:

        The Appellant's "Motion To Withdraw As Counsel," filed by
        Geoffrey Vincent Seay Esq., is GRANTED. The trial court is directed
        to determine the Appellant's eligibility for court-appointed counsel
        within sixty (60) days of the date that this Order is filed. If the
        Appellant is found to be eligible, then the trial court shall appoint
        counsel for the Appellant in connection with this appeal. The trial
        court shall immediately notify the Prothonotary of this Court of the
        appointment. If the Appellant is found to be ineligible for court-
        appointed counsel, then the Appellant shall notify this Court within
        twenty (20) days of the notification of ineligibility whether he
        intends to retain new counsel or to represent himself on appeal.

Order, filed 11/20/17, at 1.

        On remand, the court had the following discussion with Appellant during

what the docket refers to as a Grazier2 hearing:

                                       *       *   *

        The court: [Appellant], we talked for a minute, off the record,
        about your appeal and I ask[ed] you if you wanted to represent

____________________________________________


1   18 Pa.C.S.A. §§ 901(a); 4117(a)(1); and 903(a)(1), respectively.

2   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

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      yourself. And you indicated that you looked at your records from
      your attorney and you said, “You did me justice.”

      [Appellant]: Yes.

      The court: And that you thought I treated you fairly and gave you
      [a] fair sentence. Correct?

      [Appellant]: I think you did the best you could, that’s all.

      The court: Exactly. So knowing that, do you still wish to continue
      your appeal?

      [Appellant]: No, ma’am.

      The court: Okay. So I’ll use the notes of testimony to reflect the
      fact that you are saying under oath you no longer wish [to]
      continue your appeal and I will write an opinion that reflects that.

                                    *    *    *

N.T. Hearing, 12/14/17, at 8.

      There is no additional information in the record responding to our query

about Appellant’s eligibility for appointed counsel. Rather, the trial court asks

us to quash this appeal based on Appellant’s purported request to discontinue

his appeal.

      “The accused can waive his right to appeal if the waiver is an intentional

relinquishment or abandonment of a known right … but a finding of waiver is

not to be made lightly and [] every reasonable presumption against a waiver

will be indulged[.]” Commonwealth v. Wallace, 323 A.2d 182, 183 (Pa.

Super. 1974) (citations omitted).

      Further, an appellant challenging his conviction on direct review has a

constitutional right to counsel. See Commonwealth v. Wrecks, 931 A.2d



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717, 722 (Pa. Super. 2007). An appellant may waive his right to counsel at

the appellate stage, after employing the assistance of counsel at trial, but “an

on-the-record determination should be made that the waiver is a knowing,

intelligent, and voluntary one.” Grazier, 713 A.2d at 82 (citations omitted).

       Here, we remanded for a determination of whether Appellant was

eligible for appointed counsel, following the withdrawal of Appellant’s plea

counsel. Clearly, the trial court did not comply with our directive. Instead, the

trial court made an off-the-record inquiry of Appellant’s wish to proceed with

his appeal,3 after which Appellant filed a pro se appellate brief.4

       Therefore, we again remand and instruct the trial court to determine

Appellant’s eligibility for appointed counsel. If Appellant is eligible, we direct

the court to appoint counsel. If Appellant wishes to waive his right to counsel,


____________________________________________


3 Appellant has not filed a motion to discontinue his appeal with this Court.
See Pa.R.A.P. 1973 (explaining procedure for discontinuance). And, we note
the trial court was not in any position to grant such a motion, were it made,
having been divested of its jurisdiction by Appellant’s notice of appeal save
for our limited remand to determine whether Appellant required the
appointment of counsel. See Pa.R.A.P. 1701 (directing that the trial court may
not proceed after an appeal has been taken, except to “[t]ake any action
directed or authorized on application by the appellate court”).

4 Appellant’s brief is comprised of a single typed page of text addressed to this
Court, accompanied by photocopies of various receipts and legal notices of
indeterminate relevance. In the single page of text, he appears to challenge
the criminality of his actions, though he fails to raise any argument
appropriate for our review. See Appellant’s Brief at 1, unpaginated. It is
without question that Appellant’s brief does not comply with our Rules of
Appellate Procedure. We highlight this failure to remind Appellant of “the
pitfalls of proceeding pro se.” Commonwealth v. Tighe, 184 A.3d 560, 575
(Pa. Super. 2018).

                                           -4-
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the trial court must hold a Grazier hearing to establish whether Appellant

does so knowingly, intelligently, and voluntarily.

      Case remanded with instructions. Hearing to be held within sixty days

of the date of this memorandum. Panel jurisdiction retained.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/5/19




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