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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 MICHAEL THOMAS SCHWARTZ                  :
                                          :
                    Appellant             :   No. 3575 EDA 2017

          Appeal from the Judgment of Sentence October 5, 2017
    In the Court of Common Pleas of Wayne County Criminal Division at
                      No(s): CP-64-CR-0000336-2016

BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY BOWES, J.:                        FILED FEBRUARY 22, 2019

      Michael Thomas Schwartz appeals from the judgment of sentence of 149

to 540 months of imprisonment following his convictions for various sex

crimes.   The trial court found Appellant to be a sexually violent predator

(“SVP”) at the sentencing hearing. Also before us is Appellant’s application to

proceed pro se. Upon review, we deny Appellant’s motion, vacate Appellant’s

SVP designation, and affirm his judgment of sentence in all other respects.

      Appellant, along with his co-defendant wife, were accused of crimes in

connection with the sexual abuse of Appellant’s minor nephews.             The

Commonwealth gave notice of its intent to offer at trial evidence of the

nephews’ out-of-court statements concerning the abuse (“Tender Years

testimony”) pursuant to 42 Pa.C.S. § 5985.1(b).          In pretrial motions,

Appellant sought to exclude the statements, as well as seeking a change of
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venue. The trial court denied the change of venue, and, following a hearing,

denied the motion to exclude the Tender Years testimony.

       Appellant proceeded to a non-jury trial in front of the same judge who

ruled on the pretrial motions. At the close of the Commonwealth’s case, the

trial court dismissed some of the charges. After Appellant presented defense

witnesses, the trial court convicted Appellant of all remaining charges,

including, inter alia, involuntary deviant sexual intercourse, attempted rape of

a child, and indecent exposure. On October 5, 2017, the trial court found

Appellant to be an SVP, and sentenced him as indicated above.

       Appellant filed no post-sentence motion, but filed a timely counseled

notice of appeal. This Court dismissed the appeal for failure to file a brief, but

reinstated it upon Appellant’s motion.1 Before Appellant’s brief was filed, he

submitted a pro se motion to have new counsel appointed.            However, he

subsequently tendered another pro se document indicating that he wished for

counsel to file a brief, which counsel did, following the grant of three

extensions.     After the Commonwealth filed its brief, Appellant submitted

another pro se letter taking issue with counsel’s brief. This Court forwarded

the letter to counsel pursuant to Commonwealth v. Jette, 23 A.3d 1032 (Pa.

2011). On December 14, 2018, Appellant filed a pro se motion wherein he



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1  The appeal of Appellant’s co-defendant wife, docketed at 3494 EDA 2017,
was also dismissed and reinstated, but dismissed again when no brief was
filed.

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asked both to proceed pro se and for appointment of new appellate counsel.

Also included was a request to refile his brief based upon allegations of

ineffective assistance of appellate counsel.

      The brief filed by counsel includes the following questions for this Court’s

consideration.

      1.    Whether the Appellant’s due process rights were violated
      when the trial judge who heard the pretrial motions and Tender
      Year’s [sic] hearing testimony presided over the criminal trial?

      2.     Whether the evidence presented at Appellant’s trial was
      insufficient as a matter of law to sustain his conviction?

      3.   Was there judicial misconduct by the trial judge, judicial
      misconduct by the district attorney’s office and/or conspiracy
      between the district attorney’s office, the Office of Children and
      Youth [“CYS”] and the Pennsylvania State Police?

      4.   Did the trial judge commit a manifest abuse of discretion
      when he denied Appellant a change of venue?

      5.    Did the trial judge commit a manifest abuse of discretion
      when he allowed the CYS caseworker to testify at trial to hearsay
      statements of the victims, who testified at trial?

Appellant’s brief at 4 (unnecessary capitalization omitted).

      We begin by noting that the brief includes argument advocating the

merits of only the first question. Id. at 16-21. The remaining questions are

discussed in a separate portion of the brief under the heading “Anders brief,”

which concludes with counsel’s assessment that these issues lack merit. Id.

at 22-29.     As this Court thoroughly discussed in Commonwealth v.

Morrison, 173 A.3d 286 (Pa.Super. 2017), such a hybrid advocate’s/no-merit

brief is improper.

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      The Morrison Court noted that, while indigent defendants have the

constitutional right to counsel on direct appeal, all attorneys have the ethical

obligation to refrain from pursuing frivolous appeals.     Id. at 291.   “When

appointed counsel is asked to pursue an appeal that he or she, after

‘conscientious examination,’ deems to be ‘wholly frivolous,’ counsel must

seek to withdraw from representation on appeal by using the procedure

outlined by the United States Supreme Court and our Supreme Court.” Id.

(citing   Anders   v.    California,   386   U.S.   738,   744   (U.S.   1967);

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

added in Morrison). The Anders procedure is designed “to give an indigent

defendant access to counsel who uses his or her trained eye to make the same

diligent and thorough evaluation of the case as a retained lawyer before

concluding that an appeal is frivolous.” Id.

      However, this procedure for withdrawal of counsel under Anders

“applies only to appeals that are wholly frivolous—that is, cases where

counsel has determined that there are no arguments that counsel may

advance because all issues lack basis in law and/or fact.” Id. (emphases in

original). If counsel identifies any non-frivolous issue, he or she must file an

advocate’s brief that, to the best of counsel’s ability, seeks to persuade this

Court to grant relief.   Id.   The indigent defendant has no right to require

counsel to pursue even non-frivolous arguments if counsel, in exercising

professional judgment, determines it is best to decline to do so. Id. at 292.


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“The process of winnowing out weaker arguments on appeal and focusing on

those more likely to prevail, far from being evidence of incompetence, is the

hallmark of effective appellate advocacy.” Id. (cleaned up).

      The Morrison Court found persuasive the reasoning of the Third Circuit

Court of Appeals in United States v. Turner, 677 F.3d 570 (3d Cir. 2012),

when it too was faced with a brief that both advocated some claims and

explained why others were frivolous. Turner and his counsel requested that

Turner be granted leave to file a supplemental pro se brief in which to present

arguments on the issues counsel had deemed to be frivolous, but the court

declined, holding that hybrid representation is impermissible.      Morrison,

supra at 292.       The court concluded that counsel’s hybrid approach was

contrary to the Rules of Professional Conduct, which require a lawyer “to

reasonably consult with the client about the means by which the client’s

objectives are to be accomplished. When a client and counsel disagree, the

client may discharge the lawyer. Moreover, the rules permit the lawyer to

exercise professional discretion.” Id. at 293 (cleaned up). The Turner court

thus rejected the quasi-Anders procedure, and concluded that “when

disagreements arise between counsel and the client as to the issues to include

in an appellate brief, counsel should evaluate the issues and present only the

issues that counsel believes, consistent with his or her ethical duty, are

meritorious.” Id.




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      Although it acknowledged that counsel’s efforts were well-intentioned,

the Morrison court held that the hybrid advocate’s/Anders brief was

improper. Since it is entirely acceptable for attorneys to elect to omit non-

frivolous issue in litigating an appeal, the Court saw no reason for counsel who

has identified a valid basis to seek relief to also present frivolous issues that

the client wishes to argue. Id. The Court noted that the availability of post-

conviction collateral relief supports this course, as “the appellant may assert

counsel’s ineffectiveness at a later time and, thus indirectly, assert the claims

he or she would have made on direct appeal.” Id. (internal quotation marks

and citation omitted).

      Accordingly, the Morrison Court held as follows:

      when counsel and an appellant disagree on which issues should
      be raised and/or briefed on appeal, counsel must only raise and/or
      brief the issues that counsel believes, consistent with counsel’s
      ethical duty, to be nonfrivolous. If the disagreement arises prior
      to counsel’s filing of briefs, the appellant is free to petition for the
      withdrawal of counsel in order for the appellant to attempt to
      proceed pro se or with privately-retained counsel.               If the
      disagreement arises after briefs have been filed by appointed
      counsel, and the appellant remains convinced of the merit of his
      or her proposed issues, the appellant may later challenge the
      effectiveness of his or her appellate counsel in a timely-filed
      collateral attack pursuant to the PCRA.

Id.

      In conducting its analysis, the Court noted that Morrison did not attempt

to file a pro se brief in that case, but, “[i]f he had, we would not have been

permitted to consider it, as hybrid representation on direct appeal is not

permitted in Pennsylvania.” Id. at 292 n.5 (citing Commonwealth v. Ellis,

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626 A.2d 1137, 1141 (Pa. 1993)). The Court also observed that our Supreme

Court has made clear that “a criminal appellant who challenges the

effectiveness of his appellate counsel’s representation cannot terminate

counsel after the time of counsel’s filing of appellate briefs simply because he

wishes to file pro se appellate briefs.” Id. (citing Commonwealth v. Rogers,

645 A.2d 223, 224 (Pa. 1994)) (internal quotation marks omitted). “Instead,

the appellant must remain with counsel through the appeal, once counsel has

filed briefs, but may assert appellate counsel’s ineffectiveness at a later time.”

Id. (cleaned up).

       Hence, it is clear that counsel’s quasi-Anders brief is improper, and that

Appellant is not entitled to proceed pro se at this stage of the appeal. As

detailed above, Appellant made no request to proceed pro se until after

counsel filed his brief. Moreover, the motion to proceed pro se also included

a request for the appointment of new counsel along with allegations of

ineffective assistance of present counsel. Applying the reasoning of Morrison

to the instant case, (1) we deny Appellant’s late motion to proceed pro se;2

and (2) we shall limit our review to the issue upon which counsel advocates

for relief, and leave any determination as to the merits of claims which counsel

declined to argue for Appellant to litigate on collateral review, subject to the

requirements of the PCRA.


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2See Commonwealth v. Jette, 23 A.3d 1032, 1044 (Pa. 2011) (“[O]nce the
brief has been filed, any right to insist upon self-representation has expired.”).

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      Appellant asserts that his due process rights were violated when the trial

court served as the fact-finder at a non-jury trial after having presided over

motions where he was privy to the hearsay statements of the victims.

Appellant’s brief at 18-19. In support, Appellant cites our Supreme Court’s

decision in Commonwealth v. Paquette, 301 A.2d 837 (Pa. 1973). In that

case the Court, considering a claim that the judge who ruled upon the

defendant’s suppression motion should not have presided over the subsequent

non-jury trial, noted that “[t]he better practice in a multi-judge county would

be to have the trial conducted by someone other than the judge who presided

over the Suppression Proceedings particularly where there is a waiver of jury

accepted.” Id. at 841.

      Appellant acknowledges that the issue of disqualification or recusal of

the judge was not preserved by a timely objection in the trial court and that

he entered a knowing and voluntary waiver of his right to a jury trial at the

time he waived it. Id. at 19-20. However, Appellant emphasizes that the

waiver pre-dated the Commonwealth’s Tender Years notice, and that no new

colloquy was conducted afterwards to ensure that Appellant “understood that

the same judge would be hearing trial testimony, after hearing damaging

testimony during the Tender Years Hearing.” Id. at 20-21.     Appellant argues

that his waiver of the right to a jury trial was rendered unknowing by the

Commonwealth’s subsequent Tender Years notice and hearing, and that “best




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practice and his due process right would have been served if another judge

. . . presided over the trial or the Tender Years Hearing.” Id. at 21.

        In its brief, the Commonwealth’s only countervailing argument is that

Appellant was colloquied regarding the fact that the same judge would hear

the pretrial motions and preside at trial, and Appellant thus waived any

potential conflict. Commonwealth’s brief at 5 (citing N.T. Omnibus Pretrial

Motions, 12/30/16, at 36-37).

        We are not persuaded that Appellant is entitled to relief. Our Supreme

Court has explained that Paquette did not create “a mandatory requirement

even in a multi-judge district[.]”3 Commonwealth v. Goodman, 311 A.2d

652, 653 (Pa. 1973).         Rather, the High Court has clarified that the rule

regarding the same judge hearing pretrial motions and presiding over the

subsequent trial is that “a judge should honor a request for recusation where

prejudicial information is received in a pre-trial proceeding that would be

otherwise inadmissible during the trial of the cause.” Id. at 654. “Whether a

trial judge should recuse himself thus depends upon the type of evidence that

the judge hears; if the evidence is inadmissible and is of a highly prejudicial

nature, the judge should recuse himself or declare a mistrial if it is too late for

recusal.” Commonwealth v. Lewis, 460 A.2d 1149, 1151 (Pa.Super. 1983).

This Court has more recently summarized the applicable law as follows:



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3   Wayne County is not a multi-judge district.

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       The mere participation by the trial judge in an earlier stage of the
       proceedings does not provide a per se basis for requiring recusal
       of the trial judge.

       The determination of whether a trial judge should recuse himself
       depends upon the following: the type of evidence that the judge
       hears; if the evidence is inadmissible and is of a highly prejudicial
       nature, the judge should recuse himself or declare a mistrial if it
       is too late for recusal. The judge should also recuse himself
       whenever there is substantial doubt as to his ability to preside
       impartially. The burden to show prejudice, however, is on the
       party seeking recusal. If the evidence is admissible, or not of a
       highly prejudicial nature, recusal is not required, and while it may
       be the better practice to have a different judge preside over trial
       than preside over pre-trial proceedings, such a practice is not
       constitutionally required and has not been made the basis for
       setting aside a verdict reached in an otherwise proper trial. This
       principle appears to be based on the prevailing view that judicial
       fact-finders are capable of disregarding prejudicial evidence.

Commonwealth v. Postie, 110 A.3d 1034, 1038 (Pa.Super. 2015) (cleaned

up).

       Moreover, our Supreme Court has made clear that even if a judge should

have recused himself or herself under the above standards, an appellant is

not entitled to relief unless the issue was preserved at trial by raising it in the

trial court. See Goodman, supra at 654 (finding claim that trial court should

have granted defendant’s motion to disqualify was waived for appeal because

it was not included in post-sentence motion); Paquette, supra at 841

(holding defendant not entitled to relief where he did not request that the

judge recuse himself).

       Application of this precedent to the facts of the instant case

demonstrates that Appellant’s claim must fail.          First, Appellant did not


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preserve the issue for appeal. Upon questioning by the trial court, Appellant

expressly indicated at the hearing on pretrial motions that he would not ask

for recusal if the case remained in Wayne County.       N.T. Omnibus Pretrial

Motions, 12/30/16, at 36-37. Appellant did not express any change of heart

by presenting a motion for recusal after the Tender Years hearing was held.

Nor did he file a post-sentence motion preserving the issue. Hence the claim

of error is waived. Goodman, supra at 654; Paquette, supra at 841.

       Moreover, Appellant couches his claim in terms of a due process

violation; yet, as indicated above, this Court has expressly stated that having

a different judge try a case than the one who heard pretrial motions “is not

constitutionally required.” Postie, supra at 1038. Finally, the trial court,

after hearing the Tender Years testimony at the hearing on pretrial motions,

ruled that the evidence was admissible, and Appellant does not claim that that

ruling was erroneous.4 Recusal is not warranted if the pretrial evidence is

admissible at trial. Id. For any and all of these reasons, Appellant’s claim

warrants no relief from this Court.

       However, our review of the record does reveal that Appellant is entitled

to some relief on a different issue. By order dated October 5, 2017, the trial

court found Appellant to be an SVP by clear and convincing evidence pursuant

to 42 Pa.C.S. § 9799.24(e)(3) of the Sexual Offender Registration and


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4 Counsel addressed the admissibility of the Tender Years testimony in the
“Anders Brief” portion of Appellant’s brief.

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Notification Act (“SORNA”). On October 31, 2017, this Court held “that section

9799.24(e)(3) of SORNA violates the federal and state constitutions because

it increases the criminal penalty to which a defendant is exposed without the

chosen fact-finder making the necessary factual findings beyond a reasonable

doubt.” Commonwealth v. Butler, 173 A.3d 1212, 1218 (Pa.Super. 2017),

appeal granted, 190 A.3d 581 (Pa. 2018). “Since Butler finds that this issue

pertains to the legality of the sentence, . . . we may reach [the issue] sua

sponte.” Commonwealth v. Tighe, 184 A.3d 560, 583 (Pa.Super. 2018),

appeal granted, 195 A.3d 850 (Pa. 2018).

      As such, we vacate the order designating Appellant as an SVP. However,

we need not remand for the issuance of new notice of his registration

requirements; “[s]ince Appellant was convicted of a Tier III offense, he is still

required to register for life.” Commonwealth v. Tighe, 184 A.3d 560, 583

(Pa.Super. 2018), appeal granted, 195 A.3d 850 (Pa. 2018).

      Application to Proceed Pro Se denied.          SVP designation vacated.

Judgment of sentence affirmed in all other respects. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/22/19



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