J-S56027-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellee

                    v.

JASON PAUL SCHROCK

                         Appellant                 No. 825 MDA 2014


                Appeal from the PCRA Order of April 23, 2014
              In the Court of Common Pleas of Franklin County
              Criminal Division at No.: CP-28-CR-0002031-2010


COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellee

                    v.

JASON PAUL SCHROCK

                         Appellant                 No. 872 MDA 2014


                Appeal from the PCRA Order of April 23, 2014
              In the Court of Common Pleas of Franklin County
              Criminal Division at No.: CP-28-CR-0001239-2011


COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellee

                    v.

JASON PAUL SCHROCK

                         Appellant                 No. 873 MDA 2014


                Appeal from the PCRA Order of April 23, 2014
J-S56027-14


               In the Court of Common Pleas of Franklin County
               Criminal Division at No.: CP-28-CR-0000273-2011


BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*

MEMORANDUM BY WECHT, J.:                         FILED JANUARY 30, 2015

       In this consolidated case,1 both the Commonwealth and Jason Schrock

appeal aspects of the April 23, 2014 order in which Schrock’s petition for

relief pursuant to the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§

9541-46, was granted in part and denied in part. For the following reasons,

we affirm.

       In its opinion filed contemporaneously with its April 23, 2014 order,

the PCRA court summarized the relevant procedural history of this case as

follows:

       At case number 2031-2010, [Schrock] was charged with driving
       under the influence of alcohol or controlled substance, [75
       Pa.C.S. § 3802(d)(2),] as well as related summary offenses for
       an incident that occurred on August 29, 2010. At case number
       273-2011, [Schrock] was charged with two counts of delivery of
       marijuana[, 35 P.S. § 780-113(a)(30),] for incidents occurring
       on November 3, 2010 and November 9, 2010. At case number
       1238-2011, [Schrock] was charged with burglary[, 18 Pa.C.S. §
       3502(a),] and criminal mischief[, 18 Pa.C.S. § 3304(a)(2),] for
       an incident at the home of Daniel Yoder (“Yoder”) between
       November 20, 2010 and November 22, 2010. Finally, at case
       number 1239-2011, [Schrock] was charged with burglary, theft[,
       18 Pa.C.S. § 3921(a),] and criminal mischief for another incident
       involving Yoder on November 20, 2010.
____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
1
      On June 17, 2014, this Court sua sponte consolidated the three above-
captioned cases for unitary review.



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     For a short time[, Schrock] was represented by Attorney R. Paul
     Rockwell of the Franklin County Public Defender’s Officer. On
     June 21, 2011, Attorney Mark Orndorf (“Attorney Orndorf”) was
     appointed to represent [Schrock] in case numbers 2031-2011
     and 273-2011.       Attorney Orndorf was later appointed to
     represent [Schrock] in case numbers 1238-2011 and 1239-
     2011. Attorney Orndorf represented [Schrock] at mandatory
     arraignment on case numbers 1238-2011 and 1239-2011. At
     that time counsel advised the court that the Commonwealth had
     offered the plea offer that [Schrock] had verbally agreed to and
     waived his preliminary hearing on the basis of. Attorney Orndorf
     advised that he would prepare a detailed motion on the
     contractual issues of a plea agreement; however, no motion was
     prepared because, after additional research, Attorney Orndorf
     concluded that the issue lacked merit.

     On September 27, 2011, Attorney Orndorf filed an Omnibus
     Motion to Suppress Evidence in case numbers 273-2011, 1238-
     2011, and 1239-2011. [Schrock] requested that all evidence
     obtained through an Order Authorizing the Consensual
     Interception of Oral Communications in a Home dated November
     9, 2010 (“Consensual Order”) be suppressed. [Schrock] alleged
     that said Order was illegal and defective on its face because it
     was improperly backdated when filed by the Clerk of Courts.
     Specifically, the date the Consensual Order was time-stamped as
     filed was backdated.       The date the Consensual Order was
     actually signed by [the trial judge] was not altered. [Schrock]
     then filed his own Supplemental Motion to Suppress Evidence.
     On November 7, 2011, after investigating the issue and
     confirming that [the trial judge] had indeed signed the Order in
     November of 2010, Attorney Orndorf filed a Motion to Exclude
     Evidence which contained essentially the same allegations as the
     Omnibus Motion to Suppress Evidence.

     By Order of Court dated November 14, 2011, because of
     irreconcilable differences between Attorney Orndorf and
     [Schrock], Attorney Todd Sponseller (“Attorney Sponseller”) was
     appointed to represent [Schrock]. Attorney Sponseller did not
     request additional discovery or file any of the motions [that
     Schrock] requested (such as a Motion to Drop All Charges Based
     on Extraordinary Circumstances) because counsel determined
     that the issues did not have merit. Attorney Sponseller met with
     his client several times and appeared at various hearings on
     [Schrock’s] behalf.      At one point, Attorney Sponseller’s
     appointment was modified from trial counsel to standby counsel.

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     On January 9, 2012, the day scheduled for jury selection in
     [Schrock’s] DUI case (2031-2011), Attorney Sponseller assisted
     [Schrock] in negotiating a plea agreement to dispose of all [of
     Schrock’s] outstanding charges. [Schrock] entered a plea of
     guilty to two counts of delivery in case number 273-2011; one
     count of driving under the influence, general impairment (second
     offense, tier III) in case number 2031-2011; and one count of
     theft as a misdemeanor of the first degree in case number 1239-
     2011.    The plea agreement further provided for a specific
     sentencing scheme whereby [Schrock] would receive 24 to 60
     months for delivery (ct. 1, 273-2011) followed by 6 to 60
     months on the DUI (2031-2011) to be served concurrently with
     a sentence of 6 to 60 months for theft (1239-2011) followed by
     24 to 60 months for delivery (ct. 2, 273-2011). Functionally, the
     plea agreement called for two concurrent sentences of 2 ½ to 10
     years in a state correctional institution.        [Schrock] was
     sentenced [on] the same day in accordance with the plea
     agreement.      [Schrock] filed neither a timely post-sentence
     motion nor a direct appeal thereafter.

                              *     *     *

     On December 31, 2012, [Schrock] filed a Motion to Modify
     Sentence (Nunc Pro Tunc), along with a Supplement to Motion to
     Modify Sentence on January 14, 2013. In the Supplement,
     [Schrock] requested that his Motion to Modify Sentence be
     considered a timely filed PCRA petition. After the court received
     further correspondence from [Schrock] regarding his Motion to
     Modify Sentence, by Order of Court dated May 28, 2013, the
     court ordered that [Schrock’s] Motion to Modify Sentence and
     Supplement would be considered a timely filed PCRA petition.
     Attorney Brian Williams (“Attorney Williams”) was appointed to
     represent [Schrock] in PCRA proceedings.

     While represented by counsel, [Schrock] filed several motions
     pro se. On June 24, 2013, [Schrock] filed a motion to request
     an extension of time, as well as permission to conduct additional
     discovery.

     On July 22, 2013, [Schrock] filed a pro se Petition for Relief
     Under the Post Conviction Relief Act. [Schrock] requested relief
     in case numbers 2031-2010 (DUI), 273-2011 (delivery), and
     1238-2011 (burglary). Because case number 1238-2011 was
     nolle prossed as part of the plea agreement, it was determined
     that [Schrock] was actually seeking relief in case number 1239-


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J-S56027-14


     2011 (theft), as confirmed by [Schrock’s] Amended PCRA
     Petition. In his initial PCRA petition, [Schrock] alleged that he
     should be granted relief on two grounds:

        1.)   A violation of the Constitution of this Commonwealth
              or the Constitution or laws of the United States
              which, in the circumstances of the particular case, so
              undermined the truth-determining process that no
              reliable adjudication of guilt or innocence could have
              taken place. 42 Pa.C.S. § 9543(a)(2)(i).

        2.)   Ineffective assistance of counsel which, in the
              circumstances of the particular case, so undermined
              the truth-determining process that no reliable
              adjudication of guilt or innocence could have taken
              place. 42 Pa.C.S. § 9543(a)(2)(ii).

     [Schrock] sought to have his convictions in case numbers 273-
     2011 and 1239-2011 vacated. In the alternative, [Schrock
     requested] that all of his sentences run concurrently for an
     aggregate sentence of 2 ½ to 5 years.

     [Schrock] was still represented by Attorney Williams at the time
     that he filed the pro se PCRA petition. [Schrock] requested to
     represent himself[. Accordingly], on September 20, 2013[,] the
     [PCRA] court held a hearing on the issue which [Schrock]
     attended via videoconferencing. The [PCRA] court found that
     [Schrock] knowingly, intelligently, and voluntarily waived his
     right to counsel in his PCRA proceedings. The appointment of
     Attorney Williams was rescinded and [Schrock] was permitted to
     represent himself.     [Schrock] was also permitted to file a
     supplemental petition for relief.

     [Schrock] filed a request to amend his PCRA petition on
     November 8, 2013. By Order of Court dated November 15,
     2013, [Schrock] was granted leave of court to file an amended
     PCRA petition within thirty days. [Schrock] filed an amended
     PCRA petition on December 6, 2013. [Schrock’s] amended PCRA
     petition [set] forth an alternative claim for relief in case number
     2031-2010, specifically, the imposition of a sentence greater
     than the lawful maximum. 42 Pa.C.S. § 9543(a)(2)(vii). Per
     [Schrock’s] handwritten note in the corner of his amended PCRA
     petition, in case number 2031-2010, all issues raised in the
     original PCRA petition [were] abandoned and [Schrock sought]
     only relief in that case on the basis that the sentence imposed by
     [the trial court] as part of the plea agreement was greater than

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J-S56027-14


       the lawful maximum. As to case numbers 273-2010 (2 counts of
       delivery) and 1239-2010 (theft), [Schrock asked the PCRA court]
       to consider his amended PCRA petition as a supplement to his
       original PCRA petition. [Schrock] again [requested] that his
       sentences either be set aside or that all of his sentences run
       concurrently.

       The Commonwealth filed a timely Answer to [Schrock’s]
       Amended PCRA Petition on January 2, 2014. An evidentiary
       hearing was held on [Schrock’s] amended PCRA petition on
       March 20, 2014. Attorney Orndorf, Attorney Sponseller, and
       [Schrock] testified at the hearing. Before [Schrock] began the
       questioning of his former attorneys, the [PCRA court] explained
       to [Schrock] that if the court did find that his counsel was
       ineffective as he alleged, the remedy would be a new trial, not
       for the court to craft a new sentence to [Schrock’s]
       specifications. [Schrock] chose to proceed.

PCRA    Court   Opinion,   4/23/2014,   at   1-6   (footnotes   omitted;   some

capitalization modified). On April 23, 2014, the PCRA court entered an order

granting Schrock relief at case number 2031-2010, finding that the sentence

on that case was illegal pursuant to this Court’s decision in Commonwealth

v. Musau, 69 A.3d 754 (Pa. Super. 2013). The court re-sentenced Schrock

to three months to six months’ incarceration. The PCRA court denied all of

Schrock’s other claims. See Order, 4/23/2014, at ¶¶1-2.

       On May 12, 2014, the Commonwealth filed a notice of appeal and a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b). On May 21, 2014, the PCRA court issued an opinion pursuant to

Pa.R.A.P. 1925(a) in response to the Commonwealth’s Rule 1925(b)

statement.

       On May 21, 2014, Schrock filed a notice of appeal. The following day,

the PCRA court directed Schrock to file a Rule 1925(b) concise statement.

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J-S56027-14



On May 30, 2014, Schrock timely filed a concise statement.       On June 20,

2014, the PCRA court issued a Rule 1925(a) opinion.

        We begin with the Commonwealth’s appeal at docket number 825 MDA

2014.     The Commonwealth presents the following issue for our review:

“Whether [Schrock’s] pled-to maximum sentence of five years for a DUI

refusal, graded as a misdemeanor of the first degree, resulted in a lawful

sentence?”     Brief for the Commonwealth (No. 825 MDA 2014) at 5.        We

review challenges to the legality of a particular sentence de novo, and our

scope of review is plenary. Commonwealth v. Akbar, 91 A.3d 227, 238

(Pa. Super. 2014).

        As noted earlier, the PCRA court concluded that the six–to-sixty month

sentence originally imposed upon Schrock at case number 2031-2011 for his

guilty plea to DUI was illegal pursuant to this Court’s decision in

Commonwealth v. Musau, 69 A.3d 754 (Pa. Super. 2013). In Musau, a

panel of this Court, after resolving a conflict between two competing

statutory provisions, held that, for a defendant who is convicted of a second

DUI offense and who refuses to submit a blood, breath, or urine sample for

chemical testing, the maximum sentence is six months of incarceration. Id.

at 758. Instantly, Schrock pleaded guilty to his second DUI offense, and had

refused to submit to chemical testing. Therefore, his conviction falls within

the parameters of Musau, and the PCRA court correctly concluded that his

initial sentence was illegal.




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J-S56027-14



       The   Commonwealth         presently    argues    that   the   Musau   panel’s

interpretation of the DUI statute “runs afoul of several rules of statutory

interpretation.” Brief for the Commonwealth (No. 825 MDA 2014) at 11. As

such, the Commonwealth urges this panel to reconsider the issue that was

resolved in Musau, and to reach a different conclusion. We decline to do so.

       It is well-settled that it “[i]t is beyond the power of a panel of the

Superior Court to overrule a prior decision of the Superior Court.”

Commonwealth v. Hull, 705 A.2d 911, 912 (Pa. Super. 1998) (citing

Commonwealth v. Taylor, 649 A.2d 453 (Pa. Super. 1994)).2 Therefore,

“absent legally relevant distinction of fact,” this panel is bound by the

Musau panel’s decision.           Hull, 705 A.2d at 912.          Thus, despite the

Commonwealth’s encouragement, we cannot, and therefore will not,

reconsider the merits of the Musau holding.

       Additionally, the Commonwealth notes for our attention that the

Pennsylvania      Supreme      Court    has    granted   allowance    of   appeal   in

Commonwealth v. Mendez, 71 A.3d 250 (Pa. 2014) (per curiam), in which

our Supreme Court is expected to resolve with finality the issue that was

____________________________________________


2
      Candidly, the Commonwealth concedes that this panel lacks this power
to overrule Musau. See Brief for the Commonwealth (No. 825 MDA 2014)
at 11 n.5. Nonetheless, the Commonwealth notes that it is raising the issue
here to preserve it for en banc review, which, if accepted, would be reviewed
by a panel that would have the authority to overrule Musau.               See
Commonwealth v. Jacobs, 900 A.2d 368, 377 n.9 (Pa. Super. 2006) (en
banc).



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J-S56027-14



addressed by Musau, and pursued herein by the Commonwealth. However,

the fact that the Supreme Court has granted allowance of appeal in a

particular case does not alter our obligation to apply the law as it currently

stands. “At this point in time, our high court has done no more than grant

an appeal. . . .   Because our Supreme Court has not yet ruled upon the

question, our Court’s prior decision . . . is binding.”   Commonwealth v.

Pepe, 897 A.2d 463, 465 (Pa. Super. 2006). Hence, Musau remains the

law of this Commonwealth, and the PCRA court correctly applied it herein.

The Commonwealth is not entitled to relief.

      We now turn to the issues presented by Schrock in the appeals

docketed at Nos. 872 and 873 MDA 2014. At No. 872 MDA 2014, Schrock

presents the following issues for our review:

      1. Are prosecutors permitted to offer a criminal defendant a
         great plea offer at the preliminary hearing stage, such as “if
         you waive your preliminary hearing, thereafter you may plea
         to this great offer.” And then, once the offer has been
         accepted, and the preliminary hearing waived, change/alter,
         or take the offer off the table all together?

      2. When a criminal defendant has been offered a plea deal in
         exchange for the waiver of his preliminary hearing, and he
         accepts the offered plea deal, and waives his preliminary
         hearing in anticipation of pleading guilty to the offer
         extended, is a legally binding contract formed?

      3. [W]hen a criminal defendant accepts such an offer, and
         waives his preliminary hearing in exchange for the offer, then
         the prosecution that extended the offer takes it off the table,
         or changes/alters the original deal, is there a meritorious
         issue ripe for litigation formed?




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Brief for Schrock (No. 872 MDA 2014) at 4 (unpaginated; numerals added

for ease of disposition).

      At No. 873 MDA 2014, Schrock presents the following issues:

      4.    Whether outrageous police misconduct with extraordinary
            outrageous court official misconduct for backdating of
            challenged documents and for the shredding of documents
            maliciously deprived [Schrock] of unwaivable fundamental
            rights to which no reliable adjudication of guilt or
            innocence could have taken place and for which no verdict
            under any such circumstance may stand?

      5.    Whether defense counsel was patently ineffective for
            failing to proceed on constitutional grounds by instead
            redacting, reducing and amending its pleading to a motion
            to exclude evidence on non-constitutional grounds rather
            than just supplement the original omnibus pre-trial
            motion?

      6.    Whether [Schrock] was intangibly denied adequate
            assistance of counsel when defense counsel became
            mediator for all parties and not remain an advocate for
            [Schrock] and under the circumstances compounded
            coercion of [Schrock] into an unknowing, involuntary and
            unintelligent plea surrendered to under duress?

Brief for Schrock (No. 873 MDA 2014) at 3 (numbering altered for ease of

disposition).

      Before we can address the merits of any of these issues, we first must

ascertain whether they are preserved properly for our review, and whether

any issues that are preserved are cognizable under the PCRA.        We first

consider Schrock’s Rule 1925(b) statement. It is well-established that issues

that are not raised in a concise statement filed pursuant to Pa.R.A.P.

1925(b) will be deemed waived. Commonwealth v. Butler, 756 A.2d 55,



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J-S56027-14



57 (Pa. Super. 2000) (quoting Commonwealth v. Lord, 719 A.2d 306, 309

(Pa. 1998)); see Pa.R.A.P. 1925(b)(4)(i)-(vii).        Waiver also applies to

concise statements “which are so vague as to prevent the court from

identifying the issue to be raised on appeal.” Commonwealth v. Dowling,

778 A.2d 683, 686-87 (Pa. Super. 2001) (“[A] Concise Statement which is

too vague to allow the court to identify the issues raised on appeal is the

functional equivalent of no Concise Statement at all.”). Additionally, “when

an appellant fails to identify in a vague Pa.R.A.P. 1925(b) statement the

specific issue he/she wants to raise on appeal, the issue is waived, even if

the trial court guesses correctly and addresses the issue in its Pa.R.A.P.

1925(a) opinion.” Commonwealth v. Lemon, 804 A.2d 34, 38 (Pa. Super.

2002).

       In his Rule 1925(b) statement, Schrock raised the following issues:

       1. Whether the PCRA court committed a reversible error when it
          failed to grant relief on/failed to consider [Schrock’s]
          argument that a fraud on the court entitled him to relief in
          cases 1239-2010 and 273-2010?

       2. Whether the PCRA court committed a reversible error when it
          failed to grant relief/failed to apply the Strickland[3] test to
          [Schrock’s] argument that his counsel was ineffective by not
          filing a motion for specific performance of agreement.?

       3. Whether the PCRA court committed a reversible error when it
          failed to permit [Schrock] to present evidence he needed to
          prove his claim of ineffective assistance of counsel?

Concise Statement, 5/30/2014, at 1-2.
____________________________________________


3
       See Strickland v. Washington, 466 U.S. 668 (1984).



                                          - 11 -
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      It is immediately apparent that the three issues raised by Schrock in

his brief at docket number 872 MDA 2014 are waived, because those issues

were not raised in his Rule 1925(b) statement, nor are they fairly

encompassed by the issues that were in fact raised. See Butler and Lord,

supra.

      In his first issue in the appeal docketed at 873 EDA 2014, Schrock

argues that the Commonwealth perpetrated a fraud upon the trial court,

because the application for the consensual wiretap was backdated before it

was time stamped with the court. This issue was duly raised in Schrock’s

Rule 1925(b) statement. However, the issue nonetheless is not cognizable

in this PCRA appeal.   When Schrock pleaded guilty, he waived “all defects

and defenses except those concerning the validity of the plea, the

jurisdiction of the trial court, and the legality of the sentence imposed.”

Commonwealth v. Stradley, 50 A.3d 769, 771 (Pa. Super. 2012) (citing

Commonwealth v. Boyd, 835 A.2d 812, 819 (Pa. Super. 2003)). Thus, his

challenge to the events that occurred prior to the entry of his guilty plea

forever was waived when Schrock pleaded guilty.         The PCRA is not a

mechanism by which criminal defendants can revive otherwise waived

issues.   Consequently, Schrock’s first issue listed in 873 EDA 2014 is not

cognizable in this appeal.

      In his second listed issue at 873 EDA 2014, Schrock contends that trial

counsel was ineffective for “failing to proceed to suppress on constitutional


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grounds by amending its [sic] pleading to a motion to exclude evidence on

non-constitutional grounds rather than just supplement the original omnibus

pre-trial motion.” Brief for Schrock (No. 873 MDA 2014) at 14. Specifically,

Schrock argues that trial counsel should have pursued suppression of the

relevant evidence based upon theories of fraud or tampering due to the

alleged backdating of the wiretap paperwork.          Id. at 15a.     Instead,

Schrock’s counsel purportedly withdrew the suppression motion, believing it

to be without merit.      Schrock contends that this maneuver constituted

ineffective assistance of counsel not designed to effectuate Schrock’s best

interests.

      This specific issue was not included in Schrock’s Rule 1925(b)

statement.    The issues pertaining to ineffective assistance of counsel that

Schrock set forth in his Rule 1925(b) statement refer only to counsel’s

purported failure to file a motion for specific performance of the plea

agreement and to the trial court’s failure to “permit [Schrock] to present

evidence he needed to prove his claim of ineffectiveness of counsel.”

Concise Statement, 5/30/2014, at 1-2.        Consequently, Schrock’s second

listed issue in his brief at docket number 873 MDA 2014 is waived.        See

Butler and Lord, supra.

      Finally, Schrock’s last listed issue also is waived for the same reasons.

Schrock contends that trial counsel acted as a mediator for the parties,

rather than acting as an advocate for Schrock. Brief for Schrock (No. 873


                                    - 13 -
J-S56027-14


MDA 2014) at 16. This issue plainly was not included in his Rule 1925(b)

statement, and is waived. See Butler and Lord, supra.

     Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/30/2015




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