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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                   :
                                          :
ERIK LYBARGER,                            :       No. 1692 WDA 2013
                                          :
                          Appellant       :


          Appeal from the Judgment of Sentence September 5, 2013,
              in the Court of Common Pleas of Cambria County
              Criminal Division at No. CP-11-CR-0000929-2012


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND ALLEN, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED APRIL 27, 2015

      Erik Lybarger appeals from the judgment of sentence entered on

September 5, 2013. We affirm.

      The relevant facts and procedural history of this appeal are as follows.

On March 6, 2012, appellant and William McGinnis were involved in an

altercation at the Point Stadium in Johnstown. Thirty minutes later, another

altercation occurred between the two men in the parking lot of a deli.

Appellant slashed McGinnis’ chest with a box cutter resulting in serious

injury.   Appellant was charged with aggravated assault and recklessly

endangering another person.

      On May 16, 2012, a preliminary hearing was held. At the beginning of

the hearing, defense counsel informed the court that appellant wished to

represent himself.        (Notes of testimony, 5/16/12 at 3.)    Initially, the
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magistrate denied appellant’s request to proceed pro se.      (Id. at 11.)

However, when it was time for the defense to question the first

Commonwealth witness, appellant again expressed that he wished to

represent himself and averred, “Mr. Filia does not represent me.”   (Id. at

18.) The court summarily read the waiver of counsel form to appellant and

appellant signed the form.   (Id. at 19.)    Thereafter, Attorney Filia was

instructed he was standby counsel and appellant would be cross-examining

the witness.   (Id. at 19-20.)   At the end of the hearing, the magistrate

found a prima facie case had been established, and the charges were

bound over to the Cambria County Court. (Id. at 27.)

     A criminal information was filed on June 13, 2012. On June 15, 2012,

more than a year before trial commenced, the Honorable Timothy P. Creany

conducted a Rule 121 colloquy and permitted appellant to represent himself

with the assistance of stand-by counsel, Michael Filia, Esq.     (Notes of

testimony, 6/15/12 at 20-21.)     (See also Docket #27.)   However, while

incarcerated, it was recommended that appellant undergo mental health

treatment at another facility. On September 14, 2012, Judge Creany filed

an order which continued appellant’s case. (Docket #49.)

     On November 16, 2012, Judge Creany directed that appellant be

evaluated at Torrance State Hospital pursuant to a mental health proceeding

recommendation. (Docket #54.) On December 5, 2012, following a review

of the psychological evaluation and reports from Torrance, Judge Creany



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denied self-representation and directed that Attorney Filia would represent

appellant. (Docket #63.)

      On May 10, 2013, at a hearing regarding appellant’s pro se motion for

nominal bail under Rule 600, the Honorable David J. Tulowitzki filed an order

directing Attorney Filia to be appointed as standby counsel for appellant.

(Docket #113.)     Thereafter, on May 23, 2013, Judge Tulowitzki filed an

order denying appellant’s pro se motion for nominal bail under Rule 600.

(Docket #133.)

      On May 30, 2013, pre-trial motions were heard prior to jury selection

before the Honorable Linda Rovder Fleming, and appellant represented

himself with Attorney Filia present as standby counsel. On June 6, 2013, the

trial began; appellant appeared pro se with Attorney Filia present as

standby counsel.   The trial court disposed of six pro se pre-trial motions

appellant had filed. Judge Fleming then provided instructions to the jury and

heard opening statements.     During appellant’s cross-examination of the

Commonwealth’s first witness, Judge Fleming asked appellant to approach

for a sidebar conference and appellant refused. (Notes of testimony, 6/6/13

at 93.)

      The jury was dismissed and the court conducted another Rule 121

colloquy, stating it was no longer convinced appellant had made a knowing,

intelligent, and voluntary waiver of his right to counsel.    (Id. at 107.)

Judge Fleming subsequently found that appellant voluntarily and knowingly



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waived his right to counsel.     (Id. at 106-120.)    Immediately thereafter, a

contempt hearing was conducted in relation to appellant’s open defiance of

the judge in view of the jury. (Id. at 124.) Appellant was found to be in

contempt, sentenced to 48 hours of incarceration, and barred from the

courtroom for contempt with the opportunity to purge by complying with

future court directives. Attorney Filia was directed to act as primary counsel

while appellant remained incarcerated.         (Id. at 130.)      The jury was

instructed not to take any adverse inference from appellant’s absence. (Id.

at 129-130.) The trial continued and appellant was ultimately found guilty

on all counts.

      On September 5, 2013, appellant was sentenced to a term of

imprisonment of 96 months to 192 months for aggravated assault and a

concurrent term of 12 to 24 months for REAP.           On September 9, 2013,

appellant filed a “letter of notice” with the clerk of courts, requesting it to be

considered a notice of appeal.1 By order dated October 14, 2013, appellant

was directed to file a concise statement of errors complained of on appeal

within 21 days pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A. Appellant

failed to comply, and a panel of this court, by order dated December 18,

2013, directed the trial court to consider whether appellant was financially

entitled to appointed counsel.



1
  This document was not initially docketed as a notice of appeal by the
Cambria County Clerk of Courts.


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      Thereafter, on December 27, 2013, the trial court issued an order

granting appellant in forma pauperis status and appointing Arthur T.

McQuillan, Esq., as appellant’s counsel. On February 4, 2014, appellant filed

a nunc pro tunc Rule 1925(b) statement raising the following issue:

            1.    Whether the defendant’s waiver of the right to
                  counsel four months prior to trial was:

                  (a)   timely; and

                  (b)   sufficient  to    determine    the
                        defendant’s     competency      to
                        understand the nature of the
                        charges pending against him, and
                        to completely represent himself at
                        trial; and

                  (c)   knowing, voluntary and intelligent
                        in view of the prior Court Orders of
                        mental      health     commitment,
                        evaluation and treatment?

Docket #268; appellant’s brief at 6.2

      The trial court finds appellant’s claim to be waived as the court was

unable to identify a ruling on this issue on or about the time period cited by

appellant -- four months prior to jury selection. (Trial court opinion, 3/7/14

at 3.) In his brief on appeal, appellant explains that he misstated the date

and “[u]pon applying for and examining additional transcripts, it became

apparent that [he] had waived his right to counsel before President Judge

Timothy P. Creany 12 months prior to trial, on June 15, 2012.” (Appellant’s


2
 A second claim presented in the nunc pro tunc Rule 1925(b) statement
has been abandoned on appeal.


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brief at 12 (emphasis in original).)      Appellant then acknowledged that

Judge Creany reversed his decision in December of 2012. (Id.) Appellant

posits that “counsel’s mistaken averment that the waiver took place

four months prior to trial should not affect the Superior Court’s review of

the issue.” (Id.) Additionally, we note the argument presented in his brief

concerns the timeliness and adequacy of the colloquy conducted during trial

on June 6, 2013, before Judge Fleming. (Id. at 15-17.)

     We find appellant’s colloquy issue waived because of the failure to

properly identify for the trial court the particular Rule 121 colloquy in

question.   Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa.Super.

2011), appeal denied, 632 A.3d 1275 (Pa. 2011) (citation omitted) (“[T]he

Rule 1925(b) statement must be specific enough for the trial court to

identify and address the issue an appellant wishes to raise on appeal.”).

“When a court has to guess what issues an appellant is appealing, that is not

enough for meaningful review.”     Commonwealth v. Dowling, 778 A.2d

683, 686 (Pa.Super. 2001) (citation omitted). As counsel points out, there

were numerous hearings in this matter and multiple times when appellant’s

request to proceed pro se was reviewed. Moreover, more than one judge

was involved in appellant’s case as it proceeded through the court system.

Thus, pursuant to the date specified in appellant’s Rule 1925(b) statement,

the trial court could not identify and address the claim. Because appellant’s

concise statement has completely hampered appellate review, this issue is



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waived.     Pa.R.A.P. 1925(b)(4)(vii) (issues not included in statement are

waived).

      Moreover, our review of the Rule 121 colloquies administered by the

various judges involved were, in fact, defective in that there was no inquiry

into Subsections (e) and (f).        However, no relief is due under the

circumstances of this case.       Following a psychological evaluation, on

December 5, 2012, Judge Creany specifically made a determination that

appellant    was   not   competent   to   represent   himself   and   appointed

Attorney Filia to represent him at trial.    This order is not challenged on

appeal.3 The issue of any previous colloquy being defective was made moot

by Judge Creany’s December 12th order. Presently, the court is at a loss as

to why both Judge Tulowitzki and Judge Fleming thereafter considered the

issue of self-representation. In any event, once appellant was barred from

the trial due to the contempt finding, Attorney Filia did in fact represent

appellant at trial. Appellant received all the rights to which he was entitled.

      Finally, appellant has repeatedly filed pro se motions during this

appeal while represented by Attorney McQuillan. These motions are denied

pursuant to Commonwealth v. Jette, 23 A.3d 1032 (Pa. 2011).

      Judgment of sentence affirmed.        The “motion for court order and

directive to counsel to withdraw,” the “application for an order to compel



3
  Appellant is not asserting on appeal that he wanted to proceed pro se but
that the colloquy to proceed pro se was defective.


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pro se,” and the motion entitled “jettes sui-juris/pro se brief fraud-upon-

the-court supplement” are denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/27/2015




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