J-S04006-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
             v.                          :
                                         :
                                         :
STEFAN EVANS, SR.                        :
                                         :
                   Appellant             :   No. 696 MDA 2017

           Appeal from the Judgment of Sentence April 13, 2017
   In the Court of Common Pleas of Bradford County Criminal Division at
                     No(s): CP-08-CR-0000357-2016


BEFORE: SHOGAN, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SHOGAN, J.:                           FILED MARCH 23, 2018

      Appellant, Stefan Evans, Sr., appeals pro se from the judgment of

sentence entered April 13, 2017, following his entry of a guilty plea to one

count of aggravated assault with a deadly weapon, 18 Pa.C.S. § 2702(a)(4),

on January 24, 2017. We affirm.

      Count two of the information, aggravated assault with a deadly

weapon graded as a second-degree felony, charged that Appellant “used a

buck knife to cut Stefan Evans, Jr.[, his son, in the] stomach with the folding

knife causing a deep long end laceration across the victim’s torso,

approximately 17 inches long, also cut the victim’s hand in two locations….”

Information, 6/20/16, at Count 2.

      The trial court summarized the procedural history of the case, as

follows:
J-S04006-18


       The charges arose from an alleged physical altercation between
       Appellant and his adult son wherein Appellant attacked his son
       with a pocket knife and cut his abdomen 17 inches. Appellant
       waived his May 24, 201[6] preliminary hearing and June 27,
       2016 formal arraignment while being represented by counsel,
       Richard Wilson, Esquire of the Bradford County Public Defender’s
       Office. A plea hearing was scheduled for August 29, 2016. On
       August 8, 2016 Appellant filed a “Waiver of Counsel” pro se
       seeking a hearing to proceed without counsel. A Grazier[1]
       hearing was held on the date of the scheduled plea hearing,
       August 29, 2016. After an extensive colloquy, an Order dated
       August 29, 2016 was entered finding Appellant knowingly and
       voluntarily waived [his] right to counsel. . . . Appellant did not
       enter a plea on said date. A criminal pretrial conference was
       then scheduled for September 13, 2016. The pretrial conference
       was continued two times at Appellant’s request so that he may
       prepare for trial. Appellant also filed various motions in the
       meantime such as an Omnibus Pretrial Motion on December 16,
       2016, a Motion to Recuse and a Motion Seeking Change of
       Venue. All such motions were denied as untimely or without
       merit.

             Appellant did file a Motion to Appoint Standby Counsel on
       December 19, 2016[,] which was granted and his prior counsel,
       Attorney Richard Wilson, Chief Public Defender, was appointed
       as standby counsel. At the January 18, 2017 criminal pretrial
       conference Appellant again waived counsel, but continued to
       desire standby counsel. Jury selection and trial was scheduled to
       begin January 23, 2017. On January 23, 2017 Appellant with
       standby counsel waived jury trial. An extensive colloquy was
       conducted regarding the waiver of jury trial which is similar to
       that of waiving counsel.       Thereafter further colloquy was
       conducted to insure Appellant continued to waive counsel.
       Appellant decided at that time he wanted counsel and standby
       counsel, Richard Wilson, Esquire, became his counsel of record.
       Trial was to commence on January 24, 2017 at which time
       Appellant, represented by counsel, entered a plea of guilty to




____________________________________________


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



                                           -2-
J-S04006-18


       Aggravated Assault, 2702(a)(4) as a Felony of the Second
       degree.[2]

              On February 23, 2017, Appellant again filed a “Motion to
       Waive Counsel” seeking a hearing on said Motion. He also filed a
       Motion to Withdraw Guilty Plea on March 10, 2017. On April 10,
       2017, a Grazier hearing was held. See Trans, 4/10/17 Grazier
       Hearing, Pgs. 3-5. As Appellant had already entered a plea of
       guilty, the colloquy questions were limited to his motion to
       withdraw guilty plea and sentencing. Appellant knowingly and
       voluntarily waived counsel. See Trans. 4/10/17 Grazier Hearing
       at pg. 5. Further hearing on Appellant’s Motion to Withdraw
       Guilty Plea was held and denied by Order dated April 12, 2017.
       See Trans. 4/10/17 Motion to Withdraw Guilty Plea, pgs. 6-10.

             Appellant was sentenced on April 13, 2017 to a minimum
       of 40 months and a maximum of 96 months.[3]

              Appellant filed a Notice of Appeal on April 24, 2012
       appealing from orders entered on April 10 and April 12, 2017.
       Appellant was ordered to file a concise statement of Matters
       Complained of on Appeal which he initially complied with on
       May 5, 2017. Appellant’s statement seeks “review of the abuses
       of discretion and unlawful rulings exercised by” the trial court
       and refers to Orders of January 20, 2017 (denying Appellant’s
       Omnibus Motion and Motion in Limine), February 17, 2017
       (unaware of an Order with this date) and Order of April 12, 2017
       (denial of Motion to Withdraw Guilty Plea). Appellant also makes
       bare assertions that all involved in his case denied him of [his]
       right to competent counsel, right to a preliminary hearing, right
       to challenge evidence, right to confront accusers, right to
       compulsory process to obtain witnesses, right to withdraw guilty
       plea and right to trial by judge or jury. On May 9, 2017,
       Appellant filed an Amended Concise Statement of Matters
       Complained Of to include “the complaint that the court failed to
____________________________________________


2  The negotiated plea included a sentencing agreement at the “low end of
the standard range minimum with the maximum open to the [c]ourt.” N.T.
(Guilty Plea), 1/24/17, at 1.

3  The minimum sentence imposed, forty months, was “the very bottom of
the standard range,” which was “forty months to fifty-two months.” N.T.
(Sentencing), 4/13/17, at 21.



                                           -3-
J-S04006-18


      conduct adequate waiver of counsel colloquy’s [sic] as required
      by law.” See footnote to Appellant’s Amendment to Concise
      Statement of Matters Complained of on Appeal.

Trial Court Opinion, 7/26/17, at 1–3.      On November 20, 2017, this Court

dismissed the appeal for Appellant’s failure to file a brief, but we reinstated it

sua sponte on December 7, 2017, following Appellant’s November 30, 2017

filing of “Extraordinary Writ, Constitutional Deprivation,” which we accepted

as a timely filed brief. Order, 12/7/17.

      As noted, on April 26, 2017, the trial court directed Appellant to file a

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

1925(b).    Appellant filed a concise statement on May 5, 2017, and an

amended concise statement on May 9, 2017. Appellant’s statements failed

to identify sufficiently the issues to be raised on appeal.          Noting this

insufficiency, the trial court stated as follows:

           Here Appellant’s Amendment to Concise Statement of
      Matters Complained sets forth that he is

            “seeking review of the abuses of discretion and the
            unlawful rulings by Maureen T. Beirne, President
            Judge, as is evidenced by the Orders she issued on:
            the 20th of January 2017 (related to a Motion in
            Limine); February 17, 2017, (related to an Omnibus
            Motion; and the Order of April 12, 2017 (related to
            the Argument held on April 10, 2017 pursuant to my
            filing of a Motion to Withdraw My Induced Guilty
            Plea.”

      See Appellant’s Statement filed May 9, 2017.

             Although Appellant concisely identifies each ruling he
      wishes to challenge, he fails to provide “sufficient detail to
      identify all pertinent issues.” Therefore, Appellant has waived
      any error or complaint and his sentence should be affirmed.


                                       -4-
J-S04006-18


           Appellant also sets forth in his statement that he will show
     through documents that the judge, assistant DA and public
     defender worked in cooperation to deny him due process. He
     sets forth the rights and protections violated as:

          The right to competent counsel, but fails to set forth
        how counsel was incompetent.

           Failure to conduct legal and adequate waiver of counsel
        colloquy, but fails to state he did not know what he was
        doing or that it was involuntary.

           Right to preliminary hearing but fails to set forth how
        this right was violated.

            Right to challenge the evidence held against him, but
        fails to set forth how this right was violated.

           Right to confront accusers, but fails to set forth how this
        right was violated.

            Right to compulsory process to obtain witnesses, but
        fails to state how this right was violated.

            Right to withdraw an illegally induced guilty plea, but
        fails to set forth how this right was violated.

           Right to trial by judge or jury, but fails to set forth how
        this right was violated.

         These are general boilerplate allegations. Again, Appellant
     fails to concisely identify each ruling in which the listed general
     issues were raised and fails to provide “sufficient detail to
     identify all pertinent issues.” The [c]ourt is unable to provide
     reasons for its rulings without sufficient detail as to what
     Appellant is claiming was error. Therefore, Appellant has waived
     said issues and his sentence should be affirmed.

Trial Court Opinion, 7/26/17, at 4–5. We concur that Appellant’s Pa.R.A.P.

1925(b) statements are “too vague to allow the court to identify the issues

raised on appeal [and are] the functional equivalent of no concise statement

at all.” Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa. Super. 2011).




                                    -5-
J-S04006-18


       Moreover,     “[a]ppellate     briefs   must   conform   materially   to   the

requirements of the Pennsylvania Rules of Appellate Procedure, and this

Court may quash or dismiss an appeal if the defect in the brief is

substantial.” Commonwealth v. Tchirkow, 160 A.3d 798, 804 (Pa. Super.

2017); Pa.R.A.P. 2101. “Although this Court is willing to construe liberally

materials filed by a pro se litigant, a pro se appellant enjoys no special

benefit. Accordingly, pro se litigants must comply with the procedural rules

set forth in the Pennsylvania Rules of the Court.” Id.

       Appellant’s brief fails to comply with multiple rules of appellate

procedure, beginning with Pa.R.A.P. 2111(a).           The brief fails to include a

Statement of the Scope and Standard of Review, a Statement of the

Questions Involved,4 Pa.R.A.P. 2116, a Statement of the Case, Pa.R.A.P.

2117, and a Summary of the Argument, Pa.R.A.P. 2118.                 Moreover, the

argument section of the brief fails to present identifiable, cogent legal

arguments with citation to pertinent law and/or the record, in violation of

____________________________________________


4  While there is no statement of the question involved, Appellant peppers
his argument with “questions.” For example, Appellant poses:

       Question; when the tree of justice has been contaminated by
       unjustified actions of Court Officials, the fruit of that tree can not
       ripen until that injustice that contaminated the tree of justice has
       been corrected and the manifest injustices that has caused that
       contamination has been removed; Does the Superior Court
       Justices agree with this analysis?

Appellant’s Brief at 4 (verbatim).



                                           -6-
J-S04006-18


Pa.R.A.P. 2119(c), (e), and Pa.R.A.P. 2132. We find that the considerable

defects in Appellant’s brief impair our review. Thus, for this reason as well,

we conclude that Appellant’s issues are waived.

       We further note the trial court’s reasons for its rulings, as follows:

       [T]he reasons for the [c]ourt’s [o]rders of January 20, 2017[,
       relating to Appellant’s motions in limine,] are set forth in said
       [o]rders . . . . Appellant’s Omnibus Motion was untimely.
       Appellant’s Motion in Limine repeated his Omnibus Motion.

              The April 12, 2017 [o]rder denying Appellant’s Motion to
       Withdraw Guilty Plea was entered because there was no
       colorable demonstration such that permitting withdrawal would
       promote fairness and justice.         “The proper inquiry on
       consideration of such a withdrawal motion is whether the
       accused has made some colorable demonstration, under the
       circumstances, such that permitting withdrawal of the plea would
       promote fairness and justice. The policy of liberality remains
       extant but has its limits, consistent with the affordance of a
       degree of discretion to the common pleas courts.”
       Commonwealth v. Carrasquillo, 631 Pa. 692, 706[, 115 A.3d
       1284, 1292] (Pa. June 15, 2015). Here Appellant made no such
       colorable demonstration. Appellant made a bare assertion of
       innocence in the motion.         At the hearing/argument, he
       commented that he [was] not guilty of aggravated assault but
       guilty of simple assault. Trans 4/10/17 at pg. 7–8. The facts set
       forth at the sentencing hearing supported the offense of
       aggravated assault, otherwise, the [c]ourt would not have
       accepted the plea. The Appellant entered a guilty plea the day
       trial was to commence. He then filed his petition to withdraw
       guilty plea within [one] month.         Appellant’s assertion of
       innocence is not credible.   [5]   Throughout the proceedings,
       Appellant has wavered between requesting counsel and
       requesting to proceed self-represented. . . .
____________________________________________


5   We observe, in addition, that Appellant stated at the April 10, 2017
hearing on Appellant’s motion to withdraw his guilty plea, “I have never, I
have never tried to say I was innocent of this charge . . . .” N.T., 4/10/17,
at 8.



                                           -7-
J-S04006-18


           The only issue that may have been raised properly is
     Appellant’s complaint regarding adequate waiver of counsel
     colloquy. Therefore that will be addressed here.

           At the August 29, 2016 [hearing,] an extensive waiver-of-
     counsel colloquy was conducted, however, Appellant did not
     request this transcript. Therefore, the [c]ourt will have same
     prepared and submitted as a supplement to the record.
     Appellant answered questions about his age, educational
     background, and mental health and mental defects and
     medications. Appellant stated that he understood he had a right
     to counsel, including the right to be appointed counsel free of
     charge in the event he could not afford an attorney. The nature
     of the charges and elements of the offenses were read to
     Appellant as well as the allegations against him and he stated he
     understood.      Appellant acknowledged he understood the
     maximum possible penalty for each of the offenses charged.
     Appellant also indicated he understood he would be held to the
     same procedural and evidentiary rules as an attorney, and that
     an attorney would be familiar with those rules[.] In addition,
     Appellant acknowledged he might have possible defenses that an
     attorney may be aware of that if not raised at trial could be lost
     permanently. Finally, Appellant stated he understood that he
     had many rights that he would have to assert in a timely manner
     in order to avoid losing them permanently.

           Appellant complains in his [Rule 1925(b)] statement that
     “the court failed to conduct adequate waiver of counsel
     colloquy’s as required by law.” He does not state that his waiver
     was not voluntary, knowing or intelligent.         However, the
     extensive colloquy is more than adequate to comply with
     Pa.R.Crim.Proc. Rule 121.

           Appellant does not state which waiver of counsel colloquy
     was inadequate, but refers to the transcript of [the] hearing held
     on April 10, 2017 and April 13, 2017[.] Appellant’s complaint is
     without merit because Pennsylvania Superior [C]ourt has
     adopted the “ongoing waiver rule.” This rule provides that “once
     a[n] Appellant has made a competent waiver of counsel, that
     waiver remains in effect through all subsequent proceedings in
     that case absent a substantial change in circumstances.”
     Commonwealth v. Phillips, 141 A.3d 512, 521 (Pa. Super. Ct.
     May 19, 2016). Thus the original waiver remained valid. Here
     there was no substantial change in circumstances. Appellant
     requested counsel for his trial, then entered a plea of guilty while

                                    -8-
J-S04006-18


     represented by counsel. Within one month[], Appellant again
     requested to proceed pro se.        This does not establish a
     substantial change in circumstances.

           Further, a colloquy for waiver of jury trial was conducted
     on January 23, 2017 providing Appellant with all his rights
     connected with a jury trial.       The colloquy further included
     questions regarding waiver of counsel and explaining what
     standby counsel is. It was at this time Appellant requested
     counsel to represent him.        On April 10, 2017, the issues
     remaining in the matter were [A]ppellant’s Motion to Withdraw
     Guilty Plea and potential sentencing scheduled for 2 days later.
     Appellant was again asked about his age, education and
     medications. Further Appellant was advised and acknowledged
     he understood that he would still be bound by all rules of
     procedure and knowledge of law that an attorney would be
     familiar with. Appellant also acknowledged he understood that if
     he failed to raise issues during his argument on Motion to
     Withdraw Guilty Plea, and if that was denied, at his sentencing in
     3 days, his right to raise such issues would be lost. These were
     the only rights Appellant needed to be advised of. He had been
     appointed counsel and was aware . . . that he could have
     counsel. He had been advised of the elements of the charges in
     the August 29, 2016 waiver of counsel proceeding and at the
     time he entered his plea of guilty. Therefore, the waiver of
     counsel colloquy at that time of the proceedings was adequate.
     To have advised Appellant of all the elements of all the charges
     against him again would have been “mere ceremony”. See i.e.
     Davis v. United States, 226 F.2d 834, 840 (8th Cir. 1955). This
     matter is similar to that of Arnold v. United States, 414 F.2d
     1056 (9th Cir. 1968) wherein the Ninth Circuit Court of Appeals
     found that “Appellant had not triggered the need for a new
     colloquy” where Appellant had competently waived counsel, but
     then requested appointment of counsel as indicated in initial
     waiver that said waiver was limited to that particular stage of the
     proceedings. Id. at 1057.

Trial Court Opinion, 7/26/17, at 6–8.

     In sum, we agree with the trial court that Appellant’s vague and

imprecise Pa.R.A.P. 1925(b) statements fail to preserve issues for review.

See Commonwealth v. Lemon, 804 A.2d 34, 38 (Pa. Super. 2002)


                                    -9-
J-S04006-18


(stating that when an appellant’s Pa.R.A.P.1925(b) statement is too vague

to identify a specific issue, the issue is waived).        Further, Appellant’s

appellate brief fails to provide identifiable, coherent legal arguments and

fails to comply with our rules of appellate procedure, resulting in waiver on

this basis, as well. Tchirkow, 160 A.3d 798. Finally, even if not waived,

the denial of Appellant’s motion to withdraw his guilty plea and the

sufficiency of the colloquy to waive counsel lack merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/23/2018




                                    - 10 -
