J-A17006-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    MICHAEL HARRISON RUBIN                     :
                                               :
                      Appellant                :       No. 189 EDA 2017

             Appeal from the Judgment of Sentence March 3, 2017
                In the Court of Common Pleas of Bucks County
             Criminal Division at No(s): CP-09-CR-0005019-2016


BEFORE:      GANTMAN, P.J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                              FILED JUNE 09, 2017

        Appellant, Michael Harrison Rubin, appeals pro se from the judgment

of sentence entered in the Bucks County Court of Common Pleas, following

his jury trial conviction for possession of a small amount of marijuana for

personal use.1      For the following reasons, we remand with instructions,

strike the case from the A17-17 argument list, and continue the matter to a

later argument panel to be decided.

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

As stated in the affidavit of probable cause, on May 19, 2016, at

approximately 8:05 p.m., Officer Michael Rodgers was on duty and observed


____________________________________________


1
    35 P.S. § 780-113(a)(31)(i).


_____________________________

*Retired Senior Judge assigned to the Superior Court.
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a red Nissan Altima parked on the grass near a field.       The vehicle was

unoccupied and registered to Appellant.     Officer Rodgers approached the

vehicle, looked inside the passenger side window, and observed what

appeared to be a marijuana stem in the passenger side interior door grab.

Officer Rodgers observed Appellant walking across the field toward him.

Officer Rodgers asked Appellant what he was doing and where he had been.

According to Officer Rodgers, Appellant appeared nervous and smelled of

burnt marijuana. Appellant said he was driving down the road and stopped

to take pictures of the sunset and countryside.     Officer Rodgers said he

detected an odor of marijuana on Appellant’s person and observed what the

officer believed was a marijuana stem in Appellant’s vehicle. Officer Rodgers

stated his intent to search the vehicle based on his observations.    Officer

Rodgers asked Appellant if there was any marijuana inside the vehicle.

Appellant replied that if there was any marijuana, it would only be a small

amount. Officer Rodgers arrested Appellant for possession of marijuana and

conducted a search incident to arrest, which revealed several other small

amounts of marijuana.

     The Commonwealth charged Appellant with possession of a small

amount of marijuana and possession of drug paraphernalia. On September

9, 2016, Appellant filed a pro se pre-trial motion for judgment of acquittal,

claiming, inter alia, violation of Pa.R.Crim.P. 519(B)(2) (requiring prompt

filing of criminal complaint). The court held a hearing on December 5, 2016,


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after which the court denied relief.             The court also denied relief on

Appellant’s suppression motion.2 Appellant proceeded to a jury trial the next

day. At the conclusion of trial, the jury convicted Appellant of possession of

a small amount of marijuana for personal use;3 the jury found Appellant not

guilty of the remaining offense.           The court deferred sentencing pending

completion of another matter involving Appellant.              Appellant filed a

premature, pro se notice of appeal on January 4, 2017. The court sentenced

Appellant on March 3, 2017, to pay costs of prosecution.4 The court did not

order Appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), and Appellant filed none.
____________________________________________


2
  The certified record and docket entries show no written pre-trial
suppression motion was filed. The record suggests Appellant made an oral
suppression motion at the December 5, 2016 hearing.
3
  Appellant’s offense was graded as a misdemeanor. See 35 P.S. § 780-
113(g) (explaining any person who violates clause (31) of subsection (a) is
guilty of misdemeanor and upon conviction, shall be sentenced to
imprisonment not exceeding thirty days, or to pay fine not exceeding five
hundred dollars, or both).
4
   As a general rule, this Court has jurisdiction only over final orders.
Commonwealth v. Rojas, 874 A.2d 638 (Pa.Super. 2005). “A direct
appeal in a criminal proceeding lies from the judgment of sentence.”
Commonwealth v. Patterson, 940 A.2d 493, 497 (Pa.Super. 2007),
appeal denied, 599 Pa. 691, 960 A.2d 838 (2008). “A notice of appeal filed
after the announcement of a determination but before the entry of an
appealable order shall be treated as filed after such entry and on the day
thereof.” Pa.R.A.P. 905(a)(5). Here, Appellant filed a pro se notice of
appeal prior to sentencing and was sentenced on March 3, 2017, while his
appeal was pending. Thus, we will relate Appellant’s premature notice of
appeal forward to March 3, 2017, to resolve any jurisdictional impediments.
See id.



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     As a preliminary matter, Pennsylvania Rule of Criminal Procedure 122

provides:

        Rule 122. Appointment of Counsel

        (A)   Counsel shall be appointed:

                                 *    *     *

              (2) in all court cases, prior to the preliminary hearing
        to all defendants who are without financial resources or
        who are otherwise unable to employ counsel;

              (3) in all cases, by the court, on its own motion, when
        the interests of justice require it.

        (B)   When counsel is appointed,

                                 *    *     *

            (2) the appointment shall be effective until final
        judgment, including any proceedings upon direct appeal.

Pa.R.Crim.P. 122(A), (B). Under paragraph (A)(3), the court has authority

to appoint counsel regardless of eligibility, when the interests of justice

require it. Pa.R.Crim.P. 122, Comment; Commonwealth v. Cannon, 954

A.2d 1222 (Pa.Super. 2008), appeal denied, 600 Pa. 743, 964 A.2d 893

(2009) (explaining Rule 122 authorizes court to conduct case-by-case

evaluations of individual defendants’ circumstances to ascertain whether

counsel should be appointed).

     Instantly, the record lacks any foundation for Appellant’s pro se status

on appeal. Appellant claims he has no money to order the pre-trial and jury

trial transcripts in this case and insists he spent the last of his money


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producing and filing his appellate brief.        (See Appellant’s Brief at 5).

Appellant challenges the court’s suppression ruling on appeal, which we are

unable to review without the necessary transcripts.        Given the significant

rights at issue, the gaps in the certified record, and in the interests of

justice, we decline to proceed with the pro se appeal at this juncture. The

better resolution at this time is to continue the case from the A17-17

argument session scheduled to convene on June 27, 2017, in Philadelphia,

and remand for further proceedings.

       Upon remand, the trial court shall hold a hearing to determine

Appellant’s indigency status and if he is entitled to counsel on appeal under

Pa.R.Crim.P. 122.       If the court appoints counsel, counsel must order the

relevant transcripts and file a Pa.R.A.P. 1925(b) concise statement of errors,

within 30 days of receipt of the transcripts.            The trial court shall

subsequently file a supplemental Pa.R.A.P. 1925(a) opinion. If Appellant is

entitled to counsel and elects to proceed pro se on appeal, the court must

conduct a Grazier5 hearing to ascertain whether his waiver of counsel is

knowing, intelligent, and voluntary. If the trial court decides Appellant is not

indigent or otherwise entitled to the appointment of counsel, it must direct

Appellant to order the relevant transcripts in a timely manner or face waiver

of his issues on appeal.       The trial court shall have 60 days to advise this

____________________________________________


5
    Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998).



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Court of the outcome of the remand proceedings, after which the

Prothonotary shall order a new briefing schedule, if appropriate, and list this

case for the next available argument session in Philadelphia.

      Case remanded with instructions.     Case is stricken from the A17-17

argument list and continued to a later argument panel to be decided.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/9/2017




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