J-S95025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

MICHAEL BLACKWELL

                            Appellant                   No. 283 EDA 2016


            Appeal from the Judgment of Sentence December 22, 2015
              In the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): MC-51-CR-0036731-2014


BEFORE: STABILE, J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.:                               FILED JULY 26, 2017

       Michael Blackwell appeals, pro se, from the December 22, 2015

judgment of sentence entered in the Philadelphia County Court of Common

Pleas following his bench trial conviction for indirect criminal contempt for

violation of a protection from abuse (“PFA”) order or agreement. 1 In a prior

judgment order, we remanded this matter for the trial court to conduct a

Grazier2 hearing because Blackwell had engaged in hybrid representation by

filing, among other things, a pro se Pennsylvania Rule of Appellate Procedure

1925(b) statement while represented by Philip Andrew Smoker, Esquire.

See    Commonwealth            v.   Blackwell,   283   EDA   2016,   unpublished

____________________________________________


       1
           23 Pa.C.S. § 6114.
       2
           Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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memorandum (Pa.Super. filed Mar. 24, 2017). On remand, the trial court

held a hearing, concluded that Blackwell knowingly, intelligently, and

voluntarily waived his right to counsel, discharged Attorney Smoker, and

allowed Blackwell to proceed pro se. See Short Certificate, 4/11/17. The

matter is now ripe for review. We affirm.

     The trial court set forth the following factual and procedural history:

           On September 10, 2014, a [PFA] Order was entered
        against [Blackwell] prohibiting him from having any
        contact, direct or indirect, with Charmaine Prater. (See PFA
        1409V7806.) [Blackwell] had been in a relationship with
        Prater for approximately three and a half years. (N.T.,
        12/22/15, p. 11, 6.) The Order provides, in pertinent part,
        that [Blackwell] “is prohibited from having any contact
        with plaintiff...either directly or indirectly, at any
        location...” and became effective immediately “until
        otherwise modified or terminated by this Court after notice
        and hearing.” (See PFA 1409V7806, P3, 9.)

           On October 12, [2014], [Blackwell] was served with the
        PFA by Philadelphia Police Officer, Nannette Cheatum.
        (N.T. p.47, 4-5.) Prater testified that after being served
        with the PFA and despite being prohibited from doing so,
        [Blackwell] began contacting her by way of telephone.
        (N.T., 12/22/15, p. 13, 11-19.) Without being provoked to
        do so, [Blackwell] sent Prater a plethora of unsolicited text
        messages and called her cell phone numerous times. (N.T.
        p. 21, 23-25; p. 22, 1-5.) Prater testified to and presented
        proof that [Blackwell] sent her the following text
        messages, despite the PFA Order prohibiting him from
        doing so . . . . In addition to receiving unsolicited text
        messages, Prater testified that she also received uninvited
        telephone calls from the same phone number that
        [Blackwell] used to send the text messages from. (N.T. p.
        20, 18-23---p. 21, 23-25 -p. 22, 1-5.)

           Prater, whom has known [Blackwell] since Junior High
        School, credibly testified that she was extremely familiar
        with Appellant's telephone number and voice as she had


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           prior communications with Appellant over the course of
           their three and a half year relationship. (N.T. p. 10, 1-2, 8-
           9; p. 14, 19-25; p. 15, 1-8.)

                                           ...

              On October 27, 2014, [Blackwell] was subsequently
           arrested and charged with two counts of Contempt for
           Violation of an Order or Agreement, 23 Pa. C.S. § 6114
           and two counts of Harassment-Subject Other to Physical
           Contact, 18 Pa. C.S. § 2709.

               On December 22, 2015, [Blackwell] waived formal
           arraignment and ple[]d not guilty to the charges brought
           against him. [Blackwell] proceeded to a one-day bench
           trial, at the conclusion of which [Blackwell] was found the
           guilty of one count of Contempt for Violation of an Order or
           Agreement, 23 Pa. C.S. § 6114. The trial court
           immediately imposed a sentence of six months probation.
           [Blackwell] did not file a post-sentence motion.

Opinion, 6/9/16, at 3-5, 1-2 (“1925(a) Op.”).            On January 19, 2016,

Blackwell timely filed a notice of appeal.

       Blackwell raises3 seven issues4 on appeal:

____________________________________________


       3
        Preliminarily, we must discuss Blackwell’s failure to comply with the
Pennsylvania Rules of Appellate Procedure. Blackwell’s brief fails to include
a statement of jurisdiction, a statement of the scope and standard of review,
a statement of the questions involved, or a summary of the argument. See
Pa.R.A.P. 2114, 2116, 2117. The argument section of Blackwell’s brief
contains very little citation to relevant authority or matters in the record,
fails to show where in the record Blackwell preserved these issues for
appeal, and does not specify the appropriate relief for each issue. See
Pa.R.A.P. 2119(b), (c), (e). “Although Pennsylvania courts endeavor to be
fair to pro se litigants in light of the challenges they face conforming to
practices with which attorneys are far more familiar, [we] nonetheless long
have recognized that we must demand that pro se litigants comply
substantially with our rules of procedure.” Commonwealth v. Spuck, 86
A.3d 870, 874 (Pa.Super. 2014) (internal citation omitted). Further, “‘[t]his
Court will not act as counsel’ for an appellant who has not substantially
(Footnote Continued Next Page)


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             1. The [trial] court erred and abused its discretion as
                well as denied [Blackwell] due process because the
                [trial] court did not compel the [Commonwealth] to
                meet its burden of proof showing that the [trial]
                court had subject matter jurisdiction.

             2. Did the [trial] court err[] and abuse[] its discretion
                as well as den[y Blackwell] due process, by allowing
                insufficient ev[]idence to establish probable cause for
                the arrest of indirect criminal contempt and
                har[]as[s]ment on two separate occas[]ions, when
                thirteen (13) of the eighteen (18) of the alleged text
                messages submitted for probable cause, failed to
                indicate times and dates.

             3. Did the [trial] court err[] and abuse[] its discretion
                as well as den[y Blackwell] due process, when [the
                trial] judge . . . who hears both PFA cases (common
                pleas court) and violations of PFA cases (municipal
                court) presided over and/or had knowledge and
                information of both [Blackwell’s] PFA and criminal
                contempt, in v[io]lation of any and all governing
                conflict of interest statutes and laws.


                       _______________________
(Footnote Continued)

complied with our rules.” Id. (quoting Bombar v. W. Am. Ins. Co., 932
A.2d 78, 93 (Pa.Super. 2007)).

      Based on Blackwell’s failure to adhere to the Rules of Appellate
Procedure, this Court has the right to quash or dismiss Blackwell’s appeal
pursuant to Rule 2101. See Pa.R.A.P. 2101 (noting that parties appearing
before this Court “shall conform in all material respects with the
requirements of these rules as nearly as the circumstances of the particular
case will admit . . . and, if the defects are in the brief or reproduced record
of the appellant and are substantial,” we may quash or dismiss the appeal).
However, “in the interest of justice we address the arguments that can
reasonably be discerned from this defective brief.” Commonwealth v.
Lyons, 833 A.2d 245, 252 (Pa.Super. 2003).
      4
        Because Blackwell’s brief does not contain a statement of questions
involved, we have aggregated these issues from the headings in the
argument section of his brief.



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            4. Did the [trial] court err[] and abuse[] its discretion
               as well as deny [Blackwell] due process, by
               arbitrarily and capriciously waiv[ing] [Blackwell’s]
               right to a formal arraignment, when [Blackwell] “did
               not” knowingly and voluntarily waive this right, as at
               no time, did the court colloquy [Blackwell], either
               orally or in writing.

            5. The [trial] court erred and abused its discretion as
               well as denied [Blackwell] due process, by failing to
               find the plaintiff in contempt for violating the mutual
               PFA as admitted to by the plaintiff and established by
               the record.

            6. Throughout these proceedings, all documents from
               the court pertaining to MC-51-CR-0036731-2014,
               were captioned, “Municipal Court”, conversely and
               [w]ithout [Blackwell’s] knowledge or information, the
               court arbitrarily change[d] the [j]urisdiction of the
               court by sitting common pleas court officials [o]n the
               [b]ench of a [m]unicipal [c]ourt [p]roceedings.

            7. As the right to effective [a]ssistance of [c]ounsel is
               well established [a]nd constitutionally protected, did
               the court [commit an] error of law by its failure [t]o
               assure     the     [a]ppellant     competent     legal
               counsel/attorney/lawyer [t]hroughout proceedings.

Blackwell’s Br. at 2-6, 8-9.

      In his first and sixth issues, Blackwell argues that the trial court lacked

subject matter jurisdiction to hear this case.      Blackwell asserts that he

challenged the subject matter jurisdiction of the trial court by motion and,

without explaining how the trial court lacks subject matter jurisdiction,

asserts that the Commonwealth failed to prove that the trial court had

subject matter jurisdiction.

      “Subject matter jurisdiction relates to the competency of a court to

hear and decide the type of controversy presented[,] . . . and is a matter of


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substantive law.”      Commonwealth v. Bethea, 828 A.2d 1066, 1074 (Pa.

2003). Such a “question is purely one of law, [for which] our standard of

review is de novo, and our scope of review is plenary.” Id. at 1071.

       Blackwell’s argument is without merit. It is well settled that a judge of

the Court of Common Pleas has jurisdiction over the adjudication of indirect

criminal contempt, regardless of whether a defendant’s case has a municipal

court docket number. See Commonwealth v. Burton, 624 A.2d 138, 143

(Pa.Super. 1993) (“the Protection From Abuse Act provides specifically that

its protection and violations thereof are to be, unless the court is

unavailable, under the auspices of the Court of Common Pleas”) (emphasis

in original).

       Next, Blackwell argues that the evidence was insufficient to establish

probable cause for his arrest. Blackwell asserts that police lacked probable

cause to arrest him because 13 of the 18 text messages that the victim

showed to police “did not have a date or time attached[.]” Blackwell’s Br. at

4. Although Blackwell’s claim could be read as a challenge to the sufficiency

of the evidence to convict him of indirect criminal contempt,5 in the

argument section of his brief Blackwell argues that the police lacked

probable cause to arrest him.            Because the proper vehicle “to test the
____________________________________________


       5
        To the extent that Blackwell argues that evidence was insufficient to
convict, we conclude the claim lacks merit for the reasons stated in the
thorough and well-reasoned opinion of the Honorable Michael Fanning, which
we adopt and incorporate herein. See 1925(a) Op. at 6-9.



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sufficiency of the Commonwealth’s evidence pre-trial . . . . is a petition for a

writ of habeas corpus,” Commonwealth v. Marti, 779 A.2d 1177, 1179 n.1

(Pa.Super. 2001), and Blackwell raises this claim for the first time on

appeal,6 we conclude that Blackwell has waived this argument.              See

Pa.R.A.P. 302; see also Commonwealth ex rel. Kress v. Rundle, 228

A.2d 772 (Pa. 1967) (finding waiver of claims raised by habeas corpus

petitioner for first time on appeal).

       Next, Blackwell argues that the trial court erred and abused its

discretion because the Honorable Holly F. Ford hears petitions for PFA orders

and indirect criminal contempt cases for violations of PFA orders. Blackwell

baldly asserts that he was denied due process because Judge Ford “had

information and knowledge of both [Blackwell’s] PFA case and [c]riminal

[c]ases resulting from the PFA, and as such should have recused herself

from [Blackwell’s] cases[.]” Blackwell’s Br. at 4.

       Blackwell has waived this claim as well. The issue of recusal is waived

where the “appellant presents no evidence that he sought a recusal at any
____________________________________________


       6
        On October 1, 2015, Blackwell filed a pro se motion that included a
motion to dismiss for failure to state a claim upon which relief can be
granted. Even if we were to construe Blackwell’s motion as a petition for a
writ of habeas corpus, this motion did not preserve Blackwell’s issue for
appeal because he was counseled at that time. As such, Blackwell engaged
in hybrid representation, and his pro se motion was a legal nullity. See
Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa.Super. 2007)
(concluding that defendant’s pro se post-sentence motion, filed when
defendant was represented by counsel, was “a nullity, having no legal
effect”).



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time before the . . . verdict.” Commonwealth v. Johnson, 719 A.2d 778,

790 (Pa.Super. 1998).    Further, even if Blackwell had filed an appropriate

motion to recuse, the record shows that Judge Fanning presided over

Blackwell’s bench trial, not Judge Ford. Although Judge Ford presided over a

motion in limine hearing, Blackwell fails to explain how this prejudiced him.

      Next, Blackwell argues that the trial court abused its discretion and

denied him due process by denying him a formal arraignment.           Blackwell

claims he never waived a formal arraignment. Blackwell’s Br. at 5.

      We conclude that Blackwell’s claim is waived for failure to develop his

argument under Rule 2119(a). See Pa.R.A.P. 2119(a); Commonwealth v.

Hardy, 918 A.2d 766, 771 (Pa.Super. 2007) (“When briefing the various

issues that have been preserved, it is an appellant’s duty to present

arguments that are sufficiently developed for our review. . . .         [W]hen

defects in a brief impede our ability to conduct meaningful appellate review,

we may . . . find certain issues to be waived”). Blackwell fails to cite any

case law regarding the waiver of formal arraignment and provides no basis

for relief or any indication as to what type of relief would be available. “This

Court will not act as counsel and will not develop arguments on behalf of an

appellant,” Coulter v. Ramsden, 94 A.3d 1080, 1088 (Pa.Super. 2014),

and we make no exception here.

      Next, Blackwell argues that the trial court erred and abused its

discretion in failing to find the victim in contempt for violating a PFA order

that directed her not to contact Blackwell.    Blackwell asserts that the trial

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court should have recognized that the victim “enticed [Blackwell] into a

violation and then use[d] the police and the legal system to punish [him].”

Blackwell’s Br. at 7. Additionally, Blackwell asserts that the victim’s actions

show that he did not act with wrongful intent. We disagree.

       While the trial court, out of an abundance of caution, appointed the

victim Fifth Amendment counsel, the victim was neither charged with nor

tried for indirect criminal contempt.          “The district attorney,” not the trial

court, “is afforded the power to prosecute on behalf of the Commonwealth,

and to decide whether and when to prosecute.” Hearn v. Myers, 699 A.2d

1265, 1267 (Pa.Super. 1997).           Further, to the extent Blackwell argues he

lacked the required intent because of the victim’s conduct, this claim lacks

merit. See 1925(a) Op. at 7; Commonwealth v. Brumbaugh, 932 A.2d

108, 111 (Pa.Super. 2007) (“[W]rongful intent can be imputed by virtue of

the substantial certainty that [one’s actions will be] . . . in violation of the

PFA [o]rder.”).

       Finally, Blackwell argues that he received ineffective assistance from

the multiple trial counsel who represented him in this matter. However, we

cannot reach this argument, as it is well settled that claims of ineffective

assistance of counsel, except in rare circumstances,7 must be raised in a

Post Conviction Relief Act (“PCRA”) petition.             See Commonwealth v.


____________________________________________


       7
           Blackwell does not argue that these circumstances apply.



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Harris, 114 A.3d 1, 5 (Pa.Super. 2015) (“Our Supreme Court determined

[in Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013),] that, absent

certain circumstances, ‘claims of ineffective assistance of counsel are to be

deferred to PCRA review; . . . such claims should not be reviewed upon

direct appeal.’”) (quoting Holmes, 79 A.3d at 576). Therefore, we do not

reach the merits of Blackwell’s ineffectiveness claims.8

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/26/2017




____________________________________________


       8
        Our decision does not preclude Blackwell from raising these claims in
a timely PCRA petition.



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