J. S42037/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :    IN THE SUPERIOR COURT OF
                                       :          PENNSYLVANIA
                  v.                   :
                                       :
JAMES LESLIE FLOWERS, JR.,             :          No. 97 MDA 2017
                                       :
                       Appellant       :


         Appeal from the Judgment of Sentence, October 12, 2016,
            in the Court of Common Pleas of Schuylkill County
             Criminal Division at No. CP-54-CR-0001181-2015


BEFORE: OLSON, J., MOULTON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED JANUARY 30, 2018

     James Leslie Flowers appeals pro se from the October 12, 2016

judgment of sentence entered in the Court of Common Pleas of Schuylkill

County1 following his conviction in a jury trial of delivery of a controlled

substance, possession with intent to deliver a controlled substance, and




1 Appellant filed his appeal from the December 7, 2016 order denying his
post-sentence motion. In the criminal context, an appeal properly lies from
the judgment of sentence, not an order denying post-sentence motions.
Commonwealth v. Dreves, 839 A.2d 1122, 1125 n.1 (Pa.Super. 2003)
(en banc). The caption, therefore, has been amended to reflect that this
appeal is from the October 12, 2016 judgment of sentence.
J. S42037/17

possession of a controlled substance.2 The trial court imposed a sentence of

27 to 54 months of imprisonment.3 We affirm.

        In a prior memorandum, we set forth the following procedural history:

                     The record reflects that on June 15, 2015,
              Attorney Andrea Thompson of the Office of the Public
              Defender entered her appearance on appellant’s
              behalf and represented appellant through trial.
              Following trial, but before sentencing, and while still
              being represented by Attorney Thompson, appellant
              commenced pro se filings with the trial court, which
              included a “notice of appeal,” a “motion for stay of
              sentencing pending appeal,” and a Post-Conviction
              Relief Act[Footnote 4] petition alleging, among other
              things, ineffective assistance of Attorney Thompson.
              (Pro se notice of appeal, 9/13/16; pro se motion for
              stay of sentencing pending appeal, 9/13/16; pro se
              PCRA petition, 9/13/16; Docket ##30, 32 & 33,
              respectively).        On    September     16,   2016,
              Attorney Thompson filed a motion to withdraw as
              counsel, alleging her inability to represent appellant
              because of the “outrageous and spurious allegations”
              appellant made against her. (Motion to withdraw as
              counsel, 9/16/16.) On September 26, 2016, the trial
              court       entered        an      order      granting
              Attorney Thompson’s motion to withdraw as counsel
              and appointing Claude A.L. Shields, Esq., to
              represent appellant.      (Order of court, 9/26/16.)
              Despite being represented by Attorney Shields,
              appellant filed a pro se motion challenging the trial
              court’s jurisdiction over appellant. (Pro se motion
              to challenge jurisdiction, 10/11/16; Docket #40.)

                    [Footnote 4] 42 Pa.C.S.A. §§ 9541-9546.

                   The trial court held a sentencing hearing on
              October 12, 2016, at which Attorney Shields

2 Counts I and II in violation of 35 P.S. § 780-113(a)(30) and Count III in
violation of 35 P.S. § 780-113(a)(16).

3   For sentencing purposes, Counts II and III merged with Count I.


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          represented appellant. Because appellant disrupted
          those proceedings, the trial court held appellant in
          direct criminal contempt of court, sentenced him to
          30 days in prison, and had him removed from the
          sentencing hearing and taken into custody. (Notes
          of testimony, 10/12/16 at 3.)          The sentencing
          hearing then proceeded without appellant. Prior to
          imposition of sentence, Attorney Shields informed
          the trial court that appellant had indicated to counsel
          that appellant did not want counsel’s representation.
          (Id. at 6-7.) Attorney Shields further informed the
          trial court that communication between counsel and
          appellant is “totally broke [sic] down.” (Id. at 7.)
          Attorney Shields stated that although he would be
          representing appellant at the sentencing hearing, he
          would be filing a motion to withdraw.             (Id.)
          Thereafter, the trial court imposed sentence. (Id.
          at 11; see also order of court, 10/12/16; Docket
          #41.)

                On October 13, 2016, Attorney Shields filed a
          post-sentence motion on appellant’s behalf and
          simultaneously filed a motion to withdraw as
          counsel.       In      that   motion   to  withdraw,
          Attorney Shields alleged that because counsel
          informed appellant that appellant had no basis to
          challenge the trial court’s jurisdiction over him,
          appellant refused to communicate with counsel.
          (Motion to withdraw as counsel, 10/13/16; Docket
          #44.)    On November 10, 2016, the trial court
          granted Attorney Shields’s motion to withdraw as
          counsel and further “ordered that [appellant] may
          represent himself pro se and that [Attorney] Shields
          is appointed to serve as standby counsel.” (Order of
          court, 11/10/16; Docket #53.) On December 7,
          2016,     the    trial    court   denied  appellant’s
          post-sentence motion.

                The record further reveals that appellant filed a
          “motion for extraordinary relief to the [trial] court,”
          which was docketed on November 29, 2016, and
          states:




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               And      now,     [appellant]/pro    se,
               James Leslie Flowers, hereby motions the
               court as follows:

               1.    The order of court on the 10th
                     day of November, granted
                     the   motion    of    defense
                     counsel to withdraw his
                     appearance in the matter,
                     and    his   appearance     is
                     withdrawn.

               2.    It is further ordered that
                     [appellant] may represent
                     himself pro se, and that
                     Claude A. Lord Shields,
                     Esquire is appointed to serve
                     as standby counsel.

               WHEREFORE,        [appellant]/pro     se,
               James Leslie Flowers request that this
               Honorable Court to grant, extraordinary
               relief, so that pro se [appellant] may
               seek proper legal advice from attorney’s
               at law, who specialize in the nature of
               these charges brought forth, and further
               be appointed appeal bail to reinstate the
               bail     that    [appellant]/pro      se,
               James Flowers is therefore capable, and
               knowledgeable to properly litigate these
               proceedings.

          Pro se motion for extraordinary relief to the court,
          11/29/16; Docket #56 (numerous grammatical
          errors occur in original).

                On December 2, 2016, the trial court entered
          an    order    denying    appellant’s  motion    for
          extraordinary relief.   (Order of court, 12/2/16;
          Docket #58.) Appellant then filed a pro se notice of
          appeal to this court.[Footnote 5] (Pro se notice of
          appeal, docketed 1/13/17; Docket #65.) The trial
          court then ordered appellant to file a concise
          statement of errors complained of on appeal


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          pursuant to Pa.R.A.P. 1925(b), and appellant timely
          complied pro se.     The trial court then filed its
          Rule 1925(a) opinion.

               [Footnote 5] The notice of appeal is
               dated     January     6,     2017,    but
               time-stamped as being docketed on
               January 13, 2017. In an abundance of
               caution, based upon the prisoner mailbox
               rule, we deem the notice of appeal timely
               filed.      See     Commonwealth       v.
               Chambers, 35 A.3d 34, 38 (Pa.Super.
               2011) (holding “a pro se prisoner’s
               document is deemed filed on the date he
               delivers it to prison authorities for
               mailing”) (citation omitted)).

          Appellant has now filed a pro se brief with this court
          raising six issues. Based on the record before us,
          however, we cannot consider the issues that
          appellant requests that we review because we find
          that the trial court violated appellant’s right to
          counsel on direct appeal. See Commonwealth v.
          Wrecks, 931 A.2d 717, 722 (Pa.Super. 2007)
          (reiterating that a criminal appellant has a
          constitutional right to counsel on direct appeal).
          Here, nothing in the record supports the conclusion
          that appellant requested Attorney Shields to
          withdraw, waived his right to counsel on appeal, or
          desired to proceed pro se on appeal. We are,
          therefore,    constrained   to    remand      for    a
          Grazier[Footnote 6] hearing. If appellant wishes to
          represent himself, we will proceed to the merits on
          appeal considering his pro se brief.

               [Footnote   6]   Commonwealth           v.
               Grazier, 713 A.2d 81 (Pa. 1998).

Commonwealth v. Flowers, 2017 Lexis 3136, at *1-7 (Pa.Super.

August 18, 2017) (unpublished memorandum).




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        On August 18, 2017, we remanded this matter to the trial court to

conduct a Grazier hearing to determine whether appellant’s decision to

proceed pro se on direct appeal was a knowing, intelligent, and voluntary

one. On September 14, 2017, the trial court filed an order with this court,

dated     September    12,   2017,   attaching     a    certified   transcript   of   its

November 10, 2016 hearing with counsel and appellant with respect to

Attorney Shields’s motion to withdraw as appellant’s counsel and certifying

its conclusion that appellant “was acting knowingly, intelligently, voluntarily

and understandingly, and that the Grazier requirements had been fulfilled.”

(Order of court, 9/12/17.)      The attached hearing transcript, however, failed

to demonstrate that the trial court conducted a proper colloquy of appellant

that examined the relevant factors set forth in Pa.R.Crim.P. 121 with respect

to appellant representing himself on direct appeal.             Therefore, by order

entered October 11, 2017, we remanded again to the trial court to conduct a

proper Grazier hearing.

        This court has recognized that following a trial, there are several

factors    regarding   waiver   of   counsel     that    are   no   longer   relevant.

Commonwealth v. Meehan, 628 A.2d 1151, 1157 (Pa.Super. 1993),

appeal denied, 649 A.2d 670 (Pa. 1994).                Our decision in Meehan was

“specifically cited with approval in our supreme court’s pronouncement in

Grazier.”    Commonwealth v. Robinson, 970 A.2d 455, 459 (Pa.Super.

2009).    The Meehan court “addressed whether the defendant had validly



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waived his rule-based right to counsel for purposes of a [Post Conviction

Relief Act (“PCRA”)] hearing.”   Id.    Similar to a PCRA proceeding, several

Pa.R.Crim.P. 121 factors regarding waiver of counsel are not relevant during

post-sentence motions and direct appeal.

      When a defendant waives his or her right to counsel after trial, the

waiver of counsel colloquy must demonstrate that the defendant understood

“(1) his right to be represented by counsel; (2) that if he waived this right,

he will still be bound by all normal procedural rules; and (3) that many

rights and potential claims may be permanently lost if not timely asserted.”

Id., citing Meehan, 628 A.2d at 1157; see also Commonwealth v.

Powell, 787 A.2d 1017, 1019 (Pa.Super. 2001) (establishing test for

knowing, intelligent, and voluntary waiver of counsel in post-conviction and

appellate proceedings).

      On October 27, 2017, and in accordance with our remand order, the

trial court filed a Grazier hearing transcript with this court of the proceeding

that it conducted on October 13, 2017.       That colloquy demonstrates that

appellant acknowledged that he understood his right to be represented by

counsel.   (Notes of testimony, 10/13/17 at 2-3, 5.)        The colloquy also

reveals that appellant acknowledged that he understood that he would be

bound by the applicable procedural rules of court and that if he failed to

timely assert rights, those rights may be permanently lost.      (Id. at 7, 9.)




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Therefore, the colloquy demonstrates that appellant’s decision to proceed

pro se on direct appeal was a knowing, intelligent, and voluntary one.

     With respect to this appeal, we preliminarily note that the trial court

ordered appellant to file a concise statement of errors of complained of on

appeal pursuant to Pa.R.A.P. 1925(b) by February 7, 2017. Appellant timely

complied. In that statement, appellant framed his issues, as follows:

           [1.]   Defendant and [a]ppellant believes that he was
                  ineffectively   represented      by   Attorney
                  Andre [sic] Thompson in the Schuylkill County
                  Public Defender’s Office for lack of motions to
                  surpress [sic] evidence, actually refusing to,
                  motions to challenge probable cause for arrest
                  warrant, and absence of impeachment of the
                  Commonwealth’s witness[.]

           [2.]   Defendant and [a]ppellant believes that in
                  accord with Pennsylvania Rules [sic] 403 –
                  Impeachment Evidence, Bias, Interest, or
                  Curruption [sic] states, if a witness testifies for
                  the Commonwealth either pursuant to a deal
                  or while criminal charges are pending against
                  him/or her the accused is entitled to establish
                  those facts to demonstrate interest and bias.
                  A witness testifying under grant of immunity
                  may be impeached thereby. If an accomplice
                  testifies in a criminal case, bias and interest
                  may always be explored.           Failure of the
                  prosecution to disclose an agreement to the
                  defense     may     violate    the    defendant’s
                  constitutional rights, even if the agreement is
                  contingent or not fully defined. For example,
                  in criminal cases, it is customary for
                  prosecution to reveal the existence of a plea
                  bargain with a witness, although prosecution
                  questioning eliciting the details of a plea
                  agreement from a cooperating witness may
                  represent improper bolstering. Failure to cross
                  examine [sic] a prosecution witness on bias


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                   may be ineffective assistance of counsel. Proof
                   of bias, interest, or corruption may incidentally
                   expose otherwise inadmissible facts to the
                   jury. All of which were never executed by
                   Attorney Thompson which inevitably led
                   Attorney Thompson to recuse herself from my
                   case after verdict of guilty, authorized by you,
                   yourself Judge Dolbin.

            [3.]   Defendant and [a]ppellant reiterates, that for
                   failure of the public defender’s office or trial
                   court to adequately address the breakdown in
                   attorney client [sic] relationship in the prior
                   months to trial, rendered the [d]efendant and
                   [a]ppellant with ineffective counsel, along with
                   the prosecutorial misconduct and bad acts
                   which was [sic] a direct result of a
                   mis trial [sic] in front of The Honorable Judge
                   Baldwin in a very similar almost identical
                   situation.

Appellant’s “motion to court in compliance to rule 1925-opinion in support of

order,” 2/1/17 at unnumbered pages 2-3 (alphabetic paragraph references

replaced with numerals).

      On February 15, 2017, the trial court filed its Rule 1925(a) opinion4 in

which it concluded that appellant’s “principle issues in this appeal are not

discernable” from his Rule 1925(b) statement and that his ineffective

assistance of counsel claims are not cognizable on direct appeal. (Trial court

opinion, 2/15/17.)    The trial court attached its December 7, 2016 order


4 We note that on February 21, 2017, which was after the trial court filed its
Rule 1925(a) opinion on February 15, 2017, appellant filed a document
titled, “supplemental reasons for notice of appeal Pa.R.A.P. Rules 902, 904,
905.” Although this document is largely unintelligible, to the extent that
appellant filed this as a supplemental Rule 1925(b) statement, he did so
without leave of court and in an untimely manner.


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denying appellant’s post-sentence motion which contained its reasoning for

denying that motion to its Rule 1925(a) opinion. (Id.)

      A concise statement on appeal must be specific enough for the trial

court to identify and address the issue or issues that the appellant wishes to

raise on appeal. In re A.B., 63 A.3d 345, 350 (Pa.Super. 2013).

            Pennsylvania Rule of Appellate Procedure 1925
            provides that a Rule 1925(b) statement “shall
            concisely identify each ruling or error that the
            appellant intends to challenge with sufficient detail to
            identify all pertinent issues for the judge.”
            Pa.R.A.P. 1925(b)(4)(ii). “Issues not included in the
            Statement and/or not raised in accordance with the
            provisions    of    this    [Rule]    are     waived.”
            Pa.R.A.P. 1925(b)(4)(vii).

            This Court has considered the question of what
            constitutes a sufficient 1925(b) statement on many
            occasions, and it is well-established that “Appellant’s
            concise statement must properly specify the error to
            be addressed on appeal.”          Commonwealth v.
            Hansley, 2011 PA Super 129, 24 A.3d 410, 415 (Pa.
            Super. 2011), appeal denied, 613 Pa. 642, 32 A.3d
            1275 (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.” Id. (brackets, internal quotation
            marks, and citation omitted). Further, this Court
            may find waiver where a concise statement is too
            vague. Id. “When a court has to guess what issues
            an appellant is appealing, that is not enough for
            meaningful review.” Commonwealth v. Dowling,
            2001 PA Super 166, 778 A.2d 683, 686 (Pa. Super.
            2001) (citation omitted).      “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.” Id. at 686-87.

Id.



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      Here, appellant’s “concise statement” is the functional equivalent of no

statement at all. Therefore, appellant waives all issues on appeal. Even if,

however, appellant’s issues were not waived for failure to comply with

Pa.R.A.P. 1925(b), appellant’s claims of ineffectiveness of counsel are not

cognizable on direct appeal.    “It is well-settled that, absent circumstances

not present in the case at bar, ‘claims of ineffective assistance of counsel are

to be deferred to PCRA review[.]’” Commonwealth v. Reid, 117 A.3d 777,

786 (Pa.Super. 2015), quoting Commonwealth v. Holmes, 79 A.3d 562,

576 (Pa. 2013).

      Nevertheless, we have reviewed appellant’s “brief.” Preliminarily, we

note that it fails to include a statement of questions presented.      We have

recognized that the omission of a statement of questions presented is

“particularly grievous since the statement . . . defines the specific issues this

court is asked to review.” Smathers v. Smathers, 670 A.2d 1159, 1160

(Pa.Super. 1996), quoting Commonwealth v. Maris, 629 A.2d 1014, 1016

(Pa.Super. 1993).     “When the omission of the statement of questions

presented is combined with the lack of any organized and developed

arguments, it becomes clear that appellant’s brief is insufficient to allow us

to conduct meaningful judicial review.” Smathers, 670 A.2d at 1160. Here,

in addition to failing to include a statement of questions presented, appellant

also failed to include a statement of jurisdiction, a statement of both the

scope of review and the standard of review, and a statement of the case.



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Appellant’s “brief” also lacks organization, as well as citations to the record.

Consequently, even if appellant did not waive his appellate issues for failure

to comply with Pa.R.A.P. 1925(b), the substantial defects in his “brief” would

have precluded us from conducting any meaningful judicial review, and we

would have dismissed this appeal.5      See Pa.R.A.P. Rule 2101; see also

Smathers, 670 A.2d at 1160-1161.

      Order affirmed.



      Judge Moulton did not participate in the consideration of this decision.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/30/18




5 Finally, we note that within appellant’s “brief,” appellant attempts to raise
a double jeopardy issue, a discovery issue, a claim that his right to allocution
was violated, and a jurisdictional challenge. Appellant failed to raise these
issues below and notwithstanding the deficiencies in appellant’s
Rule 1925(b) statement and in his brief, he would have waived these issues
on appeal for that reason. See Pa.R.A.P. 302(a) (“Issues not raised in the
lower court are waived and cannot be raised for the first time on appeal.”).


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