J-A02002-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
             v.                          :
                                         :
                                         :
JEFFERY LEE MCWILLIAMS                   :
                                         :
                   Appellant             :   No. 1111 WDA 2016

         Appeal from the Judgment of Sentence November 20, 2015
    In the Court of Common Pleas of Greene County Criminal Division at
                      No(s): CP-30-CR-0000203-2013


BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY BOWES, J.:                               FILED JULY 17, 2018

      Jeffery Lee McWilliams appeals from the judgment of sentence of

seventy-two hours to six months incarceration imposed following his non-

jury trial conviction for driving under the influence and related offenses. We

affirm.

      We adopt the following recitation of facts set forth in the trial court’s

order adjudging Appellant guilty:

      Officer [Benjamin] Thorn testified that he was parked . . . when
      he    observed     a   vehicle    driving   without    headlights.
      Understandably, this immediately attracted his attention and he
      pulled out intending to stop the vehicle. On or about the same
      time, the vehicle turned from the road on to a side road without
      executing a turn signal. Officer Thorn testified he saw no other
      vehicles on the road. In pursuit, he followed [Appellant]’s vehicle
      which, when he turned on to the side street, was stopped in the
      middle of the road with the engine running.

      Investigating   the   situation, Officer   Thorn   approached
      [Appellant]’s vehicle and saw [Appellant] in the driver’s seat.
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       There was no one else in the vehicle. Approaching [Appellant],
       he encountered a strong odor of alcohol, slurred speech by
       [Appellant] and glassy eyes. The Officer suspected intoxication.

       Field sobriety tests confirmed that impression and [Appellant]
       was arrested and transported to a local hospital where a blood
       alcohol test was administered. The results showed a level of
       intoxication by [Appellant] three times the legal limit of .221%.

Trial Court Opinion, 8/28/15, at unnumbered 2-3.1

       This matter has a protracted history at both the trial court and

appellate levels. Although a suppression hearing was held on October 21,

2013, this matter did not proceed to trial until August 27, 2015. Appellant

was sentenced on November 18, 2015, with the sentencing order docketed

two days later. Post-sentence motions were filed on November 30, 2015.2

The motions were denied on June 23, 2016, thus exceeding the expiration of

the   applicable    120-day     timeframe.       See   Pa.R.Crim.P.   720(B)(3)(a).

However, a notice of appeal was filed within thirty days of that order, and

this appeal is therefore timely.        See Commonwealth v. Khalil, 806 A.2d

415 (Pa.Super. 2002) (failure of clerk of courts to issue an order denying



____________________________________________


1We refer to this document as the trial court opinion, as the judge filed, on
September 1, 2016, a document adopting this order as its Pa.R.A.P. 1925(a)
opinion.

2 In Commonwealth v. Green, 862 A.2d 613, 614 (Pa.Super. 2004), we
held that post-sentence motions must be filed within ten days of the oral
announcement of sentence, not the docketing date of the sentencing order.
Here, the tenth day fell on Saturday, and the motion was therefore timely.



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post-sentence motions by operation of law constitutes breakdown in

operation of trial court).

      The trial court did not order Appellant to file a Pa.R.A.P. 1925(b)

statement, and adopted its previously-filed order as its opinion. Appellant

thereafter filed a motion to remand the record to the trial court, due to the

absence of transcripts during the post-sentence motions period. We denied

that order, and extended the briefing schedule.              Following multiple

extensions, Appellant filed his brief and the matter is ready for our review of

his claims:

      I.      Was the evidence sufficient to convict the accused of
              driving under the influence of alcohol?

      II.     Was the verdict of the trial judge against the weight of the
              evidence and should the matter be remanded for the trial
              judge to weigh the evidence

                    (1) where the appellant was denied the
                    opportunity for a counseled argument post[-
                    ]sentence by lack of transcript available to
                    counsel appointed post[-]sentence and the
                    motion was denied by operation of law and

                    (2) where evidence suggests that the police
                    officer could not explain the position, distance,
                    and view to a solid black truck that he saw
                    operating without headlights and turning left
                    onto a side road that the vehicle, that
                    [Appellant] was in was a different vehicle a
                    light colored tan and marron [sic] two[-]tone
                    truck, where the trial court concluded that
                    [Appellant] was sincere in his belief that
                    someone had added something to his drink to
                    make him appear incapacitated, where
                    [Appellant] had inexplicable marks and
                    bruises, disheveled and ripped clothing, that

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                  were not noted by the police officer at the time
                  of the arrest, and immediately before the
                  approach of the police officer the appellant
                  heard a loud noise of a black truck, and
                  [A]ppellant had not driven the vehicle but
                  entered the passenger side, and other related
                  facts?

      III.   Should the evidence of the BAC test result be suppressed
             as an unconstitutional search and seizure or the fruit
             thereof?

      IV.    Was [Appellant]’s right to due process of law denied in that
             he was denied the opportunity to subpoena witnesses, the
             Court proceeded without having appointed counsel before
             sentencing and before trial, where [A]ppellant sought to
             take pro se action to obtain witnesses and preserve his
             right and interest on the record, but was not allowed by
             the court to do so?

Appellant’s brief at 23.

      Appellant’s first claim challenges the sufficiency of the evidence

supporting the DUI verdict. Our standard of review is well-settled.

      The standard we apply in reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial in
      the light most favorable to the verdict winner, there is sufficient
      evidence to enable the fact-finder to find every element of the
      crime beyond a reasonable doubt. In applying the above test, we
      may not weigh the evidence and substitute our judgment for the
      fact-finder. In addition, we note that the facts and circumstances
      established by the Commonwealth need not preclude every
      possibility of innocence. Any doubts regarding a defendant's guilt
      may be resolved by the fact-finder unless the evidence is so
      weak and inconclusive that as a matter of law no probability of
      fact may be drawn from the combined circumstances. The
      Commonwealth may sustain its burden of proving every element
      of the crime beyond a reasonable doubt by means of wholly
      circumstantial evidence. Moreover, in applying the above test,
      the entire record must be evaluated and all evidence actually
      received must be considered. Finally, the trier of fact while
      passing upon the credibility of witnesses and the weight of the

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         evidence produced, is free to believe all, part or none of the
         evidence.

Commonwealth v. Britton, 134 A.3d 83, 86 (Pa.Super. 2016) (quoting

Commonwealth v. Caban, 60 A.3d 120, 132-33 (Pa.Super. 2012)).

         Appellant   neglects   to   identify   any   particular   element   that   the

Commonwealth failed to establish beyond a reasonable doubt.                  Moreover,

Appellant does not contest that all reasonable inferences, when drawn in

light most favorable to Commonwealth, establish that he is guilty of DUI.

Instead, for his sufficiency claim, Appellant focuses on the fact that Officer

Thorn testified at the preliminary hearing, suppression hearing, and trial that

the vehicle he observed driving without headlights was a black pickup truck.

Likewise,     the    Commonwealth’s        charging    documents      indicated     that

Appellant’s truck was black. Appellant introduced evidence showing that his

vehicle was a two-toned light beige and maroon truck.

         The trial court agreed that the officer’s testimony was incorrect on this

point.      Appellant asserts that this concession renders the evidence

insufficient:

         What is “sure” and certain is that the truck that the office[r] saw
         moving on the roadway was a solid black truck. The officer was
         “as sure about that as [he was] about the rest of his testimony.”
         What is also sure is that the truck that [Appellant] was in was
         certainly not a solid black truck. He drove a "two[-]tone" truck.
         One's common experience tells any observer, that the frequency
         of the sighting of two-tone vehicles in these days on the highway
         is a highly unusual event. That the officer was absolutely sure
         that the truck he saw on the road was black, the color of which
         [w]as important to add to the Information by the Commonwealth
         in its "To Wit" section, calls into question that this is simply an

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      unimportant mistake. Indeed, it is an important symptom of a
      false identification of the truck by the officer that confirms
      [Appellant]’s testimony that there was another black truck that
      the officer saw in motion causing him to follow it.

Appellant’s brief at 48 (citations omitted).

      Appellant’s argument goes to the weight of the evidence, as it does

not implicate the proof of any element of DUI and merely suggests that the

trial court erred in crediting Officer Thorn’s testimony. We note that the trial

court addressed this issue in his order finding Appellant guilty:

      There is, however, one detail which appeared incorrect.
      Specifically, the Officer testified at the preliminary hearing that
      the vehicle he stopped at 2 a.m. was black (solid black when
      pressed on the issue by Defense counsel) in color. This seems
      (based on the evidence) to be clearly incorrect. The Defense
      argues that this failure to recall the color of the vehicle “proves”
      that the Officer, in fact, stopped the wrong car.

      Reviewing this, we believe this testimony by itself proves little.
      In fact, in a situation such as a DUI stop in the middle of the
      night where the Officer testifies that he observes the car, follows
      it, stops it, identifies the driver, suspects driving under the
      influence, performs field sobriety tests which confirms his
      impression, and then obtains a blood alcohol test which further
      confirms his evaluation his failure to identify the color of the
      vehicle with all of this going on is minor. This becomes even
      more true when one considers that the vehicle was impounded
      so that the Officer actually had it in his possession and the
      license plate and registration were confirmed. Frankly, given all
      of that, remembering the color of the vehicle would have been
      the last thing on the Officer’s mind. In and of itself, it raises no
      real doubt as to the Officer’s credibility.

Trial Court Opinion, 8/28/15, at unnumbered 3-4.

      This passage demonstrates that the trial court properly considered

the officer’s mistaken testimony to be relevant to his credibility in general,


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and that the incorrect testimony in this respect did not diminish the

credibility of his testimony in other respects. For sufficiency purposes, the

judge, sitting as finder of fact, was entitled “to believe all, part or none of

the evidence.” Britton, supra at 86. Therefore, Appellant’s claim that this

incorrect testimony “calls into question” the rest of the evidence is incorrect,

insofar as it clearly did not in the view of the fact-finder.

       Additionally, Appellant fails to address why a mistaken identification of

his vehicle would warrant relief.          Even if this Court were to accept that

Officer Thorn mistakenly identified Appellant’s vehicle for one he had

observed earlier, the fact remains that Appellant was in physical control of a

vehicle that was stopped in the middle of a road with its engine running.3

We therefore find that Appellant is not entitled to relief.

       We now address Appellant’s weight claim, which was raised in a post-

sentence motion in a boilerplate averment. Appellant experienced difficulties

in obtaining the trial transcripts, and, following the expiration of the 120-day

post-sentence period, the Commonwealth filed a motion seeking their denial

by operation of law. As a result, the motion was denied by operation of law

and, since the trial court adopted its earlier order as its Pa.R.A.P. 1925(a)

____________________________________________


3 Appellant analogizes this case to a situation wherein a police officer
receives a report of a prowler, but stops and arrests an individual of a
completely different race. In that case, however, the mistaken identification
would go to innocence of prowling. Here, the mistake would go only to the
validity of the initial seizure, which Appellant did not challenge.



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opinion, it did not explicitly rule on this claim. Appellant states that, upon

remand, the trial court must consider the fact that Appellant’s vehicle “is a

two-tone light and marron [sic] vehicle.”      Appellant’s brief at 54.      While

recognizing that the trial court already explained its reasoning on this point,

Appellant claims that the “officer never admitted there was an error in the

color or that the vehicle on the roadway was a two-toned light beige and

marron [sic] truck[.]”   Id.   He also challenges the officer’s recollection of

times, noting that Officer Thorn testified that it took Appellant about fifteen

minutes to locate documentation, but that it is more likely that this

timeframe included the field sobriety tests.    Finally, Appellant emphasizes

that his testimony, which the trial court deemed “sincere,” established that

someone put something in his drink at the bar earlier in the evening, and

the next thing he remembers was waking up in his passenger seat.

      Our standard of review is as follows.

            A motion for a new trial based on a claim that the verdict
      is against the weight of the evidence is addressed to the
      discretion of the trial court. A new trial should not be granted
      because of a mere conflict in the testimony or because the judge
      on the same facts would have arrived at a different conclusion.
      Rather, the role of the trial judge is to determine that
      notwithstanding all the facts, certain facts are so clearly of
      greater weight that to ignore them or to give them equal weight
      with all the facts is to deny justice. It has often been stated that
      a new trial should be awarded when the jury's verdict is so
      contrary to the evidence as to shock one's sense of justice and
      the award of a new trial is imperative so that right may be given
      another opportunity to prevail.




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      An appellate court's standard of review when presented with a
      weight of the evidence claim is distinct from the standard of
      review applied by the trial court:

      Appellate review of a weight claim is a review of the exercise of
      discretion, not of the underlying question of whether the verdict
      is against the weight of the evidence. Because the trial judge has
      had the opportunity to hear and see the evidence presented, an
      appellate court will give the gravest consideration to the findings
      and reasons advanced by the trial judge when reviewing a trial
      court's determination that the verdict is against the weight of the
      evidence. One of the least assailable reasons for granting or
      denying a new trial is the lower court's conviction that the
      verdict was or was not against the weight of the evidence.

Commonwealth v. Antidormi, 84 A.3d 736, 758 (Pa.Super. 2014)

(cleaned up).

      Our standard of review makes clear that we do not review the

underlying question of whether the weight of the evidence supported the

verdict, but rather the trial court’s discretion in ruling on the claim.

Therefore, had this case proceeded to a jury and the trial court failed to

address the weight claim, we would be compelled to remand.                  In

Commonwealth v. Ragan, 653 A.2d 1286 (Pa.Super. 1995), we took that

step, writing:

      In the instant case, the trial judge has not provided us with his
      thinking on the matter of the weight of the evidence. On page
      two of his opinion, the trial judge addresses Ragan's sufficiency
      of the evidence challenge. A sufficiency of the evidence
      challenge, however, does not involve the same inquiry as a
      weight of the evidence challenge. Thus, we are left without an
      explicit trial court ruling on an issue that is addressed to the
      sound discretion of the trial court.

      Appellee urges us to presume that the trial court examined the
      weight of the evidence. It is true that the trial judge discussed

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J-A02002-18


      and apparently credited much of the evidence introduced at trial.
      Based on this discussion, appellee would have us assume that
      the trial judge weighed the evidence and found that the verdict
      did not shock his sense of justice. In the absence of any
      indication that the trial court even noticed the weight of the
      evidence claim, however, any such assumption would look less
      like a review of the trial court’s exercise of discretion and more
      like an appellate court’s weighing of the evidence. We would be
      moving dangerously close to crossing the weight of the evidence
      “line in the sand” drawn by the Supreme Court. In an area of the
      law where the Supreme Court has taken such pains to clearly
      delineate the boundaries of the appellate and trial court
      functions, we decline the invitation to again blur the distinction.

Id. at 1288 (citations omitted).

      Unlike Ragan, the instant conviction followed a bench trial. We think

that distinction warrants different treatment, as the trial court implicitly

denied the claim by finding Appellant guilty. We acknowledge that Ragan

declined to adopt a presumption that the judge addressed the claim: “In the

absence of any indication that the trial court even noticed the weight of the

evidence claim . . . any such assumption would look . . . like an appellate

court’s weighing of the evidence.”     Id.    In a non-jury trial, however, the

judge, by definition, “noticed” the weight of the evidence claim by finding

Appellant guilty beyond a reasonable doubt in the first place. Our Supreme

Court has stated that, in the jury trial context, the trial judge abuses his

discretion in ruling on a weight claim if he acts as an additional juror:

      A trial judge must do more than reassess the credibility of the
      witnesses and allege that he would not have assented to the
      verdict if he were a juror. Trial judges, in reviewing a claim that
      the verdict is against the weight of the evidence do not sit as the
      thirteenth juror.


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Commonwealth v. Widmer, 744 A.2d 745, 752 (Pa. 2000).

        In the bench trial context, the trial judge acts as the jury. We have

recognized that weight of the evidence challenges are cognizable, if not odd

in the sense that the judge presumably followed the law the first time.

“Although we recognize that weight of the evidence claims have been

addressed in non-jury cases, there is a logical inconsistency in asking a trial

judge    to   conclude    that    her   verdict    shocked   her   own   conscience.”

Commonwealth v. Walsh, 36 A.3d 613, 622 n.5 (Pa.Super. 2012).

        However, the fact that such claims are cognizable does not mean that

remand is warranted for the trial court to explain that which is evident. The

trial court rejected the weight claim by rendering a verdict against Appellant

in the first place, and implicitly denied the same claim by failing to rule on

Appellant’s post-sentence motion. Finally, the trial court elected to rely on

its original verdict instead of authoring a new opinion. Thus, the trial court

had the opportunity to revisit Appellant’s version of events, and elected not

to grant a new trial.       We thus find that a remand is not warranted.4 Id.

(finding that weight claim following non-jury trial was not properly preserved

and therefore waived, but would not lead to relief in any event since trial

court found the testimony credible).
____________________________________________


4 Therefore, to the extent that Appellant claims that he was “denied the
opportunity” to litigate his weight of the evidence claim due to the absence
of transcripts, we disagree. He fully litigated that matter at trial, and the
judge rejected his arguments.



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      Having determined that a remand is unnecessary, we add that the trial

court offered a full explanation in its trial court opinion of why it ignored the

competing facts.    Therein, the court summarized Appellant’s defense and

explained why it declined to credit that version:

      [Appellant] offered that he was drugged and/or “alcohol was
      shoved down his throat” earlier at the bar where he had been
      socializing. As a result, [Appellant] was unconscious and/or not
      in possession of his senses from 11:30 p.m. when he put his last
      beer down on the counter at the bar until he woke sitting in the
      passenger seat of his vehicle at 2:15 a.m. (according to his car
      clock). Awakening from this stupor, [Appellant] testified he
      almost immediately observed a black truck pass him and go on
      down the road. He contends the Officer “stopped” a stationary
      truck (his) which had not committed any violations. Essentially,
      that the Officer stopped the wrong car is the defense argument.

      In discussing that defense, at the outset [Appellant] can not
      state that he was not driving the car from the bar to its parked
      location. He does not know as he was “out of it.”
      Notwithstanding, [Appellant] goes on to offer a theory that he
      may have been assaulted and beaten at the bar. He entered in
      the record photos of bruises on his shoulder area, elbow, and
      foot to show that he may have been assaulted and drugged.
      Instead, only alcohol was found in his system. He requested and
      (to the credit of the Police Department) they accomplished a
      much more comprehensive lab test than a simple blood alcohol
      which might have been conducted by the Pennsylvania State
      Police Lab. Because of [Appellant]’s version, they fairly
      attempted to confirm that something other than alcohol caused
      his intoxication. This could not be confirmed despite the fact that
      the test actually administered to [Appellant] tested for several
      hundred substances. [Appellant] also testified he was missing
      money even though his keys and his credit cards were on or
      near his person.

      In response to this, we ask ourselves a simple question -
      namely, does the Officer’s error combined with [Appellant]’s
      version take what appears to us to be an innocent mistake on an
      otherwise minor error by the Officer and transform it into a
      reasonable doubt. The answer is no.

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Trial Court Opinion, 8/28/15, at unnumbered 4-6.

      Appellant’s third claim states that he is entitled to a remand for further

proceedings due to the decision in North Dakota v. Birchfield, 136 S.Ct.

2160 (2016) (holding warrantless blood tests cannot be justified as a search

incident to arrest).     Pursuant to Birchfield, which was issued during the

pendency of these proceedings, the police may not threaten enhanced

punishment for refusing a blood test as a means to obtain consent.

Decisions from this Court have been remanded for further proceedings

pursuant to Birchfield when a suppression motion raising a challenge to the

voluntariness of consent was raised at the trial court level.              See

Commonwealth        v.    Evans,   153   A.3d   323,   324   (Pa.Super.   2016)

(remanding for hearing where Evans had filed a suppression motion claiming

that his consent to blood draw was coerced by “informing him that if he did

not submit to extraction and subsequent testing of his blood, he would face

stiffer criminal penalties.”) (bracketing omitted).


      We decline to remand for further proceedings on this issue, as

Appellant failed to raise any challenge to his consent in the trial court. See

Commonwealth        v.    Moyer,   171   A.3d   849,   855   (Pa.Super.   2017)

(“Instantly, [Moyer] failed to challenge the warrantless blood draw at any

stage of the litigation prior to her nunc pro tunc post-sentence motion. Thus,

she is not entitled to retroactive application of Birchfield.”).      Although



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Appellant filed a suppression motion, he did not raise any challenge therein

to his consent to BAC testing. Motion to Suppress, 9/11/13 at 1.5

       A defendant seeking suppression of evidence must set forth the

specific theories and grounds for relief. Pa.R.Crim.P. 581(D); cf. Com. v.

Dixon, 997 A.2d 368, 374–75 (Pa.Super. 2010) (en banc) (holding

Commonwealth met its burden of proof in suppression motion where Dixon’s

motion alleged that suppression of physical evidence was required due to

invalidity of stop, as opposed to manner in which evidence was seized

following the stop). Therefore, the fact that Appellant challenged the blood

draw based on contamination did not preserve the unrelated theory of

coerced consent.        Birchfield has no bearing on the issues he actually

pursued. Therefore, this claim was raised for the first time on appeal, and

Appellant is not entitled to a remand for further proceedings.           See

Commonwealth v. Newman, 99 A.3d 86, 90 (Pa.Super. 2014) (en banc)

(“To be entitled to retroactive application of a new constitutional rule, a

defendant must have raised and preserved the issue in the court below.”).

       Appellant’s final issue is an undeveloped claim that his “right to due

process of law [was] denied” based on his inability to subpoena witnesses




____________________________________________


5 The challenge to the blood draw was that it “was done in a manner that
could cause contamination and therefore is both unreliable and
inadmissible.”



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for his trial, the recusal of the judge who heard the suppression hearing, and

other asserted irregularities. Appellant’s brief at 64.

         Appellant was represented by three separate attorneys throughout

trial.    On July 11, 2014, Appellant’s retained counsel, Paul Gettleman,

Esquire, filed a motion to withdraw, which was granted on July 16, 2014. A

public defender was appointed, who later filed a motion to withdraw,

asserting that Appellant complained that “counsel is not representing him

properly, that counsel is not making enough time for the preparation of the

case for trial . . . [and] that [Appellant] wishes to represent himself because

counsel will not proceed in the manner that [Appellant] wants him to

proceed.” Motion to Withdraw, 10/6/14, at 1. That motion was apparently

withdrawn following a hearing, as counsel filed a second motion to withdraw,

which stated, “After a Colloquy in court, defendant indicated that he wanted

to be represented by this counsel[.]”     Motion to Withdraw, 2/27/15, at 1.

Counsel stated that the attorney-client relationship was still broken, and that

Appellant wished to represent himself. That request was granted.

         On April 2, 2015, the trial judge recused himself and appointed Josh

Camson, Esquire, to represent Appellant.        He, too, sought to withdraw,

stating that Appellant unequivocally wished to proceed pro se, and noted

that Appellant “made various accusations as to counsel’s loyalty, work ethic,

and ability to handle the case.” Motion to Withdraw, 8/17/15, at 1. On the

day of trial, the trial court conducted a hearing and determined that

Appellant waived his right to counsel.

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     Appellant does not specify how his due process rights were violated.

Appellant was obviously aware of his insistence that he proceed pro se, and

the order setting his trial date was entered on May 15, 2015.    Therefore,

Appellant had over three months to prepare, and we note that he presented

the testimony of one witness in addition to himself. Therefore, Appellant’s

undeveloped argument does not warrant relief.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/17/2018




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