NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P

Transcription

1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P COMMONWEALTH OF PENNSYLVANIA, Appellee IN THE SUPERIOR COURT OF PENNSYLVANIA v. JOHN BRADLEY PETERS, SR., Appellant No. 645 WDA 2012 Appeal from the Judgment of Sentence March 22, 2012 In the Court of Common Pleas of Jefferson County Criminal Division at No(s): CP-33-CR BEFORE: BOWES, MUNDY, and COLVILLE, * JJ. MEMORANDUM BY BOWES, J.: FILED OCTOBER 24, 2013 John Bradley Peters, Sr. appeals from the judgment of sentence of fines, restitution, and costs. Sentence was imposed after a jury acquitted him of simple assault and disorderly conduct, but the trial judge convicted him of the summary offenses of public drunkenness and harassment. The issue on appeal is whether trial counsel was improperly allowed to withdraw after sentence was imposed. We affirm. On May 5, 2011, Appellant was charged with simple assault graded as a second degree misdemeanor, disorderly conduct graded as a third degree misdemeanor, and the summary offenses of public drunkenness and harassment. The charges arose from the following events. At approximately 1:00 a.m. on March 27, 2011, Brookville Police Officer Justin * Retired Senior Judge assigned to the Superior Court.

2 C. Miller responded to the report of a fight in the parking lot of Forest Way Inn, 325 W. Main Street, Brookville. The fight was ended when Officer Miller arrived at the scene, but a witness directed him to a car in which Appellant was located. Appellant, who was bleeding from the head, admitted that he had been involved in a fight. Appellant s son told Officer Miller the names of two other men involved in the altercation. Witnesses reported that Appellant was drunk, tried to start a fight while he was inside the Forest Way Inn, and, without provocation, initiated the altercation outside the bar. However, Appellant and his son maintained that the other two men were the aggressors. After the charges were filed, John M. Ingros, Esquire, of the Jefferson County Public Defender s office entered an appearance on Appellant s behalf. On September 7, 2011, Mr. Ingros withdrew his appearance, and Fred. D. Hummel, Esquire, who was also from the public defender s office, assumed representation of Appellant. Mr. Hummel was Appellant s counsel at trial, which occurred on March 15, After Appellant was acquitted of the misdemeanors but convicted by the trial court of the summary offenses, Appellant was sentenced on March 22, 2012 to fines, costs, and restitution. On March 29, 2012, Appellant filed a motion for leave to proceed in forma pauperis, which was denied on March 30, Appellant filed the present appeal pro se on April 12, On April 16, 2012, Appellant was ordered to file a concise statement of matters to be raised on appeal

3 Appellant then filed a motion for reconsideration of his request to proceed in forma pauperis and argued that he was entitled to a hearing as to that issue. While a transcription of that proceeding is not contained in the certified record, the record establishes that the court thereafter held a hearing on the in forma pauperis request. See Order of Court, 4/27/12, at 1 (scheduling a hearing on the motion for reconsideration for May 7, 2012); Order of Court, 5/7/12, at 1 ( AND NOW, May 7, 2012, after hearing and testimony, it is hereby ORDERED AND DECREED that the motion to proceed in forma pauperis is DENIED. ) (emphases omitted). After that hearing, the motion for reconsideration was denied. On May 18, 2012, Mr. Hummel, who was not aware that Appellant had filed this appeal, presented a motion to withdraw his appearance, and that motion was granted. On March 15, 2013, Appellant filed a motion with this Court asking for the appointment of counsel for purposes of litigating the present appeal. On March 22, 2013, we granted that motion and ordered Mr. Hummel to file a brief on Appellant s behalf. On May 9, 2013, Mr. Hummel filed a Pa.R.A.P. 1925(b) statement and asked that the court consider it timely filed. The issues raised in the statement were: 1. Did the Court err when it released court appointed counsel from further representation of Defendant upon jury acquittal of all misdemeanor charges but where Defendant was convicted by the Court of two summary charges and given a sentence that did not include incarceration? 2. Did the Court err when it sentenced Defendant on summary Public Drunkenness and summary Harassment without - 3 -

4 providing Defendant an opportunity to address the Court during sentencing? 3. Whether the evidence was sufficient to convict Defendant of summary Public Drunkenness? 4. Whether the evidence was sufficient to convict Defendant of summary Harassment? Concise Statement of Matters Complained of on Appeal, 5/9/13, at 1. While the trial court did not grant the request to file the statement nunc pro tunc, it did address all four issues in its Pa.R.A.P. 1925(a) opinion. 1 It found the allocution issue waived, held that the evidence was sufficient to sustain the summary convictions, and concluded that Appellant was not entitled to court-appointed counsel since he was not indigent and since he was no longer subject to the risk of incarceration. Mr. Hummel thereafter filed a counseled brief in this Court and raises one allegation: It was error for the trial court to dismiss court appointed counsel immediately after sentencing where defendant had been acquitted by [a] jury of all misdemeanor charges but the trial court found defendant guilty of two summary charges. The court sentenced defendant to fines and costs only and found defendant no longer entitled to court appointed counsel since there was no likelihood of incarceration. Such dismissal resulted in prejudice to defendant. 1 As noted, the issue on appeal concerns whether Appellant should have been afforded counsel when the Pa.R.A.P. 1925(b) statement was ordered. Further, the trial court addressed all the contentions on the merits. Thus, we decline to premise a finding of waiver based upon the untimeliness of the statement in question. See Commonwealth v. Thompson, 39 A.3d 335 (Pa.Super. 2012)

5 Appellant s brief at 10. Appellant argues he was prejudiced by the lack of counsel after sentencing and before appellate briefing since he 1) was forced to personally pay for the trial transcript ordered for purposes of this appeal; and 2) waived the allocution issue by not filing a post-sentence motion. Appellant s brief at 11. Initially, we observe that Appellant did not order transcription of the hearing where his financial status was explored, and the notes of testimony of that proceeding are not included in the certified record. Thus, the propriety of the court s ruling on Appellant s eligibility for court-appointed counsel is waived for purposes of this appeal due to Appellant s failure to request a transcript of the May 7, 2012 hearing. Commonwealth v. Murchinson, 899 A.2d 1159 (Pa.Super. 2006). Appellant s present contention is additionally waived due to his failure to provide citation to legal authority or properly develop an assertion regarding the trial court s ruling on his financial ineligibility for court-appointed counsel. Commonwealth v. Spotz, 18 A.3d 244, 281 n.21 (Pa. 2011) (defendant s neglect to present developed, reasoned, [or] supported argument on claim resulted in its waiver). Even if not waived, Appellant s issue fails. The trial court in the instant case concluded that Appellant was not entitled to court-appointed counsel on two bases. First, it stated that it had discovered during the course of trial - 5 -

6 that the defendant in this case was not in fact indigent. Trial Court Opinion, 5/17/13, at 1. It continued that [w]hatever [Appellant] may have reported to the public defender s office to make himself appear eligible for court-appointed counsel in the first place,... [this] Court was not required to continue the appointment when his ineligibility became evident. Id. This ruling was correct. As we noted in Commonwealth v. Brown, 476 A.2d 381, 384 (Pa.Super. 1984) (emphasis added), An accused unable to afford counsel has the right to have counsel appointed for him. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). This right extends to everyone charged with an offense punishable by imprisonment, Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), and is binding upon the states, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). See also Pa.R.Crim.P. 122; 2 2 Pa.R.Crim.P. 122 provides (emphases added): (A) Counsel shall be appointed: (Footnote Continued Next Page) (1) in all summary cases, for all defendants who are without financial resources or who are otherwise unable to employ counsel when there is a likelihood that imprisonment will be imposed; (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; - 6 -

7 Dauphin County Public Defender's Office v. Court of Common Pleas of Dauphin County, 849 A.2d 1145 (Pa. 2004) (defender s office, rather than trial court, has authority to set parameters of financial requirements for purposes of obtaining appointed counsel). The trial court herein also ruled, in the alternative, that Appellant did not have a right to continued court-appointed representation once the jury acquitted him of the misdemeanor charges. Id. In this respect, it noted that sentence already was imposed on the summary offenses and Appellant no longer faced the possibility of jail time. See Brown, supra; Pa.R.Crim.P. 122(A)(1) (defendant without financial resources is entitled to appointed counsel in summary case if there is a likelihood that incarceration will be imposed). But see Pa.R.Crim.P. 122(B)(2) ( When counsel is appointed,... the appointment shall be effective until final judgment, including any proceedings upon direct appeal. ). Appellant fails to present any challenge to the court s first ground for denying him the continued services of appointed counsel after trial. In this respect, the court concluded that Appellant had the economic resources to hire his own attorney and had misrepresented his monetary situation when he applied for a free lawyer at the public defender s office. The court also conducted a hearing devoted to the question of the nature and extent of (Footnote Continued) (3) in all cases, by the court, on its own motion, when the interests of justice require it

8 Appellant s income and assets. Following that hearing, it concluded that Appellant was not indigent. In Dauphin County, supra at 1151, our Supreme Court noted that Pa.R.Crim.P. 122 authorizes the court to conduct case-by-case evaluations of individual defendants' circumstances in order to ascertain whether counsel should be appointed. Additionally: In reviewing a trial court's resolution of an application to proceed in forma pauperis, we reverse only if the court abused its discretion or committed an error of law. Amrhein v. Amrhein, 903 A.2d 17, 19 (Pa.Super. 2006) (citation omitted). In this case, Appellant was never entitled to appointed counsel at the inception of these proceedings. The trial court found that Appellant presented a false picture of his economic situation to the public defender s office in order to procure appointed counsel when he was not entitled to such. In light of this finding of fraud committed by Appellant, we cannot find error in the trial court s decision to allow counsel to withdraw once the court determined the true state of Appellant s fiscal affairs. Judgment of sentence affirmed. Judge Colville Concurs in the Result

9 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 10/24/