Opinion
J-S57043-19 No. 702 MDA 2019
01-13-2020
COMMONWEALTH OF PENNSYLVANIA v. STEPHEN STRAWN, JR., Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered November 27, 2018 in the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0001996-2017 BEFORE: BOWES, J., STABILE, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.:
Stephen Strawn, Jr. ("Strawn"), pro se, appeals from the judgment of sentence entered following his conviction of driving under the influence—general impairment ("DUI"), and the summary offenses of driving while license is suspended or revoked (DUI related), and driving vehicle at safe speed. We affirm.
The trial court conducted a hearing pursuant to Commonwealth v. Grazier , 713 A.2d 81 (Pa. 1998), and appointed standby counsel to assist Strawn.
See 75 Pa.C.S.A. §§ 3802(a)(1), 1543, 3361.
On August 18, 2017, at about 2:19 a.m., Londonderry Township Police Officer Scott Firestone ("Officer Firestone") observed a silver Ford Focus automobile traveling westbound on Horseshoe Pike, at an unreasonable speed. After stopping the vehicle, Officer Firestone detected that the driver, Strawn, had an odor of alcohol on his breath. Strawn admitted to Officer Firestone that he had consumed two shots and one beer prior to driving.
During the vehicle stop, Strawn was unable to produce identification, but provided Officer Firestone with his name and date of birth. Upon checking Strawn's information, Officer Firestone discovered that Strawn's operating privileges were suspended/expired. Strawn consented to a breathalyzer test, but declined to perform a field sobriety test. Later, Strawn refused to take a blood alcohol content test.
It was subsequently determined that Strawn's operating privileges had expired on June 30, 2001.
In its April 2, 2019, Opinion, the trial court summarized the extensive procedural history underlying the instant appeal, which we adopt for the purpose of this appeal, with the following addendum. See Trial Court Opinion, 4/2/19, at 2-7. On April 2, 2019, the trial court denied Strawn's post-sentence Motion. Thereafter, Strawn filed the instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.
Strawn does not include a statement of questions involved in his appellate brief, as is required by Pa.R.A.P. 2116. Rule 2116 provides, in relevant part, as follows:
General rule. The statement of the questions involved must state concisely the issues to be resolved, expressed in the terms and circumstances of the case but without unnecessary detail. The
statement will be deemed to include every subsidiary question fairly comprised therein. No question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby. Each question shall be followed by an answer stating simply whether the court or government unit agreed, disagreed, did not answer, or did not address the question. If a qualified answer was given to the question, appellant shall indicate the nature of the qualification, or if the question was not answered or addressed and the record shows the reason for such failure, the reason shall be stated briefly in each instance without quoting the court or government unit below.Pa.R.A.P. 2116 (emphasis added). Thus, we could deem all of Strawn's issues waived, as they are not included in a statement of questions involved. See id. We recognize that Strawn has chosen to proceed pro se. However, pro se status confers no special benefit upon a litigant, and any person choosing to represent himself in a legal proceeding, must assume, to a reasonable extent, his lack of expertise and legal training will be his undoing. Commonwealth v. Adams , 882 A.2d 496, 498 (Pa. Super. 2005). Nevertheless, to the extent that we are able to discern Strawn's claims, we decline to find waiver in this instance.
Strawn first challenges the denial of his pretrial suppression Motion. See Brief for Appellant at 5 (unnumbered). Strawn appears to challenge whether probable cause existed to justify the vehicle stop effectuated by Officer Firestone. Id. Strawn states that Officer Firestone stopped Strawn's vehicle for driving at an unsafe speed. Id. However, Strawn takes issue with the Commonwealth's evidence, particularly Officer Firestone's testimony that Strawn "was going faster than what I believe was the posted speed." Id. (citation omitted). According to Strawn, Officer Firestone testified that Strawn was traveling at over 50 miles per hour, five miles per hour over the posted speed limit. Id. at 6 (unnumbered). Strawn contends that Officer Firestone did not use a testing device to determine his speed, nor did a second officer testify regarding Strawn's speed. Id. at 6-7 (unnumbered). Strawn claims that a second officer's testimony is necessary to establish that he exceeded the speed limit. Id. (unnumbered).
Our standard of review of an order denying a motion to suppress is as follows:
Our standard of review in addressing a challenge to the denial of a suppression motion is limited to determining whether the suppression court's factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the suppression court's factual findings are supported by the record, we are bound by these findings and may reverse only if the court's legal conclusions are erroneous. Where, as here, the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court's legal conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to our plenary review.Commonwealth v. Kemp , 195 A.3d 269, 275 (Pa. Super. 2018) (citations and internal quotation marks omitted).
In its Opinion filed on June 19, 2018, the suppression court set forth an extensive analysis of the law, evaluated the totality of the circumstances establishing probable cause to effectuate a vehicle stop, and concluded that Strawn's claim lacks merit. See Suppression Court Opinion, 6/19/18, at 4-17. We agree with the sound reasoning of the suppression court, as set forth in its Opinion, and affirm on this basis with regard to Strawn's first claim. See id.
In his second claim, Strawn challenges the sufficiency of the evidence underlying the verdict, and the verdict as against the weight of the evidence. See Brief for Appellant at 27 (unnumbered). Strawn first directs our attention to the Criminal Information, which did not state the speed at which Strawn was traveling. Id. Strawn argues that Officer Firestone failed to produce a certificate of accuracy regarding his speedometer, and directs our attention to contradictions between Officer Firestone's testimony at the preliminary hearing and his trial testimony. Id. at 28-29 (unnumbered). Strawn further sets forth other, purportedly contradictory testimony, and challenges Officer Firestone's credibility. Id. at 30 (unnumbered). Strawn also directs our attention to statutes and regulations regarding the testing of breathalyzer devices for accuracy. Id. at 31-33 (unnumbered). According to Strawn, "Officer Firestone has offered false testimony to all aspects of a pre-arrest breath test[.]" Id. at 34 (unnumbered).
In its Opinion filed on April 2, 2019, the trial court set forth the appropriate standard of review and applicable law, addressed Strawn's claim, and concluded that it lacks merit. See Trial Court Opinion, 4/2/19, at 9-13 (addressing the sufficiency and weight claims), 14-18 (addressing Strawn's assertions regarding the breathalyzer testing device). We agree with the sound reasoning of the trial court, and affirm on the basis of its Opinion with regard to these claims. See id.
Strawn next presents a series of claims under the general heading, "Abuse of Discretion." Brief for Appellant at 38 (unnumbered). As best as we are able to discern, Strawn first challenges the trial court's refusal to consider certain pro se pre-trial Motions, which he filed while he was represented by counsel. See id. at 40-41.
Our review of the record discloses that the charges were lodged against Strawn on September 25, 2017. The trial court appointed counsel for Strawn on November 11, 2017. On December 7, 2017, Strawn filed pro se pre-trial Motions for dismissal of the charges. On December 22, 2017, Strawn's court-appointed attorney filed counseled Omnibus Pre-Trial Motions seeking the dismissal of the charges based upon improprieties at the preliminary hearing and a violation of Pa.R.Crim.P. 571. Strawn, pro se, also sought habeas corpus and other relief. The trial court denied Strawn's pro se Motions, without prejudice to pursue his right to relief through a counseled motion.
A defendant has no right to hybrid representation. Commonwealth v. Ellis , 626 A.2d 1137, 1139 (Pa. 1993); see also Commonwealth v. Ali , 10 A.3d 282, 293 (Pa. 2010) (characterizing as a "legal nullity" a pro se Pa.R.A.P. 1925(b) statement filed by an appellant who was represented by counsel); Commonwealth v. Colson , 490 A.2d 811, 822 (Pa. 1985) (holding that there is no constitutional right for a represented defendant to act as co-counsel). Because Strawn was represented by counsel at the time the trial court denied his pro se Motions, he is not entitled to relief.
Strawn again appears to contest the Commonwealth's failure to provide analysis and data regarding the accuracy of the portable breathalyzer device used by Officer Firestone. Brief for Appellant at 44 (unnumbered). As set forth above, this claim lacks merit, for the reasons set forth in the trial court's April 2, 2019, Opinion. See Trial Court Opinion, 4/2/19, at 14-18.
Strawn next asserts that he was denied his right to counsel during his preliminary hearing. See Brief for Appellant at 41. The Sixth Amendment right to the assistance of counsel attaches at the initiation of formal judicial proceedings against an individual by way of formal charge, preliminary hearing, indictment, information, or arraignment. Commonwealth v. Briggs , 12 A.3d 291, 324 (Pa. 2011). Once the Sixth Amendment right to counsel attaches, "the prosecutor and police have an affirmative obligation not to act in a manner that circumvents and thereby dilutes the protection afforded by the right to counsel." Maine v. Moulton , 474 U.S. 159, 171 (1985).
The determination whether particular action by state agents violates the accused's right to the assistance of counsel must be made in light of this obligation. Thus, the Sixth Amendment is not violated whenever—by luck or happenstance—the State obtains incriminating statements from the accused after the right to counsel has attached. However, knowing exploitation by the State
of an opportunity to confront the accused without counsel being present is as much a breach of the State's obligation not to circumvent the right to the assistance of counsel as is the intentional creation of such an opportunity. Accordingly, the Sixth Amendment is violated when the State obtains incriminating statements by knowingly circumventing the accused's right to have counsel present in a confrontation between the accused and a state agent.Id. at 176. Although a defendant is entitled to counsel at the preliminary hearing, a defendant is not entitled to relief where no prejudice results from counsel's absence. See Commonwealth v. Melnyczenko , 358 A.2d 98, 99 (Pa. Super. 1976) (citing Commonwealth v. Geiger , 316 A.2d 881, 883 (Pa. 1974), and determining that an arraignment was not fatally defective where the defendant appeared pro se and entered a plea of not guilty, where counsel was appointed shortly after arraignment, and defendant's ability to present a defense suffered no prejudice).
Here, the preliminary hearing took place on October 26, 2017. Counsel for Strawn entered his appearance on November 11, 2017. The record reflects that counsel represented Strawn from that date until Strawn chose to proceed pro se. There is nothing of record demonstrating that Strawn suffered prejudice resulting from the lack of counsel at the preliminary hearing. Consequently, we cannot grant him relief on this claim. See Melnyczenko , 358 A.2d at 99; Commonwealth v. Jones , 308 A.2d 598, 602-03 (Pa. 1973) (finding that an arraignment was not fatally defective where the defendant appeared pro se, signed a pauper's oath, and entered a plea of not guilty where counsel was appointed shortly after arraignment and defendant's ability to present a defense suffered no prejudice).
To the extent that Strawn raises additional claims that are unsupported by citation to the record and applicable legal authorities, we deem such claims waived. See Pa.R.A.P. 2119(a) (stating that each point in the argument must be "followed by such discussion and citation of authorities as are deemed pertinent"); Commonwealth v. Johnson , 985 A.2d 915, 924-25 (Pa. 2009) (stating that claims are waived "where an appellate brief fails to provide any discussion of a claim with citation to relevant authority or fails to develop the issue in any other meaningful fashion capable of review" and holding appellant's single-sentence arguments constituted "the type of cursory legal discussion which is wholly inadequate to preserve an issue for appellate review.").
In the final section of his brief, entitled "Constitutional Issues," Strawn sets forth bald allegations of constitutional violations, without citation to pertinent authorities or to the places in the record where these violations purportedly occurred. Accordingly, these claims are waived. See Pa.R.A.P. 2119(a); Johnson , 985 A.2d at 924-25.
We note that Strawn cites 75 Pa.C.S.A. § 1547(b), and cases filed by the Pennsylvania Commonwealth Court, which address the civil penalties for refusing a blood alcohol test. Strawn fails to argue how these authorities are pertinent or relevant in this criminal proceeding.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/13/2020
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