Com. v. Freeman, J.

J-S06027-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

JOSHUA FREEMAN :

:

Appellant : No. 845 EDA 2020

Appeal from the Judgment of Sentence Entered March 11, 2020

In the Court of Common Pleas of Northampton County Criminal Division

at No(s): CP-48-CR-0000969-2019

BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY NICHOLS, J.: FILED JULY 26, 2021

Appellant Joshua Freeman appeals from the judgment of sentence

imposed following his convictions for failure to register with the Pennsylvania

State Police and verify address or be photographed.1 On appeal, Appellant

challenges the weight of the evidence supporting his convictions. We affirm.

We briefly summarize the relevant facts and procedural history of this

case. On January 31, 2017, Appellant pled guilty to indecent assault of a

minor less than thirteen years of age 2 and was required to register as a Tier

III sex offender for life pursuant to Subchapter H of the Sexual Offender

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. § 4915.1(a)(1) and (2), respectively.

2 18 Pa.C.S. § 3126(a)(7).

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Registration and Notification Act (SORNA II).3 Accordingly, Appellant must

appear in person, either at a Pennsylvania State Police barracks or a state

parole office, on a quarterly basis to verify his residential address and to be

photographed.

Between February 2017 and January 2019, Appellant appeared in

person on thirteen occasions at a Pennsylvania State Police barracks or a state

parole office to update his information in the Sex Offender Registry Terminal

(SORT). N.T. Trial, 1/7/20, at 105-08; Commonwealth’s Ex. 3. On each

occasion, Appellant “checked boxes and placed his signature indicating

acknowledgement that he ‘must appear in person within three business days

at any approved registration site to notify the Pennsylvania State Police of . .

. any change in residence . . . .’” Trial Ct. Op., 10/7/20, at 5. Agent Benjamin

Groves of the Pennsylvania Board of Probation and Parole (Agent Groves)

reiterated this registration requirement in text messages to Appellant. N.T.

Trial at 120-27; Commonwealth’s Ex. 8.

In January 2019, Appellant relocated to a new address in Northampton

County but did not update his address by registering the information in person

on the Sex Offender Registry Terminal (SORT). On January 4, 2019, Agent

Groves visited Appellant at his new address, allegedly indicating to Appellant

that he was “all good now” with regard to his supervision requirements. N.T.

____________________________________________

342 Pa.C.S. §§ 9799.10-9799.42. SORNA is also known as Act 29. See

Commonwealth v. Torsilieri, 232 A.3d 567, 574 (Pa. 2020).

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Trial at 161, 168, 175-76. However, Appellant interpreted Agent Groves’

comment to mean he satisfied his reporting requirements as well. Id. at 188.

Because of this, Appellant did not update his address by registering the

information in person, either at a Pennsylvania State Police barracks or a state

parole office, on SORT.

On January 25, 2019, Appellant was charged with failure to register with

the Pennsylvania State Police and failure to verify address or be photographed.

The trial court appointed James M. Connell, Esq., as Appellant’s trial counsel,

and on January 7, 2020, a jury convicted Appellant on both counts.

Even though Appellant was still represented by Attorney Connell, he filed

a pro se notice of appeal on March 3, 2020, prior to sentencing. At the

sentencing hearing on March 11, 2020, the trial court questioned why

Appellant filed a pro se notice of appeal while he was still represented by

Attorney Connell. N.T. Sentencing H’rg, 3/11/20, at 2. Attorney Connell

responded that he “[e]xplained to [Appellant] that [the pro se notice of

appeal] was untimely, [and] that [he would] be filing one for [Appellant] after

sentencing.” Id. (some formatting altered). Ultimately, the trial court

sentenced Appellant to consecutive sentences of twelve to twenty-four

months’ imprisonment on each charge resulting in an aggregate sentence of

twenty-four to forty-eight months of incarceration. The trial court verbally

advised Appellant of his post-sentence rights at the conclusion of the

sentencing hearing, and Appellant executed a written colloquy. Id. at 11-13;

Colloquy, 3/11/20.

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However, Appellant did not file a post-sentence motion or subsequent

notice of appeal, and Appellant’s premature pro se appeal remained pending

in this Court. As of June 2020, Appellant failed to file a docketing statement

in this Court. On June 22, 2020, this Court noted Appellant’s failure to file a

docketing statement, vacated the existing briefing schedule, and remanded

this matter to the trial court to (1) determine whether Attorney Connell

abandoned Appellant and (2) take any further action to protect Appellant’s

appellate rights. Order, 6/22/20.

On July 17, 2020, the trial court held a hearing to determine whether

Attorney Connell had abandoned Appellant. At the hearing, Appellant

informed the trial court that he wished to move forward with Attorney Connell

as his appellate counsel. N.T. Abandonment H’rg, 7/17/20, at 2. Appellant

also stated that

from my understanding, Your Honor, I [filed the pro se notice of

appeal] too early, so you said that Mr. Connell needed to file one

for me after the fact, because I did it before the sentencing was

actually completed. So that’s why Mr. Connell was supposed to

re-file it, I guess.

Id. at 3. Attorney Connell responded “when [Appellant] filed [the pro se

notice of appeal], I did not follow through. I guess that’s why [this Court] is

asking whether I had abandoned the client.” Id. at 4. Given that Appellant

expressed his continued desire to be represented by Attorney Connell,

Attorney Connell said he would represent Appellant in subsequent

proceedings. Id. at 4-5.

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On July 17, 2020, the trial court filed an order and informed this Court

that Appellant was not abandoned by Attorney Connell. The parties and the

trial court did not discuss the need to file post-sentence motions to preserve

Appellant’s issues on appeal.

On August 28, 2020, the trial court directed Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Appellant filed an untimely Rule 1925(b) statement on October 6, 2020, in

which he, inter alia, asserted that the verdict was against “the weight of the

evidence and law.”4 On October 7, 2020, the trial court filed a responsive

opinion pursuant to Rule 1925(a).5

On appeal in the instant matter, Appellant raises one issue for our

review:

[Was] the verdict against the weight of the evidence and the

weight of the law in this matter?

Appellant’s Brief at 1 (formatting altered).

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4 In his Rule 1925(b) statement, Appellant raised an additional issue regarding

the excessiveness of his sentence. However, he does not argue this issue in

his appellate brief, and therefore, it is waived. See Commonwealth v.

Felder, 247 A.3d 14, 20 (Pa. Super. 2021) (stating, “an issue identified on

appeal but not developed in the appellant’s brief is abandoned and, therefore,

waived” (citation omitted and formatting altered)).

5 We decline to find waiver based on the untimely Rule 1925(b) statement.

See Commonwealth v. Brown, 145 A.3d 184, 186 (Pa. Super. 2016); see

also Commonwealth v. Burton, 973 A.2d 428, 432-33 (Pa. Super. 2009)

(en banc) (explaining that an untimely filing of Rule 1925(b) statement by

counsel is per se ineffectiveness and addressing the merits of the issue

presented on appeal).

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Appellant contends that “the jury failed to take into consideration the

reasonable assumption by [Appellant] that he was compliant with the

registration requirements.” Id. at 5. Therefore, Appellant argues that “[t]he

jury’s verdict in this matter is against the weight of the evidence and the

weight of the law as [Appellant] was informed that he had complied with all

of the requirements of Act 29 by his Parole Agent.”6 Id. at 3.

The Commonwealth responds that Appellant is not entitled to relief on

his weight of the evidence claim. Commonwealth’s Brief at 8. First, it asserts

that Appellant waived his weight of the evidence claim, as he did not properly

preserve the issue by raising the issue orally before sentencing, in a written

motion before sentencing, or in any post-sentence motion. Id. at 9-10.

Second, even if this Court addresses the issue on its merits, the

Commonwealth maintains that the trial court did not abuse its discretion, as

the verdict was supported by “credible evidence” from the record. Id. at 13-

14.

Before considering Appellant’s issue, we must consider whether we have

jurisdiction in this appeal. See Commonwealth v. Baio, 898 A.2d 1095,

1098 (Pa. Super. 2006) (explaining that questions regarding this Court’s

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6 We note that Appellant initially frames his claim as a challenge to the

sufficiency of the evidence. Appellant’s Brief at iii. However, as Appellant’s

challenge goes to the weight of the evidence, he necessarily concedes that

the evidence is sufficient to sustain the verdict. See Commonwealth v.

Bennett, 827 A.2d 469, 481 (Pa. Super. 2003) (“A motion for [a] new trial

on the grounds that the verdict is against the weight of the evidence concedes

that there is sufficient evidence to sustain the verdict . . . .”).

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jurisdiction may be raised sua sponte). As noted above, Appellant’s pro se

notice of appeal was filed prematurely and did not identify a specific order

being appealed. Furthermore, Attorney Connell did not withdraw Appellant’s

premature pro se notice of appeal or file a counseled notice of appeal after the

trial court entered the judgment of sentence.

It is well settled that a criminal defendant is not permitted to engage in

hybrid representation by submitting pro se filings while represented by

counsel. See Commonwealth v. Willis, 29 A.3d 393, 400 (Pa. Super.

2011). Therefore, as general rule, a pro se filing submitted by a counseled

defendant is a legal nullity. See Commonwealth v. Nischan, 928 A.2d 349,

355 (Pa. Super. 2007).

“When a counseled defendant files a pro se document, it is noted on the

docket and forwarded to counsel pursuant to Pa.R.Crim.P. 576(A)(4), but no

further action is to be taken.” Commonwealth v. Williams, 151 A.3d 621,

623 (Pa. Super. 2016). Accordingly, a pro se document filed by a counseled

defendant generally will not toll the time for taking an appeal. See id. (citing

Pa.R.Crim.P. 576 cmt.). However, this Court has also recognized an exception

to the ban on hybrid representation, namely where a counseled defendant

may act on his own behalf to protect important rights where counsel remains

technically attached to the case but is no longer serving his client’s interest.

See id. at 624.

Here, the proper procedure would have been for Appellant’s counsel to

file a notice of appeal following the judgment of sentence. Although the trial

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court noted the premature filing of Appellant’s pro se notice of appeal at the

sentencing hearing, see N.T. Sentencing H’rg at 2, it nonetheless directed

Appellant to file a Rule 1925(b) statement after the subsequent abandonment

hearing even though Attorney Connell failed to file a separate and counseled

notice of appeal or any post-sentence motions. Therefore, despite the

premature, hybrid filing status of Appellant’s pro se notice of appeal, it

appears that the trial court, by implication, determined it was a timely filing.

Moreover, because it appears that counsel did not properly serve Appellant’s

interest, we decline to quash this appeal. See Williams, 151 A.3d at 623-

24.

Next, we must consider whether Appellant has properly preserved his

weight of the evidence claim for appellate review. Although the trial court did

not address waiver in its Rule 1925(a) opinion, the Commonwealth asserts in

its brief that Appellant did not properly preserve the issue by raising the issue

orally before sentencing, in a written motion before sentencing, or in any post-

sentence motion. Commonwealth’s Brief at 10. It is well settled that an

appellant must raise a weight of the evidence challenge “with the trial judge

in a motion for a new trial: (1) orally, on the record, at any time before

sentencing; (2) by written motion at any time before sentencing; or (3) in a

post-sentence motion.” Pa.R.Crim.P. 607(A) (some formatting altered); see

also Commonwealth v. Sherwood, 982 A.2d 483, 494 (Pa. 2009) (holding

that although the appellant “included an issue challenging the verdict on

weight of the evidence grounds in his [Rule] 1925(b) statement and the trial

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court addressed [the appellant’s] weight claim in its Pa.R.A.P 1925(a)

opinion[, the appellant] did not preserve his weight of the evidence claim for

appellate review in the absence of an earlier motion” (citations omitted and

formatting altered)).

Here, our review reveals that although Appellant raised his weight of the

evidence claim in his Rule 1925(b) statement, he did not properly preserve

the issue by raising it at any point prior to sentencing or in a post-sentence

motion. See Pa.R.Crim.P. 607(A); Sherwood, 982 A.2d at 494.

Consequently, we are constrained to agree with the Commonwealth that

Appellant has waived his weight of the evidence claim for appellate review.

See Sherwood, 982 A.2d at 494.

Even if Appellant properly preserved his challenge to the weight of the

evidence, it merits no relief. The standard of review governing a challenge to

the weight of the evidence is well settled.

[T]he weight of the evidence is exclusively for the finder of fact

who is free to believe all, part, or none of the evidence and to

determine the credibility of the witnesses. An appellate court

cannot substitute its judgment for that of the finder of fact. Thus,

we may only reverse the [trial] court’s verdict if it is so contrary

to the evidence as to shock one’s sense of justice. Moreover,

where the trial court has ruled on the weight claim below, an

appellate court’s role is not to consider the underlying question of

whether the verdict is against the weight of the evidence. Rather,

appellate review is limited to whether the trial court palpably

abused its discretion in ruling on the weight claim.

Commonwealth v. Shaffer, 40 A.3d 1250, 1253 (Pa. Super. 2012) (citation

omitted).

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Moreover,

[w]hen the challenge to the weight of the evidence is predicated

on the credibility of trial testimony, our review of the trial court’s

decision is extremely limited. Generally, unless the evidence is so

unreliable and/or contradictory as to make any verdict based

thereon pure conjecture, these types of claims are not cognizable

on appellate review.

Commonwealth v. Bowen, 55 A.3d 1254, 1262 (Pa. Super. 2012) (citation

omitted).

Based on our review of the record, we discern no abuse of discretion by

the trial court in rejecting Appellant’s contention that the verdict was against

the weight of the evidence. See Shaffer, 40 A.3d at 1253. The trial court

addressed Appellant’s claim at length in its Rule 1925(a) opinion, stating

The jury . . . heard [Appellant’s] testimony that he interpreted

Agent Groves’ indication that [Appellant] was “good” to mean that

he was “perfectly fine within the parameters” and that he didn't

need to do anything further with respect to his registration

requirements. However, the jury also heard Agent Groves specify

that when he said [Appellant] was “all good” that it was “with

regard to [Appellant’s] supervision,” which is wholly distinct from

[Appellant’s] obligations under Act 29.

Moreover, the jury was faced with ample evidence demonstrating

[Appellant’s] knowledge of his registration requirements and his

failure to satisfy these requirements, despite being reminded on

numerous occasions. The jury was presented with the testimony

of Pennsylvania State Police Trooper Matthew Villano along with

Commonwealth’s Exhibit 3, which set forth [Appellant’s]

registration requirements under Act 29 and identified over a dozen

instances of [Appellant] appearing in person to verify his

registration requirements and be photographed.

* * *

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Specifically, on each of these occasions, [Appellant] checked

boxes and placed his signature indicating acknowledgment that he

“must appear in person within three business days at any

approved registration site to notify the Pennsylvania State Police

of any of the following . . . any change in residence [or] any

change in employment . . . . On each occasion, [Appellant] also

signed an acknowledgement of the penalties of noncompliance,

including that “[a] failure to provide complete and accurate

information when registering will subject you to arrest and felony

prosecution . . . .”

* * *

The jury found the ample testimony and direct evidence of

[Appellant’s] knowledge of his registration requirements as well

as his noncompliance with said requirements credible and found

him guilty of both charges. That the jury was not persuaded by

[Appellant’s] testimony that he believed he was “all good” does

not shock the [conscience], based on, inter alia, the number of

times [Appellant] was confronted with his specific obligations

under Act 29. Thus, the verdict was not contrary to the weight of

the evidence.

Trial Ct. Op. at 4-6 (citations omitted and some formatting altered).

Further, the record reflects that the trial testimony of Agent Groves and

Trooper Villano was not so unreliable and/or contradictory as to make the

verdict mere conjecture. See Bowen, 55 A.3d at 1262.

In sum, because Appellant failed to properly preserve his challenge to

the weight of the evidence, he waived his only issue on direct appeal. Further,

even if we were to consider Appellant’s claim on the merits, we would conclude

that there was no abuse of discretion by the trial court. Accordingly, we affirm

the judgment of sentence.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/26/2021

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