Com. v. Schwartz

• Decision Date: 20 October 1992
• Citation: 615 A.2d 350,419 Pa.Super. 251
• Parties: COMMONWEALTH of Pennsylvania v. Steven SCHWARTZ, Appellant.
• Court: Pennsylvania Superior Court

Page 350

615 A.2d 350

419 Pa.Super. 251

COMMONWEALTH of Pennsylvania v. Steven SCHWARTZ, Appellant.

Superior Court of Pennsylvania.

Argued May 12, 1992.

Filed Oct. 20, 1992.

Steven A. Schwartz, pro se.

Mary M. Killinger, Executive Asst. Dist. Atty., Norristown, for Com., appellee.

Before WIEAND, OLSZEWSKI and KELLY, JJ.

OLSZEWSKI, Judge:

This is an appeal from the judgment of sentence entered on December 8, 1987, by the Court of Common Pleas of Montgomery County. Subsequent to a jury trial, appellant was convicted of one count of criminal trespass, two counts of disorderly conduct and resisting arrest. On November 12, 1987, post-trial motions were denied with respect to criminal trespass and disorderly conduct, but granted with respect to resisting arrest. Appellant then received the following sentence on December 8, 1987: a two-year term of probation and a $1,000 fine on the charge of criminal trespass and a concurrent one-year term of probation on the charge of disorderly conduct.

The docket entries indicate that appellant filed a notice of appeal on December 31, 1987. In response to appellant's motion for a new trial and brief in support of such motion, the trial court filed an opinion on March 18, 1988. Appellant's counsel then filed a brief with this Court on May 6, 1988. Thereafter, on August 28, 1988, this Court granted Marc R. Steinberg's motion to withdraw as counsel for appellant. When appellant did not advise the Court of the name of his new counsel nor indicated he was proceeding pro se, we dismissed the case by per curiam order of February 15, 1989, for failure to file a brief.

On April 5, 1989, appellant filed an appeal to the Pennsylvania Supreme Court which was denied. Then, on December 8, 1989, appellant filed a pro se motion for reversal of convictions which was also denied. Appellant next filed a petition for post-conviction relief (PCRA). The Commonwealth successfully moved to dismiss appellant's PCRA petition and this Court affirmed the dismissal of appellant's PCRA petition by memorandum decision, No. 2299 Phila.1990, filed February 26, 1991. Finally, on October 30, 1991, this Court entered a per curiam order reinstating appellant's original appeal.

In addition to seeking reinstatement of his appeal, appellant also moved to reinstate the original appellate brief filed by Attorney Steinberg. On February 10, 1992, such motion was granted.

We now have before us on appellant's behalf: the original appellate brief filed May 7, 1988, which is incorporated by reference into the pro se briefs; one pro se brief dated December 23, 1991; another pro se brief dated January 9, 1992; and a pro se reply brief dated February 24, 1992.

We will consider both the original appellate brief and the pro se briefs since this is not a case of hybrid appellate representation. Where an appellant is represented by counsel, this Court has refused to entertain pro se briefs because of the administrative burdens and the likelihood for procedural delay and confusion. Commonwealth v. Ellis, 398 Pa.Super. 538, 581 A.2d 595 (1990) (en banc ), appeal granted 528 Pa. 636, 598 A.2d 992 (1991). We held,

[w]e will accept for filing pro se appellate briefs, but we will not review a pro se brief if a counseled brief has been filed, either before, simultaneously with, or after the pro se, due to the judicial confusion and delay that ensues.

Id. at 550, 581 A.2d at 600. Normally, the prothonotary would send the pro se brief to appellant's counsel who should petition this Court to remand the case for evidentiary hearing if appellant alleges ineffectiveness of counsel or an affirmative desire to be heard pro se. Id. at 550, 581 A.2d at 600-601.

Instantly, however, this case differs since appellant's counsel was allowed to withdraw after the initial appellate process commenced; although we possess a counseled brief, appellant is not currently represented on appeal. Here, threat of double-filing and confusion of issues and arguments are absent since such decisions reside solely with appellant. Because we are not presented with the burdens and dangers that guided our decision in Ellis, we are not forced to follow the Ellis rule and, so, can entertain appellant's pro se briefs.

In addition, the issues that appellant raised in his pro se briefs are repetitive of those in the original appellate brief. Moreover, our decision in Ellis is currently being reviewed by the Supreme Court. We find, therefore, that it would be in the best interest of appellant and this Court to consider the issues in both the pro se and counseled briefs. Finally, we will address each of appellant's arguments despite his failure to brief all the issues included in the "Statement of Questions Involved" sections in his pro se briefs. This decision is based on appellant's attempt to incorporate the original appellate brief in his pro se briefs and the order of February 10, 1992, reinstating the original brief.

Appellant raises the following issues in his counseled brief and pro se briefs:

1. Whether the trial court erred by denying appellant's motion for discovery to examine the Jenkintown Borough Facilities.

2. Whether the trial court erred by allowing testimony regarding appellant's prior bad acts.

3. Whether the trial court erred by refusing to remedy a violation of Sequestration by Commonwealth witnesses.

4. Whether the trial court erred by refusing the admission of appellant's photographs.

5. Whether the trial court erred by refusing to remedy prejudicial remarks by the prosecutor.

6. Whether the trial court erred by allowing a door to be admitted into evidence and then allowing the door to go out with the jury.

7. Whether the trial court erred by improperly instructing the jury.

8. Whether the trial court erred by its determination that the evidence was sufficient to sustain the verdict, in conformity with the evidence, the weight of the evidence and the law.

Factually, this case centers around an occurrence at the residence of Susan and Bill Focht and Joanne Kalin on the night of September 20, 1986. As Mrs. Focht and Ms. Kalin were preparing to leave their home at 416 West Avenue in Jenkintown, Mrs. Focht unlocked the rear door. As Mrs. Focht waited for Ms. Kalin in the living room, she heard a loud "bang" on the metal part of the back door. Mrs. Focht then looked out the side window and she saw appellant Schwartz. By the time she got to the back door, appellant had opened it, had his foot inside and was yelling at Mrs. Focht to get Ms. Kalin. Mrs. Focht struggled against appellant and was finally able to close and bolt the door. Appellant then hit one of the panes of glass in the door and broke it. Mrs. Focht then called the police. When the police arrived, they found appellant sitting on a railing by the back door. After Mrs. Focht told the police that appellant was causing a disturbance and explained that he broke the door, one of the police officers attempted to handcuff him. Appellant struggled with the police and yelled obscenities at Mrs. Focht, but he was eventually cuffed and placed in a patrol car where he continued to scream. Appellant was then taken to the Jenkintown Borough Police Station where he began kicking the cell door. Thereafter, he was taken to the Montgomery County Correctional Facility where a medical technician evaluated his condition and took photographs of appellant. The technician referred him to Sacred Heart Hospital to receive medical clearance in order to enter the prison. Upon receiving clearance, appellant returned to the prison. Subsequently he was charged with criminal trespass, terroristic threats, loitering and prowling at nighttime, resisting arrest and disorderly conduct.

Appellant first contends that the trial court erred by denying his discovery request to inspect, photograph and videotape the offices and jail cells of the Jenkintown Borough Facilities. Rule 305(B)(2) of the Pennsylvania Rules of Criminal Procedure states that,

[T]he Court may order the Commonwealth to allow the defendant's attorney to inspect and copy or photograph any of the following requested items, upon showing that they are material to the preparation of the defendant, and that the request is reasonable: ... (d) any other evidence specifically identified by the defendant, provided the defendant can additionally establish that its disclosure would be in the interests of justice.

Pa.R.Crim.P., Rule 305(B)(2), 42 Pa.C.S.A.

The statute bestows discretion upon the trial court to decide whether discovery should be allowed to further the interests of justice. Absent an abuse of such discretion, we will not disturb the lower court's ruling.

Appellant specifically identified the evidence that he sought to inspect as being the Jenkintown Borough Facilities; however, in the trial court's opinion, he did not establish that the inspection would be in the interests of justice. We agree.

In his counseled brief, appellant stated that he sought to show the bias of the police officers and their motivation for testifying that appellant resisted arrest. ¹ Accordingly, the trial judge permitted appellant to testify at length on direct and cross-examination about the alleged brutality at the scene of the arrest. Additionally, cross-examination of one of the police officers regarding events at the police station was allowed because the testimony was a potential credibility issue. The lower court, however, correctly held that the layout of the station facilities did not go to the credibility of appellant or of the police officers.

Further, the trial court opined that the premises were not at issue. The statute limits the court to discovering items that are material to preparation of the defense. Since the facilities were not at issue, inspection of them certainly was not material to appellant's case. Thus, the trial court was well within its discretion to refuse the discovery request.

Appellant next argues that the trial judge erred...