J.A21009/15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

ANTONE JOHNSON, :

:

Appellant : No. 833 EDA 2013

Appeal from the PCRA Order February 13, 2013

In the Court of Common Pleas of Monroe County 

Criminal Division No(s).: CP-45-CR-0000442-2007

BEFORE: ALLEN, MUNDY, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED AUGUST 28, 2015

Appellant, Antone Johnson, appeals pro se from the order of the 

Monroe County Court of Common Pleas that denied his timely first Post 

Conviction Relief Act1(“PCRA”) petition. Appellant claims the trial court 

improperly denied his request to proceed pro se. We affirm. 

This Court previously noted Appellant’s conviction for possession and 

possession with intent to deliver cocaine2arose from the following traffic 

stop.

On March 30, 2007, Trooper Nicholas Cortes (“Trooper 

Cortes”) of the Pennsylvania State Police Department, 

 

*

Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546. 

2 35 P.S. § 780-113(a)(16), (30).
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arrested [A]ppellant and his cohort, Clifton J. White 

(“White”), following a traffic stop. Both men were charged 

with possession of a controlled substance and possession 

of a controlled substance with intent to deliver in relation 

to cocaine found during a search of the vehicle, however, 

the men were tried separately.[ ] The charges arose after 

the trooper stopped the vehicle [A]ppellant was operating, 

but which White owned, and discovered drugs in the back 

floorboard behind the front seats.

Commonwealth v. Johnson, 1125 EDA 2009, at 1-2 (unpublished 

memorandum) (Pa. Super. Nov. 4, 2010), appeal denied, 895 MAL 2010 (Pa. 

Aug. 30, 2011).

The procedural history relevant to the appeal follows. David Skutnik, 

Esq., entered an appearance as appointed conflicts counsel on April 16, 

2007. Appellant attempted to file numerous pro se materials seeking a writ 

of habeas corpus, all of which the trial court forwarded to Attorney Skutnik. 

See Pa.R.Crim.P. 576(A)(4). On September 13, 2007, the court received 

Appellant’s pro se “Waiver of Counsel” motion, in which he asserted 

irreconcilable differences with counsel and the lack of communication and 

consultation between them. Appellant’s Waiver of Counsel, 9/12/07. On 

October 1, 2007, the court convened a hearing on the request to waive 

counsel and conducted a colloquy pursuant to Pa.R.Crim.P. 121(A)(2). N.T., 

10/1/07, at 2-8. The court determined Appellant did not “demonstrate a 

clear understanding of the nature of the charge and the elements of each of 

those charges[,] and was unaware of the permissible range of sentences 
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and/or fines for the offenses charge[d].”3 Order, 10/2/07, at 2. The court 

denied Appellant’s motion, concluding as follows: “[W]e are not convinced at 

this time that [Appellant] understands the full impact and consequences of 

his waiver of the right of counsel.” Id. 

Attorney Skutnik filed and litigated a suppression motion. On 

November 29, 2007, he filed a “Motion for Leave to Withdraw as Counsel,” 

asserting he was “unable to work with [Appellant] who questions counsel’s 

ability to properly represent him.” Mot. for Leave to Withdraw as Counsel, 

11/29/07, at ¶ 3. The trial court, on December 6, 2007, denied suppression 

and one week later, on December 13th, denied Attorney Skutnik’s motion to 

withdraw as counsel.

The matter proceeded to a jury trial, and on January 4, 2008, the jury 

found Appellant guilty of possession and possession with intent to deliver. 

Four days later, the Commonwealth filed a notice of intent to impose a 

mandatory minimum sentence under 18 Pa.C.S. § 7508(a)(3)(iii).4 On 

 

3 Appellant also stated he was unfamiliar with the concepts of “reasonable 

doubt” and the “presumption of innocence.” N.T., 10/1/07, at 7. 

4 Section 7508(a)(3)(iii), in relevant part, required the imposition of a 

mandatory minimum sentence of seven years for offenses involving weights 

of cocaine exceeding 100 grams and where the defendant has been 

convicted of another drug trafficking offense. 18 Pa.C.S. § 7508(a)(3)(iii). 

In Commonwealth v. Fennell, 105 A.3d 13, 20 (Pa. Super. 2014), this 

Court held Section 7508 was constitutional in its entirety under Alleyne v. 

United States, 133 S. Ct. 2151 (2013). 
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March 25, 2008, the trial court sentenced Appellant to seven to fourteen 

years’ imprisonment.

On March 31, 2008, the trial court received Appellant’s pro se postsentence motions, challenging (1) the weight of the evidence, (2) the 

sufficiency of the evidence, (3) the court’s denial of suppression, and (4) the 

effectiveness of Attorney Skutnik. On April 2, 2008, Attorney Skutnik filed a 

motion to withdraw asserting he could no longer represent Appellant in light 

of the ineffectiveness claims. Mot. for Leave to Withdraw as Counsel & 

Extend Time to File Post-Sentencing Mots., 4/2/08, at ¶ 4. The following 

day, April 3rd, the court granted Attorney Skutnik leave to withdraw and 

appointed Jason Leon, Esq., as counsel. On April 14th, the court received 

Appellant’s request to waive counsel and struck the motion on the following 

day. Appellant corresponded with Attorney Leon and instructed him not to 

disturb his pro se post-sentence motion. Attorney Leon filed a brief in 

support of Appellant’s post-sentence motion on September 5, 2008. 

On December 16, 2008, the trial court convened a hearing to consider 

Appellant’s claim of ineffectiveness, and Attorney Skutnik testified. On 

March 11, 2009, the court denied Appellant’s post-sentence motions. 

Attorney Leon filed a notice of appeal on April 9th. Six days later, on April 

15th, the court received Appellant’s pro se notice of appeal and “Waiver of 

Counsel.” Attorney Leon then filed a court-ordered Pa.R.A.P. 1925(b) 

statement. 
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This Court, on November 4, 2010, affirmed the judgment of sentence. 

We concluded (1) Appellant did not have a reasonable expectation of privacy 

in the vehicle searched by officers; (2) Appellant failed to plead and prove 

Attorney Skutnik was ineffective for failing to call as a witness White—the 

owner and passenger of the vehicle Appellant was driving at the time of his 

arrest;5and (3) the evidence was sufficient to support the verdicts. 

Johnson, 1125 EDA 2009, at 10, 14, 19. Appellant did not challenge the 

trial court’s denial of his requests to proceed pro se in this Court. The 

Pennsylvania Supreme Court denied allowance of appeal on August 30, 

2011. Johnson, 895 MAL 2010.

Appellant, on July 16, 2012,6timely filed the pro se first PCRA petition 

giving rise to this appeal. Appellant asserted the trial court violated his 

constitutional right to self-representation when it denied his waivers of 

counsel. Appellant’s Mot. for Post Conviction Collateral Relief, 7/16/12, at 3. 

Appellant indicated “No attorney requested” in his petition. Id. at 7. 

On August 1, 2012, the PCRA court appointed William Watkins, Esq., 

to represent Appellant. Appellant, acting pro se, filed an “Amendment to 

 

5 We addressed the merits of Appellant’s ineffectiveness claim on direct 

appeal under Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003). 

However, there was no indication in the record that Appellant waived his 

right to further PCRA review as is required by the more recent decision in 

Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013). 

6 We have used the date of the postal stamp to determine the time of filing. 

See Commonwealth v. Little, 716 A.2d 1287, 1289 (Pa. Super. 1998) 

(discussing prisoner mailbox rule). 
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PCRA Petition,” “Motion to Correct Citation Error of PCRA Petition,” and 

“Motion to Withdraw Counsel and Proceed Pro Se,” all of which the court 

forwarded to counsel. Appellant filed with the clerk of court a letter he sent 

to Attorney Watkins asserting counsel was not authorized to act on his 

behalf and instructing counsel “not to file anything” in the matter. Letter 

from Appellant to Attorney Watkins, 9/14/2012, at 2. 

The Commonwealth, on September 24, 2012, filed a response to 

Appellant’s pro se petition, indicating that the claim was previously litigated 

or waived under 42 Pa.C.S. § 9544 and, in the alternative, meritless. 

Commonwealth’s Answer & Br. in Opp’n to Def.’s PCRA Pet., 9/24/12, at 4. 

That same day, Attorney Watkins filed a “Motion for Leave to Withdraw and 

Allow Defendant to Proceed Pro Se.” The PCRA court also received 

Appellant’s pro se memorandum of law asserting that the PCRA court and 

the Commonwealth were violating his constitutional right to selfrepresentation. 

The PCRA court, on November 5, 2012, convened a hearing to 

consider Appellant’s request to proceed pro se. After conducting a 

Pa.R.Crim.P. 121(A)(2) colloquy,7the court denied Appellant’s request and 

 

7 As we reiterated in Commonwealth v. Stossel, 17 A.3d 1286 (Pa. Super. 

2011):

[Rule 121(A)(2)(b) and (c), regarding the defendant’s 

understanding of nature of the charges and possible 

punishments,] are not relevant in the PCRA setting[. . . . 
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scheduled a hearing on the PCRA petition for later that same day. N.T., 

11/5/12, at 4-13. At the hearing on Appellant’s petition, Attorney Watkins 

averred Appellant believed he was entitled to “immediate . . . dismissal or 

reversal” of his conviction. Id. at 14. Attorney Watkins asked Appellant to 

testify to preserve a record, but Appellant refused. Id. at 15. The court 

denied Appellant’s request for pro se argument. Id. The Commonwealth 

reasserted its position that Appellant’s PCRA claim was waived or meritless. 

Id. at 16-17. The court granted the parties leave to file supplemental briefs. 

On November 20, 2012, the PCRA court received Appellant’s pro se

memorandum of law asserting a deprivation of his right to selfrepresentation at trial. That same day, Attorney Watkins filed a brief 

asserting the PCRA court erred in denying Appellant’s request to proceed pro 

se on collateral review. On February 13, 2013, the court denied relief, 

 

I]f a PCRA defendant indicates a desire to represent 

himself, it is incumbent upon the PCRA court to elicit 

information from the defendant that he understands the 

items outlined in Pa.R.Crim.P. 121(A)(2)(a), (d), (e), and 

(f). A court must explain to a defendant that he has the 

right to counsel, in accordance with (a), that he is bound 

by the rules as outlined in (d), and that he may lose rights, 

as indicated in (f). Subsection (e) must be appropriately 

tailored so that a defendant is informed that “there are 

possible defenses to these charges that counsel might be 

aware of, and if these defenses are not raised [in a PCRA 

petition], they may be lost permanently.” 

Id. at 1289-90 (citation omitted). 
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opining Appellant’s claim lacked merit. On March 13, 2013, both Attorney 

Watkin and Appellant filed notices of appeal. 

The PCRA court, on March 15, 2013, issued an order for the filing of a 

Pa.R.A.P. 1925(b) statement. The order was distributed to counsel for the 

Commonwealth and Attorney Watkins. Attorney Watkins filed a timely 

request for an extension of time, which the PCRA court granted in part, 

setting a new deadline of April 12, 2013. Order, 4/8/13. However, Attorney 

Watkins failed to comply with the April 12th deadline and on the following 

business day, April 15th, filed a Rule 1925(b) statement and a request for 

extension of time.8 The court, that same day, entered a Rule 1925(a) 

statement asserting all claims were waived under Rule 1925(b)(4)(vii) or 

meritless. 

On May 8 and 10, 2013, respectively, this Court and the trial court 

received Appellant’s requests to proceed pro se, withdraw counsel’s 

Pa.R.A.P. 1925(b) statement, and accept his pro se Rule 1925(b) statement 

nunc pro tunc. On May 30, 2013, this Court issued a per curiam order 

remanding the matter to the PCRA court for a Grazier9 hearing. Order, 

5/30/13. We further directed the following:

 

8 The record contains a letter from Appellant to Attorney Watkins demanding 

counsel only file a Rule 1925(b) statement after he (Appellant) reviewed a 

written draft. 

9 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). 
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[I]n the event the PCRA court permits Appellant to proceed 

pro se, the PCRA court shall enter the Appellant’s pro se 

“Statement Of Matters Complained Pursuant To Pa.R.A.P. 

1925(B),” which Appellant attached to his “Motion To 

Withdraw Counsel’s Defective Concise Statement,” on the 

PCRA court docket, and the PCRA court shall prepare a 

supplemental opinion, pursuant to Pa.R.A.P. 1925(a), in 

response to the pro se Rule 1925(b) statement.

Id. 

The PCRA court, on June 28, 2013, entered an order denying 

Appellant’s motion to remove counsel and proceed pro se, indicating that 

Appellant refused to cooperate or answer questions at a Grazier hearing. 

Order, 6/28/13. However, on November 13, 2013, the PCRA court entered 

an order appointing new appellate counsel, Brian Gaglione, Esq., due to the 

“resignation” of Attorney Watkins.10 Order, 11/13/13. The record contains 

a letter from Appellant to Attorney Gaglione asserting counsel was not 

authorized to act on his behalf. The PCRA court, on December 19, 2013, 

received Appellant’s pro se “Motion to Withdraw Counsel and Proceed Pro 

Se.” The final document contained in the certified record is Appellant’s letter 

notifying the PCRA court of his release from prison to a halfway house. 

As an epilogue, we note that on July 28, 2014, Attorney Gaglione filed 

in this Court a “Motion to Withdraw as Counsel.” On August 22, 2014, this 

Court again issued a per curiam order remanding for a Grazier hearing. 

The PCRA court, on September 26, 2014, informed this Court by letter that it 

 

10 The circumstances of Attorney Watkins’ “resignation” were not detailed by 

the PCRA court. 
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denied Attorney Gaglione’s motion to withdraw because Appellant failed to 

appear at the Grazier hearing it scheduled in response to our July 28th 

order. On January 14, 2015, this Court, by a per curiam order, again 

remanded to determine whether Attorney Gaglione abandoned Appellant by 

failing to file an appellate brief. On January 26, 2015, the PCRA court 

replied by letter. The court noted that on October 31, 2014, it granted 

Attorney Gaglione leave to withdraw, found Appellant’s request to proceed 

pro se on appeal was knowing, intelligent, and voluntary, and suggested no 

further PCRA court action was necessary. The PCRA court attached its 

October 31, 2014 order to its response. Appellant thereafter submitted a 

pro se brief to this Court, and this matter is now before this Panel. 

Preliminary, we consider whether the failure to file a timely Pa.R.A.P. 

1925(b) statement warrants waiver of all issues for appeal. Ordinarily, the 

late filing of a Rule 1925(b) statement results in waiver. See Pa.R.A.P. 

1925(b)(4)(vii); cf. Commonwealth v. Hill, 16 A.3d 484, 493-94, 495 n.14 

(Pa. 2011) (discussing bright-line rule established in former Rule 1925(b), 

but declining to decide whether remand procedures in current Rule 

1925(c)(3) regarding criminal cases applies in context of PCRA proceedings, 

which are civil in nature); Commonwealth v. Burton, 973 A.2d 428, 432 

(Pa. Super. 2009) (holding counsel’s filing of untimely Rule 1925(b) 

statement in direct appeal constitutes per se ineffectiveness under Rule 

1925(c)(3)). 
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As noted above, Attorney Watkins filed an untimely Pa.R.A.P. 1925(b) 

statement. Moreover, Appellant submitted his pro se Rule 1925(b) 

statement and request for nunc pro tunc relief only after counsel’s 

procedural default. Accordingly, the untimeliness of these statements could 

warrant waiver of all issues in this appeal. See Hill, 16 A.3d at 493-94, 495 

n.14. 

Nevertheless, this Court previously addressed the apparent 

untimeliness of Appellant’s request for nunc pro tunc relief, in our May 30, 

2013 order remanding for a Grazier hearing. Specifically, we instructed the 

PCRA court to docket and respond to Appellant’s pro se Rule 1925(b) 

statement, if it permitted Appellant to proceed pro se. Order, 5/30/13. 

Impliedly, our May 30, 2013 mandate required the PCRA court to accept 

Appellant’s pro se Pa.R.A.P. 1925(b) statement nunc pro tunc. Therefore, 

we decline to revisit our prior order or remand this case for the preparation 

of a supplemental Rule 1925(a) opinion. Rather, we regard as done that 

which should have been done and proceed to consider the issue raised in 

Appellant’s pro se brief. Cf. Burton, 873 A.2d at 433. 

Appellant presents three arguments asserting the trial court

improperly denied his motion to proceed pro se. Appellant’s Brief at 8-9. He 

claims “lack of legal knowledge bears no relevance on rights to selfrepresentation” and suggests the trial court’s error was prejudicial per se

because his “voice was effectively silenced.” Id. Appellant mentions the 
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PCRA court only in passing and does not seek remand for new PCRA 

proceedings. Id. at 9. Rather, he insists “the only relief . . . is a reversal of 

[his] conviction and a dismissal of all charges.” Id. No relief is due.

The principles governing our review of Appellant’s claim are well 

settled:

In reviewing an appeal from the denial of PCRA relief, 

“our standard of review is whether the findings of the 

PCRA court are supported by the record and free of legal 

error.” . . . In order to be eligible for PCRA relief, the 

petitioner must prove by a preponderance of the evidence 

that his conviction or sentence resulted from one or more 

of the enumerated circumstances found in Subsection 

9543(a)(2); one of those circumstances is the ineffective 

assistance of counsel. Further, the petitioner must show 

that the issues raised in his PCRA petition have not been 

previously litigated or waived. 

Commonwealth v. Faulk, 21 A.3d 1196, 1999 (Pa. Super. 2011) (citations 

omitted). With respect to waiver under the PCRA, 42 Pa.C.S. § 9544 states, 

“[A]n issue is waived if the petitioner could have raised it but failed to do so 

before trial, at trial, during unitary review, on appeal or in a prior state 

postconviction proceeding.” 42 Pa.C.S. § 9544(b). 

Instantly, Appellant’s arguments on appeal focus on the trial court’s 

denial of his requests to proceed pro se. Because this claim of trial court 

error could have been raised in Appellant’s direct appeal, it is waived for the 

purposes of the PCRA. See 42 Pa.C.S. § 9544(b); Faulk, 21 A.3d at 1200. 

Accordingly, Appellant’s argument warrants no appellate relief. See Faulk,

21 A.3d at 1200. 
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Our application of the Section 9544(b) provision is a harsh result 

under the circumstances of this case. We acknowledge that the 

constitutional right to self-representation is a “highly personal” one. See 

Commonwealth v. Starr, 664 A.2d 1326, 1334-35 (Pa. 1995). Moreover, 

we recognize that a court should not burden that right under the rubric of an 

allegedly unknowing or unintelligent waiver. See id. at 1336-37 (noting 

“criminal defendant’s technical legal knowledge and courtroom skill is not 

relevant to an assessment of his knowing and intelligent exercise of the right 

to defend himself” and “represents the kind of paternalistic concern for a 

criminal defendant expressly rejected” by United States Supreme Court). 

Conversely, we must acknowledge Appellant’s intransigence and 

repeated insistence that his appointed attorneys—from the post-sentencing 

proceeding to the present PCRA proceeding—not make any changes to his 

pleadings, claims, or arguments or file anything on his behalf. In this 

regard, Appellant’s own actions suggest it was impossible for either postsentence/direct appeal or PCRA counsel to develop Appellant’s argument into 

a cognizable claim of trial court error or an allegation of direct appeal 

counsel’s ineffectiveness. Consequently, we conclude Appellant intended to 

present the specific claim raised in this appeal, and we have addressed it.11 

 

11 Were we to address the merits of Appellant’s claims, however, we would 

note Appellant’s fundamental misunderstanding that his pro se status 

afforded him no special treatment under the law. See Commonwealth v. 

Blakeney, 108 A.3d 739, 767 (Pa. 2014) (“Although the courts may liberally 
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Thus, we affirm based upon the failure to develop an appellate argument 

warranting relief. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/28/2015

 

construe materials filed by a pro se litigant, pro se status confers no special 

benefit upon a litigant, and a court cannot be expected to become a litigant’s 

counsel or find more in a written pro se submission than is fairly conveyed in 

the pleading.”). Although Appellant apparently acknowledged that he would 

not receive special advantages or consideration if he proceeded pro se

before the trial court, N.T., 10/1/07, at 5, he subsequently argued with the 

PCRA court that he would not be bound by normal rules of procedure and 

evidence. N.T., 11/5/12, at 7. Lastly, we note Appellant is due no relief 

based on a sentence imposed under 18 Pa.C.S. § 7508(a)(3)(iii), because 

this Court has concluded that Alleyne, and its Pennsylvania progeny, do not 

apply retroactively to postconviction review. Commonwealth v. Riggle, __ 

A.3d ___, ___, 2015 WL 4094427 (Pa. Super. July 7, 2015).