J-A19041-19

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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

FRANKLIN LAMAR BUTLER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1265 EDA 2017

Appeal from the Judgment of Sentence September 27, 2016

In the Court of Common Pleas of Montgomery County Criminal Division 

at No(s): CP-46-CR-0009354-2014

BEFORE: PANELLA, P.J., KUNSELMAN, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.: FILED NOVEMBER 13, 2019

Appellant, Franklin Lamar Butler, appeals from the judgment of 

sentence entered in the Court of Common Pleas of Montgomery County after 

the court, sitting as finder of fact in Appellant’s stipulated bench trial, found 

him guilty of one count each of aggravated assault, recklessly endangering 

another person, discharge of a firearm into occupied structure, person not to 

possess a firearm, and receiving stolen property. Sentenced to an aggregate 

sentence of 15 to 30 years’ incarceration, Appellant denies that he voluntarily 

waived his rights to a jury trial and to present evidence in his own defense, 

and he claims a violation of his due process rights flowed from the court’s 

refusal to permit his testimony during the stipulated trial. We affirm.

The trial court aptly provides the relevant facts and procedural history, 

as follows:
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At approximately 8:33 p.m. on Monday, November 3, 2014, 

Norristown police officers responded to a dispatch of multiple 

shots fired at 624 West Lafayette Street in Norristown, 

Montgomery County. (Stipulated Bench Trial (“N.T.”), 6/28/16, 

Commonwealth Exhibit C-1 Affidavit of Probable Cause). The 

occupants of Apartment 1 at 624 West Lafayette Street met the 

officers and stated that it was Appellant who had fired multiple 

shots from the black semiautomatic handgun into the side window 

of the apartment, narrowly missing an eight-year-old child who 

had been watching television. 

Police recovered seven (7) shell casings from the breezeway near 

the rear entrance to the apartment. Id. Officers observed holes 

from rounds shot into the television, the living room wall and a 

bedroom door. Corporal Adam Schurr, Detective James Angelucci 

and Lieutenant Michael Crescitelli interviewed four of the 

witnesses at the Norristown Police Department between 9:45 p.m. 

and 11:46 p.m. that night. Id. Each witness identified Appellant 

as the shooter.

At approximately 10:23 p.m. on the same night, Norristown Police 

Officer Benjamin Lerman responded to a dispatch call reporting a 

male passed out in the patio area at 1201 Arch Street. 

Commonwealth Exhibit C-1, Affidavit of Probable Cause 

Continuation. . . . The caller, a male resident of the apartment 

building next to where Appellant had passed out, met Officer 

Lerman and Officer Fay on arrival. Id. at 6. The apartment 

resident said that Appellant did not live at that address. 

As the officers cautiously approached Appellant, they could smell 

the odor of alcohol coming from him. Id. at 6, 7, 10. The officers 

placed handcuffs on Appellant for their safety and with the 

intention of arresting Appellant for public intoxication. Id. at 7. 

[Appellant awoke and identified himself by his first name, and a 

safety “pat-down” search before placing him in the patrol car 

revealed an empty handgun tucked in his waistband. A 

subsequent investigation revealed the handgun had been stolen 

from a Lansdale gun dealership. 

Officer Lerman radioed Corporal Bishop to report that Appellant 

matched the description of the 624 West Lafayette suspect, which 

included a tattoo observed by a witness to the shooting. Officers 

transported Appellant to the police station where, ten hours later, 
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they read him Miranda warnings him and began asking questions 

about the shooting. Appellant provided a statement indicating he 

had shot his gun into an apartment window at 624 West Lafayette 

Street at the time in question.]

Counsel for Appellant, George M. Griffith, Jr., Esquire (“Attorney 

Griffith”) entered his appearance and filed an omnibus pre-trial 

motion on January 9, 2015. [On July 21, 2015, a jury trial was 

set to commence as scheduled when Appellant] requested a 

continuance to possibly engage private counsel, which the court 

granted by order docketed on July 21, 2015. The record reflects 

that Appellant requested additional continuances and eventually 

requested to proceed pro se.

A hearing, scheduled under Pa.R.Crim.P. 121 for November 5, 

2015, had to be continued because Appellant refused to 

participate in the required colloquy.fn N.T., Pa.R.Crim.P. 121 

Hearing, 11/5/15, at 56. During a subsequent hearing on March 

31, 2016, Appellant withdrew his request to proceed pro se and 

requested another continuance to obtain private counsel. N.T., 

Pa.R.Crim.P. 121 Hearing, 3/31/16. The [trial court] issued an 

order on April 1, 2016, scheduling Appellant’s jury trial for May 9, 

2016.

Fn. During the colloquy, the [trial court] and the ADA 

explained the elements of the crimes charged, the 

exposure on each charge, the Commonwealth’s burden 

and the right to counsel before Appellant refused to 

participate. N.T. Rule 121 Hearing, 11/5/15.

[After the court granted the Commonwealth a continuance for a 

change in prosecutor,] the court scheduled Appellant’s jury trial 

for June 16, 2016. With a jury panel in place and the 

Commonwealth ready to proceed on June 16, 2016, Appellant 

again requested a continuance, which [the trial court] reluctantly 

granted. Appellant claimed that witnesses Faith Norris and Almyra 

Taylor had made “incriminating” statements to Appellant in 

recorded telephone conversations while he was incarcerated, and 

Appellant wanted to be able to play those conversations for the 

jury.fn
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Fn. Appellant had raised the same witness credibility issue 

in his pro se motion to suppress and the undersigned 

explained to Appellant on the record that the proper 

avenue to raise the issue was through cross-examination 

of those witnesses.

The court scheduled Appellant’s jury trial to begin on June 27, 

2016, by order docketed on June 20, 2016. In the meantime, 

both Attorney Griffith and the undersigned worked with Inmate 

Services at the Montgomery County Correctional Facility to 

provide two CDs of Appellant’s recorded telephone conversations 

with Faith Norris and Almyra Taylor from November 2014 to June 

2016. In addition, the court ordered transportation to the 

courthouse for Appellant to personally listen to the recorded 

phone calls. Order docketed on June 20, 2016; N.T. Jury Trial 

(Waiver), 6/27/16, at 10, 17. Although the [trial court] declined 

to give Appellant another continuance to listen to the CDs, the 

court explained to Appellant that arrangements would be made 

for Appellant to listen to them during the trial period when the 

trial was not occurring.

On Monday, June 27, 2016, with a jury panel as well as 

Commonwealth witness Faith Norris again present, but prior to 

jury selection, Appellant made the decision to proceed by way of 

a stipulated bench trial. Id. at 23-24. Appellant acknowledged 

that Attorney Griffith had explained the procedures as it relates to 

a stipulated bench trial. Id. Additionally, the [trial court] 

conducted several portions of the colloquy to determine whether 

Appellant was making the decision to waive a jury trial knowingly, 

intelligently, and voluntarily, including an explanation of the 

differences between a stipulated bench trial and a jury trial. Id. 

at 25-36.

When the court concluded that the Commonwealth was going to 

use Appellant’s statement and Attorney Griffith’s omnibus pre-trial 

motion had not yet been heard, the [trial court] granted 

Appellant’s request for a suppression hearing to be held the 

following day. Id. at 37-48. [The trial court] also agreed to allow 

Appellant to present evidence regarding the telephone 

conversations with Ms. Norris and Ms. Taylor that Appellant 
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argued were exculpatory and potentially keep the record open if 

the court determined that Appellant had raised a meritorious 

claim. Id. at 50. 

The court conducted a suppression hearing on June 28, 2016. 

Appellant sought to suppress the gun recovered from his 

waistband following his arrest as well as his subsequent 

statements. Appellant asserted that he had no memory of the 

events leading up to his arrest or giving a statement. Id. at 44, 

46-48; N.T. Suppression Hearing, 6/28/16, at 54-63. The 

Commonwealth offered testimony by Officer Lerman . . ., Corporal 

Shurr . . ., and Detective Chad Bruckner of the Lansdale Police 

Department[, who had investigated the burglary of the Lansdale 

gun dealership. The trial court heard Appellant’s testimony, but 

it concluded he offered neither evidence nor compelling legal 

argument to support his claim that he had unknowingly and 

involuntarily waived his Miranda rights before providing his 

statements to police.

Therefore, the trial court] placed its Findings of Fact and 

Conclusions of Law pursuant to Rule 581(I) of the Pennsylvania 

Rules of Criminal Procedure on the record at the time of the 

Hearing. Id. at 68-89. Therein, the court specifically found and 

determined, inter alia, as follows: (1) Officer Lerman responded 

to a call for a person passed out on another’s property; 2) upon 

arrival Officer Lerman encountered Appellant, smelling of alcohol, 

passed out on someone else’s patio; 3) Officer Lerman placed 

Appellant under arrest for public intoxication at approximately 

10:30 p.m.; 4) prior to putting Appellant in the patrol car, Officer 

Lerman conducted a search incident to arrest and safety patdown; 5) while doing so, the officer recovered a handgun from 

Appellant’s waistband; 6) Officer Lerman seized the firearm 

pursuant to a legal arrest and search incident to that arrest; 7) 

approximately ten (10) hours after [Appellant’s] arrest, Corporal 

Schurr observed an interview of Appellant conducted by Detective 

Angelucci; 8) Corporal Schurr has training and experience in 

interviewing hundreds of people under the influence of alcohol or 

drugs; 9) Corporal Schurr observed Appellant’s gait, speech and 

demeanor and concluded that Appellant was not under the 

influence of alcohol and appeared to be coherent; 10) Detective 

Bruckner also testified that based on his training and experience, 

he determined Appellant was not under the influence, answered 

all questions logically, was aware of his surroundings and why he 

was there and provided valuable information on an open burglary 
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case; 11) both detectives testified that Appellant was alert, 

attentive, answered questions logically and showed no signs of 

impairment; and accordingly, 12) the court denied Appellant’s 

motion to suppress the firearm and the two statements to police. 

At the conclusion of the suppression hearing, the [trial court] 

continued with Appellant’s colloquy before proceeding to a 

stipulated bench trial. N.T., Stipulated Bench Trial, 6/28/16, at 

90-104. [On the same date,] Appellant also signed a waiver of 

jury trial form in which he acknowledged the rights he was waiving 

by proceeding to a stipulated bench trial. Appellant confirmed 

that he had read the form and that he understood its contents. 

N.T. Stipulated Bench Trial at 100. [The trial court] answered all 

of Appellant’s questions and, before accepting Appellant’s waiver, 

asked both counsel if they had any questions. Both counsel 

responded that they did not have any questions. Id.

The Commonwealth introduced its evidence for the court’s 

consideration, including the Suppression Hearing testimony, the 

Affidavit of Probable Cause, a copy of Appellant’s federal 

convictions, photographs of the residence depicting the bullet 

holes, Appellant’s statement to the Norristown Police Department 

and his statement to the Lansdale Police Department, and the 

statements from the four witnesses. Id. at 104-106. 

[The trial court] then asked Attorney Griffith as well as Appellant 

himself whether either of them had any additional evidence they 

wanted to introduce and both replied that they did not have 

additional evidence. Id. at 107. Attorney Griffith specifically 

inquired of Appellant whether he wanted to expand on anything 

he had previously raised at the suppression hearing and Appellant 

responded “No.” Id. Both the Commonwealth and the defense 

rested on the record. Id.

The court took a recess to read the additional evidence and 

caselaw presented before pronouncing its verdict. Id. at 109. 

Upon [the trial court’s] return to the bench to render a verdict, 

Attorney Griffith informed the court that even though Appellant 

had told the court when asked whether he had anything else to 

introduce and Appellant had replied “no,” that subsequently 

Appellant told counsel he wanted to testify. Id. at 110. 

[The trial court] reminded counsel and Appellant that Appellant 

had replied “no” when asked if he had anything else before the 
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court closed the record. [The trial court] also noted that it had 

incorporated into the record and considered Appellant’s testimony 

from the Suppression Hearing about the telephone calls in 

rendering its decision. Id. [The trial court] entered the verdict as 

noted above and deferred sentencing until such time as a 

presentence investigation report and a PPI evaluation could be 

completed. 

[At sentencing, the court imposed a standard range sentence for 

each conviction. N.T., 9/27/16, at 32-34. After the denial of postsentence motions seeking only the modification of his sentence, 

this timely appeal followed.]

Trial Court Opinion, 6/29/18, at 2-12.

Appellant presents the following questions for our consideration:

1. Did Mr. Butler voluntarily, knowledgeably, or intelligently waive 

his jury trial?

2. Did Mr. Butler voluntarily, knowingly, or intelligently waive his 

right to present evidence in his own defense, including his own 

testimony?

3. Was Mr. Butler deprived [of] his right to Due Process under the 

Pennsylvania and United States Constitutions where he was 

informed by the trial court that he would be able to present 

evidence—including to testify on his own behalf—and then the 

trial court refused to reopen the record so that he could do so?

Appellant’s brief, at vii.

In Appellant’s first two issues, he argues that the trial court’s colloquy 

failed to explain adequately the consequences of waiving one’s right to a jury 

in favor of proceeding with a stipulated bench trial. The Commonwealth 

responds that Appellant waived this issue because he failed to make a timely 

objection before the trial court. We agree.
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“Issues not raised in the lower court are waived and cannot be raised 

for the first time on appeal.” Pa.R.A.P. 302(a); In Interest of A.W., 187 

A.3d 247, 253 (Pa. Super. 2018). Our review of the notes of testimony reveals 

that Appellant, who was represented by counsel at all relevant times, failed to 

object to the voluntariness of either his jury trial waiver or his stipulation to 

the Commonwealth’s evidence, nor did he otherwise raise these issues in his

post-sentence motions. Pa.R.A.P. 302; see Commonwealth v. Gumpert, 

512 A.2d 699, 703 (Pa.Super. 1986) (when there is no objection at trial to a 

judge's failure to give a jury waiver colloquy, the issue is waived insofar as 

the trial court is denied the opportunity to correct the deficiency). Accordingly, 

Appellant’s first two issues are waived.

In Appellant’s remaining issue, he argues that the court deprived him of 

his rights to due process and fair proceedings when the court informed him 

he would be able to present evidence during the stipulated bench trial only to 

thereafter deny him that opportunity. We disagree.

In this regard, Appellant cites to the record where defense counsel 

indicated that Appellant understood the nature of a stipulated bench trial and 

“would like to make a statement before the Court.” N.T. at 6/27/16, at 24. 

Later during the same pre-trial proceeding, Appellant addressed the court on 

whether, during the stipulated bench trial, he could introduce evidence of what 

he believed to be exculpatory phone calls, which led to the following exchange:

Trial Court: During the trial. I will permit you to do that, 

even though it’s stipulated. I’ll hear from you on that. . . . And if 

it’s—if it’s meritorious, I may keep the record open for that limited 
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purpose. That was my thought. Meaning that I will not close the 

record on the stipulated bench trial if I think you make a 

meritorious claim, one that has merit.

Appellant: Oh, okay. Thank you, Your Honor.

Trial Court: Anything else? So my point is, Mr. Butler –

because I’m going to let this jury go today based upon the fact 

you’re telling me this is going to be a stipulated bench trial.

Appellant: Yes, Your Honor. I agreed to that.

Trial Court: You’re agreeing on the record right now, right?

Appellant: Yes, Your Honor.

Trial Court: All right. I just want to make sure. There would 

be a stipulated bench trial whether I grant the suppression or deny 

it. It still would have the right to proceed.

So I want to make sure, before I let this jury go, that you are 

clear, truthful, you’re accurate in terms of your representation to 

me about we were going to a stipulated bench trial because we 

got about 75 percent through the procedural and the explanation 

part of it. 

Appellant: ...Like, maybe it’s [the alleged 

miscommunication between defense counsel and Appellant] due 

to my fault for not expressing certain things or due to the 

relationship we had in the past. But when it comes to stipulated 

bench, like, when we was going to trial, I had people who was 

going to testify on my behalf from both scene [sic]. From the 

scene at Ms. Taylor’s house and from the scene of the cops finding 

me passed out asleep.

So, with that not being on record anymore, on file, because I’m 

taking the stipulated bench trial, I’m just asking you what other 

things is there that I can arouse to possibly help me. Or do I need 

still to try to get the witnesses that were going to testify for me 

to come to the suppression? Because that’s the part I don’t really 

understand.
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Trial Court: No. A suppression hearing is just limited on 

whether the police had authority to do certain things. Such as 

search, take statements, things of that nature.

Appellant: All right. And I’m –

Trial Court: If you have something else, we can talk about it 

after the suppression, but before I close the record on the 

stipulated bench as to what, if anything, else you want me to hear.

. . . .

So, counsel, we will have a suppression hearing tomorrow. So we 

will reconvene at 9:15. We’ll do the suppression hearing. And 

then we’ll continue on with the stipulated bench trial.

When the Commonwealth’s case is over, I’ll hear from you about 

what else you think I need to consider. All right?

Appellant: Okay. Thank you, your Honor.

N.T. at 50-51, 52-53, 54.

Appellant’s stipulated bench trial commenced the following day. As the 

court said it would do, it gave Appellant the opportunity to raise evidence for 

the court’s consideration at the conclusion of the Commonwealth’s case. 

Appellant, however, declined the court’s offer:

Trial Court: Anything else from the Commonwealth?

Prosecutor: No, Your Honor.

Trial Court: Anything else from the defense?

Counsel: Judge, no evidence. I don’t know if Frank 

[Appellant] wants to expand on anything he’s previously indicated 

to you at the suppression hearing. Frank?

Appellant: No, Your Honor.
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Trial Court: Okay. All right. Is counsel resting on the 

record, then?

Counsel: I am.

N.T., 6/28/16, at 107.

The court thereafter closed the record, indicated it would consider 

statements from the suppression hearing, and adjourned to deliberate. Only 

when all returned after recess to hear the court’s verdict did counsel inform 

the court that Appellant had wished to make a statement to the court prior to 

deliberations. 

The court deemed the request belated, although it reminded counsel 

and Appellant that it had specifically incorporated Appellant’s statements from 

the suppression hearing, over the Commonwealth’s objections, “to insure that 

his testimony became part of the trial record.” The court then announced its 

verdict. N.T. at 111.

Appellant now contends that the court failed to provide him with a 

promised opportunity to discuss evidence for the court’s consideration prior to 

deliberation.1 The record belies this claim, as it plainly shows how Appellant 

and counsel declined the court’s offer to hear any evidentiary concerns they 

may have wished to raise after the Commonwealth closed its case-in-chief. 

Appellant’s due process claim, therefore, merits no relief.

Judgment of sentence affirmed.

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1 This Court notes the trial court was more than tolerant of Appellant’s 

repeated changes of mind and various requests and demands.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/13/2019