J-S95025-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MICHAEL BLACKWELL

Appellant No. 283 EDA 2016

Appeal from the Judgment of Sentence December 22, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): MC-51-CR-0036731-2014

BEFORE: STABILE, J., MOULTON, J., and MUSMANNO, J.

JUDGMENT ORDER BY MOULTON, J.: FILED MARCH 24, 2017

Michael Blackwell appeals, pro se, from the December 22, 2015 

judgment of sentence entered in the Philadelphia County Court of Common 

Pleas following his conviction for indirect criminal contempt for violating a 

Protection from Abuse (“PFA”) order.1 Because the certified record shows 

that trial counsel has not withdrawn from representation and Blackwell has 

submitted pro se filings, we remand for further proceedings.

On December 22, 2015, following a bench trial, the trial court found 

Blackwell guilty of the above charge and sentenced him to 6 months’ 

probation. On January 19, 2016, Blackwell filed a timely pro se notice of 

appeal. On April 11, 2016, Blackwell filed a pro se Pennsylvania Rule of 

____________________________________________

1 23 Pa.C.S. § 6114.
J-S95025-16

- 2 -

Appellate Procedure 1925(b) statement, and the trial court filed a Rule 

1925(a) opinion on June 9, 2016.2

Blackwell raises nine issues on appeal. However, because we must 

remand this matter for a Grazier3 hearing to determine whether Blackwell 

wishes to proceed pro se or with the assistance of counsel, we cannot 

address these issues now. The record shows that Blackwell has serially filed 

pro se motions, notices of appeal, and documents with both the trial court 

and this Court. Further, the certified record does not show that Attorney 

Smoker, whose appearance on Blackwell’s behalf was entered by 

appointment on October 27, 2015, has been permitted to withdraw from 

representation.4 Attorney Smoker thus remains Blackwell’s counsel of 

____________________________________________

2 When Blackwell initially filed his pro se notice of appeal, he listed two 

criminal docket numbers. Each docket contained a charge of indirect 

criminal contempt for violating the subject PFA order for incidents that 

occurred in 2014 and 2015. On February 9, 2016—the same day the trial 

court issued an order upon Blackwell’s counsel, Phillip Smoker, Esquire, to 

file a Rule 1925(b) statement—Blackwell file a pro se praecipe to discontinue 

his appeal, which this Court granted. A docket entry in his 2014 case, also 

on February 9, 2016, states “Attorney Relieved” with an “Unknown Filer.” 

Blackwell later sought clarification of this Court’s order, stating that he only 

meant to discontinue his appeal in the 2015 case, as the trial court had 

dismissed that case for a lack of evidence. This Court then reinstated 

Blackwell’s appeal on March 10, 2016. On March 23, 2016, the trial court 

issued another Rule 1925(b) order, this time ordering Blackwell himself to 

file a Rule 1925(b) statement. The record contains neither an order 

relieving Attorney Smoker nor a petition to withdraw as counsel.

3 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

4 The discontinuance and reinstatement of Blackwell’s appeal, as 

discussed in note 2, supra, does not discharge Attorney Smoker as counsel 

(Footnote Continued Next Page)
J-S95025-16

- 3 -

record in this appeal. See Pa.R.Crim.P. 120(A)(4) (“An attorney who has 

been retained or appointed by the court shall continue such representation 

through direct appeal or until granted leave to withdraw by the court”).

Despite Attorney Smoker’s status as counsel of record, the trial court 

responded to Blackwell’s pro se Rule 1925(b) statement. We conclude that 

the trial court erred in issuing a Rule 1925(a) opinion based on the pro se

Rule 1925(b) statement, as it allowed hybrid representation, which is 

generally prohibited. See Commonwealth v. Jette, 23 A.3d 1032, 1038-

40 (reiterating “that there is no constitutional right to hybrid representation 

either at trial or on appeal” and reaffirming that our Supreme Court’s “longstanding” ban on hybrid representation is intended to prevent confusion and 

overburdening of appellate courts).

Accordingly, we remand this case for the trial court to conduct a 

Grazier hearing within 30 days of the date of this order to determine 

whether Blackwell wishes to waive his right to counsel, and, if so, whether 

such waiver is knowing, intelligent, and voluntary. If Blackwell chooses to 

proceed pro se, and the trial court finds he knowingly, intelligently, and 

voluntarily waived his right to counsel, the trial court shall inform this Court 

of the waiver and we will render a decision based upon the current filings. 

(Footnote Continued) _______________________

of record. This Court reinstated Blackwell’s appeal and the trial court, upon 

learning of this correction of a clerical error, should have instructed Attorney 

Smoker to file a Rule 1925(b) statement on Blackwell’s behalf.
J-S95025-16

- 4 -

However, should Blackwell choose to be represented by counsel on appeal,5

be it Attorney Smoker or substituted counsel, then the trial court shall issue 

an order directing counsel to file a Rule 1925 statement and the trial court 

shall issue a new Rule 1925(a) opinion within 30 days of receipt of counsel’s 

Rule 1925 statement.

Case remanded with instructions. Panel jurisdiction retained.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/24/2017

____________________________________________

5 Should Blackwell choose to proceed with counsel, this Court will not 

entertain his pro se filings. See Pa.R.A.P. 3304; Jette, 23 A.3d at 1038-40.