J-S11012-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CHRISTOPHER ROBERT KELLER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1757 EDA 2022

Appeal from the Judgment of Sentence Entered June 7, 2022

In the Court of Common Pleas of Lehigh County Criminal Division at 

No(s): CP-39-CR-0000406-2022

BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.

MEMORANDUM BY OLSON, J.: FILED JUNE 30, 2023

Appellant, Christopher Robert Keller, appeals from the June 7, 2022 

judgment of sentence entered in the Court of Common Pleas of Lehigh County

that imposed a sentence of 2 years’ probation with 120 days to be served on 

house arrest with electronic monitoring after Appellant pleaded guilty to 

driving under the influence of alcohol or a controlled substance

(“DUI”) – second offense (a first-degree misdemeanor).1 As part of his 

sentence, the trial court ordered Appellant to pay a fine in the amount of 

$1,500.00 and the costs of prosecution. We affirm.

The trial court summarized the factual history as follows:

On September 18, 2021, at [] 3:25 p.m., [Officer] Alexie T. 

Santiago of the South Whitehall Police Department [(“Officer 

Santiago”)] was conducting traffic enforcement at the intersection 

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1 75 Pa.C.S.A. § 3802(d)(1)(i).
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of Hamilton Boulevard and Lincoln Avenue in Allentown, Lehigh 

County, Pennsylvania. [As part of the enforcement operations, 

Officer Santiago stopped Appellant’s motor vehicle] for an expired 

registration. Appellant was operating the vehicle [at the time of 

the stop].

After stopping his vehicle, Appellant exited and began 

approaching another parked vehicle with two children in the back

[seat of the vehicle]. Officer Santiago requested that Appellant 

walk towards him or return to his vehicle based on the fact that 

[Officer Santiago] did not know whether Appellant had [a]

relationship to the children in the other vehicle. Appellant 

continued approach[ing] the second vehicle, prompting Officer 

Santiago to attempt to physically restrain him. Several 

bystanders [assisted] Officer Santiago. Based on his experience 

and training, Officer Santiago believed Appellant was under the 

influence of narcotics. A subsequent blood draw conducted at

5:40 p.m. at Lehigh County Central Booking revealed the 

presence of [Tetrahydrocannabinol (“THC”)] in Appellant's

system.

Trial Court Opinion, 9/16/22, at 2-3.

Appellant was charged with the aforementioned crime, as well as 

DUI – impaired ability - second offense (a first-degree misdemeanor), 

resisting arrest or other law enforcement (a second-degree misdemeanor), 

disorderly conduct – hazardous or physically offensive condition (a 

third-degree misdemeanor), registration and certificate of title 

required – driving unregistered vehicle (a summary offense), and operation of 

vehicle without official certificate of inspection (a summary offense).2 On June 

7, 2022, Appellant pleaded guilty, pursuant to a negotiated plea agreement,

to one count of DUI – second offense (a first-degree misdemeanor) under 

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2 75 Pa.C.S.A. § 3802(d)(2), as well as 18 Pa.C.S.A. §§ 5104 and 5503(a)(4), 

and 75 Pa.C.S.A. §§ 1301(a) and 4703(a), respectively.
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Section 3802(d)(1)(i).3 That same day, the trial court sentenced Appellant to 

2 years’ probation, with 120 days to be served on house arrest with electronic 

monitoring, and ordered Appellant to pay a $1,500.00 fine and the costs of 

prosecution. This appeal followed.4

Appellant raises the following issues for our review:

1. Was [] Appellant prejudiced when the trial court accepted 

Appellant's guilty plea as being knowingly, intelligently, and 

voluntarily tendered?

2. Was trial counsel ineffective by failing to fully explain the 

consequences, both direct and collateral, of the proposed 

plea, prior to [Appellant’s entry of a guilty plea] before the 

trial court?

Appellant’s Brief at 2.5

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3

In accordance with the negotiated plea agreement, the Commonwealth 

withdrew the remaining criminal charges on June 7, 2022.

At the plea hearing, Appellant was represented by Paul Bender, Esquire 

(“Attorney Bender”).

4 On June 27, 2022, Charles E. Dutko, Jr., Esquire ("Attorney Dutko”) entered 

his appearance as counsel for Appellant.

Both Appellant and the trial court complied with Pennsylvania Rule of Appellate 

Procedure 1925.

5 We note that Appellant’s brief fails to conform to Pennsylvania Rule of 

Appellate Procedure 2119. Rule 2119 requires the argument section of an 

appellant’s brief to be “divided into as many parts as there are questions to 

be argued; and shall have at the head of each part - in distinctive type or in 

type distinctively displayed - the particular point treated therein, followed by 

such discussion and citation of authorities as are deemed pertinent.” Pa.R.A.P. 

2119(a).
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In his first issue, Appellant challenges the validity of his guilty plea as 

unknowingly, unintelligently, and involuntarily tendered on the ground that he 

was not aware, when he entered the plea, that his driver’s license would be 

suspended as a result of his conviction. Appellant’s Brief at 7-9. For the 

reasons discussed herein, we find Appellant failed to raise this issue with the 

trial court and cannot raise it for the first time on direct appeal. As such, we 

find Appellant waived this issue.

Appellant filed his notice of appeal on July 6, 2022. That same day, 

Appellant filed a request for the production of a transcript of his plea hearing 

and sentencing hearing, both of which occurred on June 7, 2022. Request for 

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Here, Appellant raises two issues for our review. The argument section of 

Appellant’s brief, however, does not contain two distinct sections setting forth 

the issue presented and the argument in support thereof, with citation to 

pertinent portions of the record or authorities. Instead, Appellant’s argument 

section contains a single argument, without a heading of the particular point 

treated therein, in support of his first issue. A review of the argument section 

does not reveal an argument in support of his second issue.

The failure to conform to the Pennsylvania Rules of Appellate Procedure with 

regard to the format and content of an appellate brief, including Rule 2119,

may result in waiver or dismissal of an appellant’s issues if the defects in the 

brief are substantial and prevent this Court from conducting a meaningful 

review. See Pa.R.A.P. 2101 (stating, “Briefs and reproduced records shall 

conform in all material respects with the requirements of these rules as nearly 

as the circumstances of the particular case will admit, otherwise they may be 

suppressed, and, if the defects are in the brief or reproduced record of the 

appellant and are substantial, the appeal or other matter may be quashed or 

dismissed”); see also Commonwealth v. Adams, 882 A.2d 496, 497-498 

(Pa. Super. 2005). Nonetheless, in the case sub judice, we decline to find 

waiver of Appellant’s issues or dismiss the appeal on the basis of Appellant’s 

failure to conform to the Pennsylvania Rules of Appellate Procedure with 

regard to the format and content of his brief.
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Transcript, 7/6/22, (requesting a transcript of the “entire proceeding”). On 

July 19, 2022, the trial court denied Appellant’s request for the production of 

a transcript. Trial Court Order, 7/19/22. In its order denying the request, the 

trial court informed the parties that

The transcript is unavailable due to a technical error which caused 

approximately [one] hour of the proceedings from the date of June 

7, 2022[,] to be recorded without [] audio from which a transcript 

could be produced. [Appellant’s case] was one of several which 

[were] handled during the time of the recording outage.

Id. at Footnote 1.

On August 1, 2022, the trial court directed Appellant, pursuant to 

Pennsylvania Rule of Appellate Procedure 1923, “to prepare a statement of 

the evidence in absence of a transcript and [] serve a copy of said statement 

on the Commonwealth within [20] days of the date of this Order.”6 Trial Court 

Order, 8/1/22. The trial court provided the Commonwealth with 10 days, 

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6 Rule 1923 states as follows:

If no report of the evidence or proceedings at a hearing or trial 

was made, or if a transcript is unavailable, the appellant may 

prepare a statement of the evidence or proceedings from the best 

available means, including his[, or her,] recollection. The 

statement shall be served on the appellee, who may serve 

objections or propose amendments thereto within ten days after 

service. Thereupon the statement and any objections or proposed 

amendments shall be submitted to the [trial] court for settlement 

and approval and as settled and approved shall be included by the 

clerk of the [trial] court in the record on appeal.

Pa.R.A.P. 1923.
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upon receipt of Appellant’s statement, to submit any objections or proposed 

amendments.

Appellant filed his proposed statement in absence of a transcript on 

August 22, 2022. The Commonwealth subsequently filed its response to 

Appellant’s statement on September 13, 2022.

7

 On September 14, 2022, the 

trial court, upon review of Appellant’s proposed statement in absence of a 

transcript and the Commonwealth’s response thereto, directed the clerk of 

courts for the Court of Common Pleas of Lehigh County to include the following 

statement of evidence and proceedings as part of the certified record:

Statement of Evidence and Proceedings

Upon review of Appellant's statement in absence of a transcript 

and the Commonwealth's response thereto, and upon 

consideration of the Commonwealth's objections, the following 

statement is hereby approved as a statement of evidence and 

proceedings in the within matter:

1. On June 7, 2022, [Appellant] entered a negotiated 

guilty plea to Count 1 DUI controlled substance – 2

nd

offense pursuant to 75 Pa.C.S.A. § 3802(d)(1)(i).

2. [Appellant] was represented by [Attorney Bender.]

3. On that date, [Appellant] was sentenced to 2 years of 

probation by the [trial court] with 120 days to be 

served on house arrest with electronic monitoring 

beginning June 7, 2022.

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7 The trial court granted the Commonwealth an extension in which to file its 

response. Trial Court Order, 9/14/22, (granting the Commonwealth an 

extension of time in which to file a response “by the close of business on 

September 24, 2022”).
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4. In accordance with the plea, all other counts were 

withdrawn by the Commonwealth.

5. At the time of the plea, [Appellant] submitted a 

written guilty plea colloquy and a post[-]sentence 

rights form, both of which he executed [and] both of 

which were made part of the official court file.

6. The [trial] court reviewed both forms with [Appellant]

in open court.

7. The Commonwealth presented its version of the 

underlying facts and [Appellant] conceded those facts 

were accurate in tendering his guilty plea.

8. [Appellant] answered the questions posed by the 

[trial] court in reviewing both forms truthfully and to 

the best of his ability.

9. There was [no] discussion on the record at the time 

of [Appellant’s] plea concerning any loss of 

[Appellant’s] driver's license which could or would 

result from his plea.

Trial Court Order, 9/14/22, at 2-3 (unpaginated) (extraneous capitalization 

and record citation omitted).

It is well-established that

Pennsylvania law makes clear that by entering a plea of guilty, a 

defendant waives his right to challenge on direct appeal all 

non[-]jurisdictional defects except the legality of the sentence and 

the validity of the plea. Commonwealth v. Pantalion, 957 A.2d 

1267, 1271 (Pa. Super. 2008). In order to preserve an issue 

related to a guilty plea, an appellant must either “object at the 

sentence colloquy or otherwise raise the issue at the sentencing 

hearing or through a post-sentence motion.” Commonwealth v. 

D'Collanfield, 805 A.2d 1244, 1246 (Pa. Super. 2002)[; see 

also] Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i); [] Pa.R.A.P. 302(a) 

([stating,] “Issues not raised in the [trial] court are waived and 

cannot be raised for the first time on appeal.”).
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Commonwealth v. Monjaras-Amaya, 163 A.3d 466, 468-469 (Pa. Super. 

2017) (original brackets omitted).

Based upon a review of the certified record currently before us, 

Appellant did not challenge the validity of his guilty plea during his guilty plea

colloquy, at the sentencing hearing, or in a post-sentence motion. See Trial 

Court Order (Statement of Evidence and Proceedings), 9/14/22; see also

Trial Court Docket; Appellant’s Brief at 7 (conceding that Appellant did not file 

a post-sentence motion); Appellant’s Statement in Absence of Transcript, 

8/22/22 (failing to set forth averments that Appellant raised a challenge to his 

guilty plea with the trial court); Commonwealth’s Response to Appellant’s 

Statement in Absence of Transcript, 9/13/22. Because Appellant did not raise 

a challenge to the validity of his guilty plea with the trial court, and he is not 

permitted to do so for the first time on appeal, we find Appellant waived his 

first issue.8 Monjaras-Amaya, 163 A.3d at 468-469; see also Pa.R.A.P. 

302(a).

Appellant’s second issue raises a claim that trial counsel provided 

ineffective assistance during his guilty plea hearing on the ground that trial 

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8

In his brief, Appellant invites this Court, without citation to authority, to find 

that his first issue is not waived for failure to raise the issue with the trial court

in a post-sentence motion. Appellant’s Brief at 7. Appellant asserts that his 

issue should not be waived because he “was not made aware of the driver’s 

license suspension, at issue, until he received a notice of suspension from 

[the] Pennsylvania Department of Transportation[, and the] notice was 

received after the time to file a post-sentence motion expired.” Id. at 7-8 

(extraneous capitalization omitted). We decline Appellant’s invitation. See

Pa.R.A.P. 302(a).
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counsel failed “to fully explain the consequences, both direct and collateral, of 

the proposed plea[.]” Appellant’s Brief at 2.

Our Supreme Court recently reiterated the well-established principle 

that claims of trial counsel’s ineffectiveness are to be raised in collateral 

proceedings and may not be raised on direct appeal. Commonwealth v. 

Bradley, 261 A.3d 381, 391 (Pa. 2021) (stating that, “claims of trial counsel’s 

ineffectiveness . . . are to be presented in a [petition filed pursuant to the Post 

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546]”); see also 

Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013) (stating, “claims 

of ineffective assistance of counsel are to be deferred to PCRA review”); 42 

Pa.C.S.A. § 9543(a)(2)(ii) (setting forth ineffective assistance of counsel as 

grounds for collateral relief if pleaded and proven by a preponderance of the 

evidence). Therefore, Appellant’s claim of ineffective assistance of trial 

counsel is premature, and we dismiss this claim without prejudice to raise it 

in a collateral proceeding.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/30/2023