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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

MEMORANDUM BY MOULTON, J.: FILED JULY 26, 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 bench trial conviction for indirect criminal contempt for 

violation of a protection from abuse (“PFA”) order or agreement.1 In a prior 

judgment order, we remanded this matter for the trial court to conduct a 

Grazier2 hearing because Blackwell had engaged in hybrid representation by 

filing, among other things, a pro se Pennsylvania Rule of Appellate Procedure 

1925(b) statement while represented by Philip Andrew Smoker, Esquire. 

See Commonwealth v. Blackwell, 283 EDA 2016, unpublished 

____________________________________________

1 23 Pa.C.S. § 6114.

2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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memorandum (Pa.Super. filed Mar. 24, 2017). On remand, the trial court 

held a hearing, concluded that Blackwell knowingly, intelligently, and 

voluntarily waived his right to counsel, discharged Attorney Smoker, and 

allowed Blackwell to proceed pro se. See Short Certificate, 4/11/17. The 

matter is now ripe for review. We affirm.

The trial court set forth the following factual and procedural history:

On September 10, 2014, a [PFA] Order was entered 

against [Blackwell] prohibiting him from having any 

contact, direct or indirect, with Charmaine Prater. (See PFA 

1409V7806.) [Blackwell] had been in a relationship with 

Prater for approximately three and a half years. (N.T., 

12/22/15, p. 11, 6.) The Order provides, in pertinent part, 

that [Blackwell] “is prohibited from having any contact 

with plaintiff...either directly or indirectly, at any 

location...” and became effective immediately “until 

otherwise modified or terminated by this Court after notice 

and hearing.” (See PFA 1409V7806, P3, 9.)

On October 12, [2014], [Blackwell] was served with the 

PFA by Philadelphia Police Officer, Nannette Cheatum. 

(N.T. p.47, 4-5.) Prater testified that after being served 

with the PFA and despite being prohibited from doing so, 

[Blackwell] began contacting her by way of telephone. 

(N.T., 12/22/15, p. 13, 11-19.) Without being provoked to 

do so, [Blackwell] sent Prater a plethora of unsolicited text 

messages and called her cell phone numerous times. (N.T. 

p. 21, 23-25; p. 22, 1-5.) Prater testified to and presented 

proof that [Blackwell] sent her the following text 

messages, despite the PFA Order prohibiting him from 

doing so . . . . In addition to receiving unsolicited text 

messages, Prater testified that she also received uninvited 

telephone calls from the same phone number that 

[Blackwell] used to send the text messages from. (N.T. p. 

20, 18-23---p. 21, 23-25 -p. 22, 1-5.)

Prater, whom has known [Blackwell] since Junior High 

School, credibly testified that she was extremely familiar 

with Appellant's telephone number and voice as she had 
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prior communications with Appellant over the course of 

their three and a half year relationship. (N.T. p. 10, 1-2, 8-

9; p. 14, 19-25; p. 15, 1-8.)

. . .

On October 27, 2014, [Blackwell] was subsequently 

arrested and charged with two counts of Contempt for 

Violation of an Order or Agreement, 23 Pa. C.S. § 6114 

and two counts of Harassment-Subject Other to Physical 

Contact, 18 Pa. C.S. § 2709.

On December 22, 2015, [Blackwell] waived formal 

arraignment and ple[]d not guilty to the charges brought 

against him. [Blackwell] proceeded to a one-day bench 

trial, at the conclusion of which [Blackwell] was found the 

guilty of one count of Contempt for Violation of an Order or 

Agreement, 23 Pa. C.S. § 6114. The trial court 

immediately imposed a sentence of six months probation. 

[Blackwell] did not file a post-sentence motion.

Opinion, 6/9/16, at 3-5, 1-2 (“1925(a) Op.”). On January 19, 2016, 

Blackwell timely filed a notice of appeal. 

Blackwell raises3seven issues4on appeal:

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3

Preliminarily, we must discuss Blackwell’s failure to comply with the 

Pennsylvania Rules of Appellate Procedure. Blackwell’s brief fails to include 

a statement of jurisdiction, a statement of the scope and standard of review, 

a statement of the questions involved, or a summary of the argument. See

Pa.R.A.P. 2114, 2116, 2117. The argument section of Blackwell’s brief 

contains very little citation to relevant authority or matters in the record, 

fails to show where in the record Blackwell preserved these issues for 

appeal, and does not specify the appropriate relief for each issue. See

Pa.R.A.P. 2119(b), (c), (e). “Although Pennsylvania courts endeavor to be 

fair to pro se litigants in light of the challenges they face conforming to 

practices with which attorneys are far more familiar, [we] nonetheless long 

have recognized that we must demand that pro se litigants comply 

substantially with our rules of procedure.” Commonwealth v. Spuck, 86 

A.3d 870, 874 (Pa.Super. 2014) (internal citation omitted). Further, “‘[t]his 

Court will not act as counsel’ for an appellant who has not substantially 

(Footnote Continued Next Page)
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1. The [trial] court erred and abused its discretion as 

well as denied [Blackwell] due process because the 

[trial] court did not compel the [Commonwealth] to 

meet its burden of proof showing that the [trial] 

court had subject matter jurisdiction.

2. Did the [trial] court err[] and abuse[] its discretion 

as well as den[y Blackwell] due process, by allowing 

insufficient ev[]idence to establish probable cause for 

the arrest of indirect criminal contempt and 

har[]as[s]ment on two separate occas[]ions, when 

thirteen (13) of the eighteen (18) of the alleged text 

messages submitted for probable cause, failed to 

indicate times and dates.

3. Did the [trial] court err[] and abuse[] its discretion 

as well as den[y Blackwell] due process, when [the 

trial] judge . . . who hears both PFA cases (common 

pleas court) and violations of PFA cases (municipal 

court) presided over and/or had knowledge and 

information of both [Blackwell’s] PFA and criminal 

contempt, in v[io]lation of any and all governing 

conflict of interest statutes and laws.

(Footnote Continued) _______________________

complied with our rules.” Id. (quoting Bombar v. W. Am. Ins. Co., 932 

A.2d 78, 93 (Pa.Super. 2007)).

Based on Blackwell’s failure to adhere to the Rules of Appellate 

Procedure, this Court has the right to quash or dismiss Blackwell’s appeal

pursuant to Rule 2101. See Pa.R.A.P. 2101 (noting that parties appearing 

before this Court “shall conform in all material respects with the 

requirements of these rules as nearly as the circumstances of the particular 

case will admit . . . and, if the defects are in the brief or reproduced record 

of the appellant and are substantial,” we may quash or dismiss the appeal). 

However, “in the interest of justice we address the arguments that can 

reasonably be discerned from this defective brief.” Commonwealth v. 

Lyons, 833 A.2d 245, 252 (Pa.Super. 2003).

4 Because Blackwell’s brief does not contain a statement of questions 

involved, we have aggregated these issues from the headings in the 

argument section of his brief.
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4. Did the [trial] court err[] and abuse[] its discretion 

as well as deny [Blackwell] due process, by 

arbitrarily and capriciously waiv[ing] [Blackwell’s] 

right to a formal arraignment, when [Blackwell] “did 

not” knowingly and voluntarily waive this right, as at 

no time, did the court colloquy [Blackwell], either 

orally or in writing.

5. The [trial] court erred and abused its discretion as 

well as denied [Blackwell] due process, by failing to 

find the plaintiff in contempt for violating the mutual 

PFA as admitted to by the plaintiff and established by 

the record.

6. Throughout these proceedings, all documents from 

the court pertaining to MC-51-CR-0036731-2014, 

were captioned, “Municipal Court”, conversely and 

[w]ithout [Blackwell’s] knowledge or information, the 

court arbitrarily change[d] the [j]urisdiction of the 

court by sitting common pleas court officials [o]n the 

[b]ench of a [m]unicipal [c]ourt [p]roceedings.

7. As the right to effective [a]ssistance of [c]ounsel is 

well established [a]nd constitutionally protected, did 

the court [commit an] error of law by its failure [t]o 

assure the [a]ppellant competent legal 

counsel/attorney/lawyer [t]hroughout proceedings.

Blackwell’s Br. at 2-6, 8-9.

In his first and sixth issues, Blackwell argues that the trial court lacked 

subject matter jurisdiction to hear this case. Blackwell asserts that he 

challenged the subject matter jurisdiction of the trial court by motion and, 

without explaining how the trial court lacks subject matter jurisdiction, 

asserts that the Commonwealth failed to prove that the trial court had 

subject matter jurisdiction.

“Subject matter jurisdiction relates to the competency of a court to 

hear and decide the type of controversy presented[,] . . . and is a matter of 
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substantive law.” Commonwealth v. Bethea, 828 A.2d 1066, 1074 (Pa. 

2003). Such a “question is purely one of law, [for which] our standard of 

review is de novo, and our scope of review is plenary.” Id. at 1071.

Blackwell’s argument is without merit. It is well settled that a judge of 

the Court of Common Pleas has jurisdiction over the adjudication of indirect 

criminal contempt, regardless of whether a defendant’s case has a municipal 

court docket number. See Commonwealth v. Burton, 624 A.2d 138, 143 

(Pa.Super. 1993) (“the Protection From Abuse Act provides specifically that 

its protection and violations thereof are to be, unless the court is 

unavailable, under the auspices of the Court of Common Pleas”) (emphasis 

in original).

Next, Blackwell argues that the evidence was insufficient to establish 

probable cause for his arrest. Blackwell asserts that police lacked probable 

cause to arrest him because 13 of the 18 text messages that the victim 

showed to police “did not have a date or time attached[.]” Blackwell’s Br. at 

4. Although Blackwell’s claim could be read as a challenge to the sufficiency 

of the evidence to convict him of indirect criminal contempt,5in the 

argument section of his brief Blackwell argues that the police lacked 

probable cause to arrest him. Because the proper vehicle “to test the 

____________________________________________

5 To the extent that Blackwell argues that evidence was insufficient to 

convict, we conclude the claim lacks merit for the reasons stated in the 

thorough and well-reasoned opinion of the Honorable Michael Fanning, which 

we adopt and incorporate herein. See 1925(a) Op. at 6-9.
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sufficiency of the Commonwealth’s evidence pre-trial . . . . is a petition for a 

writ of habeas corpus,” Commonwealth v. Marti, 779 A.2d 1177, 1179 n.1 

(Pa.Super. 2001), and Blackwell raises this claim for the first time on 

appeal,6 we conclude that Blackwell has waived this argument. See

Pa.R.A.P. 302; see also Commonwealth ex rel. Kress v. Rundle, 228 

A.2d 772 (Pa. 1967) (finding waiver of claims raised by habeas corpus 

petitioner for first time on appeal).

Next, Blackwell argues that the trial court erred and abused its 

discretion because the Honorable Holly F. Ford hears petitions for PFA orders 

and indirect criminal contempt cases for violations of PFA orders. Blackwell 

baldly asserts that he was denied due process because Judge Ford “had 

information and knowledge of both [Blackwell’s] PFA case and [c]riminal 

[c]ases resulting from the PFA, and as such should have recused herself 

from [Blackwell’s] cases[.]” Blackwell’s Br. at 4.

Blackwell has waived this claim as well. The issue of recusal is waived 

where the “appellant presents no evidence that he sought a recusal at any 

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6 On October 1, 2015, Blackwell filed a pro se motion that included a 

motion to dismiss for failure to state a claim upon which relief can be 

granted. Even if we were to construe Blackwell’s motion as a petition for a 

writ of habeas corpus, this motion did not preserve Blackwell’s issue for 

appeal because he was counseled at that time. As such, Blackwell engaged 

in hybrid representation, and his pro se motion was a legal nullity. See 

Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa.Super. 2007) 

(concluding that defendant’s pro se post-sentence motion, filed when 

defendant was represented by counsel, was “a nullity, having no legal 

effect”).
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time before the . . . verdict.” Commonwealth v. Johnson, 719 A.2d 778, 

790 (Pa.Super. 1998). Further, even if Blackwell had filed an appropriate 

motion to recuse, the record shows that Judge Fanning presided over 

Blackwell’s bench trial, not Judge Ford. Although Judge Ford presided over a 

motion in limine hearing, Blackwell fails to explain how this prejudiced him.

Next, Blackwell argues that the trial court abused its discretion and 

denied him due process by denying him a formal arraignment. Blackwell 

claims he never waived a formal arraignment. Blackwell’s Br. at 5.

We conclude that Blackwell’s claim is waived for failure to develop his 

argument under Rule 2119(a). See Pa.R.A.P. 2119(a); Commonwealth v. 

Hardy, 918 A.2d 766, 771 (Pa.Super. 2007) (“When briefing the various 

issues that have been preserved, it is an appellant’s duty to present 

arguments that are sufficiently developed for our review. . . . [W]hen 

defects in a brief impede our ability to conduct meaningful appellate review, 

we may . . . find certain issues to be waived”). Blackwell fails to cite any 

case law regarding the waiver of formal arraignment and provides no basis 

for relief or any indication as to what type of relief would be available. “This 

Court will not act as counsel and will not develop arguments on behalf of an 

appellant,” Coulter v. Ramsden, 94 A.3d 1080, 1088 (Pa.Super. 2014), 

and we make no exception here.

Next, Blackwell argues that the trial court erred and abused its 

discretion in failing to find the victim in contempt for violating a PFA order 

that directed her not to contact Blackwell. Blackwell asserts that the trial 
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court should have recognized that the victim “enticed [Blackwell] into a 

violation and then use[d] the police and the legal system to punish [him].” 

Blackwell’s Br. at 7. Additionally, Blackwell asserts that the victim’s actions 

show that he did not act with wrongful intent. We disagree.

While the trial court, out of an abundance of caution, appointed the 

victim Fifth Amendment counsel, the victim was neither charged with nor 

tried for indirect criminal contempt. “The district attorney,” not the trial 

court, “is afforded the power to prosecute on behalf of the Commonwealth, 

and to decide whether and when to prosecute.” Hearn v. Myers, 699 A.2d 

1265, 1267 (Pa.Super. 1997). Further, to the extent Blackwell argues he 

lacked the required intent because of the victim’s conduct, this claim lacks 

merit. See 1925(a) Op. at 7; Commonwealth v. Brumbaugh, 932 A.2d 

108, 111 (Pa.Super. 2007) (“[W]rongful intent can be imputed by virtue of 

the substantial certainty that [one’s actions will be] . . . in violation of the 

PFA [o]rder.”).

Finally, Blackwell argues that he received ineffective assistance from 

the multiple trial counsel who represented him in this matter. However, we 

cannot reach this argument, as it is well settled that claims of ineffective 

assistance of counsel, except in rare circumstances,7 must be raised in a 

Post Conviction Relief Act (“PCRA”) petition. See Commonwealth v. 

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7 Blackwell does not argue that these circumstances apply.
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Harris, 114 A.3d 1, 5 (Pa.Super. 2015) (“Our Supreme Court determined 

[in Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013),] that, absent 

certain circumstances, ‘claims of ineffective assistance of counsel are to be 

deferred to PCRA review; . . . such claims should not be reviewed upon 

direct appeal.’”) (quoting Holmes, 79 A.3d at 576). Therefore, we do not 

reach the merits of Blackwell’s ineffectiveness claims.8

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/26/2017

____________________________________________

8 Our decision does not preclude Blackwell from raising these claims in 

a timely PCRA petition.