J-S67032-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CHRISTOPHER PATRICK MCGOWAN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 896 MDA 2019

Appeal from the Judgment of Sentence Entered November 7, 2018

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

No(s): CP-28-CR-0001505-2016

BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED JANUARY 31, 2020

Appellant Christopher McGowan files this pro se appeal from the 

judgment of sentence entered by the Court of Common Pleas of Franklin 

County after Appellant was convicted of conspiracy to commit theft by 

deception. After careful review, we affirm.

This case has a convoluted procedural history which is relevant to review 

in detail to determine whether this appeal was timely filed. On September 28, 

2018, a jury convicted Appellant of conspiracy to commit theft by deception. 

On November 7, 2018, the trial court sentenced Appellant in absentia to 30 to 

60 months’ imprisonment and issued a bench warrant for Appellant’s arrest. 

Appellant was apprehended and taken into custody on November 10, 2018.

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* Former Justice specially assigned to the Superior Court.
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In a letter dated November 11, 2018, Appellant, while in custody, sent 

the Pennsylvania Supreme Court a “Motion to Appeal Judgement [sic] and 

Conviction.” As Appellant was represented by counsel, the Supreme Court 

sent the pro se filing to Appellant’s counsel of record, Anthony E. Miley, Esq.,

pursuant to Pa.R.A.P 3304 (“Hybrid Representation”) and Commonwealth v. 

Jette, 23 A.3d 1032, 1042 (Pa. 2011).

On November 30, 2018, Attorney Miley sought to withdraw his 

representation. Although Appellant was previously apprehended on 

November 10, 2018, the return of warrant was not filed in the trial court until 

December 3, 2019. On that date, the trial court issued an order committing 

Appellant to the Department of Corrections to begin serving his sentence in 

this case and giving Appellant credit for time served from the date of his 

apprehension. On the same date, the trial court allowed Attorney Miley to 

withdraw and appointed the Public Defenders’ Office. 

On December 6, 2018, the Public Defenders’ Office filed a petition for 

the appointment of conflict counsel as the trial court had previously rescinded 

the appointment of the Public Defender in this case on June 16, 2017, citing 

irreconcilable differences. The same day, the trial court issued an order 

appointing Eric Westbrod, Esq. as conflict counsel. Eventually, Appellant filed 

a request to proceed pro se and the trial court scheduled a Grazier hearing.

Before the Grazier hearing was held, Appellant filed in this Court a 

“Motion to Appeal Judgment, Conviction, and Correctly Record Jury Verdict.” 

Although this Court received this document on December 10, 2018, Appellant 
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mailed this pro se filing from prison on December 3, 2018, which was 

submitted within the thirty-day appeal period after Appellant’s sentencing. 

As such, this Court forwarded the motion to the trial court as a notice of 

appeal pursuant to Pa.R.A.P. 905, which provides:

If a notice of appeal is mistakenly filed in an appellate court, or is 

otherwise filed in an incorrect office within the unified judicial 

system, the clerk shall immediately stamp it with the date of 

receipt and transmit it to the clerk of the court which entered the 

order appealed from, and upon payment of an additional filing fee 

the notice of appeal shall be deemed filed in the trial court on the 

date originally filed.

Pa.R.A.P. 905(a)(4). However, the trial court did not docket this pro se filing 

as a notice of appeal. 

On December 6, 2018, Appellant subsequently mailed the trial court a

pro se “Motion to Correct Illegal Sentence.” On December 6, 2018, this Court 

received Appellant’s pro se “Motion to Appeal Judgment, Conviction, and 

Correctly Record Jury Verdict.” This Court again forwarded this pro se

document to the trial court as a notice of appeal pursuant to Pa.R.A.P. 905. 

The trial court did not docket this filing as a notice of appeal.

Appellant continued to file multiple pro se documents in the trial court. 

The trial court held an initial Grazier hearing after which it entered an order 

on January 17, 2019, indicating that Appellant had agreed to proceed pro se. 

Nevertheless, as Appellant continued to file documents raising numerous 

claims on his own and again asking to represent himself, a second Grazier 

hearing was scheduled.
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On February 11, 2019, the trial court amended its sentencing order to 

correct a clerical error in which it had incorrectly listed the charge of 

Conspiracy to Commit Theft by Deception as Count 1, when it should have 

been listed as Count 2.1

On March 14, 2019, the trial court held a second Grazier hearing at 

which it granted counsel’s petition to withdraw and allowed Appellant to 

proceed pro se. At this hearing, the trial court decided to construe Appellant’s 

November 11, 2018 “Motion to Appeal Judgement [sic] and Conviction” that 

was filed in the Supreme Court as a timely post-sentence motion. In addition, 

the trial court deemed all of Appellant’s subsequent pro se filings as 

supplements to that motion. On March 19, 2019, the trial court entered an 

order purportedly denying Appellant’s post-sentence motion. 

On March 22, 2019, the trial court received Appellant’s pro se filing 

which he titled “Formal Grievance and Complaint for Civil Rights Violations.”2 

On March 27, 2019, the trial court filed an order indicating that it would take 

no action on this pro se submission as it was uncertain how to interpret the 

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1 Section 5505 of the Judicial Code, which relates to the modification of orders, 

provides that “a court ... may modify ... any order within 30 days after its 

entry ... if no appeal from such order has been taken.” 42 Pa.C.S.A. § 5505. 

Generally, after an appeal is taken, the trial court “may no longer proceed 

further in the matter.” Pa.R.A.P. 1701(a). Nevertheless, our courts have 

recognized that the limits of jurisdiction set forth in Section 5505 do not 

impinge on the trial court’s inherent power to correct any patent or obvious 

mistakes in its orders. Commonwealth v. Holmes, 593 Pa. 601, 615, 933 

A.2d 57, 65 (2007).

2 This Court cannot ascertain the mailing date of this motion as there was no 

accompanying postmarked envelope in the record. 
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filing. The trial court directed Appellant to comply with the Pennsylvania Rules 

of Appellate Procedure if Appellant intended to file an appeal from its March 

19, 2019 order.

On April 30, 2019, the trial court filed an order granting counsel’s 

petition to withdraw and allowing Appellant to proceed pro se; the trial court 

noted that the docket did not reflect that it had permitted counsel to withdraw 

at the March 14, 2019 Grazier hearing.

On May 22, 2019, Appellant filed the instant notice of appeal.3 Appellant 

complied with the trial court’s direction to file a Concise Statement of Errors 

Complained of on Appeal pursuant to Pa.R.A.P. 1925(b). Thereafter, Appellant 

filed an application in this Court seeking habeas corpus relief on July 18, 2019. 

This document, which Appellant characterized as a habeas petition, simply 

reiterates all the claims Appellant raises in his 1925(b) statement.

Appellant lists the following issues, verbatim, in his 1925(b) statement:

1) US Constitution rights Violation, Pennsylvania Constitutional 

rights Violation and Court rules Violations.

2) 4th Amendment of the Constitution and Pennsylvania Court 

rule 543 Violation – Prosecution without Probable Cause and 

Failure to Hold a Prelim[i]nary Hearing for New charge prior to 

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3 Appellant also filed a pro se notice of appeal in the Supreme Court, 

attempting to appeal from the same judgment of sentence as the instant 

appeal. The Supreme Court transferred the notice to this Court pursuant to 

Pa.R.A.P. 751(b); this matter was given an appellate docket number of 987 

MDA 2019. The trial court was also directed to docket the notice of appeal, 

which was returned to this court and docketed at 1389 MDA 2019. However, 

both of these appeals were subsequently dismissed as duplicative of the 

instant appeal.
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Trial. This is a Violation of my right to Due process of law (5th

Amendment).

3) 5

th Amendment of the US Constitution and Pennsylvania 

Constitution 42 Const. § 8931 Constitutional Rights Violation –

Prosecution of a felony Charge by information only, failure to 

obtain a Required Grand Jury Indictment. This is a Violation Of 

Due Process of Law.

4) 6

th Amendment of the US Constitution and Pennsylvania 

Constitution Artic[le] 1 Section 9 Violation – Inadequate notice 

of amendment of information to prepare a defense for a New 

Charge of Conspiracy

5) 6

th Amendment of the US Constitution and Pennsylvania Court 

rule 600 Violation – Right to Speedy Trial within 365 days.

6) Lack of Presence on said Date of alleged Crime, On or about 

may 1st 2015.

7) Violation of 5th Amendment due process of Law.

8) Illegal Amendment of Conspiracy Charge.

9) On September 11, 2018 in the 39th district of Franklin County 

trial was held for Count one “Theft by Deception” and Count 

Two “Conspiracy.” The Jury Voted Me “Not Guilty” on Count 

One and Guilty on Count Two “Conspiracy[.]” The Illegally 

Added charge 17 hours before trial and without holding a 

required Pre[limin]ary for a new charge with new elements of 

a crime.

10) My Attorney Anthony Miley Objected to the Amendment and 

asked for a continuance but the Judge Angela Krom Denied 

Continuance and allowed the illegally amended charge. (My 

attorney did state he was not prepared for a Conspiracy 

Defense).

11) 6

th Amendment of the US Constitution Violation and 

Pennsylvania Constitution Art[icle] 1 Section 9 Violation. 

States: I have a right to proper notice of any accusation, the 

Commonwealth violated this right by waiting 21⁄2 years to 

charge me with a[n] additional charge and only gave a 17 hour 

notice of amendment.

12) 5

th Amendment of the US Constitution and Pennsylvania 

Constitution and Pennsylva[n]ia Court rule 564 violation. 
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States: The Court may allow an Information to be amended 

when there is a defect in form, the description of offense, the 

description of any person or property, or the date charged, 

provided the information as amended does not charge an 

additional or different offense. The Commonwealth violated 

Pennsylvania Court rule 564 by allowing this amendment.

13) Lack Of Presence on said date of Crime – Petitioner was not 

present date and time alleged crime took place[.] On or about 

May 1st 2015 I was not in Franklin County or Pennsylvania at 

all and provided an Alibi of my whereabouts that day[.] I was 

working as a Truck drive in Wyoming and provided Federal log 

books of service and rec[e]ipts into Evidence.

1925(b) Statement, 6/17/19, at 1-2.

Before we reach the merits of Appellant’s claims, we must determine 

whether this appeal was timely filed. A notice of appeal must be filed within 

thirty days of the entry of the order being appealed. Pa.R.A.P. 903(a). If the 

defendant files a timely post-sentence motion, the notice of appeal shall be 

filed within thirty days of the entry of the order deciding the motion. See 

Pa.R.Crim.P. 720(A)(2)(a). This Court may not extend the time for filing a 

notice of appeal. Pa.R.A.P. 105(b).

As noted above, Appellant filed numerous motions while represented by 

counsel. As hybrid representation is not permitted in the Commonwealth, our 

courts “will not accept a pro se motion while an appellant is represented by 

counsel; indeed, pro se motions have no legal effect and, therefore, are legal 

nullities.” Commonwealth v. Williams, 151 A.3d 621, 623 (Pa.Super. 2016)

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

(finding pro se post-sentence motion filed while the appellant was represented 

by counsel was a legal nullity with no legal effect)). 
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Generally, when a counseled defendant files a pro se document, courts 

do not act on the filing, but instead note it on the docket and forward it to 

counsel pursuant to Pa.R.Crim.P. 576(A)(4). Further, “a pro se document has 

no tolling effect.” Williams, 151 A.3d at 623 (quoting Pa.R.Crim.P. 576 cmt. 

which states “[t]he requirement that the clerk time stamp and make docket 

entries of the filings in these cases only serves to provide a record of the filing, 

and does not trigger any deadline nor require any response”).

However, when a counseled defendant files a pro se notice of appeal, 

the appeal is not a legal nullity and has legal effect. Commonwealth v. 

Cooper, 611 Pa. 437, 27 A.3d 994, 1007 (2011). While a defendant does not 

have a right to hybrid representation, “there is right of appeal pursuant to 

Article 5, § 9 of the Pennsylvania Constitution.” Williams, 151 A.3d at 624 

(citing Commonwealth v. Ellis, 534 Pa. 176, 626 A.2d 1137 (1993)).

“Because a notice of appeal protects a constitutional right, it is distinguishable 

from other filings that require counsel to provide legal knowledge and strategy 

in creating a motion, petition, or brief.” Williams, 151 A.3d at 624.

In this case, the trial court erred in deeming Appellant’s numerous pro 

se filings, submitted while Appellant was represented by counsel, to be timelyfiled post-sentence motions that had legal effect and tolled the appeal period. 

Appellant was not entitled to hybrid representation and was not permitted to 

file post-sentence motions while represented by counsel. 

However, the trial court also erred in failing to recognize that Appellant 

was entitled to file a notice of appeal while represented by counsel. Therefore, 
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the trial court should have deemed Appellant’s December 3, 2018 “Motion to 

Appeal Judgement [sic] Conviction, and Correctly Record Jury Verdict”4 and 

his December 6, 2018 “Motion to Appeal Judgment, Conviction, and Correctly 

Record Jury Verdict” as two timely filed notices of appeal, as they were both 

filed in this Court within the thirty-day appeal period after Appellant’s 

sentencing on November 7, 2018.5 

When this Court forwarded both of these documents to the trial court as 

notices of appeal pursuant to Pa.R.A.P. 905, the trial court was required to

deem the notices of appeal as filed in the trial court on the dates they were 

originally filed in this Court. Pa.R.A.P. 905(a)(4). The trial court’s failure to 

docket these filings as notices of appeal constitutes a breakdown in the 

operation of the courts. See Williams, 151 A.3d at 624 (finding breakdown 

in court processes occurred when pro se appeal filed by counseled defendant 

was not properly docketed and sent to this Court). Accordingly, we deem this 

appeal to be timely filed.

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4 Appellant sent this filing to this Court from prison on December 3, 2018. The 

“prisoner mailbox rule” states that “in the interest of fairness, a pro se

prisoner's appeal shall be deemed to be filed on the date that he delivers the 

appeal to prison authorities and/or places his notice of appeal in the 

institutional mailbox.” Commonwealth v. Chambers, 35 A.3d 34, 39 

(Pa.Super. 2011) (quoting Smith v. Board of Probation and Parole, 546 

Pa. 115, 122, 683 A.2d 278, 281 (1996)).

5 While Appellant filed a “Motion to Appeal Judgement [sic] and Conviction” 

in the Pennsylvania Supreme Court on November 11, 2018, the Supreme 

Court likely did not ask the trial court to treat this pro se filing as a notice of 

appeal, but forwarded it to counsel as it was filed within three days of 

Appellant’s November 7, 2018 sentencing, which was within the ten-day time 

period for filing a post-sentence motion.
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Nevertheless, we must dismiss this appeal as Appellant’s brief does not 

comply with our Rules of Appellate Procedure. Appellant’s “brief” consists of 

two paragraphs in which he indicates that he has raised several issues in his 

Concise Statement and contends the Commonwealth has failed to dispute his 

arguments.

As such, Appellant’s pro se brief contains substantial defects. For 

example, Appellant’s brief fails to comply with nearly every requirement in 

Pa.R.A.P. 2111(a)(1)-(12) as it does not contain any factual background, 

procedural history, statement of the questions involved, citation to authority, 

legal argument or analysis. Our rules of appellate procedure allow this Court 

to quash or dismiss an appeal if the appellate brief contains substantial 

defects. Pa.R.A.P. 2101.

While we acknowledge Appellant is proceeding pro se and we construe 

his brief liberally, he is not entitled to special deference as a pro se litigant as 

this Court has held that “[a]ny layperson choosing to represent [himself] in a 

legal proceeding must, to some reasonable extent, assume the risk that [his] 

lack of expertise and legal training will prove [his] undoing.” Branch Banking 

& Tr. v. Gesiorski, 904 A.2d 939, 942 (Pa.Super. 2006). Moreover, 

[w]hen briefing the various issues that have been 

preserved, it is an appellant's duty to present arguments that are 

sufficiently developed for our review. The brief must support the 

claims with pertinent discussion, with references to the record and 

with citations to legal authorities. We will not act as counsel and 

will not develop arguments on behalf of an appellant. Moreover, 

when defects in a brief impede our ability to conduct meaningful 
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appellate review, we may dismiss the appeal entirely or find 

certain issues to be waived.

In re R.D., 44 A.3d 657, 674 (Pa.Super. 2012) (citations omitted).

As noted above, Appellant’s brief does not state the issues he wishes to 

raise on appeal and does not contain any legal discussion. As a result, 

Appellant’s failure to properly raise and develop an argument precludes any 

meaningful judicial review of this appeal. Thus, we find all of Appellant’s 

issues to be waived and dismiss this appeal.

Moreover, we decline to review Appellant’s application for habeas corpus 

relief filed directly in this Court after the instant appeal was docketed. We 

observe the claims in Appellant’s application do not sound in habeas corpus

but merely reiterate the arguments which Appellant attempted to raise on 

appeal in his 1925(b) Statement that had been addressed and dismissed by 

the trial court. This Court has held that:

[t]raditionally, a writ of habeas corpus is a civil remedy that tests 

the legality of the detention. The writ can never be used as a 

substitute for an appeal to test the correctness of the 

administration of the law in connection with a commitment, but 

where such an order is beyond the power or jurisdiction of the 

tribunal entering it, the one thereby detained may be released on 

habeas corpus.

Chadwick v. Caulfield, 834 A.2d 562, 566 (Pa.Super. 2003) (citations 

omitted).

Even assuming arguendo that Appellant’s claims in his application could 

be construed to properly sound in habeas relief, we do not have jurisdiction 

over such a petition as “matters sounding in habeas corpus lie in the 

jurisdiction and venue of the court of record from which the order of detention 
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came.” Brown v. Pennsylvania Dep't of Corr., 622 Pa. 742, 744, 81 A.3d 

814, 815 (2013) (citing 42 Pa.C.S.A. § 6502).

Judgment of sentence affirmed. Application for Writ of Habeas Corpus

dismissed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 01/31/2020