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Commonwealth v. Tchirkow

Superior Court of Pennsylvania

April 21, 2017

COMMONWEALTH OF PENNSYLVANIA
v.
GREGG ANDREW TCHIRKOW, Appellant COMMONWEALTH OF PENNSYLVANIA
v.
GREGG ANDREW TCHIRKOW, Appellant COMMONWEALTH OF PENNSYLVANIA
v.
GREGG ANDRES TCHIRKOW, Appellant

         Appeal from the Order Entered September 28, 2016 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0003939-2014

         Appeal from the Order Entered October 18, 2016 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0003939-2014

         Appeal from the PCRA Order October 24, 2016 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0003939-2014

          BEFORE: PANELLA, STABILE, JJ., and STEVENS, P.J.E [*]

          OPINION

          STEVENS, P.J.E.

         This case involves three separate appeals[1] from matters arising following Gregg Andrew Tchirkow's (hereinafter "Appellant") pro se filing of his first petition pursuant to the Post Conviction Relief Act[2] in the Court of Common Pleas of Westmoreland County. For the reasons that follow, we find that the Orders entered on September 28, 2016, and October 18, 2016, were not final orders and that Appellant's failure to make any coherent legal arguments in his appellate brief and to meet other requirements prevents us from providing meaningful review of his appeal from the PCRA Order entered on October 24, 2016.[3] Accordingly, we quash these pro se appeals.

         The background of this case is a procedural quagmire due chiefly to Appellant's myriad pro se filings. We confine our recitation of the procedural history and facts to only the pertinent background we have gleaned upon our review of the certified record as follows: In a Criminal Information filed on October 17, 2014, Appellant and his codefendant brother, Stephen Tchirkow, were charged with several violations of The Controlled Substance, Drug, Device and Cosmetic Act following a shooting.[4] On March 2, 2015, Appellant entered a guilty plea to Manufacture, Delivery, or Possession with Intent to Deliver a Controlled Substance (marijuana) and to Possession of Drug Paraphernalia. The trial court ordered a presentence investigation and indicated sentencing would be held within ninety (90) days. N.T. Guilty Plea, 3/2/15, at 6.

         On June 8, 2015, Appellant was sentenced to an aggregate prison term of eighteen (18) months to thirty-six (36) months with credit for time served along with two years' probation to be served consecutively. Appellant filed his "Motion to Reconsider Sentence at Count 3, " and upon consideration thereof, the trial court granted the motion. In its Order filed on June 19, 2015, the court amended its June 8, 2015, Order to reflect that Appellant's length of probation at Count 3 shall be one (1) year of state probation; the court further directed that all other terms of its June 8, 2015, Order remained the same. Appellant did not file a direct appeal, and trial counsel's motion to withdraw his appearance was granted on August 27, 2015.

         On February 22, 2016, Appellant filed a PCRA petition pro se. Counsel was appointed and filed an Amended Petition for Post Conviction Relief on April 25, 2016, wherein he averred Appellant's constitutional rights had been violated and that plea counsel had been ineffective. The PCRA court conducted an evidentiary hearing on May 26, 2016. Prior to the commencement thereof, Appellant demanded that Attorney Timothy Andrews be dismissed as his counsel. The PCRA court granted Attorney Andrews leave to withdraw as counsel and permitted Appellant to proceed with the evidentiary hearing pro se. N.T. PCRA Hearing, 5/26/16, at 10-12. At the conclusion of the hearing, the PCRA court indicated Appellant would have thirty days from the date upon which he received the transcript of the proceeding to file a brief, and the Commonwealth was directed to respond within thirty days thereafter.

         On June 23, 2016, Appellant filed pro se his "Petition for post conviction relief appeal for immediate dismissal of charges and release from custody" which the PCRA court treated as an amended PCRA petition. On July 11, 2016, the Commonwealth filed its response thereto. On July 27, 2016, Appellant filed an "Amendment to the Amended Post-Conviction Relief Appeal Petition, " wherein he requested a second evidentiary hearing. On July 29, 2016, the Commonwealth filed its response to Appellant's Amendment. On August 25, 2016, Appellant filed a pro se Motion for New Counsel, and the PCRA court held a hearing thereon on September 9, 2016. At that time, the PCRA court granted Appellant's motion for appointment of counsel and re-appointed Attorney Andrews. Pursuant to Appellant's subsequent demand, Attorney Andrews filed a motion to withdraw.

         On September 26, 2016, the PCRA court held a hearing on Attorney Andrews' motion to withdraw. At that time, Attorney Andrews explained Appellant had left a voicemail message at his office indicating he did not want counsel to act on his behalf in the PCRA proceedings and sent a letter directing counsel to withdraw immediately. Appellant expressed the same sentiment in an email sent on his behalf by his sister to Attorney Andrews; consequently, Attorney Andrews filed his motion to withdraw. N.T. PCRA Hearing, 9/26/16, at 2-3. The PCRA court proceeded to conduct a colloquy pursuant to Pa.R.Crim.P. 121 at which time it inquired as to whether Appellant understood the ramifications of proceeding pro se. Id. at 9-10.[5]At various times throughout the proceeding, Appellant requested new counsel. [6] The PCRA court stated that it had appointed him counsel as it was required to do. Id. at 6-8, 13. [7] The PCRA court further advised Appellant that he had the choice to proceed with current court-appointed counsel or pro se. Id. at 4-8, 11. Appellant stated that he wanted to proceed pro se. Id. at 12. After further discussion with Appellant and Attorney Andrews, the PCRA court found the two had no irreconcilable differences and determined there were no substantial reasons to appoint new counsel. Id. at 14.

         On September 28, 2016, the PCRA court filed its Notice of Intention to Dismiss for Post-Conviction Collateral Relief. Therein, the court indicated it had reviewed the record along with Appellant's PCRA and Amended PCRA petitions and ultimately concluded there were no genuine issues concerning any material fact and that, consequently, Appellant was not entitled to relief under the PCRA. See Notice of Intention to Dismiss for Post-Conviction Collateral Relief, filed 9/28/16, at 3-10. On October 12, 2016, Appellant filed his "Response to Notice of intention to dismiss Motion for Post-conviction Collateral Relief." In its Order entered on October 24, 2016, the PCRA court denied Appellant's PCRA petition, and Appellant filed a timely notice of appeal on November 14, 2016.

         Throughout the course of the proceeding, Appellant filed numerous pro se motions. Among them was his "Petition for Transcripts and Court Records" filed on September 23, 2016.[8] In its Order entered on September 28, 2016, the trial court granted in part and denied in part Appellant's petition and in doing so stated the following:

This [c]ourt enclosed a copy of the G[uilty]P[lea] Hearing on 3/31/16 for [Appellant]. This [c]ourt enclosed a copy of the Sentencing Hearing on 7/10/15 for [Appellant]. This [c]ourt also enclosed the Motion to Withdraw hearing transcript held on 9/26/16. Regarding the Prelim[inary] Hearing transcript held 9/5/14, this [c]ourt informed [Appellant], that the charges were Dismissed and the transcript was never requested by Defense or C[ommon] W[ealth], the digital recording of said hearing has been purged per policy of the Westmoreland Co. CAO.

         Appellant filed a notice of appeal from the PCRA court's September 28, 2016, Order with this Court on September 29, 2016. In doing so, Appellant indicated his appeal lay from the PCRA court's order entered on September 9, 2016, disposing of his petition for the appointment of counsel; however, a review of the docket entries reveals that in its Order entered on September 9, 2016, the PCRA court granted Appellant's motion for appointment of counsel and provided that "Attorney Tim Andrews will be re-appointed as counsel on this case. Counsel has 60 days to submit an amended brief in support of [Appellant's] PCRA Petition."

         In addition, on October 11, 2016, Appellant filed a "Petition for Records." Therein he requested "all crime scene photos associated with incident #RI14-148" and indicated his belief that he is "entitled to any and all evidence in any case that has been brought before any court on my behalf." Appellant posited the fact that trial counsel had not requested these items "further proves his incompetence." The PCRA court ordered the Commonwealth to file a response to Appellant's petition, and the Commonwealth did so on October 13, 2016. In its Order entered on October 18, 2016, the PCRA court denied Appellant's Petition for Records. Appellant filed a notice of appeal on October 18, 2016, wherein he indicated he was appealing from the trial court's order entered "on the 27th day of September, 2016, refusing to provide [Appellant] transcripts of his preliminary hearing held on the 5th of September 2014."

         Initially, prior to addressing any issues Appellant presents on appeal, we must determine whether the PCRA court's September 28, 2016, and October 18, 2016, Orders are final orders. As this Court recently has held:

"The appealability of an order directly implicates the jurisdiction of the court asked to review the order." Estate of Considine v. Wachovia Bank, 966 A.2d 1148, 1151 (Pa.Super. 2009). "[T]his Court has the power to inquire at any time, sua sponte, whether an order is appealable." Id.; Stanton v. Lackawanna Energy, Ltd., 915 A.2d 668, 673 (Pa.Super. 2007). Pennsylvania law makes clear:
[A]n appeal may be taken from: (1) a final order or an order certified as a final order (Pa.R.A.P. 341);
(2) an interlocutory order as of right (Pa.R.A.P. 311);
(3) an interlocutory order by permission (Pa.R.A.P. 312, 1311, 42 Pa.C.S.A. ยง 702(b)); or (4) a collateral ...

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