J-A27026-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CYNTHIA LYNN POLLICK : : Appellant : No. 1452 MDA 2022 Appeal from the Judgment of Sentence Entered July 21, 2022 In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP-35-CR-0001295-2021

BEFORE: LAZARUS, J., NICHOLS, J., and STEVENS, P.J.E.* MEMORANDUM BY NICHOLS, J.: FILED: MAY 16, 2024 Appellant Cynthia Lynn Pollick appeals from the judgment of sentence imposed following her convictions for disorderly conduct and public drunkenness.1 Appellant raises multiple claims challenging the weight and sufficiency of the evidence, the trial court’s evidentiary rulings, the jury instructions, and the discretionary aspects of her sentence. Following our review of the record, the parties’ briefs, and the trial court’s analysis, we affirm based on the trial court’s opinion.

We adopt the trial court’s summary of the facts and procedural history underlying this matter. See Trial Ct. Op., 5/19/23, at 2-6 (unpaginated).

Briefly, Appellant was arrested and charged with the aforementioned offenses ____________________________________________

* Former Justice specially assigned to the Superior Court.

J-A27026-23

in 2022 following an incident where she “repeatedly attempted to enter a marked Pennsylvania State Police vehicle by banging on the door and pulling on the handle, while Appellant was visibly intoxicated and the vehicle was on a public road.” Id. at 2-3 (unpaginated) (citation omitted). Ultimately, Appellant was convicted of both offenses. On July 21, 2022, Appellant was sentenced to six months’ probation and ordered to pay $300 in restitution.

Appellant filed timely post-sentence motions, which the trial court ultimately denied.2 ____________________________________________

Because Appellant was represented by counsel, the trial court should have treated those motions as a legal nullity and allowed Appellant’s counsel to file post-sentence motions nunc pro tunc. Instead, the trial court directed briefing on the pro se post-sentence motions. Appellant then filed a pro se notice of appeal on August 8, 2022, which was docketed at No. 1113 MDA 2022. On August 26, 2022, counsel filed an application in this Court requesting a stay of the appeal pending resolution of the post-sentence motions. On September 8, 2022, via a per curiam order, this Court declared the pro se post-sentence motions a nullity, denied counsel’s request for a stay, and directed counsel to either file a docketing statement or withdraw the appeal and seek leave to file counseled post-sentence motions nunc pro tunc.

Counsel subsequently filed a motion with the trial court seeking to file post- sentence motions nunc pro tunc on September 14, 2022, which the trial court granted. However, the trial court did not have jurisdiction to do so, as the appeal at No. 1113 MDA 2022 was still pending. See Pa.R.A.P. 1701(a).

On September 23, 2022, via a per curiam order, this Court granted counsel’s request to withdraw the appeal at No. 1113 MDA 2022 and discontinued it.

The order further declared the trial court’s September 16, 2022 order granting leave to file post-sentence motions nunc pro tunc a nullity and directed counsel to seek leave to file post-sentence motions nunc pro tunc after the (Footnote Continued Next Page)

-2- J-A27026-23

Appellant filed a timely notice of appeal and a court-ordered Pa.R.A.P. 1925(b) statement. The trial court issued a Rule 1925(a) opinion addressing Appellant’s claims.

On appeal, Appellant raises several issues, which we reorder and restate as follows: 1. Whether the trial court erred when it denied Appellant’s motion for judgment of acquittal where the jury’s verdict was against the weight of the evidence and there was insufficient evidence admitted at trial to prove beyond a reasonable doubt that Appellant committed the crimes of disorderly conduct and public drunkenness.

____________________________________________

appeal was discontinued. Instead of seeking leave to file the motions nunc pro tunc, counsel simply filed the post-sentence motions nunc pro tunc on September 23, 2022. The trial court denied the motions on October 5, 2022, and counsel filed the instant appeal on October 12, 2022.

Although counsel did not refile her motion for leave to file post-sentence motions nunc pro tunc as directed by this Court, it is clear from the record that the trial court intended to allow counsel to file those motions nunc pro tunc. See Trial Ct. Order, 9/16/22. Therefore, in the interest of judicial economy, we will “regard as done that which ought to have been done” and treat counsel’s post-sentence motions as properly filed. See Commonwealth v. Howard, 659 A.2d 1018, 1021 n.12 (Pa. Super. 1995) (disregarding the appellant’s failure to praecipe clerk of courts for entry of appealable order, “regard[ing] as done that which ought to have been done,” and proceeding to review the appellant’s claims (citations omitted and formatting altered)); see also Pa.R.A.P. 105(a) (permitting an appellate court to disregard requirements of appellate rules in the interest of expediting a decision).

-3- J-A27026-23

2. Whether Appellant was convicted and erroneously sentenced by the trial court for disorderly conduct graded as a misdemeanor of the third degree.[3] 3. Whether the trial court committed reversible error by failing to formally arraign Appellant prior to commencement of trial.

4. Whether the trial court violated Appellant’s right to counsel when it failed to provide Appellant with counsel upon request or conduct the requisite waiver of counsel colloquy on the record at critical stages of the criminal prosecution.

5. Whether the trial court unduly prejudiced and thus denied Appellant her right to a fair trial under the United States and Pennsylvania Constitutions, by commencing trial on May 2, 2022, when Appellant was pro se and incarcerated in Lackawanna County Prison on April 25, 2022 relative to a divorce judgment, without access to the prison law library and materials necessary to prepare for trial.

6. Whether Appellant was denied her constitutional right to a fair trial when only the Commonwealth received the jury panel’s full questionnaire responses during voir dire.

7. Whether the trial court erred when it allowed the Commonwealth to admit video evidence of Appellant recorded on the trooper’s dash camera after Appellant was already under arrest to prove she committed disorderly conduct.

8. Whether the trial court erred when it admitted recordings of the 911 calls made relative to this case as evidence at trial when the state troopers did not hear said 911 calls prior to arresting Appellant and the 911 calls played during trial had hiccups and thus did not match the 911 calls previously authenticated and admitted into evidence during Appellant’s pretrial hearing. ____________________________________________

-4- J-A27026-23

9. Whether the trial court erred in failing to preserve evidence presented at trial, namely whiteboard and demonstrative evidence used by the Commonwealth during the direct examination of its witnesses.

10. Whether the trial court erred when it accepted and used the Commonwealth’s proposed jury instructions instead of the standard proposed jury instructions to instruct the jury on the offense of disorderly conduct.

11. Whether the trial court erred when it imposed an unduly harsh and excessive sentence.

12. Whether the trial court erred in ordering Appellant to file a concise statement of errors on appeal pursuant to Pa. R.A.P. 1925(b) when the presiding trial court judge, the Honorable Joseph Augello, has retired and is thus unable to write or file an opinion pursuant to Pa.R.A.P. 1925(a).

Appellant’s Brief at 11-13.

The trial court thoroughly addressed Appellant’s claims and concluded that she was not entitled to relief. See Trial Ct. Op. at 1-20 (unpaginated).

Therefore, after careful consideration of the record, the parties’ arguments, and the trial court’s conclusions, we affirm on the basis of the trial court opinion. See id. Accordingly, we affirm.

Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 05/16/2024

-5- Circulated 04/30/2024 01:34 PM


COMMONWEAL 
TH OF : 
THE COURT IN 

OF 
COMMON 
PLEAS 

PENNSYLVANIA 
OF 

LACKAWANNA COUNTY 

CRIMINAL DIVISION 


CYNTHIA 
POLLICK 


CR 1295


OPINION 



LEWIS,SJ 


This opinion is 
filed 

pursuant to 
Rule 
1925(a) 

of the 


Pennsylvania Rules of 










Appellate Procedure. Cynthia Pollick (herein after "Appellant") filed timely Notice of 
on Appeal 








October 12, 2022. Appellant's issues are as follows: 
f. 
Whether 



this Court erred when 

it denied 

Appellant's Motion 
for 








Judgment of Acquittal where the jury's verdict was against 
the 

the weight of 


evidence and 
there 


was insufficient evidence 




admitted at Trial to prove 
beyond a


reasonable doubt 
that 



Appellant committed 
disorderly the erimes of 

eonduet 
and 
public 
drunkenness,


2. 
Whether 

this Court 


committed reversible error 
failing 
by 
to 


formally arraign Appellant 


prior to commencement 
of 
trial, 
3, 


Whether this Court 




violated Appellant's right to counsel 
when 
it 



counsel failed to provide Appellant 

upon 


request or conduct 
the 
requisite 
waiver 


of counsel 





colloquy on the record at eritieal stages 
of 


the criminal prosecution, 



4. Whether this Court 


unduly prejudiced 

and thus denied 
Appellant 
her 


right to a 






fair trial under the 
United States and Pennsylvania 


trial Constitutions, by commencing 

on 
May 

2, 2022, 
when 

Appellant 


was pro 


se and incarcerated in Lackawanna 
County 
on Prison 

April 

25, 2022 
relative 


judgment, to a divorce 

without 










access to the prison law library and materials necessary to prepare 
for 
trial.


5. 
Whether 


Appellant was denied 


her constitutional 
a
right to 
fair 









trial when only the Commonwealth received the jury panel's full 
questionnaire 
responses 


during voir dire, 

6. Whether 


when this Court erred 
it 

allowed 

the Commonwealth 
to 

admit 

video evidence 
recorded of Appellant 




on the trooper's dash 
camera 


already after Appellant was 
under 
arrest 



to prove she 


committed disorderly conduct.



7, Whether 


when this Court erred 
it 



admitted recordings of 
the 
91f 







calls made relative 


to this case as evidence at trial when 

the state 







troopers did not hear 

said 911 calls prior to arresting 
Appellant 
and 




the 911 calls played during 

trial had 

hiccups and 
thus 

did not 
match the 911 calls 







previously authenticated and admitted into 

evidence during 


Appellant's pre-trial hearing.


8. 
Whether 

this Court 





erred in failing to preserve evidence 
presented 


at trial, namely 

demonstrative whiteboard and 
evidence used 


by 


the the Commonwealth during 





direct examination of its witnesses, 

9, Whether 


when this Court erred 
it 


accepted and 

used the 

Commonwealth's 



proposed jury instructions instead of 
the 

standard 




proposed jury instructions to instruct the 
jury 
on 
the 



offense of disorderly conduct.



10. Whether 
Appellant 


was convicted 


and erroneously sentenced by 

this Court 


for disorderly conduet 
graded 



as a misdemeanor of 
the 

third degree.





fi. Whether this 
when Court erred 





it imposed an unduly harsh 
and 

excessive sentence, 

12. Whether 




this Court erred in ordering 



Appellant to 
file a Concise 
Statement 
of 



Errors on Appeal Pursuant 


to Pa. R.A.P, 1925(1) 

when the 
presiding 

Trial Court 

Augello, Judge, Joseph 

has 
retired 
and 


is thus unable 





to write or file 
to an Opinion pursuant 

PA, 
R.A.P. 1925(a).















For the following reasons, including a review of the record and the facts and 

history of 






the case, the trial court's rulings and 



the jury's 

verdict should be affirmed.



FACTUAL 
AND PROCEDURAL 
HISTORY The 

charged Commonwealth 


the Appellant 


via Criminal Information 

 
with one (I) 

count 

of Disorderly 


Conduct in 




violation of 18 
(1) PA. C.S.A. 5503(a)(4), and one 

count 


of Public Drunkenness 







in violation of 18 PA. C.S.A. 5505, stemming 
from 
an 

incident on 



July 9,2021, where 
Appellant 



repeatedly attempted to enter a



marked Pennsylvania State 
Police 

vehicle by 

banging on 


pulling the door and 




on the bandle, while 
Appellant 
was 


visibly intoxicated and 


the vehicle was 
on a





public road. Fells, Affidavit of 
Probable 
July Cause, 




9, 2021, at p. 1.



three day trial, 
During a 


which 

May commenced on 


2, 2022, 


May and ended on 

4, 









2022, the Commonwealth presented evidence through several witnesses, Specifically, in 


its case-in-chief, 

the Commonwealth called 
several 


witnesses, including Pennsylvania 
Trooper State 
Christopher 
Cole, 
Pennsylvania 

State 

Trooper William 

Fells, 
Nancy 
Pollick, 







Alan Kearney, Thomas Summerhill, Eugene Lesneski, Gregory Emiliani, 
and 

Henry Zimmer.











Testimony disclosed that on July 9, 2021, Appellant placed a 911 
call 


into the 
County Lackawanna 






Communications Center three separate times wherein 

there seemed 


to be 










a domestic dispute between Appellant and her mother, Nancy Pollick, at their 

residence at 


11059 Valley View 






Drive, Newtowa Township, PA. Note to Transcript, 

Trial, Mary 



3, 2022 at p. 









10. Trooper Fells and Corporal Cole were dispatched to that 

address 


where they 

found Appellant and her 
mother 



inside the garage. N.T., 
May 

3, 2022 at p. 163-164. Upon PSP arrival, 












Appellant was argumentative with Trooper Fells and 








Corporal Cole. She was aggressive and there 


was a strong 

odor of alcohol coming 
from 
her 








breath. Id. at 166. Appellant also exhibited slurred speech 

not and could 



seem to keep 
balance her 

as 
she 
kept 
stumbling 




around the garage 

and front yard. 
Id. Appellant 








proceeded to walk over 
began to Corporal Cole's patrol vehicle and 


"pulling the 
on 
door 
my of 





marked patrol SUV and was 



banging on the window to let 





her in." Id. Appellant 






continued 




this behavior, along with screaming and yelling, oftentimes in Corporal Cole's 

at face. Id. 




167. Appellant also 



repeatedly stated, 
several "Take me to jail," 

times 

throughout this 
interaction. 


Id. at 

170. Soon after, 




Trooper Fells arrived and parked 











directly behind Corporal Cole's vehicle in the driveway, where Appellant proceeded to 

bang 

on the 


windows and pull on 



the door handle of 






his vehicle as well. Id. at 170-171. 






Corporal 





Cole testified that he attempted to deescalate the situation roughly 40 to 

suggesting times, 
to 


she Appellant that 
head 


sleep inside and 
it 
off. 



Id. at 171, 

Eventually, Nancy 




Pollick called her sor-in law 

to Eugene Lesneski 



assist in deescalating 
















the situation, but his arrival did not seem to make matters any better. ld. at 173, Upon 


Mr. Lesneski's arrival, 











Appellant started to shout in his face as well, accusing him of 
















being in the mafia, along with Trooper Fells and Corporal Cole. Id. It was at this point 












Appellant walked inside her residence and all parties involved believed the altercation to 



be over, so both 
Trooper 




Fells and Corporal 
their Cole got in 



vehicles and began 

to drive 





away. Id. at 173.174. Corporal Cole 
watched 



Appellant walk out 

of the home 


and over to 














his vehicle and began banging on the windows and pulling on the door handle of 
his 







patrol vehicle. Id. at 174. Trooper Fells saw 





this interaction in his rear view 

mirror and 









turned around to assist in the situation. N.T., Trial, May 






4, 2022 at p. 20. Trooper Fells 




parked 



his patrol vehicle on the opposite side of 

Valley View 



Drive, across the roadway 

from Appellant's 
residence. 


Id. at 21. 




As soon as Trooper 
his Fells exited 

vehicle, Appellant ran out into the roadway towards his patrol vehicle and 














proceeded to bang on 











the 



windows and door handles asking to be arrested and for law enforcement to take her 





to 




jail. Id. at 20-21, Trooper Fells continued to reason with 




Appellant, asking her to stop 

banging 

on the windows 
and 











to exit the roadway and go inside. Id. at 22-23, After a 
few 

minutes of 




Appellant ignoring his instruction, Trooper 



Fells placed her under 

arrest based 



upon her refusal to 











exit the roadway, her refusal to cease banging on his patrol vehicle 



windows and pulling on 











the door handles, and her clear high level of intoxication. Id. at 










23-24, Appellant was arrested for Disorderly Conduct and Public Drunkenness, placed 





into Trooper Fells 
to patrol vehicle, and taken 







the Processing Center. Id. at 24, 27.







After 
the the conclusion of each party's case, 




jury deliberated and returned 
a 

verdict 









of guilty as to Count I-Disorderly Conduct and the trial judge 

found Appellant 

guilty 


of Count II-Public Drunkenness.






Subsequently, on July 21, 2022, 





Appellant was sentenced Court imposed within 





the standard guideline ranges as follows: 


Count 
- I- Disorderly Conduet 
six 




(6) months of probation; 


Count 


II- Public Drunkenness 
- $300 fine 






The 



Appellant was ordered to obtain a mental health evaluation and 

pay $300.00 

 

in restitution, (N.T. 

Sentencing, July 21, 2022, 

p. 7).




Following 

Appellant's sentencing, Appellant 


 filed several 
pro se post-sentence 

motions on 




July 23, July 24, and 








July 25. 'The trial court subsequently issued an order 
on 




July 25, 2022, granting Appellant's 





request to appoint appellate counsel by 
appointing 










Jillian Kochis, Esq. Further, the trial court issued an order on 



August 4, 2022, directing 
counsel defense 



to file a 
brief 


in support of 




Defendant's pro se post-sentence 
motions on 
or 

before August 


31, 2022. On 


August 8, 2022, 


Appellant filed a 

Pro Se 

Notice of 
Appeal 






to 

the Pennsylvania Superior Court docketed at 1113 
On MDA 2022. 


September 12, 
2022, 
Defendant 

filed a 
Brief 




in Support of Defendant's Post-Trial/Sentence 

Motions. On 





September 14, 2022, Appellant filed a 


Motion for Leave 



to File Post-Sentence Motion(s) 














Nunc Pro Tuns, which this Court granted by Court Order on September 16, 2022. On 











September 23, 2022, Appellant filed Nune Pro Tune Post-Sentence Motions. Also on 

September 23, 
2022, 
the 



Pennsylvania Superior Court 


issued an order vacating 
this 


Court's September 16, 




2022 order discontinuing Appellant's first 


appeal docketed at 






1113 MDA 2022, and granting Appellant's request 




for leave to file Nun¢ 


Pro Tunc Post- 

Sentence motions. 


The September 
Superior 23, 2022 



Court order 
further directed 
Appellant 

to ask 

this Court 

for leave 


to file nune 
pro 
 

tunc post-sentence motions.


October On 











5, 2022, the trial court issued an opinion denying Appellant's Nunc 

Pro Tunc 




Post-Sentence Motions in their entirety 
October On 

12, 



2022, Appellant, filed a Notice 





of Appeal to the Pennsylvania Superior Court related to the above-captioned case, however this Court 












was not served 
with 


said Notice of 
Appeal 

until a 
late 

notice was 




sent to this Court by 

e-mail way of 
on 

13, January 

2023. 
A 

was concise statement 

ordered 

20, on January 


2023, which 


Appellant filed on 

2023.

February 8, 



Based upon the 


Honorable Judge Augello's 

retirement from 



the bench, the Honorable 

Richard A. 






Lewis was appointed to this case in 



December 2022 as a 
visiting 




judge and subsequently directed both 




parties to file briefs by 

court way of 


order on 







February 17, 2023. The Commonwealth filed their brief 
on 
March 


3, 2023, and 







Appellant did so six (6) days later on 


March 9, 2023.


DISCUSSION 
First, 
this 








Court will consolidate its discussion 
related to Appellant's first and tenth issues as Appellant challenges the 







the weight of 

in both. evidence 









Appellant argues that this Court 



erred when it denied Appellant's Motion for 

Judgment of 








Acquittal stating there was insufficient evidence and the jury's 
verdict 
was 



against the weight of 





the evidence. A motion for a 




new trial based on a claim 


that the 

verdict is 



against the weight of 









the evidence is addressed to the discretion of the trial 

court. 

Commonwealth v, 





 Clay, 64 
A.3d 1049, 1054-55 (Pa. 2013). A 


verdict will only 


be reversed on 


the basis of 





the weight of the evidence where 




the evidence is so tenuous, 
and vague 

uncertain 



that the verdict shocks 


the court." 

the conscience of 

Commonwealth 

y.Fuentes, 




272 A.3d 511 (Pa. Super. 







2022). The test for evaluating the sufficiency of 


the evidence is: 

"whether the 
evidence 
admitted 
at 


trial, and 
inferences all reasonable 

from drawn 



that evidence, when 

viewed in the
light 


most favorable to

the 

Commonwealth as 

verdict winner, 

was sufficient to 
enable the 


fact 

finder to 





conclude that the Commonwealth established all of the elements of the 





offense 

beyond a 

Commonwealth reasonable doubt, 


• Taylor, 



A.3d 611 (P%. 

Super. 2016). 
commits One 






the crime of disorderly conduct when 




he or she "if, with 

the intent 


to cause 



public inconvenience, annoyance or alarm, 

or recklessly 
creating a
risk 
of 

he thereof, 

[or 
she]: 




engages in fighting or 

threatening, or 
or in violent 
tumultuous 
behavior." 18 Pa.C.S.A. $ 5503 (a) (1. Also, one is 









guilty 





of the summary offense of 
drunkenness public 



she if "he or 




appears in any public 
place 


manifestly under the 










influence of alcohol...to 
or the degree that he may endanger himself other persons  



or property, 
annoy 
or persons in his vicinity." 18 PA.CS.A. 8 5505. In the instant case, 













trial 

approximately lasted for 
three 

(3) 




days wherein the Commonwealth 
(9) called nine 




witnesses to testify regarding 






the events of July 

9, 2021, Both Trooper Fells 
and 
Corporal 










Cole testified at length regarding the entire altercation at Valley View 

Drive, including 





absurd Appellant's 
alcohol behavior throughout, the odor of 




emanating from her breath, 
Appellant's 



slurred speech and inconsistent 
balance, 



and refusing to 


get out of the 




roadway as 








instructed by Trooper Fells. Trooper Fells also testified regarding the issue of 






whether 


Appellant's actions occurred in public, specifically whether Valley View 
Drive 

was a public 










road. N.T. May 4, 





2022 at p. 21. It is clear through the testimony of all 

most 






notably Trooper Fells and Corporal Cole, that 



in reviewing the evidence witnesses, 



in the light most 








favorable to the Commonwealth as verdict winner, the Commonwealth 


has met its 


all burden in establishing 
elements 




of disorderly conduct and 
public drunkenndess beyond a











reasonable doubt. The evidence also is clear regarding whether 


the disorderly 
was conduct charge 

properly 


graded as third degree a 


misdemeanor, 

Appellant's actions 



on July 9, 

2021 were 
forcing so egregious, 
law 


enforcement to 
at remain 

Valley 
View 



 

Drive for approximately one (l) 



hour attempting to deescalate the 


situation, to no 

avail. Appellant 

provided Trooper 





Fells no choice but to arrest 


her after it 


was clear she 
was 
not 
capable 

of being 
Appellant 


reasoned with. has 
failed 
to 









demonstrate 



that the evidence was so one-sided or that a guilty verdict for disorderly 







conduct 



or public drunkenness would shock one's sense of justice. Appellant's claim is 

meritless and 
must 
fail.













Second, Appellant argues that this Court committed reversible error by failing to formally arraign Appellant prior to commencement of trial. 











The Pennsylvania Rules of 

Criminal Procedure 
provide: 










"that during an arraignment, the court must notify the defendant of 
the 

nature the charges against him, his right to counsel, his right to 

of 










file motions, 


and 









the potential consequences for his failure to appear without cause for any 
in proceeding 
which 

his 
presence 
is 

571(0). required. Pa.R.Crim.P, 

Our 

Supreme Court 







has written that the purpose and necessity of an 


arraignment is 
to 



fix the identity of 





the accused, to inform him 


of the 


nature of the charges against 




him and to give him 




the opportunity of inforing 
of the court 


his plea 
thereto.

Due process of law does not require that any 













technical form of procedure be 


followed so long as









the identity of the accused is definite, sufficient notice 
of 
the 

charges 







is given, and ample opportunity to plead afforded." Commonwealth 
y, 
Gonzalez, 






270 A.3d 1121 (Pa. Super. Ct. 2021).



"When a defendant 







does not formally plead guilty 



to a charge but still actively 
against defends 



the charge, his 
actions 


are tantamount to a

not-guilty 
plea." 


Commonwealth 

v.Leland, 204 



A.3d 461, 468 (Pa. Super. 
2019). 




In the 




instant case, on July 

19, 2021, Magistrate Judge Adcock 

read Appellant the 

charges 

prior to proceeding 


with the preliminary 
hearing. 


Note to Transcript, 













Preliminary Hearing, July 19, 2021 at p. 7-10. Appellant clearly stated on the record 







she 





understood the charges against her and that she would "review the information as 




required later on." N.T., Preliminary 







Hearing, July 19, 2021 at p. 7. Judge 

Adcock also 






made sure Appellant received a copy of 






the criminal complaint prior to the preliminary 











bearing beginning. Id. at 8. Appellant filed numerous pretrial motions, and eventually 



took this case to a


jury trial, 









presenting that she not only understood the nature of the 

charges from 









the onset, but also that she was actively defending herself 



and acting as if 

she was 

pleading not 

guilty. Based 
upon 

the foregoing 


finds 
reasons, this Court 
that 
while 




Appellant 


did not complete a written 




waiver of arraignment, her actions throughout this 

case show 

that she 











understood all her rights as well as the charges against her. Therefore, 




Appellant's claim is meritless and 

must fail.




Third, Appellant argues 








that this Court violated Appellant's right to counsel when 
failed it 












to provide Appellant counsel upon request or conduct the requisite waiver of 




counsel colloquy. Appellant signed a Waiver 







of Counsel Colloquy dated July 19, 2021 
for 


purposes of the 

On preliminary hearing. 


October 6, 
2021, 


the Honorable Judge 



Bisignani-Moyle 




presided over a pre-trial 


motion hearing in this matter wherein this conducted a waiver 


Court 
of 
counsel colloquy on the 


record to 

ensure 




that Appellant was 

capable and 


herself. Note to willing to represent 








 Transcript, October 6, 
2021 at p. 6-16. 











Appellant stated clear and concise answers that she did in fact wish 


to represent herself 
















and this Court was satisfied with her responses. N.T., Oetober 6, 2021 at p. 16. It was 
during only 




Appellant's sentencing 

hearing that she 


requested appointed counsel for 



appellate 


purposes based upon the fact that 
Appellant 




was incarcerated for an unrelated 



to Transcript, Sentencing, July 21, 2022 at p. 8-9). 
farily court matter. Note 








On 
July 
this Court 




25, 2022, entered an order 

Jillian Kochis, Esq. to this matter. Based appointing 






.ln 














the fact that Appellant received appointed counsel when she requested it, signed a 

Waiver of Counsel Colloquy, stated she was aware of 







right to counsel several 
her 



times I 








throughout 

this entire proceeding, this Court finds that Appellant's right 

to counsel was not 






violated and her 

claim is meritless and 
must fail.











Fourth, Appellant argues that this Court unduly prejudiced and denied 
Appellant 

her right 
to a

fair 
trial 

under the 

and United States 


Pennsylvania Constitutions, 
by 

commencing 


trial on 
when May 2, 2022, 
Appellant 
was 

pro 
incarcerated 


se and in Lackawanna County Prison on April 25, 2022 relative to a












divorce judgment, without 


access to the 
prison 
law 


to 
necessary library and materials 


trial. prepare for 

Appellant 
was 


well aware of 
her 










impending incarceration as she stated at the pretrial hearing on April 


18, 2022, "Your 
Honor 



I do have one 


more about 
that my fact 

I 
in 
may be 
prison. 


I do not 
know 

what's going 

to happen 










to me." NT,, Pretrial Hearing, April 18, 2022 at p. 48. 


Appellant goes on 














to further stress the necessity of taking her case to trial, as she stated, 


" [I[t's important 

for me 




to have this trial on 






May 2nd." Id. Appellant was adamant that 









she was proceeding pro se, as she referred to herself 







as a "pro se litigant" prior to voir 


dire on May 














2, 2022. NT. Jury Selection, May 2, 2022 at p. 2. Appellant did not ask 



this Court for more 
time 
to 


prepare, as she 
appeared 




ready to proceed notwithstanding her 


recent incarceration stemming 








from her unrelated civil matter. Appellant's right to a 
fair 

trial was 


not violated, 


her claim has no 

must merit and 
fail. 
Fifth, Appellant argues that she was denied 







her 



constitiuational right to a 

fair trial 
when 




only the Commonwealth 
panel's received the jury 



full questionnaire responses 

during voir dire. Defendant was 


not 
prejudiced 
as 

she 



received the same jury 


questionnaire as both 

this Court 



and the jury questionnaire 

prosecution. The 

is a 
standard, 



one-page form created by 



the Lackawanna County 


Court Administrator's Office and 
used 
every in 

criminal 



trial in 

Lackawanna County, This 
Commonwealth, Court, the 

and 




Appellant, all receive the same jury questionnaire, not 



only 




in this case, but in 
all 
other 



jury trials in Lackawanna 






County. Appellant has not put forth any 


valid legal argument, 

outside of 





this bald assertion, that she did 






not receive the full jury questionnaire, therefore 

Appellant's 


claim is meritless and 
must 
fail.





Sixth, 


Appellant argues this Court erred when 




it allowed the Commonwealth to 
video admit 





evidence of Appellant recorded on 





the trooper's dash camera after Appellant was already under arrest to prove she committed disorderly conduct. Pennsylvania 











Rule 
Evidence of 






states "evidence is relevant if: 

(a) it 



has any tendency to 

make a fact 






more or less probable than it 

would be 



without the evidence; and 
the (b) fact 




is of consequence 

in determining 

the action." 


Pa.R.E. 401. The evidence in question here 




is 



an audio recording of 

Appellant in 


the backseat of Trooper Fells' patrol vehicle, after Appellant 










was placed under arrest, on their route to 



the 




processing center. Appellant 
y. cites to Commonwealth 


Conway, 534 





A.2d 541 (Pa. Sper. 1987) where it 



was held that a defendant's statements on a




video 






prejudicial recording were lawfully suppressed based on their 





value. That case can be 









distinguished from the one at hand because the statements made here by the 



Appellant 
not at all similar to the nervous behavior as cited to in Conway. Cony, were 















A.2d 
541, 


1987), (Pa. Super. 
The 







statements made by Appellant on the MVR 
were 







"ramblings" and statements regarding Federal Judges, clearly 


different than any nervous 









or 




traumatic statements regarding the ongoing arrest. N,T., 'Trial, May 4, 2022 at p. 3M. 


Further, 





the Conway case dealt with audio and video 





of the defendant, whereas here it 




was only 

audio, Id. The jury was 








not able to actually see Appellant's physical state and 

therefore, it 
is 

not possible 



she was prejudiced in a



way the defendant 
similar to 

in 

Conway. Appellant's 

argument 






has no merit as to relevance and 


her claim must 
fail.








Seventh, Appellant argues this Court erred when 



it admitted recordings of 

the 91l 










calls made relative to this case as evidence at trial when 




the state troopers did not 
hear 




said 911 calls 




prior to arresting Appellant and the 911 



calls played during trial 
had hiccups and thus did not match the 911 calls previously authenticated and admitted 













into 

evidence during 
Appellant's 


pre-trial hearing. 

"Unless stipulated, 

to satisfy the requirement of authenticating or identifying an item of evidence, 











the proponent must 





produce evidence sufficient to 




support a finding that the item is 


what the proponent claims it 




is." Pa.R.E. Appellant argues in 901. 

her Brief in Support of Defendant's 







Statement Concise 



Appeal of Errors on 



Pursuant to PA. 
R.A.P. 
1925(B) 
that 
the 










Commonwealth did not properly authenticate the multiple 9l1 calls made by 
Appellant 


on July 9, 










2021, however, Appellant failed to state that the Commonwealth called the 

Director 










of the 911 Call Center, Alan Kearney, as its first witness. N.T., 

Trial, May 
, 









2022 


at p. 6. Mr. Kearney testified at length regarding the preservation of 


said 911 call. 















Id, were a
at 8-10. Mr. Kearney stated that the disk that said 911 calls were stored on 














"fairly 

and accurately represent the calls that were placed on July 9, 2021. Id. at 10. 



Next, Appellant's mother, Nancy 








Pollick, was subsequently called to testify as she was 



present 
Appellant in the residence when 
made 
each 





call. N.T., Trial, May 
3, 
2022 
at 








p. 
properly 23-26. Appellant's claim that the 911 calls were not 



authenticated simply has 

no merit 


to it and 
must 
fail.



Appellant further 
argues 






that the 911 calls were not relevant 
at 
trial 
because 

Trooper Fells 





and Corporal Cole did not personally 
listen 
to 

the 911 
calls 

prior to 
Appellant. arresting 


earlier, As stated 
Pennsylvania 



Rule of 

Evidence 401 states 



"evidence is relevant if: 

(a) it 



has any tendency to 

make a fact 








more or less probable than it would be 
the without 


evidence; and 




(b) the fact is of 
consequence 

in determining 

the action." 

Pa.RR.E. 


401. The Commonwealth offered 

calls said 911 
as 
evidence 


because they 








believed it was "relevant to show the 
the circumstances of how 



troopers were dispatched 












and reasons why they were dispatched to the home. It also -- we 


have the Defendant's 

mother would 




also testify and she was 







present. She could authenticate the call. She was 

present. And 





it's just relevant and probative of 




her intent and additional circumstances." 




N.T., Pretrial Hearing, April 18, 








2022 at p. 22. This Court had previously denied 

Appellant's motion 












to preclude the 911 tapes at the pretrial hearing on April 18, 2022, 
indicating 
that 


the Commonwealth's offer 



enough of proof was sufficient 

to 
show 












relevance. Id. at 26. Appellant has not brought forth any valid argument of 

prejudice as 

to why 





the 911 calls should not have 
been 









played and as such her claim has no merit and 

must fail. 








Lastly, Appellant has put forth no evidence, outside of a



bald assertion suggesting 












that the 911 calls played during the pre-trial hearing are any different than 
ones 
the 
heard 






at trial therefore her claim is without 

merit and 
must 
fail.






Eighth, 


Appellant argues that this Court 
to erred in failing 
preserve 
evidence 

presented 


at trial, 

namely whiteboard 
evidence and demonstrative 

used 

by the 





Commonwealth 

during the direct examination of its witnesses. 

Demonstrative evidence, 

is a 

type of 











evidence that is "tendered for the purpose of rendering other evidence more 

comprehensible to 



Commonwealth v, Serge, the trier of fact." 


896 



A.2d 1170, 1177 


This was 


issue 
previously discussed on 








the record during the last day of trial on 



May 4, 
used 2022. The Courtroom 







the during trial has technology where one of 

functions 

include an 

interactive touchscreen 
where 
a 

witness can 
mark 


up photographs 

while on the 







stand. 

The exhibit in question relates to a diagram of 




Valley View Drive. Trooper Fells 
circled had 



where Appellant 
throughout was standing 
the 
altercation, 

and 
most 


importantly, 

where on the road 

Appellant was 








located, N.T., Trial, May 4, 2022 at p. 21. 



The exhibit, on its 







own, was admitted into evidence, however the amended 
photograph 





with 



the markings from Trooper Fells was 


never admitted into evidence 
as its own 


separate exhibit. Id. 

at 120-121. 




The jury, as 

fact finder, was able 

said to observe 













markings and utilized said markings, along with the many other unmarked exhibits and 

witness to 


testimony, 





determine that the Commonwealth established each element of 


a disorderly conduct beyond 




reasonable doubt, specifically that 
Appellant 
was 


in fact, "in 









public." to 

Therefore, Appellant was not prejudiced by this Court failing 
preserve the 


marked drawings. Her 
claim 


must 
is meritless and 
fail. 



Ninth, Appellant argues that 



this Court 
accepted erred when it 



and used the 

Cormonwealth's 

proposed jury instructions 


instead of 
proposed the standard 

jury 



instructions to instruct the 




jury on the 



offense of disorderly conduct. This Court 
instructed the jury using standard 










jury instructions, not the Commonwealth's proposed instructions.

Defendant was 


not 




prejudiced by being 


unable to submit her own 

proposed instructions 




due to her incarceration on 




an unrelated civil matter. Based 



upon the foregoing reasons, 




Appellant's claim is meritless and 
must 
fail.






Appellant argues that this Court 

unduly imposed an 




harsh and excessive sentence. 

This has previously discussed 
Court 


this 


issue at length 




in its October 5, 
on 2022 Opinion 


Appellant's Nunc 
Pro 
Tunc 
Post-Sentence 
Motions.







Eleventh, 
an Appellant argues that this Court imposed 
unduly 
harsh 

and 
excessive 


sentence. 


This Court notes 


that no automatic right of 






appeal exists for a challenge to the 
aspects discretionary 
of 

sentencing. 





Rather, this type 

of appeal is more appropriately 

considered a petition 




for allowance of appeal. 


Commonwealth_ y. Rosetti, 

A.2d 






1185, 1193-1194 (Pa. Super. 2004) (citing Commonwealth 

v. Ritchey, 


779 A.2d 1183, 



118s (Pa. Super. 2001) (citations 


omitted)). Before 
merits reaching the 
of 

a 




discretionary sentencing issue, an 




appellate court must determine 


whether an appellant (i) filed a 




timely notice of appeal, 


(ii) properly 
preserved 



the issue to be 

heard on 

appeal, (iii) 

filed a 
brief 

free of 





fatal defects, and (iv) 




raised a substantial question that the sentence 

appealed from 
is 
not 

the appropriate under 
Sentencing 
Code. 

Commonwealth_y




Mastromarino, 2 









A3d 581, 588 (Pa. Super. 2010), cert. denied, 

609 Pa. 685. An 







appellate court evaluates whether a particular issue raises 
question on 



a substantial a 

case-by-case 

basis. Commonwealth v, 



Rossetti, 863 A.2d 1185, 

1194 (Pa. 
Super. 

2004). 


A substantial question, may 







be raised if the appellant "sufficiently articulates the 

manner in 



which the sentence violates 
a 
either 



specific provision of the 
sentencing 






scheme 

set forth in the Sentencing Code or 


a particular fundamental norm 

underlying the 

sentencing 

process." Commonwealth 
812 y, Mouzon, A.2 617, 627-28  




2002). (PA. 


Sentencing is a


matter 

vested in 





the sound discretion of the sentencing judge, 

and a 








sentence will not be disturbed on appeal absent a manifest 





abuse of discretion. In this 



context, an abuse of 



discretion is not shown 

merely by 





an error in judgment. Rather, the 







appellant must establish, by reference to the record, 




that the sentencing court ignored 
or 





misapplied the law, exercised its judgment 


for reasons of 



partiality, prejudice, bias 
or ill 

arrived will, or 





at a manifestly 
v, unreasonable decision. Commonwealth 

Shugars, 






 A.2d 


1270, 1275 (Pa. Super, 2006). "An discretion 
abuse of 
may not be found 



merely 



because might 
an appellate court 
have 

conclusion, but requires a




reached a different 
result 


of 

manifest unreasonableness, or partiality, 
prejudice, 
bias, or ill-will, 





or such lack of 






support so as to be clearly erroneous." 
Grady 

Ie., 839 

v, Frito-Lay, 



A.2d 1038, 1046 



(2003). In reviewing a sentence 









on appeal, the appellate court shall vacate the sentence 



and remand the case 




to the sentencing court with 



instructions if it finds; 
(I) 

court the sentencing 

purported 



within to sentence 
the sentencing 





guidelines but applied the guidelines erroneously; 










(2) the sentencing court sentenced within the sentencing guidelines but the 



case involves circumstances where 




the application of the guidelines 
would 



be clearly unreasonable; or 








(3) the sentencing court sentenced outside the sentencing guidelines and 




the sentence is unreasonable.





In all other appellate court shall affirm the sentence imposed by 









cases[,] the the 
sentencing 




court. 
y, Pa.C.S. 8 9781; Commonwealth 

Lewis, 




A3d 405, 411 (Pa. 

Super 2012). 

The 


rationale offered by the 





Pennsylvania Supreme Court for this deferential 



standard is as follows: 

Simply 
sentencing stated, the 


flesh-and- court sentences  




blood Appellants and the nuances of 


sentencing decisions 

are difficult 
to 






gauge from the cold transcript used upon 







appellate review. Moreover, the sentencing court enjoys an 




institutional advantage to appellate review, 
bringing to

its 

decisions 
experience, an expertise, 
and 
judgment 

that 





should not be lightly disturbed. Even 



with the advent of 
the 







sentencing guidelines, the power of sentencing is a 
function 





to be performed by the sentencing court. than 



Thus, rather 




cabin the exercise of a sentencing 



court's discretion, the 

guidelines merely 
inform 


the sentencing decision.



See 

Commonwealth , 
A.2d Walls, 926 
957, 



961. (Pa. 2007) 
A 



sentencing 




court may determine a
defendant's potential for rehabilitation by 




considering her demeanor, apparent remorse, 




manifestation of social conscience, and 


cooperation 


with law enforcement v, 
agents. Commonwealth 
Begley, 

A.2d 

605, 644 

(Pa. 
y, 2001); Commonwealth 


Constantine, 478 


A.2d 39 (Pa. 
Super. 
1984); 


Commonwealth 

, Gallagher, 442 A.2d 



(Pa. Super, 1982).











The 
sentencing court must consider the particular circumstances of the offense 





and the character of the appellant. 
Commonwealth 

804 y, Griffi, 


A.2d 1, 

(Pa. 









Super. 2002), appeal denied 868 A.2d 1198 (Pa. 2005). To 



that end, if a 
presentence 





investigative report exists, it is presumed 
that 



the sentencing 

court "was aware 
of relevant 





weighed information concerning the appellant's character and 


those considerations 
along 




with mitigating statutory factors. A 

pre-sentence 


report constitutes 

the record and speaks 


for itself," Commonwealth 

y, Devers, 








546 A.2d 12, 18 (Pa. 1988). The Devers Court 




further articulated that "it would 
foolish, 







be 
indeed, to take the position that if a 

court is 



possession in of the 
facts, 
it 



will fail to apply 
them 
to 



at the case hand." 

Id. See 


Commonwealth 






v. Boyer, 856 

A.24 149 (Pa. Super. 2004); Commonwealth v, Burns, 




765 A.2d 1144 (a. Super. 
2000).


regarding Facts 

the 

circumstances nature and 
of 



the offense 

that are not 












necessarily elements of the convicted offense, are proper facts to consider in deciding 
to 










sentence 
in the mitigated range or the aggravated minimum range. Commonwealth v, 



 Chitquist, 548 





A.24 272 (Pa. Super. 1988). See also, Commonwealth.


Darden, 531 
A.2d 



1144, 1149 (Pa. Super. 1987).








The Appellant's claim that the sentence imposed 





is unduly harsh and excessive is 










meritless as this Court sentenced the Appellant within the statutory limits. 


Pa. CS 
sentence 81104(3(maximum 


for misdemeanor 

degree of third 





is one () year). Similarly, 









the Appellant's sentence is not contrary 


to the Sentencing Code or 
the fundamental norms 





underlying 

the sentencing process. See Commonwealth_. 

Reynold4, 835 

A.2d 720, 733 










(Pa. Super. 2003(the appellate court does not accept bald allegations of 
excessiveness); 


See also Commonwealth 




 v, Bromley, 862 



A.2d 598 (PA. Super. 2004(defendant did 










not raise substantial question by merely asserting sentence was excessive 

when he failed 
to 
reference 
any 

Sentencing section of 
Code 
potentially 
violated 


by sentence); 

Commonwealth 

y, Trippett, 932 


A.2d 188 (Pa. 

allegation Super. 2007¥bald 
of 




excessiveness does not raise 
a substantial 





question). "Where a sentence 

is within the 








standard range of the guidelines, 


Pennsylvania law views the sentence as appropriate 

under 



the Sentencing Code." Coonwealth v. 
Byrd, 
2016 



WL 716366, at7 
(Pa. 








Super. Ct. Feb. 23, 2016) (quoting Commonwealth , Moury, 



992 A.2d 162, 171 

(Pa.Super. 2010)). A 









sentence imposed within the guidelines may be reversed only if 

application of 



unreasonable. the guidelines is clearly 
Commonwealth 
y. 

Macias, 



 A.24 773, 777 
Super. (Pa. 
2009); 
42 


$
Pa. CS, 9781(e). 



Unreasonable means a 







decision that is either irrational or not guided 

by sound judgment. 


Commonwealth y, 








Walls, 926 



A.2d 957, 963 (PA. 2007). Finally, a trial 


court is not required to provide 
a 

statement of 
reasoning 
for a


sentence imposed 




within the standard range of 


the sentencing guidelines. 


Commonwealth.Lestherby, 



 A.3d 

73, 83 (Pa. Super. 
2015) 
July On 






21, 2022, Appellant was sentenced accordingly: 




Count 
 I- Disorderly Conduct -- six 

(6) 

months of probation; 

Count II- 

Public Drunkenness -


$300 fine 

Appellant was 






I
sentenced in the standard range on Count 


and this Court 
took 
into 


 consideration 

the thirteen (1) 






days Appellant had previously spent incarcerated on this 





at 







matter, N.T., Sentencing, July 21, 2022 
p. 19, 21. This Court intended on sentencing 











receiving 
Appellant to "no further penalty on Count II, however, Appellant insisted on 
a 

fine. 






Id. at 

22. Appellant was sentenced well below the 
one maximum of 



not year, and if 




for Appellant's persistence, would 


have only received 


six (6) months 


probation. It is 
that clear 

the 


court did not 


harsh impose an unduly 
and 
sentence 
excessive 

as 
it 

considered all 


the facts of 

the case. 






Accordingly, Appellant's claim has no merit and 

must fail.














Finally, Appellant argues the court erred in ordering Appellant to file a Concise 

Statement of 


Errors on Appeal 





Pursuant to Pa. R.A.P. 1925(b) when 


the presiding Trial 




Court Judge, Joseph Augello, had 










retired and was thus unable to write or file an Opinion 


pursuant to Pa. 








R.A.P, 1925(a). The circumstances surrounding this case are unusual. 










This case was first assigned to the Honorable Margaret Bisignani Moyle, 


however after a 










full Lackawanna County bench recusal, the Honorable Joseph Augello from Luzerne 












County was assigned in January 2022. Judge Augello presided over this matter through 







September 2022 wherein he retired from the bench 
based 


upon his 

senior status, A 
new 











Judge was not assigned until December 2022, when the Honorable Richard A. 
Lewis 





from Dauphin County was assigned to 



the matter and 



has been presiding ever since 


Appellant filed its 









Notice of Appeal on October 12, 2022, 
after the Honorable Judge Augello's 





retirement. Appellant did not serve 
Court with this 

a


copy 

of said Notice 
until 



January 13, 2023 when 




letter from 



this Court received a
Appellate Counsel inquiring on
the status of said 





appeal. At 




this point, it scems only 




logical that the Honorable Richard 



A. Lewis write the 




the presiding Judge and 
1925(a) opinion as he is 



has 
been 
since 



Appellant 


filed her appeal. This 

Court did not err 


in ordering 


a statement of matters 

complained of 


on appeal, 
claim therefore, Appellant's 




has no 

merit and must fail.


to 









Pursuant 
Rule 302 of the Pennsylvania Rules of Appellate Procedure, as 
a 












general rule, "[ilssues not raised 

in the trial court are waived and cannot be raised 

for the 






first time on appeal." Pa.R.A.P. 302(a); Commonwealth 

v, Piper, 



328 A.2d 845, 847 




(Pa. 1974). Additionally, in order 

to preserve 
an 




issue for appellate review, it 

is necessary 














that the issue be presented initially to the trial court for decision via post-trial motions. 

And 
so, this is 

whether 

results the conviction 

from 

or a trial 

a 
plea 
of 
guilty. 

Commonwealth Williams, 


330 


A.2d 854 (Pa. 1975).