Com. v. Rubin, M.
Com. v. Rubin, M. No. 189 EDA 2017
| Pa. Super. Ct. | Jun 9, 2017Background
- On May 19, 2016, Officer Rodgers observed a red Nissan Altima (registered to Rubin) parked on grass; he saw what he believed was a marijuana stem inside and later smelled burnt marijuana on Rubin.
- Officer Rodgers approached Rubin in a nearby field, questioned him, arrested him for marijuana possession after Rubin admitted any marijuana would be a "small amount," and a search incident to arrest uncovered additional small amounts.
- Rubin was charged with possession of a small amount of marijuana (misdemeanor) and possession of drug paraphernalia; he filed a pro se pre-trial motion raising Rule 519(B)(2) and apparently made an oral suppression motion at a December 5, 2016 hearing which was denied.
- A jury convicted Rubin of possession of a small amount of marijuana and acquitted him on the other charge; Rubin filed a premature pro se notice of appeal before sentencing, which was later treated as filed on the sentencing date.
- The appellate court found the certified record lacked necessary transcripts to review Rubin’s suppression claim and no record basis supported his remaining pro se status on appeal; it remanded for a hearing on indigency and appointment of counsel under Pa.R.Crim.P. 122 and ordered related procedural steps.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appointment of counsel on appeal (Rule 122) | Commonwealth: court must ensure proper representation but did not argue here | Rubin: proceeded pro se claiming indigency and spent funds on his brief | Court remanded for a hearing to determine indigency and whether counsel should be appointed under Pa.R.Crim.P. 122 |
| Adequacy of record for appellate review (missing transcripts) | Commonwealth: appellate review requires transcripts for suppression claim | Rubin: lacked funds to order transcripts; nonetheless filed pro se brief | Court declined to proceed without transcripts and instructed counsel (if appointed) to order transcripts and file a 1925(b) statement |
| Validity of suppression ruling | Commonwealth: suppression denial stood below | Rubin: challenged suppression ruling on appeal | Court could not review suppression claim due to missing transcripts and thus remanded for proper record development |
| Treatment of premature notice of appeal | Commonwealth: jurisdictional rules apply to appeal timing | Rubin: filed notice before sentencing | Court treated the premature notice as filed on the sentencing date (relating it forward) to preserve jurisdiction |
Key Cases Cited
- Commonwealth v. Cannon, 954 A.2d 1222 (Pa. Super. 2008) (discussing court authority under Rule 122 to appoint counsel when interests of justice require)
- Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) (establishing requirements for a defendant’s valid waiver of right to counsel)
- Commonwealth v. Rojas, 874 A.2d 638 (Pa. Super. 2005) (explaining appellate jurisdiction principles for final orders)
- Commonwealth v. Patterson, 940 A.2d 493 (Pa. Super. 2007) (noting a direct criminal appeal lies from the judgment of sentence)