Com. v. Benckini, G. ( 2019 )

J-A01008-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GENE CARL BENCKINI :
:
Appellant : No. 1026 EDA 2019
Appeal from the Judgment of Sentence Entered March 21, 2019
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-SA-0000291-2018
BEFORE: NICHOLS, J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY NICHOLS, J.: FILED DECEMBER 30, 2019
Appellant Gene Carl Benckini appeals pro se from the judgment of
sentence imposed following his conviction for summary harassment.1 For the
reasons that follow, we dismiss the appeal based on deficiencies in Appellant’s
brief.
Briefly, Appellant was cited for harassment after he repeatedly
contacted the female complainant. Appellant, who was represented by
counsel, proceeded to a de novo summary appeal trial on March 21, 2019.
That same day, the trial court found Appellant guilty and sentenced him to
pay a $300 fine and the costs of prosecution.
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 2709(a)(3).
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On March 25, 2019, Appellant filed a pro se notice of appeal.2 Appellant,
acting pro se, subsequently filed a timely court-ordered Pa.R.A.P. 1925(b)
statement.
In lieu of a Rule 1925(a) opinion, the trial court issued an order asserting
that
[Appellant] has waived his issues on appeal under Rule 1925(b)
by failing to file a concise and coherent Rule 1925(b) statement.
[Appellant]’s statement consists of a 15-page narrative in which
no issues are numbered. [Appellant] offers a summary of the
evidence presented at his de novo hearing, and makes reference
to two unrelated criminal matters (CP-39-CR-3939-2001 and CP-
39-CR-1470-2017) and a civil action (2016-C-3545). Over three
pages[, Appellant] makes allegations of trial court errors in
relation to one of the unrelated criminal matters. While it is
difficult to discern what [Appellant] is alleging on appeal, he does
briefly mention that [the trial court] erred in this case by allowing
hearsay testimony and by interrupting his witnesses. However, in
order to address the merits of those issues, I need the transcript
from [Appellant’s] de novo hearing, which he has failed to properly
request. I would ask the court to find [Appellant] waived his
issues for appeal. In the alternative, I ask that the case be
remanded so that [Appellant] can properly submit a request for
transcript and file a concise statement.
Trial Ct. Order, 5/29/19.
On appeal, Appellant presents the following issues for our review:
1. Whether Appellant’s brief should be [accepted] as true facts,
as they happened and as they did not happen.
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2 On February 25, 2019, Appellant’s counsel was suspended from practicing
law in Pennsylvania. This Court remanded the matter for Appellant to decide
whether to retain new counsel or proceed pro se. See Order, 5/7/19. On May
20, 2019, Appellant filed a response indicating that he wished to proceed pro
se. See Response to Order, 5/20/19.
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2. Whether the police officer encouraged a public citizen to
commit a crime of fabrication against a person that the police
officer hated, along with perjury.
3. Whether this plot was [intended] for the sole purpose but to
have this man’s bail revoked and into prison.
4. Whether this plot was [intended] to obstruct justice.
5. Whether [Appellant] engaged in a course of conduct that
served no legitimate purpose.
Appellant’s Brief at 13 (full capitalization omitted).
Initially, we note that
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. Citations to authorities must
articulate the principles for which they are cited. Pa.R.A.P.
2119(b).
This Court 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 appellate review, we
may dismiss the appeal entirely or find certain issues to be
waived.
Commonwealth v. Kane, 10 A.3d 327, 331 (Pa. Super. 2010) (some
citations omitted).
Although this Court is willing to liberally construe materials filed
by a pro se litigant, we note that [an] appellant is not entitled to
any particular advantage because [he] lacks legal training. As our
[S]upreme [C]ourt has explained, “any 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.” Accordingly, pro se
litigants must comply with the procedural rules set forth in the
Pennsylvania Rules of Court; if there are considerable defects, we
will be unable to perform appellate review.
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Commonwealth v. Vurimindi, 200 A.3d 1031, 1037–38 (Pa. Super. 2018),
appeal denied, 217 A.3d 793 (Pa. 2019) (citations omitted).
Here, we have carefully reviewed Appellant’s brief and find the defects
to be substantial.3 Although Appellant presents five issues in his statement of
questions, his argument section is limited to a single page. See Pa.R.A.P.
2116(a); 2119(a). Further, Appellant fails to develop any of his arguments
by applying a principle of law to the facts of this case. See Pa.R.A.P. 2119(a).
Significantly, Appellant’s argument section does not contain citations to, or
appropriate analyses of, applicable Pennsylvania legal authority. See id.
Although we liberally construe Appellant’s pro se brief, we are barred from
acting as his counsel and advancing his arguments. See Kane, 10 A.3d at
331-32. Accordingly, we are constrained to dismiss the appeal.
Appeal dismissed.
____________________________________________
3 We add that, as noted by the trial court, Appellant’s Rule 1925(b) statement
only identified two issues with sufficient clarity. However, Appellant did not
raise those issues in his brief. See Commonwealth v. Perez, ___ A.3d ___,
2019 Pa. Super. 300, 2019 WL 4926192, *1 n.2 (Pa. Super. filed Oct. 7, 2019)
(en banc) (reiterating that an issue is abandoned when it is identified on
appeal but not properly developed in an appellant’s brief) (citation omitted).
Therefore, it does not appear that Appellant has preserved any claims for
appellate review. See Commonwealth v. Dowling, 778 A.2d 683, 687 (Pa.
Super. 2001) (stating that a Rule 1925(b) statement “which is too vague to
allow the court to identify the issues raised on appeal is the functional
equivalent of no [c]oncise [s]tatement at all”); see also Pa.R.A.P. 1925(b)
(stating that an issue is waived if it is not included in an appellant’s Rule
1925(b) statement).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/19
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