Com. v. Grmusa, D. ( 2018 )

J-A09044-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
DUSAN GRMUSA :
: No. 1562 WDA 2017
Appellant :
Appeal from the Order Entered September 27, 2017
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-SA-0001386-2017
BEFORE: BOWES, J., DUBOW, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED MARCH 23, 2018
Dusan Grmusa (Appellant) appeals pro se from the judgment of
sentence imposed following his conviction of the summary offense of littering.1
Upon review, we quash the appeal.
On February 23, 2017, following an investigation into the dumping of
construction debris into Jack’s Run in White Oak, Pennsylvania, Waterways
Conservation Officer Michael E. Johnson of the Bureau of Law Enforcement for
the Pennsylvania Fish and Boat Commission filed a criminal complaint against
Appellant charging him with disturbing waterways and watersheds pursuant
to 30 Pa.C.S.A. § 2502.
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1 30 Pa.C.S.A. § 2503(a).
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On May 8, 2017, Appellant appeared before the Magisterial District Court
where the charge was amended to the summary offense of littering, and the
magisterial district judge found Appellant guilty. Appellant filed a summary
appeal. On September 27, 2017, he appeared for a bench trial, after which
the trial court found him guilty and imposed a sentence requiring him to pay
a fine of $500.00 plus costs.
Appellant filed a notice of appeal on October 24, 2017. On October 26,
2017 the trial court directed Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P 1925(b). Appellant failed to
comply.2 On December 11, 2017, the trial court filed an opinion pursuant to
Pa.R.A.P. 1925(a) in which it concluded that Appellant’s failure to file a Rule
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2On December 12, 2017, Appellant filed a pro se document entitled “Petition”
which stated in pertinent part:
On December 12, 2017 I received a Court Order by Your Honor
Dated October 26, 2017 (EXHIBIT: A). This Order states that I
failed to file a Concise Statement of the Errors Compiled within 21
days as ordered by the court and therefore the court has waived
my appeal. This is an error I did in fact file said Concise Statement
of the Errors within the 21 allotted days (EXHIBIT: B). I have
attached a copy of both documents for your review
Petition, 12/12/17.
A review of the exhibits attached to the petition indicate that Exhibit A
is the trial court’s October 26, 2017 order directing compliance with Pa.R.A.P.
1925(b) and Exhibit B is Appellant’s criminal docketing statement filed with
this Court. No concise statement of errors complained of on appeal appears
in the record.
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1925(b) statement resulted in waiver. The trial court specifically stated that
Appellant “has failed to set forth any ruling or error that he intends to
challenge on appeal. Under these circumstances, there is no issue for the
Court to review.” Trial Court Opinion, 12/11/17, at 1-2.
Although the trial court directed Appellant to file a concise statement of
errors complained of on appeal, Appellant failed to do so. When a trial court
orders an appellant to file a Rule 1925(b) statement, he must comply in a
timely manner. Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005).
An appellant’s failure to comply with a Rule 1925(b) order will result in waiver
of all issues on appeal. Id.3 It is well-settled that “issues not raised in the
lower court are waived and cannot be raised for the first time on appeal.”
Pa.R.A.P. 302(a).
As noted in footnote 2 above, on December 12, 2017, Appellant filed a
pro se “Petition” in which he verbatim averred:
On December 12, 2017 I received a Court Order by Your
Honor dated October 26, 2017 (EXHIBIT: A). 4 This Order states
that I failed to file a Concise Statement of the Errors Complained
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3 Although this Court, interpreting Pa.R.A.P.1925(c)(3), has held that
counsel’s failure to file a Rule 1925(b) statement constitutes per se
ineffectiveness warranting remand for the filing of a statement nunc pro tunc,
a pro se defendant cannot allege the ineffectiveness of counsel based upon
his own inaction. See Commonwealth v. Fletcher, 986 A.2d 759, 774, 779
(Pa. 2009).
4 This is a misstatement by Appellant; the content of Appellant’s petition
indicates he is referencing his receipt of the trial court’s December 11, 2017
opinion finding that he waived any appellate issues due to his failure to file a
1925(b) statement.
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of within 21 days as order (sic) by the court and therefore the
court has waived my appeal.
This is an error I did in fact filed said Concise Statement of
the Errors within the 21 allotted days (EXHIBIT: B). I have
attached a copy of both documents for your review.
Appellant’s Exhibit A is a copy of the trial court’s October 26, 2017 order
directing him to file a Rule 1925(b) statement; his Exhibit B is a copy of the
Superior Court Criminal Docketing Statement, which in no way constitutes a
Rule 1925(b) statement. We nonetheless note that Rule of Criminal Procedure
114 provides that court orders shall be transmitted to the clerk of courts,
served upon a party if the party is not represented by an attorney, and
promptly entered on the docket with the date of the order, date of receipt by
the clerk of courts, and date of service. Pa.R.Crim.P. 114. In this case, the
trial court docket does not demonstrate that the trial court’s 1925(b) order
was issued in compliance with Pa.R.Crim.P. 114. Where the record, and
particularly the docket, fails to indicate the date and manner of service of the
1925(b) order, we may not find waiver. See Commonwealth v. Hess, 810
A.2d 1249, 1254-1255 (Pa. 2002); see also Commonwealth v. Hooks, 921
A.2d 1199, 1202 (Pa. Super. 2007).
However, even had Appellant not received the trial court’s order
directing his compliance with Pa.R.A.P. 1925(b) in a timely, compliant fashion
(which he has not alleged), his two-page appellate brief in no way conforms
to the Rules of Appellate Procedure. Appellant’s Brief at 1-2; see also
Pa.R.A.P. 2111(a)–(b); Pa.R.A.P. 2114-2119. The brief fails to include a
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statement of jurisdiction, order or other determination in question, summary
of argument, or statement of questions involved, and the statement of the
case and argument sections are lacking. Instead, Appellant’s brief consists of
a two-page narrative in which he recounts his grievances with the Department
of Environmental Protection, along with an assertion that a company
delivering fill was responsible for depositing the debris in the stream.
“The briefing requirements scrupulously delineated in our appellate rules
are not mere trifling matters of stylistic preference; rather, they represent a
studied determination by our Court and its rules committee of the most
efficacious manner by which appellate review may be conducted so that a
litigant's right to judicial review ... may be properly exercised. . . .
[C]ompliance with these rules . . . is mandatory.” Commonwealth v. Perez,
93 A.3d 829, 837–38 (Pa. 2014). “To the extent [an] appellant’s claims fail
to contain developed argument or citation to supporting authorities and the
record, they are waived.” Id. If the defects are in the brief of the appellant
are substantial, the appeal may be quashed. Pa.R.A.P. 2101
We recognize that Appellant is pro se. However, as our Courts have
made clear, “[u]nder Pennsylvania law, pro se defendants are subject to the
same rules of procedure as are represented defendants.” Commonwealth
v. Blakeney, 108 A.3d 739, 766 (Pa. 2014). “Although the courts may
liberally construe materials filed by a pro se litigant, pro se status confers no
special benefit upon a litigant, and a court cannot be expected to become a
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litigant’s counsel or find more in a written pro se submission than is fairly
conveyed in the pleading.” Id. “When issues are not properly raised and
developed in briefs, [and] when the briefs are wholly inadequate to present
specific issues for review, a court will not consider the merits thereof.”
Commonwealth v. Tchirkow, 160 A.3d 798, 804 (Pa. Super. 2017)
(citations omitted).
For these reasons, we quash this appeal. The case shall be stricken
from the argument list. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/23/2018
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