Com. v. MacArthur, J. ( 2016 )

J-A04024-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN M. MACARTHUR,
Appellant No. 293 WDA 2015
Appeal from the Judgment of Sentence Entered January 21, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-SA-0002499-2014
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and SHOGAN, J.
MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 30, 2016
Appellant, John M. MacArthur, appeals pro se from the judgment of
sentence of a $300.00 fine, imposed following his conviction for the
summary offense of scattering rubbish, 18 Pa.C.S. § 6501(a)(1)
(hereinafter, “littering”). The issues in this appeal evolved out of the citing
officer’s failure to list his own badge number on the littering citation, and
that officer’s subsequent effort(s) to amend the citation to correct that error.
Appellant claims, inter alia, that the amending of the citation violated his
due process rights. After careful review, we affirm.
Appellant was initially convicted of littering before a magistrate, and
then again at a de novo hearing held before the summary appeals court.
The summary appeals court summarized the pertinent facts giving rise to
the instant appeal as follows:
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At the de novo hearing, Officer Matthew Lucas, a Sergeant
with the Bellevue Borough Police Department, testified that on
August 16, 2014, the Chief of the Bellevue Borough Police
Department assigned him to a plain-clothes detail on Lincoln
Avenue for the purpose of enforcing the anti-littering statute.
Officer Lucas testified that he observed [Appellant] as he walked
past him in the early afternoon on August 16, 2015. As
[Appellant] walked toward a pharmacy entrance, he turned and
threw his cigarette onto the street.
Officer Lucas stopped [Appellant] and identified himself. The
Officer then requested a second officer at the location. Officer
Dunker responded and Officer Lucas issued a Citation to
[Appellant]. Officer Lucas used Officer Dunker's laptop computer
to issue the Citation and print it and hand it to [Appellant].
[Appellant] did not deny that he threw the cigarette butt on
the street and that Officer Lucas observed him while he did it.
Instead, [Appellant] argued that the Citation was defective and,
therefore, prejudiced him in some way. He failed to explain the
nature or effect of the alleged prejudice.
The "defect" in the Citation issued to [Appellant] on August
16, 2014, concerned the badge number typed on the Citation.
Officer Lucas requested permission from the Court to amend the
Citation which bore the badge number of Officer Dun[ker] (31)
to Officer Lucas's badge number (18). He explained that the
mistake was due to a clerical error. Officer Lucas testified that
he was the officer who stopped [Appellant], introduced himself
and issued the Citation to [Appellant]. [Appellant] also testified
that Officer Lucas was the officer who stopped him and issued
the Citation.
Officer Lucas explained the error on the original Citation:
When I called Officer Dunker down to my location I
actually used his laptop because I was on plain-clothes
detail and I didn't have access to one. So when I called
the detail officer down, Officer Dunker arrived. I used his
log-in, just to try to respect [Appellant]'s time and not tie
him up for any longer than I needed to. And when I
printed the citation, it defaulted to Officer Dunker's badge
number. That's how that clerical error occurred.
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Officer Lucas also testified that he amended the Citation at
the hearing before the Magisterial District Court prior to
testimony but while [Appellant] was present.
Summary Appeals Court Opinion (SACO), 4/27/15, at 1-3 (citations to the
record omitted).
As noted above, Appellant was cited on August 16, 2014, and
appeared before a magistrate. The magistrate found Appellant guilty of
littering. Appellant filed a timely summary appeal, which was heard at a de
novo hearing before the Honorable Robert A. Gallo of the Summary Appeals
Division of the Court of Common Pleas of Allegheny County. Following the
hearing, Judge Gallo found Appellant guilty and imposed a $300.00 fine.
Appellant filed a timely notice of appeal. He also filed a timely, court-
ordered Pa.R.A.P. 1925(b) statement. Judge Gallo issued a Rule 1925(a)
opinion on April 27, 2015. Appellant is pro se.
In his brief, Appellant presents the following questions for our review:
[1.] Is [A]ppellant entitled to reversal of the Summary Appeal
Trial Court's verdict or a new trial because the erroneous
conclusion the Summary Appeal Trial Court made of the
citation[’s] having been amended on August 19, 2014 violated
both [A]ppellant's Procedural Due Process rights under the 5th
and 14th Amendments to the United States Constitution, and
codified at Commonwealth of Pennsylvania Constitution Article I,
Sections §1, §9 and § 10, and because the prosecution is unable
to show that the error in concluding that the citation was
amended on August 19, 2014 was harmless beyond a reasonable
doubt?
[2.] Is [A]ppellant entitled to a reversal of the Summary Appeal
Trial Court's verdict or a new trial because [A]ppellant provided
the Summary Appeal Trial Court with evidence of improper and
prejudicial ex parte communication had occurred before the
September 29, 2014 Magisterial District Court hearing?
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[3.] Is the sufficiency of the evidence supportive of the
Summary Appeal Court's finding that the Commonwealth
established by clear and convincing evidence that [A]ppellant
should be found guilty of violating [18 Pa.C.S. § 6501(a)(1)]?
Appellant’s Brief at 2 (citations omitted).
Our standard of review from an appeal of a summary
conviction heard de novo by the trial court is limited to a
determination of whether an error of law has been committed
and whether the findings of fact are supported by competent
evidence. Commonwealth v. Lutes, 793 A.2d 949 (Pa. Super.
2002). “The adjudication of the trial court will not be disturbed
on appeal absent a manifest abuse of discretion.”
Commonwealth v. Parks, 768 A.2d 1168, 1171 (Pa. Super.
2001).
Commonwealth v. Marizzaldi, 814 A.2d 249, 251 (Pa. Super. 2002).
Appellant’s first two claims concern the matter of Officer Lucas’
amendment of the citation to reflect his own badge number. Essentially,
Appellant contends the citation amendment was conducted ex parte before
the magistrate, thereby violating his state and federal due process rights.
Despite obvious and numerous defects in Appellant’s brief,1 we will address
this matter.
____________________________________________
1
The defects in the form of Appellant’s pro se brief are too numerous to list.
Most noticeable, however, is that the “Argument” section of Appellant’s brief
contains virtually no arguments, but instead merely summarily states three
reasons why Appellant believes himself to be entitled to relief, without any
reference to the record or citation to any pertinent legal authorities. See
Appellant’s Brief at 14; see also Pa.R.A.P. 2119(a) (“The argument shall be
divided into as many parts as there are questions to be argued; and shall
have at the head of each part--in distinctive type or in type distinctively
displayed--the particular point treated therein, followed by such discussion
and citation of authorities as are deemed pertinent.”). Nevertheless,
Appellant does provide such arguments, references to the record, and
citation to ostensibly relevant legal authorities in the “Relevant Procedural
(Footnote Continued Next Page)
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The summary appeals court concluded that Appellant failed to
substantiate that ex parte communications occurred. SACO, at 3
(“[Appellant] fails to set forth any factual basis for such an averment. He
also fails to show the substance of such communications, how or where they
took place[,] or the parties involved.”). In any event, the court also
concluded that Appellant failed to demonstrate that he was prejudiced by the
substance or manner of Officer Lucas’ amendment.
We find it unnecessary to address the merits of whether a due process
violation occurred because, even assuming the amendment to the littering
citation violated some principle of due process, we agree with the summary
appeals court that Appellant has failed to demonstrate that he was
prejudiced by it.
Our rules of criminal procedure provide that:
A defendant shall not be discharged nor shall a case be
dismissed because of a defect in the form or content of a
complaint, citation, summons, or warrant, or a defect in the
procedures of these rules, unless the defendant raises the defect
before the conclusion of the trial in a summary case or before
the conclusion of the preliminary hearing in a court case, and the
defect is prejudicial to the rights of the defendant.
Pa.R.Crim.P. 109 (emphasis added).
_______________________
(Footnote Continued)
History” portion of his brief. Id. at 4-13. Despite the Commonwealth’s
arguments that we should deem Appellant’s claims waived due to these
defects, see Commonwealth’s Brief at 14, we decline to do so, as the
defects do not substantially impair our ability to address Appellant’s claims.
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At the summary appeal hearing, Appellant did not contest whether
Officer Lucas issued the citation to him on August 16, 2014:
THE COURT: Okay. Now let me ask you this, sir. Did you know
– you saw Officer Lucas on the street?
[Appellant]: I didn’t know who he was.
THE COURT: But you saw him there?
[Appellant]: Well, I saw a young man --
THE COURT: Yeah.
[Appellant]: -- leaning against the wall.
THE COURT: Okay. Now, are you saying it was or wasn’t Officer
Lucas?
[Appellant]: You know what? I don’t – it was a while ago. He
says he might have had sunglasses, maybe not.
THE COURT: Okay. Sir, just answer the question. Did you or
did you not see him?
[Appellant]: I saw a young man --
THE COURT: Okay.
[Appellant]: -- who I later learned was Sergeant Lucas.
THE COURT: Yes, he introduced himself, he was Sergeant Lucas.
[Appellant]: Yes, sir.
N.T., 1/21/15, at 32-33.
Given Appellant’s admission, we cannot comprehend how he was
prejudiced by the manner in which the citation was amended to reflect an
effectively undisputed fact. If it is not critical to Appellant’s defense(s) to
the citation whether Officer Lucas was the officer who observed the violation
and issued the citation, then the manner in which the citation was amended
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could not have prejudiced him. The only argument we can ascertain from
Appellant’s brief that touches upon his burden of demonstrating prejudice is
Appellant’s bald assertion that the ex parte amendment of the citation at the
magistrate’s office evidenced “a conspiracy to find him guilty” of littering.
Appellant’s Brief at 7. This argument is absurd on its face, and not founded
on any facts of record. Appellant neither explains why he would be targeted
in such a conspiracy, nor what purpose or whose interests such a conspiracy
would serve.
In any event, Officer Lucas sought to amend the citation in open court
before Judge Gallo during the summary appeals proceeding. N.T., 1/21/15,
at 3-4. Thus, whatever ex parte communication or related due process error
that arose before the magistrate was not repeated and was, therefore,
corrected at the summary appeals court, given that the summary appeals
proceeding constituted a de novo trial. A de novo trial is not merely an
appeal from a conviction before a magistrate; “‘[d]e novo’ review entails, as
the term suggests, full consideration of the case anew. The reviewing body
is in effect substituted for the prior decision maker and re[-]decides the
case.” Rebert v. Rebert, 757 A.2d 981, 984 (Pa. Super. 2000). Thus, we
conclude that Appellant is not entitled to relief with respect to his first two
claims.
Appellant’s third claim concerns the sufficiency of the evidence.
Our standard of review of sufficiency claims is well-settled:
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A claim challenging the sufficiency of the evidence is a
question of law. Evidence will be deemed sufficient to support
the verdict when it establishes each material element of the
crime charged and the commission thereof by the accused,
beyond a reasonable doubt. Where the evidence offered to
support the verdict is in contradiction to the physical facts, in
contravention to human experience and the laws of nature, then
the evidence is insufficient as a matter of law. When reviewing a
sufficiency claim[,] the court is required to view the evidence in
the light most favorable to the verdict winner giving the
prosecution the benefit of all reasonable inferences to be drawn
from the evidence.
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal
citations omitted).
Although Appellant lists a sufficiency claim in his statement of the
questions presented, see Appellant’s Brief at 2, we could only find two short
references to this claim in the remainder of his brief. Specifically, in the
section titled, “Summary of the Argument,” Appellant baldly states: “There is
not sufficient evidence in the record to find [A]ppellant guilty and the verdict
should be set aside due to insufficient evidence to support that finding.” Id.
at 13. Subsequently, in the “Conclusion” section of his brief, Appellant
baldly states: “The trial court’s order finding [Appellant] guilty of violating
[18 Pa.C.S. § 6501(a)(1)] should be set aside due to insufficient evidence to
support that finding under the clear and convincing standard.” Id. at 14.
Appellant’s bald assertions, the complete absence of any
accompanying argument, the lack of any citations to legal authorities (other
than the statute at issue) and any discussion thereof, and the lack of any
references to the record supporting this claim, collectively lead to our
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conclusion that Appellant has waived this claim for our review. See
Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007) (“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.”) (citation omitted)
Thus, in summary, we agree with the summary appeals court that
Appellant has failed to demonstrate that he was prejudiced by the
amendment to the littering citation that ostensibly occurred before the
magistrate. We also conclude that Appellant has waived any sufficiency
claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/30/2016
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