Com. v. Jordan, R.

• Court: Superior Court of Pennsylvania
• Decided: November 12, 2015
• Docket: 144 MDA 2015
• Status: Unpublished

Opinion

J-S56035-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

ROBERT WILLIAM JORDAN,

Appellant No. 144 MDA 2015

Appeal from the Judgment of Sentence October 14, 2014 in the Court of Common Pleas of Bradford County Criminal Division at No.: CP-08-CR-0000979-2013

BEFORE: SHOGAN, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED NOVEMBER 12, 2015

Appellant, Robert William Jordan, appeals pro se from the judgment of

sentence imposed following his jury conviction of multiple counts of incest,

involuntary deviate sexual intercourse (IDSI), corruption of a minor, delivery

of controlled substances and numerous related offenses. Appellant

challenges jurisdiction, the length of his sentence, the weight and sufficiency

of the evidence, numerous evidentiary rulings and various jury instructions.

However, he fails to develop relevant arguments for his claims, supported by

citation to specific pertinent authority. Accordingly, we dismiss.

We derive the facts from the trial court’s memorandum opinion of

December 3, 2014, and our independent review of the record. ____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-S56035-15

Appellant, then forty-three, engaged in a course of conduct in which

he provided controlled substances to his daughter, then fifteen, and engaged

in various forms of sexual contact with her, including sexual intercourse and

IDSI.

Police began to investigate after the victim, A.B., who was already in

foster care for prior drug problems, tested positive for drugs. She initially

denied everything, but eventually admitted the relationship with her father.

Around the same time a friend of Appellant, Mike Wheeler, to whom he

confided the incestuous relationship, (apparently as part of a boast of his

prowess with young girls), sent an anonymous letter to the police reporting

the confession of sexual assaults.

At trial, the victim’s mother, Tia M. B., testified, among others. Tia

had conceived the victim, A.B., when she was fourteen. Although the trial

court had ruled that the litigants were not to refer to Tia’s age at the time of

conception (as prejudicial to Appellant), on cross-examination defense

counsel inquired why the name of Tia’s mother, Caroline B., appeared “obo”

(on behalf of) Tia B. in the caption of the support proceeding for A.B. Tia B.

responded, “I was underage, I was fifteen.” (N.T. Trial, 6/10/14, at 234).

Defense counsel later requested a mistrial, which the court denied. (N.T.

Trial, 6/11/14, at 1-2).

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A.B., the victim, testified, inter alia, that Appellant, her father, had sex

with her after giving her drugs, twenty to thirty times. (See N.T. Trial,

6/10/14, at 117).

On July 11, 2014, a jury convicted Appellant of twenty-seven offenses

as follows: two counts of delivering a controlled substance,

(methamphetamines and so-called “bath salts”),1 four counts of IDSI with a

person less than sixteen years of age,2 six counts of statutory sexual

assault,3 ten counts of incest with a minor (complainant between thirteen

and eighteen years of age),4 two counts of corruption of a minor

(misdemeanor),5 one count of indecent assault (person less than sixteen

years of age),6 and two counts of corruption of a minor (defendant age

eighteen or above) (felony).7

____________________________________________

1 35 P.S. § 780-113(a)(30). 2 18 Pa.C.S.A. § 3123(a)(7). 3 18 Pa.C.S.A. § 3122.1(b). 4 18 Pa.C.S.A. § 4302(b)(2). 5 18 Pa.C.S.A. § 6301(a)(1)(i). 6 18 Pa.C.S.A. § 3126(a)(8). 7 18 Pa.C.S.A. § 6301(a)(1)(ii).

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Following trial, and after holding a Grazier hearing,8 the court

permitted Appellant to represent himself. (See Waiver Hearing, 9/16/14, at

18).

The sentencing court had the benefit of a pre-sentence investigation

report. (See N.T. Sentencing, 10/14/14, at 1, 9-10). Appellant had a prior

record score of five. (See id. at 2). The trial court also considered the

victim impact statement of A.B. (See id. at 12). Appellant was not eligible

for a RRRI minimum sentence. (See id. at 15). Following the

recommendations of the probation department, the court imposed all

sentences within the high end of the standard range, consecutively. (See

id. at 16). Appellant received an aggregate sentence of not less than one

thousand four hundred sixty-three months’ (just under 122 years), nor more

than three thousand nine hundred and ninety-six months’ (333 years)

incarceration in a state correctional institution. (See id. at 15; see also

Order, dated 10/14/14 and filed 10/15/14, at 1-3). He was required to

register for life, but was not determined to be a sexually violent predator.

(See N.T. Sentencing, 10/14/14, at 19).

8 See Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998) (“When a waiver of the right to counsel is sought at the post-conviction and appellate stages, an on-the-record determination should be made that the waiver is a knowing, intelligent, and voluntary one.”) (citations omitted).

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Appellant filed a pro se post-sentence motion for a new trial, or to

vacate sentence. The court denied the motions on December 3, 2014. This

timely appeal followed.9

In this appeal, Appellant raises twenty-seven claims, framed as

fourteen numbered questions, for our review. To avoid confusion, and for

completeness, we reproduce his questions verbatim to the extent possible.

(1) Whether the trial court erred in allowing the jury to consider the issue of P.W.I.D. 35 § 780- 113(a)(30) [?] Trial Judge failed to instruct the jury on the element of possession nor did the Trial Judge instruct the jury on the element as to a specific date.

(2) Whether the Trial Court erred when it denied access to the COMPLAINANT’S JUVENILE RECORD[?]

(3) Whether SENIOR JUDGE JEFFREY A. SMITH erred when he denied access to C.P.S. & C.Y.S. records[?]

(4) Whether the Trial Judge MAUREEN T. BEIRNE failed to recuse herself[?]

(5) Whether SENIOR JUDGE JEFFREY A. SMITH erred when he denied access to the COMPLAINANT A.B.’S MENTAL HEALTH RECORDS[?]

(6) Whether Trial Judge MAUREEN T. BEIRNE erred when she permitted STATE PAROLE OFFICER BRYAN BERRY testify [sic] as to unadmitted drug tests and whether it was prosecution misconduct when the [C]ommonwealth failed to disclose this witness to defense[?] This is a direct violation of BRADY V. MARYLAND, 373 Super. (1963) [sic]. ____________________________________________

9 The trial court did not order a statement of errors from Appellant. The court filed a Statement in Lieu of 1925 Opinion, on May 1, 2015. The Statement referenced the court’s opinion and order of December 3, 2014, denying Appellant’s post-sentence motions.

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(7) Whether DISTRICT MAGISTRATE JONATHAN WILCOX erred when he bound over charges for P.W.I.D. with no dates as to any delivery’s [sic] nor any controlled substances in evidence[?] Whether SENIOR JUDGE JEFFREY A. SMITH erred when he denied OMNIBUS MOTIONS because there was no PHYSICAL EVIDENCE nor any SPECIFIC DATE to any crime and the commonwealth failed to produce a more PARTICULAR BILL OF PARTICULARS[?]

(8) Did Trial Judge MAUREEN T. BEIRNE error [sic] when she took JUDICIAL NOTICE on the [C]ommonwealth’s EXIBIT [sic] (2) "A.O.P." violating the rules of evidence after she ruled that any INDICIA OF TIA M. [B’s] AGE was inadmissible for the Trial[?] Did Trial Judge MAUREEN T. BEIRNE error [sic] by not proclaiming a mistrial after TIA M. [B.] BLURTED OUT HER AGE, DEFYING THE COURT ORDER of 06/09/14[?]

(9) Did the Trial Judge error [sic] when she OMITTED part of the statute text for the INCEST charges over OBJECTION by defense, when she misled the JURY the [sic] INADEQUATE JURY INSTRUCTION on the charge of INCEST[?]

(10) Did the Trial Judge error [sic] when she didn’t instruct the JURY on the issue of MIKE WHEELERS [sic] FALSE TESTIMONY[?] The JURY INSTRUCTION SHE GAVE WAS INADEQUATE.

(11) Did the lower courts error [sic] by not dismissing the defendant’s charges after they denied him a PRELIMINARY ARRAIGNMENT AND DIDN’T PROVE THEY HAD JURISDICTION AND NEVER PROVED ON THE RECORD THAT BRADFORD COUNTY WAS THE PROPER VENUE FOR THIS TRIAL[?]

(12) Did the Trial Judge error [sic] when she lied in her final order denying the defendants [sic] motion for a new trial on 12/03/14 concerning the JURY seeing the [C]ommonwealth[’]s exibit [sic] (2) "A.O.P." and prosecutor DANIEL J. BARRETT lieing [sic] in his brief in support of his argument that being that he lies saying that the jury wasn’t told that the defendant and TIA M. [B.] were never married[?] And did Trial Judge MAUREEN T. BEIRNE error when she didn't declare a mistrial after Trial and evidence didn’t prove BRADFORD COUNTY DIDN"T [sic] HAVE JURISDICTION OVER THE TRIAL[?]

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(13) Did the Trial Judge error [sic] when she permitted the prosecutor to use evidence from cases, cp- 08- cr- 0000229 -13 & cp- O8 -cr- 0000283- 13(MARK & JESSE BRIGGS) after she ruled they were inadmissible for this Trial[?] Judge JEFFREY A. SMITH also denied the defense the use in his order dated 04/21/14 per count II.

(14) Did the Trial Judge error [sic] when TIA M. [B.] committed perjury under oath by lieing [sic] about what she was in jail for[?] Defense attempted to get the criminal record of TIA M. [B.] from the [C]ommonwealth on 03/12 & 03/13/14 in there [sic] request for discovery. The [C]ommonwealth denied this evidence because this prosecutor, prosecuted TIA M. [B.] for ROBBERY and failed to produce this information in direct violation of BRADY V. MARYLAND, SUPRA.(1963).

(Appellant’s Brief, at 6-7) (emphases in original).

Preliminarily, we observe that Appellant presents us with a materially

non-compliant brief. Appellant’s brief of fifty-nine pages substantially

exceeds the presumptively compliant length of thirty pages, but Appellant

has failed to include a certification that the brief complies with the word

count limits. See Pa.R.A.P. 2135(a)(1). Also, the correspondence between

his questions raised and the points presented in his argument section is

random and inconsistent.

More substantively, Appellant’s arguments are meandering and un-

focused, only sporadically referenced to the record, and often rely on sheer

speculation unsupported by reference to the facts of record or controlling

authority. (See e.g., Appellant’s Brief, at 17: [Victim] “would have said

anything . . . to keep her[self] out of the juvenile facility.” Similarly, he

baldly states that “JUDGE JEFFREY A. SMITH COMMITTED MISCONDUCT IN

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THIS HEARING BY ADVOCATING FOR THE COMMONWEALTH[,]” with five

citations to the argument on the motion in limine but no discussion

whatsoever.10 (Id. at 22) (emphasis in original).

Briefs and reproduced records shall conform in all material respects with the requirements of these rules as nearly as the circumstances of the particular case will admit, otherwise they may be suppressed, and, if the defects are in the brief or reproduced record of the appellant and are substantial, the appeal or other matter may be quashed or dismissed.

Pa.R.A.P. 2101

Here, Appellant fails to develop meaningful arguments for the claims

made and other particular points treated. He does not support his claims by

pertinent discussion and citation of controlling authority. See Pa.R.A.P.

2119. All of these defects preclude meaningful review of the claims raised.

It is not the role of this Court to develop an argument for Appellant.

See J.J. DeLuca Co. Inc. v. Toll Naval Assocs., 56 A.3d 402, 411 (Pa.

Super. 2012) (“We shall not develop an argument for [the appellant], nor

shall we scour the record to find evidence to support an argument;

consequently, we deem this issue waived.”) (citation omitted).

Furthermore, the mere multiplication of claims ad infinitum is of no

direct benefit in obtaining appellate relief. To the contrary it is often

counter-productive: ____________________________________________

10 On independent review, we find the claim of judicial misconduct by advocacy for the Commonwealth utterly without foundation. (See N.T. Motions, 5/13/14, at 8-12).

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When I read an appellant’s brief that contains ten or twelve points, a presumption arises that there is no merit to any of them. I do not say that it is an irrebuttable presumption, but it is a presumption that reduces the effectiveness of appellate advocacy. Appellate advocacy is measured by effectiveness, not loquaciousness. [S]ee also . . . Commonwealth v. Snyder, 870 A.2d 336, 340 (Pa. Super. 2005) (“[T]he effectiveness of appellate advocacy may suffer when counsel raises numerous issues, to the point where a presumption arises that there is no merit to any of them.”).

Id. at 410 (one citation omitted).

[A]lthough this Court is willing to construe liberally materials filed by a pro se litigant, pro se status generally confers no special benefit upon an appellant. Accordingly, a pro se litigant must comply with the procedural rules set forth in the Pennsylvania Rules of the Court. This Court may quash or dismiss an appeal if an appellant fails to conform with the requirements set forth in the Pennsylvania Rules of Appellate Procedure. Pa.R.A.P. 2101.

Commonwealth v. Lyons, 833 A.2d 245, 251-52 (Pa. Super. 2003),

appeal denied, 879 A.2d 782 (Pa. 2005) (case citation omitted). “Failure to

conform with the requirements of rules of court is grounds for dismissal.

See Pa.R.A.P. 2101.” First Lehigh Bank v. Haviland Grille, Inc., 704

A.2d 135, 138 n.2 (Pa. Super. 1997).

In this appeal, Appellant asks that his brief be reviewed under less

stringent standards than a counseled brief. (See Appellant’s Brief, at un-

numbered page 2). However, under controlling authority, he is not entitled

to special review. See Lyons, supra at 251-52.

To the contrary, on questioning by the trial judge at the Grazier

hearing, Appellant expressly acknowledged that he was still bound by all the

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normal rules and procedures, just as an attorney would be, and that if his

issues were not properly presented, they would be waived. (See Waiver

Hearing, 9/16/14, at 17-18).

Accordingly, we dismiss Appellant’s appeal for failing to present a brief

which conforms to our Rules of Appellate Procedure, for failure to develop

properly referenced arguments, and failure to support the arguments with

pertinent authority. See Pa.R.A.P. 2101; Lyons, supra at 251-52; First

Lehigh Bank, supra at 138 n.2.

Appeal dismissed.11

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/12/2015

11 Moreover, on independent review, we conclude that none of Appellant’s claims has any merit. If we were to review Appellant’s issues on the merits, we would affirm on the basis of the trial court’s opinion. (See Opinion and Order, 12/03/14). We have attached a copy of the trial court’s opinion for the convenience of the reader.

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