Com. v. Smith, J.

Opinion

J-S58001-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JOSEPH CHARLES SMITH,

Appellant No. 1015 WDA 2012

Appeal from the PCRA Order May 29, 2012 in the Court of Common Pleas of Allegheny County Criminal Division at Nos.: CP-02-CR-0008807-2003; CP-02-CR-0010345-2004

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED NOVEMBER 21, 2014

Appellant, Joseph Charles Smith, appeals pro se from the order

denying him relief pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541–9546, without a hearing, as without merit. Appellant’s

pro se brief substantially fails to comply with our rules of appellate

procedure. We quash.

We summarize only the facts most relevant to the disposition of this

appeal. On April 30, 2003, four co-conspirators in ski masks kidnapped

David Williams, Lakeenah Fitts, and their infant child. The assailants beat

Williams and demanded $150,000 ransom. There ensued a frantic effort by

Williams and Fitts to obtain sufficient funds from various relatives and ____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-S58001-14

friends to pay the ransom. The kidnappers drove Williams, Fitts, and their

child around in Williams’ van, as they tried to get the money. One of the

people they tried to get ransom money from was Erica Lunsford, a former

girlfriend of Williams. When the efforts ultimately failed, Williams’ captors

shot and killed him. The kidnappers left Williams, dead or dying, in his van,

alone with his infant daughter.

Around that time, a 911 call reported that two black males wearing ski

masks were seen jumping out of a white van and getting into a blue S-10

Chevy blazer. The police subsequently found the blazer. It had been set on

fire and was severely damaged. The blazer belonged to Appellant.

Ms. Fitts eventually identified Appellant as the driver in the

kidnapping.1 Appellant concedes that he was the owner of the getaway

blazer, and that it was subsequently burnt. (See Appellant’s Brief, at 5).

Appellant first agreed to turn himself in to the police with his lawyer, but fled

instead. He was captured by the fugitive squad a year later.

____________________________________________

1 Ms. Fitts and Ms. Lunsford independently identified Appellant. Both testified they had seen him briefly remove his mask. Ms. Fitts had initially identified someone else, John Brazella, as the getaway driver. Police led Ms. Fitts to Brazella because the vehicle he owned resembled the description of the getaway van. (See Commonwealth’s Brief, at 14). Appellant was eventually identified as the owner of the getaway vehicle. Ms. Fitts identified him as the kidnap driver from a photo array.

-2- J-S58001-14

At trial, defense counsel cross-examined Ms. Fitts on her earlier

identification of Brazella and her subsequent identification of Appellant. Ms.

Lunsford also identified Appellant. Appellant testified in his own defense,

denying any involvement in the kidnap or murder. (See N.T. Trial, 2/08/05,

at 487). He admitted ownership of the Chevy blazer (conceding that he did

not have a driver’s license), but claimed it had been stolen on the day of the

kidnapping, shortly before it was burned.

A jury convicted Appellant of murder of the second degree,

kidnapping, burglary, robbery and conspiracy. The trial court imposed the

mandatory sentence of life imprisonment for the murder and a concurrent

term of not less than ten nor more than twenty years’ imprisonment for the

criminal conspiracy conviction.

After Appellant’s direct appeal rights were reinstated nunc pro tunc,

this Court affirmed the judgment of sentence on direct appeal and our

Supreme Court denied allowance of appeal. (See Commonwealth v. J.

Smith, NO. 1915 WDA 2005 (unpublished memorandum) (Pa. Super. filed

March 12, 2008), appeal denied, 990 A.2d 729 (Pa. 2010)).

Appellant filed the instant petition for PCRA relief, on July 2, 2010.

The court appointed counsel, who filed an amended petition. The PCRA

court filed notice of its intent to dismiss on January 31, 2012. While still

represented, Appellant filed objections and a premature pro se notice of

-3- J-S58001-14

appeal. The court held a Grazier hearing,2 and found Appellant’s waiver of

counsel to be knowing, voluntary and intelligent; it granted him leave to

represent himself on appeal. The court issued a final order, and Appellant

filed another notice of appeal.3

Appellant raises six questions for our review.4

1. Did PCRA counsel fail to raise a [sic] issue of merit where trial counsel was ineffective for failing to file a motion to suppress Lakeenah Fitts[’] identification of Appellant and protecting his rights under the 6th and 14th amendments to the U.S. Const [sic] & Art [sic] 1 § 9 of the PA Const [sic]?

2. Did PCRA counsel fail to raise a [sic] issue of merit where trial counsel was ineffective for failing to object when the judge sealed five jury questions about the facts of the case during their premature jury deliberations and protect Appellant[’]s rights to a fair and impartial jury guaranteed under the 6th & 14th Amendments to the U.S. Const [sic] and Art [sic] 1 § 9 of the PA Const [sic]?

3. Did PCRA counsel fail to raise a [sic] issue of merit where trial counsel was ineffective for failing to object to a faulty, confusing and misleading jury instruction relating to murder and protect Appellant[’]s 6th & 14th Amendment rights to the U.S. Const [sic] and Art [sic] 1 § 9 of the PA Const [sic]?

5. Did PCRA counsel fail to raise a [sic] issue of merit where trial counsel was ineffective for failing to recall alibi ____________________________________________

2 See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). 3 Appellant filed three concise statements of error. (See Commonwealth’s Brief, at 25); see also Pa.R.A.P. 1925(b). The trial court filed a statement of reasons (dated 2/5/14), on February 11, 2014. See Pa.R.A.P. 1925(a). 4 We reproduce the questions in Appellant’s original order of presentation, and as manually re-numbered by him.

-4- J-S58001-14

witness in surrebuttal and failing to object to the prosecutor[’]s repeated highlighted references to defendant invoking his rights under the Fifth and Sixth Amendment to the U.S. Const [sic] and Art [sic] 1 § 9 of the PA Const [sic]?

4. Did PCRA counsel fail to raise a [sic] issue of merit where trial counsel was ineffective for failing to request a Franks hearing to challenge the information provided in the affidavit of probable cause to arrest and the veracity of the affiant(s) signed thereto when it was obvious that material facts were omitted and deliberate falsification of material facts were present in the affidavit violating his right to the 4th and 6th Amendment to the U.S. Const [sic] and Art [sic]1 § 9 of the PA Const [sic]?

6. Did PCRA counsel fail to raise a [sic] issue of merit where trial counsel was ineffective for failing to object to the reference of Appellant in nontestifying codefendent[’]s statement and where the prosecutor unredacted the codefendant[’]s statement in her closing argument violating his 6th & 14th Amendment to the U.S. Const [sic]and Art [sic] 1 § 9 of the PA Const [sic]?

(Appellant’s Brief, at iv).

Our standard and scope of review for the denial of a PCRA petition is

well-settled:

[A]n appellate court reviews the PCRA court’s findings of fact to determine whether they are supported by the record, and reviews its conclusions of law to determine whether they are free from legal error. The scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the prevailing party at the trial level.

Commonwealth v. Charleston, 94 A.3d 1012, 1018-19 (Pa. Super. 2014)

(citation omitted).

-5- J-S58001-14

Preliminarily, on review, we conclude that Appellant’s pro se brief

substantially fails to comply with our rules of appellate procedure.5

Pennsylvania Rule of Appellate Procedure 2135 requires, in pertinent part,

that “[u]nless otherwise prescribed by an appellate court . . . a principal

brief shall not exceed 14,000 words.” Pa.R.A.P. 2135(a)(1). “A principal

brief that does not exceed 30 pages when produced by a word processor or

typewriter shall be deemed to meet the limitations in paragraph (a)(1).”

Pa.R.A.P. 2135(d). However, Appellant’s brief, exclusive of supplementary

materials, exceeds 112 pages, well over three times the maximum page

limit.

The Commonwealth estimates the word count of Appellant’s brief to be

about 28,000 words, or twice the prescribed limit. (See Commonwealth

Petition to Strike Non-Conforming Brief, at 2 ¶ 2). Our independent

calculation produces a result of 50,710 words, well over three and a half

times the maximum word limit. In any event, Appellant provides no

certification that his brief complies with the word count limits. See Pa.R.A.P.

2135(d).

Furthermore, the excessive length of Appellant’s argument is

accompanied by a lack of focus on legal issues or adherence to basic

5 On July 14, 2014, the Commonwealth filed a petition to strike Appellant’s non-conforming brief. That petition was deferred to this panel. (See Order, 7/17/14, per curiam).

-6- J-S58001-14

standards for argument on appeal. Appellant relies instead on an unduly

rambling, unfocused and often transparently self-serving statement-oriented

narrative. Appellant frequently editorializes or speculates about inferences

or conclusions, and continually assumes facts without reference to the

record.6 This prevents meaningful appellate review.

While Appellant makes occasional efforts to cite to the record or

caselaw presumed to be pertinent, he employs this procedure so ____________________________________________

6 For example, in support of his first argument, Appellant states:

“Fitts[’] overall testimony was highly erratic, unclear and often contradictory. Due to her prior identification of Brazell [sic] police chose to employ an unduly suggestive process in order to influence her to identify [Appellant] during the out-of- court photo array. Ultimately, due to the improper conduct of the police, [Appellant’s] due process rights were violated. Perry v. New Hampshire, 132 S. Ct. 716, [ ] (2012) (“As the United Sates Supreme Court’s case law makes clear, what triggers the due process concerns about eyewitness identification testimony is police use of an unnecessarily suggestive identification procedure to be suggestive.”) [sic]. (Appellant’s Brief, at 4).

In the sole citation for these assorted claims, Appellant misquotes Perry, which actually states: “As our case law makes clear, what triggers due process concerns is police use of an unnecessarily suggestive identification procedure, whether or not they intended the arranged procedure to be suggestive.” Perry, at 721 n.1.

In any event, Appellant misapprehends the import of Perry, which held “that the Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement.” Id. at 730 (emphasis added). The Supreme Court affirmed Perry’s conviction. See id.

-7- J-S58001-14

inconsistently and erratically that it is generally impossible to ascertain the

basis of his argument or whether there is evidence of record to support it.

This, too, prevents meaningful review.

Appellant’s pro se brief substantially violates other rules as well. For

example, in Appellant’s fourth (manually re-numbered as his fifth) question,

he raises two distinct issues in one question, in violation of Pa.R.A.P. 2116,

and 2119(a).

This court has traditionally been liberal in its review of pro se filings,

and frequently overlooks incidental deviations from procedural requirements

in the interest of justice and judicial economy. See Commonwealth v.

Lyons, 833 A.2d 245, 252 (Pa. Super. 2003), appeal denied, 879 A.2d 782

(Pa. 2005). However, this indulgence has usually been accompanied by a

cautionary note:

As a prefatory matter, although 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.

(Id. at 251-52 (case citation omitted)). “[A]ny person choosing to represent

himself in a legal proceeding must, to a reasonable extent, assume that his

lack of expertise and legal training will be his undoing.” Wilkins v.

Marsico, 903 A.2d 1281, 1285 (Pa. Super. 2006), appeal denied, 918 A.2d

-8- J-S58001-14

747 (Pa. 2007) (citing Commonwealth v. Rivera, 685 A.2d 1011[, 1013]

(Pa. Super. 1996)). This Court has also decided:

[F]or all those who may come henceforth in the garb of “in forma pauperis” or pro se, justice will not be skewed for such litigants, but, on the contrary, will be meted out even-handedly to those who exhibit at least a modicum of effort in following the prescribed rules of conduct in appellate practice.

This is not the case here, and we can decipher no rule of conscience or law which advises in favor of addressing the merits of the appellant’s appeal in the face of the procedural shortcomings pervading his brief to us.

Laird v. Ely & Bernard, 528 A.2d 1379, 1380-81 (Pa. Super. 1987), appeal

denied, 549 A.2d 136 (Pa. 1988). See also Commonwealth v. Spuck, 86

A.3d 870, 877 (Pa. Super. 2014), appeal denied, 99 A.3d 77 (Pa. 2014)

(citing Laird) (finding all issues waived for failure to comply with appellate

briefing rules; appeal quashed).

Furthermore, it is improper for this Court to make an argument for an

appellant, or to scour the record to find evidence to support his argument.

See Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007),

appeal denied, 982 A.2d 509 (Pa. 2009) (deeming unsupported issue

waived).7

7 See also Commonwealth v. Gray, 608 A.2d 534, 544 n.15 (Pa. Super. 1992):

We cannot stress strongly enough in this case our displeasure with appellate counsel’s failure to follow our (Footnote Continued Next Page)

-9- J-S58001-14

This Court need not dissipate limited judicial resources in an effort to

convert Appellant’s assorted attacks on the reliability of the witnesses’

identifications, or the purported unreliability of eyewitness identification

evidence in general, into a cognizable claim for collateral relief.

In fact, Appellant’s various challenges to purported inconsistencies in

the testimony─while occasionally framed (but not properly argued) as claims

of ineffectiveness of counsel─are in actuality invitations to this Court to re-

weigh the evidence already considered by the jury. We decline. It was the

province of the jury as fact-finder to weigh the evidence and to accept all,

part or none of it. Finally, on our review, none of Appellant’s other questions

present a cognizable claim for collateral relief.

Appellant substantially disregards our procedural rules. His defective

brief does not enable meaningful review. He presents no proper discernible

claim for collateral relief.

Appeal quashed.

_______________________ (Footnote Continued)

Supreme Court’s appellate rules which require specific reference to places in the record where facts and legal arguments pertinent to appellant's claims can be found. . . . [W]e are not speaking of a small number of cases which would allow us to scour the records in each case despite an appellate counsel’s failure to abide by the rules. If litigants freely ignore proper procedure, what purpose do the rules serve?

- 10 - J-S58001-14

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/21/2014

- 11 -