Commonwealth v. Ely

554 A.2d 118, 381 Pa. Super. 510, 1989 Pa. Super. LEXIS 238

• Court: Supreme Court of Pennsylvania
• Decided: February 10, 1989
• Docket: 1629
• Status: Published

Opinions

CAVANAUGH, Judge:

This appeal of Donna Marie Ely is from judgment of sentence imposed following her conviction on four counts of endangering the welfare of children, three counts of indecent assault, three counts of indecent exposure, two counts of incest and three counts of corruption of minors.

The brief offered on behalf of appellant is insufficient in its attempt to cognizably raise the issues on which her appeal is based and to explain clearly the errors which she alleges were made by the lower court. Furthermore, it is defective in that it violates several provisions of the Pennsylvania Rules of Appellate Procedure. The brief fails to conform to the format prescribed by Rules 2101 and 2111; omits completely the contents required by Rules 2114 (Statement of Jurisdiction), 2115 (Order in Question) and 2117 (Statement of the Case); misplaces the section called for by Rule 2118 (Summary of Argument); and violates Rule 2119 since two of the arguments are simply brief restatements of the issues sought to be raised, and the body of the argument contains only two citations to authority without proper explanation of the principles for which the cases are cited.

Appellant raises the following issues on appeal:

1. Whether the Honorable Court properly applied the reasonable firmness standard of the duress defense to the particular circumstances and peculiar mentality of the Defendant.

2. Whether the contact described by the testimony of the children is sufficient to establish deviate sexual intercourse beyond a reasonable doubt.

3. Whether the mandatory sentencing provisions of Pa. 9718 [sic] when applied to a Defendant of limited mental capacity, is unconstitutional.

4. Whether the element provision in Pa. 3123(a) [sic] of the Crimes Code allowing the victim’s ages to replace the forcible compulsion element for involuntary deviate sexual intercourse with respect to a Defendant of limited mental capacity, is unconstitutional.

The appellant, whose conviction resulted in a sentence of ten to twenty years imprisonment, alleges that she was placed under duress by Allan Ross, the man with whom she lived when she committed the acts detailed in the criminal complaint brought against her. Appellant’s brief refers to her as “a mentally retarded adult with attendant personality disorders,” and depicts Ross as a man capable of coercing or intimidating her participation in the events described in the record. She also questions the sufficiency of the Commonwealth’s evidence to meet its burden of proof in light of contradictory testimony given by the children of appellant and Ross when questioned about the appellant’s participation in the incidents of sexual abuse. An examination of the record leads us to the conclusion that there may be some merit to appellant’s contentions, however, we do not feel that we can make a proper determination based on the brief submitted to this court by appellant’s counsel.¹

This court possesses discretionary authority to quash, dismiss or deny allowance of appeal based upon the substantial defects of appellant’s brief, Pa.R.A.P. 2101. However, dismissing the present appeal would place the burden of counsel’s errors entirely upon the appellant and would merely pave the way for appellant to petition the court for post-conviction relief. We believe less drastic means are available to correct the substantial defects of appellant’s brief which will not further delay our review of the merits of her appeal. Cf. Commonwealth v. Zeitlen, 366 Pa.Super. 78, 530 A.2d 900 (1987).

Therefore, based on the authority we possess under Pa.R. A.P. 902 and 2101, we direct that this case be remanded to the trial court for the appointment of new counsel for appellant, Donna Marie Ely, and we further order that new counsel be directed to submit a brief on behalf of appellant which is in compliance with all applicable procedural rules. The brief is to be filed in this court within forty-five (45) days of the date of appointment.

This court shall retain jurisdiction over this appeal and will fully review the case on its merits when the new appellant’s brief is submitted.

This case is remanded for proceedings not inconsistent with this opinion. Panel jurisdiction is relinquished, jurisdiction of the Court is retained. This case is to be assigned by the Prothonotary to another panel.²

ROWLEY, J. files dissenting opinion.

1 . The cited defects were not cured by appellant’s counsel’s oral argument. The Commonwealth did not appear at oral argument.

2 . Judge Rowley in his dissent has argued that, if the majority is correct in remanding this case for the appointment of new counsel, then, under Superior Court’s Internal Operating Procedure 447B, the appeal should be retained and considered by the present panel in order that a decision may be made by the same panel without the necessity of reargument. We respectfully disagree. Internal Operating Procedure 447B contemplates that if a remand is made solely on procedural grounds, “i.e., for the filing of an opinion, the submission of a missing part of the record, etc., jurisdiction should be retained.” On the contrary, we find the defect in this case to be one more serious than filling a missing procedural segment of an otherwise effectively prosecuted appeal. For the reasons previously stated, we have found that the brief and oral argument on appeal would not enable us to make a proper determination. Since the case will require preparation and submission of an entire new brief, and since a decision by this court without the opportunity for argument on the part of new counsel would be a deprivation of appellant’s' appeal rights, we have adopted the prescribed procedure rather than that contemplated by Internal Operating Procedure 447B.