Commonwealth v. Snyder

870 A.2d 336, 2005 Pa. Super. 83, 2005 Pa. Super. LEXIS 231
CourtSuperior Court of Pennsylvania
DecidedMarch 3, 2005
StatusPublished
Cited by126 cases

This text of 870 A.2d 336 (Commonwealth v. Snyder) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Snyder, 870 A.2d 336, 2005 Pa. Super. 83, 2005 Pa. Super. LEXIS 231 (Pa. Ct. App. 2005).

Opinion

OPINION BY

TAMILIA, J.:

¶ 1 Kevin Snyder appeals from the August 29, 2003 judgment of sentence of an aggregate 15 to 30 years imprisonment imposed after he was convicted of two counts each of rape,1 involuntary deviate sexual intercourse,2 statutory sexual assault,3 indecent assault,4 and corruption of [340]*340minors.5 He also appeals from the August 29, 2003 Order by which the court determined him to be a sexually violent predator (SVP) pursuant to Megan’s Law II.6

¶2 The convictions are based on evidence that, when the victim was approximately seven years old, appellant touched her in her “private spots” with his fingers, tongue, or machine (vibrator), made her wash his penis and suck on it until “whitish liquid” came out, made her swallow his semen, urinated on her while she was in the bathtub, made her watch and participate when appellant and the victim’s mother, appellant’s co-defendant, were having sexual relations, and when appellant and another woman, Diana Lupoid, another co-defendant, were having sexual relations, and forced her, inter alia, to perform oral sex on all three co-defendants. N.T., Trial, 3/20/03, at 28-46,109-120.

¶ 3 We first address the Commonwealth’s allegation that the appeal should be quashed due to appellant’s failure to comply with Pennsylvania Rules of Appellate Procedure 2111, Brief of the Appellant; 2115, Order or Other Determination in Question; 2116, Statement of Questions Involved; 2117, Statement of the Case, and 2118, Summary of argument. We note with displeasure that appellant has, in fact, failed to comply with these rules. The most egregious of these failures, however, and the one that most impacts our review, is his failure to comply with Rule 2116, Statement of Questions Involved, which provides in pertinent part:

(a) General Rule. The statement of the questions involved must state the question or questions in the briefest and most general terms, without names, dates, amounts or particulars of any kind. It should not ordinarily exceed 15 lines, must never exceed one page, and must always be on a separate page, without any other matter appearing thereon.. This rule is to be considered in the highest degree mandatory, admitting of no exception....

Pa.R.A.P. 2116(a) (emphasis supplied).

¶ 4 Appellant has listed 14 very verbose issues which span three pages of his brief. Appellant’s brief, at 1-3. “[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.” Commonwealth v. Davidson, 860 A.2d 575, 579 (Pa.Super.2004), quoting Rabutino v. Freedom State Realty Co., 809 A.2d 933, 936 n. 3 (Pa.Super.2002); see also Estate of Lakatosh, 441 Pa.Super. 133, 656 A.2d 1378, 1380 n. 1 (1995), quoting United States v. Hart, 693 F.2d 286, 287 n. 1 (3d. Cir.1982). We could quash this appeal as a result of this failure. See Pa.R.A.P. 2101, Conformance with Requirements (providing that where defects in briefs are substantial, the appeal may be quashed). We will not do so however, simply because we need only review a small subset of the issues raised, since many are waived or are raised inappropriately at this juncture.

[I]n order to preserve their claims for appellate review, appellants must comply whenever the trial court orders them to file a Statement of Matters Complained of on appeal pursuant to Rule 1925. Any issues not raised in a 1925(b) statement will be deemed waived.

Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306, 309 (1998) (emphasis supplied).

¶ 5 Appellant filed a 1925(b) statement in which he raised six issues. Record # 57. In response, the trial court filed an [341]*341Opinion addressing each of those issues. Record # 61. Appellant now raises 14 issues on appeal. We find that pursuant to Lord, he has waived all issues not raised in his 1925(b) statement.

¶ 6 It is of no moment that appellant was not ordered to file a 1925(b) statement. Appellant filed his statement contemporaneously with his notice of appeal. Accordingly, there was no need for the trial court to order him to file a 1925(b) statement. If we were to find that because he was not ordered to file a 1925(b) statement, he has not waived the issues he neglected to raise in it, we would, in effect, be allowing appellant to circumvent the requirements of the Rule. In so holding, we are also mindful of the purpose of Rule 1925.

The absence of a trial court opinion poses a substantial impediment to meaningful and effective appellate review. Rule 1925 is intended to aid trial judges in identifying and focusing upon those issues which the parties plan to raise on appeal. Rule 1925 is thus a crucial component of the appellate process.

Lord, at 419, 719 A.2d at 308. The trial court, quite obviously, could address only those issues raised by appellant in his 1925(b) statement. Accordingly, we do not have the benefit of the trial court’s insight as to the other issues appellant now raises, thus impeding our review.

¶ 7 We also note that the Commonwealth does not brief or argue the issue of 1925 waiver. Waiver under Rule 1925 is automatic. See Commonwealth v. Butler, 571 Pa. 441, 812 A.2d 631 (2002). Further, we do not selectively enforce the Rule based on the arguments of parties. Doing so would subvert the purpose and effectiveness of Rule 1925. Id.

¶ 8 Appellant did not raise his questions 2 through 9, and 13, in his 1925(b) statement. Accordingly, they are waived.

¶ 9 In addition, appellant’s 3rd, -5th, 6th, 8th and 9th issues allege ineffectiveness of counsel.

In Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), the Pennsylvania Supreme Court has stated that, as a general rule, a petitioner should wait to raise claims of ineffective assistance of trial counsel until collateral review. Id., at 67-68, 813 A.2d at 739. The Supreme Court has noted that an exception to the general rule may be created when there has been a complete or constructive denial of counsel or that counsel has breached his or her duty of loyalty. Grant, at 67, 813 A.2d at 738 n. 14. In addition, the appellate courts have carved out limited exceptions to the general rule set forth in Grant. For example, we will address ineffective assistance of trial counsel claims on direct appeal where the appellant would not be entitled to collateral relief due to the short duration of his sentence. Commonwealth v. Salisbury, 823 A.2d 914 (Pa.Super.2003), and where the ineffectiveness claim was raised in a timely post-sentence motion, developed at a hearing, and ruled upon- by the trial court, Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831 (2003); Commonwealth v. Hudson, 820 A.2d 720

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Bluebook (online)
870 A.2d 336, 2005 Pa. Super. 83, 2005 Pa. Super. LEXIS 231, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-snyder-pasuperct-2005.