This post
examines an opinion from the Superior Court of Pennsylvania: Commonwealth
v. MacArthur, 2016 WL 1250214 (2016).
As courts usually do, this one began the opinion by explaining what the
case involved and what had happened at the trial court level, e.g., in the “Court of Common Pleas of Allegheny County, Criminal Division”. Commonwealth
v. MacArthur, supra.
The court
explains that
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 Pennsylvania Consolidated Statutes § 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.
Commonwealth v. MacArthur, supra.
The
opinion goes on to explain that MacArthur (“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:
`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.’
Commonwealth v. MacArthur, supra.
The
opinion goes on to quote from the summary appeals court’s outline of the facts:
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.’
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).
Commonwealth v. MacArthur, supra.
The
Superior Court went on to explain that
[a]s 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 ordered [Pennsylvania Rules of Appellate Procedure] 1925(b) statement.
Judge Gallo issued a Rule 1925(a) opinion on April 27, 2015.
Appellant is pro se.
Commonwealth v. MacArthur, supra.
The Superior
Court then explained that in the appellate brief MacArthur filed in this case,
he presented these “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?
[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 Pennsylvania Consolidated Statutes § 6501(a)(1) ]?
Appellant's Brief at 2 (citations omitted).
Commonwealth v. MacArthur, supra.
The Superior Court then began its analysis of MacArthur’s
arguments on appeal, explaining, initially, that his
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,
we will address this matter.
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.
Commonwealth v. MacArthur, supra.
The court went on to explain that
[o]ur 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.’
Pennsylvania Rules of Criminal
Procedure Rule 109 (emphasis added).
Commonwealth v. MacArthur, supra.
The Superior Court then took up the issue of whether MacArthur
was “prejudiced” by what had happened:
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 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.
Commonwealth v. MacArthur, supra.
The court also noted that
[i]n any event, Officer Lucas sought to
amend the citation in open court before Judge Gallo during the summary appeals
proceeding. . . . 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.
Commonwealth v. MacArthur, supra.
The Superior Court then took up MacArthur’s third, and
final, issue on appeal which concerned “the sufficiency of the evidence.” Commonwealth v. MacArthur, supra. The court began its analysis of the issue by
explaining that
[o]ur standard of review of sufficiency claims is
well-settled:
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 (Pennsylvania Supreme Court 2000) (internal
citations omitted).
Commonwealth v. MacArthur, supra.
Finally,
the court took up MacArthur’s
sufficiency of the evidence argument on appeal, noting that
[a]lthough 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 Pennsylvania Consolidated Statutes §
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
conclusion that Appellant has waived this claim for our review. See Commonwealth
v. Hardy, 918 A.2d 766, 771 (Superior Court of Pennsylvania 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.
Commonwealth v. MacArthur, supra.
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