Com. v. Mitchell, M. ( 2023 )

J-A27008-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARCUS ROY MITCHELL :
:
Appellant : No. 157 MDA 2022
Appeal from the Judgment of Sentence Entered September 8, 2021
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0002709-2020
BEFORE: DUBOW, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY DUBOW, J.: FILED: JANUARY 17, 2023
Appellant, Marcus Roy Mitchell, appeals from the September 8, 2021
Judgment of Sentence entered in the York County Court of Common Pleas
following his non-jury trial conviction of DUI—General Impairment and
Careless Driving.1 After careful review, we affirm.
The facts and procedural history of the matter are largely immaterial to
our disposition. On April 22, 2020, around 10:30 PM, the Northern York
County Regional Police dispatched Police Officer Kyle R. Forry to respond to a
911 call reporting a reckless driver. As Officer Forry proceeded to the site,
the dispatcher provided him with live updates, which led him to the parking
lot at Goofy’s Eatery and Spirits in Spring Grove, where the 911 caller
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* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S. §§ 3802(a)(1) and 3714(a), respectively.
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indicated the driver of the reckless vehicle, later identified as Appellant, had
parked. In the parking lot, Officer Forry found Appellant sitting in the driver’s
seat of his parked car. Appellant was alone in the vehicle, the engine was
turned off, and Appellant held the keys to the car in his hands. No other
vehicles were parked in the lot. When Appellant opened the door to his car at
Officer Forry’s request, Officer Forry immediately smelled the overwhelming
odor of alcohol. Officer Forry observed numerous indicia of intoxication
including: (1) Appellant’s slow speech and glossy eyes; (2) the odor of alcohol
emanating from Appellant’s breath; and (3) Appellant’s unsteadiness on his
feet and need for assistance walking to Officer Forry’s car. Appellant refused
Officer Forry’s request to perform standard field sobriety tests and to consent
to a blood draw. Officer Forry then arrested Appellant on suspicion of DUI and
Careless Driving.
Following a July 16, 2021 bench trial, the court convicted Appellant of
the above charges. On September 8, 2021, the court sentenced Appellant to
a 6-month term of probation, three months of alcohol monitoring, and three
months of house arrest.
Appellant filed a post-sentence motion, which the trial court denied.
This appeal followed. Both Appellant and the trial court complied with
Pa.R.A.P. 1925.
In his Brief to this Court, Appellant challenges the sufficiency of the
Commonwealth’s evidence in support of his conviction and the weight the trial
court gave to the evidence. Before we reach the merits of the issues
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presented, however, we must consider whether Appellant has preserved them
for our review.
It is axiomatic that the argument portion of an appellate brief must be
developed with citation to the record and relevant authority. Pa.R.A.P
2119(a)-(c). “We shall not develop an argument for an appellant, nor shall
we scour the record to find evidence to support an argument.” Milby v. Pote,
189 A.3d 1065, 1079 (Pa. Super. 2018). This Court will address only those
issues properly presented and developed in an appellant’s brief as required by
our rules of appellate procedure. Pa.R.A.P. 2101-2119. As this Court has
made clear, we “will not act as counsel and will not develop arguments on
behalf of an appellant.” Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa.
Super. 2007). “Appellate arguments which fail to adhere to these rules may
be considered waived, and arguments which are not appropriately developed
are waived.” Coulter v. Ramsden, 94 A.3d 1080, 1088 (Pa. Super. 2014).
See also Commonwealth v. Kane, 10 A.3d 327, 331 (Pa. Super. 2010)
(citations omitted) (where “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.”); Pa.R.A.P. 2101 (providing that where the
defects in an appellant’s brief are substantial, this Court may quash or dismiss
the appeal).
Following our review of the arguments Appellant has presented in
support of his claims, we conclude that they are woefully underdeveloped.
Although Appellant has provided citations to boilerplate authority regarding
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our standard of review of sufficiency and weight of the evidence claims, he
has provided no citations whatsoever to the record2 and has failed to discuss
the facts of this case in the context of relevant case law. Instead, Appellant
has merely recounted the facts in the light most favorable to him and then
baldly concludes that: (1) the Commonwealth’s evidence was insufficient to
support his conviction; and (2) that the conviction “shock[s] one’s sense of
justice.” Appellant’s Brief at 20. We cannot and will not act as Appellant’s
counsel and develop arguments on his behalf. Appellant’s failure to develop
his arguments have hampered this Court’s ability to conduct meaningful
appellate review. Thus, we conclude that Appellant has waived his claims by
failing to develop them.
Even if this Court were able to effectuate meaningful appellate review,
we would conclude that Appellant’s issues do not merit relief. Our review of
the record indicates that the Commonwealth presented sufficient evidence to
support Appellant’s conviction and we find no abuse of discretion in the trial
court’s denial of Appellant’s request for a new trial on weight of the evidence
grounds.
Judgment of Sentence affirmed.
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2 We acknowledge that Appellant provided citations to the notes of testimony
in the “Statement of the Case” section of his Appellate Brief. However,
Appellant has not complied with our rule of Appellate Procedure requiring that
“[i]f reference is made to the pleadings, evidence, charge, opinion or order,
or any other matter appearing in the record, the argument must set forth, in
immediate connection therewith, or in a footnote thereto, a reference to the
place in the record where the matter referred to appears.” Pa.R.A.P. 2119(c).
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Judge Colins joins the memorandum.
Judge McLaughlin concurs in result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/17/2023
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