Com. v. McDowell, A. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
ANTHONY MARCELLOUS MCDOWELL,
Appellant No. 992 MDA 2018
Appeal from the Judgment of Sentence Entered May 11, 2018
In the Court of Common Pleas of Mifflin County
Criminal Division at No(s): CP-44-CR-0000340-2017
BEFORE: BENDER, P.J.E., LAZARUS, J., and MURRAY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 12, 2018
Appellant, Anthony Marcellous McDowell, appeals pro se from the
judgment of sentence of an aggregate term of 30 days’ to 6 months’
incarceration, imposed after he was convicted of driving under the influence
of alcohol (DUI), 75 Pa.C.S. § 3802(b), and related offenses. We affirm.
We need not discuss the facts of Appellant’s case for purposes of this
appeal. We only note that Appellant was convicted of DUI and related offenses
following a non-jury trial on April 19, 2018. On May 11, 2018, the court
sentenced Appellant to the term stated supra, and it subsequently denied his
timely-filed, post-sentence motion. Appellant then filed a timely, pro se notice
of appeal. On June 20, 2018, the trial court issued an order directing him to
file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal
within 21 days. The record indicates that the Rule 1925(b) order was sent to
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Appellant’s privately-retained counsel and the Commonwealth, but not to
Appellant.
Appellant’s counsel did not file a Rule 1925(b) statement on his behalf,
and no pro se statement was filed by Appellant. Consequently, on July 25,
2018, the trial court issued a Rule 1925(a) opinion concluding that Appellant
had waived any issue(s) that he sought to raise on appeal. See Trial Court
Opinion, 7/25/18, at 1. On July 30, 2018, the trial court granted defense
counsel’s motion for leave to withdraw from representing Appellant. Appellant
thereafter filed a pro se brief with this Court.
We begin by addressing the trial court’s conclusion that Appellant
waived his claims for our review by failing to comply with its order to file a
Rule 1925(b) statement. As noted above, the record indicates that Appellant
was still represented by counsel at the time the order was issued, and it was
sent to counsel but not to Appellant. Under such circumstances, we would
typically remand for the filing of a concise statement nunc pro tunc. See
Pa.R.A.P. 1925(c)(3) (“If an appellant in a criminal case was ordered to file a
Statement and failed to do so, such that the appellate court is convinced that
counsel has been per se ineffective, the appellate court shall remand for the
filing of a Statement nunc pro tunc and for the preparation and filing of an
opinion by the judge.”).
However, we decline to remand in this case, as we conclude that
Appellant has waived his issue(s) on another basis. Namely, Appellant’s brief
to this Court wholly fails to conform to the Rules of Appellate Procedure. For
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instance, Appellant does not include any of the required sections, such as a
Statement of the Questions Involved, Summary of the Argument, or
Argument. See Pa.R.A.P. 2116, 2118, 2119. Instead, Appellant’s brief is
comprised of two hand-written pages, along with several unexplained
documents and pictures. These briefing errors impede our ability to clearly
discern what claim(s) Appellant is raising, let alone meaningfully review them.
Therefore, Appellant’s issue(s) are waived.1 See Commonwealth v. Hardy,
918 A.2d 766, 771 (Pa. Super. 2007) (“[W]hen 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.”).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/12/2018
____________________________________________
1 To the extent that Appellant seems to be challenging the legality of the stop
of his vehicle, and/or the subsequent draw of his blood, he did not present
these claims to the trial court in a pretrial motion to suppress. Accordingly,
we would deem these issues waived on this basis, as well. See Pa.R.A.P.
302(a) (“Issues not raised in the lower court are waived and cannot be raised
for the first time on appeal.”).
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