Com. v. McCullough, K. ( 2017 )

J-S28002-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KATHLEEN MCCULLOUGH,
Appellant No. 448 WDA 2016
Appeal from the PCRA Order of January 29, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0007911-2008
CP-02-CR-00105026-2009
BEFORE: OLSON, MOULTON and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED JUNE 30, 2017
Appellant, Kathleen McCullough, appeals pro se from the order entered
on January 29, 2016, denying relief on her petition filed pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We dismiss the
appeal.
A brief summary of the procedural and factual history of the case
follows. Appellant was convicted of two counts of theft by deception, one
count of unlawful use of computers, and one count of computer trespass.
These convictions stemmed from her employment as a financial controller
with Mackin Engineering and as Chief Financial Officer of Radiance Plastic
Surgery Center during the period of 2006 to 2008. Appellant stole in excess
of $1,100,000.00 from Mackin Engineering, and roughly $140,000.00 from
Radiance Plastic Surgery Center. N.T., 10/16/15, at 58, 65. On August 27,
* Retired Senior Judge assigned to the Superior Court.
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2010, the trial court sentenced Appellant to one to two years’ incarceration
and a concurrent five-year probationary period.
Following her appeal, this Court affirmed the judgment of sentence on
March 9, 2012. The Pennsylvania Supreme Court denied Appellant’s petition
for allowance of appeal on August 1, 2012.
Appellant filed a pro se PCRA petition on April 1, 2013.
Counsel was appointed to represent Appellant in the PCRA proceedings. On
October 4, 2013, however, the trial judge granted counsel’s motion to
withdraw, as well as Appellant’s motion for recusal. The case was
reassigned and, following a hearing pursuant to Commonwealth v.
Grazier, 713 A.2d 81 (Pa. 1998) on October 29, 2013, the PCRA court
permitted Appellant to proceed pro se.
Appellant filed a supplement to her PCRA petition on March 2, 2015.
In total, she raised 146 claims. The PCRA court narrowed the claims to 70,
following a number of Commonwealth motions and a status conference. The
PCRA court also quashed half of the roughly 50 subpoenas served by
Appellant. A PCRA hearing took place on October 16, 23, and 30 of 2015.
From there, the court narrowed Appellant’s remaining 70 claims to two
claims involving ineffective assistance of counsel. It denied Appellant relief
by memorandum order dated January 29, 2016. This timely, pro se, appeal
followed.
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Appellant attempts to incorporate her original 146 claims into this
appeal. She raised an additional 34 “issues” in her initial brief and made a
number of other allegations in her reply brief.
To begin, it is important to note that, “this Court is willing to construe
liberally materials filed by a pro se litigant, [but] pro se status generally
confers no special benefit upon an appellant.” Commonwealth v.
Freeland, 106 A.3d 768, 776 (Pa. Super. 2014) (citation omitted).
Moreover, any brief that significantly deviates from the requirements of the
Pennsylvania Rules of Appellate Procedure may be quashed or dismissed.
Pa.R.A.P. 2101. Appellant’s brief patently disregards the requirements of
Pa.R.A.P. 2111. Her brief contains no discernible argument section; there is
simply an enumerated list of incoherent complaints entitled, “The Appeal
Issues.” Appellant’s Brief at 22.
Additionally, this Court has held that incorporation by reference is an
improper means of appellate advocacy, and renders such claims waived.
Commonwealth v. Briggs, 12 A.3d 291, 342 (Pa. Super. 2011) (citation
omitted). Therefore, even if the rest of her brief complied with the rules of
appellate procedure, Appellant’s first 146 issues are waived.
According to the official note following Pa.R.A.P. 2113, an appellant’s
reply brief “may only address matters raised by appellee and not previously
addressed in appellant’s brief.” Pa.R.A.P. 2113 note. Here, the only
reference to the Commonwealth’s brief made in Appellant’s reply brief is to
say it “was solely prepared to protect the political establishment of Allegheny
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County[.]” Appellant’s Reply Brief at 2. The rest of its contents are in no
way a response to the Commonwealth’s brief.
Furthermore, “it is an appellant’s duty to present arguments that are
sufficiently developed for our review.” Commonwealth v. Hardy, 918 A.2d
766, 771 (Pa. Super. 2007) (citation omitted). It is not the duty of this
Court to develop arguments for an appellant. Id. In the instant case,
Appellant’s briefs are almost entirely devoid of legal argument. Aside from a
few references to the Rules of Professional Conduct and the Pennsylvania
State Ethics Act, Appellant cites absolutely no legal authority. Appellant’s
Brief at 22, 41; Appellant’s Reply Brief at 4. Moreover, she fails to apply the
few laws that she cites to the facts of the case in any meaningful way. A
brief that is devoid of legal rationale is insufficient to permit appellate
review. Commonwealth v. Perez, 93 A.3d 829, 844 (Pa. 2014).
Appellant’s briefs consist entirely of rambling, unsubstantiated, in most
cases ridiculous accusations about each judge, district attorney, and defense
attorney involved in her case.
“In reviewing the denial of PCRA relief, we examine whether the PCRA
court’s determinations are supported by the record and are free of legal
error.” Commonwealth v. Mitchell, 105 A.3d 1257, 1265 (Pa. 2014)
(internal quotation marks and citations omitted). The complete lack of
organization and legal argument in Appellant’s brief makes reviewing the
case for legal error an impossibility.
Appeal dismissed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/30/2017
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