Com. v. Herder, M. ( 2016 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
MICHAEL HERDER, : No. 3235 EDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, October 5, 2015,
in the Court of Common Pleas of Bucks County
Criminal Division at Nos. CP-09-CR-0003425-2014,
CP-09-CR-0005123-2014, CP-09-CR-0005283-2015
BEFORE: FORD ELLIOTT, P.J.E., OLSON AND JENKINS, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 05, 2016
Michael Herder appeals, pro se, from the judgment of sentence of
October 5, 2015, following his conviction of two counts of theft by unlawful
taking and one count each of receiving stolen property, possession of drug
paraphernalia, and harassment. We quash.
On October 5, 2015, appellant entered negotiated pleas of
nolo contendere to the above charges.1 Additional charges were
nolle prossed. The trial court accepted the pleas, following a thorough and
probing plea colloquy, and imposed the agreed-upon aggregate sentence of
time served to 12 months’ imprisonment, with immediate parole. On
1
Appellant waived his right to counsel following a full waiver-of-counsel
colloquy. The trial court did appoint stand-by counsel in the event appellant
proceeded to trial.
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October 13, 2015, appellant filed a notice of appeal. Appellant was ordered
to file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b), and complied on November 24, 2015. On December 14,
2015, the trial court issued a Rule 1925(a) opinion, finding all issues waived
for failure to file a specific statement: “What Appellant provides is a laundry
list of boilerplate catchphrase arguments, which provide no detail as to any
potential issues with respect to the proceeding that resulted in his
nolo contendere pleas.” (Trial court opinion, 12/14/15 at 9.)
On February 8, 2016, the Commonwealth filed a motion to quash the
instant appeal, arguing that appellant’s brief fails to substantially conform to
the Rules of Appellate Procedure. The Commonwealth pointed out,
inter alia, that appellant’s brief is not divided into separate sections as
required by the rules, and does not contain a statement of jurisdiction,
statement of the scope and standard of review, statement of questions
involved, or statement of the case. Moreover, appellant fails to develop any
legal argument with citations to relevant legal authority and appropriate
references to the record. Appellant’s brief is three pages long and consists
of bald allegations, e.g., that police falsified reports, the Commonwealth
failed to meet its burden of proof, the preliminary hearing did not take place
within the time prescribed by the rules, the affidavit of probable cause was
unsigned, and “newly discovered evidence.” None of these claims are
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supported by analysis or citation to relevant legal authority. Furthermore,
they are all waived since appellant entered pleas of nolo contendere.2
In his answer to the motion to quash, appellant complained that he is
incompetent and attended special education classes. However, apparently
the trial court deemed him competent enough to waive counsel and enter a
valid plea. There is no indication that appellant raised the issue of his
alleged lack of competence in the trial court.
The motion to quash was denied on February 29, 2016, without
prejudice to the Commonwealth’s right to again raise the issues presented
by the motion before the merits panel. In its brief on appeal, the
Commonwealth again argues that the appeal should be quashed for
appellant’s total failure to comply with the appellate rules, including his
failure to provide any argument whatsoever regarding his claims.
(Commonwealth’s brief at 9-11.)
Even with the most generous allowances for pro se drafting, we are
compelled to quash the appeal. See Commonwealth v. Drew, 510 A.2d
1244, 1245-1246 (Pa.Super. 1986) (quashing the appeal where the total
inadequacy of the appellant’s brief prevented us from ascertaining whether
2
“A plea of nolo contendere should be treated the same as a guilty plea in
terms of its effect upon a particular case.” Commonwealth v. Thomas,
506 A.2d 420, 422 (Pa.Super. 1986) (citations omitted). “A plea of guilty
constitutes a waiver of all nonjurisdictional defects and defenses. When a
defendant pleads guilty, he waives the right to challenge anything but the
legality of his sentence and the validity of his plea.” Commonwealth v.
Montgomery, 401 A.2d 318, 319 (Pa. 1979) (citations omitted).
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there was any possible merit to his appeal; noting that, “we have not
hesitated to quash appeals for substantial noncompliance with these
requirements”) (collecting cases); Commonwealth v. Jones, 477 A.2d 882(Pa.Super. 1984) (appeal of order denying PCRA relief properly quashed
where brief ignored and seriously undermined the Rules of Appellate
Procedure); see generally Pa.R.A.P. 2101 (briefs shall conform with the
requirements set forth in the Rules of Appellate Procedure, or appeal may be
quashed). While we recognize that appellant is a pro se litigant, it does not
excuse his failure to comply with the Rules. See, e.g., Commonwealth v.
Maris, 629 A.2d 1014, 1017 n.1 (Pa.Super. 1993).3
Appeal quashed. Motion to quash denied as moot.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/5/2016
3
Furthermore, we agree with the trial court that appellant’s Rule 1925(b)
statement was fatally defective, and we could affirm on that basis as well.
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