Com. v. Rosado, G. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
GERONIMO ROSADO :
:
Appellant : No. 2402 EDA 2019
Appeal from the Judgment of Sentence Entered July 23, 2019
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-SA-0000053-2019
BEFORE: BOWES, J., MURRAY, J., and McLAUGHLIN, J.
MEMORANDUM BY BOWES, J.: FILED APRIL 06, 2020
Geronimo Rosado appeals pro se from his judgment of sentence of a
$500.00 fine, imposed after he was convicted of the summary offense of
driving while under a license suspension.1 After thorough review, we affirm,
finding all issues waived.
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1 Preliminarily, we examined whether Appellant was entitled to counsel in the
proceedings below and on appeal, a question we may raise sua sponte. See
Commonwealth v. Johnson, 158 A.3d 117 (Pa.Super. 2017)
(acknowledging that we will address sua sponte whether an appellant was
entitled to counsel and/or whether that right was properly waived). For a
summary offense, a defendant is entitled to counsel if “there is a reasonable
likelihood of a sentence of imprisonment or probation.” Pa.R.Crim.P. 454.
Appellant was originally charged with driving under suspension, DUI-related,
pursuant to 75 Pa.C.S. § 1543(b)(1), found guilty of that offense by the district
justice, and sentenced to sixty days of imprisonment and a fine. Arguably, he
was entitled to counsel at that proceeding because there was a reasonable
likelihood of a sentence of imprisonment upon a finding of guilty of that
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Appellant was arrested on July 31, 2018, for driving with a suspended
license, DUI-related.2 See Traffic Citation, 7/31/18. Prior to the hearing, the
district justice appointed the Office of the Public Defender to represent
Appellant, and directed Appellant to meet with counsel that afternoon to
secure representation. The record indicates that no counsel entered an
appearance for Appellant. On January 11, 2019, Magisterial District Judge
Bret M. Binder found Appellant guilty of the charged offense, and sentenced
him to sixty days of imprisonment and a $500 fine. See Order Imposing
Sentence, 1/11/19.
On February 6, 2019, Appellant filed a summary appeal to the court of
common pleas. See Summary Appeal Docket. On the day of trial, the court
approved the Commonwealth’s request to amend the charge to driving while
operator’s privilege suspended or revoked pursuant to 75 Pa.C.S. § 1543(a).
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offense. However, Appellant appealed, and on the morning of the summary
appeal trial de novo, the Commonwealth successfully moved to amend the
charge to a violation of § 1543(a), driving while operator’s privilege suspended
or revoked, which carries no penalty of imprisonment. The trial court found
Appellant guilty of that offense and imposed a fine. Based on the charge as
amended, we find that Appellant was not entitled to counsel at trial or in this
appeal.
2 The specific facts giving rise to the charge are unavailable. The proceeding
at the magisterial district court was not recorded, as is generally the
procedure. The certified record does not contain the notes of testimony from
the de novo trial that is the subject of our review because Appellant did not
order the transcript.
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Following the trial de novo on July 23, 2019, the court found Appellant guilty
of the charge as amended, and sentenced him to pay a $500 fine.
Appellant timely appealed to this Court and was ordered by the trial
court to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal. Appellant filed a rambling concise statement comprising sixteen
pages, prompting the trial court to conclude in its September 20, 2019 opinion
that all issues were waived because Appellant did not properly raise them.
See Trial Court Opinion, 9/20/19, at 2.
Appellant filed his brief in this appeal, and the Commonwealth moved to
quash the appeal for two reasons: Appellant did not order the transcript of the
proceedings below and, his Rule 1925(b) concise statement was too vague to
preserve any issues. This Court denied the motion on November 3, 2019,
without prejudice to the Commonwealth to pursue these contentions with the
merits panel.
Appellant presents one issue for our review:
1. Whether the trial court abused its discretion by allowing
malicious prosecution to present a defense under the
provisions of Title 75.1543 (A). Uniform Commercial Driver’s
Act, pursuant (1) Pa.75.Title. 1501(Drivers to Licensed)
without (2). Pa. 75, Title. 1540. (Surrender of Driver's License)
in effect, in subsequent connection to (3).Pa. 75. Title. 1510.
At (e). Use of Identification Card, to deny sui-juris to present
an effective (3). Three prong defense, and pursuant to
Pa.75.Title. 1510 (e). In pertinent part; (( It shall be a defense
to the prosecution under this subsection that the person was
not presented with notice of the provisions of this subsection)).
And following a 1543 (b). Citation that the Commonwealth
failed to state a prima facie case to impose a guilty verdict and
fine of $500 of a 1543(a).?
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Appellant’s brief at 7. Generally, the argument portion of Appellant’s brief
relates to his contention that Title 75, and statutes enacted in the name of
public safety, violate the Fourteenth Amendment right to travel, in effect,
“converting the exercise of a Constitutional Right into a crime.” Appellant’s
brief at 11.
Our standard of review from the judgment of sentence in a summary
case is well settled:
Our standard of review from an appeal of a summary conviction
heard de novo by the trial court is limited to a determination of
whether an error of law has been committed and whether the
findings of fact are supported by competent evidence. The
adjudication of the trial court will not be disturbed on appeal
absent a manifest abuse of discretion.
Commonwealth v. Marizzaldi, 814 A.2d 249, 251 (Pa.Super. 2002)
(internal citations and quotation omitted).
On appeal, the Commonwealth urges this Court to affirm Appellant’s
conviction because he failed to properly raise any issues in his non-conforming
pro se brief. Commonwealth’s brief at 4. The Commonwealth also maintains
that Appellant’s failure to supply the reviewing court with a record of his trial
gives this Court nothing to review. Id.
Preliminarily, we note that Appellant does not indicate where he
preserved below the issue he now raises on appeal, as required by Rule 302.
Issues not raised below are waived on appeal. See Pa.R.A.P. 302(a) (“Issues
not raised in the lower court are waived and cannot be raised for the first time
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on appeal.”). Nor did he identify this precise issue in his sixteen-page Rule
1925(b) concise statement. The closest he came was an allegation that “[t]he
trial court erred when Robert J. Shenkin abused its discretion enforcing Title
75. In contrary to the Constitution which violates inalienable rights.”
Appellant’s Concise Statement of Errors Complained of on Appeal, 9/13/19, at
13. The trial court was unable to ascertain from the latter statement the gist
of Appellant’s claim of error.
We have held that a concise statement that is too vague to allow the
trial court to understand the issues raised on appeal is the functional
equivalent of no concise statement at all and preserves no issues for review.
See Commonwealth v. Dowling, 778 A.2d 683, 686-87 (Pa.Super. 2001).
The purpose of the rule is to “aid trial judges in identifying and focusing upon
those issues which the parties plan to raise on appeal.” Id. at 686. Here,
due to the vague nature of Appellant’s Rule 1925(b) concise statement, the
trial court was unable to provide this Court with any insight as to this issue.
Finally, even if Appellant’s claims were not waived for the foregoing
reasons, his brief does not contain coherent, well-reasoned, argument in
support of his constitutional challenge to Title 75. As the Commonwealth
correctly notes, “[i]t is an appellant’s duty to present arguments that are
sufficiently developed for appellate review.” Commonwealth’s brief at 7
(quoting Commonwealth v. Gould, 912 A.2d 869, 873 (Pa.Super. 2006).
Appellate courts do not act as counsel and develop arguments for an appellant.
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Gould, supra at 873. While we are willing to liberally construe filings of a
pro se litigant, pro se status does not confer any special benefit upon an
appellant. See Commonwealth v. Lyons, 833 A.2d 245, 252 (Pa.Super.
2003). The deficiencies in Appellant’s argument impede meaningful appellate
review.
For all of the foregoing reasons, we find Appellant’s issues waived for
purposes of this appeal.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/6/2020
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