Com. v. Harris, B. ( 2020 )

J-S64020-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRODERICK WAYNE HARRIS :
:
Appellant : No. 461 WDA 2019
Appeal from the Judgment of Sentence Entered June 11, 2015
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0001639-2014
BEFORE: BOWES, J., LAZARUS, J., and PELLEGRINI, J.*
DISSENTING STATEMENT BY BOWES, J.: FILED APRIL 07, 2020
I agree with the Majority that Appellant is not entitled to relief.
However, I believe that Appellant’s weight-of-the-evidence argument is
sufficiently articulated and developed to allow us to resolve it on its merits, as
is evidenced by the Majority’s merits review found in footnote seven. See
Majority Memorandum at 7-8 n.7 (detailing why the trial judge’s denial of
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* Retired Senior Judge assigned to the Superior Court.
J-S64020-19
relief was not an abuse of discretion). I would affirm Appellant’s judgment of
sentence for the reasons articulated in note seven.1
Even if I did agree with the Majority’s finding of waiver based upon
inadequate development of the Appellant’s argument, I would still affirm upon
the waiver finding rather than dismiss the appeal. Compare
Commonwealth v. Cannavo, 199 A.3d 1282, 1289 (Pa.Super. 2018) (While
affirming the judgment of sentence we noted that “[w]e shall not develop an
argument for an appellant, nor shall we scour the record to find evidence to
support an argument; instead, we will deem the issue to be waived.” (cleaned
up)); with Commonwealth v. Drew, 510 A.2d 1244, 1245 (Pa.Super. 1986)
(quashing appeal pursuant to Pa.R.A.P. 2101 where the appellant’s brief was
“in almost total noncompliance with the rules related to form and content
of appellate brief”) (emphasis added). See also Kern v. Kern, 892 A.2d 1,
6 (Pa.Super. 2005) (providing dismissal pursuant to Rule 2101 is appropriate
“only where the failure to conform to the Rules results in the inability of this
Court to discern the issues argued on appeal”). Since we are able to discern
the issues argued on appeal, dismissal is not the appropriate disposition.
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1 Furthermore, given our Supreme Court’s holding in Commonwealth v.
Reed, 971 A.2d 1216, 1220 (Pa. 2009), that alternative holdings become the
law of the case, I believe this Court should decline to opine as to merits of an
argument that it deems severely deficiently developed so as not to impact the
criminal defendant’s ability to seek post-conviction relief based upon
ineffective assistance of counsel. See, e.g., Commonwealth v. Aikens, 990
A.2d 1181, 1184 (Pa.Super. 2010) (applying Reed to hold that truncated
merits review of waived issue on direct appeal precluded PCRA relief on claim
that counsel was ineffective in failing to preserve issue).
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Accordingly, I respectfully dissent.
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