Com. v. Brown, N. ( 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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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
Appellee :
:
v. :
:
NOEL L. BROWN, :
:
Appellant : No. 2388 EDA 2019
Appeal from the PCRA Order Entered July 1, 2019
in the Court of Common Pleas of Wayne County
Criminal Division at No(s): CP-64-CR-0000258-2016
BEFORE: NICHOLS, J., KING, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 24, 2020
Noel L. Brown (Appellant) appeals pro se from the July 1, 2019 order
dismissing his petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. Upon review, we dismiss this appeal
based on Appellant’s deficient brief.
A prior panel of this Court provided the following background.
[O]n June 29, 2016, A.C., the fifteen-year-old victim in
this case, was reported as a runaway. A.C. had answered an
online advertisement seeking escorts and strippers. On that
day, A.C. left her mother’s house with Appellant. By tracking
A.C.’s cellular telephone, Pennsylvania State Police were able to
locate A.C. at a local motel. When the police arrived, they
noticed that A.C. appeared intoxicated; A.C. stated that
Appellant had given her vodka. The troopers transported A.C. to
the State Police barracks and questioned her regarding the
events of the prior evening. A.C. told the troopers that she had
answered an online advertisement for escorts, and Appellant
picked her up and drove her to the motel. At the motel,
Appellant provided A.C. with liquor and A.C. fell asleep. Police
discovered that after A.C. fell asleep, Appellant undressed A.C.,
*Retired Senior Judge assigned to the Superior Court.
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exposed her breasts, took a photograph of the minor’s breasts,
and placed the photograph online in an effort to utilize A.C. as a
prostitute. Police also recovered a document signed by A.C.
wherein she agreed to work for Appellant, and Appellant would
act as her pimp.
Police arrested Appellant and charged him with numerous
crimes in connection with the aforementioned events. [Prior to
trial, Appellant indicated that he wanted to proceed pro se.
Accordingly], there was a colloquy consistent with
Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998), and 1
a thorough discussion of the factors outlined in Pa.R.Crim.P.
121(A)(2) concerning pro se representation. … The trial court
ultimately permitted Appellant to proceed pro se, but the trial
court appointed standby counsel. Following a jury trial,
Appellant was found guilty of interference with custody of
children, dissemination of photos of child sex acts, corruption of
minors, furnishing liquor to minors, and trafficking in minors.
______
1 In []Grazier, [] the Supreme Court of Pennsylvania held
that when a defendant wishes to waive counsel, an on-the-
record determination should be made that said waiver is
knowing, intelligent, and voluntary.
On February 3, 2017, the trial court sentenced Appellant to
an aggregate term of 180 to 384 months of incarceration.
Appellant filed post[-]sentence motions that were denied, and on
February 9, 2017, Appellant filed a timely appeal. Throughout
the proceedings Appellant remained pro se.
Commonwealth v. Brown, 179 A.3d 590 (Pa. Super. 2017) (unpublished
memorandum at 2-3) (citations to the record and some footnotes omitted).
On direct appeal to this Court, we were “constrained to conclude that
none of the issues [raised by Appellant was] supported by cogent legal
argument or citation to relevant authority; rather, Appellant’s argument
[was] a nonsensical invective on the proceedings in the trial court.” Id.
(unpublished memorandum at 4). Accordingly, due to the “overwhelming
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deficiencies in Appellant’s brief,” this Court concluded that Appellant had
waived all issues on appeal and affirmed his judgment of sentence. Id.
(unpublished memorandum at 4-5). Appellant untimely filed petitions for
allowance of appeal to our Supreme Court, which were denied.
On October 25, 2018, Appellant timely filed the instant PCRA petition.
Counsel was appointed and, following investigation of Appellant’s numerous
claims, counsel filed a no-merit letter and motion to withdraw pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On May 1, 2019, the
PCRA court issued notice of its intent to dismiss Appellant’s petition without
a hearing pursuant to Pa.R.Crim.P. 907, and granted counsel’s motion to
withdraw. Appellant pro se filed a response, and the PCRA court dismissed
Appellant’s PCRA petition on July 1, 2019. Appellant filed a motion for
reconsideration, which the PCRA court denied on July 17, 2019. Appellant
pro se filed the instant notice of appeal on August 16, 2019.1
As a preliminary matter, we must determine whether we have
jurisdiction to entertain this appeal. A notice of appeal shall be filed within
1 On September 13, 2019, this Court issued a rule to show cause as to why
the appeal should not be quashed as interlocutory. In his pro se response,
Appellant stated that he was appealing from the July 1, 2019 dismissal of his
PCRA petition. See Appellant[’s] Show of Cause for Granting Appeal of
PCRA Petition, 9/23/2019. Accordingly, this Court discharged the rule to
show cause and deferred consideration to this panel. We are satisfied that
this appeal is not interlocutory and need not address this issue further.
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30 days after the entry of the order from which the appeal is taken.
Pa.R.A.P. 903(a).
The timeliness of an appeal and compliance with the statutory
provisions granting the right to appeal implicate an appellate
court’s jurisdiction and its competency to act. Absent
extraordinary circumstances, an appellate court lacks the power
to enlarge or extend the time provided by statute for taking an
appeal. See Pa.R.A.P. 105. Thus, an appellant’s failure to
appeal timely an order generally divests the appellate court of its
jurisdiction to hear the appeal.
Commonwealth v. Williams, 106 A.3d 583, 587 (Pa. 2014) (some internal
citations omitted). “[T]he prisoner mailbox rule provides that a pro se
prisoner’s document is deemed filed on the date he delivers it to prison
authorities for mailing.” Commonwealth v. DiClaudio, 210 A.3d 1070,
1074 (Pa. Super. 2019).
Instantly, for Appellant’s notice of appeal to be considered timely, he
had to file it within 30 days of the July 1, 2019 order dismissing his PCRA
petition, namely by July 31, 2019. As such, Appellant’s August 16, 2019
notice of appeal is facially untimely.
On October 1, 2019, this Court issued a rule to show cause as to why
the instant appeal should not be quashed as untimely filed. In his pro se
response, Appellant alleged that he timely filed a notice of appeal
immediately after the PCRA court denied his motion for reconsideration.
Appellant further averred that he filed a second notice of appeal, the August
notice of appeal that was received by this Court, when he did not receive a
response from the PCRA court. See Appellant[’]s Show of Cause in Favor of
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Appeal, 10/9/2019. According to Appellant, he believed that “the second
copy of his notice of appeal ha[d superseded] the first, or the first notice of
appeal was some[]how disc[a]rded.” Id. at 1 (unnumbered).
This Court ordered Appellant to file proof of the date that Appellant
mailed the first notice of appeal. Per Curiam Order, 10/11/2019. In
response, Appellant submitted copies of two postage cash slips to support
his contention that he filed the first notice of appeal on July 23, 2019, and
the second notice of appeal on August 13, 2019. Letter from Appellant,
10/21/2019 (Exhibits 1 & 2). The July postage cash slip is hand-dated “07-
22-19,” but the date stamp of when it was received is illegible. See id.
(Exhibit 1). This Court discharged the rule to show cause and referred the
issue to this panel.
Upon review, this Court is unable to verify an exact date of when the
postage cash slip in Exhibit 1 was received. Nonetheless, we are able to
conclude from the faint outline of “JUL” that it was received in July. Because
Appellant’s notice of appeal had to have been filed by July 31, 2019, the last
day in July, in order to be considered timely, we are satisfied that this notice
of appeal mailed in the month of July was timely filed. Insofar as the July
notice of appeal failed to reach this Court, we deem this a breakdown in the
operation of the courts and accept Appellant’s August 2019 notice of appeal
as if timely-filed. See Commonwealth v. Williams, 151 A.3d 621, 624
(Pa. Super. 2016).
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Before reaching the merits of any purportedly-raised claims, however,
we observe that “[a]ppellate briefs must conform materially to the
requirements of the Pennsylvania Rules of Appellate Procedure, and this
Court may [] dismiss an appeal if the defect in the brief is substantial.”
Commonwealth v. Tchirkow, 160 A.3d 798, 804 (Pa. Super. 2017)
(citation omitted). “Although this Court is willing to construe liberally
materials filed by a pro se litigant, a pro se appellant enjoys no special
benefit. Accordingly, pro se litigants must comply with the procedural rules
set forth in the Pennsylvania Rules of the Court.” Id. (citation omitted).
[I]t is an appellant’s duty to present arguments that are
sufficiently developed for our review. The brief must support the
claims with pertinent discussion, with references to the record
and with citations to legal authorities. This Court will not act as
counsel and will not develop arguments on behalf of an
appellant. If a deficient brief hinders this Court’s ability to
address any issue on review, we shall consider the issue waived.
Commonwealth v. Adams-Smith, 209 A.3d 1011, 1018 (Pa. Super. 2019)
(citations and quotation marks omitted).
Instantly, Appellant fails to comply with multiple rules of appellate
procedure. Compare generally Appellant’s Brief with Pa.R.A.P. Chapter 21
(relating to briefs and reproduced records); see also Pa.R.A.P. 2111
(requiring appellant’s brief to contain, inter alia, a separate and distinct
statement of jurisdiction; order in question; statement of scope and
standard of review; statement of questions involved; statement of the case;
summary of the argument; argument; and conclusion with relief sought);
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Pa.R.A.P. 2116 (requiring a statement of questions involved that states
concisely the issues to be resolved); Pa.R.A.P. 2119 (requiring the argument
section to be divided into as many parts as there are questions to be
argued). Moreover, Appellant has failed to develop any issue in any
meaningful fashion capable of review. Accordingly, we dismiss this appeal.
Appeal dismissed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/24/2020
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