Com. v. Fleegle, D.

J-S31005-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
DESIREE JEAN FLEEGLE
Appellant No. 434 WDA 2016
Appeal from the Judgment of Sentence February 18, 2016
In the Court of Common Pleas of Somerset County
Criminal Division at No(s): CP-56-SA-0000002-2015
BEFORE: PANELLA, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY PANELLA, J. FILED JUNE 27, 2017
Appellant, Desiree Jean Fleegle, appeals pro se from the judgment of
sentence entered in the Somerset County Court of Common Pleas, following
her convictions on several summary offenses.1 We affirm.
The trial court recounted the facts of this case as follows:
At approximately 12:50 a.m. on June 23, 2014, Officer Scott
Zelek (“Officer Zelek”) of the Somerset Borough Police
Department was on routine patrol in Somerset Borough,
Pennsylvania. Officer Zelek ran the registration of the vehicle
stopped at the traffic light at Plank Road and East Main Street.
The vehicle was registered under [Appellant’s] name.
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1
Appellant purports to appeal from an order entered on March 14, 2016. A
detailed examination of the record finds that no such order exists. We
believe Appellant intended to appeal from the judgment of sentence entered
on February 18, 2016, and we address her issues accordingly.
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[Appellant’s] name “stuck out” to Officer Zelek, but he could not
specifically identify the reason her name “stuck out” to him.
As he followed the vehicle westbound on Main Street, Officer
Zelek entered [Appellant’s] name into the J-NET computer
system in his car. Simultaneously, the vehicle pulled into the
Sheetz on East Main Street and parked at the fuel pumps. A
female occupant of the vehicle exited the driver’s side of the
vehicle and began to pump gasoline into the vehicle. Officer
Zelek pulled into an adjacent parking lot. Shortly thereafter,
Officer Zelek received the results of the J-NET search, which
indicated that [Appellant’s] driver’s license was suspended, DUI-
related. [Officer] Zelek observed that there were “consistencies
in appearance, general appearance between the driver’s photo
on [his] computer and what [he] was able to view.”
Officer Zelek approached [Appellant] and asked her for her
driver’s license, registration and insurance. [Appellant]
responded, “You know I don’t have a license.” While he was
speaking to [Appellant], Officer Zelek observed a “plastic Solo-
type cup” in the center console cup holder of [Appellant’s]
vehicle. The cup contained a dark-colored liquid and solid ice
cubes. Officer Zelek asked [Appellant] about the beverage, and
[Appellant] explained that the beverage was “Jack and Coke.”
Officer Zelek retrieved the beverage and, upon examination,
found it to exhibit the odor of an alcoholic beverage and to
possess characteristics consistent with a “Jack and Coke.”
Officer Zelek also obtained a certified driving record from the
Pennsylvania Department of Transportation that indicates that
[Appellant’s] license was suspended in relation to a DUI.
[Appellant’s] certified driving record specifically indicates that
[Appellant] was mailed official notice of her suspension and that,
following this official mailing, the Department of Transportation
received an affidavit from [Appellant]. [Appellant’s] certified
driving record does not indicate that [Appellant’s] operating
privileges were ever restored.
Trial Court Opinion, filed 5/27/16, at 2-4.
Procedurally, Appellant was charged with the summary offenses of
driving without a license, driving while operating privilege is suspended or
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revoked, and restrictions on alcoholic beverages.2 After Appellant received
several continuances, she proceeded to trial before the magisterial district
court. The court found Appellant guilty of all charges, and she appealed to
the Court of Common Pleas of Somerset County.
After Appellant received four additional continuances and was denied a
fifth, she proceeded to a summary appeal hearing. Appellant’s counsel made
a motion to suppress the evidence against Appellant during the hearing, but
was unsuccessful. The trial court found Appellant guilty of all the above-
listed offenses, and sentenced her to sixty to ninety days’ incarceration, plus
costs and fines. This timely appeal followed.3
Preliminarily, “[i]f an appellant fails to file his designation of
reproduced record, brief or any required reproduced record within the time
prescribed by these rules, or within the time as extended, an appellee may
move for dismissal of the matter.” Pa.R.A.P. 2188. Instantly, the
Commonwealth moved for the dismissal of this appeal based on Appellant’s
failure to timely file her brief. We have previously held that dismissal
pursuant to Pa.R.A.P. 2188 is a matter of this Court’s discretion. See
Commonwealth v. Sohnleitner, 884 A.2d 307, 312 (Pa. Super. 2005).
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2
75 Pa.C.S.A. §§ 1501(a); 1543(b)(1); and 3809(a), respectively.
3
This Court previously issued an order dismissing Appellant’s appeal due to
her failure to file a brief. We later reinstated Appellant’s appeal, and granted
a 90-day extension to file her brief. Nevertheless, Appellant failed to timely
file her brief.
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Notably, the Commonwealth did not claim any prejudice resulted from
Appellant’s untimely filing.
While we decline to dismiss, in this instance, Appellant’s appeal on
timeliness grounds, the brief itself raises independent cause for concern. The
Pennsylvania Rules of Appellate Procedure provide the following guidelines
regarding the content of an appellant’s brief:
Rule 2111. Brief of the Appellant
(a) General Rule. The brief of the appellant, except as
otherwise prescribed by these rules, shall consist of the following
matters, separately and distinctly entitled and in the following
order:
(1) Statement of jurisdiction.
(2) Order or other determination in question.
(3) Statement of both the scope of review and the
standard of review.
(4) Statement of the questions involved.
(5) Statement of the case.
(6) Summary of argument.
(7) Statement of the reasons to allow an appeal to
challenge the discretionary aspects of sentence, if
applicable.
(8) Argument for appellant.
(9) A short conclusion stating the precise relief sought.
(10) The opinions and pleadings specified in Subdivisions
(b) and (c) of this rule.
(11) In the Superior Court, a copy of the statement of
errors complained of on appeal, filed with the trial court
pursuant to Rule 1925(b), or an averment that no order
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requiring a statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b) was entered.
(b) Opinions below.—There shall be appended to the brief a
copy of any opinions delivered by any court or other government
unit below relating to the order or other determination under
review, if pertinent to the questions involved. If an opinion has
been reported, that fact and the appropriate citation shall also
be set forth.
Pa.R.A.P. 2111.
“This Court may quash or dismiss an appeal if the appellant fails to
conform to the requirements set forth in the Pennsylvania Rules of Appellate
Procedure.” In re Ullman, 995 A.2d 1207, 1211 (Pa. Super. 2010)
(citations omitted). While this Court is willing to liberally construe materials
filed by a pro se litigant, an appellant is not entitled to any particular
advantage due to a lack of legal training. See Commonwealth v. Rivera,
685 A.2d 1011, 1013 (Pa. Super. 1996) (citation omitted). “To the contrary,
any person choosing to represent himself in a legal proceeding must, to a
reasonable extent, assume that his lack of expertise and legal training will
be his undoing.” Commonwealth v. Adams, 882 A.2d 496, 498 (Pa. Super.
2005) (citation omitted).
Appellant’s brief is a lengthy, unbound sheaf of papers written in
unedited, stream-of-consciousness prose, which fails to clearly present
issues for our review. To the extent we are able to discern separate
arguments Appellant makes, we will address these.
We note Appellant attempts to challenge her counsel’s ineffectiveness
at the summary appeal hearing. That argument is not properly before us,
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and thus we decline to address it. See Commonwealth v. Grant, 813 A.2d
726, 735 (Pa. 2002) (holding that, generally, claims of ineffective assistance
should be addressed during collateral review rather than on direct appeal).
Appellant also challenges the reasonableness of the traffic stop, and,
by extension, the trial court’s denial of her suppression motion. She
contends Officer Zelek lacked reasonable suspicion or probable cause to
detain her. However, Appellant mischaracterizes the encounter.
Our standard of review in addressing a challenge to a trial
court’s denial of a suppression motion is whether the factual
findings are supported by the record and whether the legal
conclusions drawn from those facts are correct. When reviewing
the ruling of the suppression court, we must consider only the
evidence of the prosecution and so much of the evidence of the
defense as remains uncontradicted when read in the context of
the record as a whole. Where the record supports the findings of
the suppression court, we are bound by those facts and may
reverse only if the legal conclusions drawn therefrom are in
error.
Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citation
omitted).
Interactions between law enforcement and citizens fall into one of
three following categories.
The first of these is a “mere encounter” (or request for
information) which need not be supported by any level of
suspicion, but carries no official compulsion to stop or respond.
The second, an “investigative detention” must be supported by
reasonable suspicion; it subjects a suspect to a stop and a period
of detention, but does not involve such coercive conditions as to
constitute the functional equivalent of an arrest. Finally, an
arrest or “custodial detention” must be supported by probable
cause.
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Commonwealth v. Fleet, 114 A.3d 840, 845 (Pa. Super. 2015) (citation
omitted).
“The reasonableness of a government intrusion varies with the degree
of privacy legitimately expected and the nature of the governmental
intrusion.” Id. at 844 (citation omitted). The Pennsylvania Supreme Court
has held that a request for identification does not itself escalate an
interaction between the police and citizens from a mere encounter to an
investigative detention. See Commonwealth v. Au, 42 A.3d 1002, 1007
(Pa. 2012).
Instantly, we agree with the trial court’s assessment of the
interaction—that Officer Zelek’s actions constituted a mere encounter.
Appellant drove her car into a gas station parking lot and began fueling her
vehicle. See N.T. Summary Appeal Hearing, 2/18/16, at 8. The officer
approached Appellant’s vehicle on the passenger side and requested her
identification. Id. at 9. Appellant then stated, “You know I don’t have a
license.” Id. With that, Appellant admitted to the offense of driving without a
license and was no longer free to leave. Thus, we find the trial court
correctly determined that an initial investigative detention did not occur, and
the evidence of Officer Zelek’s encounter with Appellant was properly
admitted. Appellant’s challenge to the reasonableness of the encounter
merits no relief.
Appellant raises several additional issues in her brief. However,
Appellant failed to preserve those issues in her concise statement of errors
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complained of on appeal pursuant to Pa.R.A.P. 1925(b). Consequently, we
will not address them on appeal. See Commonwealth v. Hill, 16 A.3d 484,
494 (Pa. 2011) (“[A]ny issues not raised in a Rule 1925(b) statement will be
deemed waived[.]”) Accordingly, we find Appellant is due no relief on her
claims, and we affirm the trial court’s judgment of sentence.
Judgment of sentence affirmed. Motion denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/27/2017
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