Com. v. Smith, J.

J-S58001-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSEPH CHARLES SMITH,
Appellant No. 1015 WDA 2012
Appeal from the PCRA Order May 29, 2012
in the Court of Common Pleas of Allegheny County
Criminal Division at Nos.: CP-02-CR-0008807-2003;
CP-02-CR-0010345-2004
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED NOVEMBER 21, 2014
Appellant, Joseph Charles Smith, appeals pro se from the order
denying him relief pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541–9546, without a hearing, as without merit. Appellant’s
pro se brief substantially fails to comply with our rules of appellate
procedure. We quash.
We summarize only the facts most relevant to the disposition of this
appeal. On April 30, 2003, four co-conspirators in ski masks kidnapped
David Williams, Lakeenah Fitts, and their infant child. The assailants beat
Williams and demanded $150,000 ransom. There ensued a frantic effort by
Williams and Fitts to obtain sufficient funds from various relatives and
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*
Retired Senior Judge assigned to the Superior Court.
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friends to pay the ransom. The kidnappers drove Williams, Fitts, and their
child around in Williams’ van, as they tried to get the money. One of the
people they tried to get ransom money from was Erica Lunsford, a former
girlfriend of Williams. When the efforts ultimately failed, Williams’ captors
shot and killed him. The kidnappers left Williams, dead or dying, in his van,
alone with his infant daughter.
Around that time, a 911 call reported that two black males wearing ski
masks were seen jumping out of a white van and getting into a blue S-10
Chevy blazer. The police subsequently found the blazer. It had been set on
fire and was severely damaged. The blazer belonged to Appellant.
Ms. Fitts eventually identified Appellant as the driver in the
kidnapping.1 Appellant concedes that he was the owner of the getaway
blazer, and that it was subsequently burnt. (See Appellant’s Brief, at 5).
Appellant first agreed to turn himself in to the police with his lawyer, but fled
instead. He was captured by the fugitive squad a year later.
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1
Ms. Fitts and Ms. Lunsford independently identified Appellant. Both
testified they had seen him briefly remove his mask. Ms. Fitts had initially
identified someone else, John Brazella, as the getaway driver. Police led Ms.
Fitts to Brazella because the vehicle he owned resembled the description of
the getaway van. (See Commonwealth’s Brief, at 14). Appellant was
eventually identified as the owner of the getaway vehicle. Ms. Fitts
identified him as the kidnap driver from a photo array.
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At trial, defense counsel cross-examined Ms. Fitts on her earlier
identification of Brazella and her subsequent identification of Appellant. Ms.
Lunsford also identified Appellant. Appellant testified in his own defense,
denying any involvement in the kidnap or murder. (See N.T. Trial, 2/08/05,
at 487). He admitted ownership of the Chevy blazer (conceding that he did
not have a driver’s license), but claimed it had been stolen on the day of the
kidnapping, shortly before it was burned.
A jury convicted Appellant of murder of the second degree,
kidnapping, burglary, robbery and conspiracy. The trial court imposed the
mandatory sentence of life imprisonment for the murder and a concurrent
term of not less than ten nor more than twenty years’ imprisonment for the
criminal conspiracy conviction.
After Appellant’s direct appeal rights were reinstated nunc pro tunc,
this Court affirmed the judgment of sentence on direct appeal and our
Supreme Court denied allowance of appeal. (See Commonwealth v. J.
Smith, NO. 1915 WDA 2005 (unpublished memorandum) (Pa. Super. filed
March 12, 2008), appeal denied, 990 A.2d 729 (Pa. 2010)).
Appellant filed the instant petition for PCRA relief, on July 2, 2010.
The court appointed counsel, who filed an amended petition. The PCRA
court filed notice of its intent to dismiss on January 31, 2012. While still
represented, Appellant filed objections and a premature pro se notice of
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appeal. The court held a Grazier hearing,2 and found Appellant’s waiver of
counsel to be knowing, voluntary and intelligent; it granted him leave to
represent himself on appeal. The court issued a final order, and Appellant
filed another notice of appeal.3
Appellant raises six questions for our review.4
1. Did PCRA counsel fail to raise a [sic] issue of merit
where trial counsel was ineffective for failing to file a motion to
suppress Lakeenah Fitts[’] identification of Appellant and
protecting his rights under the 6th and 14th amendments to the
U.S. Const [sic] & Art [sic] 1 § 9 of the PA Const [sic]?
2. Did PCRA counsel fail to raise a [sic] issue of merit
where trial counsel was ineffective for failing to object when the
judge sealed five jury questions about the facts of the case
during their premature jury deliberations and protect
Appellant[’]s rights to a fair and impartial jury guaranteed under
the 6th & 14th Amendments to the U.S. Const [sic] and Art [sic]
1 § 9 of the PA Const [sic]?
3. Did PCRA counsel fail to raise a [sic] issue of merit
where trial counsel was ineffective for failing to object to a
faulty, confusing and misleading jury instruction relating to
murder and protect Appellant[’]s 6th & 14th Amendment rights to
the U.S. Const [sic] and Art [sic] 1 § 9 of the PA Const [sic]?
5. Did PCRA counsel fail to raise a [sic] issue of merit
where trial counsel was ineffective for failing to recall alibi
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2
See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
3
Appellant filed three concise statements of error. (See Commonwealth’s
Brief, at 25); see also Pa.R.A.P. 1925(b). The trial court filed a statement
of reasons (dated 2/5/14), on February 11, 2014. See Pa.R.A.P. 1925(a).
4
We reproduce the questions in Appellant’s original order of presentation,
and as manually re-numbered by him.
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witness in surrebuttal and failing to object to the prosecutor[’]s
repeated highlighted references to defendant invoking his rights
under the Fifth and Sixth Amendment to the U.S. Const [sic] and
Art [sic] 1 § 9 of the PA Const [sic]?
4. Did PCRA counsel fail to raise a [sic] issue of merit
where trial counsel was ineffective for failing to request a
Franks hearing to challenge the information provided in the
affidavit of probable cause to arrest and the veracity of the
affiant(s) signed thereto when it was obvious that material facts
were omitted and deliberate falsification of material facts were
present in the affidavit violating his right to the 4th and 6th
Amendment to the U.S. Const [sic] and Art [sic]1 § 9 of the PA
Const [sic]?
6. Did PCRA counsel fail to raise a [sic] issue of merit
where trial counsel was ineffective for failing to object to the
reference of Appellant in nontestifying codefendent[’]s statement
and where the prosecutor unredacted the codefendant[’]s
statement in her closing argument violating his 6th & 14th
Amendment to the U.S. Const [sic]and Art [sic] 1 § 9 of the PA
Const [sic]?
(Appellant’s Brief, at iv).
Our standard and scope of review for the denial of a PCRA petition is
well-settled:
[A]n appellate court reviews the PCRA court’s findings of
fact to determine whether they are supported by the record, and
reviews its conclusions of law to determine whether they are free
from legal error. The scope of review is limited to the findings of
the PCRA court and the evidence of record, viewed in the light
most favorable to the prevailing party at the trial level.
Commonwealth v. Charleston, 94 A.3d 1012, 1018-19 (Pa. Super. 2014)
(citation omitted).
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Preliminarily, on review, we conclude that Appellant’s pro se brief
substantially fails to comply with our rules of appellate procedure.5
Pennsylvania Rule of Appellate Procedure 2135 requires, in pertinent part,
that “[u]nless otherwise prescribed by an appellate court . . . a principal
brief shall not exceed 14,000 words.” Pa.R.A.P. 2135(a)(1). “A principal
brief that does not exceed 30 pages when produced by a word processor or
typewriter shall be deemed to meet the limitations in paragraph (a)(1).”
Pa.R.A.P. 2135(d). However, Appellant’s brief, exclusive of supplementary
materials, exceeds 112 pages, well over three times the maximum page
limit.
The Commonwealth estimates the word count of Appellant’s brief to be
about 28,000 words, or twice the prescribed limit. (See Commonwealth
Petition to Strike Non-Conforming Brief, at 2 ¶ 2). Our independent
calculation produces a result of 50,710 words, well over three and a half
times the maximum word limit. In any event, Appellant provides no
certification that his brief complies with the word count limits. See Pa.R.A.P.
2135(d).
Furthermore, the excessive length of Appellant’s argument is
accompanied by a lack of focus on legal issues or adherence to basic
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5
On July 14, 2014, the Commonwealth filed a petition to strike Appellant’s
non-conforming brief. That petition was deferred to this panel. (See Order,
7/17/14, per curiam).
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standards for argument on appeal. Appellant relies instead on an unduly
rambling, unfocused and often transparently self-serving statement-oriented
narrative. Appellant frequently editorializes or speculates about inferences
or conclusions, and continually assumes facts without reference to the
record.6 This prevents meaningful appellate review.
While Appellant makes occasional efforts to cite to the record or
caselaw presumed to be pertinent, he employs this procedure so
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6
For example, in support of his first argument, Appellant states:
“Fitts[’] overall testimony was highly erratic, unclear and
often contradictory. Due to her prior identification of Brazell
[sic] police chose to employ an unduly suggestive process in
order to influence her to identify [Appellant] during the out-of-
court photo array. Ultimately, due to the improper conduct of
the police, [Appellant’s] due process rights were violated. Perry
v. New Hampshire, 132 S. Ct. 716, [ ] (2012) (“As the United
Sates Supreme Court’s case law makes clear, what triggers the
due process concerns about eyewitness identification testimony
is police use of an unnecessarily suggestive identification
procedure to be suggestive.”) [sic]. (Appellant’s Brief, at 4).
In the sole citation for these assorted claims, Appellant
misquotes Perry, which actually states: “As our case law makes
clear, what triggers due process concerns is police use of an
unnecessarily suggestive identification procedure, whether or not
they intended the arranged procedure to be suggestive.” Perry,
at 721 n.1.
In any event, Appellant misapprehends the import of
Perry, which held “that the Due Process Clause does not require
a preliminary judicial inquiry into the reliability of an eyewitness
identification when the identification was not procured under
unnecessarily suggestive circumstances arranged by law
enforcement.” Id. at 730 (emphasis added). The Supreme
Court affirmed Perry’s conviction. See id.
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inconsistently and erratically that it is generally impossible to ascertain the
basis of his argument or whether there is evidence of record to support it.
This, too, prevents meaningful review.
Appellant’s pro se brief substantially violates other rules as well. For
example, in Appellant’s fourth (manually re-numbered as his fifth) question,
he raises two distinct issues in one question, in violation of Pa.R.A.P. 2116,
and 2119(a).
This court has traditionally been liberal in its review of pro se filings,
and frequently overlooks incidental deviations from procedural requirements
in the interest of justice and judicial economy. See Commonwealth v.
Lyons, 833 A.2d 245, 252 (Pa. Super. 2003), appeal denied, 879 A.2d 782
(Pa. 2005). However, this indulgence has usually been accompanied by a
cautionary note:
As a prefatory matter, although this Court is willing to
construe liberally materials filed by a pro se litigant, pro se
status generally confers no special benefit upon an appellant.
Accordingly, a pro se litigant must comply with the procedural
rules set forth in the Pennsylvania Rules of the Court. This Court
may quash or dismiss an appeal if an appellant fails to conform
with the requirements set forth in the Pennsylvania Rules of
Appellate Procedure.
(Id. at 251-52 (case citation omitted)). “[A]ny 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.” Wilkins v.
Marsico, 903 A.2d 1281, 1285 (Pa. Super. 2006), appeal denied, 918 A.2d
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747 (Pa. 2007) (citing Commonwealth v. Rivera, 685 A.2d 1011[, 1013]
(Pa. Super. 1996)). This Court has also decided:
[F]or all those who may come henceforth in the garb of “in
forma pauperis” or pro se, justice will not be skewed for such
litigants, but, on the contrary, will be meted out even-handedly
to those who exhibit at least a modicum of effort in following the
prescribed rules of conduct in appellate practice.
This is not the case here, and we can decipher no rule of
conscience or law which advises in favor of addressing the merits
of the appellant’s appeal in the face of the procedural
shortcomings pervading his brief to us.
Laird v. Ely & Bernard, 528 A.2d 1379, 1380-81 (Pa. Super. 1987), appeal
denied, 549 A.2d 136 (Pa. 1988). See also Commonwealth v. Spuck, 86
A.3d 870, 877 (Pa. Super. 2014), appeal denied, 99 A.3d 77 (Pa. 2014)
(citing Laird) (finding all issues waived for failure to comply with appellate
briefing rules; appeal quashed).
Furthermore, it is improper for this Court to make an argument for an
appellant, or to scour the record to find evidence to support his argument.
See Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007),
appeal denied, 982 A.2d 509 (Pa. 2009) (deeming unsupported issue
waived).7
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7
See also Commonwealth v. Gray, 608 A.2d 534, 544 n.15 (Pa. Super.
1992):
We cannot stress strongly enough in this case our
displeasure with appellate counsel’s failure to follow our
(Footnote Continued Next Page)
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This Court need not dissipate limited judicial resources in an effort to
convert Appellant’s assorted attacks on the reliability of the witnesses’
identifications, or the purported unreliability of eyewitness identification
evidence in general, into a cognizable claim for collateral relief.
In fact, Appellant’s various challenges to purported inconsistencies in
the testimony─while occasionally framed (but not properly argued) as claims
of ineffectiveness of counsel─are in actuality invitations to this Court to re-
weigh the evidence already considered by the jury. We decline. It was the
province of the jury as fact-finder to weigh the evidence and to accept all,
part or none of it. Finally, on our review, none of Appellant’s other questions
present a cognizable claim for collateral relief.
Appellant substantially disregards our procedural rules. His defective
brief does not enable meaningful review. He presents no proper discernible
claim for collateral relief.
Appeal quashed.
_______________________
(Footnote Continued)
Supreme Court’s appellate rules which require specific reference
to places in the record where facts and legal arguments
pertinent to appellant's claims can be found. . . . [W]e are not
speaking of a small number of cases which would allow us to
scour the records in each case despite an appellate counsel’s
failure to abide by the rules. If litigants freely ignore proper
procedure, what purpose do the rules serve?
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/21/2014
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