Com. v. Kupersmit, H.

J-A06027-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
HAROLD KUPERSMIT
Appellant No. 1475 EDA 2014
Appeal from the Order Entered April 8, 2014
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0007095-2013
BEFORE: PANELLA, J., OTT, J., and JENKINS, J.
MEMORANDUM BY OTT, J.: FILED FEBRUARY 19, 2015
Harold Kupersmit appeals pro se from the order entered April 8, 2014,
in the Court of Common Pleas of Bucks County, which denied his motion for
writ of habeas corpus. Because meaningful appellate review is precluded by
Kupersmit’s defective brief, we quash the appeal.
The trial court set forth the factual and procedural background as
follows:
On September 5, 2013 at approximately 4:30 p.m.,
[Kupersmit] telephoned Pennsylvania District Court 07-1-12, in
which Magisterial District Judge Joseph Falcone sits, identified
himself to court staff member Kathleen Riccio, and stated that
“[his upcoming preliminary hearing] is going to be explosive with
lots of guns, and they better have lots of security the day of the
hearing.” (Affidavit of Probable Cause, September 11, 2013
(“Aff.”)). Thereafter, on September 9, 2013 he informed court
staff member Susan Wagner that “The judge better recuse
himself from the proceedings on the 25th on this month
pertaining to the casino. GOT IT?” (Aff.) Although [Kupersmit]
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did not identify himself on this specific occasion, Ms. Wagner is
familiar with [Kupersmit]’s voice due to prior communications.
(Aff.) According to the Affidavit of Probable Cause, [Kupersmit]
also sent numerous letters to the court accusing Judge Falcone
of “not doing his duty as a judge” and [Kupersmit] has “been
investigated on prior occasions for threatening public officials.”
(Aff.)
On September 11, 2013, [Kupersmit] was charged with
Terroristic Threats1 and Harassment.2 On October 23, 2013 at
[Kupersmit]’s preliminary hearing, the summary charge of
Defiant Trespass3 was added to the complaint.4 [Kupersmit]
waived his preliminary hearing and the case was transferred to
this Court.
[Kupersmit] entered into an open guilty plea to all charges
on January 7, 2014.5 On March 10, 2014 he was sentenced to
not less than two (2) months nor more than twenty-three (23)
months’ incarceration on Terroristic Threats with a two (2) year
period of probation to be served consecutive to his parole. We
ordered that he immediately be screened for house arrest and
work release.
[Kupersmit] filed a “Motion for Writ of Habeas Corpus” on
March 19, 2014.6 In this Motion, [Kupersmit] challenges the fact
that he was denied house arrest and claimed that, due to a
medical condition for which he required immediate surgery, he
was essentially given a “death sentence by the Court.”
However, we later granted [Kupersmit]’s Motion for Medical
Furlough to take care of this medical issue on April 8, 2014. On
this same date, we denied [Kupersmit]’s Motion for Writ of
Habeas Corpus.
1
18 Pa.C.S. § 2706(a)(1).
2
18 Pa.C.S. § 2709(a)(3).
3
18 Pa.C.S. § 3503(b)(1)(i).
4
The Defiant Trespass charged stemmed from
[Kupersmit]’s trespass of Parx Casino in Bensalem, Bucks
County, PA. This underlying offense was the basis for
[Kupersmit]’s threatening telephone calls to Magisterial
District Judge Falcone’s staff. Based on said threats, the
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charge was transferred to a different Bucks County district
court and thereafter added to this complaint at the
preliminary hearing.
5
We questioned [Kupersmit] extensively about his desire
to proceed pro se. As we recall, he insisted that he was
capable of presenting his issues himself. We were careful
to inform him of his rights as well as instruct him that he
would be held to the same standard as a lawyer and would
be expected to comport himself with dignity in court.
6
For the sake of brevity, we will not list in detail the
volume of indecipherable and seemingly irrelevant letters
and other filings of [Kupersmit] in connection with this
case, all of which are contained in his Clerk of Courts file.
[Kupersmit] filed a Notice of Appeal to the Superior Court on
April 16, 2014.7
7
[Kupersmit] has yet to serve us with his Notice of
Appeal. We did not become aware of [Kupersmit]’s appeal
until we received the docketing statement from the
Pennsylvania Superior Court on May 21, 2014. Pursuant
to the Pennsylvania Rules of Appellate Procedure
(“Pa.R.A.P.”), an appellant is required to “serve copies [of
the notice of Appeal pursuant to Pa.R.A.P. 905], and of any
order for transcript, and copies of proof of service showing
compliance with the rule, upon: the judge of the court
below, whether or not the reasons for the order appealed
from already appear of record. Pa.R.A.P. 906(a)(2).
Trial Court Opinion, 7/16/2014, at 1-3.
Before we may address the merits of the appeal, we note that
appellate briefs must substantially conform to the briefing requirements set
forth in the Pennsylvania Rules of Appellate Procedure. See Pa.R.A.P.
Chapter 21. “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.” Commonwealth v. Adams, 882 A.2d 496, 497 (Pa.
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Super. 2005). Furthermore, it merits mention that Kupersmit’s pro se status
does not excuse his failure to comply with the rules of appellate practice.
Commonwealth v. Lyons, 833 A.2d 245, 252 (Pa. Super. 2003), appeal
denied, 879 A.2d 782 (Pa. 2005); see also Adams, 882 A.2d at 498(“Although this Court is willing to liberally construe materials filed by a pro
se litigant, pro se status confers no special benefit upon the appellant.”).
The Pennsylvania Rules of Appellate Procedure set forth the following
requirements regarding the content of an appellant’s brief:
Rule 2111. Brief of 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) Statements 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 a sentence, if applicable.
(8) Argument for appellant.
(9) A short conclusion stating the precise relief sought.
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(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 requiring a
statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b) was entered.
Pa.R.A.P. 2111(a)(1-11) (emphasis added). “Additionally, Rules 2114
through 2119 specify in greater detail the material to be included in briefs on
appeal. See Pa.R.A.P. 2114-2119.” Adams, 882 A.2d at 498.
Turning to the present matter, Kupersmit’s failure to adhere to Rules
2101-2119 is extensive. Indeed, his brief lacks the statement of jurisdiction,
the order in question; statement of both the scope of review and the
standard of review; summary of the argument; argument for appellant; and
a copy of the statement of errors complained of on appeal, all in
contravention of Rule 2111(a).
Moreover, Kupersmit’s statement of the case contains rambling
references to “the Fitzpatrick Affair,” bankruptcy, trial counsel’s failure to
“protect [Kupersmit]’s interests,” “the Casey Affair,” “treatment that the
‘grandkids’ are receiving as public policy,” and the district attorney’s concern
only “with his conviction rate; not equity, justice or fairness.” Kupersmit’s
Brief at 1-3. Likewise, his “issues to be presented for review” include the
following: (1) “regulatory capture;” (2) “PARX’s ability to issue arrest
warrants;” (3) violations committed by the Bucks County District Attorney,
Department of Corrections, and the Criminal Division of the Bucks County
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Court of Common Pleas; (4) ineffective assistance of counsel; (5) pro se
rights; (6) “subpoena power;” (7) “transcript power;” (8) probation; and (9)
“gag order.” Id. at 3-4.
Most notably, there is no argument section in the appellate brief
besides what we observe as Kupersmit’s bald assertions in his “issues to be
presented for review” section. He does not cite authority, make reference to
the record, give a synopsis of the evidence, or state where he preserved
these issues. See Pa.R.A.P. 2119(b-e). As such, we are confounded as to
what errors he claims the trial court committed based on the lack of any
cogent legal argument.
While we recognize that Kupersmit is acting pro se, we emphasize that
his status as a pro se litigant does not relieve him of his responsibility to
conform to the applicable rules. Accordingly, because there are substantial
defects in Kupersmit’s brief that preclude us from conducting a meaningful
judicial review of his purported issues, we are compelled to quash this
appeal. See, e.g., Branch Banking & Trust v. Gesiorski, 904 A.2d 939(Pa. Super. 2006) (appeal quashed because of deficiencies in the appellant’s
pro se brief that prohibited the court from discerning what issues the
appellants wished to raise or the arguments they wanted to present to the
appellate court); Smathers v. Smathers, 670 A.2d 1159 (Pa. Super. 1996)
(appeal quashed where the pro se brief violated Rule 2111 because it did not
contain a statement of jurisdiction, reference to the order in question,
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statement of questions involved, or summary of argument, and brief
contained no organized and developed arguments, and even a liberal
construction of the brief based on appellant’s pro se status did not remedy
the brief’s shortfalls); Commonwealth v. Maris, 629 A.2d 1014 (Pa. Super.
1993) (appeal quashed because brief violated the rules of appellate
procedure to a degree that precluded the court from conducting a
meaningful review of appellant’s claims).1
Appeal quashed. Oral argument in this matter scheduled for February
25, 2015 is CANCELLED.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/19/2015
____________________________________________
1
Furthermore, we note that even if Kupersmit’s brief was not defective, he
would have waived all issues on appeal for failing to serve a copy of his
Pa.R.A.P. 1925(b) concise statement on the trial judge, as required by
Pa.R.A.P. 1925(b)(1). See Trial Court Opinion, 7/16/2014, at 3 n.8; see
also Commonwealth v. Schofield, 888 A.2d 771 (Pa. 2005) (holding that
the failure to serve the trial judge with a concise statement results in waiver
of all issues on appeal).
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