Com. v. Birk, W.

J-S30039-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WILLIAM H. BIRK
Appellant No. 3510 EDA 2014
Appeal from the Judgment of Sentence October 29, 2014
In the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-SA-0000242-2014
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED JUNE 04, 2015
Appellant William H. Birk appeals pro se from the judgment of
sentence entered in the Northampton County Court of Common Pleas
following his bench trial conviction for driving while operating privilege is
suspended or revoked.1 We affirm.
On June 18, 2014, Appellant received citations for driving while
operating privilege is suspended or revoked and for violating a local
ordinance regulating the licensing of waste collectors. Opinion, 1/21/2015,
at 1; Docket, No. MJ-03201-NT-0000163-2014. On August 14, 2014,
Magisterial District Judge Roy A. Manwaring II found Appellant guilty of
driving while operating privilege was suspended and imposed a fine and
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1
75 Pa.C.S. § 1543(a).
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costs. Opinion, 1/21/2015, at 1. On August 20, 2014, Judge Manwaring
found Appellant not guilty of violating the local ordinance regulating the
licensing of waste collectors. Docket No. MJ-03201-NT-0000163-2014.
Appellant filed a summary appeal of the conviction for driving while
operating privilege was suspended to the Court of Common Pleas. Opinion,
1/21/2015, at 1; Docket No. CP-48-SA-0000242-2014. On October 29,
2014, the trial court found Appellant guilty of driving while operating
privilege was suspended and imposed $302.50 in fines and costs. Order,
10/29/2014.
On November 25, 2014, Appellant filed a timely notice of appeal. Both
Appellant and the trial court complied with Pennsylvania Rule of Appellate
Procedure 1925.
Appellant raises the following nineteen issues on appeal:
1. Judge Giordano’s denial of Motion to Recuse despite
unanswered violation of Pennsylvania Crimes Code in the
certified record - Disagreed.
2. Credibility of Officer [Dominick] Fragano’s hearsay
testimony - Agreed.
3. Court leading Officer Fragano’s testimony - Agreed.
4. Court acceptance of Officer Fragano’s conflicting false
testimony - Agreed.
5. Court acceptance of the Abuse of Police Power regarding
the illegal search and seizure in violation of the Fourth
Amendment - Not Addressed.
6. Violation of the “Fruit of the Poisonous Tree” doctrine -
Not Addressed.
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7. Court acceptance of testimony by Officer Fragano that
he issued a fraudulent citation for trash collection - Not
Addressed.
8. Court acceptance of Attorney [William] Matz’s false
testimony about a fraudulent citation for trash collection -
Not Addressed.
9. Court denial of entry of proof of license - Not Addressed.
10. Court failure to recognize violation of 72 hour
requirement for release of alleged evidence - Disagreed.
11. Court acceptance of false description of the Alley
location - Not Addressed.
12. Court failure to rule on legality of driving on a narrow,
limited access right of way alley - Not Addressed.
13. Court allowance of entry of false and irrelevant
testimony - Not Addressed.
14. Court failure to identify the time of the alleged offense
- Not Addressed.
15. Court complaint of unfairness when Officer Fragano’s
credibility is questioned - Not Addressed.
16. Penn Dot failure to confirm suspension after inquiry -
Disagreed.
17. Court acceptance of unsworn hearsay testimony about
alleged evidence - Not Addressed.
18. Court acceptance of testimony that the vehicle was
unoccupied at the time a moving violation citation was
issued - Not Addressed.
19. Court’s closing statement provides unquestionable
proof of Court bias - Disagreed.
Appellant’s Brief at 4-5 (verbatim).
Appellant groups the questions presented into the following six
categories: (1) recusal; (2) Pennsylvania Department of Transportation
“PennDOT”); (3) 75 Pa.C.S. § 1543(a) (driving while operating privilege is
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suspended or revoked); (4) fraudulent citations; (5) credibility of Officer
Dominick Fragano; and (6) credibility of Assistant District Attorney (“ADA”)
William Matz.2
Appellant’s first category, recusal, includes issue 1 (“Judge Giordano’s
denial of [m]otion to [r]ecuse despite unanswered violation of Pennsylvania
[c]rimes [c]ode in the certified record”),3 and issue 19 (“[c]ourt’s closing
statement provides unquestionable proof of Court bias”). In these issues,
Appellant argues the trial judge was biased and his failure to recuse himself
resulted in an unfair trial. We disagree.
We presume “judges of this Commonwealth are ‘honorable, fair and
competent,’ and when confronted with a recusal demand, have the ability to
determine whether they can rule impartially and without prejudice.”
Commonwealth v. Kearney, 92 A.3d 51, 60 (Pa.Super.2014) (quoting
Commonwealth v. Druce, 848 A.2d 104, 108 (Pa.2004)). “A motion for
recusal is initially directed to and decided by the jurist whose impartiality is
being challenged.” Id. (quoting Commonwealth v. Abu-Jamal, 720 A.2d
79, 89 (Pa.1998)). The trial judge:
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2
Appellant’s categories have been re-ordered for ease of discussion.
3
The certified record does not contain a written motion for recusal. Prior to
trial, Appellant stated: “I have been here before. I have been with you to
the Supreme Court. I think maybe you ought to recuse yourself from this.”
N.T., 10/29/2014, at 3. The trial court denied this motion. Id. at 4 (“Your
motion to recuse me as a Judge is hereby denied.”).
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[M]ust first make a conscientious determination of his or
her ability to assess the case in an impartial manner, free
of personal bias or interest in the outcome. The jurist
must then consider whether his or her continued
involvement in the case creates an appearance of
impropriety and/or would tend to undermine public
confidence in the judiciary.
Id. (quoting Abu-Jamal, 720 A.2d at 89).
A party seeking a trial judge’s recusal “bears the burden of producing
evidence establishing bias, prejudice, or unfairness necessitating recusal.”
Id. (quoting Druce, 848 A.2d at 108). We will not disturb a trial court’s
decision to deny a motion for recusal absent an abuse of discretion. Id.
The trial court denied Appellant’s motion for recusal. The trial court
noted it presided over a prior matter with Appellant and when it “became
aware of its history with Appellant, [it] made a clear statement reflecting
that there were no bad feelings or animosity toward [Appellant] in regard to
any prior interactions with [Appellant] in [the] unrelated past case.”
Opinion, 1/21/2015, at 3.4 The trial court noted it proceeded in a fair and
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4
Before the trial, the following exchange occurred:
[THE COURT]: Do we know each other? Have we met
before?
[APPELLANT]: I have been here before. I have been with
you to the Supreme Court. I think maybe you ought to
recuse yourself from this.
[THE COURT]: You mean the garbage case?
[APPELLANT]: Yeah.
(Footnote Continued Next Page)
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impartial manner. Id. at 3-4. The court further noted the statement
Appellant relied on to support his claim of bias, i.e., the court found “no
great joy in having [Appellant] in front of [the court] once again,” came after
the trial proceedings and before disposition and “suggests unhappiness with
[Appellant] being in trouble, as opposed to harboring any negative
connotations toward Appellant personally.” Id. at 4; N.T., 10/29/2014, at
_______________________
(Footnote Continued)
[THE COURT]: Okay. I won that case in the Supreme
Court, by the way.
[APPELLANT]: Excuse me?
[THE COURT]: I said I won that case in the Supreme
Court. I have no bad feelings about it.
[APPELLANT]: Well, you say you won it but there is still a
petition into this Court about that case.
[THE COURT]: Okay.
[APPELLANT]: There is [sic] two petitions.
[THE COURT]: Does that case have anything to do with
this case? I have no animosity towards you, Mr. Birk. I
thought I bent over backwards to accommodate you. I’m
not going to recuse myself in this case.
You understand what I said?
[APPELLANT]: Yeah.
[THE COURT]: Your motion to recuse me as a judge is
hereby denied. I thought my handling of that case was
very fair and I gave you every opportunity in the world to
come into compliance with the township’s order.
N.T., 10/29/2014, at 3-4.
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25. The trial court further noted that in the present case, it provided
Appellant “with every opportunity to fairly argue his case and even
demonstrated respect for Appellant presenting his case pro se, by assisting
him when it was evident he did not know how to properly proceed with his
arguments,” and inquiring as to the possibility of decreasing Appellant’s
fine.5 Id.
The trial court did not abuse its discretion when it found it could assess
Appellant’s case in an impartial manner, free of personal bias or interest in
the outcome. Further, the trial transcript establishes the trial court acted in
an unbiased and impartial manner. Issues 1 and 19 lack merit.
In his next category of issues, which includes issue 9 (court denial of
entry of proof of license) and issue 16 (PennDOT failure to confirm
suspension after inquiry), Appellant challenges the notice he received from
PennDOT. Appellant references numerous letters he received from PennDOT
from November 15, 2013 through February 12, 2015. Appellant’s Brief at
12-14.6 He maintains the letters initially required a medical and vision
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5
An individual convicted of driving while operating privilege is suspended is
subject to a mandatory $200.00 fine. 75 Pa.C.S. § 1543(a) (“Except as
provided in subsection (b), any person who drives a motor vehicle on any
highway or trafficway of this Commonwealth after the commencement of a
suspension, revocation or cancellation of the operating privilege and before
the operating privilege has been restored is guilty of a summary offense and
shall, upon conviction, be sentenced to pay a fine of $200.”).
6
Appellant did not attach the letters to the brief and they are not contained
in the certified record. He attached a copy of his driver’s license to his
(Footnote Continued Next Page)
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examination, which he complied with, and the driver’s skill test requirement
contained in subsequent letters has “never been explained or justified.”
Appellant’s Brief at 14.
We regard this category as a challenge to the sufficiency of the
evidence. We apply the following standard when reviewing a sufficiency of
the evidence claim: “[W]hether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient evidence to
enable the fact-finder to find every element of the crime beyond a
reasonable doubt.” Commonwealth v. Lehman, 820 A.2d 766, 772
(Pa.Super.2003), affirmed, 582 Pa. 200, 870 A.2d 818 (2005) (quoting
Commonwealth v. DiStefano, 782 A.2d 574 (Pa.Super.2001)). When we
apply this standard, “we may not weigh the evidence and substitute our
judgment for the fact-finder.” Id.“[T]he facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence.” Lehman, 820 A.2d at
772 (quoting DiStefano, 782 A.2d at 582). Moreover, “[a]ny doubts
regarding a defendant’s guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no probability
of fact may be drawn from the combined circumstances.” Id. “The
Commonwealth may sustain its burden of proving every element of the
_______________________
(Footnote Continued)
appellate brief and a copy of a March 2015 letter to his appellate reply brief.
Appellant’s Brief at Exh. C; Appellant’s Reply Brief at Exh. 1.
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crime beyond a reasonable doubt by means of wholly circumstantial
evidence.” Id. (quoting Commonwealth v. Hennigan, 753 A.2d 245, 253
(Pa.Super.2000)).
In applying the above test, we must evaluate the entire record and we
must consider all evidence actually received. DiStefano, 782 A.2d at 582
(quoting Hennigan, 753 A.2d at 253). Further, “the trier of fact while
passing upon the credibility of witnesses and the weight of the evidence
produced, is free to believe all, part or none of the evidence.” Id.
The Motor Vehicle Code provides:
(a) Offense defined.--Except as provided in subsection
(b), any person who drives a motor vehicle on any
highway or trafficway of this Commonwealth after
the commencement of a suspension, revocation or
cancellation of the operating privilege and before the
operating privilege has been restored is guilty of a
summary offense and shall, upon conviction, be
sentenced to pay a fine of $200.
75 Pa.C.S. § 1543. The Commonwealth must also establish the defendant
had “actual notice” of the license suspension. Commonwealth v. Baer,
682 A.2d 802, 805 (Pa.Super.1996).
Officer Fragano testified that he observed Appellant operating a
motor vehicle on a public roadway maintained by the Borough of Hellertown.
N.T., 10/29/2014, at 5, 7, 11, 13. In addition, the Commonwealth entered
Appellant’s certified driving record into evidence at trial. See Commonwealth
Exh. 1. This record established that PennDOT mailed notice of the license
suspension to Appellant on April 30, 2014, and that Appellant’s license would
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be suspended as of June 4, 2014. Id. Appellant admitted at the trial that
he received notice of his license suspension. N.T., 10/29/14, at 19-20.7
Appellant offered no evidence his license was not suspended on June 18,
2014, the date of the citation. Id. at 20-21.8 The evidence presented by
the Commonwealth established Appellant was driving a motor vehicle with a
suspended license on June 18, 2014 and received actual notice of the
suspension.
In his next category of issues, Appellant argues he did not violate 75
Pa.C.S. § 1543(a) because he was not on a “highway” or “trafficway” and
because Officer Fragano could not have observed Appellant from his alleged
vantage point.9 Appellant’s Brief at 14. This category includes issue 11
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7
Appellant testified that he received notice, which informed him he had to
complete certain requirements. N.T., 10/29/2014, at 19-20. He attempted
to contact PennDOT, both by telephone and letter. Id. He did not have a
letter informing him his license was no longer suspended. Id. at 20-21.
8
Appellant submits a copy of his driver’s license, which was issued on
December 30, 2013, with an expiration date of June 4, 2015. Appellant’s
Brief at Exh. C. It does not appear the copy of the license was admitted at
trial and, therefore, it is not a part of the certified record and we cannot
review it. Further, it establishes only that when Appellant was issued a
license in 2013 it was to expire on June 4, 2015. It does not establish his
license was not suspended on June 18, 2014. Appellant also relies on a
March 26, 2015 letter recalling his driving privilege, arguing his license was
not suspended until he received this letter, and does not discuss suspension.
Appellant’s Reply Brief at 8. This letter, however, recalls his license.
Appellant’s Reply Brief at 8, Exh. 1. His license was suspended effective
June 4, 2014, after he received notice sent on April 30, 2014.
9
Although the argument section of Appellant’s brief does not contain
argument regarding whether Officer Fragano had an opportunity to witness
(Footnote Continued Next Page)
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(“[c]ourt acceptance of false description of the alley location”), issue 12
(“[c]ourt failure to rule on legality of driving on a narrow, limited access
right of way alley”), and issue 18 (“[c]ourt acceptance of testimony that the
vehicle was unoccupied at the time a moving violation citation was issued”).
As discussed above, the Motor Vehicle Code prohibits an individual
from driving on a “highway or trafficway of this Commonwealth after the
commencement of a suspension, revocation or cancellation of the operating
privilege and before the operating privilege has been restored.” 75 Pa.C.S.
§ 1543(a). The Motor Vehicle Code contains the following definitions:
“Alley.” A street or highway intended to provide access to
the rear or side of lots or buildings in urban districts and
not intended for the purpose of through vehicular traffic.
...
“Highway.” The entire width between the boundary lines
of every way publicly maintained when any part thereof is
open to the use of the public for purposes of vehicular
travel. The term includes a roadway open to the use of the
public for vehicular travel on grounds of a college or
university or public or private school or public or historical
park.
...
“Motor vehicle.” A vehicle which is self-propelled except
an electric personal assistive mobility device or a vehicle
which is propelled solely by human power.
_______________________
(Footnote Continued)
Appellant operate the vehicle, he raises it in his questions presented and in
his reply brief, and Appellant claimed during trial that Officer Fragano could
not have observed him drive due to the layout of the alley. N.T.,
10/29/2014, at 14-17, 22; Appellant’s Reply Brief at 6-7.
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...
“Private road or driveway.” A way or place in private
ownership and used for vehicular travel by the owner and
those having express or implied permission from the
owner, but not by other persons.
...
“Suspend.” To withdraw temporarily by formal action of
the department any license, registration or privilege issued
or granted by the department. Following a period of
suspension, the department shall restore the license,
registration or privilege.
...
“Trafficway.” The entire width between property lines or
other boundary lines of every way or place of which any
part is open to the public for purposes of vehicular travel
as a matter of right or custom.
...
“Urban district.” The territory contiguous to and
including any street which is built up with structures
devoted to business, industry or dwelling houses situated
at intervals of less than 100 feet for a distance of a quarter
of a mile or more.
75 Pa.C.S. § 102.
Officer Fragano testified that Appellant operated a motor vehicle on a
public roadway maintained by the Borough of Hellertown while Appellant’s
license was suspended. N.T., 10/29/2014, at 5, 7, 11, 13. There was no
evidence the road was an “alley” or a “private road”, as there was no
evidence it was in an urban district or that it was not intended for through
motor vehicle traffic. Cf. Commonwealth v. Baughman, 516 A.2d 390,
390-91 (Pa.Super.1986) (finding dirt track, which was on private property
and dead-ended, was a “trafficway” where there were no signs or barriers
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prohibiting access, people occasionally drove their cars on the road, and it
was “open to the public,” as it was “customarily used by at least certain
members of the public, and it was used for vehicular traffic”). Further,
Officer Fragano testified he observed Appellant operate the vehicle on the
road, which the Borough maintained, and the trial court was free to credit
this testimony. N.T., 10/29/2014, at 7, 11, 13, 15, 18. Issues 11, 12, and
18 lack merit.
Appellant’s next category of issues, fraudulent citations, includes issue
5 (“[c]ourt acceptance of the [a]buse of [p]olice [p]ower regarding the
illegal search and seizure in violation of the Fourth Amendment”), issue 6
(“[v]iolation of the fruit of the poisonous tree doctrine”), and issue 7 10
(“[c]ourt acceptance of testimony by Officer Fragano that he issued a
fraudulent citation for trash collection”). On June 18, 2014, Appellant
received two citations: a citation for violating the local licensing of waste
collectors ordinance and a citation for driving while operating privilege was
suspended. The magisterial court dismissed the citation for violation of the
local licensing of waste collectors ordinance. Appellant maintains, because
the local ordinance citation was dismissed, he could not be prosecuted for
driving while operating privilege was suspended, which was a secondary
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10
Issue 7 challenges Officer Fragano’s testimony and claims the citation for
violation of the local licensing of waste collectors ordinance was fraudulent.
Pages 14-16, infra, discuss Appellant’s claims regarding Officer Fragano.
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citation. Appellant’s Reply Brief at 6. Appellant further argues that, because
the citation was “fraudulent,” the ensuing search and seizure violated the
Fourth Amendment and constituted the “fruit of the poisonous tree.”11
Appellant’s Brief at 11. We disagree.
Although the magisterial court found Appellant did not violate the local
licensing of waste collectors ordinance, it, and the Court of Common Pleas,
were free to find the Commonwealth presented sufficient evidence that
Appellant drove while his operating privilege was suspended where the
Commonwealth presented evidence Appellant was driving his vehicle on a
trafficway after he received notice his license was suspended. See 75
Pa.C.S. § 1543(a); see also supra pp. 8-10 (Commonwealth presented
sufficient evidence to sustain the operating a vehicle while license suspended
conviction).
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11
Although it was unclear from his initial brief what search and seizure he
referred to, Appellant’s reply brief clarified that he believes Officer Fragano
ordered a search of Appellant’s Wife’s truck and that, after this search,
Appellant’s driver’s license was seized and confiscated and his Wife’s truck
was impounded. Appellant’s Reply Brief at 6. Officer Fragano testified he
requested Appellant’s license, which Appellant produced, and testified the
truck was impounded. N.T., 10/29/2014, at 8. When a vehicle is
impounded, the police department conducts an inventory search, which
likely occurred here. Commonwealth v. Henley, 909 A.2d 352, 359
(Pa.Super.2006) (“An inventory search of an automobile is permitted where:
(1) the police have lawfully impounded the automobile; and (2) the police
have acted in accordance with a reasonable, standard policy of routinely
securing and inventorying the contents of the impounded vehicle.”). There
is no evidence the impoundment, or any inventory search that followed, was
improper.
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Appellant’s next category of issues challenges the credibility of Officer
Fragano. This category includes issue 2 (“[c]redibility of Officer Fragano’s
hearsay testimony”), issue 3 (“[c]ourt leading Officer Fragano’s testimony”),
issue 4 (“[c]ourt acceptance of Officer Fragano’s conflicting false
testimony”), issue 7 (“[c]ourt acceptance of testimony by Officer Fragano
that he issued a fraudulent citation for trash collection”),12 and issue 15
(“[c]ourt complaint of unfairness when Officer Fragano’s credibility is
questioned”). Appellant claims Officer Fragano’s testimony is false.
Appellant’s Brief at 11. Appellant reasons Officer Fragano could not have
observed the account he testified to from the “narrow, limited access, right
of way alley.” Id. Appellant also claims Officer Fragano lacks knowledge of
the Motor Vehicle Code, which, Appellant maintains, only prohibits
unlicensed driving on a “highway or traffic way,” not the “narrow, limited
access[,] right of way alley.” Id. Appellant also states Officer Fragano’s
testimony is questionable because the other citation issued by the officer
was dismissed and private complaints have been filed against him. Id. at
12.
“[I]t is for the fact-finder to make credibility determinations, and the
finder of fact may believe all, part, or none of a witness’s testimony.”
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12
Issue 7 challenges Officer Fragano’s testimony and claims the citation for
violation of the local licensing of waste collectors ordinance was fraudulent.
Pages 13-14, supra, discuss Appellant’s claim the citation was fraudulent.
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Commonwealth v. Thompson, 934 A.2d 1281, 1285 (Pa.Super.2007)
(citing Commonwealth v. Goins, 867 A.2d 526, 528 (Pa.Super.2004)).
This Court “defer[s] to the trial court’s findings of fact, because it is the fact-
finder’s sole prerogative to pass on the credibility of the witnesses and the
weight to be given to their testimony.” Commonwealth v. Whitlock, 69
A.3d 635, 637 (Pa.Super.2013) (citing Commonwealth v. Baker, 946 A.2d
691, 693 (Pa.Super.2008)).
The trial court noted Appellant had an opportunity to cross-examine
Officer Fragano, but offered no evidence to challenge Officer Fragano’s
testimony regarding the events of June 18, 2014. Opinion, 1/21/2015, at 6-
7. Further, Officer Fragano testified he observed Appellant operate the
vehicle, requested that Appellant produce his license, and discovered the
license was suspended. N.T., 10/29/2014, at 6-8. The trial court found
Officer Fragano’s testimony credible, and we will defer to this determination.
Opinion, 1/21/2015, at 7; Whitlock, 69 A.3d at 637. Appellant’s claims
regarding Officer Fragano lack merit.
Appellant’s last category challenges statements made by ADA Matz,
which is issue 8 (“[c]ourt acceptance of [ADA] Matz’s false testimony about
a fraudulent citation for trash collection”). Appellant maintains ADA Matz
“falsely testified” that the citation for violation of the local licensing of waste
collectors ordinance was not appealed and he remained silent when Officer
Fragano gave false testimony about the violation of the Motor Vehicle Code,
again arguing that he was not operating his vehicle on a highway or
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trafficway. Appellant’s Brief at 12. The Pennsylvania Rules of Professional
Conduct state:
(a) A lawyer shall not knowingly:
(1) make a false statement of material fact or law to a
tribunal or fail to correct a false statement of material fact
or law previously made to the tribunal by the lawyer; [or]
...
(3) offer evidence that the lawyer knows to be false. If a
lawyer, the lawyer’s client, or a witness called by the
lawyer, has offered material evidence before a tribunal or
in an ancillary proceeding conducted pursuant to a
tribunal’s adjudicative authority, such as a deposition, and
the lawyer comes to know of its falsity, the lawyer shall
take reasonable remedial measures, including, if
necessary, disclosure to the tribunal. A lawyer may refuse
to offer evidence, other than the testimony of a defendant
in a criminal matter, that the lawyer reasonably believes is
false.
Pa.R.Prof.Conduct 3.3. Appellant presents no evidence ADA Matz presented
false testimony.
Officer Fragano issued two citations on June 18, 2014: a driving while
operating privilege is suspended citation and a violation of a local licensing of
waste collectors ordinance citation. District Judge Manwaring found
Appellant not guilty of violating the licensing of waste collectors ordinance,
and no appeal was taken. Opinion, 1/21/2015, at 9; accord Docket, No.
MJ-03201-NT-0000163-2014. At trial, the following exchange occurred:
[OFFICER FRAGANO]: . . . At that point in time I told Mr.
Birk he needed to call for a ride. I did issue a citation to
him for driving under suspension and for Borough
Ordinance at this point for the trash. And it ended up
towing his vehicle and putting it in impound.
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[THE COURT]: He didn’t appeal the Borough Ordinance,
did he?
[ATTORNEY MATZ]: No.
[THE COURT]: Mr. Matz, the only thing before me is the
driving while suspended?
[MR. MATZ]: That’s correct. That is the only nature of the
appeal form that was filed.
N.T., 10/29/2014, at 8-9.
ADA Matz accurately described the procedural history of the citations.
The trial court found ADA Matz’s representations were “proper and in
accordance with applicable rules of professional responsibility.” Opinion,
1/21/2015, at 9. Further, as discussed above, Officer Fragano did not
present false testimony regarding the applicability of the driving while
operating privilege suspended statute.13 Therefore, ADA Matz did not
commit any violation in remaining silent during this testimony. Issue 8 lacks
merit.
Four of Appellant’s claims are not easily classified, including issue 10
(“[c]ourt failure to recognize violation of 72 hour requirement for release of
alleged evidence”); issue 13 (“[c]ourt allowance of entry of false and
irrelevant testimony”); issue 14 (“[c]ourt failure to identify the time of the
alleged offense”); and issue 17 (“[c]ourt acceptance of unsworn hearsay
____________________________________________
13
Moreover, although Officer Fragano presented his version of events and
stated they were on a public road, it was for the fact-finder to determine
whether the road was a public road or an alley or private driveway, as
Appellant alleged. N.T., 10/29/2014, at 12-14. As evidenced by the verdict,
the trial court, as fact-finder, found it was a trafficway.
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testimony about alleged evidence”). To the extent these issues raise claims
not discussed above, they are waived. The claims are undeveloped and we
are unable to discern Appellant’s arguments on appeal. Commonwealth v.
Snyder, 870 A.2d 336, 342 (Pa.Super.2005) (undeveloped claims waived);
Commonwealth v. Spotz, 18 A.3d 244 (Pa.2011) (claim unreviewable and
waived for lack of development where appellant did not develop the claim
factually or legally, did not support it with citations, and the court could not
discern what error allegedly occurred). Accordingly, we will affirm the
judgment of sentence.
Judgment of sentence affirmed.14
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/4/2015
____________________________________________
14
Appellant’s motion to dismiss all charges, motion to dismiss fraudulent
charges, and two motions to order a retrial are denied.
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