J-A04024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                      v.

JOHN M. MACARTHUR,

                            Appellant                     No. 293 WDA 2015


     Appeal from the Judgment of Sentence Entered January 21, 2015
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-SA-0002499-2014


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and SHOGAN, J.

MEMORANDUM BY BENDER, P.J.E.:                             FILED MARCH 30, 2016

      Appellant, John M. MacArthur, appeals pro se from the judgment of

sentence of a $300.00 fine, imposed following his conviction for the

summary     offense    of    scattering   rubbish,   18    Pa.C.S.   §   6501(a)(1)

(hereinafter, “littering”). The issues in this appeal evolved out of the citing

officer’s failure to list his own badge number on the littering citation, and

that officer’s subsequent effort(s) to amend the citation to correct that error.

Appellant claims, inter alia, that the amending of the citation violated his

due process rights. After careful review, we affirm.

      Appellant was initially convicted of littering before a magistrate, and

then again at a de novo hearing held before the summary appeals court.

The summary appeals court summarized the pertinent facts giving rise to

the instant appeal as follows:
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        At the de novo hearing, Officer Matthew Lucas, a Sergeant
     with the Bellevue Borough Police Department, testified that on
     August 16, 2014, the Chief of the Bellevue Borough Police
     Department assigned him to a plain-clothes detail on Lincoln
     Avenue for the purpose of enforcing the anti-littering statute.
     Officer Lucas testified that he observed [Appellant] as he walked
     past him in the early afternoon on August 16, 2015.            As
     [Appellant] walked toward a pharmacy entrance, he turned and
     threw his cigarette onto the street.

         Officer Lucas stopped [Appellant] and identified himself. The
     Officer then requested a second officer at the location. Officer
     Dunker responded and Officer Lucas issued a Citation to
     [Appellant]. Officer Lucas used Officer Dunker's laptop computer
     to issue the Citation and print it and hand it to [Appellant].

        [Appellant] did not deny that he threw the cigarette butt on
     the street and that Officer Lucas observed him while he did it.
     Instead, [Appellant] argued that the Citation was defective and,
     therefore, prejudiced him in some way. He failed to explain the
     nature or effect of the alleged prejudice.

        The "defect" in the Citation issued to [Appellant] on August
     16, 2014, concerned the badge number typed on the Citation.
     Officer Lucas requested permission from the Court to amend the
     Citation which bore the badge number of Officer Dun[ker] (31)
     to Officer Lucas's badge number (18). He explained that the
     mistake was due to a clerical error. Officer Lucas testified that
     he was the officer who stopped [Appellant], introduced himself
     and issued the Citation to [Appellant]. [Appellant] also testified
     that Officer Lucas was the officer who stopped him and issued
     the Citation.

        Officer Lucas explained the error on the original Citation:

        When I called Officer Dunker down to my location I
        actually used his laptop because I was on plain-clothes
        detail and I didn't have access to one. So when I called
        the detail officer down, Officer Dunker arrived. I used his
        log-in, just to try to respect [Appellant]'s time and not tie
        him up for any longer than I needed to. And when I
        printed the citation, it defaulted to Officer Dunker's badge
        number. That's how that clerical error occurred.




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J-A04024-16


        Officer Lucas also testified that he amended the Citation at
     the hearing before the Magisterial District Court prior to
     testimony but while [Appellant] was present.

Summary Appeals Court Opinion (SACO), 4/27/15, at 1-3 (citations to the

record omitted).

     As noted above, Appellant was cited on August 16, 2014, and

appeared before a magistrate.     The magistrate found Appellant guilty of

littering. Appellant filed a timely summary appeal, which was heard at a de

novo hearing before the Honorable Robert A. Gallo of the Summary Appeals

Division of the Court of Common Pleas of Allegheny County. Following the

hearing, Judge Gallo found Appellant guilty and imposed a $300.00 fine.

     Appellant filed a timely notice of appeal. He also filed a timely, court-

ordered Pa.R.A.P. 1925(b) statement.      Judge Gallo issued a Rule 1925(a)

opinion on April 27, 2015. Appellant is pro se.

     In his brief, Appellant presents the following questions for our review:

     [1.] Is [A]ppellant entitled to reversal of the Summary Appeal
     Trial Court's verdict or a new trial because the erroneous
     conclusion the Summary Appeal Trial Court made of the
     citation[’s] having been amended on August 19, 2014 violated
     both [A]ppellant's Procedural Due Process rights under the 5th
     and 14th Amendments to the United States Constitution, and
     codified at Commonwealth of Pennsylvania Constitution Article I,
     Sections §1, §9 and § 10, and because the prosecution is unable
     to show that the error in concluding that the citation was
     amended on August 19, 2014 was harmless beyond a reasonable
     doubt?

     [2.] Is [A]ppellant entitled to a reversal of the Summary Appeal
     Trial Court's verdict or a new trial because [A]ppellant provided
     the Summary Appeal Trial Court with evidence of improper and
     prejudicial ex parte communication had occurred before the
     September 29, 2014 Magisterial District Court hearing?


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       [3.] Is the sufficiency of the evidence supportive of the
       Summary Appeal Court's finding that the Commonwealth
       established by clear and convincing evidence that [A]ppellant
       should be found guilty of violating [18 Pa.C.S. § 6501(a)(1)]?

Appellant’s Brief at 2 (citations omitted).

             Our standard of review from an appeal of a summary
       conviction heard de novo by the trial court is limited to a
       determination of whether an error of law has been committed
       and whether the findings of fact are supported by competent
       evidence. Commonwealth v. Lutes, 793 A.2d 949 (Pa. Super.
       2002). “The adjudication of the trial court will not be disturbed
       on appeal absent a manifest             abuse    of discretion.”
       Commonwealth v. Parks, 768 A.2d 1168, 1171 (Pa. Super.
       2001).

Commonwealth v. Marizzaldi, 814 A.2d 249, 251 (Pa. Super. 2002).

       Appellant’s first two claims concern the matter of Officer Lucas’

amendment of the citation to reflect his own badge number.         Essentially,

Appellant contends the citation amendment was conducted ex parte before

the magistrate, thereby violating his state and federal due process rights.

Despite obvious and numerous defects in Appellant’s brief,1 we will address

this matter.
____________________________________________


1
  The defects in the form of Appellant’s pro se brief are too numerous to list.
Most noticeable, however, is that the “Argument” section of Appellant’s brief
contains virtually no arguments, but instead merely summarily states three
reasons why Appellant believes himself to be entitled to relief, without any
reference to the record or citation to any pertinent legal authorities. See
Appellant’s Brief at 14; see also Pa.R.A.P. 2119(a) (“The argument shall be
divided into as many parts as there are questions to be argued; and shall
have at the head of each part--in distinctive type or in type distinctively
displayed--the particular point treated therein, followed by such discussion
and citation of authorities as are deemed pertinent.”).         Nevertheless,
Appellant does provide such arguments, references to the record, and
citation to ostensibly relevant legal authorities in the “Relevant Procedural
(Footnote Continued Next Page)


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J-A04024-16



      The summary appeals court concluded that Appellant failed to

substantiate    that     ex   parte    communications   occurred.   SACO,   at   3

(“[Appellant] fails to set forth any factual basis for such an averment. He

also fails to show the substance of such communications, how or where they

took place[,] or the parties involved.”).          In any event, the court also

concluded that Appellant failed to demonstrate that he was prejudiced by the

substance or manner of Officer Lucas’ amendment.

      We find it unnecessary to address the merits of whether a due process

violation occurred because, even assuming the amendment to the littering

citation violated some principle of due process, we agree with the summary

appeals court that Appellant has failed to demonstrate that he was

prejudiced by it.

      Our rules of criminal procedure provide that:

      A defendant shall not be discharged nor shall a case be
      dismissed because of a defect in the form or content of a
      complaint, citation, summons, or warrant, or a defect in the
      procedures of these rules, unless the defendant raises the defect
      before the conclusion of the trial in a summary case or before
      the conclusion of the preliminary hearing in a court case, and the
      defect is prejudicial to the rights of the defendant.

Pa.R.Crim.P. 109 (emphasis added).



                       _______________________
(Footnote Continued)

History” portion of his brief. Id. at 4-13. Despite the Commonwealth’s
arguments that we should deem Appellant’s claims waived due to these
defects, see Commonwealth’s Brief at 14, we decline to do so, as the
defects do not substantially impair our ability to address Appellant’s claims.



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J-A04024-16



      At the summary appeal hearing, Appellant did not contest whether

Officer Lucas issued the citation to him on August 16, 2014:

      THE COURT: Okay. Now let me ask you this, sir. Did you know
      – you saw Officer Lucas on the street?

      [Appellant]: I didn’t know who he was.

      THE COURT: But you saw him there?

      [Appellant]: Well, I saw a young man --

      THE COURT: Yeah.

      [Appellant]: -- leaning against the wall.

      THE COURT: Okay. Now, are you saying it was or wasn’t Officer
      Lucas?

      [Appellant]: You know what? I don’t – it was a while ago. He
      says he might have had sunglasses, maybe not.

      THE COURT: Okay. Sir, just answer the question.          Did you or
      did you not see him?

      [Appellant]: I saw a young man --

      THE COURT: Okay.

      [Appellant]: -- who I later learned was Sergeant Lucas.

      THE COURT: Yes, he introduced himself, he was Sergeant Lucas.

      [Appellant]: Yes, sir.

N.T., 1/21/15, at 32-33.

      Given Appellant’s admission, we cannot comprehend how he was

prejudiced by the manner in which the citation was amended to reflect an

effectively undisputed fact.   If it is not critical to Appellant’s defense(s) to

the citation whether Officer Lucas was the officer who observed the violation

and issued the citation, then the manner in which the citation was amended



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J-A04024-16



could not have prejudiced him. The only argument we can ascertain from

Appellant’s brief that touches upon his burden of demonstrating prejudice is

Appellant’s bald assertion that the ex parte amendment of the citation at the

magistrate’s office evidenced “a conspiracy to find him guilty” of littering.

Appellant’s Brief at 7. This argument is absurd on its face, and not founded

on any facts of record. Appellant neither explains why he would be targeted

in such a conspiracy, nor what purpose or whose interests such a conspiracy

would serve.

      In any event, Officer Lucas sought to amend the citation in open court

before Judge Gallo during the summary appeals proceeding. N.T., 1/21/15,

at 3-4. Thus, whatever ex parte communication or related due process error

that arose before the magistrate was not repeated and was, therefore,

corrected at the summary appeals court, given that the summary appeals

proceeding constituted a de novo trial.     A de novo trial is not merely an

appeal from a conviction before a magistrate; “‘[d]e novo’ review entails, as

the term suggests, full consideration of the case anew. The reviewing body

is in effect substituted for the prior decision maker and re[-]decides the

case.” Rebert v. Rebert, 757 A.2d 981, 984 (Pa. Super. 2000). Thus, we

conclude that Appellant is not entitled to relief with respect to his first two

claims.

      Appellant’s third claim concerns the sufficiency of the evidence.

      Our standard of review of sufficiency claims is well-settled:




                                     -7-
J-A04024-16


             A claim challenging the sufficiency of the evidence is a
      question of law. Evidence will be deemed sufficient to support
      the verdict when it establishes each material element of the
      crime charged and the commission thereof by the accused,
      beyond a reasonable doubt. Where the evidence offered to
      support the verdict is in contradiction to the physical facts, in
      contravention to human experience and the laws of nature, then
      the evidence is insufficient as a matter of law. When reviewing a
      sufficiency claim[,] the court is required to view the evidence in
      the light most favorable to the verdict winner giving the
      prosecution the benefit of all reasonable inferences to be drawn
      from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal

citations omitted).

      Although Appellant lists a sufficiency claim in his statement of the

questions presented, see Appellant’s Brief at 2, we could only find two short

references to this claim in the remainder of his brief.     Specifically, in the

section titled, “Summary of the Argument,” Appellant baldly states: “There is

not sufficient evidence in the record to find [A]ppellant guilty and the verdict

should be set aside due to insufficient evidence to support that finding.” Id.

at 13.   Subsequently, in the “Conclusion” section of his brief, Appellant

baldly states: “The trial court’s order finding [Appellant] guilty of violating

[18 Pa.C.S. § 6501(a)(1)] should be set aside due to insufficient evidence to

support that finding under the clear and convincing standard.” Id. at 14.

      Appellant’s     bald   assertions,   the   complete   absence    of   any

accompanying argument, the lack of any citations to legal authorities (other

than the statute at issue) and any discussion thereof, and the lack of any

references to the record supporting this claim, collectively lead to our



                                      -8-
J-A04024-16



conclusion that Appellant has waived this claim for our review.         See

Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007) (“This

Court will not act as counsel and will not develop arguments on behalf of an

appellant…. Moreover, when defects in a brief impede our ability to conduct

meaningful appellate review, we may dismiss the appeal entirely or find

certain issues to be waived.”) (citation omitted)

      Thus, in summary, we agree with the summary appeals court that

Appellant has failed to demonstrate that he was prejudiced by the

amendment to the littering citation that ostensibly occurred before the

magistrate.   We also conclude that Appellant has waived any sufficiency

claim.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/30/2016




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