J-S53020-12

                                  2014 PA Super 177

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MAURICE L. DOZIER

                            Appellant                  No. 1386 EDA 2010


        Appeal from the Judgment of Sentence of December 12, 2002
            In the Court of Common Pleas of Philadelphia County
             Criminal Division at No.: CP-51-CR-1103561-2000


BEFORE: SHOGAN, J., WECHT, J., and STRASSBURGER, J.*

OPINION BY WECHT, J.:                                 FILED AUGUST 20, 2014

       Maurice Dozier appeals his December 12, 2002 judgment of sentence.

We affirm.

       The trial court has provided the following factual history of this case:

       The evidence admitted at trial established that in the early
       morning hours of October 24, 2000, [A.R.] was brutally
       assaulted and raped in her bed in front of her six-year-old
       daughter and infant son. At that time, [A.R.] lived with her two
       children . . . in the City and County of [Philadelphia].

       Earlier that evening, [A.R.] saw [Dozier] on the street and asked
       him if he could fix her refrigerator. She had known him from the

       and worked on the refrigerator; he spent ten to fifteen minutes
       in the house. [Dozier] returned a few times that evening, at one
       point selling her a microwave. [A.R.] had a male guest at the
       house from 12:30 a.m. to 5:00 a.m. on October 24, 2000. After
       her guest left, [A.R.] went upstairs to sleep in the bedroom with
       her children. Some time later, [A.R.] awoke to a noise in her
____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
J-S53020-12


     bedroom. It was still dark, but she saw [Dozier] standing over
     her. [A.R.] screamed, and [Dozier] hit her on the head with a
     hard object. [Dozier] pulled down and ripped her pants and
                                                   . Not in front of

     penetrate her with his penis. [Dozier] turned her over and
     placed a blanket over her face and raped her, while [A.R.] kicked
     and pleaded for him to stop. [Dozier] carried with him a metal
     bar wrapped in tape and a flashlight[,] the same tools he used to
     repair the refrigerator that night. During the attack, [Dozier]

     it. [Dozier] also choked [A.R.] with his hands; he was wearing
                                               .


     got dressed, picked up her children, and r
     house, where she called the police.

     The police arrived within ten minutes and [A.R.] told the officers
     that she was raped and that it was [Dozier] who did it. While

     neighbor approached Police Officer John McLaughlin and brought
     him into her house. She told him the perpetrator was walking
     down Napa Street. Officer McLaughlin approached [Dozier],
     stopped him, and informed him that he was being investigated
     for a rape that just occurred. [A.R.] was taken outside to view
     [Dozier] and she positively identified him as her assailant.
     [A.R.] was then transported to the Episcopal Hospital for a
     medical examination and rape kit.

     There was a stipulation to the Police Department Criminalistic[s]
     Laboratory report that examined the rape kit taken from [A.R.].
     The vaginal, v[u]lvular, and cervical areas tested positive for
     sperm.    The vaginal and cervical areas tested positive for
     prostatic acid phosphate, which is an enzyme found in semen.
     The presence of this enzyme is indicative of recent sexual
     activity.

     The DNA analysis was conducted by Chad Summerfield and
     Kevin Knox, forensic scientists at the Philadelphia Police
     Department. They conducted a forensic examination of the rape
     kit and other physical evidence collected from the bedroom.
     Mr. Summerfield tested the shorts [A.R.] had on the night of the
     attack and the fitted sheets from her bed. He also had blood
     samples from the complainant and [Dozier]. Mr. Summerfield

                                   -2-
J-S53020-12


       testi
       was the source of the DNA extracted from the bed sheet. He
       also testified that he would expect to see this DNA profile one
       time in 4.5 quadrillion. DNA analysis was also performed on the
       sperm fou
       53,000 match. That analysis excluded 99.99% of the African-
       American population.        Mr. Summerfield concluded to a
       reasonable degree of scientific certainty that the seminal stain
       from the sheet belonged to [Dozier].

                                                       -5 (citations to the record

omitted).

       The trial court related the procedural history as follows:

       Following a non-jury trial on July 11, 2002, before the Honorable
       Willis W. Berry[,] Jr., [Dozier] was convicted of Rape,
       Aggravated Assault, Aggravated Indecent Assault, Possessing

       Assault, and Recklessly Endangering Another Person.[1] On
       December 12, 2002, Judge Berry sentenced [Dozier] to [terms]
       of incarceration for the Rape and Burglary convictions of . . . ten
       (10) to twenty (20) years, to run concurrently; for Aggravated
       Assault, ten (10) to twenty (20) years, to run concurrent[ly] with
       the Rape conviction; for Indecent Assault, one (1) to (2) years,
       consecutive [to] the Rape Conviction; for the PIC conviction,
       two-and-one-half (2½) to five (5) years, to run consecutive[ly]
       to the Rape conviction; [and] for Unlawful Restraint, one (1) to
       two (2) years, consecutive with the Rape conviction.             An
       aggregate term of fourteen-and-one-half (14½) to twenty-[nine
       (29)] years of incarceration was imposed.

       No direct appeal was filed.    A timely [petition under the Post-
                                                       9541, et seq.] was
       filed on October 31, 2003. That petition was dismissed without
       [a] hearing on April 11, 2005.


____________________________________________


1
      18 Pa.C.S.        §§ 3121,      2702,    3125,   907,   2902,   2701,   2705
(respectively).



                                           -3-
J-S53020-12


       [Dozier] filed a second PCRA petition on July 21, 2008. Judge
                                                                  nunc
       pro tunc on April 22, 2010. [Dozier] filed a notice of appeal on
       May 21, 2010. Following that appeal, Judge Berry filed an
       opinion on March 23, 2011. A Grazier hearing[2] was held on
       April 19, 2011, and [Dozier] was permitted to represent himself
       pro se.

       After numerous subsequent filings with the Superior Court, the
       case was remanded to the trial court to file a Pa.R.A.P. 1925(a)

       time, however, Judge Berry had retired from the bench. The
       case was then reassigned to this court on February 5, 2013.
       This court ordered [Dozier] to file a concise statement of matters
       complained of on appeal consistent with Rule 1925(b).

Id. at 1-2 (footnote omitted).

                                                   pro se Rule 1925(b) statement

       red] eighteen[] nearly incomprehensible points of error made by the

               Id. at 2. From these eighteen asserted issues, the trial court

gleaned only four that it deemed worthy of consideration, reproduced

                                                 ement as follows:

       1.    Relators arrest was unlawful and unconstitutional being
       absent the mandatory search and arrest warrant particularly
       describing the place to be searched, and the person or thing to
       be seized.

       2.   Relator was denied his constitutional right to face his
       accuser.

                                         ****

       7.     Trial counsel Ms. Connie Clarke, Esq., for the DEFENDERS
       ASSOCIATION, violated relators constitutional right to have a
       trial by jury.
____________________________________________


2
       See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).



                                           -4-
J-S53020-12


                                         ****

       18. Relator was not sentenced within or by the 60-days time
       period but was pronounced sentence upon 6-months after
       conviction.

Id.   at   2-                                              1925(b)    Statement,

6/21/2013, at 1-3). Seriatim, the trial court rejected each of these issues

on the merits.

       Before this Court, Dozier is more ambitious, raising no fewer than

twenty-seven issues.        These twenty-seven issues are grouped into nine

denominated sections in his argument, as follows:           (1) Unconstitutional

Search      and     Seizure;     (2) Arrested    Without   Miranda3    Warning;

(3) Statements Without Miranda Warning Inside the Interrogation Room;

(4) Speedy Trial Violation; (5) The Right to Face Your Accuser; (6) Delayed

Sentence Violation; (7) Biased Statement of Trial Judge; (8) The Most

Important Document (The Sentencing Order); and (9) Corrupt Trial Judge.
                                                                          4


____________________________________________


3
       See Miranda v. Arizona, 384 U.S. 436 (1966).
4
        Despite asking for, and being granted, a motion to extend its deadline
for filing a responsive brief in this matter, the Commonwealth failed by a
considerable margin to file a brief within the extended time this Court
afforded it to do so, unnecessarily delaying the resolution of these

entitled to the expeditious review of the issues that he presents on appeal.
Inasmuch as the Commonwealth, when in the posture of an appellee, is not
obligated to file such a brief, we urge the Commonwealth to seek extensions
for the filing of its brief only when it intends to, and is confident that it has
the capacity to, exercise its right to file such a brief on a timely basis.



                                           -5-
J-S53020-12



      Before proceeding further, we must assess which of these issues have

been preserved in the court below and which have been presented to this

Court such that review of their merits is appropriate. Doing so will enable us



      Issues 2 and 3, in which Dozier asserts violations of Miranda, as well



and issue 7, which i

statements, all are waived for failure to present them in his Rule 1925(b)

statement. See Pa.R.A.P.

1925(b)] Statement and/or not raised in accordance with the provisions of

                                        Commonwealth v. Baker, 24 A.3d

1006, 1034-35 (Pa. Super. 2011).

      Preservation of an issue in the trial court and its inclusion in the Rule

1925(b) statement are necessary but not sufficient to preserve the right to

appellate review.    See Pa.R.A.P.



appellant also must provide this Court with substantive argument, fortified

by reference to re                                                         Our

rules require compliance with the following requirements, inter alia:

      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.



                                     -6-
J-S53020-12



Pa.R.A.P. 2119(a).

                                                                   aterial respects

with the requirements of these rules as nearly as the circumstances of the

particular case will admit, otherwise, . . . if the defects are in the brief . . . of

the appellant and are substantial, the appeal . . . may be quashed or

dismisse                  2101.    Not infrequently, Pennsylvania courts have

deemed violations of Rule 2119(a) sufficiently substantial to require waiver

of the issues in question.     See, e.g., Commonwealth v. Johnson, 985

A.2d 915, 924 (Pa. 2009); Commonwealth v. Brougher, 978 A.2d 373,

376 (Pa. Super. 2009). Moreover, mere recitation of boilerplate law followed

by conclusory assertions of error typically does not suffice to ripen an issue

for our review. See Commonwealth v. Murchinson, 899 A.2d 1159, 1162

(Pa. Super. 2006).

         These principles standing alone compel us to deem waived several

other categories of issues set forth by Dozier. First, issue 5, concerning an



basis.    Although Dozier provides boilerplate citations regarding the federal

and state constitutional right of confrontation, Brief for Dozier at 25-26,

including references to Roman Governor Festus and President Dwight D.




                                        -7-
J-S53020-12



Eisenhower, he fails to support his particular claim with any on-point case

law. Consequently, this issue is waived.5

       Issue 9, in which Dozier challenges his conviction upon the basis that

the presiding judge at his trial, Judge Berry, was corrupt, see Brief for

Dozier at 37-38, also is waived.               In support of this claim, Dozier cites

periodical articles that we may not consider, because they are not included

in the certified record. See Commonwealth v. Preston, 904 A.2d 1, 6-7

(Pa. Super. 2006).       As well, he cites our decision in Commonwealth v.

Cain, 29 A.3d 3 (Pa. Super. 2011).               In that case, we acknowledged that

disciplinary action had been taken, and a criminal investigation conducted,

against Judge Berry for improper business practices, which ultimately led

Judge Berry to recuse himself from hearing criminal matters at the request

                                                                    Id. at 8 & n.6.

Because the appellant alleged that Judge Berry had drawn attention for

these practices as early as April 2007, before the appellant had been tried,

____________________________________________


5
      In short, Dozier argues that he was denied the opportunity to face his
accuser, whom he identifies as Jaroslaw Krajewski, a representative of the
Philadelphia
criminal complaint filed against Dozier, and, as Dozier underscores, on the

various crimes at issue in this case. See Brief for Dozier at 25. We are
aware of no law to the effect that the law enforcement affiant who swears

                                                                m,
A.R. Dozier does not contend that he was denied the opportunity to
confront A.R.



                                           -8-
J-S53020-12



we acknowle



been questioned.    Accordingly, we remanded for fact-finding to determine

                                                judge   had   discovered    the

                                                                     Id. at 8-

9.   In this case, however, Dozier was tried years before any of the

allegations against Judge Berry came to light, and, most importantly, before

any criminal investigation was opened.        Hence, the fears of partiality

animating our decision in Cain were not in play; there was no reason at the



matters. Having cited no other cases in supp

argument essentially consists of bald allegations of partiality during a time

period when Dozier can demonstrate no basis for such allegations.

Accordingly, this issue, too, is waived.

      This leaves for our consideration issues 1, 6, and 8. Issue 1 is styled a

challenge to the propriety of the seizure and putative search of Dozier by the

Philadelphia police shortly after Dozier assaulted A.R.        First, we may

                                                                           inted

argument, at no time does Dozier assert that anything inculpating was

retrieved from his person during his seizure, or that anything so retrieved

was introduced against him at trial. Consequently, this issue, being entirely

abstract and tied to noth

reviewable.

                                      -9-
J-S53020-12




that he could not have been seized, let alone arrested, without a warrant.

He presents this as an unqualified proposition of law, which is patently false.



an individual in a public place unless they have probable cause to

believe that 1) a felony has been committed; and 2) the person to be

arrested is the felon          Commonwealth v. Clark, 735 A.2d 1248, 1251

(Pa. 1999) (emphasis added).6

       In Commonwealth v. Sabb, 409 A.2d 437 (Pa. Super. 1979), to cite

only one of myriad cases that we might, we found that the police had

probable cause to arrest a rape suspect when the victim, who did not know

her assailant before the time of the crime, identified him by his approximate

size, clothing, accessories, and facial hair. The police found the suspect a

half-hour after the assault, three and one-half blocks from the scene of the

crime. He matched the description provided by the victim except for the fact

that he wore a hat that the victim had not mentioned, and his glasses were




____________________________________________


6
      Dozier acknowledges but misstates this principle when he asserts that
                          . . . can only make a warrantless search and[/]or
arrest upon probable

his eye sight [sic
less true with regard to misdemeanors, see Clark, 735 A.2d at 1251, it is
simply false with regard to felonies.



                                          - 10 -
J-S53020-12



description and the circumstances when the assailant was discovered

established probable cause to arrest the attacker without a warrant. Id. at

440-41.

       In the case at bar, the evidence at trial established that the police

arrived shortly after Dozier left A.R.

identified Dozier, whom she had known since childhood, as her assailant.

Her neighbor informed police that Dozier was on the street in the



foun

thereafter, A.R. identified Dozier in person as her assailant.

       In Sabb, we supported our determination that the police had probable

cause to arrest the assailant in that case by citing five cases in which our

Supreme Court or we had reached the same conclusion under similar

circumstances     i.e., that the police had probable cause to arrest suspects



considerations.   Id. at 441.    We would struggle to find a more detailed

description of an assailant than an immediate identification by name by a

victim who knew the suspect for many years preceding the assault. Thus,

                                                            e cause   which is




                                     - 11 -
J-S53020-12



devoid of any citations to on-point case law in which a court that binds us

ruled in his favor     is unavailing.7

       In issue 6, Dozier contends that the trial court improperly delayed

sentencing to such an extent that he should be granted discharge. We note

at the outset that Dozier erroneously cites former Pa.R.Crim.P. 1405 for the



                                                             8
                                                                 This is relevant

inasmuch as the distinction adds thirty days to the time period that the trial

court had under the rule to enter its judgment of sentence. While Rule 1405

afforded trial courts sixty days to impose sentence, Rule 704 provides that



Pa.R.Crim.P. 704(A)(1). This time period may be extended by at least thirty

days, and perhaps sixty days, when the trial court remands the defendant

for purposes of a psychiatric or psychological examination, as occurred in
____________________________________________


7
      As well, Dozier does not direct us to where in the record he challenged
his arrest before or during his trial, as required by Pa.R.A.P. 2117(c)
                                             ue is not reviewable on appeal
unless raised or preserved below, the statement of the case shall also

disposed of it.). Our review of the certified record does not indicate that this
was the subject of any pre-trial motion or an objection at trial.
Consequently, even if this issue had a modicum of merit, we might find in
the alternative that it is waived. See Pa.R.A.P. 302(a) (precluding appellate
review of issues not raised in the first instance in the trial court).
8
      Rule 704 was amended and renumbered (from 1405) on March 1,
2000, and took effect on April 1, 2001. Dozier was tried and convicted on
July 11, 2002.



                                          - 12 -
J-S53020-12



this case.    Compare Pa.R.Crim.P.

sentence should be imposed within 90 days of conviction or the entry of a

plea of guilty or nolo contendere, unless the court orders a psychiatric or

psychological examination pursuant to Rule 702(B). Such an order should

extend the time for sentencing for only as much time as is reasonably

required, but in no event should sentencing be extended for more than 30

days    beyond   the   original   90-                                    with

Pa.R.C.P.                                         . . . order the defendant to

undergo a psychiatric or psychological examination.      For this purpose the

defendant may be remanded to any available clinic, hospital, institution, or

state correctional diagnostic and classification center for a period not

exceeding 60 days.

       The above-compared rules and comment leave a degree of uncertainty

as to the duration of the applicable time limit under the circumstances of this

case, wherein the trial court ordered a psychological assessment in advance

of sentencing. In effect, relying upon the inapplicable sixty-day time limit

provided by repealed Rule 1405 and the thirty-day limit that Dozier

maintains applies under Rule 702 (a proposition that arguably is true only if

the comment to Rule 704 trumps the text of Rule 702), questions inhere as

to whether the rules called for Dozier to be sentenced within ninety days

(under Rules 1405 and 702), 120 days (under Rules 702, 704, and the

comment to Rule 704), or 150 days (under the plain text of Rules 702 and

704 standing alone).

                                        - 13 -
J-S53020-12



                                           -day argument because, as noted, Rule

1405 provided for thirty fewer days than successor Rule 704, which plainly

applies to this case. Arguendo, then, we will give Dozier the benefit of his

best-case scenario under the applicable Rules 702 and 704, which would

have required the trial court to sentence Dozier within 120 days, absent

good cause shown. As noted, Dozier was convicted on July 11, 2002. He

was sentenced on December 12, 2002.                Thus, it appears that Dozier was

sentenced 154 days after he was convicted, approximately thirty-four days

later than he should have been under Rules 702 and 704.9 Upon this basis,

Dozier seeks discharge.

       In Commonwealth v. Glass, 586 A.2d 369 (Pa. 1991), our Supreme

Court explained that questions regarding delays in sentencing should be

analyzed under the same standard that applies to alleged speedy trial

violations:

       This Court has firmly established a framework for analysis of
       cases where delays in sentencing have implicated rights to a
       speedy trial under the Sixth Amendment and under Article I, § 9
       of the Pennsylvania Constitution. Commonwealth v. Glover,
       458 A.2d 935 (Pa. 1983); Commonwealth v. Pounds,
       417 A.2d 597, 599 (Pa. 1980). The factors to be considered in
       such cases were described as follows in Glover, 458 A.2d
       at 937:

____________________________________________


9

days after his was convicted. See Brief for Dozier at 28. The distinction is
immaterial.




                                          - 14 -
J-S53020-12



         speedy trial right has been violated, it must first be
         determined whether the delay itself is sufficient to trigger
         further inquiry. Barker v. Wingo, 407 U.S. 514 (1972);
         Jones v. Commonwealth, 434 A.2d 1197 (Pa. 1981). If
         the delay is sufficient to trigger further inquiry, the
         reviewing court must balance the length of the delay with

         of his right to a speedy trial, and any resulting prejudice to
         the interests protected by the right to a speedy trial.
         Barker, supra; Pounds, supra.

Glass, 586 A.2d at 371-72 (citations modified). Thus, merely establishing

that more time separated conviction and sentencing than the rules intended

does not necessitate discharge.    Rather, discharge is called for only when

the delay in question causes the defendant prejudice. Commonwealth v.

Anders, 725 A.2d 170, 173 (Pa.

sentenced in violation of Rule 1405 is entitled to a discharge only where

the defendant          can demonstrate that      the delay     in sentencing

prejudiced him or her.

the totality of the circumstances, as no one factor is necessary, dispositive,

or of sufficient imp                               Id.

      Assessing this case in light of the above factors, it is clear that Dozier

is not entitled to discharge. First, the delay, at most, amounted to just over

thirty days.    Relative to the brutality of his crime, the need for a

psychological evaluation, and the utter improbability of him receiving a

sentence not measured in decades, an extra thirty days in advance of

sentencing, roughly twenty-five percent longer than the prescribed limit and

a period for which he was credited with time served, cannot be said to be so

                                     - 15 -
J-S53020-12



prejudicial as to require discharge. Second, Dozier has not even attempted

to inform us as to whether, when, and how he objected to this delay, if at

all. More generally, Dozier has in no way stated or implied how the modest

delay at issue in any way imposed upon his due process or speedy trial

rights, or otherwise prejudiced him, in light of the fourteen and one-half to

twenty-nine-year     sentence    that    the     trial   court   ultimately   imposed.

Inasmuch as the existence of prejudice is a sine qua non to an award of

relief for a violation of Rules 702 and 704, and Dozier has made no showing

of prejudice, he is not entitled to relief on this issue.




Dozier during the pendency of this appeal, pertains to the alleged illegality of

his detention due to the fact that the trial court did not enter a written order

                                of sentence. The precise legal basis asserted is

difficult to resolve into something warranting meaningful discussion. Aside



sentencing authority, he appears to seek relief for a putative violation of

42 Pa.C.S. § 9764(b)(5), which requires a sentencing court to provide a




                                        - 16 -
J-S53020-12



judgment of sentence.10 His argument evidently rests upon the assumption

that, because his numerous requests for criminal justice agencies to provide

him with a copy of his sentencing order have been rebuffed, 11 such a

sentencing order must not exist and, therefore, he is being held illegally.

       We need not review the necessity of a written sentencing order to

reject this argument. Regardless of whether Dozier was unable to procure a

copy of his sentencing order from various individuals and agencies, our

review confirms that the certified record contains a sentencing order

reflecting precisely the judgment of sentence recited at the outset of this

opinion. Because the categorical nonexistence of such an order appears to

                                                         ails.   Moreover, this

Court recently has held that it matters not whether the sentencing order is in

the possession of any administrative or judicial body other than the certified

record retained by the court of common pleas. See Joseph v. Glunt, ___

A.3d ___, 899 WDA 2013, 2014 WL 2155396, at *6 (Pa. Super. May 23,

2014).     As in Joseph, the certified record in this case confirms and
____________________________________________


10

which was filed during the pendency of this appeal, refers to section 9764,
his otherwise very similar argument on this topic in his brief relies
exclusively upon a litany of cases of dubious relevance to this case. See
Brief for Dozier at 33-37.
11
      Dozier documents his efforts to obtain his sentencing order by
attaching to his motion voluminous correspondence between him and
various individuals and agencies, in which said individuals and agencies
denied that such an order was in their possession.



                                          - 17 -
J-S53020-12




                                               the same reasons,




           Shogan, J. concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/20/2014




                                   - 18 -
