J-S10036-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    SUNIL RAGANIKAND SHUKLA                    :
                                               :   No. 1430 EDA 2017
                       Appellant

             Appeal from the Judgment of Sentence March 31, 2017
      In the Court of Common Pleas of Monroe County Criminal Division at
                        No(s): CP-45-CR-0001587-2016


BEFORE: BOWES, J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.:                                FILED APRIL 06, 2018

        Appellant Sunil Raganikand Shukla appeals pro se from the judgment of

sentence following his conviction for driving under the influence (DUI) –

general impairment.1        Appellant asserts that the Commonwealth failed to

present sufficient evidence to sustain his conviction since the evidence was

limited to the arresting officer’s observations and the results of the horizontal

gaze nystagmus (HGN) test the officer administered to Appellant. We affirm.

        The trial court summarized the relevant facts as follows:

        On May 11, 2016, Pennsylvania State Police Corporal Thomas
        Hothouse (“Corporal”) was in full uniform and working in an
        unmarked patrol unit on Interstate 80 eastbound near Mile post
        305 in Stroudsburg Borough, Monroe County, PA. Appellant was
        directly in front of Corporal’s patrol unit as they both travelled
        eastbound. While driving in the right lane[,] Corporal observed
        Appellant cross the white right fog [line] twice. Corporal then
____________________________________________


1   75 Pa.C.S. § 3802(a)(1).
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       observed Appellant travel into the left lane without signaling.
       While in the left lane[,] Appellant pulled closely behind the vehicle
       in front of him and began flashing his high/low beams. Corporal
       activated his visual lights and siren and Appellant pulled to the left
       onto the small center berm near the cement barriers.

       Corporal approached Appellant’s drive[r] side door and
       immediately observed a strong odor of an alcoholic beverage
       coming from within the vehicle. Additionally, Corporal observed
       that Appellant was not wearing a seatbelt. Corporal requested
       [A]ppellant’s license, registration and insurance cards. As he
       retrieved these items[, Corporal] also asked Appellant a series of
       brief questions. During their exchange[,] Corporal noticed the
       odor of alcohol was increasing and also observed Appellant’s eye
       to be blood shot and glassy. Additionally, during questioning
       Appellant would frequently stop looking at Corporal in order to
       better concentrate on the questions.

       Corporal asked Appellant to step out of the vehicle and submit to
       a field sobriety test[,] to which Appellant complied. During the
       execution of the tests[,] Corporal observed Appellant to be unsure
       on his feet as he walked to the rear of the patrol vehicle.
       Additionally, Appellant swayed as he stood still.

       After the execution of the field sobriety tests[,] Corporal advised
       Appellant that he was under arrest. Corporal hand cuffed,
       searched, and secured Appellant in the passenger side rear seat
       of his patrol unit.

       Appellant’s blood was draw[n] at Monroe County DUI Center,
       resulting in a [blood alcohol content (BAC)] of 0.138%.[2]


____________________________________________


2 On May 11, 2016, Appellant initially was charged with DUI – general
impairment and DUI – high rate of alcohol. See 75 Pa.C.S. § 3802(a)-(b).
However, on June 23, 2016, the Supreme Court of the United States decided
Birchfield v. North Dakota, 126 S. Ct. 2160 (2016), which held that the
Fourth Amendment does not permit warrantless blood tests incident to arrests
for drunk driving. Id. at 2185. On this basis, the Commonwealth withdrew
the count regarding DUI with a high rate of alcohol and did not admit the
results of Appellant’s blood test into evidence at trial.




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        On January 31, 2017, Appellant was tried by bench trial [and] was
        found guilty as to [general impairment DUI and the summary
        offenses of careless driving and failure to use a seatbelt].[3] A Pre-
        Sentence Investigation Report was prepared and on March 31,
        2017, Appellant was sentenced to a period of six months’
        probation and a $350 fine.

Trial Ct. Op., 6/20/17, at 1-3 (unpaginated) (footnotes omitted).

        Appellant did not file a post-sentence motion, but instead filed the

instant timely appeal on April 26, 2017. The trial court entered an order on

April 27, 2017, directing Appellant to file a concise statement of errors

complained of on appeal under Pa.R.A.P. 1925(b). The trial court indicated in

its opinion pursuant to Pa.R.A.P. 1925(a) that it timely received Appellant’s

concise statement on May 11, 2017, but found all issues waived due to the

vague presentation of the alleged errors on appeal.4

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3   Appellant proceeded pro se at the bench trial.

4 Although the trial court indicated that it received Appellant’s concise
statement, there is no indication in the docket or the record that the statement
was filed as required by the court’s April 27, 2017 order. A purported copy of
Appellant’s concise statement is attached to his appellate brief and contains
the following errors on appeal:

                       STATEMENT OF MATTERS OF APPEAL

        Trial court order is procedurally deficient as it is lacking in listing
        basis for indictment

        Trial court order is defective as it is giving superfluous credulity to
        prima-facie observations

        Trial court order is defective as it arrives at conclusions without
        verification of the prima-facie evidences/observations and hence
        surmising



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____________________________________________


       Trial court is lacking in its judgement as it assumes particular
       human behavioral action can happen for only one particular
       reason and hence ignoring facts that suggest otherwise

       Trial court never provided the material/evidence requested by
       defendant in the discovery packet due to which alibi by the
       defendant was never complete and that lacuna in the process was
       never addressed which could affect the verdict heavily

       The trial court assumed all the equipment used at the spot of
       incident to be completely free of any defect/improper
       maintenance, i.e. camera, breathe tester etc. Including officer’s
       eyesight

       The order is defective as it ignores defendant’s disease and
       medicines taken at the time of incident and its overall effect on
       the odor produced and its reaction with other chemicals

       The order is procedurally deficient as it does not provide any
       information on appeal procedure

       The order is defective as it is ignoring the ethnic human habits
       and associated behavior which is normal at all times under no
       influence

       Trial court sets aside constitutional and basic human rights
       associated with the law being imposed upon defendant and thus
       delivers only verdict and not justice

       Trial court defines crime without a victim, an evil intention or a
       motive and hence changing the very definition of crime

       Trial court consumed more than a year worth of time while
       following procedure and steps that was never accommodating any
       requests made by defendant and hence defendant could never
       prepare his alibi in to-to

       Trial court has delivered verdict in a manner which is against
       bona-fide court practices

       Ex-Parte Order:

       The order was never mailed to the defendant and hence the
       defendant waited until 25 days before the defendant had to go in



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         Appellant, in his pro se brief, raises the following issue for our review:

         [Whether] the lower court erred when it announced the sentence
         not on the basis of scientific evidence[,] but only on the basis of
         prima-facie observations of the investigating officer, HGN Test,
         and police officer’s testimony.

Appellant’s Brief at 4 (unpaginated).

         Appellant asserts that the trial court erred in convicting him on the basis

of “nothing but mere observations” of the arresting police officer. Id. at 9.

Appellant also challenges the accuracy of the HGN test, which was

administered to him at the time the officer stopped Appellant’s vehicle. Id.

at 11.

         Before we reach the merits of Appellant’s arguments, we note that

Appellant’s failure to file the concise statement provides a basis for waiving all

issues. See Commonwealth v. Schofield, 888 A.2d 771, 774 (Pa. 2005)

(indicating waiver where Rule 1925(b) statement is not filed, even if served


____________________________________________


         person to the court to collect the same, as a result there was a
         significant delay in initiating the appeal process

         The clerk of court never directed the defendant in the appeal
         process and always gave vague answers to the extent that they
         never mail any document

         The court staff in its entirety never acknowledged documents as
         per PA RAP 121(A)

         The concise statement order was received after 8 days of its
         written date and the defendant could only get 13 days out of total
         21 days permitted including mailing time

Concise Statement of Errors Complained of on Appeal.


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on the trial judge, because “the lack of filing results in the inability of the

appellate courts to determine which issues were presented to the trial court,

and thus preserved for appeal”). Likewise, the vague nature of the statement

apparently received by the trial court would provide a separate basis for

waiver.   See Commonwealth v. Ray, 134 A.3d 1109, 1114 (Pa. Super.

2016) (finding waiver based upon vague pro se Rule 1925(b) statement).

      Moreover, Pa.R.A.P. 2119 requires that:

      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.

Pa.R.A.P. 2119(a). Claims may be waived under Rule 2119(a) for failure to

cite to relevant case law or to otherwise develop issues in a meaningful fashion

capable of review. See Commonwealth v. Johnson, 985 A.2d 915, 924

(Pa. 2009) (indicating that “where an appellate brief fails to provide any

discussion of a claim with citation to relevant authority or fails to develop the

issue in any other meaningful fashion capable of review, that claim is waived”

(citations omitted)); Commonwealth v. McDonald, 17 A.3d 1282, 1286 (Pa.

Super. 2011) (finding sufficiency of the evidence claim waived for failure to

cite pertinent case law).   Additionally, “[a]lthough the courts may liberally

construe materials filed by a pro se litigant, pro se status confers no special

benefit upon a litigant, and a court cannot be expected to become a litigant’s

counsel or find more in a written pro se submission than is fairly conveyed in

the pleading. Commonwealth v. Blakeney, 108 A.3d 739, 766 (Pa. 2014).

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       Instantly, Appellant’s argument is not developed as required by

Pa.R.A.P. 2119(a), and Appellant failed to include any citation to pertinent

authority in his brief. See Johnson, 985 A.2d at 924; McDonald, 17 A.3d

at 1286. We cannot act as Appellant’s counsel or read more into his brief than

it fairly conveys. See Blakeney, 208 A.3d at 766. Accordingly, Appellant’s

arguments are waived.5

       For the foregoing reasons, we find that Appellant has waived all issues

on appeal and we affirm the judgment of sentence.

     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/6/18




____________________________________________


5 In any event, even if we were to find that Appellant had not waived his
arguments on appeal based on Pa.R.A.P. 1925(b)(1) and 2119(a), we note
that Appellant’s arguments go to the weight of the evidence and that Appellant
also failed to preserve that issue by failing to filing a post-sentence motion or
otherwise raise the claim before the trial court. See Pa.R.Crim.P. 607(A)
(indicating that a claim that a verdict was against the weight of the evidence
must be raised at the time of sentencing, in a motion before sentencing, or in
a post-sentence motion). Additionally, Appellant did not object to the
arresting officer’s testimony regarding the administration of the HGN test on
Appellant. See Pa.R.A.P. 302(a).


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