J-S79030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                           Appellee

                      v.

KEVIN MOBLEY

                           Appellant                  No. 642 EDA 2011


           Appeal from the Judgment of Sentence August 30, 2010
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0004178-2007


BEFORE: GANTMAN, P.J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.:                              FILED MAY 26, 2017

      Kevin Mobley appeals from the judgment of sentence entered on

August 30, 2010 by the Philadelphia County Court of Common Pleas.        We

affirm.

      We previously discussed the relevant procedural history of this matter

as follows:

              On August 30, 2010, Mobley pled nolo contendere to a
          charge of third-degree murder1 and was sentenced to 15
          to 30 years’ incarceration. On September 8, 2010, Mobley
          filed post-sentence motions, which he had earlier
          presented as pro se pre-trial motions, in part, challenging
          the trial court’s jurisdiction to hear his case. On February
          7, 2011, the trial court entered an order denying Mobley’s
          post-sentence motions.2
               1
                   18 Pa.C.S. § 2502(c).
               2
                 The trial court’s February 7, 2011 order
               disposing of Mobley’s post-sentence motions
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              includes the court’s reasons for denying the
              motions. See Order, 2/7/11.

           On March 8, 2011, Mobley filed a timely notice of
        appeal. On April 7, 2011, the trial court entered an order
        directing Mobley to file a statement of errors complained of
        on appeal pursuant to Pa.R.A.P. 1925(b) within 21 days.
        Mobley never filed a 1925(b) statement.3 The trial court
        did not file an opinion in support of its order pursuant to
        1925(a),4 and the judge who denied Mobley’s post-
        sentence motions is no longer sitting as a judge in
        Philadelphia County.
              3
                The record reflects Mobley was counseled at
              the time he filed his notice of appeal and at the
              time the trial court entered the Rule 1925(b)
              order.
              4
                On July 18, 2011, the trial court sent a letter
              to this Court, indicating that it would forward
              the record without an opinion because Judge
              Renee Cardwell Hughes was no longer sitting
              on the bench.

           On appeal, Mobley avers that his counsel at the time
        never received the trial court’s April 7, 2011 order,
        because it was sent to the wrong address. Mobley’s Br. at
        5. Mobley further avers that “previous counsel never
        noticed that a 1925(b) Order was ever entered until
        previous counsel was reviewing the Philadelphia Court of
        Common Pleas record that was in the file in Superior
        Court.” Id.

Commonwealth v. Mobley, No. 642 EDA 2011, unpublished memorandum

at 1-3 (Pa.Super. filed Jan. 11, 2017).   Because our review of the record

revealed that Mobley’s prior appellate counsel was per se ineffective for

failing to file a Rule 1925(b) statement as ordered, we remanded for the

filing of a 1925(b) statement nunc pro tunc and for the trial court’s

preparation of a Rule 1925(a) opinion. On February 9, 2017, Mobley filed



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his 1925(b) statement.         On March 24, 2017, the trial court filed its Rule

1925(a) opinion.1

       Mobley raises the following issues on appeal:

            I. Was the purported rewriting of the Constitution in 1968
            impermissible and as such null and void?

            II. Since there is no provision in the Pennsylvania
            Constitution authorizing the enactment of a criminal code,
            was such an enactment unconstitutional, depriving the
            Pennsylvania courts of jurisdiction to hear criminal
            matters?

            III. If the Constitution of 1968 should be deemed to be
            proper and legal, did the ratification abolish the power of
            the Office of the District Attorney to prosecute any case in
            the Commonwealth rendering any conviction a nullity?

            IV. Does the absence of an enacting clause in the Crimes
            Code render any attempt to charge this defendant with a
            crime due to a lack of jurisdiction?

Mobley’s Br. at 3.

       Mobley first challenges the 1968 revision of the Constitution of

Pennsylvania, asserting that the original 1776 constitution contained a

provision2 prohibiting such revision.          As the provision clearly states, the

____________________________________________


       1
        The Honorable Jeffrey P. Minehart prepared the Rule 1925(a)
opinion. We note that the relatively lengthy procedural history of this appeal
includes the substitution of appellate counsel in 2013 and two hearings
pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), held in
2012 and 2015.
       2
           The constitutional provision in question reads as follows:

            The members of the house of representatives shall be
            chosen annually by ballot, by the freemen of the
(Footnote Continued Next Page)


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Pennsylvania     General      Assembly      was   prohibited   from   amending   the

constitution.   However, the amendments that resulted in the Pennsylvania

Constitution of 1968, while drafted by the General Assembly, were approved

and adopted by the electorate.3 Therefore, this argument is without merit.


                       _______________________
(Footnote Continued)

           commonwealth, on the second Tuesday in October forever,
           (except this present year,) and shall meet on the fourth
           Monday of the same month, and shall be stiled The general
           assembly of the representatives of the freemen of
           Pennsylvania, and shall have power to choose their
           speaker, the treasurer of the state, and their other
           officers; sit on their own adjournments; prepare bills and
           enact them into laws; judge of the elections and
           qualifications of their own members; they may expel a
           member, but not a second time for the same cause; they
           may administer oaths or affirmations on examination of
           witnesses; redress grievances; impeach state criminals;
           grant charters of incorporation; constitute towns,
           boroughs, cities, and counties; and shall have all other
           powers necessary for the legislature of a free state or
           commonwealth: But they shall have no power to add
           to, alter, abolish, or infringe any part of this
           constitution.

Pa. Const. of 1776, Plan or Frame of Government for the Commonwealth or
State   of    Pennsylvania,   §  9    (emphasis  added),   available at
http://www.phmc.state.pa.us/portal/communities/documents/1776-
1865/pennsylvania-constitution-1776.html.
      3
          In Commonwealth v. Stultz, we noted:

           The Constitution of 1874 was modified and renumbered by
           extensive amendments on May 17, 1966, November 8,
           1966, and May 16, 1967; and by proclamation of the
           Governor of July 7, 1967, P.L. 1063, pursuant to the act of
           August 17, 1965 (P.L.345, No. 180). Proposals 1 through
           7 to amend the Constitution were recommended by a
           Constitutional Convention which was called pursuant to the
(Footnote Continued Next Page)


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       Next Mobley claims that Pennsylvania courts have no jurisdiction to

hear criminal matters because our state constitution does not contain a

provision authorizing the enactment of a criminal code.            We disagree.      In

Commonwealth v. Stultz, 114 A.3d 865 (Pa.Super.), app. denied, 125

A.3d 1201 (Pa. 2015), we considered and rejected an identical challenge to

the jurisdiction of our state trial courts to hear criminal matters. We held

that   “[s]ince   nothing      in   the   Pennsylvania   Constitution   prohibits   the

Commonwealth from enacting criminal statutes, the enactment of the

Pennsylvania Crimes Code and Motor Vehicle Code were valid exercises of

power.” Id. at 877. Therefore, Mobley’s claim is meritless.

       Mobley further contends that the ratification of the 1968 Pennsylvania

Constitution abolished the power of the District Attorney’s Office to

prosecute crimes in the Commonwealth. Because Mobley does not cite any

legal authority in support of this contention, we find that he has not properly




                       _______________________
(Footnote Continued)

          act of March 15, 1967 (P.L.2, No.2). The proposals were
          approved by the electorate on April 23, 1968. By statute,
          1 Pa.C.S. § 906, the Constitution, as amended by
          referenda of May 17, 1966, November 8, 1966, May 16,
          1967, and April 23, 1968, and as numbered by
          proclamation of the Governor of July 7, 1967, shall be
          known and may be cited as the Constitution of 1968.

114 A.3d 865, 875 n.6 (Pa.Super.) (quotation omitted), app. denied, 125
A.3d 1201 (Pa. 2015).




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developed this claim. Therefore, it is waived.4      See Lackner v. Glosser,

892 A.2d 21, 29-30 (Pa.Super. 2006) (“Appellate . . . arguments which are

not appropriately developed are waived.           Arguments not appropriately

developed include those where the party has failed to cite any authority in

support of a contention.”) (citations omitted).

       Finally, Mobley claims that he cannot be charged with a crime under

the Pennsylvania Crimes Code because it lacks an “enacting clause.” Again,

we conclude that Mobley has failed to adequately develop his argument,5

____________________________________________


       4
        Mobley appears to indirectly challenge the jurisdiction of the District
Attorney’s Office by arguing that the 1968 Pennsylvania Constitution did not
contain a “‘saving schedule’ of all statutes, laws, prosecutions and codes
stemming from the 1874 Constitution.” Mobley’s Br. at 21. This argument
is meritless. In Stultz, we rejected a similar challenge. Stultz, 114 A.3d at
873 (“Appellant’s initial argument appears to be that the Pennsylvania
Crimes Code was repealed by the 1968 Pennsylvania Constitution because
the amendments to the 1874 Constitution failed to include a savings
clause.”) (footnote omitted). We concluded that

           [t]he 1968 Constitution amended the 1874 Constitution via
           a limited Constitutional Convention as well as through
           other amendments. Therefore, the 1874 Constitution was
           never suspended or completely abrogated. . . . [O]nly
           those laws that were clearly and unequivocally inconsistent
           with the substantive changes made between the 1874
           constitution and 1968 constitution would be abrogated. . .
           . [Moreover,] the enactment of the 1968 Pennsylvania
           Constitution could not repeal the Crimes Code since that
           code did not exist until 1972, four years after the 1968
           Constitution was adopted.

114 A.3d at 875 (footnote and citation omitted).
       5
        The corresponding argument section in Mobley’s brief again focuses
on the lack of a “savings clause” in the Pennsylvania Constitution. However,
(Footnote Continued Next Page)


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thereby waiving this issue.6 See Irwin Union Nat’l Bank & Trust Co. v.

Famous, 4 A.3d 1099, 1103 (Pa.Super. 2010) (“This Court will not act as

counsel and will not develop arguments on behalf of an appellant. . . . When

deficiencies in a brief hinder our ability to conduct meaningful appellate

review, we may dismiss the appeal entirely or find certain issues to be

waived.”); see also Lackner, 892 A.2d at 29-30.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/26/2017

                       _______________________
(Footnote Continued)

Mobley did not raise this issue in either his post-sentence motions or his
Rule 1925(b) statement. Therefore, it is waived. See Pa.R.A.P. 302(a)
(“Issues not raised in the lower court are waived and cannot be raised for
the first time on appeal.”); Commonwealth v. Lord, 719 A.2d 306, 309
(Pa.Super. 1998) (“Any issues not raised in a 1925(b) statement will be
deemed waived.”).
      6
        Even if Mobley had not waived this issue, we would find it meritless.
In Stultz, we addressed a challenge to the Crimes Code on the basis that it
did not contain an enacting clause. Although the appellant in Stultz was not
charged under the Crimes Code, we nonetheless reviewed “the official
codification of the Pennsylvania Crimes Code enacted by the General
Assembly in 1972, reveal[ing] the enacting clause immediately before the
table of contents for Title 18.” 114 A.3d at 879.




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