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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee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 Januar y 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 S HOGAN, 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 c onviction for the summary offense of scattering rubbish, 18 Pa.C.S. § 6501(a)(1) (hereinafter, “littering”). The issues in this app eal evolved out of the citing officer’s failure to list his own badge number on t he littering citation, and that officer’s subsequent effort(s) to amend the ci tation to correct that error. Appellant claims, inter alia , that the amending of the citation violated his due process rights. After careful review, we affir m. Appellant was initially convicted of littering bef ore 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:J-A04024-16

- 2 - At the de novo hearing, Officer Matthew Lucas, a Sergeant with the Bellevue Borough Police Department, testif ied that on August 16, 2014, the Chief of the Bellevue Borough Police Department assigned him to a plain-clothes detail o n Lincoln Avenue for the purpose of enforcing the anti-litter ing 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 t urned and threw his cigarette onto the street. Officer Lucas stopped [Appellant] and identified hi mself. The Officer then requested a second officer at the loca tion. Officer Dunker responded and Officer Lucas issued a Citatio n to [Appellant]. Officer Lucas used Officer Dunker's l aptop computer to issue the Citation and print it and hand it to [ Appellant]. [Appellant] did not deny that he threw the cigarett e butt on the street and that Officer Lucas observed him whil e he did it. Instead, [Appellant] argued that the Citation was d efective and, therefore, prejudiced him in some way. He failed t o 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 C itation. Officer Lucas requested permission from the Court t o 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], introdu ced 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 C itation: When I called Officer Dunker down to my location I actually used his laptop because I was on plain-clo thes 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 a nd not tie him up for any longer than I needed to. And when I printed the citation, it defaulted to Officer Dunke r's badge number. That's how that clerical error occurred.J-A04024-16

- 3 - Officer Lucas also testified that he amended the Ci tation at the hearing before the Magisterial District Court p rior 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 th e Summary Appeals Division of the Court of Common Pleas of Allegheny County. Following the hearing, Judge Gallo found Appellant guilty and imp osed a $300.00 fine. Appellant filed a timely notice of appeal. He als o filed a timely, courtordered Pa.R.A.P. 1925(b) statement. Judge Gallo i ssued a Rule 1925(a) opinion on April 27, 2015. Appellant is pro se . In his brief, Appellant presents the following que stions for our review: [1.] Is [A]ppellant entitled to reversal of the Sum mary Appeal Trial Court's verdict or a new trial because the er roneous conclusion the Summary Appeal Trial Court made of t he citation[’s] having been amended on August 19, 2014 violated both [A]ppellant's Procedural Due Process rights un der the 5th and 14th Amendments to the United States Constituti on, and codified at Commonwealth of Pennsylvania Constituti on Article I, Sections §1, §9 and § 10, and because the prosecuti on is unable to show that the error in concluding that the citat ion was amended on August 19, 2014 was harmless beyond a re asonable doubt? [2.] Is [A]ppellant entitled to a reversal of the S ummary Appeal Trial Court's verdict or a new trial because [A]ppe llant provided the Summary Appeal Trial Court with evidence of imp roper and prejudicial ex parte communication had occurred before the September 29, 2014 Magisterial District Court heari ng?J-A04024-16

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[3.] Is the sufficiency of the evidence supportive of the Summary Appeal Court's finding that the Commonwealt h established by clear and convincing evidence that [ A]ppellant should be found guilty of violating [18 Pa.C.S. § 6 501(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 c ommitted and whether the findings of fact are supported by c ompetent evidence. Commonwealth v. Lutes , 793 A.2d 949 (Pa. Super. 2002). “The adjudication of the trial court will n ot 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 condu cted ex parte before the magistrate, thereby violating his state and fed eral due process rights. Despite obvious and numerous defects in Appellant’s brief, 1 we will address this matter.

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1 The defects in the form of Appellant’s pro se brief are too numerous to list. Most noticeable, however, is that the “Argument” se ction of Appellant’s brief contains virtually no arguments, but instead merely summarily states three reasons why Appellant believes himself to be entitl ed to relief, without any reference to the record or citation to any pertinen t 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 t o be argued; and shall have at the head of each part--in distinctive type or in type distinctively displayed--the particular point treated therein, fo llowed by such discussion and citation of authorities as are deemed pertinent .”). Nevertheless, Appellant does provide such arguments, references t o the record, and citation to ostensibly relevant legal authorities i n the “Relevant Procedural (Footnote Continued Next Page)J-A04024-16

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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 communicat ions, 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 wh ether a due process violation occurred because, even assuming the amend ment to the littering citation violated some principle of due process, we agree with the summary appeals court that Appellant has failed to demonstr ate that he was prejudiced by it. Our rules of criminal procedure provide that: A defendant shall not be discharged nor shall a cas e be dismissed because of a defect in the form or conten t of a complaint, citation, summons, or warrant, or a defe ct in the procedures of these rules, unless the defendant rai ses the defect before the conclusion of the trial in a summary cas e or before the conclusion of the preliminary hearing in a cour t case, and the defect is prejudicial to the rights of the defendan t

. 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 wa ived due to these defects, see Commonwealth’s Brief at 14, we decline to do so, a s the defects do not substantially impair our ability to address Appellant’s claims.J-A04024-16

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At the summary appeal hearing, Appellant did not co ntest whether Officer Lucas issued the citation to him on August 16, 2014: THE COURT: Okay. Now let me ask you this, sir. Di d 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 was n’t Officer Lucas? [Appellant]: You know what? I don’t – it was a whi le ago. He says he might have had sunglasses, maybe not. THE COURT: Okay. Sir, just answer the question. D id you or did you not see him? [Appellant]: I saw a young man -- THE COURT: Okay. [Appellant]: -- who I later learned was Sergeant Lu cas. THE COURT: Yes, he introduced himself, he was Serge ant 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 t he citation was amendedJ-A04024-16

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could not have prejudiced him. The only argument w e can ascertain from Appellant’s brief that touches upon his burden of d emonstrating 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 int erests such a conspiracy would serve. In any event, Officer Lucas sought to amend the ci tation in open court before Judge Gallo during the summary appeals proce eding. 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 a nd 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 a new. The reviewing body is in effect substituted for the prior decision mak er 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 w ith respect to his first two claims. Appellant’s third claim concerns the sufficiency o f the evidence. Our standard of review of sufficiency claims is wel l-settled:J-A04024-16

- 8 - 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 eleme nt of the crime charged and the commission thereof by the acc used, beyond a reasonable doubt. Where the evidence offe red to support the verdict is in contradiction to the phys ical facts, in contravention to human experience and the laws of n ature, then the evidence is insufficient as a matter of law. W hen reviewing a sufficiency claim[,] the court is required to view the evidence in the light most favorable to the verdict winner givi ng the prosecution the benefit of all reasonable inference s 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 hi s statement of the questions presented, see Appellant’s Brief at 2, we could only find two sho rt references to this claim in the remainder of his br ief. Specifically, in the section titled, “Summary of the Argument,” Appellan t baldly states: “There is not sufficient evidence in the record to find [A]pp ellant guilty and the verdict should be set aside due to insufficient evidence to support that finding.” Id. at 13. Subsequently, in the “Conclusion” section o f his brief, Appellant baldly states: “The trial court’s order finding [Ap pellant] guilty of violating [18 Pa.C.S. § 6501(a)(1)] should be set aside due t o 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 there of, and the lack of any references to the record supporting this claim, col lectively lead to ourJ-A04024-16

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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 impe de our ability to conduct meaningful appellate review, we may dismiss the app eal 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 pre judiced by the amendment to the littering citation that ostensibly occurred before the magistrate. We also conclude that Appellant has wa ived any sufficiency claim. Judgment of sentence affirmed

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/30/2016