J-S58001-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOSEPH CHARLES SMITH,

Appellant No. 1015 WDA 2012

Appeal from the PCRA Order May 29, 2012

in the Court of Common Pleas of Allegheny County

Criminal Division at Nos.: CP-02-CR-0008807-2003;

CP-02-CR-0010345-2004

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED NOVEMBER 21, 2014

Appellant, Joseph Charles Smith, appeals pro se from the order 

denying him relief pursuant to the Post Conviction Relief Act (PCRA), 42 

Pa.C.S.A. §§ 9541–9546, without a hearing, as without merit. Appellant’s 

pro se brief substantially fails to comply with our rules of appellate 

procedure. We quash.

We summarize only the facts most relevant to the disposition of this 

appeal. On April 30, 2003, four co-conspirators in ski masks kidnapped 

David Williams, Lakeenah Fitts, and their infant child. The assailants beat 

Williams and demanded $150,000 ransom. There ensued a frantic effort by 

Williams and Fitts to obtain sufficient funds from various relatives and 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
J-S58001-14

- 2 -

friends to pay the ransom. The kidnappers drove Williams, Fitts, and their 

child around in Williams’ van, as they tried to get the money. One of the 

people they tried to get ransom money from was Erica Lunsford, a former 

girlfriend of Williams. When the efforts ultimately failed, Williams’ captors 

shot and killed him. The kidnappers left Williams, dead or dying, in his van, 

alone with his infant daughter. 

Around that time, a 911 call reported that two black males wearing ski 

masks were seen jumping out of a white van and getting into a blue S-10 

Chevy blazer. The police subsequently found the blazer. It had been set on 

fire and was severely damaged. The blazer belonged to Appellant. 

Ms. Fitts eventually identified Appellant as the driver in the 

kidnapping.1 Appellant concedes that he was the owner of the getaway 

blazer, and that it was subsequently burnt. (See Appellant’s Brief, at 5). 

Appellant first agreed to turn himself in to the police with his lawyer, but fled 

instead. He was captured by the fugitive squad a year later. 

____________________________________________

1 Ms. Fitts and Ms. Lunsford independently identified Appellant. Both 

testified they had seen him briefly remove his mask. Ms. Fitts had initially 

identified someone else, John Brazella, as the getaway driver. Police led Ms. 

Fitts to Brazella because the vehicle he owned resembled the description of 

the getaway van. (See Commonwealth’s Brief, at 14). Appellant was 

eventually identified as the owner of the getaway vehicle. Ms. Fitts 

identified him as the kidnap driver from a photo array. 
J-S58001-14

- 3 -

At trial, defense counsel cross-examined Ms. Fitts on her earlier 

identification of Brazella and her subsequent identification of Appellant. Ms. 

Lunsford also identified Appellant. Appellant testified in his own defense, 

denying any involvement in the kidnap or murder. (See N.T. Trial, 2/08/05, 

at 487). He admitted ownership of the Chevy blazer (conceding that he did 

not have a driver’s license), but claimed it had been stolen on the day of the 

kidnapping, shortly before it was burned. 

A jury convicted Appellant of murder of the second degree, 

kidnapping, burglary, robbery and conspiracy. The trial court imposed the 

mandatory sentence of life imprisonment for the murder and a concurrent 

term of not less than ten nor more than twenty years’ imprisonment for the 

criminal conspiracy conviction. 

After Appellant’s direct appeal rights were reinstated nunc pro tunc, 

this Court affirmed the judgment of sentence on direct appeal and our 

Supreme Court denied allowance of appeal. (See Commonwealth v. J. 

Smith, NO. 1915 WDA 2005 (unpublished memorandum) (Pa. Super. filed 

March 12, 2008), appeal denied, 990 A.2d 729 (Pa. 2010)). 

Appellant filed the instant petition for PCRA relief, on July 2, 2010. 

The court appointed counsel, who filed an amended petition. The PCRA 

court filed notice of its intent to dismiss on January 31, 2012. While still 

represented, Appellant filed objections and a premature pro se notice of 
J-S58001-14

- 4 -

appeal. The court held a Grazier hearing,2and found Appellant’s waiver of 

counsel to be knowing, voluntary and intelligent; it granted him leave to 

represent himself on appeal. The court issued a final order, and Appellant 

filed another notice of appeal.3 

Appellant raises six questions for our review.4 

1. Did PCRA counsel fail to raise a [sic] issue of merit 

where trial counsel was ineffective for failing to file a motion to 

suppress Lakeenah Fitts[’] identification of Appellant and 

protecting his rights under the 6th and 14th amendments to the 

U.S. Const [sic] & Art [sic] 1 § 9 of the PA Const [sic]?

2. Did PCRA counsel fail to raise a [sic] issue of merit 

where trial counsel was ineffective for failing to object when the 

judge sealed five jury questions about the facts of the case 

during their premature jury deliberations and protect 

Appellant[’]s rights to a fair and impartial jury guaranteed under 

the 6th & 14th Amendments to the U.S. Const [sic] and Art [sic] 

1 § 9 of the PA Const [sic]?

3. Did PCRA counsel fail to raise a [sic] issue of merit 

where trial counsel was ineffective for failing to object to a 

faulty, confusing and misleading jury instruction relating to 

murder and protect Appellant[’]s 6th & 14th Amendment rights to 

the U.S. Const [sic] and Art [sic] 1 § 9 of the PA Const [sic]?

5. Did PCRA counsel fail to raise a [sic] issue of merit 

where trial counsel was ineffective for failing to recall alibi 

____________________________________________

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

3 Appellant filed three concise statements of error. (See Commonwealth’s 

Brief, at 25); see also Pa.R.A.P. 1925(b). The trial court filed a statement 

of reasons (dated 2/5/14), on February 11, 2014. See Pa.R.A.P. 1925(a). 

4 We reproduce the questions in Appellant’s original order of presentation, 

and as manually re-numbered by him. 
J-S58001-14

- 5 -

witness in surrebuttal and failing to object to the prosecutor[’]s 

repeated highlighted references to defendant invoking his rights 

under the Fifth and Sixth Amendment to the U.S. Const [sic] and 

Art [sic] 1 § 9 of the PA Const [sic]?

4. Did PCRA counsel fail to raise a [sic] issue of merit 

where trial counsel was ineffective for failing to request a 

Franks hearing to challenge the information provided in the 

affidavit of probable cause to arrest and the veracity of the 

affiant(s) signed thereto when it was obvious that material facts 

were omitted and deliberate falsification of material facts were 

present in the affidavit violating his right to the 4th and 6th

Amendment to the U.S. Const [sic] and Art [sic]1 § 9 of the PA 

Const [sic]?

6. Did PCRA counsel fail to raise a [sic] issue of merit 

where trial counsel was ineffective for failing to object to the 

reference of Appellant in nontestifying codefendent[’]s statement 

and where the prosecutor unredacted the codefendant[’]s 

statement in her closing argument violating his 6th & 14th

Amendment to the U.S. Const [sic]and Art [sic] 1 § 9 of the PA 

Const [sic]?

(Appellant’s Brief, at iv).

Our standard and scope of review for the denial of a PCRA petition is 

well-settled:

[A]n appellate court reviews the PCRA court’s findings of 

fact to determine whether they are supported by the record, and 

reviews its conclusions of law to determine whether they are free 

from legal error. The scope of review is limited to the findings of 

the PCRA court and the evidence of record, viewed in the light 

most favorable to the prevailing party at the trial level.

Commonwealth v. Charleston, 94 A.3d 1012, 1018-19 (Pa. Super. 2014) 

(citation omitted). 
J-S58001-14

- 6 -

Preliminarily, on review, we conclude that Appellant’s pro se brief 

substantially fails to comply with our rules of appellate procedure.5 

Pennsylvania Rule of Appellate Procedure 2135 requires, in pertinent part, 

that “[u]nless otherwise prescribed by an appellate court . . . a principal 

brief shall not exceed 14,000 words.” Pa.R.A.P. 2135(a)(1). “A principal 

brief that does not exceed 30 pages when produced by a word processor or 

typewriter shall be deemed to meet the limitations in paragraph (a)(1).” 

Pa.R.A.P. 2135(d). However, Appellant’s brief, exclusive of supplementary 

materials, exceeds 112 pages, well over three times the maximum page 

limit. 

The Commonwealth estimates the word count of Appellant’s brief to be 

about 28,000 words, or twice the prescribed limit. (See Commonwealth 

Petition to Strike Non-Conforming Brief, at 2 ¶ 2). Our independent 

calculation produces a result of 50,710 words, well over three and a half 

times the maximum word limit. In any event, Appellant provides no 

certification that his brief complies with the word count limits. See Pa.R.A.P. 

2135(d). 

Furthermore, the excessive length of Appellant’s argument is 

accompanied by a lack of focus on legal issues or adherence to basic 

____________________________________________

5 On July 14, 2014, the Commonwealth filed a petition to strike Appellant’s 

non-conforming brief. That petition was deferred to this panel. (See Order, 

7/17/14, per curiam). 
J-S58001-14

- 7 -

standards for argument on appeal. Appellant relies instead on an unduly 

rambling, unfocused and often transparently self-serving statement-oriented 

narrative. Appellant frequently editorializes or speculates about inferences 

or conclusions, and continually assumes facts without reference to the 

record.6 This prevents meaningful appellate review. 

While Appellant makes occasional efforts to cite to the record or 

caselaw presumed to be pertinent, he employs this procedure so 

____________________________________________

6

For example, in support of his first argument, Appellant states: 

“Fitts[’] overall testimony was highly erratic, unclear and 

often contradictory. Due to her prior identification of Brazell 

[sic] police chose to employ an unduly suggestive process in 

order to influence her to identify [Appellant] during the out-ofcourt photo array. Ultimately, due to the improper conduct of 

the police, [Appellant’s] due process rights were violated. Perry 

v. New Hampshire, 132 S. Ct. 716, [ ] (2012) (“As the United 

Sates Supreme Court’s case law makes clear, what triggers the 

due process concerns about eyewitness identification testimony 

is police use of an unnecessarily suggestive identification 

procedure to be suggestive.”) [sic]. (Appellant’s Brief, at 4).

In the sole citation for these assorted claims, Appellant 

misquotes Perry, which actually states: “As our case law makes 

clear, what triggers due process concerns is police use of an 

unnecessarily suggestive identification procedure, whether or not 

they intended the arranged procedure to be suggestive.” Perry, 

at 721 n.1. 

In any event, Appellant misapprehends the import of 

Perry, which held “that the Due Process Clause does not require 

a preliminary judicial inquiry into the reliability of an eyewitness 

identification when the identification was not procured under 

unnecessarily suggestive circumstances arranged by law 

enforcement.” Id. at 730 (emphasis added). The Supreme 

Court affirmed Perry’s conviction. See id.
J-S58001-14

- 8 -

inconsistently and erratically that it is generally impossible to ascertain the 

basis of his argument or whether there is evidence of record to support it. 

This, too, prevents meaningful review. 

Appellant’s pro se brief substantially violates other rules as well. For 

example, in Appellant’s fourth (manually re-numbered as his fifth) question, 

he raises two distinct issues in one question, in violation of Pa.R.A.P. 2116, 

and 2119(a). 

This court has traditionally been liberal in its review of pro se filings, 

and frequently overlooks incidental deviations from procedural requirements 

in the interest of justice and judicial economy. See Commonwealth v. 

Lyons, 833 A.2d 245, 252 (Pa. Super. 2003), appeal denied, 879 A.2d 782 

(Pa. 2005). However, this indulgence has usually been accompanied by a 

cautionary note: 

As a prefatory matter, although this Court is willing to 

construe liberally materials filed by a pro se litigant, pro se

status generally confers no special benefit upon an appellant. 

Accordingly, a pro se litigant must comply with the procedural 

rules set forth in the Pennsylvania Rules of the Court. This Court 

may quash or dismiss an appeal if an appellant fails to conform 

with the requirements set forth in the Pennsylvania Rules of 

Appellate Procedure. 

(Id. at 251-52 (case citation omitted)). “[A]ny person choosing to represent 

himself in a legal proceeding must, to a reasonable extent, assume that his 

lack of expertise and legal training will be his undoing.” Wilkins v. 

Marsico, 903 A.2d 1281, 1285 (Pa. Super. 2006), appeal denied, 918 A.2d 
J-S58001-14

- 9 -

747 (Pa. 2007) (citing Commonwealth v. Rivera, 685 A.2d 1011[, 1013] 

(Pa. Super. 1996)). This Court has also decided:

[F]or all those who may come henceforth in the garb of “in 

forma pauperis” or pro se, justice will not be skewed for such 

litigants, but, on the contrary, will be meted out even-handedly 

to those who exhibit at least a modicum of effort in following the 

prescribed rules of conduct in appellate practice.

This is not the case here, and we can decipher no rule of 

conscience or law which advises in favor of addressing the merits 

of the appellant’s appeal in the face of the procedural 

shortcomings pervading his brief to us. 

Laird v. Ely & Bernard, 528 A.2d 1379, 1380-81 (Pa. Super. 1987), appeal 

denied, 549 A.2d 136 (Pa. 1988). See also Commonwealth v. Spuck, 86 

A.3d 870, 877 (Pa. Super. 2014), appeal denied, 99 A.3d 77 (Pa. 2014)

(citing Laird) (finding all issues waived for failure to comply with appellate 

briefing rules; appeal quashed).

Furthermore, it is improper for this Court to make an argument for an 

appellant, or to scour the record to find evidence to support his argument. 

See Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007), 

appeal denied, 982 A.2d 509 (Pa. 2009) (deeming unsupported issue 

waived).7 

____________________________________________

7

 See also Commonwealth v. Gray, 608 A.2d 534, 544 n.15 (Pa. Super. 

1992):

We cannot stress strongly enough in this case our 

displeasure with appellate counsel’s failure to follow our 

(Footnote Continued Next Page)
J-S58001-14

- 10 -

This Court need not dissipate limited judicial resources in an effort to 

convert Appellant’s assorted attacks on the reliability of the witnesses’ 

identifications, or the purported unreliability of eyewitness identification 

evidence in general, into a cognizable claim for collateral relief. 

In fact, Appellant’s various challenges to purported inconsistencies in 

the testimony─while occasionally framed (but not properly argued) as claims 

of ineffectiveness of counsel─are in actuality invitations to this Court to reweigh the evidence already considered by the jury. We decline. It was the 

province of the jury as fact-finder to weigh the evidence and to accept all, 

part or none of it. Finally, on our review, none of Appellant’s other questions 

present a cognizable claim for collateral relief. 

Appellant substantially disregards our procedural rules. His defective 

brief does not enable meaningful review. He presents no proper discernible 

claim for collateral relief. 

Appeal quashed.

(Footnote Continued) _______________________

Supreme Court’s appellate rules which require specific reference 

to places in the record where facts and legal arguments 

pertinent to appellant's claims can be found. . . . [W]e are not 

speaking of a small number of cases which would allow us to 

scour the records in each case despite an appellate counsel’s 

failure to abide by the rules. If litigants freely ignore proper 

procedure, what purpose do the rules serve?
J-S58001-14

- 11 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/21/2014