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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 murder1and 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),4and the judge who denied Mobley’s postsentence 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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