J-S45019-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT FLOYD MCCLUSKEY
Appellant No. 1518 WDA 2015
Appeal from the Judgment of Sentence July 6, 2015
In the Court of Common Pleas of Armstrong County
Criminal Division at No(s): CP-03-CR-0000650-2014
BEFORE: OLSON, DUBOW and PLATT, JJ.*
MEMORANDUM BY OLSON, J.: FILED OCTOBER 25, 2016
Appellant, Robert Floyd McCluskey, appeals from the judgment of
sentence entered in the Armstrong County Court of Common Pleas on July 6,
2015, following his conviction for possession of a prohibited offensive
weapon1 and aggravated assault with a deadly weapon.2 We affirm.
The incident giving rise to this conviction occurred in the late afternoon
on January 3, 2013 in a Walmart parking lot. Joseph Hoyak and his family
were walking in the parking lot toward their vehicle at which time a vehicle
driven by Appellant sped past them. Mr. Hoyak shouted at the speeding
vehicle to slow down. N.T., 5/13/15 at 50-51. Appellant parked and exited
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1
18 Pa.C.S.A. § 908.
2
18 Pa.C.S.A. § 2702(a)(4).
* Retired Senior Judge Assigned to the Superior Court.
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his vehicle and began to walk toward the Hoyak family while screaming at
them. Id. at 51-53. Mr. Hoyak walked toward Appellant at which time
Appellant struck Mr. Hoyak on the side of his face with the walking cane that
he was carrying. Id. at 54-57. Mr. Hoyak spun around with his back toward
Appellant and Appellant stabbed Mr. Hoyak in the back of his leg with a
sword that was concealed inside the cane. Id. at 57-58. Mr. Hoyak grabbed
the blade cutting his fingers. As a result of his injuries, Mr. Hoyak was
transported via helicopter to the hospital and eventually underwent more
than three surgeries to repair his femoral vein which was “nicked” by the
puncture wound inflicted by Appellant. Id. at 63-68. The nicked vein
caused Mr. Hoyak to experience hemorrhagic shock; i.e., loss of blood
causing his heart rate to increase and his blood pressure to drop. Id., at 24.
The victim needed to be resuscitated and he received a blood transfusion
while in transit to the hospital. Id.
Following trial on May 11, 2015, a jury found Appellant guilty of
possession of a prohibited offensive weapon and aggravated assault with a
deadly weapon. The court sentenced Appellant on July 6, 2015 to 16-60
months of incarceration. Appellant filed a motion for judgment of acquittal
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on July 16, 2015, which was denied by order of court on August 28, 2015.
This timely appeal followed.3
Appellant raises two issues in his appeal:
1. Did the trial court err in denying [Appellant’s] motion for
judgment of acquittal?
2. Did the trial court err in denying [Appellant’s] motion to
modify sentence?
Appellant’s Brief at 4.
Before we consider the merits of the issues raised on appeal, we must
consider whether Appellant’s appeal should be dismissed for failure to
comply with the Pennsylvania Rules of Appellate Procedure.
It is beyond cavil that
appellate briefs and reproduced records must materially conform
to the Pennsylvania Rules of Appellate Procedure. This Court
may quash or dismiss an appeal if the appellant fails to conform
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3
On September 28, 2015, the trial court entered an order directing
Appellant to file a concise statement of errors complained of on appeal
(“concise statement”) pursuant to Pa.R.A.P. 1925(b) within 21 days. In a
judgment order filed on June 29, 2016, this Court found that counsel was
per se ineffective for failing to file a concise statement as ordered by the trial
court. Accordingly, we remanded the case to the trial court for the filing of a
Rule 1925(b) statement and a responsive Rule 1925(a) opinion. Upon
remand, counsel for Appellant filed a cursory Rule 1925(b) statement raising
two issues: “the trial court erred in denying [Appellant’s] motion for
judgment of acquittal” and “the trial court erred in denying [Appellant’s]
motion to modify sentence.” Statement of Matters Complained of on Appeal,
6/30/16. Although cursory, the trial court was able to write a 1925(a)
opinion that sufficiently addressed the merits of both of Appellant’s issues.
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to the requirements set forth in the Pennsylvania Rules of
Appellate Procedure.
Commonwealth v. Adams, 882 A.2d 496, 497-98 (Pa. Super. 2005)
(internal citations omitted); see also Pa.R.A.P. 2111-2119 (discussing
required content of appellate briefs and addressing specific requirements of
each subsection of brief on appeal). When a party’s brief fails to conform to
the rules of appellate procedure, and the defects are substantial, this Court
may, in its discretion, quash or dismiss the appeal pursuant to Pa.R.A.P.
2101.4 See Estate of Lakatosh, 656 A.2d 1378 (Pa. Super. 1995).
In reviewing Appellant’s brief, there is no question that the brief falls
short of being a model of scholarly legal writing and it is lacking in many
ways.5 However, the brief is not so defective that we are left guessing as to
Appellant’s arguments. Thus, we choose not to dismiss Appellant’s appeal
and, instead, will consider the merits of the two issues raised. Barrick v.
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4
Pa.R.A.P. 2101 provides:
Briefs and reproduced records shall conform in all material
respects with the requirements of these rules as nearly as the
circumstances of the particular case will admit, otherwise they
may be suppressed, and, if the defects are in the brief or
reproduced record of the appellant and are substantial, the
appeal or other matter may be quashed or dismissed.
Pa.R.A.P. 2101.
5
Appellant’s statement of the questions involved is overly broad and lacks
specificity. The argument section of the brief is also cursory,
underdeveloped, and lacks citation to pertinent case law.
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Holy Spirit Hosp. of the Sisters of Christian Charity, 32 A.3d 800, 804
n.6 (Pa. Super. 2011) (en banc), aff’d, 91 A.3d 680 (Pa. 2014) (citations
omitted) (Although the Rules of Appellate Procedure provide that this Court
may dismiss an appeal if deficiencies within the brief are substantial, errors
that are less substantial may require a less severe remedy.).6
In his first issue, Appellant argues that the trial court erred in failing to
grant his post-sentence motion for judgment of acquittal. In his motion,
Appellant asserts that the evidence was insufficient to support his
convictions for aggravated assault involving a deadly weapon 7 and
possession of a prohibited offensive weapon.8 Motion for Judgment of
Acquittal, 7/16/15. In his brief, the sum of Appellant’s sufficiency argument
is that the testimony of the victim and his family was contradicted by
Appellant and other “disinterested” or “neutral” witnesses. Appellant’s Brief
at 12-13. As Appellant’s claim focuses entirely on the credibility of the
witnesses, Appellant’s claim challenges the weight, not the sufficiency, of the
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6
Moreover, we are not inclined in this case to dismiss the appeal outright, as
Appellant’s appeal counsel has been less than effective in representing
Appellant. As noted previously, counsel for Appellant failed to file a timely
1925(b) statement as ordered by the trial court. Thus, this court was
required to find that counsel was per se ineffective and we remanded the
case to the trial court for the filing of a Rule 1925(b) statement (which was
cursory at best) and a responsive Rule 1925(a) opinion.
7
18 Pa.C.S.A. § 2702(a)(4).
8
18 Pa.C.S.A. § 908(c).
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evidence. Commonwealth v. Palo, 24 A.3d 1050, 1055 (Pa. Super. 2011).
Unfortunately, Appellant failed to challenge the weight of the evidence in his
motion for judgment of acquittal. Accordingly, Appellant waived this claim.
Id., citing Commonwealth v. Mack, 850 A.2d 690 (Pa. Super. 2004)
(Pursuant to Pa.R.Crim.P. 607, a challenge to the weight of the evidence
must be raised with the trial court or it is waived.).
Even if the issue were not waived, Appellant’s sufficiency argument
would still fail. As the able trial judge noted in his 1925(a) opinion on
remand, both convictions are supported by adequate evidence. The jury
found that Appellant struck the victim in the face and then stabbed him in
the leg with a sword that was concealed inside a walking cane. The trial
court correctly found that such evidence supports a conviction for possession
of a prohibited offensive weapon as the sword was a “cutting instrument the
blade of which is exposed in an automatic way [or] any ’other implement for
the infliction of serious bodily injury which serves no common lawful
purpose.’” Trial Court Opinion, 7/6/16 at 3, quoting 18 Pa.C.S.A. § 908(c).
As for the aggravated assault conviction, the trial court correctly noted
that the evidence supported the jury’s verdict that Appellant caused or
attempted to cause serious bodily injury to the victim with a deadly weapon
as required by 18 Pa.C.S.A. § 2702(a)(4). The evidence showed that
Appellant stabbed the victim in the leg causing a permanent clot, weakness,
and constant pain and numbness. Id. at 3-4. Moreover, the trial court
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found that the evidence supported the jury’s decision that Appellant was not
entitled to claim self-defense. Id. at 3. After reviewing the record, we
agree with the trial court’s assessment that the evidence was sufficient to
convict Appellant of both offenses.
In his second issue, Appellant argues that the trial court erred in
denying his motion to modify sentence, which challenged the discretionary
aspects of his sentence. Appellant waived this argument as he failed to
include a Rule 2119(f) statement in his brief and the Commonwealth
objected. Commonwealth v. Karns, 50 A.3d 158, 166 (Pa. Super. 2012),
appeal denied, 65 A.3d 413 (Pa. 2013) (“If a defendant fails to include an
issue in a Rule 2119(f) statement and the Commonwealth objects, the issue
is waived and this Court may not consider it.”).
Judgment of sentence affirmed. Jurisdiction relinquished.
Platt, J. joins this memorandum.
Dubow, J. concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/25/2016
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Com. v. McCluskey, R.
Combined Opinion