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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ERICK JOHN PITTMAN, SR.,
Appellant No. 1963 WDA 2015
Appeal from the PCRA Order December 1, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0002879-2013
BEFORE: SHOGAN, MOULTON, and STRASSBURGER,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED JANUARY 11, 2017
Erick John Pittman, Sr. (“Appellant”) appeals pro se from the order
denying his petition filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S. §§ 9541-9546. We affirm.
The facts supporting Appellant’s convictions were set forth at his guilty
plea hearing, as follows:
[PROSECUTOR]: Thank you, Your Honor. Had this case gone to
trial, the Commonwealth would have called as its witnesses City
of Pittsburgh Police Officers Flynn, Joyce, Hanley and 3 civilian
witnesses, Greg Linver . . . Jeff Pogenzelski . . . and Jennifer
Conocico. . . . They would testify substantially [as] follows: Mr.
Linver would testify that sometime between December 5 and
December 12, I believe, or 10th, 2013, he realized that his
firearm was missing.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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He made a police report, and then he did further
investigation of it on his own. He spoke with Jennifer, who was
an acquaintance of his. He described the firearm to her, and she
responded that her boyfriend, [Appellant], had the firearm.
[Appellant] told her that he had taken it from Mr. Linver’s
residence and sold it for $200 to Mr. Pogenzelski on January 14,
2013.
Mr. Linver contacted Mr. Pogenzelski, made arrangements
to meet him and buy the gun back, which he did. And at that
point, Mr. Linver then contacted the police indicating how he had
gone about recovering the firearm.
[Appellant] has a prior burglary conviction which would
make him a person ineligible to possess a firearm. That would
be at criminal case No. 2005-04142 before Judge Colville, and in
that conviction, he pled guilty on July 18, 2005 and was
sentenced on that day on that case.
[Appellant] does not have – a record from the
Pennsylvania State Police indicating [Appellant] did not have a
license to possess a firearm at that time. I believe that would be
the summary of the case had it gone to trial, Your Honor.
There is – I’m sorry. Lab case No. 13LAB00589 indicates
that the firearm was [test] fired and found to be in good
operating condition, and it had a barrel length of four and one
16th inches long. William Best was the scientist.
N.T. Guilty Plea, 3/20/14, at 5–7.
The PCRA court recounted the procedural history of this case, as
follows:
[Appellant] was charged with one count of theft, one count
of possessing a firearm by a prohibited person and one count of
carrying a firearm without a license. . . . On March 20, 2014,
[Appellant] pled guilty to these three charges before this
member of the [c]ourt. On April 22, 2014, [Appellant], through
prior counsel, filed a motion to withdraw his plea of guilty.
Counsel also moved to withdraw at the same time. Shortly
thereafter, [Appellant] filed a pro se motion for habeas corpus.
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The motion to withdraw as counsel was granted and the
Public Defender’s Office was appointed to represent [Appellant].
On June 23, 2014, Leslie Perlow, (hereinafter referred to as
“Perlow”), the Assistant Public Defender assigned to represent
[Appellant], advised the [c]ourt that [Appellant] wished to
proceed forward with sentencing and no longer wished to
withdraw his plea of guilty. The [c]ourt was also advised that
[Appellant] sought to withdraw his pro se motion for habeas
corpus. [Appellant] was sentenced on that date to a minimum
sentence of forty-two months’ incarceration and a maximum
sentence of eighty-four months’ incarceration on the count of
carrying a firearm without a license. [Appellant] received a
consecutive five-year period of probation on the count of theft
and no further penalty on the former convict not to possess
charge.
No further activity occurred in the case until October 20,
2014, when [Appellant] filed a pro se motion to dismiss for lack
of subject matter jurisdiction, nunc pro tunc. On June 25, 2015,
the [c]ourt appointed Christy Foreman, (hereinafter referred to
as “Foreman”), to represent [Appellant] in this matter, and
treated [Appellant’s] filing as a pro se petition for post-conviction
relief. On October 19, 2015, Foreman filed a motion for leave to
withdraw as counsel pursuant to Commonwealth v. Turner,
544 A.2d 826 (Pa. 1988) and attached a letter to that petition,
pursuant to Commonwealth v. Turner, supra. and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en
banc). That letter reflects that counsel independently reviewed
the record and determined that there were no issues of merit
that were raised independently by [Appellant], or could be raised
on his behalf. Appointed counsel concluded that the bulk of the
issues that [Appellant] sought to raise challenged the subject
matter jurisdiction of the prosecution of him. [Appellant]
specifically contended that the “statutes used against him are
not valid laws, and they do not constitutionally exist as they do
not conform to certain constitutional prerequisites, and thus are
not laws at all which prevent subject matter jurisdiction to the
above-named court.” [Appellant] claimed that the statutes that
he was charged under and by which he was sentenced lacked a
proper enacting clause and were thus unconstitutional.
[Appellant] further claimed that the statutes failed to have a
proper title and that the [c]ourt lacked jurisdiction because the
statutes were of an unknown and uncertain authority. Foreman
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reviewed the applicable law and determined that all of these
contentions were without merit.
Foreman also addressed the only non-jurisdictional issued
raised by [Appellant] – that his public defender failed to respond
to his request after sentencing to appeal his sentence or to
withdraw his plea. Foreman discussed this matter with Perlow,
who advised that no such request had ever been made. Perlow
located [Appellant’s] file and relayed to Foreman that no letters
or any information were contained in the file to suggest that
[Appellant] had ever made such a request. Nothing in the
[c]ourt file at the Department of Court Records existed to
support this contention as well. Based on the clear lack of any
cognizable issues, Foreman moved to withdraw and that motion
was granted.
PCRA Opinion, 8/2/16, at 2–4.
The PCRA court granted counsel’s motion to withdraw and issued a
notice of intent to dismiss Appellant’s petition pursuant to Pa.R.Crim.P. 907
on October 26, 2015. Appellant filed a response. The PCRA court dismissed
Appellant’s petition without a hearing on December 1, 2015. This timely
appeal followed.
As a prefatory matter, we are confronted with Appellant’s glaringly
deficient appellate brief. Appellate briefs must materially conform to the
briefing requirements set forth in the Pennsylvania Rules of Appellate
Procedure. Commonwealth v. Adams, 882 A.2d 496, 497–498 (Pa.
Super. 2005); Pa.R.A.P. Chapter 21. When a party’s brief fails to conform to
the Rules of Appellate Procedure and the defects are substantial, an
appellate court may, in its discretion, quash or dismiss the appeal pursuant
to Pa.R.A.P. 2101. See Estate of Lakatosh, 656 A.2d 1378 (Pa. Super
1995) (dismissing appeal for non-conformance).
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Additionally, we have often stated, “Although this Court is willing to
liberally construe materials filed by a pro se litigant, pro se status confers no
special benefit upon the appellant.” Adams, 882 A.2d at 498 (citing
Commonwealth v. Lyons, 833 A.2d 245, 252 (Pa. Super. 2003)). “To the
contrary, any 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.” Id. at 498 (citing Commonwealth v. Rivera,
685 A.2d 1011 (Pa. Super. 1996)). This Court will not act as counsel and
will not develop arguments on behalf of an appellant. Commonwealth v.
Hardy, 918 A.2d 766 (Pa. Super. 2007). Accordingly, a pro se litigant must
comply with the procedural rules set forth in the Pennsylvania Rules of the
Court. Lyons, 833 A.2d at 251–252.
Here, Appellant’s pro se brief bears little resemblance to an appellate
brief, lacking most of the elements required in Chapter 21 of the appellate
rules. In violation of Pa.R.A.P. 2111(a)(1), (3), (4), (6); 2114, 2116(a),
2117, and 2118, Appellant’s brief does not contain a statement of questions
involved, a statement of jurisdiction, a statement of the scope and standard
of review, a statement of the case, or a summary of Appellant’s argument.
Moreover, in his argument section, Appellant does not cite controlling
precedent; instead, he relies on non-Pennsylvania cases. Appellant’s Brief at
unnumbered 3–4.
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Nevertheless, despite the numerous defects in Appellant’s brief, we will
review the claims which have been sufficiently raised and addressed by both
the lower court and the Commonwealth. Our review of Appellant’s brief and
the record reveals the following issues: (1) Whether the PCRA court erred in
treating Appellant’s motion to dismiss for lack of subject jurisdiction as a
PCRA petition; and (2) Whether the PCRA court erred in dismissing
Appellant’s petition without a hearing?
It is well settled that “the PCRA provides the sole means for obtaining
collateral review, and that any petition filed after the judgment of sentence
becomes final will be treated as a PCRA petition.” Commonwealth v.
Johnson, 803 A.2d 1291, 1293 (Pa. Super. 2002) (citation omitted). That
Appellant has attempted to frame his petition as a “motion to dismiss for
lack of subject matter jurisdiction” does not change the applicability of the
PCRA. See Commonwealth v. Fowler, 749 A.2d 502, 503 (Pa. Super.
2000) (stating that “motion for time credit” must be treated as PCRA
petition). “The [PCRA] shall be the sole means of obtaining collateral relief
and encompasses all other common law and statutory remedies for the same
purpose....” 42 Pa.C.S. § 9542. Therefore, the PCRA court properly treated
Appellant’s motion to dismiss as a PCRA petition.
Next, we address whether the PCRA court erred in dismissing
Appellant’s petition. According to Appellant, his convictions and sentence
are illegal “because the ‘STATUTES’ he was charged under in the complaint
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were not properly enacted, i.e. the statutes lacked the proper enacting
clause and titles.” Appellant’s Brief at unnumbered 2. Therefore, Appellant
argues, the trial court lacked subject matter jurisdiction. Id. at 3. The
PCRA court deemed Appellant’s “subject matter jurisdictional claims [to be]
frivolous” and dismissed Appellant’s petition due to “the complete lack of any
meritorious or cognizable issues.” PCRA Court Opinion, 8/2/16, at 4, 5.
We recently addressed the issue of enacting clauses in
Commonwealth v. Stultz, 114 A.3d 865 (Pa. Super. 2015), which is
directly on point. In Stultz we held as follows:
[A]lthough West Publishing Company omitted the enacting
clause from its annotated edition of the Crimes Code . . ., our
review of the official codification of the Pennsylvania Crimes
Code enacted by the General Assembly in 1972 reveals the
enacting clause immediately before the table of contents for Title
18. See Act of December 6, 1972, P.L. 1482 No. 334.
Id. at 879.
Based on our holding in Stultz, Appellant’s assertion of the same
enacting-clause argument herein is frivolous. Thus, we conclude that the
PCRA court did not err in denying Appellant’s petition without a hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
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Date: 1/11/2017
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