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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
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 murder1 and 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),4 and the judge who denied Mobley’s post-
sentence 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
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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
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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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