Opinion
J-A28001-17 No. 1185 EDA 2016
12-22-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. BRIAN D. BAUR Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence April 8, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010543-2014 BEFORE: GANTMAN, P.J., PANELLA, J., and DUBOW, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Brian D. Baur, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas, following his jury trial conviction for third-degree murder. We affirm.
18 Pa.C.S.A. § 2502(c). --------
In its opinion, the trial court correctly set forth the facts and procedural history of this case. Therefore, we have no reason to restate them. We add that Appellant filed a motion to suppress on May 20, 2015, and an amended version on November 22, 2015. Appellant moved for the suppression of statements he gave to police and for any evidence obtained stemming from his arrest. The trial court held a suppression hearing on December 14, 2015, and subsequently denied Appellant's suppression motion.
Appellant raises the following issues for our review:
1. WHETHER THE LAW OF THE CASE DOCTRINE IS AN ISSUE IN THIS CASE SINCE TWO JUDGES HAVE MADE RULINGS CONCERNING THE CONSTITUTIONAL RIGHTS OF [APPELLANT?]
2. WHETHER FAILURE TO APPLY THE "CASTLE DOCTRINE" TO THE FACTS OF THIS CASE IS AN ERROR OF LAW AND A VIOLATION OF [APPELLANT]'S CONSTITUTIONAL RIGHTS ESSENTIALLY DENYING [APPELLANT] THE RIGHT TO PRESENT A DEFENSE[?]
3. WHETHER PRECLUSION OF [APPELLANT]'S "USE OF FORCE" EXPERT CONSTITUTES AN ABUSE OF DISCRETION AND AN ERROR OF LAW DENYING [APPELLANT] THE RIGHT TO PRESENT A DEFENSE IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS[?]
4. WHETHER THE SENTENCE IMPOSED VIOLATED [APPELLANT]'S CONSTITUTIONAL RIGHTS BY ORDERING MEDICAL AND PSYCHOLOGICAL TREATMENT FOR [APPELLANT] BASED ON HEARSAY REPORTS, OBVIATING APPELLANT'S ABILITY TO CROSS-EXAMINE[?]
5. WHETHER THE SENTENCE IMPOSED CONSTITUTES LIFE IMPRISONMENT IN VIOLATION OF THE INTENT OF THE LEGISLATURE[?]
6. WHETHER THE REASSIGNMENT OF THE CASE FROM JUDGE LERNER TO JUDGE BYRD WAS JUSTIFIED[?]
7. WHETHER THE RULINGS OF JUDGES LERNER AND BYRD CONCERNING THE ADMISSION OF VIDEO EVIDENCE VIOLATED [APPELLANT]'S CONSTITUTIONAL RIGHTS WHERE POLICE FAILED TO PRESERVE ORIGINAL EVIDENCE, CHAIN OF CUSTODY WAS NOT PRESERVED AND EVIDENCE WAS ADMITTEDLY ALTERED TO PRESENT IT TO SUPPORT THE THEORY OF THE PROSECUTION[?]
8. WHETHER [APPELLANT]'S RIGHTS WERE VIOLATED BY [THE] PROSECUTION['S] DESTRUCTION, DELETION AND
DISMISSAL OF EVIDENCE THAT COULD PROVE TO BE EXCULPATORY[?]
9. WHETHER THE TESTIMONY OF POLICE THAT CONFLICTS WITH REPORTS AND PRIOR TESTIMONY SHOULD HAVE BEEN STRICKEN FROM THE RECORD SO THAT THEY WOULD NOT BE CONSIDERED BY THE JURY[?]
10. WHETHER TRIAL COUNSEL WAS INEFFECTIVE FOR NOT ALLOWING [APPELLANT] TO PRESENT RE-DIRECT TESTIMONY TO ADDRESS POINTS RAISED IN CROSS[-EXAMINATION] BY THE PROSECUTION[?]
11. WHETHER SEQUESTRATION OF DEFENSE CO-COUNSEL WAS AN ERROR OF LAW AND DEPRIVED [APPELLANT] OF HIS 6TH AMENDMENT RIGHT TO COUNSEL OF HIS CHOICE[?]
12. WHETHER [APPELLANT]'S RIGHT TO COUNSEL [WAS] VIOLATED WHEN HE WAS DETAINED AT POLICE HEADQUARTERS (THE ROUNDHOUSE), WITHOUT ACCESS TO HIS ATTORNEYS, FOR FOUR DAYS PRIOR TO ARRAIGNMENT AND PRIOR TO [APPELLANT] BEING READ HIS CONSTITUTIONAL RIGHTS OR MIRANDIZED[?]
13. WHETHER [APPELLANT]'S CONSTITUTIONAL RIGHTS WERE VIOLATED BY [THE COMMONWEALTH'S] FAIL[URE] TO PROVIDE [APPELLANT] COPIES OF EXHIBITS BEING REFERRED TO BY THE PROSECUTION DURING HIS CROSS-EXAMINATION[?]
14. WHETHER [APPELLANT]'S CONSTITUTIONAL RIGHTS WERE VIOLATED BY THE FAILURE OF THE [TRIAL COURT] TO GIVE JURY INSTRUCTIONS CONCERNING THE CASTLE DOCTRINE AND SELF-DEFENSE AND THE FACT THAT THEY COULD FIND [APPELLANT] NOT GUILTY[?]
15. WHETHER THE [TRIAL COURT]'S CONCLUSORY STATEMENTS AT SENTENCING, BASED ON HEARSAY DOCUMENTS, CONSTITUTE AN ABUSE OF DISCRETION AND A VIOLATION OF LAW[?]
16. WHETHER THE TESTIMONY OF THE MEDICAL EXAMINER SHOULD HAVE BEEN STRICKEN IN PART AND
WHETHER IT DEMONSTRATES A FURTHER FAILURE OF THE PROSECUTION TO OBTAIN EXCULPATORY EVIDENCE BY NOT OBTAINING A TOXICOLOGY REPORT[?](Appellant's Brief at 2-7).
17. WHETHER THE [TRIAL COURT] DEMONSTRATED EXTREME BIAS FOR THE PROSECUTION IN CONCLUDING THAT [APPELLANT]'S "WARNING SHOT" WAS "ILLEGAL," DIRECTING THE PROSECUTION TO "FIND IT ([IN] THE CRIMES CODE)"..."AND DEVELOP THE ARGUMENT FURTHER"[?] WHERE THE [COMMONWEALTH] FAILED TO SEPARATELY CHARGE [APPELLANT] WITH ANY CRIME FOR THE DISCHARGE OF THE WEAPON, WHETHER [APPELLANT]'S RIGHT TO NOTICE AND THE OPPORTUNITY TO BE HEARD AND PRESENT AN APPROPRIATE DEFENSE WERE VIOLATED, AND THE RESULTING ADVERSE AND CONFUSING CHARGE TO THE JURY PREJUDICED [APPELLANT]'S CONSTITUTIONAL RIGHTS, DENYING HIM A FAIR TRIAL[?]
18. WHETHER [APPELLANT] EVER MADE A "CONFESSION" IS AN ISSUE. WHETHER [APPELLANT]'S CONSTITUTIONAL RIGHTS WERE VIOLATED WHEN THE COURT'S DECISION TO REMOVE THE INVOLUNTARY MANSLAUGHTER CHARGE FROM THE JURY WAS BASED ON [THE COURT'S] DECISION THAT [APPELLANT] MADE A "CONFESSION"[?]
19. WHETHER THE RULINGS OF JUDGES LERNER AND BYRD ARE ERRONEOUS WITH REGARD TO [APPELLANT]'S PRE-TRIAL MOTIONS, DELINEATING HIS OBJECTIONS TO HIS INITIAL DETENTION AT THE ROUNDHOUSE WHERE HE WAS DENIED THE ASSISTANCE OF COUNSEL AND WAS NOT READ HIS CONSTITUTIONAL RIGHTS OR MIRANDIZED[?]
20. WHETHER DEFENSE COUNSEL WAS INEFFECTIVE, WHEN HE STATED IN HIS CLOSING ARGUMENT STATEMENTS THAT CONTRADICTED THE TESTIMONY OF [APPELLANT], IN HIS PRESENTATION TO THE JURY, AND IN FACT PRESENTED THE JURY WITH THE PROSECUTION'S VERSION OF THE EVIDENCE[?]
Challenges to the discretionary aspects of sentencing do not entitle an appellant to review as of right. Commonwealth v. Sierra , 752 A.2d 910, 912 (Pa.Super. 2000). Before we review a discretionary aspects of sentencing claim:
[W]e conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. [720]; (3) whether appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).Commonwealth v. Evans , 901 A.2d 528, 533 (Pa.Super. 2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted). See also Commonwealth v. Oree , 911 A.2d 169 (Pa.Super. 2006), appeal denied, 591 Pa. 699, 918 A.2d 744 (2007) (explaining challenges to discretionary aspects of sentencing must be raised in post-sentence motion or during sentencing proceedings; absent such efforts, claims are waived; inclusion of discretionary aspects of sentencing claims in Pa.R.A.P. 1925(b) statement will not cure waiver).
Instantly, we observe Appellant failed to file post-sentence motions or raise any discretionary aspects issue during sentencing. Additionally, Appellant failed to include a Rule 2119(f) statement in his brief. Thus, Appellant waived his fourth, fifth, and fifteenth issues, which challenged the discretionary aspects of his sentence. See Pa.R.A.P. 2119(f); Oree , supra ; Evans , supra. Further, Appellant's inclusion of challenges to the discretionary aspects of sentencing in his Rule 1925(b) statement did not cure this waiver. See Oree , supra.
Further, as a rule, ineffective assistance of counsel claims should be deferred until proceedings under the Post Conviction Relief Act ("PCRA") at 42 Pa.C.S.A. §§ 9541-9546. See generally Commonwealth v. Grant , 572 Pa. 48, 813 A.2d 726 (2002) and its progeny. Likewise, this Court will not entertain ineffective assistance of counsel claims on direct appeal unless the defendant makes a knowing, intelligent, and voluntary waiver of PCRA review. Commonwealth v. Barnett , 25 A.3d 371 (Pa.Super. 2011) (en banc).
Instantly, Appellant's tenth, thirteenth, and twentieth issues raise trial counsel's alleged ineffectiveness. Appellant, however, did not develop any record on his claims before the trial court and waive his right to PCRA review. See id. Thus, we decline to address those claims on direct appeal. Instead, Appellant will have to raise his ineffectiveness of counsel claims in a timely PCRA petition.
Next, we observe that appellate briefs must conform in all material respects to the briefing requirements set forth in the Pennsylvania Rules of Appellate Procedure. Pa.R.A.P. 2101. See also Pa.R.A.P. 2114-2119 (addressing specific requirements of each subsection of brief on appeal). Regarding the argument section of an appellate brief, Rule 2119(a) provides:
Rule 2119. ArgumentPa.R.A.P. 2119(a). "[I]t is an appellant's duty to present arguments that are sufficiently developed for our review. The brief must support the claims with pertinent discussion, with references to the record and with citations to legal authorities." Commonwealth v. Hardy , 918 A.2d 766, 771 (Pa.Super. 2007), appeal denied, 596 Pa. 703, 940 A.2d 362 (2008) (internal citations omitted). "This Court will not act as counsel and will not develop arguments on behalf of an appellant." Id. If a deficient brief hinders this Court's ability to address any issue on review, we shall consider the issue waived. Commonwealth v. Gould , 912 A.2d 869, 873 (Pa.Super. 2006) (holding appellant waived issue on appeal where he failed to support claim with relevant citations to case law and record). See also In re R.D., 44 A.3d 657 (Pa.Super. 2012), appeal denied, 618 Pa. 677, 56 A.3d 398 (2012) (holding appellant waived ineffective assistance of counsel claim where argument portion of appellant's brief lacked meaningful discussion of, or citation to, relevant legal authority regarding ineffectiveness claims generally or defense counsel's specifically alleged error; appellant's lack of analysis precluded meaningful appellate review).
(a) General rule.—The argument shall be divided into as many parts as there are questions to be argued; and shall have at the head of each part—in distinctive type or in type distinctively displayed—the particular point treated therein, followed by such discussion and citation of authorities as are deemed pertinent.
Instantly, Appellant fails to provide adequate legal citations to support his arguments for issues one, three, six, seven, nine, eleven, sixteen, and eighteen. The majority of Appellant's argument section is a general restatement of the facts. Appellant's only citation to legal authority concerns the use of the Frye test for admission of expert testimony in his third issue, but Appellant does not offer any additional argument on this point. Other than in his third issue, Appellant offers no legal authority indicating how or why he is entitled to relief under these claims. See Pa.R.A.P. 2119(a); Hardy , supra. Appellant's failure to develop these claims on appeal precludes meaningful review and constitutes waiver of his issues one, three, six, seven, nine, eleven, sixteen, and eighteen. See In re R.D., supra ; Gould , supra. Moreover, even if Appellant had properly preserved these issues, we would affirm based on the trial court opinion. See Trial Court Opinion, filed December 28, 2016, at 11-29 (discussing and properly dismissing these issues).
Regarding Appellant's remaining issues two, eight, twelve, fourteen, seventeen, and nineteen, after a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Sandy L.V. Byrd, we conclude these issues also merit no relief. The trial court opinion comprehensively discusses and properly disposes of the questions presented. ( See id. at 13-14, 23-29) (finding: (2, 14) record shows court applied castle doctrine to this case and gave appropriate instructions to jury; court reviewed each provision with counsel before determining proper instructions based on facts of case; court did not use specific words which defense counsel wanted, but court provided jury with correct legal principles regarding how to apply relevant portions of castle doctrine to facts of case; (17) trial court conducted itself in fair and impartial manner throughout trial; further, jury did not convict Appellant of any weapons offense; outcome of trial would not have changed if Commonwealth had separately charged Appellant with weapons offenses; thus, Commonwealth's failure to do so constitutes harmless error; (8) Appellant failed to identify exculpatory evidence Commonwealth allegedly mishandled; record shows Commonwealth gave defense counsel all requested discovery; further, outcome of Appellant's trial would not have changed, because Commonwealth presented overwhelming evidence of Appellant's guilt; Appellant also failed to establish Commonwealth's conduct prejudiced jury against Appellant; thus, Appellant suffered no prejudice from any alleged mishandling of evidence; Appellant failed to prove Brady violation occurred; (12, 19) following suppression hearing, court found police conduct was consistent with questioning of cooperative witness who had reported crime and who might have significant information to convey to police; upon arrival at homicide unit, Appellant told Detective Bartol that Appellant wanted to cooperate; Appellant volunteered his version of events surrounding shooting death of Victim; Detective Bartol terminated Appellant's narrative and issued Miranda warnings as soon as Appellant stated only thing he did wrong was fire warning shot; Appellant again stated his narrative after Detective Bartol gave Miranda warnings; Detective Bartol stopped interview when Appellant invoked his right to counsel; based on totality of circumstances, court did not err in denying Appellant's motion to suppress his voluntary statements). Accordingly, we affirm based on the trial court opinion.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/22/2017
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