Opinion
J-S79027-18 No. 1886 MDA 2017
02-28-2019
COMMONWEALTH OF PENNSYLVANIA v. MELISSA ANN SCHOLL Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence November 20, 2017
In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0001775-2016 BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J. MEMORANDUM BY OLSON, J.:
Appellant, Melissa Ann Scholl, appeals from the judgment of sentence entered on November 20, 2017. We affirm.
The trial court ably summarized the underlying facts and procedural posture of this case:
[O]n December 9, 2015, [Appellant] and her two children were found sitting in a parked car in a secluded location, with a hose running from the car's exhaust pipe into its passenger compartment. Wilkes-Barre Township police were dispatched to the scene, [Appellant] was taken into custody, and a criminal information against [Appellant] was subsequently filed, charging her with two counts of attempted criminal homicide. . . .
A jury trial commenced on June 13, 2017. A mistrial was declared during jury deliberation, however, after it became clear to the [trial] court that the jury was unable to reach a unanimous verdict. A second jury trial commenced on September 12, 2017. Following deliberation, the jury found [Appellant] guilty of both counts of attempted criminal homicide.
A pre-sentence investigation (PSI) was ordered, and sentencing was scheduled for November 20, 2017.Trial Court Opinion, 7/18/18, at 1-2 (internal footnotes and some internal capitalization omitted).
At [Appellant's] sentencing hearing, the [trial] court heard statements from [Appellant], persons who spoke on her behalf, and counsel. Based on these statements, and the [trial] court's review of the PSI and a letter and a protection from abuse petition submitted on [Appellant's] behalf, the [trial] court sentenced [Appellant] on Counts 1 and 2 to consecutive terms of [60 to 180 months' imprisonment, followed by five years' probation], for an aggregate sentence of [ten to 30 years' imprisonment, followed by ten years' probation].
Appellant filed a timely notice of appeal and now raises ten issues to this Court:
Is Appellant entitled to a new trial or in the alternative, dismissal of charges when, applying the applicable Pennsylvania law, the trial court abused its discretion and/or misapplied the law by:
a. Permitting into evidence, video interviews of minor Julian Scholl without proper notice that the Commonwealth intended to proceed under Rule 5985.1;
b. Permitting into evidence, a screenshot of alleged smartphone text messages obtained through a third party to be admitted and said text messages were not properly authenticated;
c. Permitting into evidence, text messages from Appellant's phone obtained through an illegal search and seizure and which were not properly authenticate[d];
d. Permitting the jury to take copies of all the alleged text messages into the jury deliberating room which infer a confession by Appellant;
Appellant's Brief at 12-13 (some internal capitalization omitted).e. Denying the jury copies of the elements of the crime after they requested the elements on two separate occasions and after the judge add[ed] inflammatory and incriminating words about Appellant's acts;
f. Failing to give jury instructions and definitions of "intent to kill" and "transferred intent" and their applicability in attempt criminal cases;
g. Denying Appellant's oral motion for dismissal of criminal charges for the alleged perjury by Detective Parker at Appellant's preliminary hearing, when relevant supporting evidence was discovered and Appellant requested her counsel to present it to the court;
h. Denying Appellant's[] November 14, 2016[] motion for dismissal of charges for lost/destroyed/missing evidence;
i. Denying Appellant's[] December 12, 2016[] motion for dismissal of charges for lost/destroyed/missing evidence;
j. Denying Appellant's[] April 21, 2017[] motion for dismissal of charges for violating the speedy trial rule 600?
Appellant's brief is 145 pages long and exceeds 33,000 words. This is in flagrant violation of Pennsylvania Rule of Appellate Procedure 2135, which mandates that "[a] principal brief shall not exceed 14,000 words." Pa.R.A.P. 2135(a)(1) (emphasis added). Appellant has also violated our Rules of Appellate Procedure, in that: Appellant's brief does not contain "a certificate of compliance with the word count limit," as required by Rule 2135(a)(1) and (d), and Appellant has failed to attach the relevant trial court opinions to her brief, as required by Rule 2111(a)(10) and (b). We note that these errors and violations are particularly egregious here because Appellant is not acting pro se - an attorney wrote and submitted this brief.
We have authority to dismiss Appellant's brief, pursuant to Pennsylvania Rule of Appellate Procedure 2101. This rule declares:
Briefs . . . shall conform in all material respects with the requirements of the[ Rules of Appellate Procedure] as nearly as the circumstances of the particular case will admit, otherwise they may be suppressed, and, if the defects are in the brief . . . of the appellant and are substantial, the appeal or other matter may be quashed or dismissed.Pa.R.A.P. 2101.
However, we will not dismiss Appellant's brief on this occasion, as the violations do not substantially impede our ability to conduct meaningful and effective appellate review. See , e.g., Commonwealth v. Hardy , 918 A.2d 766, 771 (Pa. Super. 2007) ("when defects in a brief impede our ability to conduct meaningful appellate review, we may dismiss the appeal entirely or find certain issues to be waived"). Nevertheless, we caution Appellant's counsel against violating our appellate rules in such manner in the future. See Commonwealth v. Spuck , 86 A.3d 870 (Pa. Super. 2014) (quashing the appeal due to the appellant's "flagrant failure to file a brief that conforms to the Pennsylvania Rules of Appellate procedure"); Commonwealth v. Stoppie , 486 A.2d 994 (Pa. Super. 1984) (same); see also Commonwealth v. Briggs , 12 A.3d 291, 343 (Pa. 2011) (the Pennsylvania Supreme Court declared: "[t]he briefing requirements scrupulously delineated in our appellate rules are not mere trifling matters of stylistic preference; rather, they represent a studied determination by our Court and its rules committee of the most efficacious manner by which appellate review may be conducted so that a litigant's right to judicial review as guaranteed by Article V, Section 9 of our Commonwealth's Constitution may be properly exercised. Thus, we reiterate that compliance with these rules by appellate advocates who have any business before our Court is mandatory").
We have reviewed the briefs of the parties, the relevant law, the certified record, the notes of testimony, and the opinion of the able trial court judge, the Honorable David W. Lupas. We conclude that Appellant is not entitled to relief in this case and that Judge Lupas' July 18, 2018 opinion meticulously and accurately disposes of Appellant's issues on appeal. Therefore, we affirm on the basis of Judge Lupas' thorough opinion and adopt it as our own. In any future filing with this or any other court addressing this ruling, the filing party shall attach a copy of Judge Lupas' July 18, 2018 opinion.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 02/28/2019
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