Com. v. Hardy

Decision Date23 February 2007
Citation918 A.2d 766
PartiesCOMMONWEALTH of Pennsylvania, Appellee v. Kenneth M. HARDY, Jr., Appellant.
CourtPennsylvania Superior Court

BEFORE: TODD, BENDER and COLVILLE*, JJ.

OPINION BY COLVILLE, J.:

¶ 1 This case is a direct appeal from judgment of sentence. We have rephrased and reordered Appellant's issues as follows: (1) whether there was sufficient evidence to prove malice as required for third degree murder; (2) whether the murder verdict was against the weight of the evidence; (3) whether trial counsel was ineffective for failing to object to numerous questions and/or comments by the Commonwealth; (4) whether numerous questions and/or comments by the Commonwealth constituted prosecutorial misconduct; (5) whether the trial court improperly admitted a variety of evidence; and (6) whether the sentencing court abused its discretion. Declining to address Appellant's ineffectiveness claims and finding his other issues to be waived and/or without merit, we affirm the judgment of sentence.

Facts

¶ 2 Appellant, his infant son (Victim), Appellant's girlfriend (who was not Victim's mother), and the girlfriend's own children slept at the same home on the night of February 21, 2003. Victim did not sleep well and, according to Appellant, cried and "fussed" all night.

¶ 3 The next morning, Appellant's girlfriend departed their mutual residence, leaving Appellant and Victim as the only persons therein. When the girlfriend departed, Victim appeared to be unharmed. For roughly the next two hours, Victim was in Appellant's exclusive custody and care. At the end of that time, Appellant took Victim to a hospital because it appeared that Victim was dying. Medical personnel determined that, along with rib fractures, Victim had a swollen, bleeding brain. Some two days later, Victim died from his injuries.

¶ 4 Expert medical testimony established that Victim sustained his fatal injuries when he was under Appellant's exclusive control. One expert testified that an immense amount of force was applied to Victim's head in a very short duration, damaging the brain and causing it to bleed. While the expert could not say that Victim was shaken, he did testify that the probability was high that Victim was grabbed and slammed against something.

¶ 5 A second expert testified that Victim was shaken violently and that, in the course of being shaken, his head struck an object, thus causing his brain to swell and bleed. He indicated that the injuries revealed a case of Shaken Baby Syndrome or Shaken Impact Syndrome. The expert also testified that Victim suffered a rib fracture from being squeezed violently during the shaking episode.

¶ 6 Appellant contended that he was sleeping on a couch with Victim and that Victim fell from the couch into a nearby, padded bassinet or onto the floor. The medical evidence showed that Victim's injuries could not have occurred from the fall which Appellant described.

¶ 7 The Commonwealth charged Appellant with homicide and endangering the welfare of a child (EWOC). He proceeded to a jury trial and was convicted of both counts, with the homicide conviction being third degree murder.

¶ 8 The court sentenced Appellant to incarceration of not less than 18 or more than 40 years for murder and imposed no penalty for EWOC. Trial counsel filed a post-sentence motion and then withdrew from representation. The court appointed new counsel who filed additional post-sentence motions. After a hearing, the court denied post-sentence relief. This appeal followed the judgment of sentence.

Briefing Requirements

¶ 9 Normally, issues not preserved in the trial court are waived and cannot be considered on direct appeal. Pa.R.A.P. 302(a). To assist in our determination of whether issues were preserved, an appellant's brief must contain a Statement of Place of Raising or Preservation of Issues. Pa.R.A.P. 2117(c). This statement must specify the point in the proceedings at which the claims were preserved. Id. at (1). It must also indicate how those questions were raised (e.g., by trial objection, by pretrial motion). Id. at (2). Additionally, the statement must explain the way in which the trial court passed upon the issues. Id. at (3). Finally, the statement must cite to the specific parts of the record showing where the matter appears. Id. at (4). If an appellant's brief does not include a Statement of Place of Raising or Preservation of Issues, the appellant must then include all of the aforementioned information in the argument section of the brief. Pa.R.A.P. 2119(e).

¶ 10 When briefing the various issues that have been preserved, it is an appellant's duty to present arguments that are sufficiently developed for our review. Commonwealth v. Gould, 912 A.2d 869, 873 (Pa.Super.2006). The brief must support the claims with pertinent discussion, with references to the record and with citations to legal authorities. Id.; Pa. R.A.P. 2119(a), (b), (c). Citations to authorities must articulate the principles for which they are cited. Pa.R.A.P. 2119(b).

¶ 11 This Court will not act as counsel and will not develop arguments on behalf of an appellant. Gould, 912 A.2d at 873. Moreover, 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. Id.; Pa.R.A.P. 2101.

¶ 12 With these principles in mind, we turn to Appellant's brief. In his Statement of the Questions Involved, Appellant lists three general questions. We reorganized them into six broad matters. However, this number does not fully reveal the large quantity of claims that are actually raised in Appellant's brief. Indeed, Appellant's arguments, some of which are developed significantly more than others, raise issues of sufficiency of the evidence, weight of the evidence, hearsay, relevance, inflammatory evidence, misleading evidence, lack of foundation, competence, questions beyond the scope of earlier examination, leading questions, prior-bad-acts evidence, the Confrontation Clause of the federal constitution, ineffectiveness of trial counsel (e.g., failure to object to questions and comments by the Commonwealth, failure to cross examine, failure to file discovery requests and/or motions in limine), prosecutorial misconduct (e.g., improper remarks during opening statement and closing argument, improper questions, "testifying" rather than asking questions), trial court abuse of discretion with respect to some or all of the foregoing concerns, jury instruction error, and sentencing errors.

¶ 13 The testimony and prosecutorial remarks about which Appellant complains appear at hundreds of lines on at least ninety-eight transcript pages. He cites no fewer than fifty areas of the trial testimony which he asks us to deem improper, and he references over one hundred comments by the prosecutor which he challenges as constituting misconduct. Moreover, in numerous instances he asserts multiple legal theories with respect to a given part of the testimony and/or a prosecutorial comment. In short, Appellant asks us to decide a plethora of legal issues with respect to scores of trial questions, answers and comments.

¶ 14 We understand Appellant's argument that there were so many errors at trial that their cumulative effect produced an unfair proceeding. We also recognize that it can be cumbersome to articulate so many claims. However, the high number of his claims does not relieve him of his obligation to present them in a clear manner. In fact, the substantial number of issues which he wants us to decide makes it even more crucial that he develop his case in an orderly way, pursuant to the applicable briefing rules. Only then can this Court conduct unhampered, meaningful appellate scrutiny.

¶ 15 Unfortunately, Appellant's brief fails to conform to the appellate rules in several material ways. These failures do not relate to all of his issues, but they do concern many of them. Because there are so many legal issues, and because there are numerous briefing defects, we will first discuss the deficiencies in general terms and then proceed to a more specific determination of what issues we will address and what issues are waived for failure to comply with the rules.

¶ 16 At points in his brief, Appellant does not specify what his precise legal argument is with respect to what part of the testimony. He challenges a significant amount of testimony and, while he attacks much of that testimony on hearsay grounds, he also mentions other evidentiary complaints which we previously noted (e.g., relevance, inflammatory evidence, leading questions, questions beyond the scope). It is not always clear as to what his exact objection is, or what all of his objections are, to exactly what question(s) and/or answer(s). He thus fails, at some points, to clarify his complaints. We sometimes do not know what issue applies to what evidence. Appellant needs to tell us precisely every complaint he has with respect to each question asked and/or each answer given at trial.

¶ 17 Also, Appellant quotes some fifty sentences uttered by the prosecutor during his opening statement. While Appellant claims that the full passage is objectionable, he then states that "[m]uch of that argument was incorrect and contradicted by the evidence . . . ." Appellant's Brief at 32 (emphasis added). He also indicates that "[s]ome matters are not even discussed at trial . . . ." Id. (emphasis added). He does not give a complete explanation as to which parts of the lengthy quotation he means when he states that "[m]uch" or "[s]ome" of the comments were incorrect, contradicted by the evidence and/or not discussed at trial.

¶ 18 He proceeds in similar fashion with respect to the prosecutor's closing argument. Appellant again cites roughly fifty comments and then contends that "[m]any" of...

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