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COMMONWEALTH PENNSYLVANIA v. DONNA MARIE ELY (02/10/89)

filed: February 10, 1989.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
DONNA MARIE ELY, APPELLANT



Appeal From Judgment of Sentence, Court of Common Pleas, Criminal Division, Cambria County No. 637-1986

COUNSEL

Neil W. Price, Johnstown, for appellant.

Cavanaugh, Rowley and Kelly, JJ. Rowley, J. files dissenting opinion.

Author: Cavanaugh

[ 381 Pa. Super. Page 511]

This appeal of Donna Marie Ely is from judgment of sentence imposed following her conviction on four counts of endangering the welfare of children, three counts of indecent assault, three counts of indecent exposure, two counts of incest and three counts of corruption of minors.

The brief offered on behalf of appellant is insufficient in its attempt to cognizably raise the issues on which her appeal is based and to explain clearly the errors which she alleges were made by the lower court. Furthermore, it is defective in that it violates several provisions of the Pennsylvania Rules of Appellate Procedure. The brief fails to conform to the format prescribed by Rules 2101 and 2111;

[ 381 Pa. Super. Page 512]

    omits completely the contents required by Rules 2114 (Statement of Jurisdiction), 2115 (Order in Question) and 2117 (Statement of the Case); misplaces the section called for by Rule 2118 (Summary of Argument); and violates Rule 2119 since two of the arguments are simply brief restatements of the issues sought to be raised, and the body of the argument contains only two citations to authority without proper explanation of the principles for which the cases are cited.

Appellant raises the following issues on appeal:

1. Whether the Honorable Court properly applied the reasonable firmness standard of the duress defense to the particular circumstances and peculiar mentality of the Defendant.

2. Whether the contact described by the testimony of the children is sufficient to establish deviate sexual intercourse beyond a reasonable doubt.

3. Whether the mandatory sentencing provisions of Pa. 9718 [sic] when applied to a Defendant of limited mental capacity, is unconstitutional.

4. Whether the element provision in Pa. 3123(a) [sic] of the Crimes Code allowing the victim's ages to replace the forcible compulsion element for involuntary deviate sexual intercourse with respect to a Defendant of limited mental capacity, is unconstitutional.

The appellant, whose conviction resulted in a sentence of ten to twenty years imprisonment, alleges that she was placed under duress by Allan Ross, the man with whom she lived when she committed the acts detailed in the criminal complaint brought against her. Appellant's brief refers to her as "a mentally retarded adult with attendant personality disorders," and depicts Ross as a man capable of coercing or intimidating her participation in the events described in the record. She also questions the sufficiency of the Commonwealth's evidence to meet its burden of proof in light of contradictory testimony given by the children of appellant and Ross when questioned about the appellant's participation in the incidents of sexual abuse. An examination

[ 381 Pa. Super. Page 513]

    of the record leads us to the conclusion that there may be some merit to appellant's contentions, however, we do not feel that we can make a proper determination based on the brief submitted to this court by appellant's counsel.*fn1

This court possesses discretionary authority to quash, dismiss or deny allowance of appeal based upon the substantial defects of appellant's brief, Pa.R.A.P. 2101. However, dismissing the present appeal would place the burden of counsel's errors entirely upon the appellant and would merely pave the way for appellant to petition the court for post-conviction relief. We believe less drastic means are available to correct the substantial defects of appellant's brief which will not further delay our review of the merits of her appeal. Cf. Commonwealth v. Zeitlen, 366 Pa. Super. 78, 530 A.2d 900 (1987).

Therefore, based on the authority we possess under Pa.R.A.P. 902 and 2101, we direct that this case be remanded to the trial court for the appointment of new counsel for appellant, Donna Marie Ely, and we further order that new counsel be directed to submit a brief on behalf of appellant which is in compliance with all applicable procedural rules. The brief is to be filed in this court within forty-five (45) days of the date of appointment.

This court shall retain jurisdiction over this appeal and will fully review the case on its merits when the new appellant's brief is submitted.

This case is remanded for proceedings not inconsistent with this opinion. Panel jurisdiction is relinquished, jurisdiction of the Court is retained. This case is to be assigned by the Prothonotary to another panel.*fn2

[ 381 Pa. Super. Page 514]

ROWLEY, Judge, dissenting:

I respectfully dissent.

I do not agree that appellate review is impossible on the present record. Although appellant's brief is not a model of clarity, I believe that the issues raised therein are capable of determination on the record before us. In my opinion, the arguments presented by appellant are without merit for the reasons set forth below, and I would affirm the judgment of sentence.

In her first issue, appellant asserts that in evaluating her defense of duress, the trial court did not give sufficient consideration to her "particular circumstances and peculiar mentality" (Brief for Appellant at 7). Appellant describes herself further as "a mentally retarded adult with attendant personality disorders, isolated within the community without supportive relatives and struggling with social agencies perceived by her to be hostile," who was "easy prey for an exploitative person such as the stronger, smarter co-Defendant [Ross]" (Brief for Appellant at 7).

The elements of the duress defense are set forth at 18 Pa.C.S.A. ยง 309(a), which provides that

It is a defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness would have been unable to resist.

[ 381 Pa. Super. Page 515]

(Emphasis added.) In determining whether a person of "reasonable firmness" in the defendant's situation would have been able to resist, the factfinder is to consider the seriousness of the crime the defendant was asked to commit; the nature and severity of the force used or threatened; alternative ways of escaping or averting that force; the defendant's age, physical condition, and strength; and all other factors that might affect the reaction of a person of reasonable firmness in the same situation. Commonwealth v. Wiggins, 274 Pa. Super. 617, 622, 418 A.2d 577, 580 (1980). In its "Pa.R.A.P. No. 1925 Statement,"*fn1 the trial court states that it took into account all of these considerations, as well as appellant's intellectual handicap, personality disorders, home environment, and alleged involuntary intoxication. Thus, the court's evaluation of the "reasonable firmness" standard met, and in fact exceeded, the requirements enumerated by this Court in Wiggins. Accordingly, I would conclude that appellant's first issue is without merit.

In her second issue, appellant contends that the evidence was insufficient to support her conviction on three counts of involuntary deviate sexual intercourse. Our scope of review on this issue was set forth in ...


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