Com. v. McCullough, K.
Com. v. McCullough, K. No. 448 WDA 2016
| Pa. Super. Ct. | Jun 30, 2017Background
- Kathleen McCullough, former CFO/controller, was convicted of theft by deception, unlawful use of computers, and computer trespass for stealing over $1.24 million from two employers.
- Sentenced on August 27, 2010 to 1–2 years’ incarceration and a concurrent five-year probationary term.
- Direct appeal affirmed by Superior Court; Pennsylvania Supreme Court denied allowance of appeal.
- McCullough filed a pro se PCRA petition (initially with counsel, later allowed to proceed pro se after Grazier hearing); she ultimately asserted 146 claims (later narrowed by the PCRA court to 70, then to 2 ineffective-assistance claims).
- The PCRA court held multi-day hearings, denied relief by memorandum order on January 29, 2016, and McCullough filed a pro se appeal to the Superior Court.
- Superior Court dismissed the appeal due to pervasive briefing defects (waiver, failure to develop arguments, improper incorporation, and reply brief violations) and inability to conduct meaningful review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether pro se appellant’s broad set of PCRA claims preserved on appeal | McCullough attempted to incorporate her original 146 claims into the appeal and added 34 issues in her brief | Commonwealth argued briefing noncompliance and waived issues by improper incorporation and lack of developed argument | Waived and not considered; appeal dismissed because claims were incorporated improperly and briefing failed rules |
| Whether appellant’s briefing satisfied Pa.R.A.P. requirements to permit appellate review | McCullough filed a disorderly brief lacking an organized argument section and legal citations | Commonwealth relied on appellate rules and case law requiring developed argumentation and adherence to rules | Court held briefs patently disregarded Pa.R.A.P. 2111 and were insufficient for review |
| Whether incorporation by reference preserves claims | McCullough sought to incorporate her earlier filings and claims by reference into the appellate brief | Commonwealth contended incorporation by reference is improper and results in waiver | Court affirmed that incorporation by reference is improper and those claims are waived (Briggs cited) |
| Whether reply brief raised new matters or adequately responded to appellee | McCullough’s reply brief mostly reasserted accusations and did not meaningfully respond to Commonwealth brief | Commonwealth maintained reply brief may only address matters raised by appellee and previously unaddressed | Reply brief violated Pa.R.A.P. 2113 note and could not cure original briefing defects; issues remained unreviewable |
Key Cases Cited
- Grazier v. Commonwealth, 713 A.2d 81 (Pa. 1998) (procedures for allowing a defendant to proceed pro se)
- Briggs v. Pennsylvania, 12 A.3d 291 (Pa. Super. 2011) (incorporation by reference into an appellate brief is improper and results in waiver)
- Perez v. Pennsylvania, 93 A.3d 829 (Pa. 2014) (appellate briefs must contain legal rationale to permit review)
- Mitchell v. Pennsylvania, 105 A.3d 1257 (Pa. 2014) (standard of review for denial of PCRA relief)