Com. v. Chapman, L. ( 2020 )

J. A17038/20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
LAQUANTA CHAPMAN, : No. 175 EDA 2020
:
Appellant :
Appeal from the PCRA Order Entered November 13, 2019,
in the Court of Common Pleas of Chester County
Criminal Division at No. CP-15-CR-0002897-2009
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
LAQUANTA CHAPMAN, : No. 176 EDA 2020
:
Appellant :
Appeal from the PCRA Order Entered November 13, 2019,
in the Court of Common Pleas of Chester County
Criminal Division at No. CP-15-CR-0004895-2008
BEFORE: BOWES, J., McCAFFERY, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 23, 2020
Laquanta Chapman appeals from the November 13, 2019 order, entered
by the Court of Common Pleas of Chester County, dismissing his petition for
relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-9546. After careful review, we affirm.
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The relevant facts and procedural history of this case are as follows:
On October 30, 2008, [appellant] shot and killed his
sixteen (16) year-old neighbor, Aaron Turner, in the
basement of [appellant’s] residence. Subsequently,
with the assistance of his younger cousin, Bryan Byrd,
[appellant] dismembered the victim’s body and
disposed of the remains in the trash.
Several weeks later, law enforcement officers
investigating the sale of illicit narcotics from
[appellant’s] premises obtained a warrant to search
the premises for evidence of drug activity. In the
course of executing that search warrant[,] on
November 15, 2008, police discovered an abundance
of residual, physical evidence from the killing and
dismemberment of Mr. Turner. [Appellant] was
arrested and charged with murder and other related
offenses, and the Commonwealth tendered notice of
its intention to pursue the death penalty.
PCRA court Rule 907 notice of intent to dismiss, 10/8/19 at 2 n.3.
A jury convicted appellant of first-degree murder1 and other related
offenses on November 9, 2012. The jury subsequently determined that the
death penalty should be imposed. See id. Appellant filed a direct appeal with
our supreme court pursuant to 42 Pa.C.S.A. § 9711(h)(1). The court affirmed
the judgment of sentence, but vacated the imposition of the death penalty
and remanded for the trial court to impose a sentence of life imprisonment
without the possibility of parole. See Commonwealth v. Chapman, 136
A.3d 126, 134 (Pa. 2016). Accordingly, the trial court resentenced appellant
on August 16, 2016.
1 18 Pa.C.S.A. § 2502(a).
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Appellant filed a direct appeal from the trial court’s resentencing order.
A previous panel of this court affirmed appellant’s judgment of sentence on
March 27, 2018. See Commonwealth v. Chapman, 188 A.3d 565(Pa.Super. March 27, 2018) (unpublished memorandum). Appellant did not
file a petition for allowance of appeal with our supreme court.
Appellant timely filed the instant counseled PCRA petition on March 25,
2019. On October 8, 2019, the PCRA court entered a notice of its intent to
dismiss appellant’s PCRA petition without a hearing pursuant to
Pa.R.Crim.P. 907. Appellant did not file a response. On November 13, 2019,
the PCRA court entered an order dismissing appellant’s PCRA petition without
a hearing.
Appellant filed timely notices of appeal on December 12, 2019, in
compliance with Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), and
its progeny. On December 20, 2019, the PCRA court ordered appellant to file
a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). Appellant filed his Rule 1925(b) statement with the
Chester County Clerk of Courts, while also serving the Commonwealth with a
copy, on January 6, 2020. On January 14, 2020, the PCRA court filed its
opinion pursuant to Pa.R.A.P. 1925(a).2
Appellant raises the following issues for our review:
2The PCRA court’s Rule 1925(a) opinion adopts the reasoning set forth in its
Pa.R.Crim.P. 907(1) notice.
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I. Were [a]ppellant’s claims intentionally waived
or abandoned?
II. Did the PCRA [c]ourt err in failing to find merit
to [a]ppellant’s claim of after-discovered
evidence that the lead homicide detectives
committed criminal misconduct rendering the
evidence and the verdict unreliable, violating
[a]ppellant’s Fourth, Sixth and Fourteenth
Amendment rights?
III. Did the PCRA [c]ourt err, violating [a]ppellant’s
rights pursuant to the Sixth and Fourteenth
Amendments of the U.S. Constitution and
Article I, sec. 9 of the Pennsylvania Constitution
in finding that [a]ppellant’s trial and appellate
counsel were not ineffective for failing to make
the correct argument in relation to the [m]otion
to [s]uppress?
IV. Did the PCRA [c]ourt err, violating [a]ppellant’s
rights pursuant to the Sixth and Fourteenth
Amendments of the U.S. Constitution and
Article I, sec. 9 of the Pennsylvania Constitution
in finding that trial counsel’s agreement to
admission of inconclusive DNA results without
an on-record colloquy reflecting [a]ppellant’s
understanding of the consequences of counsel’s
actions and his consent thereto, did not violate
[a]ppellant’s right to confront the
Commonwealth’s witnesses against him?
Appellant’s brief at 3.
In his first issue, appellant contends that his claims should not be
considered waived or abandoned even though the PCRA court judge did not
directly receive a copy of appellant’s Pa.R.A.P. 1925(b) statement. (Id. at 8.)
Pennsylvania Rule of Appellate Procedure 1925(b) provides, in relevant
part:
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(3) Contents of order. The judge’s order directing
the filing and service of a Statement shall
specify:
....
(iii) that the Statement shall be
served on the judge pursuant to
paragraph (b)(1) and both the
place the appellant can serve
the Statement in person and the
address to which the appellant
can mail the Statement. In
addition, the judge may provide an
email, facsimile, or other alternative
means for the appellant to serve the
Statement on the judge; and
(iv) that any issue not properly included
in the Statement timely filed and
served pursuant to subdivision (b)
shall be deemed waived.
Pa.R.A.P. 1925(b)(3) (emphasis added).
The PCRA court notes that appellant failed to serve his Rule 1925(b)
statement upon the PCRA court. The record reflects the PCRA court entered
the following Rule 1925(b) order:
AND NOW, this 20th day of December, 2019, it is
hereby ORDERED that pursuant to Pa.R.A.P. 1925(b),
Teri B. Himebaugh, Esquire
1400 Spring Garden Street. #911
Philadelphia, Pennsylvania 19130
is hereby ORDERED to file of record and serve upon
the undersigned, a concise statement (“Statement”)
of the errors complained of on appeal in the above
captioned matter. The Statement must be filed of
record. The Statement must be served upon the
undersigned pursuant to Pa.R.A.P. No. 1925(b)(1).
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The Statement must be filed and served no later than
twenty-one (21) days from the date of the entry on
the docket of this Order. Any issue not properly
included in the Statement timely filed and served
pursuant to Pa.R.A.P. No. 1925(b) shall be deemed
waived. Attention is directed to Pa.R.A.P. No.
1925(b)(4) which sets forth requirements for the
Statement.
PCRA court order, 12/20/19.
Here, the PCRA court’s December 20, 2019 order failed to specify both
the place and address where appellant could serve his Rule 1925(b) statement
on the PCRA judge in person, as required by Pa.R.A.P. 1925(b)(3)(iii). As the
PCRA court’s Rule 1925(b) order failed to comply with
Pa.R.A.P. 1925(b)(3)(iii), we decline to find waiver. See Commonwealth v.
Jones, 193 A.3d 957, 961 (Pa.Super. 2018) (declining to find waiver where
Rule 1925(b) order is deficient). Accordingly, we shall proceed to address
appellant’s remaining three issues.
In reviewing the denial of a PCRA petition:
[o]ur standard of review . . . is limited to examining
whether the evidence of record supports the court’s
determination and whether its decision is free of legal
error. Commonwealth v. Conway, 14 A.3d 101(Pa.Super. 2011), appeal denied, [], 29 A.3d 795([Pa.] 2011). This Court grants great deference to the
findings of the PCRA court if the record contains any
support for those findings. Commonwealth v.
Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal
denied, [], 932 A.2d 74 ([Pa.] 2007).
Commonwealth v. Beatty, 207 A.3d 957, 960-961 (Pa.Super. 2019),
appeal denied, 218 A.3d 850 (Pa. 2019).
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Where a PCRA court has dismissed a petitioner’s petition without an
evidentiary hearing, as was the case here, we review the PCRA court’s decision
for an abuse of discretion. See Commonwealth v. Roney, 79 A.3d 595, 604
(Pa. 2013), certiorari denied, 574 U.S. 829 (2014). Moreover,
the right to an evidentiary hearing on a
post-conviction petition is not absolute. It is within
the PCRA court’s discretion to decline to hold a hearing
if the petitioner’s claim is patently frivolous and has
no support either in the record or other evidence. It
is the responsibility of the reviewing court on appeal
to examine each issue raised in the PCRA petition in
light of the record certified before it in order to
determine if the PCRA court erred in its determination
that there were no genuine issues of material fact in
controversy and in denying relief without conducting
an evidentiary hearing.
Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.Super. 2012) (citations
omitted).
[T]o obtain reversal of a PCRA court’s decision to
dismiss a petition without a hearing, an appellant
must show that he raised a genuine issue of fact
which, if resolved in his favor, would have entitled him
to relief, or that the court otherwise abused its
discretion in denying a hearing.
Commonwealth v. Johnson, 139 A.3d 1257, 1273 (Pa. 2016).
In his second issue, appellant contends that Detective Gerald Pawling’s3
criminal convictions “serve as the basis for the after-discovered evidence
claim” and rendered the evidence and trial verdict unreliable, thereby violating
3 Detective Pawling was a member of the Coatesville Police Department.
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appellant’s Fourth, Sixth, and Fourteenth Amendment rights. (See appellant’s
brief at 11, 15.) Specifically, appellant argues:
The PCRA [c]ourt misunderstood the nature of the
after[-]discovered evidence. Appellant is not
asserting, as the PCRA [c]ourt apparently believes,
that there were allegations by the DAO [Chester
County District Attorney’s Office] of misconduct by
[Detective] Pawling which were directly related to the
instant case. Appellant agrees that the DAO did not
investigate or charge [Detective] Pawling in relation
to any of his actions in the instant case.
Rather, [a]ppellant is asserting that [Detective]
Pawling’s convictions are after[-]discovered evidence
that [Detective] Pawling had a history/habit of
misconduct significant for the tampering with police
evidence, forgery and tampering with public records.
Id. at 15 (citations omitted). However, appellant then asserts that a
photograph of cocaine, found in Detective Pawling’s home during the DAO
investigation, shows the detective fabricated evidence after the fact “to
corroborate a previously fabricated [a]ffidavit of [p]robable cause” which “is
substantive evidence of an intentional attempt to cover up prosecutorial/police
wrongdoing.” Id. at 16 (citations omitted).
The PCRA enumerates after-discovered evidence as a claim cognizable
for post-conviction collateral relief. See 42 Pa.C.S.A. § 9543(a)(2)(vi).
Specifically, the PCRA defines such a claim as a conviction or sentencing
resulting from, “[t]he unavailability at the time of trial of exculpatory evidence
that has subsequently become available and would have changed the outcome
of the trial if it had been introduced.” Id. Both this court and our supreme
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court have further explained that, in order to be eligible for relief under an
after-discovered evidence claim,
a petitioner must prove that “(1) the evidence has
been discovered after trial and it could not have been
obtained at or prior to trial through reasonable
diligence; (2) the evidence is not cumulative; (3) it is
not being used solely to impeach credibility; and (4) it
would likely compel a different verdict.”
Commonwealth v. Johnson, 179 A.3d 1105, 1123 (Pa.Super. 2018),
appeal denied, 197 A.3d 1174 (Pa. 2018), quoting Commonwealth v. Cox,
146 A.3d 221, 228 (Pa. 2016). In cases involving criminal charges being filed
against and/or convictions of police officers involved in the underlying case, a
petition must show a nexus between his or her case and the officer’s alleged
misconduct. See Commonwealth v. Foreman, 55 A.3d 532, 537 (Pa.Super.
2012).
The PCRA court thoroughly addressed this issue as follows:
. . . . Assuming that [appellant] is contending that
[Detective] Pawling’s arrest and subsequent guilty
pleas, in unrelated matters, somehow constitute
after-discovered evidence in the present case which
would require a new trial and/or dismissal of charges;
the [PCRA c]ourt disagrees.
. . . [Detective] Pawling pled guilty on July 30, 2014
(approximately two (2) years after [appellant]’s trial
concluded). . . .
. . . [O]n July 5, 2012, prior to the commencement of
[appellant]’s trial, Assistant District Attorney
Michelle E. Frei, Esquire, provided a letter to defense
[trial] counsel, Evan Kelly, Esquire and Michael J.
Farrell, Esquire stating:
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This letter is to inform you that the [DAO]
has been notified that the Pennsylvania
Office of the Attorney General (the “AG”)
has opened an investigation into the
Coatesville Police Department. The DAO
is not the prosecuting agency in this
investigation. Any inquiries should be
directed to the AG. Because this is an
investigation and there are no
convictions, the DAO’s position is that this
investigation is not admissible in any
trials.
See July 5, 2012 [l]etter of Assistant District Attorney,
Michelle Frei, Esquire.
Ms. Frei’s letter clearly placed the defense on notice
. . . of the pending investigation by the AG into the
Coatesville Police Department. . . . [Appellant]’s trial
concluded on November 12, 2012 . . . .
On April 9, 2014, [Detective] Pawling entered open
guilty pleas . . . .
. . . . The [PCRA c]ourt takes judicial notice of that
plea colloquy. . . . Moreover, there were no
allegations that [Detective] Pawling concealed,
mishandled or otherwise tampered with
evidence to affect the outcome of any trials.
. . . . [W]e are now able to conclude that any alleged
police misconduct was clearly unrelated to the present
matter . . . .
. . . . [T]he AG’s investigation was irrelevant at the
time of [appellant]’s trial because it did not result in
any charges being brought against either
[Detective] Pawling or [Sergeant] McEvoy.
PCRA court Rule 907 notice of intent to dismiss, 10/8/19 at 2 n.3 pp. 7-9
(emphasis added). The PCRA court also noted that as part of the pre-trial
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discovery process, the Commonwealth sent a letter to appellant’s trial counsel
concerning the photograph of the cocaine. (Id. at 2 n.3 at 10.)
Accordingly, we find the PCRA court did not abuse its discretion in finding
that appellant failed to establish a nexus between his case and any misconduct
on the part of Detective Pawling that would have led to a different result at
trial. Therefore, appellant’s second issue is without merit.
In his third issue, appellant contends trial counsel and appellate counsel
rendered ineffective assistance by failing “to make the correct argument in
relation to the motion to suppress, violating appellant’s rights under the
Confrontation Clause.” (Appellant’s brief at 25 (extraneous capitalization
omitted).) Specifically, appellant contends counsel should have “challeng[ed]
the veracity of the averments in the affidavit of probable cause during the
suppression motion and appellate court proceedings.” (Id. at 31 (extraneous
capitalization omitted).) The gist of appellant’s argument is that because the
initial search warrant sought crack cocaine and none was found, it establishes
a “possible motive” that the “detectives used non-existent cocaine sales to
non-existent Cis[4] as a ruse in order to obtain evidence related to the missing
person case.”5 (Id. at 27, 29.)
Initially, we note that,
[a] claim that has been previously litigated is not
cognizable for collateral relief. 42 Pa.C.S.A.
4 Confidential informants.
5 At the time, the victim in this case was missing.
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§ 9544(a)(2). The PCRA defines a matter as having
been previously litigated when “the highest appellate
court in which the petitioner could have had review as
a matter of right has ruled on the merits of the issue.”
Id. “[T]he fact that a petitioner presents a new
argument or advances a new theory in support of a
previously litigated issue will not circumvent the
previous litigation bar.” Commonwealth v. Burkett,
5 A.3d 1260, 1270 (Pa.Super. 2010), citing
Commonwealth v. Hutchins, 760 A.2d 50(Pa.Super. 2000).
Commonwealth v. Roane, 142 A.3d 79, 94 (Pa.Super. 2016). A claim is
previously litigated if “it has been raised in the trial court, the trial court has
ruled on the merits of the issue and the petitioner did not appeal.”
42 Pa.C.S.A. § 9544(a) (1). An allegation is waived “if the petitioner could
have raised it but failed to do so before trial, at trial, on appeal or in a prior
state post-conviction proceeding.” 42 Pa.C.S.A. § 9544(b). See
Commonwealth v. Smith, 17 A.3d 873, 883 (Pa. 2011).
On May 13, 2011, appellant filed a pro se omnibus motion to suppress
physical evidence.6 Appellant asserted that the affiants deliberately misstated
the facts in the search warrant. (Motion to suppress physical evidence,
5/13/11 at unnumbered 1 ¶¶ 3, 7.) Then, as part of an omnibus pre-trial
motion, counsel filed a motion for disclosure of confidential informants on
October 31, 2011. Appellant asserted, as he does here, that the
6 We note that appellant filed a prior motion to suppress evidence on April 27,
2010, alleging, among other things, that the affidavit of probable cause did
not provide any background for the credibility of the three individual sources
referenced therein. (See motion to suppress, 4/27/10 at unnumbered 2 ¶ 8.)
The suppression court denied this motion on July 20, 2010.
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Commonwealth willfully included misstatements of fact in the affidavit of
probable cause; to-wit, that two anonymous CIs purchased crack cocaine from
appellant when the CIs never participated in controlled buys. (See motion for
disclosure of confidential informants, 10/31/11 at unnumbered 3 ¶10.)
A suppression hearing was held on November 10, 2011. The
suppression court denied appellant’s motion to suppress, concluding that the
police’s failure to find crack cocaine was not a satisfactory basis for concluding
that the police affiants had an ulterior motive to fabricate the information
contained in the affidavit of probable cause. (See notes of testimony,
11/10/11 at 24, 26.) On direct appeal, appellant challenged only the breadth
of the search warrant; he did not challenge the veracity of the police affiants.
(See appellant’s brief at 4; see also Commonwealth v. Chapman, 136 A.3d
126, 129 (Pa. 2016) (finding appellant offered no argument assailing the
quality or veracity of the information collected by affiants).) As appellant
raised the affiants’ veracity and motive before the suppression court, and did
not raise it on appeal, we find that appellant’s claim was previously litigated
and he is not entitled to PCRA relief.
Even had the issue not been previously litigated, no relief is warranted.
In evaluating claims of ineffective assistance of counsel, “counsel is presumed
to have rendered effective assistance.” Commonwealth v. Sepulveda,
55 A.3d 1108, 1118 (Pa.Super. 2012).
To overcome this presumption, [a]ppellant must
establish three factors. First, that the underlying
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claim has arguable merit. Second, that counsel had
no reasonable basis for his action or inaction. In
determining whether counsel’s action was reasonable,
we do not question whether there were other more
logical courses of action which counsel could have
pursued; rather, we must examine whether counsel’s
decisions had any reasonable basis. Finally,
[a]ppellant must establish that he has been
prejudiced by counsel’s ineffectiveness; in order to
meet this burden, he must show that but for the act
or omission in question, the outcome of the
proceedings would have been different. A claim of
ineffectiveness may be denied by a showing that the
petitioner’s evidence fails to meet any of these
prongs.
Commonwealth v. Washington, 927 A.2d 586, 594 (Pa. 2007) (citations
and quotation marks omitted).
[A] PCRA petitioner will be granted relief only when he
proves, by a preponderance of the evidence, that his
conviction or sentence resulted from the [i]neffective
assistance of counsel which, in the circumstances of
the particular case, so undermined the truth-
determining process that no reliable adjudication of
guilt or innocence could have taken place.
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (internal quotation
marks omitted; some brackets in original).
“A failure to satisfy any prong of the test for ineffectiveness will require
rejection of the claim.” Commonwealth v. Watson, 835 A.2d 786, 793
(Pa.Super. 2003). Furthermore, “a court is not required to analyze the
elements of an ineffectiveness claim in any particular order of priority; instead,
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if a claim fails under any necessary element of the Strickland7 test, the court
may proceed to that element first.” Commonwealth v. Lesko, 15 A.3d 345,
374 (Pa. 2011). “If it is clear that [a]ppellant has not demonstrated that
counsel’s act or omission adversely affected the outcome of the proceedings,
the claim may be dismissed on that basis alone and the court need not first
determine whether the first and second prongs have been met.”
Commonwealth v Albrecht, 720 A.2d 693, 701 (Pa. 1998).
“[I]f a search warrant is based upon an affidavit containing deliberate
or material misstatements, the search warrant is invalid.” Commonwealth
v. Antoszyk, 985 A.2d 975, 981 (Pa.Super. 2009), affirmed by a divided
court, 38 A.3d 816 (Pa. 2012). “[M]isstatements of fact will invalidate a
search warrant and require suppression of the fruits of the search only if the
misstatements of fact are deliberate and material.” Commonwealth v.
Baker, 24 A.3d 1996, 1017 (Pa.Super. 2011) (citations and italics omitted).
An appellant must make “a substantial preliminary showing that the false
statement was knowingly and deliberately made and was necessary for
probable cause.” Commonwealth v. Simmons, 2020 WL 2120085 *4
(Pa.Super. May 4, 2020) (unpublished memorandum).
7 See Strickland v. Washington, 466 U.S. 668 (1984) (holding that to
establish ineffectiveness, appellant must show the underlying claim has
arguable merit, there was no reasonable basis for counsel’s actions or failure
to act, and appellant was prejudiced).
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Here, appellant has not made a single showing that the police included
false information in the affidavit. (See notes of testimony, 11/10/11 at 3-27.)
Appellant failed to produce evidence, or point to any in the record, to support
his claim that the affiants knew the information was false and deliberately
included it in their application, or that they included it in reckless disregard for
whether it was true or false. See Commonwealth v. Iannaccio, 480 A.2d
966, 972 (Pa. 1984). Further, in denying appellant’s initial motion to
suppress, the suppression court found:
[T]he affidavit in support of warrant #1 contains ten
(10) independent sources that believe the residence
was being used in the sale of drugs and that three (3)
individual sources over the past month confirmed that
the suspected drug activity that had been taking place
in the detached garage had moved to the rear door of
the residence. Those ten (10) independent sources
and three (3) individual sources and the information
provided by them were corroborated by police
observation and as such corroborate each other and
are in fact corroborated by the police.
Suppression court order, 7/20/10 at 1 n.1 at 2. We, therefore, agree with the
PCRA court that there is no arguable merit to appellant’s claim of
ineffectiveness. Appellant’s failure to prove trial counsel’s ineffectiveness is
“fatal to his layered ineffectiveness claim.” Commonwealth v. Carson, 913
A.2d 220, 233 (Pa. 2006).
In his final issue, appellant argues that trial counsel,
ineffectively allowed the Commonwealth to admit DNA
results which were inconclusive without consulting
with his client and gaining his approval to do so first.
Appellant avers that counsel’s failure to object to this
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line of questioning and the admission of the DNA
results served as a de facto equivalent of a
stipulation.
Appellant’s brief at 35. Appellant cites to the trial transcript in support of his
claim. (Notes of testimony, 11/7/12 at 192-201.) Appellant further asserts
trial counsel’s failure to object to the DNA results deprived him of his
constitutional right to confront and cross-examine the DNA expert. (See
appellant’s brief at 35.)
Initially, we note that nowhere in the portion of the trial testimony
referenced by appellant is there any reference to inconclusive DNA test
results. Appellant does not assert any basis for trial counsel objecting to the
DNA results, and the case law cited by appellant,8 in regard to his de facto
stipulation argument, deals with actual, not de facto, stipulations.
An appellate brief must provide citations to the record
and to any relevant supporting authority. This Court
will not become the counsel for an appellant, and will
not, therefore, consider issues . . . which are not fully
developed in [the] brief. Failing to provide factual
background and citation to the record represent
serious deviations from the briefing requirements of
the Rules of Appellate Procedure.[9] An issue that is
not properly briefed in this manner is considered
waived, as such an omission impedes our ability to
address the issue on appeal.
8See Commonwealth v. Davis, 322 A.2d 103 (Pa. 1974); Commonwealth
v. Overton, 352 Pa.Super. 1975); Commonwealth v. Bridell, 384 A.2d 942(Pa.Super. 1978).
9 See Pa.R.A.P. 2119(c) (requiring “reference to the place in the record where
the matter referred to appears”).
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Commonwealth v. Einhorn, 911 A.2d 960, 970 (Pa.Super. 2006) (citations
and quotation marks omitted), appeal denied, 920 A.2d 831 (Pa. 2007).
See Commonwealth v. Ellis, 700 A.2d 948, 957 960, 969 (Pa.Super. 1997)
(finding issue waived where appellant fails to develop claim or cite to legal
authority in appellate brief), appeal denied, 727 A.2d 127 (Pa. 1998); see
also Commonwealth v. Brown, 161 A.3d 960, 969 (Pa.Super. 2017),
appeal denied, 176 A.3d 850 (Pa. 2017). Thus, appellant’s claim is waived.
Even if we were to review this claim, no relief would be warranted.
The PCRA court concluded that appellant’s argument is belied by the
record. (See PCRA court notice of intent to dismiss, 10/8/19 at 2 n.3 at
pp. 13-14.) We agree. As noted by the PCRA court, appellant fails to identify
or cite to any perceived agreement or stipulation with regard to the DNA
evidence. (Id.) Based on our review of the testimony of Katherine Cross, the
Commonwealth’s DNA and blood spatter expert, we can discern no such
agreement or stipulation as alleged by appellant. (See notes of testimony,
11/7/12 at 174-240.)
Appellant additionally argues, that as a result of trial counsel’s actions
and/or omissions in this case, he did not have the opportunity to
cross-examine Ms. Cross on the nature of the DNA results. (See appellant’s
brief at 37-38.) This claim is belied by the record as trial counsel did
cross-examine Ms. Cross. (See notes of testimony, 11/7/12 at 236-240.)
Accordingly, we find that appellant’s fourth issue is without arguable merit,
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and the PCRA court did not abuse its discretion in denying this ineffective
assistance of counsel claim.
Appellant has failed to show that “he raised a genuine issue of fact
which, if resolved in his favor, would have entitled him to relief, or that the
court otherwise abused its discretion in denying a hearing.” Johnson, 139
A.3d at 1273. Accordingly, we discern no error on the part of the PCRA court
in dismissing appellant’s petition without conducting an evidentiary hearing.
For the foregoing reasons, we affirm the November 13, 2019 order of
the PCRA court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2020
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