Com. v. Edens, W. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WALEED EDENS :
:
Appellant : No. 1020 EDA 2019
Appeal from the PCRA Order Entered March 7, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0012926-2012
BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: Filed: March 18, 2021
Waleed Edens (Edens) appeals from an order of the Court of Common
Pleas of Philadelphia County (PCRA court) denying his petition filed pursuant
to the Post Conviction Collateral Relief Act (PCRA), 42 Pa.C.S. §§ 9542-9546.
On appeal, Edens contends that the trial court erred in dismissing his PCRA
petition without a hearing, contending that his trial counsel, for a number of
reasons, was ineffective. He also contends that the PCRA court in its 1925(a)
opinion impermissibly changed the disposition of his petition from dismissal
for being without merit to one that quashed his appeal because it was
prematurely filed before appeals on the merits had concluded. While we
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* Retired Senior Judge assigned to the Superior Court.
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decline not to address the merits of the appeal, we affirm the trial court’s
order dismissing the PCRA petition without a hearing.
I.
We take the following factual background and procedural history from
our independent review of the record, this Court’s October 12, 2017
memorandum decision and the PCRA court’s December 10, 2019 opinion.
A.
In Philadelphia, on the night of July 25, 2012, Edens, after an argument,
shot his father, Jerome Edens (Complainant) three times. Edens fled the
scene and went into hiding until he was arrested six weeks later. On
November 13, 2012, the Commonwealth filed an information charging Edens
with Criminal Attempt (Murder), Aggravated Assault, Possession of a Firearm
Prohibited, Firearms Not To Be Carried Without a License, Carrying a Firearm
on a Public Street in Philadelphia, Possession of an Instrument of Crime,
Simple Assault and Recklessly Endangering Another Person (REAP).
Apparently, the case was held for court without Edens being arraigned. After
a January 2, 2013 scheduling conference, the court scheduled trial for
November 6, 2013.
Before the scheduled trial date, on October 7, 2013, Edens’ trial counsel
filed a Rule 600 motion1 to dismiss that he later withdrew as premature. The
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1 Pa.R.Crim.P. 600(C) provides:
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motion was not renewed. On November 6, 2013, the court granted a defense
motion for a continuance, continuing trial until July 8, 2014, and in July 2014,
granted another defense continuance motion and continued the trial until
December 4, 2014, when a trial readiness conference was held and trial listed
for December 8, 2014. Due to the trial court’s docket, trial did not occur at
that time, but instead commenced on July 8, 2015.
At trial, the Commonwealth presented the testimony of the
Complainant, Philadelphia Police Officers Daniel Martinez and Joseph Moore,2
and Philadelphia Police Detective Donald Liebsch. The Complainant testified
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In determining the period for commencement of trial, there shall
be excluded therefrom:
(1) the period of time between the filing of the written
complaint and the defendant’s arrest, provided that the defendant
could not be apprehended because his or her whereabouts were
unknown and could not be determined by due diligence;
(2) any period of time for which the defendant expressly
waives Rule 600;
(3) such period of delay at any stage of the proceedings as
results from:
(a) the unavailability of the defendant or the
defendant’s attorney;
(b) any continuance granted at the request of the
defendant or the defendant’s attorney.
2Officer Moore testified to securing Edens’ identification information at the
police department on his arrest.
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about the night of the incident. He stated that he is Edens’ father and on that
night, he went to the home of Edens’ friend, Troy Timms. He spoke to Mr.
Timms about how much time Edens was spending with him instead of at home
with his pregnant wife. Upon returning home, the Complainant ran into Ron
Watkins and was speaking with him when Edens approached them, saying, “I
ain’t scared of you dad.” The Complainant saw a cell phone in one of Edens’
hands and then saw the gun in the other before Edens shot at him three times
and ran. (See N.T. Trial, 7/08/15, at 45-47).
Police Officer Daniel Martinez was the first officer on the scene and the
Complainant told him that Edens had shot him, gave him his son’s address
and the make and model of his vehicle. He did not observe a gun in the
Complainant’s possession or anywhere else at the scene, although he did
recover shell casings.
Detective Liebsch testified in pertinent part that Edens fled the shooting,
went into hiding, and remained a fugitive until his arrest roughly six weeks
later. Prior to introducing recordings of prison phone calls to play for the jury
and about which Detective Liebsch would testify, the prosecutor stated that
the parties had stipulated to what the custodian of records for the Philadelphia
Department of Corrections would have testified. Specifically, she advised the
jury that:
[T]here’s a stipulation by and between counsel meaning both
sides agree, that if the custodian of records from the Philadelphia
Department of Corrections were to testify, he would testify that
calls from inmates in Philadelphia prisons are recorded. That prior
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to each call a message is played to the inmate alerting the inmate
that the call is being recorded.
Each inmate has a PIN number they use in order to make
outgoing calls and track those calls. The calls themselves are
recorded as well as the date, the time, and the phone number to
which the call is made.
The custodian of records has a duty to keep accurate
copies of these recordings. The CD which is marked C-18 is an
accurate copy of the defendant’s calls made by the defendant
while incarcerated in the Philadelphia prisons on his case prior to
posting of bail.
(Id. at 112-13). Defense counsel did not object to the stipulation.
The prosecutor then examined Detective Donald Liebsch and played the
tape of Edens’ pretrial prison phone calls with various friends and family
members. Detective Liebsch stated that he listened to Edens’ calls because
of the Complainant’s concerns. In one call, Edens, said of the Complainant,
“You don’t fucking come to court.” (Id. at 114). After listening to the phone
calls, the detective advised the Complainant that Edens had made threatening
remarks about him if he appeared at court.
Edens presented the testimony of Ron Watkins, the individual speaking
with the Complainant prior to the shooting. He testified that he was talking
with the Complainant about Edens outside the home the Complainant shared
with his wife and Edens when he saw Edens walking up the street with a cell
phone in his hand. As Watkins turned to watch Edens, the Complainant was
behind him and Edens forcefully grabbed Watkins’ shoulder and told him to
move. Watkins did so because of the “severity” with which Edens directed
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him, testifying that he felt “fear” and “danger.” Watkins ran down the street,
turning around to see the Complainant and Edens “tussling.” Watkins testified
that the Complainant had his hand under his shirt and appeared to be reaching
for something, but he did not see either man with a gun. Upon reaching the
corner, he heard three shots and turned to see the Complainant lying on the
ground. When Officer Martinez arrived, Watkins was at the scene, but he
testified Edens had left and that he did not tell the officer that he witnessed
the shooting. (See id. at 11-15, 21, 27). Edens did not testify on his own
behalf.
On July 9, 2015, a jury convicted Edens of Aggravated Assault and
Possession of a Firearm Prohibited3 and acquitted him on the charges of
Attempted Murder and Carrying a Firearm without a License.4 The same day,
the trial court held a waiver trial at which counsel stipulated that Edens was
prohibited from carrying a firearm due to a previous conviction and the court
convicted him of Carrying a Firearm on a Public Street in Philadelphia.5 On
November 9, 2015, the court sentenced Edens to an aggregate term of not
less than twelve nor more than twenty years’ incarceration, followed by five
years of probation.
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3 18 Pa.C.S. §§ 2702(a)(1) and 6105(a)(1), respectively.
4 The Commonwealth nolle prossed the remaining charges.
5 18 Pa.C.S. § 6108.
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B.
A panel of this Court affirmed the judgment of sentence on October 12,
2017. (See Commonwealth v. Edens, 179 A.3d 553 (Pa. Super. 2017)).
Edens filed a petition for allowance of appeal in the Pennsylvania Supreme
Court. While the petition was still pending, on February 20, 2018, Edens filed
a pro se PCRA petition, and on February 28, 2018, the court appointed
Attorney Krakower. The Pennsylvania Supreme Court denied Edens’ petition
for allowance of appeal on March 13, 2018. (See Commonwealth v. Edens,
182 A.3d. 446 (Pa. 2018)).
Attorney Krakower filed an amended and a supplemental PCRA petition
on June 20, 2018, and July 23, 2018, respectively. The PCRA court issued
notice of its intent to dismiss the petition on February 1, 2019. See
Pa.R.Crim.P. 907(1).6 The notice advised Edens that the PCRA petition lacked
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6 Pa. R. Crim. P. 907 provides:
Except as provided in Rule 909 for death penalty cases,
(1) the judge shall promptly review the petition, any answer
by the attorney for the Commonwealth, and other matters of
record relating to the defendant’s claim(s). If the judge is satisfied
from this review that there are no genuine issues concerning any
material fact and that the defendant is not entitled to post-
conviction collateral relief, and no purpose would be served by any
further proceedings, the judge shall give notice to the parties of
the intention to dismiss the petition and shall state in the notice
the reasons for the dismissal. The defendant may respond to the
proposed dismissal within 20 days of the date of the notice. The
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merit because he failed to plead and prove trial counsel was ineffective for
failing to convey a plea offer, failing to investigate and interview exculpatory
witnesses, failing to request a colloquy before stipulating to the authenticity
of prison phone calls or for failing to file a Rule 600 motion. (See Notice
Pursuant to Pa.R.C.P. 907, 2/01/19, at 1-2). Edens did not respond to the
notice and on March 7, 2019, the court formally dismissed the petition on the
merits. Edens timely appealed pro se and filed a statement of errors raised
on appeal pursuant to the PCRA court’s order. See Pa.R.A.P. 1925(b).
On August 6, 2019, the PCRA court sent correspondence to this Court
advising that Edens’ appeal should be quashed because he prematurely filed
his PCRA petition while his direct appeal was still pending in the Pennsylvania
Supreme Court. In response to a rule to show cause, Attorney Krakower7
indicated that he made all attempts to preserve the PCRA petition, including
filing amended petitions after Edens’ judgment of sentence became final. On
December 24, 2019, the rule to show cause was discharged and the issue
referred to the merits panel. The court filed a Rule 1925(a) opinion in which
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judge thereafter shall order the petition dismissed, grant leave to
file an amended petition, or direct that the proceedings continue.
7 On March 20, 2020, this case was remanded to the PCRA court for an
abandonment hearing because Attorney Krakower failed to file an appellate
brief on behalf of Edens. After the hearing, the PCRA court appointed Attorney
Love, who filed an appellate brief on Edens’ behalf.
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it did not address the merits of Edens’ PCRA issues but, instead, again
suggested that we quash his appeal. See Pa.R.A.P. 1925(a).
II.
Edens raises three issues on appeal, which we reorder for ease of
disposition: (1) whether the PCRA court erred in bringing up the jurisdictional
issue for the first time in this Court, thus depriving him of notice; (2) whether
the PCRA court erred in denying his petition based on its allegations of
ineffective assistance of trial counsel; and (3) whether the trial court failed to
provide a timely formal arraignment.8 Because we cannot dispose of the other
issues if the PCRA petition was filed prematurely, depriving the court of
jurisdiction, we will address that issue first.
A.
Edens maintains that the PCRA court erred in its Rule 1925(a) opinion
by stating, for the first time,9 that its denial of his petition was proper because
it lacked jurisdiction due to Edens’ premature PCRA filing. (See Edens’ Brief,
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8 This Court’s standard of review regarding an order denying a petition under
the PCRA is whether the determination of the PCRA court is supported by the
evidence of record and is free of legal error. See Commonwealth v. Rizvi,
166 A.3d 344, 347 (Pa. Super. 2017).
9 As stated previously, the PCRA court first raised this issue in its October 6,
2019 correspondence to this Court, not in its Rule 1925(a) opinion. However,
this does not affect Edens’ argument, that by failing to raise this ground for
dismissal of his PCRA petition while in the PCRA court, he was deprived the
opportunity to address and remedy the procedural problem.
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at 17-19). He argues that by raising this issue for the first time at this point
in the proceedings, the court denied him the opportunity to cure the defect
prior to the PCRA petition’s dismissal. (See id. at 19).
In considering jurisdiction in this case, we note preliminarily that:
A PCRA court lacks jurisdiction to consider a PCRA petition when
a petitioner’s judgment is not final. … Accordingly, until [an]
[a]ppellant’s judgment of sentence becomes final in accordance
with the procedural mechanisms recognized in 42 Pa.C.S.A.
§ 9545(b)(3),[10] we lack jurisdiction to consider the merits of
[his] remaining [PCRA] claims.
Id. (citations omitted).
This Court has instructed that, “[i]f a petition is filed while a direct
appeal is pending, the PCRA court should dismiss it without prejudice towards
the petitioner’s right to file a petition once his direct appeal rights have been
exhausted.” Commonwealth v. Smith, ___ A.3d ___, 2020 WL 7501859,
at *3 (Pa. Super filed Dec. 21, 2020) (citation omitted). “The fact that the
PCRA court declined to do so is of no consequence [because] [i]n the PCRA
context, statutory jurisdiction cannot be conferred by silence, agreement or
neglect.” Id. at *4 (internal quotation marks and citation omitted).
In this case, Edens filed his PCRA petition while his direct appeal was
pending in the Pennsylvania Supreme Court. The PCRA court should have
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10Section 9545(b)(3) of the PCRA provides that a judgment becomes final at
the conclusion of direct review, including discretionary review in the Supreme
Court of the United States and the Supreme Court of Pennsylvania, or at the
expiration of time for seeking the review.” 42 Pa.C.S. § 9545(b)(3).
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dismissed it as a legal nullity without prejudice to him re-filing it when his
judgment of sentence became final. Had it done so, Edens would have been
within the one-year window for filing a timely petition. See 42 Pa.C.S.
§ 9545(b)(1) (a PCRA petition “shall be filed within one year of the date the
judgment becomes final.”). Instead, the trial court appointed counsel who
filed an amended PCRA petition and a supplemental PCRA petition, which were
filed after Edens’ judgment of sentence was final. The PCRA court allowed
the matter to proceed, issued a Pa.R.Crim.P. 907(1) notice, then dismissed
the PCRA petition as meritless.
After that order was final, the court then issued its 1925(a) opinion that
did not address the rationale behind its dismissal of Eden’s PCRA petition.
After Edens’ one-year window for filing a new petition expired, and without
addressing whether the amended and supplemental PCRA petitions filed after
the appeal on the merits had concluded made the matter not premature, the
court quashed his PCRA petition as premature.
Under these circumstances, we decline to quash this appeal on the basis
that the PCRA petition was premature because it would be unjust to consider
Edens’ petition a legal nullity where the court’s misstep has resulted in his
inability to file a timely petition. See Commonwealth v. Mojica, 242 A.3d
949, 954 (Pa. Super. 2020) (declining to treat premature PCRA petition as
legal nullity where doing so would be unjust due in part to the PCRA court’s
“misapprehension” about appellant’s prematurely filed petition); see also
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Commonwealth v. Patterson, 940 A.2d 493, 498 (Pa. Super. 2007), appeal
denied, 960 A.2d 838 (Pa. 2008) (“Generally, an appellate court cannot
extend the time for filing an appeal. Nonetheless, this general rule does not
affect the power of the courts to grant relief in the case of fraud or breakdown
in the processes of the court.”) (citations omitted).
Now to the merits.
B.
Edens maintains that counsel was ineffective (1) for failing to renew a
Rule 600 motion, (2) failing to interview exculpatory witnesses, (3) stipulating
to prison phone calls without a colloquy, and (4) failing to communicate a plea
deal.
In considering an ineffective assistance of counsel claim, we observe
first that counsel is presumed effective and that a petitioner bears the burden
to prove otherwise. See Commonwealth v. Fears, 86 A.3d 795, 804 (Pa.
Super. 2014). To establish an ineffectiveness claim, a defendant must prove:
(1) the underlying claim has arguable merit; (2) no reasonable
basis existed for counsel’s actions or failure to act; and (3)
[appellant] suffered prejudice as a result of counsel’s error such
that there is a reasonable probability that the result of the
proceeding would have been different absent such error.
Id. (citation omitted). “Failure to prove any prong of this test will defeat an
ineffectiveness claim. When an appellant fails to meaningfully discuss each of
the three ineffectiveness prongs, he is not entitled to relief, and we are
constrained to find such claims waived for lack of development.” Id. (citations
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and internal quotation marks). Finally, counsel will not be found ineffective
for failing to raise a meritless claim. See id.
1.
As to the Rule 600 issue, Edens maintains that the failure to renew the
prematurely filed Rule 600 motion was prejudicial to him because it could have
resulted in dismissal of the charges against him. (See id. at 20-21).
Pursuant to Rule 600, generally, a trial must commence against a
defendant within 365 days of the complaint’s filing. See Pa.R.Crim.P.
600(A)(2)(a). When computing this time, “periods of delay at any stage of
the proceedings caused by the Commonwealth when the Commonwealth has
failed to exercise due diligence shall be included in the computation of time
within which trial must commence. Any other periods of delay shall be
excluded from the computation.” Pa.R.Crim.P. 600(C)(1). Time attributable
to the normal progression of the case in the pre-trial period may be excluded
at the trial court’s discretion. See Commonwealth v. Mills, 162 A.3d 323,
325 (Pa. 2017).
In his amended PCRA petition, Edens baldly asserted that trial counsel
“took the case to trial on July 8, 2015; approximately a year and a half beyond
the 365 day limit provided in the rule,” as the sole basis for his Rule 600 issue.
(See Amended Petition, at Paragraph B(3)). He offered no specific dates or
pertinent argument. Based on this sparse argument provided to the PCRA
court, we cannot conclude that it abused its discretion in finding that Edens
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failed to plead and prove that counsel lacked a reasonable basis for not
renewing the Rule 600 motion or that Edens was prejudiced by this inaction.
(See Rule 907 Notice, at 2).
In his appellate brief, Edens expands on this issue by adding, for the
first time, that although some of the time was excludable (specifically,
November 6, 2013, to July 8, 2014, and July 15, 2018, to December 4, 2015),
the case did not go to trial until over two-and-a-half years from the filing of
the complaint. (See Edens’ Brief, at 21). He does not provide any argument
regarding the Commonwealth’s due diligence, merely offering that this fact
issue required a hearing. (See id. at 20-21).
However, even based on these additional meager facts, we cannot find
that the PCRA court’s denial of his petition without a hearing was an abuse of
discretion. See Commonwealth v. Maddrey, 205 A.3d 323, 329 (Pa. Super.
2019), appeal denied, 205 A.3d 323 (Pa. 2019) (declining to find PCRA court
abuse of discretion where appellant fails to provide sufficient fact and
argument). In fact, our review of the record does not reveal any continuance
requests by the Commonwealth, and most continuances appear to be due to
the normal pre-trial progression of the case. Because there is no evidence
that the Commonwealth failed to act with due diligence in bringing Edens to
trial or that it caused any periods of delay, the PCRA court properly found that
Edens failed to meet his burden to plead and prove that trial counsel was
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ineffective for failing to renew his Rule 600 motion where it would have lacked
underlying merit. See Fears, supra at 804.
2.
Next, Edens argues that the PCRA court abused its discretion in denying
his petition without a hearing where trial counsel was ineffective for failing to
interview exculpatory witnesses, specifically, Deborah and Troy Timms.
“[T]he decision whether to grant an evidentiary hearing is within the
discretion of the PCRA court and will not be overturned absent an abuse of
discretion.” Commonwealth v. Reid, 99 A.3d 470, 485 (Pa. 2014) (citation
omitted). To be entitled to an evidentiary hearing on a claim of ineffective
assistance of counsel for failure to interview potential witnesses, the PCRA
court requires “a signed certification as to each intended witness stating the
witness’s name, address, date of birth and substance of testimony.” 42
Pa.C.S. § 9545(d)(1). “Failure to substantially comply with the requirements
of this paragraph shall render the proposed witness’s testimony inadmissible.”
Id.
In his amended PCRA petition, Edens provided the substance of Deborah
Timm’s potential testimony that she saw the Complainant with a gun
threatening that he would kill Edens days before the incident, her incomplete
phone number, “267-326—980” and a blank line for date of birth. (See
Amended PCRA Petition, 6/20/18, at Paragraph B(1)). He represented that
Troy Timms would testify similarly but provided no phone number and no date
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of birth for him. (See id.). He did not include a signed certification as to each
potential witness and the information provided in the body of his amended
PCRA petition was incomplete. Therefore, his claim fails on this basis alone.
See Commonwealth v. Priovolos, 715 A.2d 420, 422, n.3 (Pa. 1998)
(where a petitioner requests a hearing, the petition must include a signed
certification with all required information as to each intended witness).
Moreover, even if he had provided proper certifications as to Deborah
and Troy Timms, he failed to establish that he was prejudiced by counsel’s
choice not to investigate them.
The failure to investigate presents an issue of arguable merit
where the record demonstrates that counsel did not perform an
investigation. It can be unreasonable per se to conduct no
investigation into known witnesses. Importantly, a petitioner still
must demonstrate prejudice. To demonstrate prejudice where the
allegation is the failure to interview a witness, the petitioner must
show that there is a reasonable probability that the testimony the
witness would have provided would have led to a different
outcome at trial.
Commonwealth v. Pander, 100 A.3d 626, 638-39 (Pa. 2014), appeal
denied, 109 A.3d 679 (Pa. 2015) (citations and quotation marks omitted).
Edens maintains that both Deborah and Troy Timms would have testified
that the Complainant told them before the shooting11 that he was looking for
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11 In his amended PCRA petition, Edens represented that the Timms would
have testified that the Complainant made this threat days before the shooting.
In his brief to this Court, he maintains that the Complainant showed the guns
to Deborah Timms and made the threat an hour before the shooting.
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Edens and was going to shoot him for disgracing his family and that the
Complainant displayed a gun to Ms. Timms. (Amended PCRA Petition, at
Paragraph B(1)). He argues that this evidence would have disputed the
Commonwealth’s claim that Edens possessed the gun prior to the incident,
leading to a different outcome.
However, based on the other evidence of record, Edens failed to
establish that there is a reasonable probability that the outcome of the
proceeding would have been any different had these witnesses testified.
Specifically, the Complainant, Edens’ father, testified that immediately after
he went to Edens’ friend’s home to talk with him about Edens not spending
enough time with his pregnant wife, Edens angrily approached him as he was
returning home and shot him three times. Officer Martinez stated that when
he arrived at the scene, the Complainant was not in possession of a gun, there
was no firearm at the location and that the Complainant identified Edens as
the shooter. Furthermore, the Commonwealth introduced evidence that
Edens fled the shooting, went into hiding and remained a fugitive until his
arrest approximately six weeks later. Finally, the jury heard a series of prison
phone calls made by Edens in which he made threatening remarks about the
Complainant should he come to court, phone calls Detective Liebsch testified
he reviewed because of the Complainant’s concerns about which he felt
compelled to warn the Complainant.
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Based on the foregoing, we conclude the PCRA court properly found that
Edens has failed to plead and prove he was prejudiced by counsel’s failure to
investigate these proposed witnesses. Although they would have testified that
the Complainant was upset with Edens and had a gun at some point before
the shooting, which might have bolstered Watkins’ testimony, in the totality
of the circumstances, we conclude that the PCRA court did not abuse its
discretion when it found Edens failed to establish that this testimony would
have impacted the outcome of the trial. See Fears, supra at 804. This
argument fails.
3.
Edens then maintains that the trial court abused its discretion in denying
his petition without a hearing because counsel was ineffective for failing to
request a colloquy before stipulating that the Custodian of Records of the
Philadelphia Department of Corrections would testify to the authenticity of
phone calls he made while in pre-trial custody. (See Edens’ Brief, at 26-28).
He argues that the stipulation effectively prevented any challenge to the
records and “virtually assured [his] conviction.” (Id. at 27). In sum, he states
that trial counsel was “obligated” to ask for a colloquy to ensure Edens
understood the agreement and its effect. (See id. at 28).
First, we note that Edens does not allege he would have objected to the
stipulation had he received a colloquy. Moreover, he did not point to any
specific aspect of the records that were untrustworthy or explain how cross-
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examination of the Custodian of Records would have cast any doubt on the
credibility of that information. Hence, he has failed to prove that he was
prejudiced by counsel’s failure to request a colloquy prior to stipulating to
what the Custodian of Records would have testified regarding the authenticity
of the prison phone calls. See Commonwealth v. Smith, 17 A.3d 873, 910-
11 (Pa. 2011), cert. denied, 567 U.S. 937 (2012) (no prejudice from
stipulation where petitioner did not demonstrate that the outcome of the case
would have been different if trial counsel had an opportunity to cross-examine
the witness).12
Accordingly, the PCRA court properly found that this argument lacks
merit. See Fears, supra at 804.
4.
Finally, Edens complains that trial counsel was ineffective for failing to
communicate a plea offer of eight to sixteen years’ incarceration in exchange
for his guilty plea. (See Edens’ Brief, at 28-30).
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12 Moreover, we are not persuaded by the cases Edens relies on in support of
this claim. (See Edens’ Brief, at 27-28). In Commonwealth v. Williams,
443 A.2d 338 (Pa. Super. 1982), and Commonwealth v. Davis, 322 A.2d
103 (Pa. 1974), the defendants were awarded new trials where the trial
attorneys stipulated to the testimony of the complaining witness, thereby
preventing cross-examination of a significant fact witness in each case. Here,
trial counsel merely stipulated to the Custodian of Records’ pro forma
authentication of prison phone calls making Williams and Davis inapposite
to the case herein.
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To prove ineffective assistance of counsel in the context of a plea deal,
“a defendant must show the outcome of the plea process would have been
different with competent advice.” Lafler v. Cooper, 566 U.S. 156, 163
(2012). Where the alleged ineffectiveness led to an offer’s rejection:
[D]efendant must show that but for the ineffective advice of
counsel there is a reasonable probability that the plea offer would
have been presented to court (i.e., that the defendant would have
accepted the plea and the prosecution would not have withdrawn
it in light of intervening circumstances), that the court would have
accepted its terms, and that the conviction or sentence, or both,
under the offer’s terms would have been less severe than the
judgment and sentence that were in fact imposed.
Id. at 164.
Here, in support of the claim, Edens attached an affidavit signed by
Jerome Edens, the Complainant, to his pro se PCRA petition. In the affidavit,
the Complainant represented that he met with a detective and assistant
district attorney in 2014 and that he was told “[defendant] would be offered
a term of eight (8) years to sixteen (16) years at this interview by the assistant
district attorney.” (See Pro Se PCRA Petition, at Exhibit J). However, the
affidavit does not state that trial counsel was at the meeting or aware of this
alleged deal, ostensibly since it was a meeting with the Complainant, not
Edens.
In his supplemental PCRA petition, Edens asserted for the first time that
“[he] informed undersigned [PCRA] counsel that … [his] trial attorney, Shawn
Page, Esquire, was present at the time of the ‘offer’ statement.”
(Supplemental PCRA Petition, at 1). However, Edens did not provide any
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evidence of trial counsel’s attendance at this purported meeting, instead only
making the bald allegation or establish that even if the Complainant were told
at the purported meeting that Edens would be offered an eight-to-sixteen-
year plea deal, that any such offer was ever made. Hence, we conclude that
Edens failed to establish that his underlying claim had merit. See
Commonwealth v. Hentosh, 554 A.2d 20, 24-25 (Pa. 1989) (claims of
ineffectiveness are not self-sustaining, but must be established by submission
of relevant proofs, and failure to submit such relevant proofs supporting claim
of ineffectiveness warrants summary rejection of the claim); Commonwealth
v. Jones, 811 A.2d 994, 1003 (Pa. 2002) (ineffective assistance of counsel
claims are not self-proving and undeveloped claims are insufficient to prove
an entitlement to relief).13
Accordingly, Edens has failed to prove that counsel was ineffective for
failing to advise him of a plea offer where he provides no evidence that an
offer was made or that counsel was aware of it. For all these reasons, we
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13 The PCRA court denied this claim because Edens failed to establish he was
prejudiced by counsel’s inaction because “he rejected a prior plea offer of
eight-and-one half to seventeen years of incarceration.” (Rule 907 Notice, at
1). While the record is clear that Edens rejected a plea offer on January 28,
2013, we found no evidence of the offer’s terms. Hence, we decline to rely
on this reasoning. However, we may affirm a PCRA court’s decision on any
basis appearing of record. See Commonwealth v. Clouser, 998 A.2d 656,
661 n.3 (Pa. Super. 2010), appeal denied, 26 A.3d 1100 (Pa. 2011).
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conclude that the PCRA court did not abuse its discretion in denying Edens’
PCRA petition.
C.
Finally, Edens complains that his conviction should be vacated because
he was not arraigned, and that trial counsel was ineffective for failing to
request a stand your ground14 jury instruction. (See Edens’ Brief, at 30-31).
These issues are waived.
1.
As to the stand your ground issue, Edens admits that it was not raised
in either his amended or supplemental PCRA petitions and our review of the
record confirms he did not raise it in his pro se petition. Instead, it was raised
for the first time in his Rule 1925(b) statement. Further, he provides no
pertinent law, discussion thereof or identify any evidence in support of this
claim, offering only that counsel should have pursued the defense “to obviate
[Edens’] need to retreat.” (Edens’ Brief, at 31). For all these reasons, this
issue is waived. See Pa.R.A.P. 302(a) (“Issues not raised in the trial court
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14 “Stand your ground” is related to the duty to retreat in the context of self-
defense and is codified in Section 505 of the Crimes Code. It provides, in
pertinent part, that “[a]n actor who is not engaged in a criminal activity, who
is not in illegal possession of a firearm and who is attacked … has no duty to
retreat and has the right to stand his ground and use force, including deadly
force[]” where the actor has the right to be in the place in which he was
attacked and the person against whom the force is used uses a firearm. 18
Pa.C.S. § 505(b)(2.3).
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are waived and cannot be raised for the first time on appeal.”).
Commonwealth v. Bedell, 954 A.2d 1209, 1216 (Pa. Super. 2008), appeal
denied, 964 A.2d 893 (Pa. 2009) (Issue not raised in PCRA petition is waived);
Pa.R.A.P. 2119(a)-(b). Nor will we scour the record to find support for a claim
or to make an argument on Edens’ behalf. See Commonwealth v. Cannavo,
199 A.3d 1282, 1289 (Pa. Super. 2018), appeal denied, 217 A.3d 180 (Pa.
2019) (“We shall not develop an argument for an appellant, nor shall we scour
the record to find evidence to support an argument; instead, we will deem
[the] issue to be waived.”) (citation omitted).
2.
As to his arraignment15 issue, Edens concedes that it is not raised in
either his amended or supplemental PCRA petitions. (See Edens’ Brief, at
30). Although he did raise it in his pro se petition, which the amended petition
purported to incorporate, the amended petition also qualified that the
argument “ha[s] a fatal flaw or defect which prevents us from arguing that
th[e] issue[] justif[ies] giving petitioner a new trial.” (Amended PCRA Petition,
at (C); (Pro Se PCRA Petition, at 7). We agree because the arraignment issue
is waived under the PCRA where Edens could have raised it in his direct appeal,
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15 An arraignment’s main purpose is to advise the defendant of the charges
against him or her, have counsel enter an appearance and to start the time
for filing pre-trial motions and initiate discovery. See Pa.R.Crim.P. 571,
Comment. Here, the record reflects that Edens was on notice of the charges
against him, counsel entered his appearance, multiple pre-trial motions were
filed and discovery was initiated.
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particularly where he argues that trial counsel raised it before trial, but that
the court “erroneously rejected” it. (Edens’ Brief, at 31); see 42 Pa.C.S.
§ 9544(b) (Issues that could have been raised on direct appeal are waived
under the PCRA); Commonwealth v. Lambert, 797 A.2d 232, 240 (Pa.
2001) (finding claims waived where they could have been raised on direct
appeal).
Moreover, just as in his stand your ground claim, Edens provides no
pertinent citation to authorities or discussion thereof, and he fails to identify
where in the record this issue was raised, thus waiving this claim on this basis
as well. See Pa.R.A.P 2119(a)-(d); Cannavo, supra at 1289.
Therefore, for all these reasons, Edens’ bald claims that his conviction
should be vacated on the bases of the arraignment and stand your ground
arguments are waived for our review and Edens is due no relief.
For the foregoing reasons, we affirm the order of the court denying
Edens’ PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/18/21
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