Com. v. Williams, G.

J-S34043-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GEORGE WILLIAMS,
Appellant No. 1417 EDA 2016
Appeal from the PCRA Order April 22, 2016
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0006521-2008
BEFORE: BOWES, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED JULY 24, 2017
Appellant, George Williams, appeals from the order of April 22, 2016,
which dismissed, without a hearing, his first counseled petition brought
under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.
We affirm.
We take the underlying facts and procedural history in this matter
from this Court’s December 3, 2012 opinion on direct appeal, the PCRA
court’s June 27, 2016 opinion, and our independent review of the certified
record.
Appellant was charged in connection with the shooting
death of Derrick Ralston (hereinafter “the victim”). The victim’s
body was discovered in an alley in the vicinity of Bridge and
Granite Streets in Philadelphia, near Cappy’s Bar. At Appellant’s
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*
Retired Senior Judge assigned to the Superior Court.
J-S34043-17
trial, two witnesses, Marcos Vinzenni and John Joseph Miller,
testified to the events that occurred immediately prior to the
victim’s murder. Both Vinzenni and Miller were standing on the
porch of Cappy’s Bar in the early morning hours of October 19,
2007, when they saw three black males shouting at one white
male in the middle of the street. The black males ordered the
white male to strip off his clothes and two of the black males
were pointing guns at the white male. Both Vinzenni and Miller
recognized two of the black males, who they only knew by their
nicknames “Killa” and “Stacks.” Vinzenni and Miller testified that
Killa and Stacks were the two men pointing guns at the victim.
Miller testified that he heard the white male say “[w]e can work
this out. I can take care of this. You don’t have to do this.”
Despite the white male’s pleading, Killa, Stacks, and the
other black male chased the naked white male down the street.
Miller testified that approximately seven seconds later, he saw
gun flashes and heard eight to nine gunshots. Miller reported
that he saw the black males run back in front [of] the bar, where
he witnessed Killa pick up the white male’s clothes from the
street and saw both Killa and Stacks holding guns. The three
black men left the area. When Miller gave his statement to
police, he identified Appellant as the man he knew as “Killa”
from a photo array.
In another account, prosecution witness Vinzenni testified
that he went back inside the bar after the black men chased the
white male down the street. Vinzenni’s friends followed him into
the bar shortly thereafter and reported they heard gunshots.
After making his statement to police, Vinzenni was shown photo
arrays and also identified Appellant as the man he knew as
“Killa.” As noted above, police discovered the naked body of a
white male in an alley between Bridge and Granite Streets. The
white male, who was identified as the victim, was lying on his
side and had suffered multiple gunshot wounds to the head and
chest.
The victim’s wife, Lauren Ralston, testified that a friend
had introduced her and the victim to “Killa” in 2005 or 2006.
She did not know Appellant by any other name than Killa until
after the death of her husband. The day before the victim was
murdered, Lauren discovered that the victim owed Appellant
money after listening to four or five messages that Appellant left
on the victim’s voicemail. In this last message, Appellant told
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the victim “don’t worry about calling back because it’s too late.”
When Lauren questioned the victim about the messages, the
victim admitted that he owed Killa money, but promised he
would pay him back. The victim’s cell phone records showed
that Appellant had called him over [forty] times that evening.
Appearing nervous, the victim told Lauren that he was going out
to get Killa some “weed,” left the couple’s home in Pottstown,
and took Lauren’s SUV to meet Appellant. The victim never
came home that evening.
After awaking in the early morning hours of October 19,
2007 and discovering the victim was not home, Lauren
attempted to call Appellant to find out where the victim had
gone. Appellant denied ever meeting the victim in Pottstown
and denied knowing the victim’s whereabouts. After the victim
was gone for several hours, Lauren began desperately searching
for him, driving around her hometown and calling local hospitals
and the police to report his disappearance. Lauren called
Appellant again to ask him to help her look for the victim and
talk to the local police. Appellant again denied knowing the
victim’s whereabouts.
After Lauren told Pottstown detectives about “Killa,” the
Pottstown detectives contacted Appellant in order to speak with
him about the victim’s disappearance. Appellant arranged to
meet Pottstown detectives near his home in Philadelphia. Before
Pottstown detectives met with Appellant, they were notified that
the victim’s body had been found near Appellant’s home.
Appellant told Pottstown detectives that he had last seen the
victim two or three days earlier. Shortly thereafter, Philadelphia
detectives arrived to speak with Appellant and transported him
to their headquarters.
Appellant gave the Philadelphia homicide detectives a
different account, admitting that he was present when the victim
was killed, but claimed to have no part in his murder. After
learning the victim was struggling financially, Appellant set up a
meeting so that the victim could sell drugs for “Raheem.” When
the victim did not pay Raheem for the drugs he sold, Appellant
claimed that Raheem and Stacks threatened him at gunpoint and
made him call the victim repeatedly to meet up with them in
Pottstown. When they picked the victim up, Raheem and Stacks
forced Appellant and the victim to go with them to Philadelphia,
where they ordered both Appellant and the victim out of the car,
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ordered the victim to strip his clothes and shot the victim in a
nearby alley. Appellant claims Raheem and Stacks forced him to
go along with the abduction and warned him if he would “run his
mouth” about the shooting, the same thing would happen to
him.
When the Philadelphia police told Appellant that his version
of the shooting was not true, Appellant again changed his story.
Appellant claimed the victim had told Raheem that he would “set
up” three people who owed him money for drugs to repay the
victim’s debt to Raheem. On the evening of October 18, 2007,
Raheem, Stacks, and Appellant went to the victim’s home to
execute this plan. The victim began to make excuses and
claimed he wanted to be home with his wife as they were having
problems. However, the victim reluctantly agreed to drive his
vehicle to show Raheem where the alleged targets of their plan
lived, but his vehicle ran out of gas.
Subsequently, Raheem and Stacks forced the victim to ride
with them and drove him to Philadelphia. Appellant claimed he
had nothing to do with their forced abduction of the victim.
Appellant alleged that Raheem gave him a P–38 9–mm weapon
before ordering the victim out of the car onto the Philadelphia
Street and then shooting him moments later. When driving
Raheem home, Appellant claims that he tried to return the gun
to Raheem, but Raheem told him to hold it. Once Raheem
discovered that the victim’s wife was calling Appellant to find out
where the victim had gone, Appellant contends that Raheem
took the firearm from Appellant and told him not to tell the
police what happened.
After the victim’s body was discovered and the police
executed a search warrant for Appellant’s home, they did not
find any firearms, but did find Appellant’s cell phone, from which
police recovered a photograph of Appellant holding a Walther P–
38 pistol. At trial, the Commonwealth presented Police Officer
Louis Grandizio as a ballistics expert. Officer Grandizio testified
that all the casings recovered from the murder scene came from
one single .380 automatic weapon. After observing the bullets
themselves, Officer Grandizio opined that the bullets used to kill
the victim were not fired from a Walther P–38, which is a .9 mm
pistol.
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Prior to trial, Appellant filed a motion in limine seeking
inter alia to preclude the Commonwealth from referring to him
by his nickname “Killa” and to prevent the admission of the
photograph of Appellant holding a firearm. The trial court denied
Appellant’s motion in limine. Appellant proceeded to trial for the
murder of victim Derrick Ralston, after which the jury found
Appellant guilty of second-degree murder, conspiracy, and
carrying a firearm without a license. The trial court sentenced
Appellant to an aggregate sentence of life imprisonment without
the possibility of parole. . . .
(Commonwealth v. Williams, 58 A.3d 796, 797-99 (Pa. Super. 2012),
(footnote and record citations omitted)).
On December 3, 2012, this Court affirmed Appellant’s judgment of
sentence. (See id. at 802). On June 7, 2013, the Pennsylvania Supreme
Court denied leave to appeal. (See Commonwealth v. Williams, 68 A.3d
908 (Pa. 2013)).
On May 28, 2014, Appellant, through retained counsel, filed a timely
PCRA petition. On November 25, 2014, Appellant, despite being represented
by counsel, filed an amended pro se PCRA petition. On October 15, 2015,
the Commonwealth filed a motion to dismiss the PCRA petition. Appellant
filed a response on March 8, 2016. On March 23, 2016, the PCRA court
issued notice of its intent to dismiss the petition pursuant to Pennsylvania
Rule of Criminal Procedure 907(1). Appellant filed a response on April 12,
2016. On April 22, 2016, the court dismissed Appellant’s PCRA petition.
On April 25, 2016, Appellant filed a timely notice of appeal. On April
29, 2016, the PCRA court directed Appellant to file a concise statement of
errors complained of on appeal. See Pa.R.A.P. 1925(b). Appellant filed a
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timely Rule 1925(b) statement on May 27, 2016. See id. On June 27,
2016, the PCRA court issued an opinion. See Pa.R.A.P. 1925(a).
On appeal, Appellant raises the following questions for our review.1
A. Did Appellant present meritorious issues warranting relief to the
PCRA court in his [PCRA] petition for relief?
B. Did the PCRA court below err in [dismissing] Appellant’s PCRA
petition without an evidentiary hearing and in denying him PCRA
relief?
(Appellant’s Brief, at 7) (unnecessary capitalization omitted).2
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1
We have reordered the issues in Appellant’s brief.
2
We direct Appellant’s attention to Pa.R.A.P. 2119, which addresses the
requirements for the argument section of appellate briefs and provides, in
relevant part as follows:
Rule 2119. Argument
(a) General Rule. The argument shall be divided into
as many parts as there are questions to be argued[.]
Pa.R.A.P. 2119(a). “The Rules of Appellate Procedure state unequivocally
that each question an appellant raises is to be supported by discussion and
analysis of pertinent authority.” Estate of Haiko v. McGinley, 799 A.2d
155, 161 (Pa. Super. 2002) (citations omitted). Here, Appellant’s
“Questions Presented” lists two questions. (Appellant’s Brief, at 7).
However, the argument portion of his brief regarding his first claim includes
eleven separate topics not mentioned in his statement of the questions
involved. (See id. at 29-53). We remind Appellant that the Rules of
Appellate Procedure provide that issues to be resolved must be included in
the statement of questions involved or “fairly suggested” by it. Pa.R.A.P.
2116(a). While it is somewhat questionable that the eleven sub-issues were
“fairly suggested” by Appellant’s statement of the questions involved, and
his combination of claims presents a confusing format, it does not hamper
appellate review, and we shall proceed with our analysis.
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Appellant appeals from the denial of his PCRA petition. Our standard
of review is settled. We review the denial of a post-conviction petition to
determine whether the record supports the PCRA court’s findings and
whether its order is otherwise free of legal error. See Commonwealth v.
Faulk, 21 A.3d 1196, 1199 (Pa. Super. 2011). To be eligible for relief
pursuant to the PCRA, Appellant must establish, inter alia, that his conviction
or sentence resulted from one or more of the enumerated errors or defects
found in 42 Pa.C.S.A. § 9543(a)(2). See 42 Pa.C.S.A. § 9543(a)(2). He
must also establish that the issues raised in the PCRA petition have not been
previously litigated or waived. See 42 Pa.C.S.A. § 9543(a)(3). An
allegation of error “is waived if the petitioner could have raised it but failed
to do so before trial, at trial, during unitary review, on appeal or in a prior
state postconviction proceeding.” 42 Pa.C.S.A. § 9544(b). Further,
. . . a PCRA petitioner is not automatically entitled to an
evidentiary hearing. We review the PCRA court’s decision
dismissing a petition without a hearing for an abuse of
discretion.
[T]he 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.
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Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citations
omitted).
As discussed above, Appellant asserts that he raised eleven issues
meriting an evidentiary hearing. (See Appellant’s brief, at 29-53). Our
review of the brief demonstrates that, in actuality, Appellant’s eleven claims
are six layered claims of ineffective assistance of counsel and one purported
challenge to the legality of Appellant’s sentence. (See id.).
Appellant asserts that he received ineffective assistance of trial, post-
trial, and appellate counsel. Counsel is presumed effective, and an appellant
bears the burden to prove otherwise. See Commonwealth v. McDermitt,
66 A.3d 810, 813 (Pa. Super. 2013). The test for ineffective assistance of
counsel is the same under both the United States and Pennsylvania
Constitutions. See Strickland v. Washington, 466 U.S. 668, 687 (1984);
Commonwealth v. Jones, 815 A.2d 598, 611 (Pa. 2002). An appellant
must demonstrate that: (1) his underlying claim is of arguable merit; (2)
the particular course of conduct pursued by counsel did not have some
reasonable basis designed to effectuate his interests; and (3) but for
counsel’s ineffectiveness, there is a reasonable probability that the outcome
of the proceedings would have been different. See Commonwealth v.
Pierce, 786 A.2d 203, 213 (Pa. 2001), abrogated on other grounds by
Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002). “A failure to satisfy
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any prong of the test for ineffectiveness will require rejection of the claim.”
Jones, supra at 611 (citation omitted).
Further,
[w]here the defendant asserts a layered ineffectiveness claim he
must properly argue each prong of the three-prong
ineffectiveness test for each separate attorney.
Layered claims of ineffectiveness are not wholly distinct
from the underlying claims[,] because proof of the underlying
claim is an essential element of the derivative ineffectiveness
claim[.] In determining a layered claim of ineffectiveness, the
critical inquiry is whether the first attorney that the defendant
asserts was ineffective did, in fact, render ineffective assistance
of counsel. If that attorney was effective, then subsequent
counsel cannot be deemed ineffective for failing to raise the
underlying issue.
Commonwealth v. Rykard, 55 A.3d 1177, 1190 (Pa. Super. 2012), appeal
denied, 64 A.3d 631 (Pa. 2013) (citations and quotation marks omitted).
In his first layered claim of ineffective assistance of counsel, Appellant
argues that trial counsel was ineffective for failing to preserve an objection
to the trial court’s jury charge on felony murder, specifically on the
requirement for a predicate offense. (See Appellant’s Brief, at 29-37). We
disagree.
Initially, we note that the majority of Appellant’s argument on this
issue consists of complaints regarding the manner in which our courts
require trial counsel to preserve challenges to a jury charge. (See id. at 29-
33). Appellant devotes approximately two pages to the actual issue and his
argument is undeveloped.
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After quoting both the trial court’s initial charge on felony murder and
a clarification issued by the trial court at defense counsel’s request, (see id.
at 33-34; N.T. Trial, 10/12/10, at 197-200), Appellant baldly states that the
charge was in error and counsel was ineffective for failing to renew his
objection to the charge. (See Appellant’s Brief, at 34-35). At no point does
Appellant specify what portion of the charges was erroneous, give an
example of a correct charge on felony murder, or explain how preserving
this issue for appeal would have changed the result. Thus, Appellant has
failed to set forth the ineffectiveness analysis required by Strickland. See
Strickland, supra at 687. Because Appellant has not established any of the
three prongs, we must deem counsel’s assistance constitutionally effective.
See Commonwealth v. Rolan, 964 A.2d 398, 406 (Pa. Super. 2008)
(holding that where appellant fails to address three prongs of ineffectiveness
test, he does not meet his burden of proving ineffective assistance of
counsel, and counsel is deemed constitutionally effective). Thus, there is no
basis to upset the PCRA court’s finding that Appellant was not entitled to
PCRA relief on this basis.3
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3
Moreover, Appellant’s claim is without merit. As the Commonwealth
correctly states, the trial court’s charge on felony murder is nearly identical
to the Pennsylvania Suggested Standard Jury Instruction on felony murder.
(See Commonwealth’s Brief, at 12; N.T. Trial, 10/12/10, at 185-86);
Pa.S.S.J.I. (Criminal) § 15.2502B. Our Supreme Court has held that a jury
charge that closely tracks the language of the suggested standard jury
charge is accurate, adequate, and sufficiently clear. See Commonwealth
(Footnote Continued Next Page)
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Appellant’s next claim of layered ineffective assistance of counsel is
that trial counsel was ineffective for not renewing at trial his motion in limine
to exclude the use of Appellant’s nickname and a photograph of him holding
a gun, thus waiving the claim on appeal. (See Appellant’s Brief, at 38-43).
Appellant’s claim is without merit.
Initially, we note that Appellant litigated his motion prior to the start of
trial and the trial court denied it. (See N.T. Motion Hearing, 10/04/10, at 4-
9; 30-35). Appellant does not explain why he believes counsel had any
basis for renewing this motion at trial. (See Appellant’s Brief, at 38-43).
Moreover, the gravamen of Appellant’s contention is that trial counsel’s
failure to renew the motion at trial or litigate the issue in his post-sentence
motion resulted in a waiver on appeal. (See id.). However, this is
incorrect; in the published opinion on direct appeal, this Court reviewed the
issue of the denial of Appellant’s motion in limine on the merits, and
concluded that the trial court’s decision regarding the nickname and the
photograph of Appellant holding a gun was correct. (See Williams, 58 A.3d
at 800-01.). Thus, there is simply no factual basis to support Appellant’s
contention that trial counsel was ineffective for failing to renew the motion in
limine, thus resulting in a waiver of the issue on appeal. Therefore, there is
_______________________
(Footnote Continued)
v. Prosdocimo, 578 A.2d 1273, 1276-77 (Pa. 1990). Thus, there was no
basis for counsel to object to the trial court’s instruction on felony murder.
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no basis to upset the PCRA court’s finding that Appellant was not entitled to
PCRA relief on this basis.
Appellant’s third layered claim of ineffective assistance of counsel is
that trial counsel erred in not moving for a mistrial based on prosecutorial
misconduct because of the Commonwealth’s continued use of his nickname,
“Killa,” throughout the trial. (Appellant’s Brief at 43; see id. at 43-47). We
disagree.
In determining whether a prosecutor committed misconduct during
opening and closing statements such as to justify the grant of a mistrial, our
Supreme Court has stated:
It is within the discretion of the trial court to determine whether
a defendant has been prejudiced by misconduct or impropriety
to the extent that a mistrial is warranted. Comments by a
prosecutor do not constitute reversible error unless the
unavoidable effect of such comments would be to prejudice the
jury, forming in their minds a fixed bias and hostility toward the
defendant such that they could not weigh the evidence
objectively and render a true verdict.
In considering appellant’s claims of prosecutorial
misconduct, we note that a prosecutor’s comments are not
evidence. . . .
* * *
Opening statements must be fair deductions from the
evidence which the prosecutor expects will be presented at trial.
...
* * *
. . . The complained-of comments must be considered in the
context of the entire [closing argument] and allegations of
prosecutorial misconduct will not warrant the grant of a new trial
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unless they are such as to arouse the jury’s emotions to such an
extent that it is impossible for the jury to reach a verdict based
on relevant evidence.
Commonwealth v. Bronshtein, 691 A.2d 907, 917-18 (Pa. 1997), cert.
denied, 522 U.S. 936 (1997).
Appellant alleges that the Commonwealth used his nickname to
suggest he was a person of bad character or prone to criminal behavior.
(See Appellant’s Brief, at 43-44). Initially, we note, as discussed above,
that the trial court permitted the use of the nickname during trial and this
Court affirmed this decision on appeal. Moreover, we specifically stated:
Our review of the record shows that the Commonwealth did not
use Appellant’s nickname to suggest Appellant had a violent
character, but used it to show that the witnesses recognized
Appellant and could identify him as one of the perpetrators even
though the witness did not know Appellant’s real name.
(Williams, 58 A.3d at 800.).
Moreover, at no point in his argument on this issue does Appellant cite
to the record to support his contention that the use of his nickname
pervaded the testimony of the Commonwealth witnesses and infected the
arguments of the prosecutor. (See Appellant’s Brief, at 43-44).
In his previous argument regarding counsel’s ineffectiveness for failing
to renew the motion in limine, Appellant provides a single citation to the
Commonwealth’s opening statement. However, nothing in the opening
statement demonstrates that the Commonwealth was using the nickname to
inflame the jury or demonstrate that Appellant had a propensity for violence;
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rather, in each instance, the Commonwealth was either explaining that the
witness only knew Appellant by his nickname and/or was directly quoting
statements made by the witness. (See N.T. Trial, 10/06/10, at 30-45). We
remind counsel for Appellant that it is not this Court’s responsibility to comb
through the record seeking the factual underpinnings of his claim. See
Commonwealth v. Mulholland, 702 A.2d 1027, 1034 n.5 (Pa. Super.
1997) (“In a record containing thousands of pages, this [C]ourt will not
search every page to substantiate a party’s incomplete argument”) (citation
omitted). Given Appellant’s failure to cite to pertinent portions of the record
in support of his contention that there was an arguable basis in law to move
for a mistrial, and given that our review of the record fails to demonstrate
any such basis, we will not fault trial counsel for failing to move for one.
See Commonwealth v. Ogrod, 839 A.2d 294, 325 (Pa. 2003), cert.
denied, 534 U.S. 1188 (2005) (declining to find counsel ineffective for failing
to move for mistrial where claim lacked arguable merit). Therefore, there is
no basis to upset the PCRA court’s finding that Appellant was not entitled to
PCRA relief on this basis.
In his next layered claim of ineffective assistance of counsel, Appellant
contends that trial counsel was ineffective for not having a coherent defense
theory. (See Appellant’s Brief, at 47-48). However, Appellant waived this
claim.
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Appellant’s argument is undeveloped. Appellant fails to cite to the
record to support his claim that there was a valid defense of duress and/or
that Appellant was only involved in an attempt to collect a debt rather than
kidnapping, robbery, or murder. (See id. at 47). He further fails to cite to
any pertinent case law, merely including a general cite to two cases with no
explanation of their relevance. (See id.). He concludes with bald
statements that trial counsel was ineffective. (See id. at 47-48).
“Claims of ineffective assistance of counsel are not self-proving[.]”
Commonwealth v. Spotz, 896 A.2d 1191, 1250 (Pa. 2006) (citation
omitted). Our Supreme Court has repeatedly refused to consider bald
allegations of ineffectiveness, such as this one. See Commonwealth v.
Thomas, 744 A.2d 713, 716 (Pa. 2000) (declining to find counsel ineffective
“where appellant fail[ed] to allege with specificity sufficient facts in support
of his claim.”). Thus, because Appellant has failed to argue his claim with
sufficient specificity, we find it waived. Therefore, there is no basis to upset
the PCRA court’s finding that Appellant was not entitled to PCRA relief on this
issue.
Appellant’s next layered claim of ineffective assistance of counsel is
that trial counsel was ineffective for failing to object to his illegal sentence
for conspiracy. (See Appellant’s Brief, at 48-50). Again, Appellant has
waived this claim.
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While Appellant states that his claim is a challenge to counsel’s
ineffectiveness for not objecting to an illegal sentence, this is not an
accurate characterization of his argument. (See id.). Appellant never
discusses the sentence for conspiracy or attempts to explain why it is illegal.
(See id.). Rather, in actuality, Appellant’s contention is that counsel was
ineffective for not challenging the sufficiency of the evidence underlying his
conspiracy conviction. (See id.).
However, it is long settled that issues not raised in a PCRA petition or
amended PCRA petition are waived on appeal. See Commonwealth v.
Lauro, 819 A.2d 100, 103-04 (Pa. Super. 2003), appeal denied, 830 A.2d
975 (Pa. 2003) (waiving five issues not in original or amended PCRA
petition). Also, as amended in 2007, Rule 1925 provides that issues that are
not included in the Rule 1925(b) statement or raised in accordance with Rule
1925(b)(4) are waived. See Pa.R.A.P. 1925(b)(4)(vii); see also
Commonwealth v. Lord, 719 A.2d 306, 308 (Pa. 1998), superseded by
rule on other grounds as stated in Commonwealth v. Burton, 973 A.2d
428, 430 (Pa. Super. 2009). Further, an appellant cannot raise a subject for
the first time on appeal. See Commonwealth v. Hanford, 937 A.2d 1094,
1098 n.3 (Pa. Super. 2007), appeal denied, 956 A.2d 432 (Pa. 2008) (new
legal theories cannot be raised for first time on appeal); Pa.R.A.P. 302(a).
Here, Appellant did not claim that trial counsel was ineffective for falling to
challenge the sufficiency of the evidence in his PCRA petition or his Rule
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1925(b) statement, raising the issue for the first time in his brief on appeal.
Thus, he waived his contention. See Lord, supra at 308; Hanford, supra
at 1098 n.3; Lauro, supra at 103-04.
In his last layered claim of ineffective assistance of counsel, Appellant
claims that counsel was ineffective for not moving to vacate his conviction
for murder of the second degree in the absence of a conviction for a
predicate act. (See Appellant’s Brief, at 50-51). Appellant’s claim is waived
because Appellant neither cites to any pertinent law in support of his
contention nor attempts to apply the Strickland test. See Spotz, supra at
1250; Thomas, supra at 716; Rolan, supra at 406. Therefore, there is no
basis to upset the PCRA court’s finding that Appellant was not entitled to
PCRA relief on this issue.4
Thus, for the reasons discussed above, we find that all of Appellant’s
ineffective assistance of trial counsel claims are waived or meritless.
Therefore, subsequent counsel cannot be deemed ineffective. See Rykard,
supra at 1190. Thus, his layered claims must also fail.
Next, Appellant contends that his sentence of life without the possibility
of parole imposed as a result of his conviction for murder of the second
degree is violative of the Eighth and Fourteenth Amendments to the United
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4
In any event, the claim is meritless because it is settled that a defendant
need not be convicted of the predicate offense. See Commonwealth v.
Miller, 35 A.3d 1206, 1212-13 (Pa. 2012). We will not fault trial counsel for
failing to file a meritless motion to vacate.
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States Constitution because “he was not the shooter” and the sentence “is
an arbitrary and capricious application of state power that deprives Appellant
of his right to an individualized sentence.” (Appellant’s Brief, at 51).
Appellant admits that he did not raise this issue below, but appears to
maintain that challenges of a constitutional nature need not be preserved in
the PCRA court. (See id. at 51). While this is not true in all cases of
constitutional challenges, see Commonwealth v. Lawrence, 99 A.3d 116,
122-23 (Pa. Super. 2014), appeal denied, 114 A.3d 416 (Pa. 2015)
(reaffirming that not all constitutional issues implicating sentencing are
unwaivable challenges to legality of sentence), we have held that Eighth
Amendment challenges need not be preserved below. See Commonwealth
v. Brown, 71 A.3d 1009, 1015-16 (Pa. Super. 2013), appeal denied, 77
A.3d 635 (Pa. 2013). Nonetheless, while Appellant did not need to raise this
claim in the PCRA court, we find that it is waived because of Appellant’s utter
failure to develop his argument.
Appellant’s argument on this issue is in contravention of Pennsylvania
Rule of Appellate Procedure 2119. He fails to provide pertinent law or
discussion of this issue, or any citation to the certified record. (See
Appellant’s Brief, at 51-53); see also Pa.R.A.P. 2119(a)-(c), (e). Appellant
provides no evidentiary support for his conclusory statement that he was not
the shooter. (See Appellant’s Brief, at 51). Further the only legal support
he provides for his claim that his sentence violates the Eighth Amendment is
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a brief citation to the United States Supreme Court’s decision in Tilson v.
Arizona, 481 U.S. 137 (1987). The issue in Tilson was whether the
Arizona Supreme Court used the correct standard of review5 in sentencing
two defendants to death where they neither intended to kill the victim nor
inflicted the fatal shot, but rather were convicted under the felony-murder
law. See Tilson, supra at 138. Appellant does not attempt to explain how
Tilson is in any way applicable to the instant matter. Thus, Appellant has
not satisfied his burden, and hence we deem this issue waived. See
Commonwealth v. Murchinson, 899 A.2d 1159, 1162 (Pa. Super. 2006)
(finding claim waived where appellant provided only boilerplated law and
conclusion); see also Pa.R.A.P. 2101, 2119(a)-(c), (e).
In his final claim, Appellant argues that the PCRA court erred in
dismissing his petition without an evidentiary hearing. (See Appellant’s
Brief, at 24-28). The Pennsylvania Rules of Criminal Procedure provide the
PCRA court with the discretion to dismiss a PCRA petition without an
evidentiary hearing if it is patently without merit. See Pa.R.Crim.P. 907.
Because Appellant’s ineffective assistance of counsel and sentencing claims
lack merit, he is not entitled to an evidentiary hearing. See Miller, supra
at 992.
____________________________________________
5
While holding that the Arizona Supreme Court applied the wrong standard
of review, the Tilson court did not foreclose the application of the death
penalty to accomplices convicted under the felony-murder rule. See Tilson,
supra at 158.
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Accordingly, for the reasons discussed above, we affirm the PCRA
court’s dismissal of Appellant’s PCRA petition without a hearing.
Order affirmed.
Judge Solano joins the Memorandum.
Judge Bowes concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/24/2017
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