Com. v. Brown, M.

J. S37037/19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
MARION BROWN, JR., : No. 1325 EDA 2018
:
Appellant :
Appeal from the Order Dated February 27, 2018,
in the Court of Common Pleas of Bucks County
Criminal Division at Nos. CP-09-CR-0003049-2015,
CP-09-CR-0003054-2015, CP-09-CR-0003322-2015
BEFORE: BOWES, J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 15, 2019
Marion Brown, Jr., appeals pro se from the February 27, 2018 order1
entered in the Court of Common Pleas of Bucks County denying his PCRA
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9542-9546. We dismiss this appeal.
The procedural history of this case, as gleaned from the certified record,
is as follows: Appellant was charged with retail theft and criminal conspiracy
to commit retail theft at CP-09-CR-0003322-2015;2 robbery, retail theft,
criminal conspiracy to commit retail theft, simple assault, and disorderly
1We note that the order denying appellant’s PCRA petition was executed on
February 26, 2018, but was not entered on the docket until February 27, 2018.
The caption has been updated to reflect the date the order was docketed.
2 18 Pa.C.S.A. §§ 3929(a)(1) and 903(c), respectively.
J. S37037/19
conduct at CP-09-CR-0003054-2015 (“No. 3054-2015”);3 and retail theft at
CP-09-CR-0003049-2015.4 The three cases were consolidated for purposes
of trial, and appellant agreed to a bench trial submitted on stipulated-to facts.
The trial court found appellant guilty of all charges5 and sentenced him to an
aggregate term of 3½ to 7 years’ incarceration. Appellant did not file
post-sentence motions. This court affirmed appellant’s judgment of sentence,
and appellant did not seek further direct appeal.
On February 21, 2017, appellant filed pro se a PCRA petition. Counsel
was appointed and an amended PCRA petition was filed. Although the PCRA
court initially notified appellant, pursuant to Pa.R.Crim.P. 907, of its intent to
dismiss his PCRA petition without a hearing, the PCRA court subsequently
directed appellant to provide specific information concerning the allegation
that law enforcement used an “unduly suggestive” procedure to identify
appellant. Appellant filed a second amended PCRA petition in response. The
PCRA court conducted a hearing on the matter before denying appellant’s
PCRA petition in an order docketed on February 27, 2018.
3 18 Pa.C.S.A. §§ 3701(a)(1)(v), 3929(a)(1), 903(a)(2), 2701(a)(1), and
5503(a)(1), respectively.
4 18 Pa.C.S.A. § 3929(a)(1).
5 We note that appellant initially agreed to plead guilty in exchange for the
Commonwealth’s withdrawing the robbery charge at No. 3054-2015.
Although appellant did not adhere to this agreement, the Commonwealth did
not reinstate the robbery charge.
-2-
J. S37037/19
On March 26, 2018, PCRA counsel, Dean H. Malik, Esq.
(“Attorney Malik”), filed a notice of appeal, and that appeal was docketed by
this court at No. 1337 EDA 2018.6 On March 28, 2018, PCRA appeal counsel,
Patrick J. McMenamin, Esq. (“Attorney McMenamin”), also filed a notice of
appeal docketed by this court at No. 1325 EDA 2018 and is the appeal
currently before this court. In a per curiam order, this court dismissed
appellant’s appeal at No. 1337 EDA 2018 as duplicative of the current appeal.
(Per curiam order, 7/24/18.)
The PCRA court ordered appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). On April 17, 2018,
appellant filed pro se an application waiving assistance of PCRA appeal
counsel and seeking to proceed pro se. The PCRA court conducted a Grazier7
hearing on April 27, 2018, and after concluding that appellant’s waiver of
counsel was knowing, voluntary, and intelligent, granted appellant’s request
to proceed pro se. (PCRA court memorandum and opinion, 4/27/18.)
6 We note that Attorney Malik represented appellant at the PCRA hearing. The
PCRA court permitted Attorney Malik to withdraw and appointed new counsel
to represent appellant on appeal. However, an order granting a petition to
withdraw and appointing new PCRA counsel does not appear in the record.
The record demonstrates, however, that Attorney McMenamin was appointed
sometime after the PCRA court entered the order denying appellant’s PCRA
petition. (Grazier hearing transcript, 4/27/18 at 3.) Out of precaution, both
attorneys filed notices of appeal in order to preserve appellant’s appellate
rights.
7 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
-3-
J. S37037/19
Appellant subsequently filed pro se his Rule 1925(b) statement. Thereafter,
the PCRA court filed its Rule 1925(a) opinion.
Appellant raises 36 issues for our review.8 (See appellant’s
Rule 1925(b) statement, 6/4/18 at 1-8; see also appellant’s brief at 7-10.)
However, for the reasons stated herein, appellant has waived all of these
issues, and this court does not have jurisdiction to review them on their
merits. Therefore, the issues need not be set forth verbatim.
In his first 18 issues, appellant alleges, inter alia, abuse of discretion
and error by the trial judge, the magisterial district judge, and the district
attorney; and prosecutorial misconduct by the district attorney. (See
appellant’s Rule 1925(b) statement, 6/4/18 at 1-4; see also appellant’s brief
at 7-8.)
In order to be eligible for PCRA relief, the allegation of error must not
have been previously litigated or waived. See 42 Pa.C.S.A. § 9543(a)(3).
“[A]n issue 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.” Id. at 9544(b).
8 Although appellant’s Rule 1925(b) statement, listing 36 issues for review, is
not concise, Rule 1925(b)(4)(iv) provides, in pertinent part, that “the number
of errors raised will not alone be grounds for finding waiver.” See
Pa.R.A.P. 1925(b)(4)(iv); see also Eiser v. Brown & Williamson Tabacco
Corp., 938 A.2d 417, 420 (Pa. 2007) (stating, “the number of issues raised
in the [Rule] 1925(b) statement provided no basis to find waiver.”).
-4-
J. S37037/19
Here, a review of the record demonstrates that appellant could have
raised the allegations contained in his first 18 issues before trial, at trial, and
during direct appeal but failed to do so. Consequently, appellant has waived
these issues.9 See id.We next turn to appellant’s 22nd issue in which he asserts that trial
counsel was ineffective for failing to challenge the legality of appellant’s
sentence. (See appellant’s Rule 1925(b) statement, 6/4/18 at 5; see also
appellant’s brief at 8.) A review of appellant’s PCRA petition reveals that he
did not raise an ineffectiveness claim based on an alleged illegal sentence but,
instead, claimed trial counsel was ineffective for failing to “present evidence
in mitigation at sentencing.” (See appellant’s second amended PCRA petition,
11/22/17 at 3, ¶ 9(f).) Therefore, appellant waived this issue on appeal. See
Ousley, 21 A.3d at 1242.
In Issues 23, 26-29, 30, and 33, appellant raises claims of ineffective
assistance of trial counsel involving what appellant contends is a “false
criminal complaint” filed as part of an alleged conspiracy between the police
and the Commonwealth’s witness, Kevin Dupell. (See appellant’s
Rule 1925(b) statement, 6/4/18 at 5-8; see also appellant’s brief at 8-9.)
Appellant failed to raise any of these claims of ineffectiveness in his PCRA
9We note that appellant also failed to raise any of the assertions contained in
his first 18 issues in his PCRA petition and, therefore, waived those issues on
appeal. See Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super.
2011) (stating, “issues not raised in a PCRA petition cannot be considered on
appeal.” (citations omitted)), appeal denied, 30 A.3d 487 (Pa. 2011).
-5-
J. S37037/19
petition. Therefore, appellant has waived these issues on appeal. See
Ousley, 21 A.3d at 1242.
Finally, we turn to appellant’s remaining claims of ineffective assistance
of trial counsel, Issues 19-21, 24, 25, 31, 32, and 34-36.
This court has held:
[t]o be eligible for relief based on a claim of ineffective
assistance of counsel, a PCRA petitioner must
demonstrate, by a preponderance of the evidence,
that (1) the underlying claim is of arguable merit;
(2) no reasonable basis existed for counsel’s action or
omission; and (3) there is a reasonable probability
that the result of the proceeding would have been
different absent such error. Commonwealth v.
Steele, 961 A.2d 786, 796 (Pa. 2008).
Commonwealth v. Matias, 63 A.3d 807, 810 (Pa.Super. 2013), appeal
denied, 74 A.3d 1030 (Pa. 2013). “The failure to satisfy any one of the prongs
requires rejection of the petitioner’s claim.” Commonwealth v. Williams,
141 A.3d 440, 454 (Pa. 2016) (citation omitted).
Here, a review of appellant’s brief demonstrates that he has failed to
comply with the Pennsylvania Rule of Appellate Procedure 2119(a) that
requires the argument section of his brief to be divided into as many parts as
there are issues presented and contain discussion and citation of authorities
as is deemed pertinent. See Pa.R.A.P. 2119(a). The argument section of
appellant’s brief, which spans 42 pages, is only divided into 10 sub-sections;
appellant raised 36 issues for review. (See appellant’s brief at 20-62.) In the
3 sub-sections dedicated to his claims of ineffectiveness, appellant failed to
-6-
J. S37037/19
develop the issues by applying the three-prong test for proving an
ineffectiveness claim, as set forth by this court in Matias, supra, followed by
any meaningful discussion or citation of pertinent authority.
“[W]here an appellate brief fails to provide any discussion of a claim
with citation to relevant authority or fails to develop the issue in any other
meaningful fashion capable of review, that claim is waived. See
Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009), cert. denied,
562 U.S. 906 (2010). “Although this Court is willing to liberally construe
materials filed by a pro se litigant, pro se status confers no special benefit
upon the appellant.” Commonwealth v. Adams, 882 A.2d 496, 497-498
(Pa.Super. 2005). “It is not the obligation of this Court . . . to formulate
Appellant’s arguments for him.” Johnson, 985 A.2d at 924.
Here, appellant’s failure to comply with Rule 2119(a) prevents this court
from conducting a meaningful judicial review of appellant’s 10 remaining
ineffectiveness claims. Consequently, appellant’s claims are waived.
Appeal dismissed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/15/19
-7-