Com. v. Regustors, D.

J-S93034-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DONTA REGUSTORS,
Appellant No. 2023 EDA 2015
Appeal from the PCRA Order June 1, 2015
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0001677-2011
BEFORE: DUBOW, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED FEBRUARY 22, 2017
Appellant, Donta Regustors, appeals from the order of June 1, 2015,
which denied, without a hearing, his first counseled petition brought under
the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Counsel
has filed a motion to withdraw.1 For the reasons discussed below, we grant
counsel’s motion and affirm the denial of the PCRA petition.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
Counsel mistakenly filed a “Turner/Finley Brief” comparable to a brief
pursuant to Anders v. California, 386 U.S. 738 (1967). See
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). However, a
Turner/Finley no-merit letter is the correct filing. Because an Anders brief
provides greater protection to a defendant, this Court may accept an
Anders brief instead of a Turner/Finley letter. See Commonwealth v.
Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011).
J-S93034-16
We take the underlying facts and procedural history in this matter
from this Court’s November 13, 2013 memorandum on direct appeal and our
independent review of the certified record.
At trial, the Commonwealth presented the
testimony of Edward Humphrey, Charles Britten,[a]
William Whitehouse, John Jones, Richard Sax, Dr.
Marlon Osbourne, Philadelphia Police Officers Gerald
Wolford, Kevin Port, Anthony Mooney, Travis
Washington, Jeremy Elliot, Timothy Esack, Stephen
Ahmie, and Donna Grebloski, Philadelphia Police
Detectives Phillip Nordo, Stephen Grace, Ron Dove,
Bill Urban, and Grady Petterson, and Philadelphia
Police Sergeants Christopher Small and Matt
Gillespie. [Appellant] presented the testimony of
Ronald Coleman. Viewed in the light most favorable
to the Commonwealth as the verdict winner, their
testimony established the following.
[a]
As Mr. Britten was killed between the
preliminary hearing and the trial, his
preliminary hearing testimony was read
to the jury, pursuant to Pa.R.E.
804(b)(1).[2]
On August 28, 2010, at approximately 4[:00]
a.m., Edward Humphrey and Charles Britten were
hanging out at the corner of 26th Street and Silver
Street. Jonathan Wilson was nearby sitting in his car.
After the three men had been on the corner for
about thirty minutes, [Appellant] and Kyle Pelzer
rode up 26th Street on bicycles and began firing
handguns at Mr. Britten and Mr. Humphrey from a
short distance away. [Appellant] and Mr. Pelzer fired
approximately ten shots at Mr. Britten and Mr.
Humphrey. Mr. Britten and Mr. Humphrey ducked
____________________________________________
2
Mr. Britten testified under an immunity agreement; by stipulation of the
parties, the Commonwealth read the immunity agreement into the record.
(See N.T. Trial, 3/28/12, at 5, 16-21).
-2-
J-S93034-16
behind a car, and Mr. Britten began firing his own
gun back at [Appellant] and Mr. Pelzer. [Appellant]
and Mr. Pelzer continued riding down the street on
their bicycles as they fired their guns at Mr. Britten
and Mr. Humphrey, shooting Mr. Wilson in the
process. Mr. Wilson drove away, but lost control of
the car and crashed into a pole. Mr. Britten and Mr.
Humphrey both fled the scene.
Mr. Wilson was taken by ambulance to Temple
Hospital, where he was pronounced dead at 4:42
a.m. He had been shot once in the back with a
[nine]-millimeter bullet. The bullet had torn his
abdominal aorta, which caused him to bleed to
death. Police removed [twenty-four] nine-millimeter
fired cartridge casings from the scene of the
shooting. Police also recovered nine .380 fired
cartridge casings from the scene of the shooting,
which were fired from Mr. Britten’s gun.
Mr. Britten was questioned by homicide
detectives. He identified [Appellant] and Mr. Pelzer,
both of whom he knew personally, as the people who
shot at himself and Mr. Humphrey, thereby killing
Mr. Wilson. Mr. Humphrey was also questioned by
the police. He identified [Appellant], whom he knew
personally, and Mr. Pelzer, whom he did not know,
from a photo array.
Trial Court Opinion, 2/[0]8/[]13, at 2-3 (record citations
omitted).
[Appellant] and Pelzer were arrested and charged with
multiple offenses relating to the incident. A joint jury trial was
held from March 26, 2012 to April 2, 2012. On that day, the
jury convicted [Appellant] of one count of first-degree murder
(victim Wilson), two counts of attempted murder (victims Britten
and Humphrey), one count of criminal conspiracy to commit
murder, two counts of first-degree aggravated assault (victims
-3-
J-S93034-16
Britten and Humphrey), and one count of [possessing an
instrument of a crime (PIC)].[b],[3]
[b]
[Appellant] was acquitted of several other charges
that originated from a different set [of] events that
allegedly took place two weeks before the charges at
issue here. Pelzer was acquitted of all charges. Trial
[Ct. Op.], [ ], at 1 n.1.
A sentencing hearing was held on May 31, 2012. The
[trial] court imposed the mandatory sentence of life
imprisonment for the first-degree murder conviction, a
consecutive sentence of [not less than] eight [nor more than
sixteen] years’ incarceration for the attempted murder of Britten,
a consecutive sentence of [not less than] eight [nor more than
sixteen] years’ incarceration for the attempted murder of
Humphrey, and a concurrent sentence of [not less than] eight
[nor more than sixteen] years’ imprisonment for the conspiracy
charge.[c] [Appellant] filed a post-sentence motion, which was
denied on October 2, 2012. This appeal followed.
[c]
The [trial] court did not impose a further penalty
with respect to the PIC offense and [the] aggravated
assault convictions merged for sentencing purposes.
(Commonwealth v. Regustors, 91 A.3d 1282, No. 3113 EDA 2012,
unpublished memorandum at **2-4 (Pa. Super. filed November 13, 2013)
(record citations and one footnote omitted)).
On November 13, 2013, this Court affirmed the judgment of sentence.
(See id.). Appellant did not seek leave to appeal to the Pennsylvania
Supreme Court.
On November 12, 2014, Appellant filed the instant, timely, counseled
PCRA petition accompanied by a memorandum of law. On April 8, 2014, the
____________________________________________
3
18 Pa.C.S.A. §§ 2502(a), 901, 903, 2702(a), and 907(a), respectively.
-4-
J-S93034-16
Commonwealth moved to dismiss the petition. On May 11, 2015, the PCRA
court issued notice of its intent to dismiss the petition pursuant to
Pennsylvania Rule of Criminal Procedure 907(1). Appellant did not file a
response to the Rule 907 notice. On June 1, 2015, the PCRA court
dismissed Appellant’s PCRA petition.
On June 29, 2015, despite being represented by counsel, Appellant
filed a pro se notice of appeal. That same day, the PCRA court ordered
Appellant to file a concise statement of errors complained of on appeal. See
Pa.R.A.P. 1925(b). Subsequently, Appellant filed two pro se requests for an
extension of time; the PCRA court denied both motions. The court
forwarded Appellant’s motions to PCRA counsel. Counsel did not take any
action. On September 1, 2015, the PCRA court issued an opinion, finding
Appellant waived all issues on appeal for failing to file a Rule 1925(b)
statement. See Pa.R.A.P. 1925(a).
On December 9, 2015, this Court remanded the matter to the trial
court for a determination of whether PCRA counsel abandoned Appellant on
appeal. On December 30, 2015, the PCRA court held a hearing on the issue;
the court then permitted PCRA counsel to withdraw and appointed new
counsel to represent Appellant on appeal. On January 20, 2016, this Court
again remanded the matter to permit new counsel to file a Rule 1925(b)
statement. Counsel filed a timely statement on February 8, 2016. See
-5-
J-S93034-16
Pa.R.A.P. 1925(b). On March 11, 2016, the trial court issued a supplemental
opinion. See Pa.R.A.P. 1925(a).
On July 26, 2016, counsel filed a motion to withdraw in this Court. On
September 9, 2016, Appellant filed a pro se response.
On appeal, the Turner/Finley brief raises the following questions for
our review.
The Global Question
Whether there is anything in the record that might arguably
support the appeal that obviates a conclusion that the appeal is
without merit and/or frivolous[?]
Specific Areas of Inquiry
Whether trial counsel and PCRA counsel were ineffective (A)
where they failed to investigate and interview and obtain
affidavits from potential exculpatory witnesses (Tamika Ellis,
Delores Hawthorn, Givon Williams, Shawonda Harris, Erica
Walker, Turquoise Morrison, Shanee Brooks and Tyreek Thoms),
(B) where they failed to procure a videotape from Sampala Beer
Distributor[,] (C) where they failed to investigate forensic
evidence of the shell casings[,] (D) where they failed to obtain a
handwriting expert to validate a witness John Jones’ contention
that he did not signe (sic) the statements[,] and (E) where they
failed to investigate whether disgraced homicide Detective Ron
Dove tampered with evidence[?]
Whether trial counsel was ineffective for failing to object to the
admissibility of evidence regarding the shooting at 25 th and
Somerset on [August 27, 2010,] where the probative value of
the evidence was outweighed by its prejudice[?]
Whether trial counsel was ineffective by failing to mount a viable
and vigorous defense where he (A) failed to object to the
introduction of evidence not provided in discovery (Edward
Humphr[e]y’s statement to police), (B) where he failed to object
to a pattern of leading questions used by the prosecutor
throughout the trial[,] (C) where he left the courtroom during
-6-
J-S93034-16
the trial without permiss[ion,] drawing a reprimand from the
[trial] court[,] (D) where he failed to examine Police Officer
Ahmie concerning the fact that more than one .380 pistols were
used in the events at issue[,] (E) where he failed to cross-
examine Police Officer Esack about recovering a live round on
August 27 at the crime scene and sent it to the DNA lab for
analysis[,] and (F) where he failed to object when the [trial]
court provided firearms evidence to the jury during its
deliberations[?]
(Turner/Finley Brief, at 6-7) (unnecessary emphasis and capitalization
omitted).
In his pro se filing, Appellant raises three additional questions.
I. Was trial counsel ineffective for failing to object to the
prosecutor becoming a witness during trial by vouching for
the credibility of a witness?
II. Was trial counsel ineffective for failing to object to the
immunity petition inasmuch as it denied Appellant the right to
cross-examination?
III. Is it legally possible for intent to transfer to an accomplice or
co[-]conspirator insofar as it requires proof on intent to
commit an unintended killing and was trial counsel ineffective
for failing to object thereto?
(Appellant’s Answer in Opposition to Finley Brief, at 2, 6, 9) (unnecessary
capitalization omitted).
Appellant’s court-appointed counsel has moved this Court for
permission to withdraw and has submitted a Turner/Finley-compliant brief,
as is required for counsel seeking to withdraw on appeal of the denial of a
PCRA petition. Court-appointed counsel who seeks to withdraw from
representing an appellant on appeal of a denial of a PCRA petition on the
-7-
J-S93034-16
basis that the appeal lacks merit must review the case zealously. See
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007).
Turner/Finley counsel must then submit a “no-merit” letter to
the trial court, or brief on appeal to this Court, detailing the
nature and extent of counsel’s diligent review of the case, listing
the issues which the petitioner wants to have reviewed,
explaining why and how those issues lack merit, and requesting
permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the
“no-merit” letter/brief; (2) a copy of counsel’s petition to
withdraw; and (3) a statement advising petitioner of the right to
proceed pro se or by new counsel.
Id. (citations omitted). Here, counsel has substantially complied with the
dictates of Turner/Finley.
When this Court receives a Turner/Finley brief, we conduct an
independent review of the record in light of the PCRA petition and the issues
set forth within it, as well as of the contents of the motion of counsel to
withdraw. See id. We will grant the motion to withdraw if we agree with
counsel that the PCRA petition is meritless. See id.
Appellant appeals from the dismissal of his PCRA petition without a
hearing. 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
-8-
J-S93034-16
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.
Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citations
omitted).
All of the issues raised by counsel in the Turner/Finley brief and in
Appellant’s pro se response4 claim that he received ineffective assistance of
____________________________________________
4
In Appellant’s third issue in his pro se response, in addition to claiming that
he received ineffective assistance of counsel, Appellant also appears to
substantively challenge the trial court’s jury instruction on criminal
(Footnote Continued Next Page)
-9-
J-S93034-16
trial counsel.5 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),
_______________________
(Footnote Continued)
conspiracy and accomplice liability as it relates to transferred intent. (See
Appellant’s Answer in Opposition to Finley Brief, at 9-11). However, this
claim is waived because Appellant could have raised it on direct appeal but
did not do so. See 42 Pa.C.S.A. § 9544(b); (see also Regustors, supra at
**1-2, *4, *9).
5
In the first claim in the Turner/Finley brief, counsel also alleges that
Appellant received ineffective assistance of PCRA counsel. (See
Turner/Finley Brief, at 6). However, Appellant did not raise his concerns
about PCRA counsel’s stewardship in a response to the Rule 907 notice or in
a serial PCRA petition. Appellant raised the claims for the first time in his
Pa.R.A.P. 1925(b) statement. (See [Appellant’s] 1925(b) Statement,
2/08/16, at unnumbered page 1). This Court has held that claims of
ineffective assistance of PCRA counsel must be raised either in a response to
a Rule 907 notice or in a serial PCRA petition; they cannot be raised for the
first time in a Rule 1925(b) statement or on appeal. See Commonwealth
v. Ford, 44 A.3d 1190, 1200-01 (Pa. Super. 2012). Thus, we lack
jurisdiction to hear Appellant’s claim of ineffective assistance of PCRA
counsel and, therefore, will not address it.
- 10 -
J-S93034-16
abrogated on other grounds by Commonwealth v. Grant, 813 A.2d 726
(Pa. 2002). “A failure to satisfy any prong of the test for ineffectiveness will
require rejection of the claim.” Jones, supra at 611 (citation omitted).
In its first claim, the Turner/Finley brief contends that trial counsel
was ineffective for failing to call eight allegedly exculpatory witnesses. (See
Turner/Finley Brief, at 6). The PCRA court found Appellant had waived this
claim, noting that it was undeveloped and Appellant failed to discuss how it
met the second and third prongs of the Strickland test. (See PCRA Court
Opinion, 3/11/16, at 6). We agree.
In order to show that trial counsel was ineffective in failing to present
certain witnesses, Appellant must demonstrate
the existence of and the availability of the witnesses, counsel’s
actual awareness, or duty to know, of the witnesses, the
willingness and ability of the witnesses to cooperate and appear
on the defendant’s behalf and the necessity for the proposed
testimony in order to avoid prejudice. Moreover, Appellant must
show how the uncalled witnesses’ testimony would have been
beneficial under the circumstances of the case.
Commonwealth v. Gibson, 951 A.2d 1110, 1133-1134 (Pa. 2008)
(citations and quotation marks omitted). Appellant has not met this
standard.
- 11 -
J-S93034-16
Appellant did not attach any affidavits or other documentation from
the witnesses to either his PCRA petition or to his memorandum of law.6
Further, Appellant did not provide any information regarding the substance
of their proposed testimony. (See Petition for Post-Conviction Relief,
11/12/14, at unnumbered pages 4-6; Memorandum of Law, 11/12/14, at
unnumbered pages 5-6). Appellant never states that trial counsel was
aware of the existence of these witnesses. (See id.). Lastly, Appellant
never explains how the testimony of these witnesses would have proved
beneficial to his case. (See id.). Thus, Appellant failed to set forth in his
PCRA petition the ineffectiveness analysis required by Strickland. See
Strickland, supra at 687. Because Appellant did not establish 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 where appellant fails to address three prongs of ineffectiveness
____________________________________________
6
In the Turner/Finley brief, counsel states that he attempted to investigate
Appellant’s contention regarding the eight witnesses; counsel was able to
locate two of the witnesses and, in the brief, discusses their proposed
testimony. (See Turner/Finley Brief, at 21-26). Counsel appended copies
of the statements they gave to his investigator as well as the investigator’s
report to the brief. (See id. at Exhibits F, G, and J). However, these
documents were not available to the PCRA court. Thus, they are not
included in the certified record. This Court has consistently stated that
copying material and attaching it to the brief does not make it a part of the
certified record. See First Union Nat. Bank v. F.A. Realty Investors
Corp., 812 A.2d 719, 724 n.3 (Pa. Super. 2002); In re M.T., 607 A.2d 271,
275 (Pa. Super. 1992). Therefore, as the documents are merely appended
to the brief, we will not consider them.
- 12 -
J-S93034-16
test, he does not meet his burden of proving ineffective assistance of
counsel, and counsel is deemed constitutionally effective). There is no basis
to upset the PCRA court’s finding that Appellant was not entitled to PCRA
relief on this basis.
The Turner/Finley brief also contends that counsel was ineffective for
failing to call an expert witness to validate witness John Jones’ claim that it
was not his signature on his statement to the police. (See Turner/Finley
Brief, at 6). We disagree.
“To establish ineffective assistance of counsel for the failure to present
an expert witness, appellant must present facts establishing that counsel
knew or should have known of the particular witness.” Commonwealth v.
Millward, 830 A.2d 991, 994 (Pa. Super. 2003), appeal denied, 848 A.2d
928 (Pa. 2004) (citation omitted). Further, “the defendant must articulate
what evidence was available and identify the witness who was willing to offer
such evidence.” Commonwealth v. Bryant, 855 A.2d 726, 745 (Pa. 2004)
(citations omitted). Appellant’s PCRA petition and memorandum of law did
not identify any witness willing to offer expert testimony. (See Petition for
Post-Conviction Relief, 11/12/14, at unnumbered pages 4-6; Memorandum
of Law, 11/12/14, at unnumbered pages 5-6). Therefore, his claim fails.
See Bryant, supra at 745; see also Commonwealth v. Gwynn, 943 A.2d
940, 945 (Pa. 2008) (when defendant claims counsel was ineffective for
failing to introduce expert testimony at trial he must articulate “what
- 13 -
J-S93034-16
evidence was available and identify a witness who was willing to offer such
[evidence].”) (citations omitted). There is no basis to upset the PCRA
court’s finding that Appellant was not entitled to PCRA relief on this basis.
Further, the Turner/Finley brief maintains that trial counsel was
ineffective for failing to obtain a videotape from Sampala Beer Distributor;
failing to investigate forensic evidence with respect to a shell casing; and
failing “to investigate whether disgraced homicide detective Ron Dove
tampered with evidence.” (Turner/Finley Brief, at 6) (unnecessary
capitalization and emphasis omitted). However, Appellant’s arguments in
the PCRA court with respect to these claims suffer from the same fatal flaws
as discussed above, because Appellant never explained the substance of
these claims, never properly applied the Strickland test, and never
explained how a proper investigation of these issues would have changed
the result. (See Petition for Post-Conviction Relief, 11/12/14, at
unnumbered pages 4-6; Memorandum of Law, 11/12/14, at unnumbered
pages 5-6).
Our Supreme Court has stated that “[c]laims of ineffective assistance
of counsel are not self-proving[.]” Commonwealth v. Spotz, 896 A.2d
1191, 1250 (Pa. 2006) (citations omitted). The Court has repeatedly
refused to consider bald allegations of ineffectiveness, such as these. See
Commonwealth v. Thomas, 744 A.2d 713, 716 (Pa. 2000) (declining to
find counsel ineffective “where appellant fail[ed] to allege with specificity
- 14 -
J-S93034-16
sufficient facts in support of his claim.”). Thus, because Appellant failed to
argue his claims with sufficient specificity below, we agree with the PCRA
court that Appellant waived these claims. (See PCRA Ct. Op., at 5-6).
Appellant is not entitled to PCRA relief on these issues.
In the next claim, the Turner/Finley brief states that trial counsel was
ineffective for failing to object to the admissibility of evidence pertaining to a
shooting at 25th and Somerset Streets on August 27, 2010. (See
Turner/Finley Brief, at 36-37). The PCRA court, Turner/Finley counsel,
and the Commonwealth, all contend that this claim is factually incorrect as
trial counsel “vigorously argued against the introduction of the evidence” at
a January 5, 2012 motion hearing. (Turner/Finley Brief, at 37; see also
PCRA Ct. Op., at 7; Commonwealth’s Brief, at 11). The PCRA court and the
Commonwealth agree that once counsel objected at the hearing, he was not
required to renew the objection at trial. (See PCRA Ct. Op., at 7;
Commonwealth’s Brief, at 11). The PCRA court also notes that Appellant
never raised the claim that the trial court erred in admitting this evidence on
direct appeal and never argued that appellate counsel was ineffective for
failing to raise the issue on direct appeal. (See PCRA Ct. Op., at 7 n.3). We
find that Appellant waived the claim.
The certified record does not include the January 5, 2012 hearing
transcript. We have reviewed the requests for transcript filed both on direct
appeal and in the instant matter and could not locate any request that the
- 15 -
J-S93034-16
court reporter transcribe this hearing. (See Request for Transcript,
10/31/12, at unnumbered page 1; Notice of Appeal, 6/29/15, at
unnumbered page 2). We have stated “[w]hen the appellant . . . fails to
conform to the requirements of [Pa.R.A.P.] 1911 [(relating to transcript
requests)], any claims that cannot be resolved in the absence of the
necessary transcript or transcripts must be deemed waived for the purpose
of appellate review.” Commonwealth v. Preston, 904 A.2d 1, 7 (Pa.
Super. 2006), appeal denied, 916 A.2d 632 (Pa. 2007) (citation omitted).
Further, it is the appellant’s responsibility to make certain that the certified
record contains all items necessary to ensure that this Court is able to
review his claims. See Commonwealth v. B.D.G., 959 A.2d 362, 372 (Pa.
Super. 2008). An appellant’s failure to ensure that the original record as
certified for appeal contains sufficient documentation to enable the court to
conduct a proper review constitutes a waiver of the issue sought to be
reviewed on appeal. See Growell v. Maietta, 931 A.2d 667, 676 (Pa.
Super. 2007), appeal denied, 951 A.2d 1164 (Pa. 2008); see also Smith v.
Smith, 637 A.2d 622, 623-24 (Pa. Super. 1993), appeal denied, 652 A.2d
1325 (Pa. 1993). Accordingly, we find Appellant’s contention is waived.
The final claim in the Turner/Finley brief is that six errors by trial
counsel cumulatively deprived him of an adequate defense at trial. (See
Turner/Finley Brief, at 38). However, our Supreme Court has stated, “that
no number of failed ineffectiveness claims may collectively warrant relief if
- 16 -
J-S93034-16
they fail to do so individually. . . . if multiple instances of deficient
performance are found, the assessment of prejudice properly may be
premised upon cumulation.” Commonwealth v. Reid, 99 A.3d 470, 520
(Pa. 2014) (citations and internal quotation marks omitted).
Here, the trial court found that none of the six individual ineffective
assistance of counsel allegations merited relief because Appellant “did not
provide any argument or analysis showing that the underlying claims were of
arguable merit, that counsel’s actions lacked any reasonable basis, or that
the ineffectiveness of counsel caused [Appellant] prejudice.” (PCRA Ct. Op.,
at 8) (citation omitted). We have reviewed Appellant’s PCRA petition and
accompanying memorandum of law and agree that, as discussed above,
Appellant failed to apply the Strickland test or make any cognizable
argument that counsel was ineffective. (See Petition for Post-Conviction
Relief, 11/12/14, at unnumbered pages 4-6; Memorandum of Law,
11/12/14, at unnumbered pages 11-13). There is no basis to upset the
PCRA court’s finding that Appellant was not entitled to PCRA relief on this
basis. See Reid, supra at 520; Spotz, supra at 1250.
In his pro se response, Appellant raises three claims of ineffective
assistance of counsel. (See Appellant’s Answer in Opposition to Finley
Brief, at 2, 6, 9). However, Appellant waived these claims because they
were not raised in his PCRA petition. (See Petition for Post-Conviction
Relief, 11/12/14, at unnumbered pages 4-6).
- 17 -
J-S93034-16
It is long settled that issues not raised in a PCRA or amended PCRA
petition are waived on appeal. See Commonwealth v. Lauro, 819 A.2d
100, 103 (Pa. Super. 2003), appeal denied, 830 A.2d 975 (Pa. 2003)
(waiving five issues not in original or amended PCRA petition). 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). Accordingly, we find that
Appellant waived all issues in his pro se response.
Appellant’s issues are either waived or meritless. Further, this Court
has conducted an independent review of the record as required by
Turner/Finley and finds that no meritorious issues exist.
Motion to withdraw as counsel granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/2017
- 18 -