Com. v. Clark, L.

J-S44030-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LAMAR DOUGLAS CLARK :
:
Appellant : No. 400 MDA 2020
Appeal from the PCRA Order Entered January 31, 2020
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0005760-2014
BEFORE: BENDER, P.J.E., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY NICHOLS, J.: FILED: JANUARY 13, 2021
Appellant Lamar Douglas Clark appeals from the order denying, after
an evidentiary hearing, his first Post Conviction Relief Act (PCRA), 42 Pa.C.S.
§§ 9541-9546, petition. On appeal, Appellant raises several claims of trial
counsel’s ineffectiveness. We affirm.
We state the facts as set forth by this Court on direct appeal:
Some time before 10:00 p.m. on November 7, 2014, [Appellant]
entered Shenk’s Cafe, a neighborhood tavern in Lancaster,
Pennsylvania, with Daniel Ishman, known as “Zip.” The bar area
of Shenk’s Cafe is a narrow space, approximately 14 feet wide.
At the time [Appellant] entered, the crowd in the barroom was
estimated at between 20 and 50 people.
[Appellant] and Ishman left the bar and returned approximately
twenty minutes later with Joshwin Gonzalez, known as “J” or
“Joey.” At around 10:00 p.m., [Appellant] called Ishman over
and said that “he felt like someone was after him.” Then, as
Gonzalez approached, [Appellant] told him to stop and asked
why he was coming over. Gonzalez replied that he thought
[Appellant] had called him. [Appellant] then pointed a pistol at
him and fired five shots. Three people were struck by gunfire.
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Joshwin Gonzalez suffered a gunshot wound to the left arm.
Cynthia Boots, a customer who had been seated near the
jukebox, suffered a wound to the left breast. Barry Diffenderfer,
a customer also seated near the jukebox, suffered a fatal wound
to the chest. He was found unresponsive on the floor by the first
responding police officer.
Shortly after the shooting, police observed [Appellant] running
naked on Chestnut Street, approximately two blocks from
Shenk’s Cafe. As [Appellant] was being detained, a juvenile
called to police and gave a pistol to Lancaster City Detective
Stanley Roache explaining that [Appellant] had given the
weapon to him. That weapon, a five-shot revolver, contained
five spent .38 caliber cartridges. Four .38 caliber bullets were
recovered from Shenk’s Cafe; one had DNA from Joshwin
Gonzalez and a second had DNA from Cynthia Boots. A fifth
bullet was recovered from the body of Barry Diffenderfer. The
pistol that the juvenile gave to police was traced back to the late
father of [Appellant]’s current girlfriend at the address where
[Appellant] lived with his girlfriend.
Police were able to identify and interview approximately twelve
people who had been in Shenk’s Cafe that night. One witness,
Veldresha Lucas, [Appellant]’s sister, testified to seeing the
interaction between [Appellant], Ishman and Gonzalez that
preceded the shooting as well as the shooting itself. Others
testified to hearing shots and hiding in fear.
[Appellant] also presented evidence which was largely
discredited by the jury. . . . Martha Cuelo testified that she
overheard Ishman saying that “they had set up [Appellant] and
he was going to never come out . . . .”
On cross examination, Detective Roache testified that the
juvenile who handed him the pistol told him that [Appellant] had
said “they tried to kill me.” Police Officer Ben Bradley, who was
present when [Appellant] was detained and transported him to
the police station, also testified on both direct and cross
examination that [Appellant] had said “they tried to set me up in
Shenk’s.”
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Commonwealth v. Clark, 2017 WL 1520732, at *3-*4 (Pa. Super. filed
Apr. 25, 2017) (unpublished mem.) (citations omitted), appeal denied, 177
A.3d 829 (Pa. 2018) (per curiam order).
On May 3, 2016, after a six[-]day jury trial, [Appellant] was
found guilty of one count of third degree murder, two counts of
aggravated assault, eleven counts of recklessly endangering
another person and one count of firearms not to be carried
without a license. On July 7, 2016, [Appellant] was sentenced to
an aggregate term of not less than 38 and one-half nor more
than 81 years incarceration. . . .
Id. at *3 (footnotes omitted). This Court affirmed on April 25, 2017, and
our Supreme Court denied Appellant’s petition for allowance of appeal on
January 3, 2018.
On November 26, 2018, the PCRA court docketed Appellant’s timely
first pro se PCRA petition. Appellant’s PCRA petition raised several claims,
which we summarize in relevant part below. The PCRA court appointed
PCRA counsel.1 The PCRA court held an evidentiary hearing on July 23,
2019, at which Appellant’s trial counsel, among others, testified. The docket
reflects that on January 31, 2020, the PCRA court denied Appellant’s PCRA
petition, and on February 27, 2020, Appellant filed a timely notice of
____________________________________________
1 PCRA counsel indicated he would not file an amended petition but
continued to represent Appellant.
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appeal.2 Appellant timely filed a court-ordered Pa.R.A.P. 1925(b) statement,
which only raised the following four issues:
1. The [PCRA c]ourt [erred] in determining that trial counsel was
not ineffective for failing to call Anthony Clark as a witness at
trial.
2. The [PCRA c]ourt [erred] in determining that trial counsel had
a reasonable strategic basis for his failure to object to the
Commonwealth’s questioning of Detective Roache, which elicited
testimony that was in violation of the trial court’s order
regarding [Appellant’s] Motion in Limine.
3. The [PCRA c]ourt [erred] in determining that trial counsel had
a reasonable strategic basis for his failure to seek DNA evidence.
4. The [PCRA c]ourt [erred] in determining that trial counsel had
a reasonable strategic basis for his failure to request a jury
instruction for involuntary manslaughter.
Appellant’s Rule 1925(b) Statement, 3/23/20 (formatting altered).
Appellant’s counsel’s brief identifies one question, “Whether the trial
court erred in denying Appellant’s motion for post-conviction collateral
relief,” but raises the following six issues, which we reordered for ease of
disposition:
1. Trial counsel’s failure to call Anthony Clark as a witness for
the defense.
2. Trial counsel’s failure to object to the violation of the court’s
order regarding a Motion in Limine.
____________________________________________
2Neither filing was transmitted to this Court as part of the certified record.
We add that the PCRA court’s January 31, 2020 order was attached to
Appellant’s brief.
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3. Trial counsel’s failure to pursue DNA evidence.
4. Trial counsel’s failure to request a jury instruction for
involuntary manslaughter.
5. Trial counsel’s decisions to ask a key defense witness, Joshua
Welsh, a question that elicited a response which undermined the
witness’s credibility.
6. Trial counsel’s lack of communication with [Appellant]
regarding his decision as to whether he should testify in his own
defense.
Appellant’s Brief at 4, 6 (formatting altered).3
We need not summarize Appellant’s arguments in support of his first
four issues for the reasons that follow. Further, Appellant did not cite or
discuss any legal authorities in support of his arguments.
Our standard of review follows:
[O]ur standard of review from the denial of a PCRA petition is
limited to examining whether the PCRA court’s determination is
supported by the evidence of record and whether it is free of
legal error. The PCRA court’s credibility determinations, when
supported by the record, are binding on this Court; however, we
apply a de novo standard of review to the PCRA court’s legal
conclusions. . . .
Boilerplate allegations and bald assertions of no reasonable basis
and/or ensuing prejudice cannot satisfy a petitioner's burden to
prove that counsel was ineffective.
____________________________________________
3 Appellant’s brief violates numerous Pennsylvania Rules of Appellate
Procedure, including Pa.R.A.P. 2119(a), which states the “argument shall be
divided into as many parts as there are questions to be argued; and shall
have at the head of each part--in distinctive type or in type distinctively
displayed--the particular point treated therein, followed by such discussion
and citation of authorities as are deemed pertinent.” Pa.R.A.P. 2119(a).
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Commonwealth v. Sandusky, 203 A.3d 1033, 1043-44 (Pa. Super. 2019)
(citations omitted and formatting altered), appeal denied, 216 A.3d 1029(Pa. 2019).
Claims may be waived under Rule 2119(a) for failure to cite to
relevant case law or to otherwise develop issues in a meaningful fashion
capable of review. See Pa.R.A.P. 2119(a); see also Commonwealth v.
Johnson, 985 A.2d 915, 924 (Pa. 2009).
[I]t is an appellant’s duty to present arguments that are
sufficiently developed for our review. The brief must support the
claims with pertinent discussion, with references to the record
and with citations to legal authorities. Citations to authorities
must articulate the principles for which they are cited. Pa.R.A.P.
2119(b).
This Court will not act as counsel and will not develop arguments
on behalf of an appellant. Moreover, when defects in a brief
impede our ability to conduct meaningful appellate review, we
may dismiss the appeal entirely or find certain issues to be
waived.
Commonwealth v. Kane, 10 A.3d 327, 331 (Pa. Super. 2010) (some
citations omitted).
Instantly, as noted above, for his first four issues, Appellant failed to
cite supporting legal authority or analyze relevant case law. See Pa.R.A.P.
2119(a); see also Kane, 10 A.3d at 331. Further, Appellant did not discuss
any of the relevant standards of review or legal principles governing a claim
of trial counsel’s ineffectiveness. See Pa.R.A.P. 2119(a); see also Kane, 10
A.3d at 331. Appellant’s boilerplate allegations of ineffectiveness do not
satisfy his burden of proving trial counsel was ineffective. See Sandusky,
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203 A.3d at 1043-44. Because Appellant failed to meaningfully develop his
arguments, Appellant is not entitled to relief for his four issues. See Kane,
10 A.3d at 331.
Finally, with respect to Appellant’s last two issues, it is well-settled
that “[a]ny issues not raised in a Pa.R.A.P. 1925(b) statement will be
deemed waived.” Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998).
Here, Appellant failed to raise his last two issues in his Rule 1925(b)
statement, and therefore has waived them for appellate review. See id.For these reasons, because Appellant failed to establish legal error, we
affirm.4 See Sandusky, 203 A.3d at 1043-44.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/13/2021
____________________________________________
4 “[I]ssues of PCRA counsel effectiveness must be raised in a serial PCRA
petition.” Commonwealth v. Ford, 44 A.3d 1190, 1200 (Pa. Super. 2012).
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