Com. v. Adams, F.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FRANK ADAMS :
:
Appellant : No. 1599 EDA 2022
Appeal from the PCRA Order Entered June 9, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006821-2012
BEFORE: DUBOW, J., MURRAY, J., and McCAFFERY, J.
MEMORANDUM BY DUBOW, J.: FILED JUNE 9, 2023
Frank Adams (“Appellant”) appeals from the June 9, 2022 order entered
in the Philadelphia Court of Common Pleas that dismissed his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46.
After careful review, we affirm.
Our Supreme Court set forth the following factual and procedural
history, which is relevant to our analysis:
On May 20, 2012, Appellant Frank Adams and his brother, Nicky
Adams, were involved in an altercation with another man [,Mark
Kelly, (“Victim”)] outside a Philadelphia church; the altercation
was eventually broken up by members of the church. [V]ictim
went to his car, and was about to leave the scene for home, when
Appellant went to his own vehicle, pulled out a tire iron, handed
the weapon to his brother, and directed him to strike [V]ictim.
Appellant’s brother proceeded to [V]ictim’s vehicle, and, as
[V]ictim leaned out the window to protect his infant nephew who
was inside the automobile, Appellant’s brother swung the tire iron
like a bat against the victim’s head, causing a laceration of his
scalp. Appellant was arrested and charged with, inter alia,
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aggravated assault, conspiracy, and recklessly endangering
another person.
Appellant was released on bail, but he and his brother failed to
appear for his January 9, 2013 trial date in the Philadelphia County
Court of Common Pleas. Over nine months later, after having fled
to California, Appellant and his brother were brought before the
trial judge, who held them in contempt, sentenced them to two
weeks imprisonment for that offense, and stressed to them the
importance of their obligation to appear for court dates. Appellant
and his brother were again released on bail. A trial date was set.
This date was critical, as the principal witnesses against Appellant
and his brother were to move to Florida within days of the trial.
The brothers appeared for court that morning, but, thereafter, left
without authorization. While Appellant claimed that his brother
had experienced chest pains, there was no corroboration of this
exigency, and Appellant ignored his attorney’s instructions to
return to court. The trial judge deemed Appellant to be willfully
absent.
The trial proceeded in absentia, and, after four days of hearing,
Appellant was convicted of various crimes[, including Aggravated
Assault, Conspiracy to Commit Aggravated Assault, Simple
Assault, Conspiracy to Commit Simple Assault, Recklessly
Endangering Another Person.1] Thereafter, when Appellant failed
to appear for his sentencing hearing, he was sentenced, in
absentia, to a term of 10 to 20 years[’] incarceration. Appellant
remained a fugitive throughout the time for seeking appellate
review; however, on March 16, 2016, his attorney filed a notice of
appeal within the appeal period on Appellant’s behalf, and the trial
court directed him to file a Pa.R.A.P. 1925(b) statement.
Appellant’s attorney raised several assertions of error, including a
challenge to the legality of the sentence. The trial court rejected
the claims, reasoning that Appellant’s fugitive status caused him
to forfeit all issues on appeal. Given that Appellant failed to
appear for the entirety of his trial as well as his sentencing
hearing, and given that he was a fugitive during the entire 30-day
appeal period, the trial court found it of no consequence that
Appellant’s counsel had filed a notice of appeal during the appeal
period.
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1 18 Pa.C.S. §§ 2702(a)(1), 903, 2701(a)(2), 903, and 2705, respectively.
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After the 30-day appeal period had expired, but prior to the
deadline for the filing of Appellant’s brief, Appellant was rearrested
and returned to custody. Appellant filed an appellate brief,
arguing, inter alia, that his fugitive status should not cause him to
forfeit his right to appeal. Appellant stressed that his absence had
not frustrated the appellate process, and he reasserted his
substantive claims, including his challenge to the legality of his
sentence.
Commonwealth v. Adams, 200 A.3d 944, 946–47 (Pa. 2019).
This Court affirmed the trial court’s decision that Appellant’s fugitive
status during the 30-day appeal period caused him to forfeit his right to
appeal. Commonwealth v. Adams, No. 657 EDA 2015, 2017 WL 1507702(Pa. Super. 2017) (non-precedential decision).
The Pennsylvania Supreme Court affirmed this Court’s decision, holding
that Appellant forfeited appellate review, regardless of whether his counsel
filed a timely notice of appeal and/or brief in his absence, when he surrendered
after the 30-day appeal period had passed. Our High Court explained:
We reiterate that a defendant’s fugitive status does not per se
disqualify him or her from appellate review; however, when a
defendant absconds, and then returns to the court system,
he takes the criminal justice system as he finds it. Under
this straight-forward approach, the focus is on the fugitive’s
conduct, and the timing of his return to the criminal justice
system. Moreover, counsel’s actions to preserve the fugitive’s
rights are ineffectual. Thus, for the reasons offered above,
regardless of whether counsel has filed a notice of appeal in the
fugitive’s absence, if the period for filing an appeal has not
expired, the fugitive is entitled to file an appeal upon his return;
and, if the time for filing has elapsed, the fugitive no longer
enjoys the right to file an appeal.
Adams, 200 A.3d at 955 (emphasis added).
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On November 20, 2019, Appellant filed a timely pro se PCRA petition.
The PCRA court appointed counsel, who proceeded to file an amended PCRA
petition and a supplemental PCRA petition raising 1) multiple claims of
ineffective assistance of trial counsel and 2) a claim that the trial court
imposed an illegal sentence in violation of Section 906 of the Pennsylvania
Crimes Code when the court sentenced him to consecutive terms for two
inchoate offenses that involve the same criminal elements. Amended PCRA
Pet., 3/17/20, at 13-21. Supplemental PCRA Pet., 8/18/20, at 1-4.
The PCRA court scheduled a hearing to hear evidence on two issues
raised in Appellant’s PCRA petitions, including whether trial counsel was
ineffective for 1) advising Appellant not to accept the Commonwealth’s guilty
plea offer and 2) failing to call a witness, Mr. Valentino Burt, who was available
and willing to testify.2 Order, 6/28/21.
The PCRA court held a hearing on September 24, 2021, to address
Appellant’s above-mentioned claims of ineffective assistance of counsel. The
court heard testimony from Appellant; Mr. Burt, Appellant’s proposed witness;
and John Konchak, Esq., Appellant’s trial counsel.
In sum, Appellant testified that Attorney Konchak told him that the
District Attorney’s office was offering him a plea deal of “a one to two” and
explained that “basically your sentence will be two years but you will be
eligible for parole after one.” N.T. Hearing, 9/24/21, at 8. Appellant explained
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2 On February 16, 2022, the PCRA court issued a Rule 907 notice of intent to
dismiss the remaining claims without a hearing.
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that he wanted to take the plea deal, but Attorney Konchak advised him “No”
and explained that they could “beat the case” or even if Appellant lost the
case, he was only facing a term of probation, at most. Id.
Appellant further testified that at least 50 people witnessed the fight at
the church, including Mr. Burt. Id. at 10-12, 39. He also testified that he
gave Attorney Konchak contact information for various witnesses, as well as
Mr. Burt’s name, address, and phone number. Id. at 39
Mr. Burt testified that he witnessed the fight between Appellant and
Victim. Id. at 14. Mr. Burt explained that Victim initiated the fight by
punching Appellant in the face, and the fight escalated to both men pulling
tools out of the trunks of their vehicles. Id. at 15. Mr. Burt testified that he
witnessed Victim attempt to hit Appellant in the head with a sledgehammer.
Id. at 16. Mr. Burt stated that he then observed Appellant’s brother grab a
bumper jack and throw it at the cab of Victim’s truck, which ricocheted off the
truck and hit Victim in the head. Id. at 17. Mr. Burt explained that everyone
got in their vehicles and left the scene; Appellant went to Mr. Burt’s house.
Id. at 21. Mr. Burt stated that he knew Appellant for 15 years, attended his
“arrest” hearing, and was willing to testify at this trial. Id. at 22-23. However,
Mr. Burt testified, Mr. Burt left for California a month after the incident and he
and Appellant did not have contact information for each other. Id. at 24-27.
Attorney Konchak testified that he advised Appellant not to take the
one-to-two-year plea offer from the Commonwealth because Appellant “had
an eminently defensible case . . . and [there] was a very good possibility that
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this would turn into mutual affray.” Id. at 64. Attorney Konchak explained
that, at the time, he believed that if Appellant was convicted it would be of a
simple assault charge which carried a one- to two-year sentence. Id. at 65.
Attorney Konchak testified that based on the forum and the facts of the case
the court would not sentence Appellant to a term of one to two years’
incarceration even if he was convicted. Id.
Attorney Konchak testified that he asked Appellant to identify and
provide contact information from possible witnesses. Id. at 71. Attorney
Konchak testified that he remembered Mr. Burt’s name appearing in the police
report, which identified him as the driver of Appellant’s brother’s vehicle after
the incident. Id. at 74. Attorney Konchak stated that Appellant never gave
him contact information for Mr. Burt, and he had no way of locating him in
California. Id. at 77. Attorney Konchak explained that even if Mr. Burt were
available to testify, his testimony would not have been helpful to his case
because it established that Appellant’s brother, and codefendant, threw a tire
iron in the direction of Victim’s vehicle and had “transferred intent” when he
struck something other than what he was aiming at. Id. at 72-73.
Attorney Konchak recalled that 1) he advised Appellant to waive a jury
trial, 2) the waiver colloquy requires an understanding of maximum penalties,
and 3) the case was originally scheduled for a bench trial. Id. at 80-81.
Attorney Konchak testified that under those circumstances, he would have
certainly explained to Appellant that he faced a penalty of 10 to 20 years’
incarceration prior to requesting the bench trial. Id. at 80-81. Attorney
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Konchak explained that, because Appellant failed to appear for trial and waive
a jury, the court held a jury trial in absentia. Id. at 67-68.
On June 9, 2022, after considering all the evidence, the PCRA court
dismissed Appellant’s PCRA petition.
Appellant timely appealed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant raises the following issues for our review.
1. Appellant did not forfeit his appellate rights due to fugitive
status.
2. Counsel was ineffective in failing to file a post-trial motion that
the verdict was against the weight of the evidence.
3. Counsel was ineffective in failing to investigate and interview
witnesses.
4. Counsel was ineffective in failing to call [a] witness [who was]
available and willing to testify.
5. Counsel was ineffective in advising Appellant to reject the
Commonwealth’s guilty plea offer.
6. Counsel was ineffective in failing to preserve issues for appeal.
7. Appellant received an illegal sentence.
Appellant’s Br. at 10 (reordered for ease of disposition, some capitalization
omitted).
A.
We review an order denying a petition for collateral relief to determine
whether the PCRA court’s decision is supported by the evidence of record and
free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014).
“This Court grants great deference to the findings of the PCRA court if the
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record contains any support for those findings.” Commonwealth v.
Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010).
To prevail on a petition for PCRA relief, a petitioner must plead and
prove, by a preponderance of the evidence, that his conviction or sentence
resulted from one or more of the circumstances enumerated in 42 Pa.C.S. §
9543(a)(2). These circumstances include ineffectiveness of counsel, which
“so undermined the truth-determining process that no reliable adjudication of
guilt or innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii).
Notably, “[t]he PCRA court has discretion to dismiss a petition without
a hearing when the court is satisfied that there are no genuine issues
concerning any material fact, the petitioner is not entitled to post-conviction
collateral relief, and no legitimate purpose would be served by further
proceedings.” Commonwealth v. Holt, 175 A.3d 1014, 1017-18 (Pa. Super.
2017). “To obtain a reversal of a PCRA court’s decision to dismiss a petition
without a hearing, an appellant must show that he or she raised a genuine
issue of fact which, if resolved in his favor, would have entitled him to relief,
or that the court otherwise abused its discretion in denying a hearing.” Id. at
1018.
Finally, as discussed briefly above, Supreme Court precedent and the
law of this case both dictate that Appellant’s fugitive status at trial and during
his direct appeal period impacts his appellate rights. Generally, the “fugitive
forfeiture rule . . . provides that [a] fugitive from justice may not seek relief
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from the judicial system whose authority he or she evades.” Adams, 200
A.3d 944, 950 (Pa. 2019). As stated above, “a defendant’s fugitive status
does not per se disqualify him or her from appellate review; however, when a
defendant absconds, and then returns to the court system, he takes the
criminal justice system as he finds it.” Id. at 955. “Moreover, counsel’s
actions to preserve the fugitive’s rights are ineffectual.” Id. Stated another
way, if a fugitive returns after his time for appeal has lapsed, he forfeits
appellate review of all issues that could have been raised. Id.This legal concept remains applicable in PCRA proceedings. In
Commonwealth v. Judge, 797 A.2d 250 (Pa. 2007), our Supreme Court
held that an appellant who “forfeited his right to have claims of error
adjudicated on direct appeal due to his fugitive status during direct appeal
proceedings” also failed to preserve any issues for collateral review where all
the assertions in his PCRA petition could have been raised on direct review.
Id. at 259-60. The Court “refuse[d] to permit [an a]ppellant to resurrect
issues that were raised, or which could have been raised and would have been
addressed, on direct appeal, had [the a]ppellant demonstrated some kind of
respect for the legal process. Id. at 260. Indeed, to be eligible for relief
under the PCRA, a petitioner must plead and prove that “the allegation of error
has not been previously litigated or waived.” 42 Pa.C.S. 9543(a)(3).
Moreover, the PCRA explicitly states: “an issue is waived if the petitioner could
have raised it but failed to do so before trial, at trial, during unitary review,
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on appeal or in a prior state postconviction proceeding.” 42 Pa.C.S. § 9544(b).
We review Appellant’s issues with these legal precepts in mind.
B.
On appeal to this court, Appellant raises numerous claims of trial
counsel’s ineffectiveness. As an initial matter, we must address whether
Appellant’s fugitive status during his direct appeal period precludes this Court
from reviewing these claims on collateral review.3 Our review of the record
reveals that the instant PCRA petition is the first opportunity for Appellant to
raise these claims. See Commonwealth v. Bradley, 261 A.3d 381, 391 (Pa.
2021) (explaining that, generally, claims of ineffective assistance of trial
counsel are properly deferred for PCRA review). Accordingly, we conclude
that because Appellant could not raise these claims on direct appeal, he did
not forfeit them when he absconded during his appeal period. We will,
therefore, proceed to address the merits of Appellant’s ineffectiveness claims.
However, we review Appellant’s claims remaining cognizant of Appellant’s
fugitive status and its impact on the merits of the claims.
The law presumes counsel has rendered effective assistance.
Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). “[T]he
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3 To the extent that Appellant argues that that fugitive forfeiture rule should
not apply to him generally, this argument is waived because this issue was
not included in the Pa.R.A.P. 1925(b) statement. Further, discussed above,
this issue was addressed on direct appeal and unanimously rejected by our
Supreme Court. See Commonwealth v. Adams, 200 A.3d 944 (Pa. 2019).
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burden of demonstrating ineffectiveness rests on [the] appellant.” Id. To
satisfy this burden, the appellant must plead and prove by a preponderance
of the evidence that: (1) the underlying claim has arguable merit; (2) no
reasonable basis existed for counsel’s actions or failure to act; and (3) there
is a reasonable probability that the outcome of the challenged proceeding
would have been different absent counsel’s error. Commonwealth v.
Fulton, 830 A.2d 567, 572 (Pa. 2003). Failure to satisfy any prong of the
test will result in rejection of the appellant’s claim. Id.To establish the prejudice prong, the petitioner must prove a reasonable
probability that the outcome of the relevant proceedings would have been
different but for counsel’s action or inaction. Commonwealth v. Busanet,
54 A.3d 35, 46 (Pa. 2012). Importantly, “counsel cannot be deemed
ineffective for failing to raise a meritless claim.” Fears, 86 A.3d at 804.
C.
In his initial ineffectiveness claim, Appellant avers that trial counsel was
ineffective for failing to file a post-trial motion asserting that the verdict was
against the weight of the evidence. Appellant’s Br. at 34. This claim is
meritless.
A weight of the evidence claim must be preserved in a post-sentence
motion, by written motion before sentencing, or orally prior to sentencing.
Pa.R.Crim.P. 607; Commonwealth v. Rivera, 238 A.3d 482, 497 (Pa. Super.
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2020). Moreover, a written post-sentence motion must be filed within 10 days
of the imposition of sentence. Pa.R.Crim.P. 720(A)(1).
Appellant was a fugitive during this time. As stated above, when a
defendant absconds, and then returns, he takes the criminal justice system
as he finds it. Adams, 200 A.3d at 567. Notably, “counsel’s actions to
preserve the fugitive’s rights are ineffectual.” Id.
As the PCRA court explained, “[b]ecause [Appellant] voluntarily
absented himself from the [c]ourt for the entire duration of the period for
exercising his post-trial rights, any attempt to exercise those rights would
properly have been denied.” Trial Ct. Op., 10/4/22, at 5. We agree. Trial
counsel’s filing of a post-trial motion would not have preserved Appellant’s
challenge to the weight of the evidence and would not have impacted the
outcome of the proceedings. Accordingly, the PCRA could did not abuse its
discretion when it denied this claim.
D.
Appellant next avers that trial counsel was ineffective in failing to
investigate and interview witnesses. Appellant’s Br. at 38. In his amended
PCRA petition, Appellant averred generally that trial counsel should have
interviewed other church members, as well as Victim’s sister-in-law, because
their eyewitness testimony could have provided additional information.
Amended PCRA Pet. at 16-17.
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A claim that counsel was ineffective for failing to interview a witness is
distinct from a claim that counsel failed to call a witness to testify.
Commonwealth v. Dennis, 950 A.2d 945, 960 (Pa. 2008). “The failure to
investigate presents an issue of arguable merit where the record demonstrates
that counsel did not perform an investigation.” Commonwealth v. Pander,
100 A.3d 626, 638 (Pa. Super. 2014) (citation and internal quotations marks
omitted). Although failure to investigate known witnesses can be
“unreasonable per se,” a showing of prejudice is still required.
Commonwealth v. Stewart, 84 A.3d 701, 712 (Pa. Super. 2013). See also
Dennis, 950 A.2d at 961 (explaining that the burden lies with a petitioner to
plead and prove sufficient prejudice, or that the outcome of the trial would
have been different, to establish ineffective assistance of trial counsel for
failure to investigate a witness).
Instantly, the PCRA court found that Appellant failed to demonstrate
that trial counsel’s failure to investigate potential eyewitnesses would have
affected the outcome of the trial. The PCRA court opined:
[Appellant] failed to put forth evidence demonstrating that the
failure to investigate the potential witnesses was prejudicial to
[him]. [Appellant] simply suggests that the failure to investigate
is inherently prejudicial. Thus, as [Appellant] failed to
demonstrate a reasonable probability that the outcome of the trial
would have been different, [he] has failed to meet his burden.
Trial Ct. Op. at 6. Upon review, we agree that Appellant failed to adequately
plead and prove that investigating these witnesses would have changed the
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outcome of the trial. The PCRA court’s decision to dismiss this claim without
a hearing is supported by the record and free of legal error.
E.
Appellant next avers that trial counsel was ineffective for failing to call
Mr. Burt as a witness during the trial. Appellant’s Br. at 41. Appellant argues
that Attorney Konchak must have known about Mr. Burt because his name
was in the police report. Id.
“To prove arguable merit based on trial counsel’s failure to call a
witness, a PCRA petitioner must show that the witness existed and was
available; counsel was aware of, or had a duty to know of the witness; the
witness was willing and able to appear; and the proposed testimony was
necessary in order to avoid prejudice.” Commonwealth v. Robinson, 278
A.3d 336, 343 (Pa. Super. 2022) (citation and internal quotation marks
omitted). “In this context, prejudice means that the uncalled witnesses’
testimony would have been beneficial under the circumstances of the case.”
Id. (citation and internal quotation marks omitted).
Here, the PCRA court found that Mr. Burt existed, was available, and
was willing to testify. Trial Ct. Op. at 6. However, the court credited Attorney
Konchak’s testimony that Appellant never gave him name and contact
information for any witnesses and concluded that Appellant failed to
demonstrate that Attorney Konchak knew or had a duty to know about the
proposed witness, Mr. Burt. The PCRA court opined:
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[Appellant] further asserted that he provided counsel with the
name and contact information of witness. [N.T. at 39, 40].
However, [Appellant]’s former counsel, [Attorney Konchak],
testified that [Appellant] never supplied him with the names or
identities of any witnesses. Id. at 77 []. Without this information,
[Attorney Konchak] claimed he could not properly investigate any
relevant witnesses. Id. [Appellant] countered this claim, stating
that [Mr. Burt] was mentioned multiple times at trial, and
therefore counsel should have known about the existence of this
witness. Id. at 74 []. However, the mere mention of [Mr. Burt]
at trial does not demonstrate that [Attorney Konchak] knew or
should have known of [the] existence of this witness prior to trial.
Anything learned during the actual trial would not impact
[Attorney Konchak]’s ability to call witnesses, because [Attorney
Konchak] would need to have known about this information at an
earlier stage of the proceeding. Having observed [Attorney
Konchak] and [Appellant], this [c]ourt finds that [Attorney
Konchak] was very credible, and [Appellant] was not. Therefore,
[Appellant] has failed to satisfy this prong of the [] test, and
accordingly, has failed to demonstrate that counsel was ineffective
for failing to call an available witness.
Trial Ct. Op. at 6-7.
Appellant’s argument that Attorney Konchak must have known about
Mr. Burt because his name appeared in the police report is unpersuasive. The
police report indicated that Mr. Burt was the driver of the vehicle when police
arrested Appellant’s brother at a different location. See N.T. at 73-74. This
does not demonstrate that counsel knew Mr. Burt was a witness to the incident
who could offer exculpatory testimony.
Finally, even if Attorney Konchak had known that Mr. Burt witnessed the
incident, he had a reasonable basis for not calling him as a witness. Attorney
Konchak explained that even if he knew about Mr. Burt, his testimony would
not have been helpful to his case because it established that Appellant’s
brother, and codefendant, threw a tire iron in the direction of the victim’s
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vehicle and had “transferred intent” when he struck something other than
what he was aiming at. Id. at 72-73. For all the above reasons, the trial
court did not abuse its discretion when it denied Appellant’s claim that trial
counsel was ineffective for failing to call Mr. Burt as a witness.
F.
Appellant next avers that trial counsel was ineffective in advising him to
reject the Commonwealth’s guilty plea offer of one to two years’ incarceration,
causing him to proceed to trial in absentia and to ultimately receive an
aggregate sentence of 10 to 20 years’ incarceration.4 Appellant’s Br. at 45.
The PCRA found that Attorney Konchak had a reasonable basis to advise
Appellant to reject the Commonwealth’s plea deal. The court credited
Attorney Konchak’s testimony that he considered the nature of Appellant’s
charges and Appellant’s clean prior record when he advised Appellant that the
court would likely sentence him to a term of probation rather than
incarceration, and that his advice was accurate at the time. Trial Ct. Op. at
8. Moreover, the PCRA court emphasized that Attorney Konchak “had no
reason to believe that [Appellant] would flee, and thus did not factor that in
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4 To support his averment, Appellant primarily argues, for the first time on
appeal, that Attorney Konchak failed to advise him of his maximum sentencing
exposure of 20 years, causing him to decline the Commonwealth’s plea offer
and proceed to trial. Id. Appellant acknowledges that the PCRA did not
address this claim, but fails to acknowledge that he did not raise this argument
in his PCRA petition or his Rule 1925(b) statement. This argument is waived.
See Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived and
cannot be raised for the first time on appeal.”).
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when advising [Appellant] to reject the plea offer.” Id. The record supports
the PCRA court’s findings, and we discern no legal error.
G.
In his sixth issue, Appellant avers that trial counsel was ineffective for
failing to preserve issues for appeal. Appellant’s Br. at 32.
Appellant first asserts that trial counsel was ineffective for failing to
object to the trial “court’s decision to overrule [Appellant]’s objection to the
prosecutor’s pronouncement that the victim’s head wound constituted serious
bodily injury because it required staples rather than stitches[.]” Id. at 32.
Appellant argues that by failing to object to the overruling and requesting a
jury instruction, the issue was not preserved and caused Appellant prejudice.
Appellant’s Br. at 33. This argument fails.
Our review of the Notes of Testimony from Appellant’s trial indicates
that Appellant did raise an initial objection, which the court overruled. N.T.
Trial, 6/11/14, at 155-160. Further objection was not necessary to preserve
the issue for appeal. See Commonwealth v. McGeth, 622 A.2d 940, 943
(Pa. Super. 1993) (holding that “when an objection is overruled, failing to
request curative instructions or a mistrial does not result in waiver.”). 5
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5 Appellant also argues that trial counsel was ineffective for failing to object
to the trial court’s “instruction that the jury could find [Appellant] guilty of
Aggravated Assault but are not required to due to finding [Appellant] guilty of
conspiracy or accomplice liability.” Appellant’s Br. at 32. To support this
confusing assertion, Appellant makes a two-paragraph argument where he
fails to explain what was incorrect about the trial court’s jury instruction or
(Footnote Continued Next Page)
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Moreover, Appellant forfeited his right to raise this issue on direct appeal when
he absconded and, therefore, generally cannot be prejudiced by counsel’s
failure to preserve issues for appeal. Accordingly, the PCRA court did not err
in denying this ineffectiveness claim.
H.
In his seventh issue, Appellant avers that the trial court imposed an
illegal sentence. Appellant’s Br. at 51. It is well settled that “challenges to
the legality of the sentence are never waived.” Commonwealth v. Berry,
877 A.2d 479, 482 (Pa. Super. 2005). However, this Court has acknowledged
a “legal distinction between waiver and forfeiture.” Commonwealth v.
Doty, 997 A.2d 1184, 1188 (Pa. Super. 2010) (“Doty I”) (emphasis in
original). In Doty I, the appellant absconded during his 30-day appeal period
and this court held that the appellant’s “challenge to the legality of his
sentence, while not waivable, was forfeited through his extremely serious
misconduct [i.e. fugitive status] during his direct appeal.” Id. at 1189(internal quotation marks omitted). In Commonwealth v. Doty, 48 A.3d
451 (Pa. Super. 2012) (“Doty II”), this Court found that the same appellant
from Doty I—who forfeited his illegal sentence claim due to his fugitive status
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demonstrate how the instruction prejudiced him. “This Court will not act as
counsel and will not develop arguments on behalf of an appellant.”
Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007). As
Appellant has failed to demonstrate that his claim has arguable merit or
caused him to be prejudiced, it fails to garner him relief.
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during his direct appeal period—likewise forfeited any illegal sentence claims
on collateral review. Id. at 457.
On direct appeal in the instant case, our Supreme Court employed the
same legal reasoning as Doty I, recognized the “critical distinction between
waiver and forfeiture,” and held that Appellant forfeited appellate review of all
his issues on direct appeal, including any illegal sentence claims. Adams, 200
A.3d at 953. Accordingly, pursuant to Doty II and Adams, we conclude that
Appellant has forfeited review of his illegal sentencing claims on PCRA review.
I.
In conclusion, the PCRA court’s decision to deny PCRA relief is supported
by the evidence of record and free of legal error.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/9/2023
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