J-S67014-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    IZEK EUGENE TUGGLE                         :
                                               :   No. 3799 EDA 2016
                       Appellant

                Appeal from the PCRA Order November 30, 2016
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0006944-2011


BEFORE:      GANTMAN, P.J., MUSMANNO, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                        FILED OCTOBER 25, 2017

        Appellant Izek Eugene Tuggle appeals pro se from the Order entered in

the Court of Common Pleas of Montgomery County on November 30, 2016,

dismissing, without a hearing, his first petition filed pursuant to the Post

Conviction Relief Act.1 We affirm.

        The trial court aptly set forth the facts and procedural history herein as

follows:

                                   FACTUAL HISTORY

              In 2011, [appellant] was the target of an investigation into
        the distribution of controlled substances and usage of fraudulent
        medical prescriptions in Montgomery County. The Montgomery
        County Detective's Bureau gathered information about [appellant]
        through confidential informants, reports from other police
        departments, surveillance, and controlled purchases of controlled
        substances. Based upon the probable cause established by this
____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S67014-17


     information, police applied for and received a search warrant for
     [Appellant’s] residence. Various items were discovered during
     this search, including: Percocet, marijuana, blank prescription
     pads, and a handgun. In 2013, Appellant was convicted in a non
     -jury trial of person not to possess a firearm, attempting to obtain
     a controlled substance by fraud, manufacture of a controlled
     substance, possession of marijuana with intent to deliver, and
     possession of Percocet with intent to deliver.
            During appellant's suppression hearing, Detective Vinter
     testified that appellant was immediately taken into custody after
     the search of appellant's residence. Detective Vinter testified that
     at some point he engaged appellant in a very brief conversation,
     during the course of which he asked appellant if he wanted to
     cooperate and give a statement. The detective testified that
     appellant replied that he did want to make a statement. Detective
     Vinter readily acknowledged that he had not informed appellant of
     his rights under Miranda prior to asking appellant if he was willing
     to cooperate with the police.
            Detective Reynolds also testified during appellant's
     suppression hearing: specifically, that he took appellant's
     statement in an interview room in the Montgomery County
     Detective's building. Prior to taking the statement, he read the
     appellant his Miranda rights, and appellant then executed a
     written waiver of those rights. The waiver on its face explicitly
     advised appellant that: he had a right to remain silent and that
     anything he said could and would be used against him; that he
     had a right to consult a lawyer before being questioned and he
     could have a lawyer present during questioning; that if he could
     not afford a lawyer, a lawyer would be provided to him without
     cost prior to questioning; and that he had the right to refuse any
     questions and to stop talking at any time. After appellant executed
     the waiver, Detective Reynolds conducted an interview of
     appellant, beginning at 11:00 a.m. and ending at 11:50 a.m. The
     detective testified that appellant was cooperative, and that at no
     point did the conversation become contentious or heated and that
     at no point did the appellant ask to stop the interview or ask for a
     lawyer. Appellant testified that he was concerned that the
     handgun-which he denied owning-might have been used in a
     crime that the police would try to "pin it on me" because the
     handgun was discovered during a search of his residence.
     Appellant testified that this concern "played a major role" in his
     decision to waive his Miranda rights and give a statement,
     testifying that he thought that "if I give him statements then
     maybe he would stop asking me about the firearm or so." On

                                    -2-
J-S67014-17


       cross-examination by the attorney for the Commonwealth,
       appellant testified that no threats or promises were made to him
       to induce him to make a statement, but he asserted that he
       nonetheless felt "intimidated."

                                   PROCEDURAL HISTORY

              On August 19th, 2011, appellant was arrested and accused
       of the following crimes: use/possession of drug paraphernalia (2
       counts); receiving stolen property (14 counts); forgery -
       unauthorized act in writing (5 counts); manufacture, delivery, or
       possession with intent to manufacture or deliver (6 counts); theft
       by unlawful taking (14 counts); possession of firearm; possession
       of a controlled substance. Appellant was arraigned on November
       16th, 2011. Appellant moved for suppression of evidence on
       January 23rd, 2013, which the trial court heard and denied in its
       entirety on July 15th, 2013. On July 17th, 2013, following a bench
       trial before the Honorable William J. Furber, the appellant was
       convicted of: person not to possess firearm, attempting to obtain
       a controlled substance, possession of a controlled substance with
       intent to distribute, and possession with intent to deliver.
              Appellant appealed the trial court's decision to overrule the
       appellant's motion for suppression. Specifically, the appellant
       appealed the trial court's decision denying appellant's claim that
       his waiver of his Miranda rights was not knowing, intelligent, and
       voluntary. On [November 24, 2014], the Superior Court affirmed
       the trial court's decision and affirmed the appellant's sentence.
       The Superior Court reaffirmed the trial court's factual finding that
       Detective Vinter's testimony was credible. Appellant appealed the
       Superior Court's decision. On March 18th, 2015, the Pennsylvania
       Supreme Court denied appellant's petition for allowance of appeal.
              On March 22nd, 2016, [a]ppellant filed a petition under
       Pennsylvania's PCRA statute. The trial court appointed counsel,
       who then submitted a Finley[2] letter on October 17th, 2016.
       Court-appointed counsel advised his client that there was no merit
       in any of the issues that appellant disputed. The trial court found
       no genuine issues of material fact. Following the no-merit letter
       and with no evidentiary hearing, the trial court dismissed
____________________________________________


2 The PCRA court is referencing Commonwealth v. Finley, 550 A.2d 213
(Pa.Super. 1988) (en banc). Also on that date, counsel filed his Petition to
Withdraw as Counsel.



                                           -3-
J-S67014-17


       appellant's PCRA petition.[3] Thereafter, appellant filed an appeal
       of the dismissed PCRA petition. Appellant was directed to file a
       concise statement pursuant to Pa.R.A.P. 1925(b); he did so
       untimely.[4]

Trial Court Opinion, filed 4/24/17, at 1-4 (internal citations omitted).

       In his brief, Appellant presents the following Statement of the Questions

Involved:

       1.    Whether PCRA counsel erred by failing to investigate the
       known witness and leaving the burden of locating and contacting
       witness on Appellant?

       2.    Whether trial/PCRA counsel caused Appellant harmful error
       by failing to challenge the “body” of the search warrant or the
       authenticity of the signatures on the affidavit/warrants?

       3.    Whether trial/PCRA counsel erred by failing to investigate
       the approval of the search warrant applications by attorney for the
       Commonwealth and counsel causing harmful error by not ordering
       the Commonwealth to turnover [sic] any and all documents
       pursuant to the 60 days after the expiration of the sealed records?



____________________________________________


3 Prior to doing so, the PCRA court properly provided Notice to Appellant
pursuant to Pa.R.Crim.P. 907 on October 27, 2016, and Appellant filed a pro
se response thereto on November 25, 2016.
4 The PCRA court’s order directing Appellant to file a concise statement of

errors complained of on appeal within twenty-one days was filed on December
15, 2016. While Appellant did not file his concise statement until January 10,
2017, affixed thereto is an envelope with a postmark date of January 6, 2017,
which serves as evidence of the date upon which he gave his concise
statement to prison authorities for mailing. “[T]he prisoner mailbox rule
provides that a pro se prisoner's document is deemed filed on the date he
delivers it to prison authorities for mailing.” Commonwealth v. Chambers,
35 A.3d 34, 38 (Pa.Super. 2011) (citation omitted), appeal denied, 616 Pa.
625, 46 A.3d 715 (2012). Therefore, the trial court’s statement Appellant
untimely filed his concise statement is erroneous.



                                           -4-
J-S67014-17


      4.    Whether prosecution erred by withholding exculpatory
      evidence of the photograph(s)?

      5.    Whether trial court erred by amending Ct. #8 on the Bills of
      Information to a different offense with a higher gravity score?

      6.    Whether trial court erred by accepting information provided
      by non-testifying confidential sources which all alleged
      information falls outside of 30 days prior to the search warrant
      application?

      7.   Whether trial court erred by finding Appellant guilty of
      possession of a firearm when there was no intent to exercise
      dominion and control?

Brief for Appellant at 5 (unnecessary capitalization omitted).

      Our standard of review of the denial of a PCRA petition is limited to

examining whether the record evidence supports the court's determination

and whether the court's decision is free of legal error. Commonwealth v.

Ford, 947 A.2d 1251, 1252 (Pa.Super. 2008), appeal denied, 598 Pa. 779,

959 A.2d 319 (2008). This Court grants great deference to the findings of the

PCRA court if     the   record contains any support for          those   findings.

Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.Super. 2007), appeal

denied, 593 Pa. 754, 932 A.2d 74 (2007).          However, we give no such

deference to the trial court’s legal conclusions. Commonwealth v. Ford, 44

A.3d 1190, 1194 (Pa.Super 2012).

      To be eligible for relief pursuant to the PCRA, an 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).

Appellant must also establish that the issues raised in the PCRA petition have

                                     -5-
J-S67014-17


not been previously litigated or waived. 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).

       Appellant’s first three issues challenge the effectiveness of trial and/or

PCRA counsel.5 When considering claims of counsel's ineffectiveness, we are

guided by a well-settled standard of review:

       [C]ounsel is presumed to have provided effective representation
       unless the PCRA petitioner pleads and proves that: (1) the
       underlying claim is of arguable merit; (2) counsel had no
       reasonable basis for his or her conduct; and (3) Appellant was
       prejudiced by counsel's action or omission. To demonstrate
       prejudice, an appellant must prove that a reasonable probability
       of acquittal existed but for the action or omission of trial counsel.
       A claim of ineffective assistance of counsel will fail if the petitioner
       does not meet any of the three prongs. Further, a PCRA petitioner
       must exhibit a concerted effort to develop his ineffectiveness claim
       and may not rely on boilerplate allegations of ineffectiveness.
____________________________________________


5 In its Opinion filed pursuant to Pa.R.A.P. 1925(a), the trial court found that
to the extent his allegations pertained to trial counsel’s ineffective assistance,
Appellant’s claims were waived because he could have raised them on direct
appeal “since all of his alleged grievances with his trial counsel happened
during trial.” Trial Court Opinion, filed 4/24/17, at 7. However, this is
incorrect, for claims of ineffective assistance of counsel are properly raised on
collateral review. See Commonwealth v. Grant, 572 Pa. 48, 67, 813 A.2d
726, 738 (2002) (providing ineffectiveness claims are generally reserved for
collateral review); Commonwealth v. Leverette, 911 A.2d 998, 1004
(Pa.Super. 2006) (explaining ineffectiveness claims may be raised on direct
appeal only if: (1) appellant raised claim(s) in post-sentence motion; (2)
evidentiary hearing was held on claim(s); and (3) record devoted to claim(s)
has been developed). However, this Court is not bound by the rationale of the
trial court and may affirm on any valid basis. Blumenstock v. Gibson, 811
A.2d 1029, 1033 (Pa.Super. 2002), appeal denied, 828 A.2d 349 (Pa. 2013).



                                           -6-
J-S67014-17



Commonwealth v. Perry, 959 A.2d 932, 936 (Pa.Super. 2008) (citations

and quotation marks omitted). Appellant’s second and third issues present

layered claims of PCRA counsel's ineffectiveness. In this regard, we further

note that:

       [l]ayered 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) (citations

and quotation marks omitted). In addition,

       a petitioner must plead in his PCRA petition that his prior counsel,
       whose alleged ineffectiveness is at issue, was ineffective for failing
       to raise the claim that counsel who preceded him was ineffective
       in taking or omitting some action. In addition, a petitioner must
       present argument ... on the three prongs of the Pierce[6] test as
       to each relevant layer of representation.

Commonwealth v. Reaves, 592 Pa. 134, 148, 923 A.2d 1119, 1128 (2007)

(citations omitted).

       Initially, Appellant asserts PCRA counsel was ineffective for failing to

investigate and call an unnamed witness whom counsel allegedly knew existed

and who was willing to provide a statement.         Appellant’s second and third

claims attempt to present layered claims of ineffectiveness.          Specifically,


____________________________________________


6   Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

                                           -7-
J-S67014-17


Appellant maintains both trial and PCRA counsel were ineffective for failing to

challenge the search warrant applications and the representations made

therein. The PCRA court concluded that these claims were both unclear as to

which counsel Appellant was referring and unsubstantiated because the

underlying claims did not have arguable merit. The PCRA court observed that

PCRA counsel investigated and contacted certain witnesses as well as

addressed Appellant’s post-convictions concerns and explained in his letter

attached to his Petition to Withdraw as Counsel why trial counsel’s actions

regarding the search warrant did not rise to the level of ineffectiveness. PCRA

Court Opinion, filed 4/24/17, at 8-10.

      Upon our review, we agree with the PCRA court’s assessment and

conclude that Appellant has not developed or substantiated his bald

statements to demonstrate the issues underlying his ineffectiveness claims

have merit. For example, Appellant fails to name the purported witness whose

signed certification PCRA counsel allegedly was insufficient for failing to

obtain. Brief for Appellant at 10. In addition, Appellant presents no argument

to support his conclusory statements that prior counsel caused him “[h]armful

error by not objecting to the authenticity of the signatures on the warrant.”

Instead, he merely reproduces the point at trial at which time the search

warrant and attendant affidavit of probable cause were admitted into

evidence. Id. at 11 (citing N.T. Suppression Hearing, 7/15/13, at 86-87).

Finally, Appellant provides no support for his position that prior counsel were


                                     -8-
J-S67014-17


ineffective for failing to investigate the propriety of the warrant application

process    which    he    baldly   claims      resulted    in   prejudicial   prosecutorial

misconduct. Id. at 12.

       “Claims of ineffective assistance of counsel are not self-proving [.]”

Commonwealth v. Spotz, 587 Pa. 1, 100, 896 A.2d 1191, 1250 (2006)

(citation omitted).      Our Supreme Court has repeatedly refused to consider

bald, undeveloped allegations of ineffectiveness such as these. See

Commonwealth v. Thomas, 560 Pa. 249, 256, 744 A.2d 713, 716 (2000)

(declining to find counsel ineffective where appellant failed to allege with

sufficient specificity facts in support of his claim). Thus, because Appellant has

failed to develop his claims with sufficient specificity, we find them waived,

and there is no basis upon which to upset the PCRA court's finding that

Appellant was not entitled to relief on these issues.

      Appellant’s remaining questions presented raise claims of police,

prosecutorial, and judicial misconduct.7                  First, Appellant alleges the

prosecution withheld an inventory photograph as is evidenced by the trial


____________________________________________


7  We note that Appellant presents approximately one page of disjointed
argument in support of each of these issues. For this reason alone we could
find them waived for lack of development. Pa.R.A.P. 2119; Commonwealth
v. Steele, 599 Pa. 341, 361, 961 A.2d 786, 797 (2008), abrogated on other
grounds, Pena-Rodriguez v. Colorado, 137 S.Ct. 85, 197 L.Ed. 2d 107
(2017) (finding claims waived for lack of development where appellant failed
to discuss them meaningfully, failed to set forth all prongs of ineffectiveness
test, and relied upon boilerplate and rambling allegations).



                                            -9-
J-S67014-17


testimony of Detective David Holtzman that he photographed three pill bottles

discovered in a kitchen cabinet of Appellant’s home. At that time, defense

counsel indicated to the trial court that such a photograph was not provided

to the defense in discovery. N.T. Trial, 7/16/13, at 64-65.8

       As stated previously, to obtain PCRA relief, a petitioner must establish

that the allegation of error has not been waived. 42 Pa.C.S.A. § 9543(a)(3).

Appellant did not present this issue in his direct appeal. Instead, Appellant

raised this issue for the first time on PCRA appeal. An issue is waived if the

petitioner could have raised it but failed to do so on appeal. 42 Pa.C.S.A. §

9544(b). Clearly, Appellant became aware of this purported error at the time

of trial, yet he raised only a single issue on direct appeal.    9   Accordingly,



____________________________________________


8 Notwithstanding the question regarding this particular photograph, it was
clarified that Commonwealth Exhibit No. 16 contained “a number of items
including multiple bottles, as well as plastic bags containing pills.” N.T. Trial,
7/16/13 at 66.
9 On direct Appeal, Appellant raised only the following issue for this Court’s



review:

             Whether the trial court erred in denying [Appellant’s] Motion
       to Suppress his statements in that such statements were not
       preceded by a knowing, intelligent, and voluntary waiver of
       Miranda rights as the alleged waiver was preceded by coercive
       questioning by Detective James Vinter of [Appellant] relating to
       the gun found in the premises and wanting him to cooperate with
       law enforcement authorities, which tainted the voluntariness of
       the subsequent Miranda waiver?




                                          - 10 -
J-S67014-17


Appellant has waived this claim. See 42 Pa.C.S.A. § 9544(b); Pa.R.A.P. 302

(“Issues not raised in the lower court are waived and cannot be raised for the

first time on appeal.”); Commonwealth v. Washington, 592 Pa. 698, 723,

927 A.2d 586, 601 (2007).

        The same is true of Appellant’s fifth and sixth claims wherein he asserts

the trial court erred in permitting the Commonwealth to amend the Bills of

Information prior to the start of trial and in “accepting information” of a non-

testifying witness. Appellant did not present these issues to the trial court at

the proper juncture during trial or in his direct appeal; thus, he has waived

these substantive claims. 42 Pa.C.S.A. § 9544(b); Washington, supra.

     Appellant’s final issue presents a challenge to the sufficiency of the

evidence to sustain his conviction for possession of a firearm. Straightforward

challenges to the sufficiency and weight of the evidence are not enumerated

errors listed in the PCRA. 42 Pa.C.S.A. § 9543(a)(2)(i–viii). In addition, an

appellant generally may not raise allegations of error in an appeal from the

denial of PCRA relief as if he were presenting them on direct appeal.

Commonwealth v. Price, 876 A.2d 988, 995 (Pa.Super. 2005), appeal

denied, 587 Pa. 706, 897 A.2d 1184 (2006), cert. denied, 549 U.S. 902, 127

S.Ct. 224, 166 L.Ed.2d 179 (2006) (holding petitioner's challenge to


____________________________________________


Commonwealth v. Tuggle, No. 218 EDA 2014, unpublished memorandum

at 6 (Pa.Super. filed November 21, 2014).


                                          - 11 -
J-S67014-17


sufficiency of evidence is not cognizable under PCRA); Commonwealth v.

Bell, 706 A.2d 855 (Pa.Super. 1998), appeal denied, 557 Pa. 624, 732 A.2d

611 (1998) (stating sufficiency of evidence claims are not cognizable under

PCRA). Appellant raised a challenge to the sufficiency of the evidence for the

first time on PCRA appeal, although he was aware of the evidence the

Commonwealth had presented to support each of his convictions at the

conclusion of trial and, thus, could have raised this claim on direct appeal.

Therefore, in light of the foregoing, we deem Appellant’s challenge to the

sufficiency of the evidence to be waived. Accordingly, we affirm.

    Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/25/2017




                                    - 12 -
