J-S19018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

PERRY BURRIS

                        Appellant                   No. 3259 EDA 2014


          Appeal from the PCRA Order entered October 31, 2014
           In the Court of Common Pleas of Philadelphia County
             Criminal Division at No: CP-51-CR-0000712-2008


BEFORE: BENDER, P.J.E., STABILE,and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                             FILED MAY 13, 2016

     Appellant Perry Burris pro se appeals from the October 31, 2014 order

of the Court of Common Pleas of Philadelphia County (“PCRA court”),

dismissing his petition for collateral relief under the Post Conviction Relief

Act (PCRA), 42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.

     The facts and procedural history underlying this case are undisputed.

As summarized by the PCRA court:

           In the early morning hours of September 24, 2007,
     [Appellant], who was intoxicated at the time, rang the doorbell
     of the victim, whom he had previously unsuccessfully
     approached for date. When the victim answered the door,
     [Appellant] forced the victim back into her home, punched her
     repeatedly in the face, and forced her to take off her clothes.
     [Appellant] proceeded to perform oral sex on the victim and then
     anally raped her, which caused the victim to defecate on herself.
     [Appellant] then forced the victim to shower, after which he
     vaginally raped her. During all of these heinous and terrifying
     acts, [Appellant] repeatedly told the victim that he would kill her
     once he was finished with her. Appellant also stole rent money
     from the victim’s home. Eventually the victim was able to
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       escape when a friend came to her front door and she ran out of
       her home and found police.

PCRA Court’s Rule 1925(a) Opinion, 6/30/15, at 3 (internal record citation

omitted). On September 17, 2008, Appellant was convicted by bench trial of

rape, involuntary deviate sexual intercourse, sexual assault, simple assault,

robbery, and burglary in connection with the September 24, 2007 incident. 1

On November 13, 2008, the trial court sentenced Appellant to three

consecutive terms of 10 to 20 years’ imprisonment for convictions for rape,

robbery, and burglary, resulting in an aggregate sentence of 30 to 60 years’

imprisonment.       Appellant appealed his judgment of sentence, which this

Court affirmed.      See Commonwealth v. Burris, 4 A.3d 678 (Pa. Super.

2010) (unpublished memorandum).

       Thereafter, on July 23, 2010, Appellant timely filed a PCRA petition,

which is the subject of this appeal. The PCRA court appointed counsel who

amended the petition.           On June 12, 2014, the PCRA court issued a

Pa.R.Crim.P. 907 notice of its intent to dismiss the petition without a

hearing. On October 31, 2014, the PCRA court dismissed Appellant’s PCRA

petition.    Appellant appealed to this Court.    After filing the appeal, a

Grazier2 hearing was held following which Appellant was permitted to



____________________________________________


1
  18 Pa.C.S.A. §§ 3121(a)(1), 3123(a)(1), 3124.1, 2701, 3701(a)(1), and
3502(a), respectively.
2
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).



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proceed pro se.       Appellant then filed a pro se Rule 1925(b) statement,

raising the following five assertions of error:

        1. Trial counsel was ineffective for stipulating to exculpatory
           DNA evidence crucial to [Appellant’s] defense of consent by
           the alleged victim.

        2. Trial counsel was ineffective for providing incorrect legal
           advice as to PA rules of evidence and statutory effect on
           [Appellant’s] right to testify on his own behalf.

        3. Direct appeal counsel was ineffective for failing to investigate
           Appellant’s claim and abandoning Appellant through an
           Anders[3] brief.
        4. Collateral appeal counsel was ineffective for failing to motion
           the [trial] court for performance of DNA testing that is related
           to the investigation and prosecution that resulted in the
           judgment of conviction in accordance with 42 Pa.C.S.A. §
           9543.1 Post Conviction DNA testing.

        5. The prosecutor committed gross misconduct by initiating an
           agreement between himself and trial counsel to stipulate to
           exculpatory DNA evidence.

Appellant’s Rule 1925(b) Statement, 3/2/15. In response, the PCRA court

issued a Pa.R.A.P 1925(a) opinion.

     On appeal,4 Appellant repeats the same five issues for our review.5

Preliminarily, we observe that Appellant’s first, and third issues are waived

because he failed to preserve them for appeal.         As the PCRA court aptly

found, Appellant failed to raise these issues in his PCRA petition and raised
____________________________________________


3
    Anders v. California, 386 U.S. 738 (1967).
4
  “In reviewing the denial of PCRA relief, we examine whether the PCRA
court’s determination ‘is supported by the record and free of legal error.’”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quoting
Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)).
5
    The Commonwealth failed to file an appellate brief in this case.



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them for the first time in his Rule 1925(b) statement.         PCRA Court’s Rule

1925(a) Opinion, 6/30/15, at 4, 6-7; see Pa.R.A.P. 302(a); Pa.R.A.P.

1925(b)(4)(vii);   Commonwealth          v.    Melendez–Rodriguez, 856        A.2d

1278, 1287 (Pa. Super. 2004) (en banc) (holding issues raised for first time

in 1925(b) statement waived); accord Commonwealth. v. Tejada, 107

A.3d 788, 790 (Pa. Super. 2015); see also Commonwealth v. Ousley, 21

A.3d 1238, 1242 (Pa. Super. 2011) (“It is well-settled that issues not raised

in a PCRA petition cannot be considered on appeal.”) (internal quotation

marks and citation omitted), appeal denied, 30 A.3d 487 (Pa. 2011).

   Appellant’s fourth issue that his PCRA counsel was ineffective is also

waived as he raised it for the first time on appeal.       We recently held that

allegations of PCRA counsel’s ineffectiveness cannot be brought for the first

time on a PCRA appeal. Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.

Super. 2014) (en banc), appeal denied, 101 A.3d 785 (Pa. 2014).

   Finally, Appellant’s fifth issue concerning prosecutorial misconduct is

waived because he could have raised it prior to conviction. Indeed, under

the PCRA, “an issue is waived if the petitioner could have raised it but failed

to do so before trial, at trial, during unitary review, on appeal[,] or in a prior

state   postconviction    proceeding.”        42   Pa.C.S.A.   §   9544(b);   see

Commonwealth v. Ford, 809 A.2d 325, 329 (Pa. 2002) (holding that

petitioner’s claims of trial court error, constitutional error, and prosecutorial

misconduct, which could have been raised on direct appeal but were not,

were waived under the PCRA).

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       We now turn to Appellant’s sole remaining issue on appeal, i.e.,

whether the trial counsel was ineffective in his provision of legal advice.

Appellant claims that trial counsel provided incorrect legal advice on rules of

evidence and on Appellant’s right to testify on his own behalf.

       A PCRA petitioner is entitled to relief if he pleads and proves that prior

counsel    rendered      ineffective   assistance   of   counsel.   42   Pa.C.S.A.

§ 9543(a)(2)(ii). “To prevail on an [ineffectiveness] claim, a PCRA petitioner

must plead and prove by a preponderance of the evidence that (1) the

underlying legal claim has arguable merit; (2) counsel had no reasonable

basis for acting or failing to act; and (3) the petitioner suffered resulting

prejudice.” Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 780 (Pa.

Super. 2015) (en banc).         “A petitioner must prove all three factors of the

“Pierce[6] test,” or the claim fails.” Id.

       Instantly, despite Appellant’s argument that his ineffectiveness claims

meet the arguable merit prong of the Pierce test, his brief is bereft of any

discussion or argument with respect to the reasonable basis and prejudice

prongs of the Pierce test. As we recently emphasized, “[a] petitioner must

prove all three factors of the Pierce test, or the [ineffectiveness] claim fails.

In addition, on appeal, a petitioner must adequately discuss all three

factors of the Pierce test, or the appellate court will reject the claim.”

____________________________________________


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



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Reyes-Rodriguez, 111 A.3d at 780 (emphasis added) (citing Fears, 86

A.3d at 804)).    Thus, given Appellant’s failure to adequately discuss the

reasonable    basis   and   prejudice    prongs   on   appeal,   we   reject   his

ineffectiveness claims.

   Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/13/2016




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