J-S19012-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                         IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                      v.

BRAHEEM BURKE,

                            Appellant                     No. 1857 EDA 2015


              Appeal from the PCRA Order Entered May 29, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0001048-2007


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

MEMORANDUM BY BENDER, P.J.E.:                            FILED MARCH 23, 2016

      Appellant, Braheem Burke, appeals pro se from the post conviction

court’s May 29, 2015 order denying his petition filed under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.              Appellant avers

that his direct appeal counsel was ineffective for raising only one claim,

which this Court found waived. We affirm.

      The    facts   of    Appellant’s   underlying   convictions   can   be   briefly

summarized as follows.         At around 12:35 p.m. on June 7, 2006, several

Philadelphia Police Officers responded to gunshots and found one victim,

Charles Carter, shot in the forehead, and a second victim, Niall Saracini,

shot multiple times in the neck, back, and arm. Both victims died from their

injuries.   The ensuing homicide investigation revealed that Appellant and

Yusef Washington had fired shots that killed Carter and Saracini during an
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altercation between two groups of men – one group was comprised of

Carter, Saracini, Keith McClain, and Eric Carter; the other group was

comprised of Appellant, Washington, and Rahman Jenkins.

       On September 24, 2008, Appellant was convicted of two counts
       of Third[-]Degree Murder and one count of Possession of an
       Instrument of Crime (PIC) at a jury trial before the Court. On
       December 19, 2008, Appellant was sentenced to an aggregate
       sentence of 30-60 years[’] imprisonment. No post[-]sentence
       motions were filed. The Superior Court affirmed the judgment of
       sentence on December 20, 2010 and allocatur was denied on
       July 26, 2011. [Commonwealth v. Burke, 23 A.3d 587 (Pa.
       Super. 2010) (unpublished memorandum), appeal denied, 25
       A.3d 327 (Pa. 2011).]

              Appellant filed a timely[,] pro se PCRA petition on
       September 4, 2012. PCRA counsel was appointed on July 12,
       2013. On March 15, 2014, counsel filed an amended petition
       alleging that direct appeal counsel waived Appellant’s appellate
       rights because the one issue raised was deemed waived.
       Subsequently, on October 27, 2014, the Commonwealth filed a
       motion to dismiss. The Court filed a dismissal notice on March
       30, 2015 and Appellant filed a pro se response to [the] dismissal
       notice on April 15, 2015. Ultimately, after a careful review of
       the filings and applicable case law, the Court dismissed the
       petition on May 29, 2015.

PCRA Court Opinion (PCO), 8/17/15, at 1-2 (footnotes omitted).

       Appellant’s counsel petitioned to withdraw, which the court granted on

the same day it denied Appellant’s petition, May 29, 2015.1 Appellant then

____________________________________________


1
  Counsel’s motion to withdraw was not docketed nor included in the
certified record. Appellant does not raise any issue concerning his PCRA
counsel’s motion to withdraw, or the court’s granting thereof, and we are not
permitted to raise such issues sua sponte. See Commonwealth v. Pitts,
981 A.2d 875, 880 (Pa. 2009).




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filed a timely, pro se notice of appeal, and also timely complied with the

PCRA court’s order to file a Pa.R.A.P. 1925(b) statement. 2          Therein,

Appellant raised two issues:

       a) [Appellate counsel] … rendered ineffective assistance of
       counsel on direct appeal to the Superior Court when [counsel]
       raised only one issue even though other issues had been listed in
       the Statement of Matters Complained Of Pursuant to Rule
       1925(b).

       b) [Appellate counsel] … rendered ineffective assistance of
       counsel as [the] only issue raised on appeal was deemed waived
       by the Superior Court. In that the Superior Court considered
       that one issue to be waived, [Appellant], in essence, had no
       appeal.

Rule 1925(b) Statement, 7/22/15, at 1 (unnumbered).

       Now, in Appellant’s pro se brief, he presents only one issue, stating:

“The PCRA court committed error when it dismissed [Appellant’s] PCRA

petition without an evidentiary hearing, due to ineffective assistance of

counsel on direct appeal.” Appellant’s Brief at 3 (unnecessary capitalization

omitted).    As will be discussed, infra, the argument portion of Appellant’s

brief relates only to the second issue presented in his Rule 1925(b)

statement. He fails to develop any meaningful discussion pertaining to the

first issue raised therein. Accordingly, that claim is waived for our review.
____________________________________________


2
  For some reason, Appellant’s PCRA counsel filed a Rule 1925(b) statement
on Appellant’s behalf, despite having been granted leave to withdraw from
representing Appellant several months earlier. Counsel did not enter his
appearance before this Court and, again, Appellant does not challenge the
court’s order allowing counsel to withdraw, or raise any issue with his
proceeding pro se on appeal.



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See Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007)

(citations omitted) (“The [appellant’s] brief must support the claims with

pertinent discussion, with references to the record and with citations to legal

authorities. … [W]hen 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.”).

      Before addressing Appellant’s preserved claim, we note that, “[t]his

Court’s standard of review from the grant or denial of post-conviction relief

is limited to examining whether the lower court’s determination is supported

by the evidence of record and whether it is free of legal error.”

Commonwealth v. Morales, 701 A.2d 516, 520 (Pa. 1997) (citing

Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa. 1995)). Where,

as here, a petitioner claims that he received ineffective assistance of

counsel, our Supreme Court has directed that the following standards apply:

      [A] PCRA petitioner will be granted relief only when he proves,
      by a preponderance of the evidence, that his conviction or
      sentence resulted from the “[i]neffective assistance of counsel
      which, in the circumstances of the particular case, 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). “Counsel is presumed effective, and to
      rebut that presumption, the PCRA petitioner must demonstrate
      that counsel's performance was deficient and that such
      deficiency prejudiced him.” [Commonwealth v.] Colavita, 606
      Pa. [1,] 21, 993 A.2d [874,] 886 [(Pa. 2010)] (citing
      Strickland[ v. Washington, 104 S.Ct. 2053 (1984)]). In
      Pennsylvania, we have refined the Strickland performance and
      prejudice test into a three-part inquiry. See [Commonwealth
      v.] Pierce, [515 Pa. 153, 527 A.2d 973 (Pa. 1987)]. Thus, to
      prove counsel ineffective, the petitioner must show that: (1) his


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      underlying claim is of arguable merit; (2) counsel had no
      reasonable basis for his action or inaction; and (3) the petitioner
      suffered actual prejudice as a result. Commonwealth v. Ali,
      608 Pa. 71, 86, 10 A.3d 282, 291 (2010). “If a petitioner fails to
      prove any of these prongs, his claim fails.” Commonwealth v.
      Simpson, [620] Pa. [60, 73], 66 A.3d 253, 260 (2013) (citation
      omitted).      Generally,   counsel's   assistance    is  deemed
      constitutionally effective if he chose a particular course of
      conduct that had some reasonable basis designed to effectuate
      his client's interests. See Ali, supra. Where matters of strategy
      and tactics are concerned, “[a] finding that a chosen strategy
      lacked a reasonable basis is not warranted unless it can be
      concluded that an alternative not chosen offered a potential for
      success substantially greater than the course actually pursued.”
      Colavita, 606 Pa. at 21, 993 A.2d at 887 (quotation and
      quotation marks omitted). To demonstrate prejudice, the
      petitioner must show that “there is a reasonable probability that,
      but for counsel's unprofessional errors, the result of the
      proceedings would have been different.” Commonwealth v.
      King, 618 Pa. 405, 57 A.3d 607, 613 (2012) (quotation,
      quotation marks, and citation omitted). “‘[A] reasonable
      probability is a probability that is sufficient to undermine
      confidence in the outcome of the proceeding.’” Ali, 608 Pa. at
      86–87, 10 A.3d at 291 (quoting Commonwealth v. Collins,
      598 Pa. 397, 957 A.2d 237, 244 (2008) (citing Strickland, 466
      U.S. at 694, 104 S.Ct. 2052)).

Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014).

      Appellant contends that his direct appeal counsel was ineffective for

raising a claim which this Court deemed waived. By way of background, the

issue raised by appellate counsel challenged an evidentiary ruling by the trial

court, made in the following context:

      On cross-examination [of Keith McClain at trial], [A]ppellant
      sought to ask [] McClain about a tattoo with the letters “RNR.”2
      Appellant argued that McClain and decedent Saracini had similar
      tattoos on their hands, indicating that they were members of the
      same gang.      The trial court sustained the Commonwealth’s
      objection.   At sidebar, [A]ppellant asserted that the similar
      tattoos could have signified a gang tattoo and, thus, a


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      conspiracy between the men to return and confront [A]ppellant.
      (Notes of testimony, 9/17/08 at 66-67.)
         2
           Defense counsel stated that “RNR” referred to “Real
         Niggaz [sic] Riding,” referred to in a rap song. (Notes of
         testimony, 9/17/08 at 65-66.)

Commonwealth v. Burke, No. 65 EDA 2009, unpublished memorandum at

6 (Pa. Super. filed 12/20/10).

      On direct appeal, appellate counsel challenged the trial court’s

preclusion of McClain’s testimony about the tattoos by arguing that the

court’s decision “precluded [Appellant] from making out a self-defense

claim.” Id. We deemed this argument waived, stating:

              Appellant did not make an argument at sidebar that his
      line of questioning regarding the tattoo was to develop a theory
      of complete self-defense. Rather, at sidebar, [A]ppellant stated
      [that] he wanted to use the tattoo evidence to suggest that the
      victims conspired to return to the scene and engage in violence.
      Thus, [A]ppellant’s newly formulated basis for admission is
      waived as it was not specifically raised before the trial court.
      See Commonwealth v. Newman, 555 A.2d 151, 156 (Pa.
      Super. 1986), appeal denied, … 655 A.2d 512 ([Pa.] 1995)
      (“[T]he party specifying the purpose for which the testimony is
      admissible cannot argue on appeal that the evidence was
      admissible for a purpose other than that offered at trial.”).
      Appellant has waived any grounds, other than those raised at
      trial, for the admission of such evidence. Id.; Pa.R.A.P. 302(a)
      (“Issues not raised in the lower court are waived and cannot be
      raised for the first time on appeal.”).

Id. at 6-7.

      Herein, Appellant contends that direct appeal counsel was ineffective

for framing his sole issue on appeal in such a way as to render the claim

waived. Appellant’s argument is meritless for two reasons. First, appellate

counsel attempted to argue that the trial court erred by precluding McClain’s


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testimony about the “RNR” tattoo because that evidence was vital to

developing Appellant’s theory of self-defense.                The fact that this Court

concluded        that     that   claim    was   waived      implicates   trial    counsel’s

ineffectiveness, not appellate counsel’s.

      Second, Appellant has failed to demonstrate that he was prejudiced by

appellate counsel’s failure to raise the specific claim that was preserved

below,   i.e.,     that    McClain’s     testimony   about    his   tattoo   would     have

demonstrated “a conspiracy between [McClain and Saracini] to return and

confront [A]ppellant.”           Appellant’s Brief at 14.     After this Court deemed

Appellant’s issue waived, we noted that:

      At any rate, … it was admitted [at trial] that [McClain and
      Saracini] were returning to the scene to fight [A]ppellant and his
      cohorts for ‘disrespecting’ McClain. Thus, it was not necessary
      for [A]ppellant to introduce [the tattoo] evidence to establish
      that McClain, Saracini, and the Carter brothers were acting in
      concert.

Burke, No. 65 EDA 2009, unpublished memorandum at 7.                             Thus, it is

apparent that even had appellate counsel challenged the trial court’s ruling

on the basis preserved below, this Court would have deemed that claim

meritless.

      Accordingly, Appellant has failed to demonstrate that appellate counsel

acted ineffectively. It was trial counsel that failed to preserve the argument

that McClain’s testimony was vital to proving that Appellant acted in self-

defense. Furthermore, this Court noted on direct appeal that the testimony

about McClain’s tattoo was not necessary to establish a conspiracy between


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McClain and Saracini to attack Appellant, thus indicating that we would have

deemed this claim meritless had appellate counsel raised it on appeal.

Consequently, the PCRA court did not err in denying Appellant’s petition for

post-conviction relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/23/2016




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