J-S78042-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 LAFAYETTE MILLER                         :
                                          :
                    Appellant             :   No. 1105 EDA 2018

                Appeal from the PCRA Order March 29, 2018
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0007177-2013


BEFORE:    LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                   FILED FEBRUARY 21, 2019

      Appellant, Lafayette Miller, appeals pro se from the order entered in the

Court of Common Pleas of Philadelphia County dismissing his first petition filed

pursuant to the Post Conviction Relief Act (PCRA). We affirm.

      The PCRA court sets forth the underlying facts and procedural history

and facts as follows:

      In its January 8, 2016 Opinion, [the trial court] summarized the
      relevant facts as follows:

            Simon Tan owned and rented out apartments at 1239
            Vine Street (“Vine Street property”). On April 5,
            2013, William Dorsey, a second-floor tenant at the
            Vine Street property, called Tan and arranged for Tan
            to collect his rental payment. That same day, Tan met
            Dorsey at the second-floor unit and collected $1,100
            in cash.

            After collecting the cash, Tan placed the cash in his
            pocket and went downstairs to an empty first-floor
            unit. While Tan read his mail on the first-floor, two

____________________________________
* Former Justice specially assigned to the Superior Court.
J-S78042-18


          males entered. The taller male (later identified as
          Phonso Simmons) aimed a handgun at Tan’s head.
          The shorter male, whom Tan identified at trial as the
          Defendant, Lafayette Miller [hereinafter “Appellant”],
          forced Tan to remove the rental money from his
          pocket.

          After Appellant took the rental money, Simmons
          ordered Tan to remove his pants and jacket. Inside
          Tan’s jacket were his cell phone and wallet, which held
          an additional $1,000 in cash. Appellant also took
          another $260 from Tan’s pocket. After Appellant
          gathered Tan’s clothes, Simmons struck Tan in the
          head with a gun, knocking him to the ground.
          Appellant and Simmons then fled to Vine Street.

          At the same time, Philadelphia Police Detective Robert
          Conway, while driving on Vine Street, saw Simmons
          wearing black sweatpants and a brown-hooded
          sweatshirt, leaving the Vine Street property. Seconds
          later, Detective Conway witnessed Tan, dressed in
          just underwear and a t-shirt—his head, hands, and
          chest covered in blood—fleeing from the same
          property, shouting for help.

          [Detective Conway decided to follow Simmons and
          found him with Appellant.        When the Detective
          addressed the two with “Police, stop,” they fled on
          foot. A building security guard witnessed the two men
          dive through an opening to the building’s basement,
          and he flagged Detective Conway when he saw the
          Detective was in pursuit.

          The security guard found Tan’s wallet lying on the
          ground outside the basement opening. Detective
          Conway, meanwhile, apprehended Simmons as he
          walked up a ramp leading from the basement.
          Responding officers later found Appellant hiding in the
          building’s crawl space. Police brought Tan to the
          apartment building, where he identified Simmons and
          Appellant as his robbers.

          A search of the basement recovered clothing
          belonging to both the suspects and Tan. Also

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           recovered was a .357 magnum revolver and Tan’s car
           keys, cell phone, and cell phone case.].

           Following Appellant’s arrest, police recovered a cell
           phone and wallet from his person.         The wallet
           contained a Golden Nugget Casino card with
           Appellant’s name, plus a list that included Dorsey’s
           and Simmons’ phone numbers. A search warrant on
           Appellant’s phone revealed a number corresponding
           with Dorsey’s phone.

           The search also revealed that right before the
           robbery, at 5:28 p.m., Dorsey sent a text message to
           Appellant’s cell phone that read “he here.” At 5:30
           p.m., Appellant’s cell phone sent a text message back
           that read, “okay, w[h]ere he at?” All told, on the day
           of the robbery, Appellant and Dorsey communicated
           by cellphone more than twenty-five times; Appellant
           and Simmons communicated by cell phone four times.

           Surveillance video from a building adjoining to the
           Vine Street property showed Appellant and Simmons
           entering the Vine Street property’s first-floor unit at
           5:46 p.m. on the day of the robbery. In the video,
           Simmons wore a dark-colored sweatshirt and a hood,
           while Appellant wore a red jacket and a sweatshirt.
           Approximately one minute later, the video showed
           Appellant and Simmons leaving the Vine Street
           property. Moments later, the video showed Tan,
           without any pants, fleeing the same property.

     Trial Court Opinion, 1/8/16, at *2-5.

     On April 7, 2013, Appellant was arrested and charged with
     Robbery, Conspiracy to Commit Robbery, and related offenses.
     On March 3, 2015, Appellant appeared before [the trial court] and
     elected to be tried by a jury.[ ] The Commonwealth proceeded to
     trial on the Robbery, Burglary, Aggravated Assault, Conspiracy,
     PIC, and Possession of Firearm Prohibited charges. On March 10,
     2015, the jury returned a verdict of guilty to Conspiracy and
     verdicts of not guilty to PIC and Aggravated Assault. The jury
     hung on the Robbery and Burglary counts and a mistrial was
     declared for those charges.           On this same date, the


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      Commonwealth nolle prossed the charge of Possession of a
      Firearm Prohibited.

      Sentencing was deferred until June 15, 2015, for completion of
      mental health and pre-sentencing reports.         The case was
      rescheduled for trial on the Robbery and Burglary counts before
      the Honorable Susan Schulman, but the Commonwealth decided
      to drop the remaining charges. At sentencing, on June 15, 2015,
      the Commonwealth moved to nolle pros the Robbery and Burglary
      counts, which [the trial court granted]. This same date, [the trial
      court] imposed a term of imprisonment of eight and a half to
      twenty years for Conspiracy to Commit Robbery. On June 23,
      2015, Appellant filed a Motion for Reconsideration of Sentence,
      which this Court denied on June 25.

      On November 3, 2016, the Superior Court affirmed Appellant’s
      judgment of sentence. On February 22, 2017, the Supreme Court
      of Pennsylvania denied his Petition for Allowance of Appeal.

      On October 11, 2017, Appellant filed a timely pro se [PCRA]
      petition. On February 7, 2018, PCRA counsel filed a no-merit
      letter pursuant to Commonwealth v. Finley, 550 A.2d 213
      (Pa.Super. 1988) (en banc) and a Motion to Withdraw. On
      February 15, 2017, upon independent review, this Court agreed
      that the instant petition was meritless and issued a Notice of
      Intent to Dismiss under Pa.R.Crim.P. 907. On March 6, 2018,
      Appellant filed his Response to Counsel’s Finley letter [asserting
      the merit to each of his pro se issues. Upon the PCRA court’s
      independent review of both the pro se petition and counsel’s
      Finley letter, the PCRA court denied Appellant relief, granted
      counsel’s request to withdraw, and advised Appellant of his right
      to proceed pro se or with retained counsel.].

PCRA Court Opinion, 3/29/18, at 1-4, 10.

      Appellant filed a timely pro se notice of appeal, and he has submitted a

pro se brief in which he raises the following questions for our consideration.

      1. Was trial counsel ineffective for failing to seek pre-trial
         suppression of the evidence obtained from the Appellant’s cell
         phone without a search warrant?




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      2. Was trial counsel ineffective for failing to request a jury
         instruction for conspiracy based on multiple objectives?


      3. Was trial counsel ineffective for failing to object to the improper
         calculation of the Appellant’s prior record score?

Appellant’s brief, at 4-5.

      Initially, we outline our standard of review of a PCRA order.

      Under the applicable standard of review, we must determine
      whether the ruling of the PCRA court is supported by the record
      and is free of legal error. Commonwealth v. Marshall, 596 Pa.
      587, 947 A.2d 714, 719 (2008). The PCRA court's credibility
      determinations, when supported by the record, are binding on this
      Court. Commonwealth v. Johnson, 600 Pa. 329, 966 A.2d 523,
      532, 539 (2009). However, this Court applies a de novo standard
      of review to the PCRA court's legal conclusions. Commonwealth
      v. Rios, 591 Pa. 583, 920 A.2d 790, 810 (2007).

Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011).

      Appellant’s issues all center on allegations that trial counsel provided

ineffective assistance.      When considering an allegation of ineffective

assistance   of   counsel,   we   presume   that   counsel   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 action or inaction; and (3) petitioner was prejudiced by counsel's action or

omission. Commonwealth v. Johnson, 179 A.3d 1105, 1114 (Pa. Super.

2018). An ineffective assistance of counsel claim will fail if the petitioner's

evidence fails to meet any one of the three prongs.          Commonwealth v.

Simpson, 66 A.3d 253, 260 (Pa. 2013). Because courts must presume that




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counsel was effective, the burden of proving ineffectiveness rests with the

petitioner. Commonwealth v. Montalvo, 114 A.3d 401, 410 (Pa. 2015).

     Regarding the prejudice prong, a petitioner must demonstrate
     that there is a reasonable probability that the outcome of the
     proceedings would have been different but for counsel's action or
     inaction. Commonwealth v. Dennis, [ ], 950 A.2d 945, 954
     [(Pa. 2008)]. Counsel is presumed to be effective; accordingly, to
     succeed on a claim of ineffectiveness the petitioner must advance
     sufficient   evidence     to    overcome     this    presumption.
     [Commonwealth v.] Sepulveda, 55 A.3d [1108, 1117 (Pa.
     2012)].

     We need not analyze the prongs of an ineffectiveness claim in any
     particular order. Rather, we may discuss first any prong that an
     appellant cannot satisfy under the prevailing law and the
     applicable facts and circumstances of the case. Id. at 1117–18;
     Commonwealth v. Albrecht, [ ] 720 A.2d 693, 701 [(Pa.
     1998)]. Finally, counsel cannot be deemed ineffective for failing
     to raise a meritless claim. Commonwealth v. Jones, [ ] 912 A.2d
     268, 278 [(Pa. 2006)].

Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016).

     In Appellant’s first issue, he maintains counsel ineffectively failed to

seek suppression of evidence allegedly obtained by means of a post-arrest,

warrantless search of information stored in his cell phone.       Specifically,

Appellant argues that, on the evening of his April 5, 2013 arrest, detectives

illegally scrolled through his cell phone and obtained text messages exchanged

between a co-defendant and himself.

     Evidence of this illegal warrantless search, Appellant claims, is found in

Detective Earl Martin’s April 6, 2013, affidavit of probable cause supporting

the Commonwealth’s application for a search warrant, where the detective

states Appellant possessed a cell phone “and through investigation it is


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believed that other perpetrators made (sic) be involved in planning and

facilitating this home invasion robbery.”     Appellant’s brief, at 8 (emphasis

added). The “investigation,” Appellant argues, can only refer to an unlawful

search of his phone.

      Appellant also alleges “it is equally clear via electronic records that [his]

cell phone was illegally accessed on April 5, 2013, prior to the warrant

issuing.”   Id.   In this regard, he appears to reference Commonwealth trial

exhibits C-55(A) and (B), which consisted of photographs of two separate

screens on his cell phone.     The first photograph depicted the “Messaging”

screen providing a log of seven contacts who recently text messaged his cell

phone. While most of the contact entries are obscured by a large window

providing more information for contact “W J”, who became a subject of the

investigation, the entry for an unrelated contact named “Nacta” was still

visible at the bottom of the screen. On the same line across from the “Nacta”

entry was the date “Apr 5 2013.” Appellant claims this was the date on which

the photograph the phone’s screen was taken, thus proving authorities

unlawfully accessed his phone.

      The Commonwealth counters that the certified record fails to support

Appellant’s bald assertion that police accessed information from the cell phone

prior to receiving a search warrant. Instead, the Commonwealth posits, trial

exhibits of record show that authorities immediately applied for a search

warrant to access texting and other transmission information in Appellant’s

cell phone because their investigation placed several persons under suspicion

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for robbing and assailing Mr. Tan. Pursuant to a search warrant issued just

after midnight of April 7, 2013, the Commonwealth claims, it executed its

search of the cell phone’s contents at 1:30 a.m., April 7, 2013

      Moreover, the Commonwealth continues, it was not until execution of

the first warrant that authorities discovered a text exchange between

Appellant’s cell phone and a phone belonging to contact “W J” suggesting an

attempt to synchronize their actions just minutes before their assault of Mr.

Tan. Detective Martin then applied for a second warrant on April 9, 2017, to

access subscriber information for the “W J” cell phone, which turned out to

belong to co-defendant William Dorsey.

      Finally, the Commonwealth argues that Appellant erroneously infers

from Commonwealth Exhibits C-55(A) and (B) that the photographs of his cell

phone screens were taken on April 5, 2013. The Commonwealth contends,

instead, that the date visible on the first exhibit clearly corresponds to the text

message exchange itself and not to when the photograph of phone screen was

taken.

      Our review of the record supports the Commonwealth’s position, as a

careful examination of the exhibits shows Appellant’s theory is flawed. First,

with respect to the photograph of the “Messaging” page in Exhibit C-55(A),

we conclude the date “Apr 5 2013” appearing on the same line opposite the

contact “Nacta” refers not to the real-time date as it existed when

investigators photographed the cell phone screen but, instead, to the date on

which “Nacta” text messaged Appellant’s cell phone. This conclusion becomes

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inescapable when one observes that the “3” in the year “2013” as it appears

on the “Nacta” line aligns perfectly in the same column with six other “3”s

above it appearing at the end of their respective contact lines.

      As explained above, the photograph in Exhibit C-55(A) depicts the cell

phone screen display after investigators opened a new window to view

additional information for listed contact “W J,” whom they suspected to have

played a role in Mr. Tan’s robbery. The window predominates on the screen

and, thus, obscures most of the information pertaining to the other six text

messages appearing on the message log. Remaining visible at the far right

end of each contact’s line, however, is the number “3.” When each “3” is

viewed in light of the completely visible “Nacta” text message date at the end

of its line, the only reasonable inference is that each “3” is the last digit of the

year 2013, which in turn is part of the date on which that corresponding text

message was received.

      Further undermining Appellant’s contention that the exhibits prove

investigators searched his cell phone on April 5, 2013 is Exhibit C-55(B), which

consists of a photograph depicting the cell phone screen displaying the actual

text message exchanges between Appellant and “W J.” Significantly, the texts

include not only the incriminating April 5, 2013, exchange of “he here” and

“Ok, w[h]ere he at?” between the two men just minutes before the time Mr.

Tan was robbed, but also two unanswered texts from WJ received on the

following afternoon of April 6, 2013.        Therefore, contrary to Appellant’s




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assertion, this screen offers no proof that investigators accessed his phone on

April 5, 2013.

      Finally, the exhibits strongly suggest that investigators took the two

photographs just one minute apart.        Specifically, the cell phone screen

depicted in Exhibit C-55(A) bears the time of “9:27 PM” at the very top right

margin, while the screen depicted in Exhibit C-55(B) bears the time of “9:28

PM” in the same location. There is no indication that the time display was

manipulated in any way, and Appellant makes no such argument. Therefore,

as we have already established that the photo in Exhibit C-55(B) could not

have been taken on April 5, 2013 as alleged by Appellant, it follows that the

photo in Exhibit C-55(A), taken one minute beforehand, also could not have

been taken on April 5, 2013.

      Hence, Appellant has identified no evidence to support his accusation

that investigators accessed his cell phone information on the night of his arrest

on April 5, 2013. He, therefore, has not met his burden of demonstrating

arguable merit to his claim that trial counsel ineffectively failed to seek

suppression of incriminating evidence obtained from his cell phone.           As

counsel may not be deemed ineffective for failing to raise a meritless claim,

see Johnson, supra, we discern no error in the PCRA court’s denial of relief

on this claim.

      In Appellant’s second issue, he contends trial counsel ineffectively failed

to object to the court’s jury instruction for conspiracy that was limited to

conspiracy to commit robbery even though he was charged with conspiracy

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generally and other lesser offenses besides robbery. PCRA counsel declined

to present advocacy on this claim after his review of the record satisfied him

that the jury instruction properly tracked the Commonwealth’s theory of the

case that the criminal objective to commit robbery was the sole objective of

the co-defendant’s conspiracy

      According to Appellant, because “the victim testified that one of the

perpetrators left the area, and only then did the second person commit the

assault and robbery[,] it can be inferred from this evidence that Appellant did

not conspire with anyone to assault or rob the victim.” Appellant’s brief at 15.

Appellant maintains, therefore, that the instruction became confused where

      the trial court’s instructions for conspiracy failed to distinguish the
      individual counts.       Of additional significance, the criminal
      information’s charging the conspiracies did not differentiate as
      objectives the specific offenses, instead, listing, inter alia,
      conspiracy generally as an objective. While each of the above
      factors represents a potential, serious flaw in the manner in which
      trial was conducted, counsel failed to object to the instruction on
      general conspiracy. This was clear error.

      In this regard, viewing the record in the light most favorable to
      the Commonwealth, there is inadequate support in the record for
      the jury’s verdict. . . . The prejudice suffered is clear: the jury
      returned a vague verdict in which they did not find the Appellant
      guilty of any specific charge under the conspiracy statutes.

Appellant’s brief at 17.

      Problematic for Appellant is that this Court has already determined on

direct appeal that the trial court’s jury instruction was appropriately tailored

to the Commonwealth’s prosecution of the case, and that the jury’s verdict

was, therefore, anything but vague. In Commonwealth v. Miller, No. 2272


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EDA 2015, unpublished memorandum at 5 (Pa. Super. filed 11/3/16), we

reviewed whether the evidence admitted at trial and the court’s instruction

were such that Appellant’s conspiracy conviction could be construed as a

conspiracy to commit one of the lesser crimes with which he was charged.

This Court reviewed the record and determined “the trial court correctly

concluded that the jury found Appellant guilty of conspiring to commit

robbery.” Id. at 5.

      In making this determination, we observed:

      the Commonwealth pursued only the charge of conspiracy to
      commit robbery. This is evidenced by the assistant district
      attorney’s   closing    argument.       During     argument   the
      Commonwealth made clear that the aim of prosecution was to
      convict Appellant of conspiracy to commit robbery, not conspiracy
      to commit trespass or conspiracy to commit assault. See N.T.
      3/9/15, at 47, 62.      Most importantly, the jury instructions
      addressing conspiracy only discussed conspiracy to commit
      robbery.” See N.T., 3/9/15, at 92 (Appellant “is charged with
      conspiracy to commit robbery.”) There is no mention in the jury
      instructions of conspiracy to commit trespass or conspiracy to
      commit assault. Viewed in its entirety, the record indicates that
      the jury found Appellant guilty of conspiring to commit robbery.”

Id.

      Appellant now couches this previously failed argument within an

ineffective assistance of counsel claim and contends, inter alia, that he

suffered prejudice from counsel’s failure to object to a jury instruction that

promoted a vague verdict of conspiracy. As explained above, however, this

Court has already rejected the notion of a vague conspiracy verdict, thus

undermining the predicate to Appellant’s prejudice prong argument herein.



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Having failed to establish that he was prejudiced by trial counsel’s election

against objecting to the jury instruction, Appellant cannot prevail on his

second issue.

       Finally, in his third issue, Appellant contends trial counsel ineffectively

failed to object to an improper calculation of his offense gravity score (“OGS”)

that, he claims, led to an enhanced sentence.1 Specifically, Appellant argues

that whereas the jury convicted him of conspiracy to commit robbery, threat

of bodily injury, which carries an OGS of 10 and a standard range sentence of

60 to 72 months, the court erroneously calculated his sentence as if the jury

convicted him of conspiracy to commit robbery, causing serious bodily injury,

which carries an OGS of 12 and a standard range sentence of 84 to 102

months.

       Initially, we note Appellant fails to develop a meaningful argument with

references to the record and discussion of pertinent authority supporting his

position, as he, instead, simply asserts summarily that the jury convicted him

of conspiracy to commit robbery, threat of bodily injury. To develop an issue

for our review, Appellant bears the burden of ensuring that his argument

section includes citations to pertinent authorities as well as discussion and

analysis of the authorities. See Pa.R.A.P. 2119(a); Commonwealth v.

Hardy, 918 A.2d 766, 771 (Pa.Super. 2007) (“[I]t is an appellant's duty to
____________________________________________


1 In the heading to Appellant’s third argument, he refers to an alleged mistake
in the calculation of his “prior record score.” It is apparent from his argument,
however, that he actually challenges counsel’s failure to object to an allegedly
improper calculation of his “offense gravity score.”

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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 omitted)). As this

Court has made clear, we “will not act as counsel and will not develop

arguments on behalf of an appellant.” Id. (citation omitted). Where 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.” Id. (citations

omitted).

      We decline to find Appellant has sustained his appellate burden where

he fails to discuss how both the evidence and controlling authority together

show how it was ineffective of trial counsel to object to a sentence calculation

based on conspiracy to commit robbery, causing serious bodily injury.

Accordingly, we deem Appellant’s final issue waived.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/21/19




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