J-S43024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    GEROD MAURICE JARRETT,                     :
                                               :
                           Appellant           :   No. 29 WDA 2018

                Appeal from the PCRA Order December 6, 2017
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
                          CP-25-CR-0001882-2013,
                           CP-25-CR-0001884-2013


BEFORE: STABILE, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY DUBOW, J.:                              FILED JANUARY 29, 2019

       Appellant Gerod Maurice Jarrett seeks review of the Order entered on

December 6, 2017, denying his first Petition filed pursuant to the Post

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

the stewardship of trial and appellate counsel and the legality of his sentence.

We affirm.

       The factual and procedural history of this case is set forth in this Court’s

Memorandum affirming Appellant’s Judgment of Sentence imposed after a jury

found him guilty of Robbery and related offenses. See Commonwealth v.

Jarrett, No. 1197 WDA 2014 (Pa. Super. filed July 7, 2015).1 The Supreme
____________________________________________


1In sum, Appellant robbed a man at gunpoint in the City of Erie on April 8.
2013. The victim subsequently obtained a sawed off shotgun to retaliate.
Police officers arrested the victim because of the weapon. The victim identified
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Court denied allowance of appeal on December 22, 2015.                       Appellant’s

Judgment of Sentence became final ninety days later on March 14, 2016, when

his time for seeking review from the U.S. Supreme Court expired. See U.S.

Ct. R. 13.

       On January 23, 2017, Appellant timely filed his PCRA Petition pro se,

raising   twelve    issues.      The    court    appointed   counsel,   who     filed   a

Turner/Finley2 letter and a Petition to Withdraw as counsel asserting that

the   Petition     was    untimely.     After    Appellant   objected   to    counsel’s

Turner/Finley letter and Motion to Withdraw,3 the PCRA Court directed

____________________________________________


Appellant as the shooter after looking at a photo array compiled by
investigating police detectives. The victim also described the jewelry that was
stolen from his person and the black semiautomatic pistol used in the robbery.
Police arrested Appellant and recovered a black handgun and the victim’s
jewelry from Appellant’s car. Appellant had a bifurcated trial.

2Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

3  Appellant also filed a complaint with the Attorney Disciplinary Board. The
Disciplinary Board investigated the complaint, spoke with PCRA counsel, and
concluded counsel had simply made an error which he indicated he would
correct. See Letter from Office of Disciplinary Counsel, dated 4/27/17.
Appellant, acting pro se, forwarded a copy of the Disciplinary Board letter to
the PCRA Court and requested that new counsel be appointed, noting that
appointed counsel “at no time during the course of his representation …
attempted to gather any information from me for purposes of preparing an
Amended PCRA Petition[.]” See Letter from Appellant to Hon. John Garhart,
filed 5/11/17. The court of common pleas (“CCP”) docket indicates that the
court clerk forwarded Appellant’s letter to PCRA counsel and to the PCRA judge
on May 11, 2017. No further action was taken on Appellant’s request.
Appellant’s PCRA counsel continues to represent him in this Appeal.



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counsel to “re-examine the facts and law underpinning his Turner/Finley [ ]

letter,” and “[i]n the event the subject PCRA petition is found to be timely,

this Court directs [appointed counsel] to thoroughly examine the merits of

each of Petitioner’s substantive claims” and file an amended or supplemental

PCRA Petition or submit a No Merit letter within 30 days. Order, filed 4/17/17.4

       On June 26, 2017, counsel filed a “Supplement” to Appellant’s pro se

PCRA Petition in which he “rescinded” his Turner/Finley letter and his Motion

to Withdraw as counsel because “a substantive review and evaluation of

Petitioner’s underlying PCRA claims is warranted.” In the Supplement, PCRA

counsel addressed Appellant’s challenge to the legality of sentence, and

restated Appellant’s other issues in one or two sentences without providing

any substantive review and evaluation of Appellant’s remaining claims.

       On October 24, 2017, the Court held a hearing limited to the issue of

why trial counsel did not present Ebony Flemings as a defense witness at trial.

On October 30, 2017, the court issued a “Notice of Intent to Dismiss without




____________________________________________


4 Counsel thereafter filed a Motion for Extension of Time, acknowledging that
he had “misapprehended the procedural history” of Appellant’s case and
requesting a 45-day extension to file the “appropriate supplemental pleading
given … that Petitioner has pled numerous claims[.]” Motion, filed 5/11/17 at
¶¶5, 7. The Court granted the counsel’s Motion.




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a Hearing pursuant to Pa.R.Crim.P. 907.”5        On December 6, 2017, the PCRA

dismissed the PCRA Petition.

       Appellant timely appealed and filed a Pa.R.A.P. 1925(b) Statement. The

PCRA court filed a “1925(a) Opinion,” incorporating its Rule 907 Notice. PCRA

Ct.’s “1925(a) Opinion,” filed Jan. 29, 2018.

       Appellant raises the following issues for this Court’s review:

       1. Whether [Appellant] presented a legally viable claim possessed
       of arguable merit that would compel the striking of the sentence
       and resentencing in light of the U.S. Supreme Court case of
       Alleyne v. United States, [570 U.S. 99] (2013)?

       2. Whether [Appellant] states a claim for relief under Section
       9714(a)(2), “the three strike law” as there was no factual or legal
       predicate for purposes of subjection him to the three strike law in
       that there was no predicate of a second strike in his criminal
       history for purposes of instigating and applying the three strike
       law for the instant case?

       3. Whether [Appellant was afforded ineffective [assistance] of
       counsel for failure to file a suppression motion seeking the
       suppression of the firearm as sought by [Appellant] in a written
       directive to counsel?

       4. Whether [Appellant] was afforded ineffective assistance of
       counsel in that [] defense counsel only met with him twice prior
       to trial and then principally for the purpose of relaying plea offers

____________________________________________


5  In its Rule 907 Notice, the PCRA court addressed Appellant’s challenge to
the legality of sentence, Appellant’s claims of trial counsel’s ineffectiveness for
failing to request suppression of the gun and failing to call Ebony Flemings,
and Appellant’s claim of an alleged Brady violation. See Rule 907 Notice,
filed 10/30/17, at 6-15. The PCRA court discussed trial counsel’s testimony
regarding why Ebony Flemings did not testify at trial, referencing the Oct. 24,
2017 hearing. Id. at 15. With respect to the other ineffectiveness claims,
the court concluded: “[a]fter close analysis, Petitioner’s remaining claims are
vague, undecipherable, or clearly frivolous. As such, we will not address those
claims herein.” Rule 907 Notice at 5.

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      to him instead of coordinating with [Appellant] for purposes of the
      preparation of a defense for trial?

      5. Whether [Appellant] was afforded ineffective assistance of
      counsel in failing to argue that given the circumstance that the
      alleged victim, Bryce Moffett, who had an extensive criminal
      record, was found in possession of a sawed-off shotgun, that
      Moffet [sic] was motivated and had an interest n falsely accusing
      and concocting the allegations against [Appellant] to offset and
      draw the attention of the police from his own criminal conduct in
      regard to possessing a prohibited firearm?

      6. Whether Counsel was ineffective in failing to call Ebony
      Flemings as a defense witness or otherwise upon her failure to
      abide by a subpoena to move for a continuance of the trial or a
      mistrial given the absence of this material witness for the defense?

      7. Whether the Commonwealth committed a Brady violation in
      failing to provide evidence requested in discovery in the nature of
      small pictures that were introduced at trial of the alleged victim’s
      jewelry?

Appellant’s Brief at 2-3 (reordered).

Standard and Scope of Review

      We review the denial of a PCRA Petition to determine whether the record

supports the PCRA court’s findings and whether its order is otherwise 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 they are

supported by the record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.

Super. 2007).    We give no such deference, however, to the court’s legal

conclusions.    Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super.

2012).




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Legality of Sentence

       In Appellant’s first two issues, he challenges the sentencing court’s

application of 42 Pa.C.S. § 9714(a)(2), the three-strikes sentencing provision

that imposes a mandatory minimum term of incarceration of 25 years if a

defendant has previously been convicted of two crimes of violence.6 Appellant

avers that Alleyne v. United States, 570 U.S. 99 (2013), “has now been

applied in the Commonwealth to serve to strike certain mandatory minimum

sentencing schemes.” Appellant’s Brief at 7. He also asserts, without telling

us what the prior convictions are, that his “prior criminal convictions did not

comport with a crime of violence as mandated under this sentencing

provision.” Appellant’s Brief at 7. Appellant concludes, without any analysis

at all, that his “case falls squarely within the parameters of” Alleyne, supra,

and Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014). Appellant’s

Brief at 7.

       In Alleyne v. United States, 570 U.S. 99 (2013), the U.S. Supreme

Court held that “facts that increase mandatory minimum sentences must be


____________________________________________


6 Appellant’s prior crimes include (1) on May 8, 2001, at Allegheny County
docket 11762 of 1999, Appellant pled guilty to one count of Burglary pursuant
to 18 Pa.C.S. § 3502(a), and one count of Robbery pursuant to 18 Pa.C.S. §
3701(a)(1); (2) on February 3, 2004, at Allegheny County docket 14837 of
2002, Appellant pled guilty to 5 counts of Robbery pursuant to 18 Pa. C.S. §
3701(a)(1) and one count of Aggravated Assault pursuant to 18 Pa.C.S. §
2702(a). Rule 907 Notice of Intent, dated Oct. 30, 2017, at 7 (citing
Commonwealth’s Notice of Applicability of Mandatory Minimum Sentence,
dated Apr. 15, 2014, at ¶¶2-3).


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submitted to the jury” and must be found beyond a reasonable doubt.

Alleyne, supra at 116. Alleyne is an extension of the Supreme Court's line

of cases beginning with Apprendi v. New Jersey, 530 U.S. 466 (2000).

Most relevant to the case before us, the Apprendi Court specifically exempted

the fact of a prior conviction from its holding. Id. Thus, the Commonwealth

need not present the existence of a prior conviction to a jury and prove it

beyond a reasonable doubt before a trial court may impose a mandatory

sentence based upon that conviction. See Commonwealth v. Hale, 85 A.3d

570, 585 n. 13 (Pa. Super. 2013) (“Prior convictions are the remaining

exception to [Apprendi and Alleyne], insofar as a fact-finder is not required

to determine disputed convictions beyond a reasonable doubt to comport with

the Sixth Amendment jury trial right.”).      See also Commonwealth v.

Griffin, 804 A.2d 1, 18 (Pa. Super. 2002) (observing that in the wake of

Apprendi, if an enhanced sentence is based upon the fact of a prior

conviction, then the sentence is constitutional). Because the application of

the mandatory sentence for a third-strike offense is triggered exclusively by

the existence of a prior conviction, Alleyne has no application here.

      Pennsylvania’s three-strike rule provides, in relevant part, as follows:

      (a) Mandatory sentence.--

      (1) Any person who is convicted in any court of this
      Commonwealth of a crime of violence shall, if at the time of the
      commission of the current offense the person had previously been
      convicted of a crime of violence, be sentenced to a minimum
      sentence of at least ten years of total confinement,
      notwithstanding any other provision of this title or other statute

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      to the contrary. Upon a second conviction for a crime of violence,
      the court shall give the person oral and written notice of the
      penalties under this section for a third conviction for a crime of
      violence. Failure to provide such notice shall not render the
      offender ineligible to be sentenced under paragraph (2).

      (2) Where the person had at the time of the commission of the
      current offense previously been convicted of two or more such
      crimes of violence arising from separate criminal transactions, the
      person shall be sentenced to a minimum sentence of at least 25
      years of total confinement, notwithstanding any other provision of
      this title or other statute to the contrary. Proof that the offender
      received notice of or otherwise knew or should have known of the
      penalties under this paragraph shall not be required. Upon
      conviction for a third or subsequent crime of violence the court
      may, if it determines that 25 years of total confinement is
      insufficient to protect the public safety, sentence the offender to
      life imprisonment without parole.

42 Pa. C.S. § 9714(a)(1), (2).

      Section 9714(g) defines “crime of violence” to include burglary and

robbery. “Thus, the sentence enhancement applies to a person who is

convicted of robbery or burglary and has previously been convicted of two or

more crimes of violence arising from separate criminal transactions.”

Commonwealth v. McClintic, 909 A.2d 1241, 1249 (Pa. 2006).

      At Appellant’s sentencing hearing, after Appellant’s counsel objected to

the application of the three-strike rule, Appellant admitted that he had been

convicted of the prior robbery and burglary crimes noted above.       See N.T.

Sentencing, 6/27/17, at 9-12.

      In its “Rule 907 Notice,” the PCRA court reviewed the three-strikes

provision, as well as the public policy supporting it, before concluding:




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        [Appellant] had two prior robbery convictions on two separate
        Allegheny County dockets arising from two separate criminal
        transactions.    [Appellant] admitted to those prior robbery
        convictions and admitted that those convictions at those particular
        dockets were indeed his. This Court afforded [Appellant] every
        opportunity to contest the fact of his two prior convictions as the
        foundation for a sentence under the Three Strikes sentencing
        statute.   [Appellant] declined to contest those convictions.
        [Appellant’s] conviction in Erie County at the above noted Docket
        number was his third conviction for a violent offense. Therefore,
        [Appellant] was lawfully sentenced pursuant to the mandatory
        Three Strikes Offender provisions of 42 Pa.C.S. § 9714(a)(1)-(2).

Rule 907 Notice of Intent at 9.

        We conclude that the PCRA Court properly dismissed Appellant’s

Alleyne challenge and the challenge to the application of the three-strikes

rule.   Appellant admitted that he had committed both robberies and the

burglary offense, both of which are predicate “crimes of violence” as defined

in Section 9714(g). Therefore, the language of Section 9714(a)(2) required

a sentence enhancement for Appellant because he was convicted of a crime

of violence, robbery or burglary, and “at the time of the commission of the

current offense,” had two convictions for predicate crimes. Accordingly,

Appellant’s first and second issues are without merit.7




____________________________________________


7 To the extent Appellant asserts in one sentence that trial and appellate
counsel were ineffective for failing to raise these legality of sentence issues,
no relief is due. See Commonwealth v. Freeland, 106 A.3d 768, 778 (Pa.
Super. 2014) (citation omitted) (observing that “it is axiomatic that counsel
will not be considered ineffective for failing to pursue meritless claims.”
(brackets and citation omitted)).


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Ineffective Assistance of Counsel

      Appellant’s next four issues pertain to the stewardship provided by trial

counsel. The law presumes counsel has rendered effective assistance, and

the burden of demonstrating ineffectiveness rests with an appellant.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010).                To

satisfy this burden, Appellant 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); Commonwealth v.

Pierce, 527 A.2d 973, 975-76 (Pa. 1987). A petitioner must prove all three

factors or the claim fails. Commonwealth v. Baumhammers, 92 A.3d 708,

719 (Pa. 2014). Courts will not find counsel ineffective for failing to pursue a

baseless or meritless claim.        Commonwealth v. Taylor, 933 A.2d 1035,

1042 (Pa. Super. 2007).

      We will address each of the issues underlying the four ineffectiveness

claims seriatim.

      Suppression

      Appellant contends that trial counsel should have filed a Motion to

Suppress the firearm because “[t]he firearm and the jewelry of the alleged

victim, Bryce Moffett, were the product of a search and seizure of [Appellant’s]

vehicle and constituted a significant factor in the cumulative evidence


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proffered by the Commonwealth.            The failure to articulate and raise a

suppression claim to the subject search and seizure served to unduly prejudice

[Appellant].” Appellant’s Brief at 9.

      Appellant fails to provide any development of the suppression claim

beyond the above conclusory statements.           We could, thus, find the issue

waived.     However, the PCRA court addressed the issue, after noting:

“[Appellant] claims the firearm presented into evidence was prejudicial

because other than the victim’s testimony, there was no proof that it was the

same firearm used in the robbery.” Rule 907 Notice, dated 10/30/17, at 9.

      The PCRA court noted the following facts with respect to the firearm:

      At trial, Erie Police Detective Jason Triana testified that Bryce
      Moffett provided a specific description of Appellant’s firearm. A
      firearm matching Moffett’s description was recovered from
      Appellant’s vehicle. Furthermore, Moffett identified the recovered
      firearm as the weapon used in the robbery.

      After the testimony of Detective Triana, [Appellant’s] counsel
      moved to strike the admission of the firearm into evidence. In
      response, the following discussion occurred:

          Defense counsel: Just a couple of things, Your Honor. I
          didn’t want to interrupt, and based on the testimony that’s
          presented, I would move to strike the admission of the gun
          into evidence. Under the circumstances that we have here,
          while the witness has already testified and Mr. Moffett has
          testified that it’s the same gun. Obviously he can’t identify
          the same gun.

          The court: It’s similar.

          Defense counsel: Similar. In this particular case there – and
          while, in fact, the officer – the detective has testified that the
          firearm was found in the gun, there has been –


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       The Court: In the car, you mean?

       Defense counsel: I’m sorry, in the car.

       The Court: Under the driver’s seat?

       Defense counsel: The car under the driver’s seat. We don’t
       have any testimony that, in fact – other than hearsay
       information, that Appellant was driving the vehicle or was in
       – nearby to the particular gun.

       The court: I think you do. I don’t need to hear from the
       prosecutor. There’s testimony that his officer arrived there
       moments after the car stopped and sees Appellant outside
       the car and he doesn’t see anyone else there. So I think
       there’s clearly, by circumstantial evidence and the exclusion
       of the obvious, there’s no one else there and he’s in
       handcuffs. Did he see him behind the wheel operating the
       vehicle? No, but he arrives within moments, from a fair
       reading of the evidence, and he’s there in handcuffs and no
       one else is around, so I think that’s enough.

       Would it have been better if the Commonwealth produced the
       officer that stopped him? I think it would have been. I don’t
       think it’s required for the motion, at this point in time.

     (Complete Trial Transcript (Day 1), 04/10/14, at 125-26). Based
     upon the above, there was no error in admitting the firearm into
     evidence. As noted above, Moffett provided police with a specific
     description of the firearm which was shortly thereafter recovered
     at the scene of the [Appellants] arrest. Moffett unequivocally
     testified that the recovered firearm was the weapon [Appellant]
     used during the robbery. [ ] Accordingly, the firearm was properly
     admitted into evidence. Furthermore, [Appellant’s] counsel was
     not ineffective for failing to object to its admission, since he did
     object and said objections was appropriately denied.


PCRA Ct. Rule 907 Notice, at 10-11 (internal citation to N.T. and footnote

omitted; some brackets omitted).




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       In light of the above analysis, we cannot conclude that Appellant

suffered any prejudice from his counsel’s failure to file a motion to suppress

as it would likely have been denied.           Thus, this ineffectiveness claim fails.

       Counsel’s alleged lack of preparation

       Appellant next avers that trial counsel provided ineffective assistance

because he met with Appellant only twice prior to trial to convey plea offers

from the Commonwealth. He contends only that at no time did counsel meet

with him to prepare for trial or discuss strategy. Appellant’s Brief at 9-10.

Appellant has failed to provide any argument beyond this bare assertion.8

       “The failure to develop an adequate argument in an appellate brief may

result in waiver of the claim under Pa.R.A.P. 2119.” Commonwealth v.

Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007) (citation, quotation marks

and brackets omitted). “While this Court may overlook minor defects or

omissions in an appellant's brief, we will not act as his or her appellate

counsel.” Commonwealth v. Freeman, 128 A.3d 1231, 1249 (Pa. Super.

2015) (citation omitted). Appellant has made no effort whatsoever to discuss

the applicable law or to link the facts of his case to that law. His failure to




____________________________________________


8 Moreover, Appellant’s brief averment fails to impugn trial counsel’s strategy,
which, based on our review of the record, appeared to be that the robbery
never occurred and the victim was lying because he himself had been arrested
for carrying a sawed-off shotgun. See N.T. Trial, 4/11/14, at 19. Appellant
does not assert that he disagreed with that strategy or how counsel presented
that strategy at trial.

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develop a coherent legal argument in support of his claim results in waiver of

this issue. See also Pa.R.A.P. 2119 (briefing requirements).

      Failure to argue the victim’s motive to lie

         Appellant next asserts that counsel was ineffective for failing to argue

that the victim falsely accused Appellant due to his own extensive criminal

record. See Appellant’s Brief at 10. Again, Appellant fails to develop this

argument. He does not cite to the record or to case law. He provides no legal

analysis. For these reasons alone, we conclude he has waived the claim. See

Pa.R.A.P. 2119, Beshore, supra, Freeman, supra.

      Moreover, our review of the transcript from the closing argument belies

Appellant’s claim. Defense counsel’s closing argument focused solely on the

victim’s motive to lie and the victim’s prior record. N.T. Trial, 4/11/14, at 4-

22. Thus, even if the claim were not waived, we would conclude it is without

merit.

      Failure to ensure presence of witness at trial

      In his next issue, presented in one sentence, Appellant contends counsel

was ineffective “in failing to call Ebony Flemings as a defense witness or

otherwise upon her failure to abide by subpoena to move for a continuance of

the trial or a mistrial given the absence of this material witness for the

defense.”    Appellant’s Brief at 11.    As with the prior issues, Appellant has

utterly failed to develop an argument on this issue and it is, thus, waived.




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      Moreover, this issue is the sole issue upon which the PCRA Court held a

hearing. Appellant fails to acknowledge the PCRA court’s disposition of this

issue, as provided in its Pa.R.Crim.P. 907 Notice. In addressing this issue, the

PCRA court noted that Appellant’s trial counsel had testified that he had, in

fact, subpoenaed Ms. Flemings to testify at trial; the subpoena was duly

served; and on the day of trial, she failed to appear. Tr.Ct.Op., at 15. Counsel

also testified that “when a witness failed to appear for trial, it was his regular

practice to consult with his client in order to determine whether they should

proceed without the witness or whether they should request a continuance

until the witness could be found.” Id. The PCRA court noted that trial counsel

did not have a recollection of what happened after Ms. Flemings failed to

appear. The court also observed that counsel had testified that there were

downsides to calling Ms. Flemings because she would have placed Appellant

at the scene of the crime. Id.

      In order to establish ineffective assistance for failing to call a witness,

the petitioner must prove, inter alia, that the witness was available and willing

to testify for the defense, and that the witness’s testimony “would have been

beneficial under the circumstances of the case.” Commonwealth v. Sneed,

45 A.3d 1096, 1109 (Pa. 2012) (citation omitted). Because Ms. Flemings fled

prior to trial, Appellant cannot prove that she was available and willing to

testify for the defense. In fact, her fleeing is a clear indication that she was

not available or willing to testify.     Moreover, counsel testified that her


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testimony would have put Appellant at the scene of the crime, which would

not have been beneficial to Appellant. Thus, even if Appellant had not waived

this claim, we would conclude it is meritless.

Brady Claim

        Appellant’s last claim is that the Commonwealth violated Brady9 by

failing to provide small pictures of the victim’s jewelry to defense counsel

before presenting them to the jury at trial, and trial counsel was ineffective

for failing to object to the admission of the photos. Appellant’s Brief at 10.

Once again, Appellant has failed to develop this claim beyond its bare

allegations. It is, thus, waived.

        Moreover, even if Appellant had not waived the issue, it would garner

no relief.    In Brady, the United States Supreme Court held that “the

suppression by the prosecution of evidence favorable to an accused upon

request violates due process where the evidence is material either to guilt or

to punishment, irrespective of the good faith or bad faith of the prosecution.”

373 U.S. at 87.

        The PCRA Court addressed this claim as follows:

        Here, Petitioner claims that the photographs of the victim’s
        jewelry found in [Appellant’s] vehicle were admitted into evidence
        without having been disclosed to the defense and without
        objection by Appellant’s trial counsel. To be clear, this is not a
        Brady situation in which exculpatory or impeachment evidence
        was withheld from trial or from the defense. On the contrary,
        Appellant complains that the photos that the Commonwealth
____________________________________________


9   Brady v. Maryland, 373 U.S. 83, 87 (1963).

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         submitted at trial were used to condemn Appellant and that
         defense counsel was not prepared to defend against the previously
         undisclosed photographs.    Since the purportedly undisclosed
         photographs do not constitute materially exculpatory or
         impeachment evidence, Brady is inapplicable.

Rule 907 Notice at 13.

         We agree with the PCRA court’s analysis. The photographs were not

favorable to Appellant and were, thus, not directly exculpatory evidence or

impeachment evidence. Accordingly, there was no Brady violation. Because

there is no merit to the underlying issue, Appellant’s ineffectiveness claim

fails.

         Based on our review, we conclude that the PCRA court’s dismissal is

supported by the record and free of legal error.

         Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/29/2019




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