J-S63021-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

OMAR SHARIFF CASH

                         Appellant                   No. 478 EDA 2015


               Appeal from the PCRA Order February 5, 2015
               In the Court of Common Pleas of Bucks County
            Criminal Division at No(s): CP-09-CR-0003526-2008


BEFORE: DONOHUE, J., MUNDY, J., and MUSMANNO, J.

MEMORANDUM BY MUNDY, J.:                       FILED DECEMBER 28, 2015

      Appellant, Omar Shariff Cash, appeals pro se from the February 5,

2015 order dismissing his timely first petition, as amended, filed pursuant to

the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.        After

careful consideration, we affirm.

      Appellant is currently serving an aggregate sentence of life in prison

without the possibility of parole, entered on June 2, 2010 and amended,

pursuant to post-sentence motions, on November 12, 2010.           Appellant’s

sentence followed his conviction by a jury for first-degree murder, carrying a

firearm without a license, simple assault, and multiple counts each of

robbery, rape, involuntary deviate sexual intercourse, kidnapping, and false
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imprisonment.1 This Court affirmed the judgment of sentence on December

14, 2011 and our Supreme Court denied Appellant’s petition for allowance of

appeal on May 31, 2012.            Commonwealth v. Cash, 40 A.3d 191 (Pa.

Super. 2011) (unpublished memorandum), appeal denied, 47 A.3d 844 (Pa.

2012).

       The PCRA court summarized the procedural history of Appellant’s PCRA

action as follows.

                    Appellant filed a timely PCRA petition pro se on
              August 15, 2012, in which he asserted, primarily,
              that his copy of the notes of testimony had been
              taken from him by correctional authorities.
              Appellant also included a discovery motion within
              said PCRA petition. On October 12, 2012, [the PCRA
              court] issued an Order appointing Stuart Wilder,
              Esquire, as Appellant’s PCRA counsel.

                     After his appointment, Mr. Wilder filed a
              Petition to Amend [Appellant’s] PCRA Petition
              wherein it was asserted that Appellant’s trial counsel
              was ineffective. The crux of this assertion centered
              on counsel’s failure to object to prosecutorial
              statements, as well as counsel’s failure to obtain
              additional discovery relating to the female victim’s
              (“MCDA”) U-Visa[2] application. [The PCRA court]
____________________________________________
1
 18 Pa.C.S.A. §§ 2501(a), 6106(a)(1), 2701(a)(3), 3701(a)(1)(i), (ii) & (iii),
3121(a)(1) & (2), 3123(a)(1) & (2), 2901(a)(2) & (3), 2903(a), respectively.
The trial court conducted a subsequent waiver trial at which it found
Appellant guilty of persons not to possess firearms, 6105(a)(1).
2
   The U-Visa is a non-immigrant visa designated for victims of human
trafficking crimes. “The ‘U’ Visa is also a non-immigrant visa that can be
sought by victims of certain crimes who are currently assisting or have
previously assisted law enforcement in the investigation or prosecution of a
crime, or who are likely to be helpful in the investigation or prosecution of
criminal activity.”18 Pa.C.S.A. § 3054, cmt.


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          granted Appellant’s Petition to Amend. On March 14,
          2013, a first PCRA hearing was held.

                 Appellant filed a pro se motion for self-
          representation on March 26, 2013. On April 1, 2013,
          Appellant filed a pro se Petition to Amend his PCRA
          Petition which was granted by [the PCRA court].
          Therein, Appellant alleged that trial counsel was
          ineffective for failing to request a limiting instruction
          to the jury regarding “Bad Acts Evidence.” Appellant
          additionally    alleged     prosecutorial   misconduct.
          Appellant contended that the Commonwealth
          withheld pertinent documents relating to MCDA’s U-
          Visa, failed to disclose character evidence with
          regard to MCDA that could have served as rebuttal
          evidence, and that MCDA’s credibility was improperly
          bolstered by the Commonwealth’s opening and
          closing remarks.

                 On May 15, 2013, Appellant filed pro se with
          [the PCRA court] another Motion to Amend his PCRA
          Petition. On June 10, 2013, a second PCRA hearing
          was held before [the PCRA court].           Appellant
          knowingly waived his right to counsel at this hearing
          and elected to proceed pro se with Mr. Wilder
          functioning as stand-by counsel.

                 Following the second PCRA hearing, Appellant
          filed Petitions to Amend his PCRA Petition on July 3,
          2013, and again on August 21, 2013. These were
          both filed pro se and raised no new material issues.
          On August 22, 2013, [the PCRA court] granted
          [Appellant’s] July 3, 2013 motion thereby allowing
          him to amend his PCRA Petition and include any and
          all issues that Appellant wished to raise.

                On December 12, 2013, Appellant filed a
          Motion to Supplement Amended PCRA. Appellant
          alleged that the district attorney conspired with
          police officers to prevent the disclosure of potentially
          exculpatory      statements     made      by    MCDA.
          Furthermore, Appellant claimed that the prosecutor
          intentionally elicited perjured testimony from MCDA.
          Lastly, Appellant claimed that trial counsel was

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          ineffective in its failure to discover and challenge
          MCDA’s “extrajudicial” statements and that counsel
          failed to test the prosecutor’s case effectively.
          Appellant was permitted to proceed on these
          additional issues.

                After the third PCRA hearing was conducted on
          December 27, 2013, [the PCRA court] issued an
          Order on January 23, 2014, denying Appellant’s
          request for additional DNA testing, as well as
          Appellant’s request for an independent private
          investigator. [The PCRA court] granted Appellant’s
          request at the hearing relating to statements made
          by MCDA, in that [the PCRA court] ordered the
          Commonwealth to determine whether MCDA made
          any other statements to law enforcement personnel
          that had not been disclosed to Appellant.
          Additionally, [the PCRA court] ordered that the
          Commonwealth provide any such statements to
          Appellant.

                On January 28, 2014, Appellant filed yet
          another Motion to Amend PCRA Petition Pursuant to
          Pa.R.Crim.P[.] 905(a). Appellant’s motion alleged
          that he was denied his right to self-representation
          when trial counsel informed Appellant that he would
          not be granted a continuance unless Appellant
          relinquished his pro se status.        Appellant also
          maintained that trial counsel were ineffective in not
          properly testing DNA swabs in preparation for trial,
          and by their failure to consult appropriate DNA
          experts. Additionally, Appellant alleged his counsel
          on direct appeal were ineffective in failing to petition
          for post-trial DNA testing.      These claims were
          supplemental      to Appellant’s prior      allegations
          pertaining to MCDA’s extrajudicial statements and U-
          Visa application.

                On April 22, 2014, a fourth hearing on
          Appellant’s PCRA was conducted. On May 28, 2014,
          [the PCRA court] issued an Order which directed
          Appellant to file an Amended PCRA Petition and
          specify those matters Appellant was still pursuing
          with respect to PCRA relief. This Order was issued to

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              provide clarity due to the numerous amended
              petitions filed by Appellant. In response, on June
              26, 2014, Appellant filed his final Amended PCRA
              Petition.

                    On September 22, 2014, a fifth PCRA hearing
              was held and at the conclusion of the hearing [the
              PCRA court] issued a briefing schedule. On February
              5, 2015, following the submission of briefs by both
              parties, [the PCRA court] issued an Order denying
              Appellant’s Amended PCRA Petition.

PCRA Court Opinion, 4/27/15, at 8-11.

       On February 17, 2015, Appellant filed a timely pro se notice of

appeal.3 On appeal, Appellant raises the following issues for our review.4

              1.    Did the [PCRA c]ourt err, and commit
              reversible error when it omitted facts of record upon
              which Appellant’s claims are predicated and
              completely fail [sic] to address claims of Appellant
              that are properly preserved and presented to the
              [PCRA c]ourt for review?

              2.    Did [t]rial [c]ounsel constructively deny
              Appellant’s constitutional right to free choice self-
              representation?


____________________________________________
3
  Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
4
  In his Rule 1925(b) concise statement of errors, Appellant listed 13 issues.
Appellant only includes two of these in his “questions presented” and
“argument” sections of his pro se appellate brief (Appellant’s first listed
question is a general one, encompassing his three subsequent specific
allegations of error). Accordingly, those issues not briefed are deemed
waived. See Appellant’s Concise Statement of Errors Complained of on
Appeal, 3/16/15, 1-2; Appellant’s Brief at 7; see also Commonwealth v.
LaCava, 666 A.2d 221, 228 n.9. (Pa. 1995) (noting issues raised in a
1925(b) statement but not included in an appellate brief are waived).


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            3.    Did [t]rial/[d]irect [a]ppeal [c]ounsel render
            ineffective assistance of counsel when counsel failed
            to raise the meritorious claim of prosecutorial
            misconduct, during pre-trial, trial and/or direct
            appeal?

                   (a). Did the Commonwealth’s suppression
                   and affirmative misrepresentation of material
                   evidence regarding the actual benefits it’s sole-
                   witness (M.C.D.A.) was expecting and received
                   in exchange for testimony violate due process?

Appellant’s Brief at 7.

      We first acknowledge the following tenets guiding our review.

            Our standard of review of the denial of a PCRA
            petition is limited to examining whether the court’s
            rulings are supported by the evidence of record and
            free of legal error. This Court treats the findings of
            the PCRA court with deference if the record supports
            those findings.     It is an appellant’s burden to
            persuade this Court that the PCRA court erred and
            that relief is due.

Commonwealth v. Feliciano, 69 A.3d 1270, 1274-1275 (Pa. Super. 2013)

(citation omitted).

            [Our] scope of review is limited to the findings of the
            PCRA court and the evidence of record, viewed in the
            light most favorable to the prevailing party at the
            PCRA court level.      The PCRA court’s credibility
            determinations, when supported by the record, are
            binding on this Court. However, this Court applies a
            de novo standard of review to the PCRA court’s legal
            conclusions.

Commonwealth v. Medina, 92 A.3d 1210, 1214-1215 (Pa. Super. 2014)

(en banc) (internal quotation marks and citations omitted), appeal granted,

105 A.3d 658 (Pa. 2014). Additionally, in order to be eligible for PCRA relief,


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a petitioner must plead and prove by a preponderance of the evidence that

his conviction or sentence arose from one or more of the errors listed at 42

Pa.C.S.A.   §   9543(a)(2).   “[A]ll   constitutionally-cognizable   claims   of

ineffectiveness are reviewable under the PCRA.”           Commonwealth v.

Cappello, 823 A.2d 936, 941 (Pa. Super. 2003); See 42 Pa.C.S.A.(a)(2)(ii).

These issues must be neither previously litigated nor waived. 42 Pa.C.S.A.

§ 9543(a)(3).

     When reviewing a claim of ineffective assistance of counsel, we apply

the following test, first articulated by our Supreme Court in Commonwealth

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

                  When considering such a claim, courts
            presume that counsel was effective, and place upon
            the appellant the burden of proving otherwise.
            Counsel cannot be found ineffective for failure to
            assert a baseless claim.

                   To succeed on a claim that counsel was
            ineffective, Appellant must demonstrate that: (1) the
            claim is of arguable merit; (2) counsel had no
            reasonable strategic basis for his or her action or
            inaction; and (3) counsel’s ineffectiveness prejudiced
            him.

                                       …

                 [T]o demonstrate prejudice, appellant must
            show there is a reasonable probability that, but for
            counsel’s error, the outcome of the proceeding would
            have been different.

Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013) (internal

quotation marks and citations omitted). “Failure to establish any prong of


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the test will defeat an ineffectiveness claim.”                Commonwealth v.

Birdsong, 24 A.3d 319, 330 (Pa. 2011).

       Appellant first argues that trial counsel was ineffective for coercing him

or improperly inducing him to waive his right to self-representation. By way

of background, Appellant recounts that he had petitioned to proceed pro se

in his trial.   Appellant’s Brief at 13-14.       Following a Grazier5 hearing, the

trial court granted Appellant’s petition on November 6, 2009, and appointed

stand-by counsel. Id. at 14, citing N.T. 11/4/09, at 1-12. Appellant asserts

that upon consultation with stand-by counsel he agreed to waive his right to

self-representation with the understanding that counsel would “adopt

Appellant’s guilt phase defense strategy,” and that allowing stand-by counsel

to represent him was necessary to secure a continuance desired by

Appellant and previously denied by the trial court. Id. at 14. Purportedly in

reliance on those representations, Appellant reversed his decision to proceed

pro se on January 8, 2010. Id. Appellant further avers that the subsequent

appointment of additional counsel for the guilt phase of trial resulted in co-

counsel focusing on the anticipated penalty phase of Appellant’s case at the

expense of his guilt phase strategy.           Id. at 15-16. Accordingly, Appellant

avers his waiver of self-representation was “the result of coercion and

deception and therefore invalid.”          Id., citing Commonwealth v. Bryant,


____________________________________________
5
    See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988).


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855 A.2d 726 (Pa. 2004) (noting waiver of constitutional rights, including the

right to self-representation, must be knowing, intelligent and voluntary).

      Concerning the prejudice prong of the Pierce test, Appellant argues as

follows.

             [W]hen a defendant seeks to collaterally attack his
             waiver on the grounds that it was caused by the
             ineffective assistance of his trial counsel, to prove
             prejudice, he must demonstrate a reasonable
             probability that but for counsel’s constitutionally
             deficient service, the outcome of the waiver
             proceeding would have been different, i.e., that he
             would not have waived his right.

Id. at 17.

      Appellant     conflates    his   decision   to   waive   his   right    to   self-

representation,    which   the     record   clearly    establishes   was     voluntary,

intelligent and knowing, with his dissatisfaction with counsel’s overall

performance.      As noted by the PCRA court, Appellant fully understood the

ramifications of self-representation and had been permitted to proceed pro

se. Trial Court Opinion, 4/27/15, at 18-19. Accordingly, “[s]uch a right was

not denied Appellant in his own case. In fact, it was Appellant himself who

requested that Mr. Goodwin serve as counsel at trial, rather than functioning

only as stand-by counsel.” Id. at 18. As further recognized by the PCRA

court, “Appellant offered no evidence which would support an inference that

trial counsel’s strategy prejudiced him in any way.” Id. Appellant includes

no explanation of what his guilt phase strategy was or how it differed from

counsels’, much less, how that difference prejudiced him.               During trial,

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Appellant did not seek to reassert his right to self-representation or express

dissatisfaction with the conduct of counsel at trial.    Appellant’s attempt to

recast his disappointment with the outcome of the trial into one concerning

the voluntariness of his decision to accept counsel is unavailing.

              “It is well established that a defendant can waive the
              right of self-representation after asserting it.” Buhl
              v. Cooksey, 233 F.3d 783, 800 (3d Cir. 2000)
              (citing cases); see also Wilson v. Walker, 204
              F.3d 33, 38 (2d Cir. 2000) (petitioner abandoned
              initial request where he subsequently had two
              different lawyers appointed and did not assert right
              again after question of self-representation had been
              left open for further discussion)

Bryant, supra at 737. For these reasons Appellant’s first issue fails.

        In his second and third issues, Appellant challenges the PCRA court’s

determination that he failed to establish ineffective assistance of counsel

relative to counsel’s failure to raise an issue of prosecutorial misconduct

during trial and on direct appeal, and dismissing his related Brady6 claim.

Appellant’s Brief at 20, 22. Appellant essentially avers the Commonwealth

withheld M.C.D.A.’s immigration status as requested by the defense prior to

trial. Id. at 22.      Appellant asserts the Commonwealth failed to turn over

M.C.D.A.’s U-Visa application, which Appellant claims evidenced a benefit to

her in exchange for her testimony, the absence of which foreclosed adequate

exploration of her bias. Id.

____________________________________________
6
    Brady v. Maryland, 373 U.S. 83 (1963).



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            Brady does not require the disclosure of information
            “that is not exculpatory but might merely form the
            groundwork for possible arguments or defenses,” ….
            The duty to disclose is limited to information in the
            possession of the government bringing the
            prosecution, and the duty does extend to
            exculpatory evidence in the files of police agencies of
            the government bringing the prosecution. Brady is
            not violated when the appellant knew or, with
            reasonable diligence, could have uncovered the
            evidence in question, or when the evidence was
            available to the defense from other sources.

Commonwealth v. Roney, 79 A.3d 595, 608, (Pa. 2013) (citations

omitted), cert. denied, Roney v. Pennsylvania, 135 S. Ct. 56 (2014)

      The record discloses that Detective Nieves signed M.C.D.A.’s U-Visa

application and sent it to the immigration attorney, however a copy of the

visa was not retained by the police or the Commonwealth. See PCRA Court

Opinion, 4/27/15, at 21. Because the form was not in the Commonwealth’s

possession, it was not obligated to provide it to Appellant.      See Roney,

supra. Furthermore, the fact that M.C.D.A. received a U-visa was known to

Appellant and was addressed at trial to question her motive in testifying. As

a result, Appellant has failed to show his claim has any arguable merit. In

addition, the PCRA court provided the following explanation in the alternative

as to why Appellant did not suffer any prejudice.

            Moreover, even if the Commonwealth did possess
            the U-Visa application, the failure to disclose the
            actual form used by MCDA was not prejudicial to
            Appellant because he was aware of the substance of
            the executed form.     MCDA’s U-Visa status was
            exhaustively covered at trial. Through extensive
            testimony of both MCDA and Detective Nieves at

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            trial, the jury was made aware that MCDA was not a
            citizen of the United States and that Detective Nieves
            had filled out a U-Visa application to allow MCDA to
            avoid deportation since she was the victim of a
            crime. The fact that Appellant was not in physical
            possession of a form establishing MCDA’s citizenship
            status had no prejudicial impact at trial because
            Appellant was aware, and therefore able to cross-
            examine MCDA, regarding her citizenship and any
            benefits she had received in exchange for her
            testimony. For these reasons, it is our belief that
            Appellant cannot establish that he was prejudiced in
            not receiving a copy of said application, and as such,
            his Brady claim fails.

PCRA Court Opinion, 4/27/15, at 21 (footnote omitted).       Accordingly, we

agree with the PCRA court that Appellant failed to establish any prejudice.

      In light of the foregoing, we discern no abuse of discretion or error of

law by the PCRA court in dismissing Appellant’s PCRA petition as amended.

Accordingly, we affirm the February 5, 2015 order.

      Order Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/28/2015




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