J-S05006-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            : IN THE SUPERIOR COURT OF
                                         :      PENNSYLVANIA
                   Appellee              :
                                         :
             v.                          :
                                         :
KEITH WOOD,                              :
                                         :
                   Appellant             : No. 1635 WDA 2013

              Appeal from the PCRA Order September 24, 2013,
                  Court of Common Pleas, Allegheny County,
             Criminal Division at No(s): CP-02-CR-0002862-2007,
             CP-02-CR-0012474-2007, CP-02-CR-0012475-2007
                         and CP-02-CR-0012477-2007

BEFORE: DONOHUE, SHOGAN and STABILE, JJ.

MEMORANDUM BY DONOHUE, J.:                       FILED FEBRUARY 4, 2015

        Keith Wood (“Wood”) appeals from the order of court dismissing his

pro se petition filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541 – 9546. We affirm.

        In 2008, Wood was convicted of multiple counts of burglary, rape,

involuntary deviate sexual assault, aggravated assault, indecent assault,

aggravated indecent assault, terroristic threats, theft by unlawful taking and

one count each of robbery and indecent exposure.           These convictions

stemmed from incidents that occurred in various eastern neighborhoods of

Pittsburgh during 2000 and 2001, in which Wood broke into the apartments

of four women, raped and assaulted them, and in some instances, stole from

them.    Although the incidents occurred in 2000 and 2001, Wood was not
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charged with the crimes until 2007, after his DNA was matched to seminal

fluids recovered from the victims. He was sentenced to an aggregate term of

eighty to 160 years of imprisonment. This Court affirmed his judgment of

sentence on January 25, 2011 and the Supreme Court of Pennsylvania

denied his petition for allowance of appeal on August 10, 2011.

      On May 21, 2012, Wood filed a pro se PCRA petition. The PCRA court

appointed counsel, who subsequently filed a petition seeking permission to

withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1998),

and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988),

addressing the more than twenty-five issues that Wood sought to raise. The

PCRA court sent notice of its intent to dismiss Wood’s PCRA petition without

a hearing pursuant to Pa.R.Crim.P. 907 (“Rule 907”) and permitted counsel

to withdraw.   Wood filed a response to the Rule 907 notice in which he

raised the additional claims of a violation of a right to pre-arrest counsel and

“abuse of authority/power/discrition [sic]”; asserted that there is merit to his

claims which he will prove at a hearing; and requested funds for an “expert

court appointed witness,” an investigation to “prove facts to all claims”, and

other appointed counsel to “properly amend” his PCRA petition. Objection to

Proposed Intention to Dismiss, 9/12/13, at 2-3. After considering the




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objections raised by Wood, the PCRA court dismissed his petition.          PCRA

Court Order, 9/24/13. This timely appeal followed.1

      We begin by noting that in his statement of questions involved, Wood

has listed thirty-six issues.   See Wood’s Brief at 17-23.     However, in the

argument section of his brief, we discern discussion of only six distinct

issues.     Our law provides that an issue included in the statement of

questions involved is waived when the appellant fails to develop an

argument in support thereof.      Commonwealth v. Long, 753 A.2d 272,

278-279 (Pa. Super. 2000). Accordingly, we will confine our review to the

issues for which Wood has provided an argument. Furthermore, only five of

these issues were included in, or fairly suggested by, Wood’s Rule 1925(b)

statement; thus, our review is further limited to only these five issues. See

Pa.R.A.P.    1925(b)(4)(vii);   Commonwealth        v.   Webbs     Super    Gro

Products, Inc., 2 A.3d 591, 594 (Pa. Super. 2010) (“Any issues not raised

in a Pa.R.A.P. 1925(b) statement will be waived.”).2


1
 The PCRA court ordered Wood to file a statement of matters complained of
on appeal pursuant to Pa.R.A.P. 1925(b) (“Rule 1925(b) statement”). Wood
complied, raising fifteen issues in his Rule 1925(b) statement.
2
  We note that the Rules of Appellate Procedure also provide that “[t]he
argument [in an appellant’s brief] shall be divided into as many parts as
there are questions to be argued; and shall have at the head of each part--in
distinctive type or in type distinctively displayed--the particular point treated
therein, followed by such discussion and citation of authorities as are
deemed pertinent.” Pa.R.A.P. 2119(a). Wood has violated this rule, as his
argument is not divided into distinct parts, but instead is seven and a half
uninterrupted pages, some of which include duplication of whole paragraphs.
This Court is empowered to quash an appeal when appellant’s failure to


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      “In reviewing the denial of PCRA relief, we examine whether the PCRA

court's determination is supported by the record and free of legal error. The

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

trial level.”    Commonwealth. v. Miller, 102 A.3d 988, 992 (Pa. Super.

2014) (internal citation omitted).

      Section 9543(a)(2), which enumerates that errors upon which a PCRA

claim may be based, provides as follows:

                (a) General rule.--To be eligible for relief under
                this subchapter, the petitioner must plead and prove
                by a preponderance of the evidence all of the
                following:
                                         ***
                (2) That the conviction or sentence resulted from
                one or more of the following:

                  (i) A violation of the Constitution of this
                  Commonwealth or the Constitution or laws of
                  the United States 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.

                  (ii) Ineffective 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.




conform to the briefing requirements is substantial. Pa.R.A.P. 2101. While
Wood’s briefing defects complicate our review, they do not substantially
handicap it, and so we will not quash his appeal.


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                (iii) A plea of guilty unlawfully induced where
                the circumstances make it likely that the
                inducement caused the petitioner to plead
                guilty and the petitioner is innocent.

                (iv) The improper obstruction by government
                officials of the petitioner's right of appeal
                where a meritorious appealable issue existed
                and was properly preserved in the trial court.

                (v) Deleted.

                (vi) The unavailability at the time of trial of
                exculpatory evidence that has subsequently
                become available and would have changed the
                outcome of the trial if it had been introduced.

                (vii) The imposition of a sentence greater than
                the lawful maximum.

                (viii) A proceeding    in   a   tribunal   without
                jurisdiction.

42 Pa.C.S.A. § 9543(a)(2). Furthermore,

             [t]o be entitled to PCRA relief, appellant must
             establish, by a preponderance of the evidence, that
             his conviction or sentence resulted from one or more
             of the enumerated errors in 42 Pa.C.S. § 9543(a)(2),
             his claims have not been previously litigated or
             waived, and the failure to litigate the issue prior to
             or during trial ... or on direct appeal could not have
             been the result of any rational, strategic or tactical
             decision by counsel.

Commonwealth v. Robinson, 82 A.3d 998, 1005 (Pa. 2013).

        In his first issue, Wood claims that he suffered a Batson3 violation.

Woods argues that he “was forced to pick from a panel of jurors” that was



3
    Batson v. Kentucky, 476 U.S. 79 (1986).


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“made up of mostly Caucasian people” and that “there were not even

enough African Americans to interview for [Wood] to have had more than

one African American jurors [sic] on the jury.”     Wood’s Brief at 28.     He

claims that his equal protection rights were violated by the composition of

the juror pool, and alleges that transcripts from the voir dire proceedings

support his claim.   Id.    We do not reach the merits of this issue.    Wood

could have raised this issue on direct appeal but failed to do so; accordingly,

it has been waived. Robinson, 82 A.3d at 1005 (holding that in the context

of a PCRA proceeding, an issue is waived if appellant could have raised it but

failed to do so on direct appeal).

      The balance of Wood’s issues involve claims of trial counsel’s

ineffectiveness. Specifically, Wood argues that trial counsel was ineffective

for failing to adequately impeach the testimony of Thomas C. Meyers, who

testified that he matched Wood’s DNA with DNA recovered from the victims’

apartments. Wood contends that trial counsel should have impeached Mr.

Meyers with a laboratory report, signed by Pamela Call, that indicates no

DNA match was made. Wood’s Brief at 29-30.

      To prove ineffective assistance of his trial counsel, an appellant must

show (i) that the underlying claim is of arguable merit; (ii) that counsel had

no reasonable basis designed to effectuate the appellant’s interests for the

act or omission in question; and (iii) that counsel's ineffectiveness actually

prejudiced the appellant.    Commonwealth v. Moser, 921 A.2d 526, 531



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(Pa. Super. 2007). The failure to meet any prong of this test requires that

the claim be dismissed. Id.

       Following our review of the record, we conclude that Wood has failed

to prove that the claim underlying this allegation of ineffectiveness has

merit. To begin, there is no laboratory report from Pamela Call indicating

that Wood’s DNA did not match DNA recovered from the victims.         To the

contrary, the only report bearing Pamela Call’s signature in the record

(which Wood attached to his PCRA petition) indicates that Wood’s DNA

matched DNA recovered from a semen stain on one of the victim’s scarves.

PCRA Petition, 5/21/12, at Exhibit E. As there is no merit to this claim, the

overriding allegation of ineffectiveness cannot succeed. Moser, 921 A.2d at

531.

       Wood also argues that the evidence establishes that his DNA was not

found on the victims M.T., A.U, T.S. and A.O., and therefore trial counsel

was ineffective for failing to make Mr. Meyers explain how Wood’s DNA could

have been found on objects in their apartments when it was not found on

their bodies. Wood’s Brief at 30-33.

       First, the evidence establishes that DNA was recovered from A.U. and

T.S. N.T., 6/11/08, at 261, 263. Thus, this argument fails with regard to

these victims.   Second, Wood has failed to establish how trial counsel’s

failure to cross-examine Mr. Meyers on the fact that DNA was not found on

the bodies of the other victims, M.T. and A.O., caused him prejudice. The



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evidence reveals that there was no question that DNA was not recovered

from the bodies of these particular victims.    At trial, Robert Askew, the

supervisor of the serology and DNA division of the Office of the Medical

Examiner of Allegheny County, testified that with regard to M.T., no sperm

was recovered from the vaginal and anal swabs, but a green pillowcase from

M.T.’s bedroom was tested and it revealed a sufficient amount of seminal

fluid for DNA testing. Id. at 269-70. Concerning A.O., Mr. Askew testified

that some seminal fluid was recovered from her rectal swab, but that it was

of an insufficient amount to allow DNA testing. Id. at 264-65. He further

testified that a scarf from the scene of the attack was tested and yielded

enough seminal fluid to permit DNA testing. Id. at 266-67. Thus, sources

of DNA were recovered from these crime scenes; it matters not whether the

sample was recovered from the victims’ bodies.     We can see no prejudice

caused by the fact that trial counsel did not press Mr. Meyers to explain how

a DNA profile could have been made when no DNA was recovered from the

victims’ bodies. To the contrary; such a line of questioning could have had

the effect of overemphasizing the fact that Wood’s DNA was found in the

victims’ homes. Thus, having failed to prove that he was prejudiced by the

alleged ineffectiveness, Wood is not entitled to relief. Moser, 921 A.2d at

531.

       In sum, of the claims that Wood properly preserved and presented to

this Court, we have concluded that none has merit. Accordingly, we find no



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error in the PCRA court’s determination to dismiss Wood’s petition. We also

note that after filing his appellate brief, Wood filed a motion with this Court

seeking the appointment of counsel to amend his brief.         This motion is

denied.

      Order affirmed. Motion for Court Appointed Counsel denied.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/4/2015




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