J-S26011-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MICHAEL AARON REED

                            Appellant                 No. 1044 MDA 2014


                   Appeal from the PCRA Order May 21, 2014
               In the Court of Common Pleas of Franklin County
              Criminal Division at No(s): CP-28-CR-0002248-2010


BEFORE: OTT, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY OTT, J.:                                  FILED JUNE 23, 2015

        Michael Aaron Reed appeals, pro se, from the order entered May 21,

2014, in the Franklin County Court of Common Pleas, dismissing his first

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §

9541 et seq.       Reed seeks relief from the judgment of sentence of an

aggregate nine to 18 years’ imprisonment imposed following his conviction

of two counts of robbery and one count of criminal conspiracy. 1 On appeal,

he argues both trial and PCRA counsel provided ineffective assistance. For

the reasons that follow, we affirm.

        The facts underlying Reed’s convictions are as follows.       On July 27,

2010, at approximately 9:13 p.m., two armed men entered the Blue Ridge
____________________________________________


1
    18 Pa.C.S. §§ 3701(a)(1)(ii), (a)(1)(v), and 903, respectively.
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Food Mart in Blue Ridge Summit, Pennsylvania, and demanded the clerk give

them all of the money in the cash register.2 Both men were wearing masks,

one had a gun and the other was armed with a knife.            After robbing the

store of an estimated $500 to $550 in cash, they fled in a car parked behind

the store.3 See N.T., 6/23/2011, at 45-49, 71. The robbery was captured

on the store’s video surveillance camera.

       Two witnesses, who were outside of the food mart at the time of the

robbery, saw the culprits flee in a two-door, two-tone maroon and grey car,

which they believed had the same body type as a Dodge Shadow or Spirit.

One witness, Joseph Trail, noticed the car had a Maryland license plate,

although he could not identify the plate number. See N.T., 6/23/2011, at

85, 109.

       At approximately 9:20 p.m., Jeffrey Croteau was traveling on Pen Mar

Road near Camp Louise, just over the Maryland border, when he observed a

car on the side of the road with its front end in a ditch.      Id. at 136-137.

Croteau stopped to see if the driver needed assistance and, as he

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2
  The Blue Ridge Food Mart is located close to the Pennsylvania/Maryland
border. As will be discussed infra, Reed was arrested after his car slid down
an embankment on a road in Maryland. Officers from several surrounding
jurisdictions assisted in the investigation of the robbery.
3
   The store clerk testified he believed the culprits took a “[c]ouple of
hundred dollar[ bills], couple of fifty dollar[ bills] … four or five [twenties] …
two or three [tens] … for or five [fives]” and possibly “30 to 50” one dollar
bills. N.T., 6/23/2011, at 72-73.



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approached, he noticed the driver and passenger putting on t-shirts as they

exited the car. He explained the two men “seemed like they wanted to get

the car back on the road and get moving as quickly as possible.” Id. at 137.

The passenger, later identified as Reed, asked Croteau if he could use his

cell phone to call his mother. Croteau attempted to place the call for Reed,

but the call would not go through.     Croteau then left as another vehicle

stopped to help. See id. at 137-138.

     Shayla Murray and her boyfriend were driving by the accident scene

around the same time when they stopped to help. Murray allowed Reed to

use her cell phone, and he placed two calls to his mother at 9:27 p.m.

Murray and her boyfriend were still at the scene when the police arrived.

See N.T., 6/24/2011, at 4-6, 11.

     Officer Bryan Chappell, Jr., of the Waynesboro Police Department,

responded to a radio call from the Washington Township Police to assist in

investigating an armed robbery. Officer Chappell proceeded to the food

mart and began driving around the nearby area to search for the suspects.

At approximately 9:37 p.m., he came upon an older model Dodge or

Plymouth that had slid off the embankment on Pen Mar Road, approximately

two miles from the robbery scene. The car was two-tone, maroon on top

and silver on the bottom, with a Maryland license plate, and matched the




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description of the vehicle used in the robbery.4 Officer Chappell secured the

four individuals at the scene - Reed, his co-defendant Russell Runk, as well

as, Murray, and her boyfriend Cameron Himes - until backup arrived. See

N.T., 6/23/2011, at 155-160.

        Corporal    Lloyd    Perkins,    of    the   Washington   Township   Police

Department, also responded to the armed robbery call, arriving at the food

mart at approximately 9:20 p.m.                Corporal Perkins was interviewing

witnesses at the scene when he received a radio call from Officer Chappell,

stating the officer believed he had located the suspect vehicle.         Corporal

Perkins proceeded immediately to the crash scene in Maryland, arriving at

approximately 9:39 p.m. See id. at 176-180. Corporal Perkins stated he

was “surprised because [the vehicle that had skidded off the road] was the

exact description [he] got from the witnesses at the [robbery] scene of

the vehicle.” Id. at 180-181 (emphasis supplied).

        The responding officers conducted a pat down search of Reed and

Runk.     Detective Timothy Atwell, of the Washington County Maryland

Sheriff’s Office, who was assisting at the crash scene, asked Runk if he could

search his clothing. Runk agreed, and Detective Atwell recovered $487.00,

which was kept “in a loose unorganized haphazard fashion” in his back



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4
 We note, however, that unlike the description of the suspects’ car provided
by the witnesses, Reed’s car had four doors.



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pocket.5 N.T., 6/24/2011, at 19. Thereafter, Runk and Reed were arrested.

During a search incident to the arrest, the police recovered latex gloves from

Reed.

        Detective Atwell secured the vehicle involved in the crash and later

obtained a search warrant for the vehicle.        From inside the vehicle, the

police recovered, inter alia, a pair of black camouflage pants, a black

sweatshirt, a brown t-shirt, two pairs of sports gloves, a small pellet clip to

an air gun, and a registration card indicating the vehicle was registered to

Reed.6    See id. at 32-34.       One pair of the gloves recovered matched the

gloves on one of the suspects as seen in the surveillance video. No weapons

were ever recovered.

        Reed and his co-defendant Runk were tried before a jury in June of

2011. On June 24, 2011, the jury found both co-defendants guilty of two

counts of robbery and one count of conspiracy. On August 23, 2011, Reed

was sentenced to 60 to 120 months’ imprisonment for one count of robbery,

and a consecutive 48 to 96 months’ incarceration for the conspiracy

conviction. The court imposed a concurrent sentence of 18 to 36 months’
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5
 The bills recovered from Runk were “two one hundred dollar bills, four fifty
dollar bills, one twenty dollar bill, twelve five dollar bills, [and] seven one
dollar bills.” Id. at 20.
6
  It appears, from the surveillance video, that one of the masked robbers
wore jeans and a black and white long-sleeved shirt, while the other wore
camouflage pants and a black hoodie sweatshirt.




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imprisonment for the second robbery conviction. Reed did not file a direct

appeal.7

       On September 10, 2012, Reed filed a timely pro se PCRA petition, in

which he raised, inter alia, a challenge to the sufficiency and weight of the

evidence, and trial counsel’s ineffectiveness for failing to:   (1) object to

evidence and impeach witnesses at trial; (2) conduct a more thorough

pretrial investigation, including an investigation of a similar robbery that

occurred two weeks after the one in question; and (3) file a direct appeal.8

Brian O. Williams, Esq. was appointed as counsel to assist Reed in litigating

his PCRA petition.      After being granted two extensions of time to file an

amended petition, Williams filed a petition to withdraw as counsel and

accompanying Turner/Finley9 “no merit” letter on August 2, 2013.

However, on August 20, 2013, the PCRA court entered an order directing

Williams to address Reed’s claim that trial counsel failed to file a requested
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7
 Runk’s judgment of sentence was affirmed by a panel of this Court. See
Commonwealth v. Runk, ___ A.3d ___, No. 1621 MDA 2014 (Pa. Super.
May 28, 2015) (unpublished memorandum).
8
   The other issues Reed raised in his pro se PCRA petition have been
abandoned on appeal. Specifically, he argued (1) the initiation of his
criminal case by the filing of an information, rather than by a grand jury
indictment, was unconstitutional; (2) the Legislature had no authority to
enact the Pennsylvania Crimes Code; and (3) the restitution order in his
sentence was erroneous. See Motion for Post Conviction Relief, 9/10/2012.
9
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).




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direct appeal. Thereafter, on September 9, 2013, Williams filed an amended

“no merit” letter, contending, once again, that Reed’s PCRA claims were

meritless, and concluding, specifically, that Reed never asked trial counsel to

file a direct appeal.     See Amended No Merit Letter, 9/9/2013, at

unnumbered p. 4.

      On October 15, 2013, the PCRA court entered an opinion and order

granting counsel’s petition to withdraw, and dismissing Reed’s PCRA petition

without a hearing. However, the court entered an amended order eight days

later, to comply with the requirements of Pa.R.Crim.P. 907, and provide

Reed with the opportunity to respond to the court’s proposed dismissal of his

petition. Reed originally filed a pro se response to the court’s first order on

October 30, 2013, in which he reiterated his prior claims of trial counsel’s

ineffectiveness, as well as asserted PCRA counsel’s ineffectiveness for failing

to raise additional claims. Specifically, Reed claimed he asked PCRA counsel

to challenge trial counsel’s ineffectiveness for failing to file a suppression

motion, contesting the legality of the police’s arrest and subsequent search

of his person. After the PCRA court entered its amended order, Reed filed a

second pro se response, in which he incorporated by reference his prior

filing. Thereafter, on December 20, 2013, the trial court entered an order,

acknowledging that prior PCRA counsel’s “no merit” letter “improperly

addressed the issue of trial counsel’s failure to file a direct appeal.” Order,

12/20/2013.    Accordingly, the court appointed Kristin Nicklas, Esq., to

represent Reed at a February 13, 2014, hearing on the issue. See id.

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        The hearing was continued until April 28, 2014, and, following the

hearing, on May 22, 2014, the PCRA court entered an order and opinion

dismissing Reed’s PCRA petition.10               Reed filed a pro se motion for

reconsideration, which the PCRA court declined to consider since Reed was,

at that time, represented by counsel. On June 13, 2014, PCRA counsel filed

a motion to amend the PCRA petition and requested a hearing, stating that

she had obtained new evidence to support Reed’s claim that he asked

counsel to file a direct appeal.       See Motion to Amend PCRA and Schedule

Hearing, 6/12/2014. Nonetheless, the PCRA court denied counsel’s motion,

and this timely appeal followed.

        On June 30, 2014, the PCRA court directed Reed to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

On July 14, 2014, however, PCRA counsel filed a motion to withdraw and

requested a Grazier11 hearing because Reed had informed her he wanted to

proceed pro se. At the conclusion of a Grazier hearing on August 15, 2014,

the PCRA court determined Reed “made a knowing, intelligent, and voluntary

waiver of his right to counsel” and granted him permission to proceed pro

se. Order, 8/15/2014. See also N.T., 8/15/2014. Accordingly, on August



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10
  The only issue addressed the April 28, 2014, hearing was whether trial
counsel was ineffective for failing to file a direct appeal.
11
     Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).



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18, 2014, Reed filed a pro se concise statement in response to the PCRA

court’s June 30, 2014, order.

      On appeal, Reed raises the following four layered ineffectiveness

claims.     He asserts PCRA counsel was ineffective for failing to raise or

properly argue the ineffectiveness of trial counsel for (1) failing to file a

pretrial suppression motion; (2) failing to impeach witnesses, prepare for

trial, and object to evidence; (3) failing to investigate and present evidence

of third party culpability; and (4) failing to object to the admission of

Commonwealth’s Exhibit #4.

      When reviewing an order dismissing a PCRA petition, we must

determine whether the PCRA court’s findings of fact are supported by the

record,     and   whether    its   legal    conclusions    are   free   from     error.

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “Great deference

is granted to the findings of the PCRA court, and these findings will not be

disturbed    unless   they   have     no    support   in   the   certified     record.”

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citation

omitted).

      Where, as here, the only claims raised on appeal challenge the

effectiveness of counsel, our review is well-settled:

      We begin our analysis of ineffectiveness claims with the
      presumption that counsel is effective.       To prevail on his
      ineffectiveness claims, Appellant must plead and prove, by a
      preponderance of the evidence, three elements: (1) the
      underlying legal claim has arguable merit; (2) counsel had no
      reasonable basis for his action or inaction; and (3) Appellant
      suffered prejudice because of counsel’s action or inaction. With

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      regard to the second, i.e., the “reasonable basis” prong, we will
      conclude that counsel’s chosen strategy lacked a reasonable
      basis only if Appellant proves that “an alternative not chosen
      offered a potential for success substantially greater than the
      course actually pursued.”       To establish the third, i.e., the
      prejudice prong, Appellant must show 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. Spotz, 18 A.3d 244, 259-260 (Pa. 2011) (internal

citations omitted). “Failure to establish any prong of the test will defeat an

ineffectiveness claim.”   Commonwealth v. Keaton, 45 A.3d 1050, 1061

(Pa. 2012) (citations omitted).

      Moreover,

      [w]here the defendant asserts a layered ineffectiveness claim he
      must properly argue each prong of the three-prong
      ineffectiveness test for each separate attorney.

      Layered claims of ineffectiveness “are not wholly distinct from
      the underlying claims[,]” because “proof of the underlying claim
      is an essential element of the derivative ineffectiveness claim[.]”
      “In determining a layered claim of ineffectiveness, the critical
      inquiry is whether the first attorney that the defendant asserts
      was ineffective did, in fact, render ineffective assistance of
      counsel. If that attorney was effective, then subsequent counsel
      cannot be deemed ineffective for failing to raise the underlying
      issue.”

Commonwealth v. Rykard, 55 A.3d 1177, 1190 (Pa. Super. 2012)

(internal citations omitted), appeal denied, 64 A.3d 631 (Pa. 2013).

      Reed first challenges PCRA counsel’s ineffectiveness for failing to

assert trial counsel’s ineffectiveness for failing to file a pretrial suppression

motion.   He also contends the PCRA court erred in failing to direct PCRA

counsel to address this claim.      Specifically, Reed contends trial counsel



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should have challenged the legality of his vehicle stop and arrest, as well as

the searches of his person, his co-defendant, and his vehicle. In support of

these claims, Reed asserts (1) his vehicle did not match the description of

the suspect vehicle; (2) once he was detained, the officers took no action to

confirm or dispel their suspicion that he was involved in the robbery for

more than 45 minutes; (3) he was not arrested for another two and one-

half hours; (4) the “pat down” of Runk exceeded a valid Terry12 stop; (5)

Runk’s consent to search was not voluntarily given; and (7) the probable

cause affidavit supporting the search warrant for his vehicle contained false

information “contrived” by two of the investigating officers. See Reed’s Brief

at 11-26.

        Preliminarily, we note “a petitioner can preserve [a challenge to PCRA

counsel’s representation] by including that claim in his Rule 907 response or

raising     the   issue     while     the      PCRA   court   retains   jurisdiction.”

Commonwealth v. Rigg, 84 A.3d 1080, 1085 (Pa. Super. 2014).                    Here,

Reed properly preserved this issue by including it in his October 30, 2013,

response to the PCRA court’s Rule 907 notice.             See Reed’s Objections to

Opinion and Order of Court, 10/30/2013, at 11-13.

        The PCRA court addressed this claim, summarily, as follows:



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12
     Terry v. Ohio, 392 U.S. 1 (1968).




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     [W]e conclude that it was reasonable for counsel to forgo a
     suppression motion on this issue, and even if the issue had been
     raised, the outcome of this case would not likely have been
     different. Despite allegations of an unlawful arrest and search of
     the Defendants, the evidence presented at trial by various
     officers was consistent with a valid stop, search, and eventual
     arrest.

PCRA Court Opinion, 9/19/2014, at 8. We agree.

     First, we emphasize that, contrary to Reed’s characterization, this case

did not involve a traditional vehicle stop, since Reed’s car was stuck in an

embankment when Officer Chappell drove by the scene. The officer stopped

to investigate because the car matched the description of the one involved in

the robbery, and had crashed not far from the robbery site.     Under these

circumstances, Officer Chappell had reasonable suspicion to detain Reed and

Runk so that he could determine whether they were involved in the robbery.

Moreover, because the officer was informed the suspects were armed, he

had sufficient justification to perform a pat-down for weapons.           See

Commonwealth v. Guess, 53 A.3d 895, 901 (Pa. Super. 2012) (“In order

to justify a pat-down search, or Terry stop, the officer must have

reasonable suspicion, under the totality of the circumstances, that criminal

activity is afoot and that ‘the individual whose suspicious behavior he is

investigating at close range is armed and presently dangerous to the officer

or to others.’”) (footnote omitted), appeal denied, 67 A.3d 794 (Pa. 2013).

     Thereafter, Runk gave Detective Atwell consent to search his person,

and the detective recovered a large amount of cash similar to that taken

during the robbery.    Reed cannot challenge the voluntariness of Runk’s


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consent because he had no “expectation of privacy in the situs from which

the contraband was seized,” that is, Runk’s back pocket. Commonwealth

v. Hawkins, 718 A.2d 265, 268 (Pa. 1998). Furthermore, with regard to

Reed’s complaints regarding the time it took investigators to formally place

him under arrest, we find he has failed to assert how he was prejudiced.

We remind Reed that this case involved an armed robbery in a small town,

and the suspects fleeing over the state line into another jurisdiction.

Assuming, arguendo, Reed’s account is accurate, a two and one-half hour

delay is not unreasonable under the circumstances presented herein.

        Lastly, Reed’s challenge to the search warrant executed on his vehicle

is also unavailing.        Although he claims the warrant contained incorrect

information, namely that witnesses “described the robbery perpetrators as

wearing camo pants” when none of the witnesses provided such a

description,13 we note that a review of the surveillance videotape from the

mini-market clearly shows one of the suspects wearing camouflage pants.

Further, although it is unclear if the officers actually viewed the surveillance

videotape     before    applying     for   the      search   warrant,   we   note   that

“misstatements of fact will invalidate a search warrant and require

suppression of the fruits of the search only if the misstatements of fact are

deliberate and material.”           Commonwealth v. Tucker, 384 A.2d 938,


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13
     Reed’s Brief at 24.



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941 (Pa. Super. 1978) (emphasis supplied).         Moreover, “[t]he inclusion of

false evidence will not invalidate a search warrant if the warrant is based

upon other information which is valid and sufficient to constitute probable

cause.” Id. Here, there was sufficient probable cause to justify the search

of Reed’s vehicle even if the information regarding the camouflage pants was

not included.     See Application/Affidavit for a Search and Seizure Warrant,

7/28/2010 at 2-3 (averring (1) vehicle matched the description of car in

which robbery suspects fled; (2) witnesses had stated suspects were armed;

(3) large amount of cash, consistent with what was taken during the

robbery, was recovered from co-defendant’s back pants pocket; and (4)

disabled vehicle was within two miles of robbery scene, and in an area

consistent with direct of travel of suspect vehicle as recounted by

witnesses). Therefore, we agree with the conclusion of the PCRA court that

trial counsel had a reasonable basis for not filing a meritless suppression

motion. Accordingly, no relief is warranted on this claim.

       Reed’s next layered ineffectiveness claim challenges trial counsel’s

ineffectiveness in failing to adequately prepare for trial.14   He also asserts

PCRA counsel neglected to examine the record, independently, and only

reviewed those specific ineffectiveness claims Reed raised in his pro se


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14
  Under this rubric, Reed claims that he “has discovered well over 100
examples of trial counsel’s ineffectiveness both pretrial and at trial[.]”
Reed’s Brief at 31 (emphasis in original).



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petition.   Additionally, Reed argues PCRA counsel misaddressed the claims

he did review.

       Preliminarily, we note that many of these trial counsel ineffectiveness

claims were not included in either Reed’s pro se petition, or his response to

the PCRA court’s Rule 907 notice. Therefore, those issues, are waived for

our review.15 See Rigg, supra.

       The remainder of Reed’s claims challenge trial counsel’s failure to

“closely examine the material ‘evidence’ presented by the Commonwealth

and thereafter carefully articulate the differences between such ‘evidence’

and items connected with the crime for the jury’s understanding[.]” Reed’s

Brief at 36.      Essentially, Reed asserts the Commonwealth attempted to

“‘bamboozle’ and confuse the jury” with evidence that was irrelevant to the

robbery.    Id.   In particular, Reed claims the amount of money recovered

from Runk did not match the amount reported stolen, the color of Reed’s car

was different from that described by the witnesses, and the clothing

recovered from his car did not match the items worn by the perpetrators.



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15
   The waived issues include Reed’s contentions that trial counsel failed to:
(1) present evidence that Reed’s vehicle could not have been involved in the
robbery based on the time frame of the events and distance from the crime
scene; (2) object to the Commonwealth’s closing argument; (3) obtain a
daily report of the lottery sales for that day to determine that exact amount
of money stolen; and (4) object to Washington Township Police Sergeant
Vernon Ashway’s testimony that he conducted internet research of air guns.
See Reed’s Brief at 31-34, 35-36, 42-43, 51-52.



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      These claims, however, were raised in Reed’s pro se petition, and

addressed by the PCRA court in its October 15, 2013, opinion.        See PCRA

Court Opinion, 10/15/2013, at 6-8 (finding (1) trial counsel “thoroughly

cross-examined the victim about the amount of money taken and the

inconsistencies between his trial testimony and the preliminary hearing

testimony[;]” (2) although counsel did not directly cross-examine the

witness regarding their description of car color as maroon, when Reed’s car

was, in fact, bright red, the PCRA court determined it was “entirely

reasonable” for the car to “appear darker at night” and counsel did not need

to impeach witnesses “to distinguish between two allegedly different shades

of red[;]” and (3) both trial counsel and co-defendant’s counsel objected to

several items of clothing recovered from Reed’s car). Because we find the

PCRA court sufficiently addressed and properly disposed of these issues in its

prior opinion, we rest on its well-reasoned basis.    Accordingly, no relief is

warranted.

      Reed also presents a layered ineffectiveness claim focused on trial

counsel’s purported failure to “investigate and present evidence of third

party culpability.” Reed’s Brief at 52. Specifically, Reed claims:

      he had discovered pretrial that another robbery in the same
      general vicinity and within a matter of a couple of weeks had
      occurred after the robbery at bar; that [the robbery] had been
      committed by two teenaged males, who were armed and
      wearing masks; and who fled the scene in a red car.

Id. He asserts he advised trial counsel of “this other incident, but counsel

did nothing to make further inquiry into it[.]” Id.

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      Reed, however, has failed to provide any explanation in his petition or

his appellate brief to support his claim that this “other incident” actually

occurred, or how he learned about this other crime, nor has he provided

sufficient details for this Court to determine whether the culprits could have

committed the robbery in question. Accordingly, because Reed cannot

demonstrate he was prejudiced by counsel’s failure to present evidence of

this “other incident” to the jury, assuming such evidence did, in fact, exist,

we conclude he is entitled to no relief.

      Reed’s final layered ineffectiveness claim asserts trial counsel’s

ineffectiveness for failing to object to the admission of Commonwealth’s

exhibit #4, which “contains ALL of the police reports composed in this case

during investigations[.]”   Reed’s Brief at 54.   Because this issue was not

raised in either Reed’s pro se PCRA petition, or his response to the PCRA

court’s Rule 907 notice, it is waived for our review. See Rigg, supra.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/23/2015




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