J-S08008-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                    Appellee              :
                                          :
            v.                            :
                                          :
KIRK N. DUNSON,                           :
                                          :
                    Appellant             : No. 847 EDA 2014

                 Appeal from the PCRA Order February 21, 2014,
                   Court of Common Pleas, Philadelphia County,
                 Criminal Division at No. CP-51-CR-0812071-2004

BEFORE: DONOHUE, WECHT and JENKINS, JJ.

MEMORANDUM BY DONOHUE, J.:                      FILED FEBRUARY 13, 2015

      Kirk N. Dunson (“Dunson”) 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. Following our review, we affirm.

      In 2006, Dunson was convicted of conspiracy, possession of an

instrument of crime, carrying a firearm without a license and two counts of

robbery.   He was sentenced to an aggregate term of twenty-five to fifty

years of imprisonment. His counsel filed an untimely post-sentence motion,

which resulted in this Court quashing his direct appeal as untimely.

Subsequently, Dunson’s direct appeal rights were reinstated. In his brief on

appeal, however, Dunson raised two issues that he had not raised before the

trial court. This Court found the issues waived and did not award Dunson

relief on direct appeal.
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      On May 26, 2011, Dunson filed a timely pro se PCRA petition, and

counsel was appointed.      Rather than filing an amended PCRA petition,

Counsel filed a motion seeking to withdraw from representation pursuant to

Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1998), and

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

a pro se response to Counsel’s Tuner/Finley motion. On January 10, 2014,

the PCRA court gave notice pursuant to Pa.R.Crim.P. 907 of its intent to

dismiss Dunson’s PCRA petition.     On February 21, 2014, it concluded that

the issues Dunson sought to raise were without merit and dismissed the

petition. This timely appeal follows.

      Dunson presents the following issues for our review:

            1. Did PCRA court err in denying [Dunson’s] [PCRA]
               petition because [of]:

            a. A    violation   of   the   Constitution  of  this
               Commonwealth or the Constitution or law 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.

            b. 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.

            c. Trial court’s abuse of sentencing discretion.

            d. Illegal sentence.

            e. Post conviction counsel’s ineffectiveness.



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Dunson’s Brief at 5.1

      As we consider these claims, we recognize that “[t]his Court's

standard of review regarding an order denying a petition under the PCRA is

whether the determination of the PCRA court is supported by the evidence of

record and is free of legal error. The PCRA court's findings will not be

disturbed unless there is no support for the findings in the certified record.”

Commonwealth v. Walls, 993 A.2d 289, 294-95 (Pa. Super. 2010)

(internal citation omitted).

      We are also always cognizant that in order to be entitled to relief

under the PCRA, a petitioner first must establish that his conviction or

sentence resulted from one or more of the errors found in 42 Pa.C.S.A.

§ 9543(a)(2). Commonwealth v. Keaton, 45 A.3d 1050, 1060 (Pa. 2012).

Additionally, the petitioner must establish that his claims have not been

previously litigated or waived. Id. In the context of the PCRA, an issue is

deemed previously litigated if the highest appellate court in which the

appellant could have had review as a matter of right has ruled on the merits

of the issue and deemed waived if appellant could have raised it but failed to

do so before trial, at trial, on appeal or in a prior PCRA proceeding.

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

      Section 9543(a)(2) provides as follows:


1
  We have reordered the last two issues presented by Dunson for ease of
discussion.


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          (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.

              (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.




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                (viii) A proceeding    in   a   tribunal   without
                jurisdiction.

42 Pa.C.S.A. § 9543(a)(2).

      The substance of Dunson’s first issue, which he frames as a claim of

constitutional violation, is that the evidence was insufficient to support his

robbery conviction relating to one of the victims, Nibullah Kakar. Dunson’s

Brief at 8-9.       This claim could have been raised on direct appeal.

Accordingly, this issue is waived. Robinson, 82 A.3d at 1005.

      Next, Dunson argues that trial counsel was ineffective for failing to

seek a judgment of acquittal on the robbery charge relating to Mr. Kakar.

Dunson’s Brief at 10. Dunson did not include this issue in his PCRA petition,

and so it cannot be raised now on appeal.          Commonwealth v. Jones,

815 A.2d 598, 607 (Pa. 2002) (holding that issues not raised in the PCRA

court are waived and cannot be raised for the first time on appeal);

Pa.R.A.P. 302(a).

      In his third issue, Dunson argues that trial counsel was ineffective for

failing to “object to the trial [court’s] abuse of sentencing discretion” at the

time of sentencing or in a timely post-sentence motion. Dunson’s Brief at

11. 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




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

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

the claim be dismissed. Id.

      It is well established that

            [s]entencing is a matter vested in the sound
            discretion of the sentencing judge, and a sentence
            will not be disturbed on appeal absent a manifest
            abuse of discretion. An abuse of discretion is more
            than just an error in judgment and, on appeal, the
            trial court will not be found to have abused its
            discretion unless the record discloses that the
            judgment exercised was manifestly unreasonable, or
            the result of partiality, prejudice, bias, or ill-will.
            More specifically, 42 Pa.C.S.A. § 9721(b) offers the
            following guidance to the trial court's sentencing
            determination: “[T]he sentence imposed should call
            for confinement that is consistent with the protection
            of the public, the gravity of the offense as it relates
            to the impact on the life of the victim and on the
            community, and the rehabilitative needs of the
            defendant.” 42 Pa.C.S.A. § 9721(b). Thus, under
            42 Pa.C.S.A. § 9721(b), a sentencing court must
            formulate a sentence individualized to that particular
            case and that particular defendant.

Commonwealth v. Clarke, 70 A.3d 1281, 1287 (Pa. Super. 2013) (internal

citations omitted).

      Addressing this claim, the trial court noted that it sentenced Dunson

well within the statutory maximum and that at the time of sentencing, it

gave a lengthy explanation for the sentence which took into account the

individual circumstances of the case, the pre-sentence investigative report

and Dunson’s mental health evaluation. Trial Court Opinion, 6/9/14, at 9.

The trial court’s explanation at sentencing reveals that it considered the


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factors contained in 42 Pa.C.S.A. § 9721(b), and that the sentence was

clearly individualized and tailored to Dunson.     See id. at 10-11. The trial

court considered all of the factors it was required to, and it would not have

altered the sentence if a timely objection or motion for reconsideration had

been made.       As Dunson has failed to establish that the failure of his trial

counsel to timely challenge the discretionary aspects of his sentence caused

him prejudice, his claim fails. Moser, 921 A.2d at 531.

      Similarly, in his next issue, Dunson claims that the trial court abused

its discretion when imposing his sentence.          Dunson’s Brief at 11-13.

“Requests for relief with respect to the discretionary aspects of sentence are

not cognizable in PCRA proceedings.”         Commonwealth v. Wrecks, 934

A.2d 1287, 1289 (Pa. Super. 2007).        Accordingly, this claim cannot afford

Dunson relief.

      Claims alleging that a sentence is illegal are cognizable under the

PCRA, 42 Pa.C.S.A. § 9543(a)(2)(vii), and that is how Dunson frames his

next claim.      However, a close reading of his claim reveals that Dunson

argues that his sentence is illegal because the trial court sentenced him in

the aggravated range of the sentencing guidelines and ordered the

sentences to run consecutively.      Dunson’s Brief at 15.    These arguments

implicate the discretionary aspects of his sentence, see Commonwealth v.

Lloyd, 878 A.2d 867, 873 (Pa. 2005); Commonwealth v. Hyland, 875

A.2d 1175, 1183 (Pa. Super. 2005), and so they are not cognizable.



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      Dunson also alleges, however, that his sentence is illegal because the

trial court “failed to merge sentences where convictions arose from one

criminal episode and were lessor [sic] included offenses[.]” Dunson’s Brief

at 15.   A failure to merge sentences does implicate the legality of a

sentence.     See Commonwealth v. Williams, 920 A.2d 887, 888

(Pa. Super. 2007). However, Dunson does not identify which convictions he

believes should have merged or otherwise develop this claim in any way.

The Rules of Appellate Procedure require that appellants adequately develop

each issue raised with discussion of pertinent facts and pertinent authority.

See Pa.R.A.P. 2119. It is not this Court’s responsibility to comb through the

record   seeking   the   factual   underpinnings   of   an   appellant’s   claim.

Commonwealth v. Mulholland, 702 A.2d 1027, 1034 n.5 (Pa. 1997).

Further, this Court will not become the counsel for an appellant and develop

arguments on an appellant’s behalf. Commonwealth v. Gould, 912 A.2d

869, 873 (Pa. Super. 2006). Accordingly, because Dunson has utterly failed

to develop this issue in any way, we find it waived.2



2
   In his argument on this issue, Dunson twice states that unidentified
sentences should have merged simply because the convictions arose from
one criminal episode, but only once states that merger was appropriate
because they were also lesser included offenses. We note that to the extent
that Dunson believes sentences should have merged simply because they
arose from the same incident, he is mistaken. Merger is appropriate only
when “two distinct facts are present: (1) the crimes arise from a single
criminal act; and (2) all of the statutory elements of one of the offenses are
included in the statutory elements of the other.” Commonwealth v.
Tanner, 61 A.3d 1043, 1046 (Pa. Super. 2013).


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      In his final issue, Dunson argues that PCRA counsel was ineffective for

failing to raise allegations of trial counsel’s ineffectiveness for not seeking a

judgment of acquittal on the robbery charge relating to Mr. Kakar, failing to

timely challenge the discretionary aspects of his sentence, and failing to

raise the issue of merger of sentences before the trial court. Dunson’s Brief

at 14.   Dunson fails to address, much less satisfactorily prove, any of the

three elements of standard for ineffective assistance of counsel claims as set

forth in connection with his third issue above. His entire argument on this

issue is one paragraph of bald allegations.      Again, we will not comb the

record on an appellant’s behalf and we may not develop arguments on an

appellant’s behalf. Mulholland, 702 at 1034 n.5; Gould, 912 at 873. As

Dunson has failed to establish any of the elements of the relevant test, his

claim fails.

      Having found no merit to Dunson’s claims on appeal, we affirm the

PCRA court’s ruling.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/13/2015




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