J-S40008-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                           Appellee

                      v.

FRANK D. KEYSER

                           Appellant                No. 2420 EDA 2015


                   Appeal from the PCRA Order July 9, 2015
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0005850-2011


BEFORE: BOWES, MUNDY AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                              FILED JULY 20, 2016

      Frank Keyser appeals from the July 9, 2015 order denying him PCRA

relief. We affirm.

      The present case arises from Appellant’s convictions of three counts

each of burglary, criminal trespass, conspiracy to commit burglary, and one

count of theft by unlawful taking. We previously set forth the facts, as found

by the trial court:

      At 8:30 a.m. on June 3, 2011, Chief Rockenbach of the Clifton
      Heights Borough Police Department was off duty outside his
      residence in the 1000 block of Green Lane in Secane when he
      heard an alarm ringing in his neighbors’ residence at 1006 Green
      Lane, directly across the street from his residence. 1006 Green
      Lane is a single family home. He had never heard this alarm
      before and was not aware his neighbors had an alarm.

      Chief Rockenbach observed two men walking from the rear of
      the 1006 Green Lane residence: an older man with grayish hair
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     holding a tape measure (later identified as William Profeto) and
     a younger male (later identified as Keyser). The younger male,
     Keyser, had dark hair and wore a blue shirt with a number 13 on
     the back. Chief Rockenbach had never seen either man before
     and did not believe they had any legal connection to the 1006
     Green Lane residence. The chief did not see the neighbors who
     lived at 1006 Green Lane.

     The men walked down the driveway, turned left on Green Lane
     towards Ashland Avenue, and turned right on Ashland Avenue.
     Concerned about possible criminal activity, Chief Rockenbach
     followed the men in his own truck and never lost sight of them.
     The men entered a blue pickup truck with white doors parked on
     Ashland Avenue. It seemed very unusual that the men went
     from a house with the alarm blaring to a side street where a
     truck was parked. The men drove around neighborhood side
     streets in a ‘convoluted’ path with no apparent purpose. Keyser
     looked back at Chief Rockenbach several times with a ‘very
     nervous’ expression as he followed ‘right behind them’.

     Chief Rockenbach called the police dispatcher on his cellphone to
     report the events, including a description of the pickup truck and
     direction of travel. Moments later, Upper Darby Officer Morris,
     who was in uniform and in a marked car, received a radio
     dispatch that an off duty police officer was following a vehicle
     that possibly was involved in a burglary. Shortly after receiving
     the radio call, Officer Morris saw the pickup truck pass by
     followed by Chief Rockenbach’s truck, and he stopped the pickup
     truck on Rhodes Avenue in Secane, near Ashland Avenue. Chief
     Rockenbach exited his truck and explained to Officer Morris that
     he had been following the truck because he had observed the
     two men on Green Lane possibly involved in a burglary. After the
     stop, Officer Morris was asked whether either individual had
     cuts. Officer Morris observed that Keyser had fresh, bleeding
     cuts on his right hand, and he conveyed this information over
     the radio to Upper Darby Officer Sides, whom Officer Morris
     knew was investigating the scene at Green Lane. Officer Sides
     told Officer Morris over the radio that there was fresh blood on
     the driveway at Green Lane. Officer Sides testified that he found
     several drops of fresh blood in the driveway at 1006 Green Lane
     and a trail of fresh blood from the middle of the driveway to the
     front porch. Ten minutes after initiating the stop, and upon



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     learning about the blood on the driveway, Officer Morris placed
     Keyser under arrest.

     Officer Sides continued his investigation at Green Lane and
     found that the sliding door in the rear of the house was open.
     The resident, Mr. Sacka, was not home when the officer arrived,
     but he returned home shortly thereafter and told the officer that
     nobody else had permission to be at his house. After inspecting
     the house, the owner told the officer that nothing was missing.

     Chief Rockenbach returned to Green Lane after Officer Morris
     detained the two men in their pickup truck. The chief observed
     what appeared to be fresh blood on the part of the driveway of
     1006 Green Lane where he had seen Keyser and the other man
     walking.

     For the next 45 minutes, Officer Sides canvassed the
     neighborhood and learned that the two men had entered two
     other residences in the same block. Mr. Holland, who resides at
     629 Ashland Avenue, a single family home, stated that when he
     entered his living room, he encountered a white male in his
     twenties wearing a blue shirt with a number 13 on the back (the
     same shirt that Chief Rockenbach saw the young male wearing
     outside of 1006 Green Lane) and a second male in the doorway.
     The young male asked him if he needed landscaping or yard
     work. Mr. Holland said no, and the males left. The male had
     entered his house through an unlocked front door. Ms. Persia, an
     11 or 12-year-old female who resides at 1024 Green Lane,
     another single family home, stated that a white male in his teens
     or twenties wearing a blue shirt had entered her house through
     an unlocked front door. Ms. Persia was alone in her bedroom
     when the male opened her bedroom door and asked if this was a
     certain address (which it obviously was not). Later that day, Ms.
     Persia picked Keyser’s photograph out of a photo array prepared
     by Upper Darby police officers.

     Additional details connected Keyser to a fourth burglary on the
     same block. During the traffic stop, Officer Morris observed an
     old green bike in the back of the pickup truck. After Keyser’s
     arrest, Upper Darby Detective Lanni learned of another burglary
     at 822 Green Lane in Secane several days earlier on May 28,
     2011. In that incident, the homeowner, Mr. Perry, discovered a
     male at the residence who fled the scene on a green bicycle. Mr.

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      Perry discovered that $3,000 in cash plus coins and jewelry were
      missing from his bedroom. Detective Lanni spoke with Officer
      Morris, who stated that there were two bikes in the back of the
      pickup truck that he stopped on June 3, one of which was the
      green one that matched the description provided by Mr. Perry on
      May 28th. Mr. Perry visited the police station and identified the
      green bike as the one he witnessed Keyser riding on May 28th.
      He also selected Keyser’s photograph from a photo array
      prepared by Upper Darby police officers.

Commonwealth v. Keyser, 91 A.3d 1295 (Pa.Super. 2013) (unpublished

memorandum) (citing Trial Court Opinion, 4/25/13, at 3-7).

      On November 19, 2012, the trial court sentenced Appellant to an

aggregate term of thirteen to twenty-six years imprisonment, followed by

four years of probation. On direct appeal, Appellant raised four issues: lack

of probable cause to justify the June 3, 2011 arrest; a challenge to the

presentation of a photo array without benefit of counsel; trial court error in

refusing to sever the May 28, 2011 burglary from the three June 3, 2011

incidents; and error in admitting preliminary hearing testimony of an

unavailable witness.   We addressed all issues on the merits and rejected

them. Appellant petitioned our Supreme Court for an allowance of appeal,

which was denied by Order dated May 17, 2014.         No further review was

sought.




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        Appellant thereafter filed a timely pro se PCRA petition and counsel

was appointed. Collateral counsel filed a Turner/Finley1 “no merit” letter

with an accompanying petition for withdrawal. The trial court issued a notice

of intent to dismiss and Appellant filed objections. The trial court issued an

order permitting counsel to withdraw and dismissed the petition.

        Appellant filed a timely notice of appeal and complied with the PCRA

court’s order to file a Pa.R.A.P. 1925(b) statement.             This matter is now

ready    for   our   review.      Appellant    raises   these   contentions   for   our

consideration, renumbered for ease of discussion.

        1.    Did the PCRA court err in dismissing the PCRA petition
        where trial counsel was ineffective for failure to suppress an
        involuntary confession, of which was given under duress and
        outside the “six-hour window” of presentment and where
        Appellant’s 5th, 6th, and 14th Amendment rights under the U.S.
        constitution were violated?

        2.    Did the PCRA court err in dismissing the PCRA petition
        where trial counsel was ineffective for failure to protect Appellant
        from prejudicial identification procedures when counsel failed to
        object to, or move to suppress the unduly suggestive photo
        arrays and suggestive in-court identifications made by numerous
        Commonwealth witnesses and where Appellant’s 6th and 14th
        Amendment rights under the U.S. Constitution were violated?

        3.   Did the PCRA court err in dismissing the PCRA petition
        where trial counsel was ineffective for failure to object to, and
        move to impeach the testimony of co-defendant Profeto for

____________________________________________


1
  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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      inconsistent statements/testimony where Appellant’s 6th and 14th
      Amendment rights under the U.S. Constitution were violated?

      4.    Did the PCRA court err in dismissing the PCRA petition
      where pre-trial counsel was ineffective for abandoning Appellant
      during an offer at the preliminary hearing to reduce charges in
      return for waiver of the hearing where Appellant’s 6th and 14th
      Amendment rights under the U.S. Constitution were violated?

      5.     Did the PCRA court err in dismissing the PCRA petition
      where pre-trial counsel was ineffective for making false
      disclaimers on a “waiver of arraignment” form where Appellant’s
      6th and 14th Amendment rights under the U.S. constitution were
      violated?

      6.   Did the PCRA court err in dismissing the PCRA petition
      without taking into consideration the cumulative nature of
      counsel’s errors and ineffectiveness?

Appellant’s brief at 1-3. At the outset, we note our standard of review:


      We review an order dismissing a petition under the PCRA in the
      light most favorable to the prevailing party at the PCRA level.
      This review is limited to the findings of the PCRA court and the
      evidence of record. We will not disturb a PCRA court's ruling if it
      is supported by evidence of record and is free of legal error. This
      Court may affirm a PCRA court's decision on any grounds if the
      record supports it. We grant great deference to the factual
      findings of the PCRA court and will not disturb those findings
      unless they have no support in the record. However, we afford
      no such deference to its legal conclusions. Further, where the
      petitioner raises questions of law, our standard of review is de
      novo and our scope of review is plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).    Herein, each allegation of error challenges trial counsel’s

effectiveness.   Counsel is presumed effective, and to overcome that

presumption the petitioner must show: (1) that the underlying claim has



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arguable merit; (2) counsel had no reasonable basis for his action; and (3)

that he suffered actual prejudice from counsel's act or failure to act.

Commonwealth v. Ford, supra at 1194 (Pa.Super. 2012); see also

Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001) (adopting

standard for reviewing ineffective assistance of counsel as set forth by

Strickland v. Washington, 466 U.S. 668 (1984)).

       Appellant’s    first   two   issues     challenge   trial   counsel’s   choice   of

suppression theories. The PCRA court2 grouped these claims together and

determined they had been previously litigated:

       [Appellant]'s next ineffectiveness of counsel claims allege that
       Attorney Stillman failed to protect [Appellant]'s constitutional
       interests by failing to attempt to suppress a statement given by
       [Appellant] and a suggestive photo array featuring [Appellant].
       Attorney Stillman filed a Pretrial Motion regarding these issues
       that was litigated at Pretrial Hearing before Judge Jenkins on
       May 10, 2012 and June 12, 2012. The statement given by the
       [Appellant] was entered into evidence by the prosecution. The
       photo array was entered into evidence for the prosecution but
       not given to the jury.

       A defendant is not eligible for post-conviction relief if the
       allegation of error has been previously litigated. An issue has
       been previously litigated if the highest appellate court in which
       the petitioner could have had review...has ruled on the merits of
       the issue or it has been raised and decided in a proceeding
       collaterally attacking the conviction or the sentence. 42 Pa.C.S.
       § 9544 (a)(2)-(3). The Superior Court of Pennsylvania affirmed
       the trial court's decision in whole. [Appellant] asserts his claim is
____________________________________________


2
  Our distinguished colleague, the Honorable Patricia H. Jenkins, presided
over Appellant’s jury trial. The matter was reassigned after Judge Jenkins’
appointment to this Court.



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      based on "different issues" than those raised by Attorney
      Stillman but does not give any indication as to what those issues
      are. Accordingly, these issues have no merit.

Trial Court Opinion, 10/6/15, at 3-4.         We disagree that the issue was

previously litigated but find no prejudice.

      Appellant’s pro se petition raised these issues and set forth the

alternative suppression motion theories. Since no evidentiary hearing was

held, we do not address whether counsel’s litigation of one theory satisfied

the reasonable strategic basis prong. “[A] court will not find counsel to be

ineffective if the particular course chosen by counsel had some reasonable

basis designed to effectuate his client’s interest. If counsel’s chosen course

had some reasonable basis, the inquiry ends and counsel’s assistance is

deemed effective.” Commonwealth v. Williams, 899 A.2d 1060, 1063-64

(Pa. 2006) (citations omitted).    Nor do we find a need to remand for an

evidentiary hearing as it is clear Appellant cannot establish prejudice.

      We begin with the statement given to Detective Brad Ross on the

evening of June 3, 2011.       Appellant asserts that trial counsel, either in

addition to or instead of the grounds chosen, i.e., lack of probable cause to

arrest, should have sought suppression on the basis of involuntariness. His

argument primarily relies on a case that has been overruled. He argues that

“a defendant must be arraigned within 6 hours after an arrest and any

statement taken in violation of this rule must be excluded.” Appellant’s brief

at 18 (citing Commonwealth v. Davenport, 370 A.2d 301 (Pa. 1977)).

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Davenport was overruled by Commonwealth v. Perez, 845 A.2d 779 (Pa.

2004). “[T]he time that elapses between arrest and arraignment, by itself,

is not grounds for suppression.” Id. at 787. To the extent Appellant’s claim

is predicated on a per se application of the “six-hour” rule, it clearly lacks

arguable merit.

      However, we discern that Appellant also claims that the confession

was involuntary based on the totality of the circumstances.             “There is of

course no single litmus-paper test for determining a constitutionally

impermissible interrogation. . . . [T]he ultimate test of voluntariness is

whether     the   confession   is   the   product   of   an   essentially   free   and

unconstrained choice . . . we must consider the totality of the circumstances,

including the accused's mental and physical condition.” Commonwealth v.

Johnson, 107 A.3d 52, 93 (Pa. 2014) (quotation marks and citations

omitted).    We are guided by the following non-exclusive list of factors in

assessing totality of the circumstances:

      the duration and means of interrogation, including whether
      questioning was repeated, prolonged, or accompanied by
      physical abuse or threats thereof; the length of the accused's
      detention prior to the confession; whether the accused was
      advised of his or her constitutional rights; the attitude exhibited
      by the police during the interrogation; the accused's physical
      and psychological state, including whether he or she was injured,
      ill, drugged, or intoxicated; the conditions attendant to the
      detention, including whether the accused was deprived of food,
      drink, sleep, or medical attention; the age, education, and
      intelligence of the accused; the experience of the accused with
      law enforcement and the criminal justice system; and any other



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        factors which might serve to drain one's powers of resistance to
        suggestion and coercion.

Commonwealth v. Bryant, 67 A.3d 716, 724 (Pa. 2013) (citing Perez,

supra at 787).

        Appellant presents the following factors to support a finding of

involuntariness: length of detention, and an alleged denial of food, water,

and medical attention for a bleeding finger. However, Detective Ross offered

uncontradicted testimony that Appellant appeared fine and did not have any

complaints.     Appellant declined the detective’s offer of food, medication, or

any other accommodation. N.T. Suppression, 5/10/12, at 84. The detective

read Appellant a Miranda3 rights form, which Appellant reviewed and

signed. We have reviewed these writings and see nothing in the documents

or handwriting to indicate duress.             Moreover, we note Appellant listed the

name, address, and phone number of his mother, which indicates a lucid

mind.      He initialed each question and answer as transcribed by the

detective, and separately signed the Miranda form. There is no arguable

merit to this alternative theory and Appellant suffered no prejudice by

counsel’s failure to pursue this tactic.

        We next address Appellant’s allegations of ineffectiveness pertaining to

witness identifications.        He asserts that counsel should have sought

____________________________________________


3
    Miranda v. Arizona, 384 U.S. 436 (1966).



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suppression of identifications made pre-trial through the use of a photo

array shown to witness Ms. Persia, as well as subsequent in-court

identifications.   For the reasons that follow, we find Appellant cannot

establish prejudice.

      We first discuss identifications made from a pre-trial photo array.

Appellant’s argument in this regard is confusing. He claims the array was

unduly suggestive because he was the only white male, he was placed first,

in a prominent position, and the array contained Pennsylvania Justice

Network identifiers directly above Appellant’s photo. In conjunction with this

claim, he states he qualified for a hearing, pursuant to United States v.

Wade, 388 U.S. 218 (1967), to screen for the reliability of the identification

procedures, and his pretrial counsel was ineffective for failing to motion the

trial court for that hearing.   Left unexplained is what this Wade hearing

would have encompassed.

      We find Wade inapplicable to these facts. “In [Wade], the United

States Supreme Court considered the right to counsel in the context of a

post-indictment lineup and ultimately concluded that the right of counsel did

attach to a post-indictment lineup procedure.” Commonwealth v. Ciccola,

894 A.2d 744, 748 (Pa.Super. 2006).          Appellant concedes trial counsel

attempted to suppress the array on the grounds “that the photo arrays were

presented to witnesses without the benefit of counsel[.]” Appellant’s brief at

11 (emphasis omitted).      It is not clear why Appellant invokes a case

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involving the right to counsel when that theory was already pursued.

Moreover, Wade is inapposite for two additional reasons: a police lineup is

not the same as a photo array, and, even if it were, the challenged photo

array presentation did not occur post-indictment.           Commonwealth v.

DeHart, 516 A.2d 656, 665 (Pa. 1986) (“To extend the Sixth Amendment

right to counsel during photographic identification proceedings to any person

merely suspected of a crime would be an unreasonable burden on law

enforcement officials and on the taxpayer, who in many instances must

ultimately underwrite the cost of such representation.”).

      Additionally, Appellant faults counsel for failing to present argument

regarding the physical suggestiveness of the array. Appellant fails to link this

argument to Wade or any other law. He simply maintains, without further

explanation, that “a Wade hearing [was needed] to investigate and

challenge the suggestiveness of the photo array shown to witnesses.”

Appellant’s brief at 14 (emphasis in original). Appellant fails to develop his

argument any further, or set forth any argument of suggestiveness with

respect to the presentation of the array, as opposed to the choice of

photographs themselves.

      We note that in Perry v. New Hampshire, 132 S.Ct. 716 (2012), the

Supreme Court discussed the right to challenge photo arrays based on

suggestiveness:




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       In our system of justice, fair trial for persons charged with
       criminal offenses is secured by the Sixth Amendment, which
       guarantees to defendants the right to counsel, compulsory
       process to obtain defense witnesses, and the opportunity to
       cross-examine witnesses for the prosecution. Those safeguards
       apart, admission of evidence in state trials is ordinarily governed
       by state law, and the reliability of relevant testimony typically
       falls within the province of the jury to determine. This Court has
       recognized, in addition, a due process check on the admission of
       eyewitness identification, applicable when the police have
       arranged suggestive circumstances leading the witness to
       identify a particular person as the perpetrator of a crime.

Id. at 720.        Appellant’s argument weaves in concepts of the Sixth

Amendment right to counsel’s presence at an array with Due Process rights

to challenge the manner in which an array is presented to witnesses.

Appellant fails to elaborate on how the array was suggestive.4

____________________________________________


4
  We disapprove of Appellant’s citation to United States v. Lawrence, 349
F.3d 115 (3d Cir. 2003). Appellant quotes the following statement from that
case: “if his was the first photo shown, a defendant might argue that
showing his/her photo first was unfair.” Appellant’s brief at 14. Appellant
uses this citation to bolster his argument that the array herein, in which his
photograph was first, i.e., in the upper left hand corner, was unfairly
suggestive. Appellant omits the relevant portion of this quotation:

       To the contrary, it appears to us that showing all of the
       photographs at once can be a very fair way to proceed
       depending on all circumstances surrounding the identification.
       Clearly, if the police had shown each photograph separately, an
       issue would arise about the defendant's place in the array. If his
       was the first photo shown, a defendant might argue that
       showing his/her photo first was unfair.

349 F.3d at 115. The Third Circuit was thus referring to a hypothetical
situation in which the accused’s photograph is shown “first” in a sequence of
individual photographs.     In this case, all photographs were displayed
(Footnote Continued Next Page)


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      We have reviewed the array to determine if it was unduly suggestive

with respect to the photographs.            See Commonwealth v. Fulmore, 25

A.3d 340, 347 (Pa.Super. 2011). Photographs are not unduly suggestive if

the suspect’s picture does not stand out more than those of others and the

subjects all exhibit similar facial characteristics. Commonwealth v. Fisher,

769 A.2d 1116, 1126-27 (Pa. 2001). We do not find that Appellant’s picture

stands out more than the others.             The background of each photograph is

similar, and the men depicted have similar complexions, facial features,

facial hair, and hair style. Nor do we find the Pennsylvania Justice Network

insignia suggestive in any way. The phrase does not refer to a database of

previously-convicted individuals nor does it suggest the pictures are

mugshots. The background of the pictures and the clothing of the men do

not suggest the pictures were taken as part of any booking process.          The

symbol next to the phrase shows the familiar keystone, which has no

inherent association with any criminal justice agency. Hence, the claim that

counsel should have challenged the identifications on these grounds lacks

arguable merit and he suffered no prejudice by the failure to raise them.

      We now address the related claim that counsel should have sought

suppression of the in-court identifications. Since we find there was no taint

                       _______________________
(Footnote Continued)

simultaneously. Thus, it is obvious the case does not help Appellant, even
as a persuasive citation.



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in the presentation of the array to Ms. Persia, it follows that this claim lacks

arguable merit. “Because the out-of-court identifications were not tainted,

we need not address appellant's argument that the in-court identifications

lacked an independent basis.” Commonwealth v. Johnson, 668 A.2d 97,

103 (Pa. 1995) (citation omitted). As to Mr. Holland, who was not shown

the photo array, we find Appellant cannot establish prejudice. Trial counsel

conceded Appellant’s presence at Mr. Holland’s home, arguing to the jury

they should accept that Appellant was innocently soliciting landscaping

services.5 N.T. 10/11/12, at 142; N.T. 10/10/12, at 97.

       In his third issue, Appellant argues trial counsel ineffectively failed to

impeach William Profeto, Appellant’s co-defendant who testified on behalf of

the Commonwealth, in exchange for a plea. The Commonwealth asks us to

find the claim waived for failure to properly develop the claim on appeal. We

agree.   Appellant states, “[Profeto]’s testimony was inconsistent with prior

statements he made on June 3, 2011 and June 27, 2012 (fifteen days

following the pretrial suppression hearing in this case and one year after

arrest).” Appellant’s brief at 21. He fails to cite to any portion of the record

containing these statements, let alone elaborate on how trial counsel was
____________________________________________


5
      Appellant makes no claim regarding trial counsel’s choice of tactic in
this regard. We note that Mr. Holland testified that Appellant was banging
on the door and spoke to him in the front door area through a screen. N.T.
10/10/12, at 96. Ms. Persia testified Appellant actually entered the home
and came upstairs to her bedroom. Id. at 156-58.



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ineffective.    “[W]here an appellate brief fails to provide any discussion of a

claim with citation to relevant authority or fails to develop the issue in any

other meaningful fashion capable of review, that claim is waived.”

Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009).

      Even if we were to reach the merits, we would find no prejudice.

Appellant      argues   Profeto’s   testimony   “was    inconsistent   to   that   of

Commonwealth witnesses Mrs. Persia and Mr. Holland.                Profeto offered

testimony to the identities and/or descriptions of the witnesses and the

conversations held with each, despite those witnesses testifying that he

wasn’t even present.”        Appellant’s brief at 21.     However, the fact that

witnesses offer different versions of events simply presents a credibility

issue for the jury to resolve.       Appellant does not suggest that Profeto’s

testimony      materially differed from his own previous          descriptions or

statements.      Moreover, we note that Mr. Holland identified Appellant as

being inside his front door and said there was “someone else outside.” N.T.

10/10/12, at 98-99.        This testimony is entirely consistent with Profeto’s

testimony.      Ms. Persia did testify to only seeing Appellant, while Profeto

stated he saw a girl speak to Appellant. N.T., 10/11/12, at 59. However,

defense counsel pointed this out in closing argument.           N.T., 10/11/12 at

143. Thus, the jury was well aware of the discrepancy. No relief is due.

      Appellant’s fourth allegation of error concerns his preliminary hearing.

He asserts that his preliminary hearing counsel, Attorney Patrick Lomax,

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failed to convey an offer from the Assistant District Attorney that would have

reduced three burglary charges, graded as felonies of the first degree, to

criminal trespass charges, graded as felonies of the third degree, in

exchange for his waiver of the preliminary hearing.      Appellant asserts the

PCRA court’s dismissal of the claim without a hearing was premature.

      The trial court found this issue meritless. The opinion pointed to the

May 10, 2012 hearing transcript wherein Appellant rejected a plea offer of

eight to twenty years incarceration.     Trial Court Opinion, 10/6/15, at 3.

Appellant correctly points out the trial court did not address his actual claim,

which concerned the failure to have charges reduced at the magisterial level.

He maintains his ultimate sentence would have changed had the preliminary

hearing offer been conveyed, since he would have been convicted of fewer

felonies of the first degree.

      We find that assuming arguendo such an offer was conveyed,

Appellant cannot establish prejudice.         Appellant’s argument relies on

Missouri v. Frye, 132 S.Ct. 1399 (2012). In Frye and its companion case,

Lafler v. Cooper, 132 S.Ct. 1376 (2012), the United States Supreme Court

applied the Sixth Amendment right to effective assistance of counsel to

questions arising in the plea-bargaining context.       Frye established that

defense counsel has the duty to communicate a plea offer to a defendant

before the offer lapses. Frye, supra at 1408. The Court then held that, for

purposes of Strickland prejudice, a litigant needs to demonstrate

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      a reasonable probability they would have accepted the earlier
      plea offer had they been afforded effective assistance of counsel.
      Defendants must also demonstrate a reasonable probability the
      plea would have been entered without the prosecution canceling
      it or the trial court refusing to accept it, if they had the authority
      to exercise that discretion under state law. To establish prejudice
      in this instance, it is necessary to show a reasonable
      probability that the end result of the criminal process
      would have been more favorable by reason of a plea to a
      lesser charge or a sentence of less prison time.

Id. at 1409 (emphasis added). Appellant cannot make that showing. As the

Commonwealth observes, a magisterial district judge lacks jurisdiction to

accept pleas to the felonies and misdemeanors charged in this case.               42

Pa.C.S. § 1515 (listing cases in which district judges have jurisdiction).

Accordingly, even if the offer to reduce charges had been made, the matter

would still have proceeded to the court of common pleas. “If no plea offer is

made, or a plea deal is accepted by the defendant but rejected by the judge,

the issue raised here simply does not arise.” Lafler, supra at 1387.

      The   inability   to   establish   prejudice   in   these   circumstances   is

corroborated by Lafler’s discussion of remedies.            The defendant therein

proceeded to trial instead of accepting a plea bargain. In rejecting the offer,

the defendant relied on the advice of his counsel, who mistakenly informed

him that the prosecution could not establish intent to commit the crimes. All

parties agreed counsel was deficient.        Id. at 1384.    The question became

what the remedy should be:

      The specific injury suffered by defendants who decline a plea
      offer as a result of ineffective assistance of counsel and then


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      receive a greater sentence as a result of trial can come in at
      least one of two forms. In some cases, the sole advantage a
      defendant would have received under the plea is a lesser
      sentence. This is typically the case when the charges that would
      have been admitted as part of the plea bargain are the same as
      the charges the defendant was convicted of after trial. In this
      situation the court may conduct an evidentiary hearing to
      determine whether the defendant has shown a reasonable
      probability that but for counsel's errors he would have accepted
      the plea. If the showing is made, the court may exercise
      discretion in determining whether the defendant should receive
      the term of imprisonment the government offered in the plea,
      the sentence he received at trial, or something in between.

      In some situations it may be that resentencing alone will not be
      full redress for the constitutional injury. If, for example, an offer
      was for a guilty plea to a count or counts less serious than the
      ones for which a defendant was convicted after trial, or if a
      mandatory sentence confines a judge's sentencing discretion
      after trial, a resentencing based on the conviction at trial may
      not suffice. In these circumstances, the proper exercise of
      discretion to remedy the constitutional injury may be to require
      the prosecution to reoffer the plea proposal. Once this has
      occurred, the judge can then exercise discretion in deciding
      whether to vacate the conviction from trial and accept the plea
      or leave the conviction undisturbed.

Id. at 1389 (citation omitted). While Lafler recognized the possibility of a

guilty plea to counts less serious than the ones for which the defendant was

convicted—a situation analogous to the claim herein—the salient point is

that these reductions were offered in connection with a plea.          Appellant

does not request a sentencing remedy; in fact, he continues to maintain his

innocence and asks for a new trial. That remedy is unavailable under Lafler

and   Frye.       Moreover,    Appellant’s    argument    assumes     that    the

Commonwealth would not have sought to re-add the charges at a later time



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or withdraw and refile.       The Rule of Criminal Procedure governing

preliminary hearing waiver contemplates this possibility:

     (A) The defendant who is represented by counsel may waive the
     preliminary hearing at the preliminary arraignment or at any
     time thereafter.

     (1) The defendant thereafter is precluded from raising the
     sufficiency of the Commonwealth's prima facie case unless the
     parties have agreed at the time of the waiver that the defendant
     later may challenge the sufficiency.

     (2) If the defendant waives the preliminary hearing by way of an
     agreement, made in writing or on the record, and the
     agreement is not accomplished, the defendant may challenge
     the sufficiency of the Commonwealth's prima facie case.

Pa.R.Crim.P. 541 (emphasis added).        The wholesale speculation of what

might have occurred and the inability to fashion a remedy demonstrates

Appellant cannot establish a reasonable probability the end result would

have been more favorable. Hence, we find no prejudice.

     We now address the fifth averment, which is that pre-trial counsel was

ineffective for “making false disclaimers on a ‘waiver of arraignment’ form.”

Appellant’s brief at 27.     The form Appellant refers to was docketed

November 10, 2011.     This document was signed by Attorney Stillman on

October 27, 2011, with a representation by Mr. Stillman that Appellant

previously signed other copies of the form.

     The trial court dismissed this claim on the basis Appellant failed to

present   any   evidence   that   Attorney    Stillman’s   representations   were

fraudulent. We agree, and, in any event, find no prejudice. The purposes of

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arraignment are: to ensure the defendant is advised of the charges, have

counsel enter an appearance, and commence the period of time within which

to initiate discovery and file other motions. Comment to Pa.R.Crim.P. 571.

Appellant alleges he was prejudiced by the asserted fraud “in having to

prepare for a trial without due process notifications” and further argues he

was prejudiced by counsel not requesting a Bill of Particulars or discovery.

Appellant’s brief at 29. This is effectively a free-standing claim of failing to

prepare for trial. There is no indication whatsoever that Attorney Stillman

lacked    discovery    or   was   unprepared   to   defend   the   case.     See

Commonwealth v. Howard, 732 A.2d 1213, 1215 (Pa.Super. 1999)

(“Appellant has not provided any evidence to support his allegation of

inadequate preparation. Here, counsel met with Appellant prior to trial, and

we will not deem trial counsel ineffective for lack of preparation without

sufficient proof.”).

         Finally, Appellant raises a claim of cumulative ineffectiveness.    Our

assessment of the cumulative effect of errors depends on the rationale for

rejecting the claims. As our Supreme Court has explained:

             We have often held that “no number of failed [ ] claims
      may collectively warrant relief if they fail to do so individually.”
      However, we have clarified that this principle applies to claims
      that fail because of lack of merit or arguable merit. When the
      failure of individual claims is grounded in lack of prejudice, then
      the cumulative prejudice from those individual claims may
      properly be assessed.




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      We have denied most of Appellant's claims based on lack of
      merit, and there is no basis for a claim of cumulative error with
      regard to these claims. With regard to the few claims that we
      have denied based on lack of prejudice, we are satisfied that
      there is no cumulative prejudice warranting relief. These claims
      are independent factually and legally, with no reasonable and
      logical connection that would have caused the jury to assess
      them cumulatively.

Commonwealth v. Spotz, 18 A.3d 244, 321 (Pa. 2011) (citations omitted).

Applying those principles, we find no cumulative prejudice.        We have

rejected most of these claims as lacking underlying legal merit. We found no

prejudice with respect to the waiver of arraignment, but because Appellant

was guilty beyond a reasonable doubt, that alleged error is immaterial with

respect to the trial.   We, too, are satisfied that there is no cumulative

prejudice warranting relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/20/2016




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