J-S57038-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

KARIM GAGE

                         Appellant                  No. 1219 EDA 2015


            Appeal from the PCRA Order Dated March 18, 2015
            In the Court of Common Pleas of Delaware County
             Criminal Division at No: CP-23-CR-0004663-2007


BEFORE: MUNDY, OTT, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                      FILED FEBRUARY 13, 2017

      Appellant Karim Gage pro se appeals from the March 18, 2015 order of

the Court of Common Pleas of Delaware County (“PCRA court”), which

denied without a hearing his request for collateral relief under the Post

Conviction Relief Act (the “Act”), 42 Pa.C.S.A. §§ 9451-46. Upon review, we

affirm.

      The facts and procedural history underlying this case are undisputed.

As recounted by a prior panel of this Court:

      At 2:08 a.m. on April 12, 2007, police were called to Diamond
      Lounge in Darby, Delaware County, where, as a result of
      witnesses’ statements and the evidence at the scene, Appellant
      was identified as a person of interest in a shooting. Later that
      day, police received a report of shots fired at Appellant’s
      residence. When they responded, Appellant was not at the
      residence; however police received a tip from a known, reliable
      confidential informant that individuals went to Appellant’s home
      to kill him in retaliation for the earlier shooting. The informant
      also told police that Appellant fled from his home and was hiding
      with a gun at the Sunshine Laundromat in Darby.
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             When the police entered the laundromat, Appellant was
       standing near a plastic laundry bin in the corner of the premises
       and moved away from it as the police approached. The laundry
       bin had a locking lid and there were folded clothes on top of it.
       Police searched Appellant for weapons and handcuffed him for
       safety. Police discovered several hundred dollars in cash on his
       person. At that time, they placed Appellant under arrest and
       asked whether anything else in the Laundromat, including the
       laundry bin in the corner, belonged to him. Appellant indicated
       that nothing in the laundromat belonged to him. Upon searching
       the laundry bin, police found a bag of crack cocaine, around 100
       empty Ziploc bags, and a gun. The gun was a .22 caliber
       revolver that had been fired once.

             After finding this evidence, the police asked the
       laundromat owner to review the surveillance video. The video
       showed Appellant enter the laundromat, walk back and forth
       while looking out the windows, go to the rear of the laundromat,
       and approach the laundry basket, and make motions with his
       hands. Later, while in custody, Appellant admitted he had fired
       one bullet from his gun while fleeing his house. Prior to trial,
       Appellant filed a motion to suppress the gun and the drugs,
       which the trial court denied.

              On September 18, 2008, following a jury trial, Appellant
       was found guilty of [possession with intent to deliver (“PWID”)
       (35 P.S. § 780-113(a)(30))], possession of a controlled
       substance [(35 P.S. § 780-113(a)(16))], and possession of drug
       paraphernalia [(35 P.S. § 780-113(a)(32))]. Appellant was also
       found guilty in a bench trial of possession of a firearm by a
       person not to possess a firearm [(18 Pa.C.S.A. § 6105)]. The
       trial court sentenced him to a mandatory minimum of five to ten
       years for PWID, a consecutive term of three to six years for the
       firearms conviction.[1]

            Appellant filed a timely notice of appeal and Pa.R.A.P.
       1925(b) statement of errors complained of on appeal on January
       7, 2009; however, counsel failed to file a brief and the appeal
       was dismissed. Appellant sought relief under the PCRA and the
       PCRA court reinstated his direct appeal rights nunc pro tunc on
       October 6, 2010.




____________________________________________


1
  The charge of simple possession merged with PWID for the purpose of
sentencing.



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Commonwealth v. Gage, No. 3012 EDA 2010, unpublished memorandum,

at 1-3 (Pa. Super. filed October 25, 2011) (internal citations and footnotes

omitted), appeal denied, 63 A.3d 774 (Pa. 2013).

          On appeal, we affirmed Appellant’s judgment of sentence, concluding

that his conviction was supported by sufficient evidence and that the trial

court did not err in denying his suppression motion. As noted, our Supreme

Court denied Appellant’s petition for allowance of appeal and subsequently,

on October 7, 2013, Appellant pro se petitioned the PCRA court for PCRA

relief.        The PCRA court appointed counsel who eventually filed a no-merit

letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and

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

petitioned to withdraw from the case.          The PCRA court granted counsel’s

petition on February 20, 2015.           Thereafter, following the PCRA court’s

issuance of a Pa.R.Crim.P. 907 notice of its intent to dismiss the petition

without a hearing, the PCRA court denied Appellant PCRA relief on March 18,

2015.          Appellant timely appealed to this Court.   Appellant pro se filed a

Pa.R.A.P. 1925(b) statement, raising three assertions of error, reproduced

verbatim here:

          I.      Whether a county or federal government has jurisdiction to
                  charge me with these crimes inside the State of
                  Pennsylvania? (Specifically Delaware County). I hereby
                  request that the court order Delaware County, and the
                  Department of Justice to produce the documentation
                  specified per the statute to establish their criminal
                  jurisdiction.    I Karim A. Gage hereby challenge the
                  jurisdiction of the local and federal prosecutors. 40 USCS
                  § 255, 3112(b)(c).



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       II.    If an individual has a natural right of liberty, to be free
              from intrusion and infringement, (specifically during police
              encounters.) Is it the duty of the officers and the court as
              evidenced by your oath of office and fidelity bond to
              uphold the constitution and protect all citizens and, or
              individuals from government intrusion?

       III.   Whether sentence imposed was lawful including: but not
              limited to mandatory minimums, enhanced sentencing,
              aggregate sentences, and consecutive sentences?

Rule 1925(b) Statement, 4/12/15.               In response, the PCRA court issued a

Pa.R.A.P. 1925(a) opinion, concluding that Appellant’s claims either lack

merit or are waived.

       On appeal,2 Appellant raises three issues for our review:

       I.     Whether the trial court abused it’s [sic] discretion when it
              denied [the] motion to suppress evidence since the
              evidence was seized in violation of the Fourth and
              Fourteenth Amendment of the United States and State
              Constitution and Article III, Section 1 and 2. Article 1
              Section 8 of the Pennsylvania Constitution and the Fruit of
              the Poisonous Tree Doctrine?

       II.    Whether the confiscation of the $870.00 and a cell phone
              from my person was lawful?

       III.   Whether all prior counsel were ineffective for failing to
              raise the fact that other people occupied the area where
              the items were allegedly found?


Appellant’s Brief at 5.3
____________________________________________


2
  “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.’”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quoting
Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)).
3
  To the extent Appellant appears to challenge the jurisdiction of the PCRA
court, such challenge is waived because Appellant did not raise it in his
question presented. See Pa.R.A.P. 2116(a) (“No question will be considered
unless it is stated in the statement of questions involved or is fairly
suggested thereby.”).



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      At the outset, we note that Appellant’s issues on appeal are without

merit or waived because he either raised them or could have raised them on

direct appeal, or failed to preserve them for our review by failing to include

them in his Rule 1925(b) statement. Specifically, Appellant’s first issue does

not warrant review because he previously litigated it on direct appeal. See

42 Pa.C.S.A. § 9543(a)(3) (“That the allegation of error has not been

previously litigated or waived.”); see also 42 Pa.C.S.A. § 9544(a)(2) (an

issue is previously litigated if “the highest appellate court in which the

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

of the issue”).

      Appellant’s second claim is waived because “it could have been raised

prior to the filing of the PCRA petition, but was not.”    Commonwealth v.

Turetsky, 925 A.2d 876, 879 (Pa. Super. 2007), appeal denied, 940 A.2d

365 (Pa. 2007) (citation omitted); see also 42 Pa.C.S.A. § 9544(b) (stating,

“an issue is waived if the petitioner could have raised it but failed to do so

before trial, at trial, during unitary review, on appeal or in a prior state post

conviction proceeding.”).

      Appellant’s third issue is waived because he failed to raise it in his Rule

1925(b) statement.     As amended in 2007, Pennsylvania Rule of Appellate

Procedure 1925 provides that issues that are not included in the Rule

1925(b) statement or raised in accordance with Rule 1925(b)(4) are waived.

See Pa.R.A.P. 1925(b)(4)(vii); see also Commonwealth v. Lord, 719 A.2d

306, 308 (Pa. 1998). Moreover, an appellant cannot raise a new issue on

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appeal.   See Pa.R.A.P. 302(a).    Even if Appellant had preserved his third

issue for review, he still would not be entitled to relief because he fails to

develop the issue adequately with citation to the record and legal authority.

Indeed, Appellant does not mention his third claim in the argument section

of his brief. It is settled that “[w]e shall not develop an argument for [the

appellant], nor shall we scour the record to find evidence to support an

argument; consequently, we deem this issue waived.” Commonwealth v.

Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007), appeal denied sub

nom. Commonwealth v. Imes, 982 A.2d 509 (Pa. 2009); see Pa.R.A.P.

2119(a), (b). “The failure to develop an adequate argument in an appellate

brief may result in waiver of the claim under Pa.R.A.P. 2119.”       Beshore,

916 A.2d at 1140 (Pa. Super. 2007) (internal citation and quotation marks

omitted); see also Commonwealth v. Freeman, 128 A.3d 1231, 1249

(Pa. Super. 2015) (explaining that the appellant “ha[d] made no effort

whatsoever to discuss the applicable law or link the facts of his case to that

law” and concluding that “[h]is failure to develop a coherent legal argument

in support of his claim results in waiver of [the] issue”); Commonwealth v.

Hakala, 900 A.2d 404, 407 (Pa. Super. 2006) (finding waiver where the

appellant “fail[ed] to offer either analysis or case citation in support of the

relief he seeks” and admonishing that “it is not this Court’s function or duty

to become an advocate for the [appellant]”).




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       Finally, insofar as Appellant argues that, based on Alleyne,4 his

sentence is illegal because the trial court imposed a mandatory minimum

sentence, such argument is without merit.           As mentioned earlier, our

Supreme Court denied Appellant’s petition for allowance of appeal on

February 14, 2013. Appellant’s ninety days for filing a writ of certiorari in

the United States Supreme Court expired on May 15, 2013.                See 42

Pa.C.S.A. § 9545(b)(3); United States Supreme Court Rule 13.                  Thus,

Appellant’s sentence became final prior to the United States Supreme

Court’s issuance of Alleyne on June 17, 2013.           As our Supreme Court

recently concluded in Commonwealth v. Washington, 142 A.3d 810 (Pa.

2016), Alleyne does not apply retroactively to cases on collateral review

where the petitioner’s judgment of sentence already had become final. The

Court explained that:

       [A] new rule of law does not automatically render final, pre-
       existing sentences illegal. A finding of illegality, concerning such
       sentences, may be premised on such a rule only to the degree
       that the new rule applies retrospectively. In other words, if the
       rule simply does not pertain to a particular conviction or
       sentence, it cannot operate to render that conviction or sentence
       illegal.

        ....

       [N]ew constitutional procedural rules generally pertain to future
       cases and matters that are pending on direct review at the time
       of the rule’s announcement.
____________________________________________


4
  Alleyne v. United States, 133 S. Ct. 2151, 2161-63 (2013) (holding that
any fact other than a prior conviction that triggers a mandatory minimum
sentence must be found by a jury beyond a reasonable doubt).




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Washington, 142 A.3d at 814-15.

        In sum, we agree with the PCRA court’s conclusion that Appellant is

not entitled to relief on his PCRA petition.

        Order affirmed.

        Judge Mundy did not participate in the consideration or decision of this

case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/13/2017




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