J-S52014-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                         Appellee

                    v.

JEFFREY STETTER,

                         Appellant                   No. 1877 WDA 2014


                Appeal from the PCRA Order October 7, 2014
            In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0002814-2006


BEFORE: SHOGAN, OLSON, and WECHT, JJ.

MEMORANDUM BY SHOGAN, J.:                          FILED OCTOBER 22, 2015

      Appellant, Jeffrey Stetter, appeals from the order denying his petition

for collateral relief filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541-9546. We affirm.

      On direct appeal, a prior panel of this Court summarized the factual

and procedural history of this case as follows:

             The relevant facts and procedural history are as follows:
      Appellant was arrested, and represented by counsel, he
      proceeded to a bench trial with co-defendant George Maxwell.2
      At the trial, sixty-five-year-old Richard Sharp testified that, on
      September 18, 2005, he was camping at 14 Zimmerman Avenue
      in Overbrook with Stacey Bulford, who was a known prostitute.
      At approximately 8:00 p.m., he left the camping trailer;
      however, Ms. Bulford remained inside of the trailer.            At
      approximately 9:30 p.m., Mr. Sharp returned to the camping
      trailer, and he testified as follows regarding what transpired
      upon his return:
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          2
             Mary Laurence was also charged in connection
          with this case. Without objection, her case was
          severed from Appellant’s and Mr. Maxwell’s trial.

          Q: And what did you do upon returning to the
          trailer?
          A: I opened the door.
          Q: Which door?
          A: There’s only one door. It’s a side door.
          Q: Okay. Was the door locked or unlocked when you
          arrived?
          A: It was unlocked.
          Q: Now, tell the Judge in your own words what you
          experienced.
          A: Okay. I walked into the camper, walked up like
          one step, two steps. I got [sic] hit over the head
          with I don’t know what; and I fell [on]to the ground;
          and I continually got [sic] hit on the head and
          kicked. I fought back as best as I could.
          Q: At what location were you in the inside of the
          trailer when this occurred?
          A: It’s a room that’s called the kitchen. It’s like—I
          fell right like under by the table, kitchen table.
          Q: You were knocked to the floor?
          A: Yes.
          Q: Were you able to see anybody in and around you
          when you were knocked to the floor?
          A: There was [sic] two male sil[h]ouettes.
          Q: Two male sil[h]ouettes?
          A: Yes.
          Q: Were you able to see faces associated with those?
          A: No.
          Q: What was the lighting conditions in that particular
          room where this assault occurred?
          A: It was dark, because when I left, the battery that
          powered the lights in the camper trailer was [sic]
          almost dead. When I came back, it was dead, and
          there were no lights in the camper trailer.
          Q: Now, other than being struck and kicked, was
          there anything else done to you when you were on
          the floor?
          A: They stole the waist pack that I had that had
          pepper spray in it and what’s called a Myotron, looks
          like a super stun gun.

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          Q: That was attached to what part of your body?
          A: Around my waist.

           Mr. Sharp testified that Ms. Bulford was in the trailer
     during the attack, and the men fled the scene after the attack.
     Mr. Sharp called 911, resulting in the police’s arrival upon the
     scene, and due to the severity of his injuries, Mr. Sharp was
     taken to a nearby hospital where he received treatment for
     multiple cuts. Mr. Sharp admitted that he brought Ms. Bulford to
     the trailer and paid her for sex, and he had done so with other
     women, including Mary Laurence. Mr. Sharp testified that, after
     the police had identified Ms. Bulford as a possible accomplice,
     Ms. Bulford identified Mr. Maxwell and Appellant as the men who
     had assaulted Mr. Sharp.

            Ms. Bulford confirmed that she was at Mr. Sharp’s camping
     trailer on the day in question, and at some point, he left the
     trailer while she stayed behind sleeping in the bedroom. After
     Mr. Sharp left, Ms. Laurence came into the trailer, awoke
     Ms. Bulford, and told her “not to worry about what [she was]
     about to see.” Ms. Laurence then left the trailer and Ms. Bulford
     went back to sleep. Shortly thereafter, she heard Mr. Sharp
     screaming and she testified the following transpired:

          Q: And when you heard that screaming what did you
          do?
          A: I jumped up and asked, yelled, what was going
          on to [Mr. Sharp], and flicked on the light.
          Q: And when you did that, what, if anything, did you
          observe?
          A: I had seen [Mr. Sharp] on the floor, bloody, and
          two males running out of the trailer.
          Q: And did you recognize the two males?
          A: Yes.
          Q: And who were they?
          A: George Maxwell and [Appellant] Jeff Stetter.

           Ms. Bulford then positively pointed out Mr. Maxwell and
     Appellant in court as the men she had observed running out of
     the trailer on the night in question. Ms. Bulford admitted that
     she has prior convictions for forgery, receiving stolen property,
     and theft by unlawful taking. She further admitted that she uses
     aliases, was a heroin addict, and received money from Mr. Sharp
     in exchange for sex. Furthermore, she admitted that she did not

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     tell the police the name of Mr. Sharp’s attackers             until
     approximately one month after the incident occurred.

           Detective William Friburger testified that, on September
     18, 2005, at approximately 9:30 p.m., he responded to a 911
     call at a trailer park on Zimmerman Street. Upon arrival,
     Mr. Sharp, who was bleeding, reported he had been robbed.
     Referring to his report, Detective Friburger testified that, on the
     night of the incident, Ms. Bulford reported that she “did not see
     anything” and was in a back room when the assault occurred.

           Ms. Laurence testified that, on September 18, 2005, she,
     Mr. Maxwell, Appellant, and a woman were together smoking
     crack cocaine in a car. Needing more money, Ms. Laurence
     indicated she would ask Mr. Sharp for money. The group went
     to Mr. Sharp’s trailer; however, he was not at home, and
     therefore, they left. A short time later, the group returned to
     the trailer, and Mr. Maxwell and Appellant went inside to talk to
     Ms. Bulford while Ms. Laurence and the woman stayed inside of
     the car. Approximately half an hour later, Mr. Maxwell and
     Appellant returned to the car. Ms. Laurence noticed Appellant’s
     arm “looked wet” and he threw something in the woods before
     entering the car. She also noticed that Mr. Maxwell was carrying
     a “belly bag.” The men informed Ms. Laurence that Ms. Bulford
     had invited them into the trailer and they had a couple of beers.
     The men further indicated that, at some point, Ms. Bulford said,
     “Here comes Rich,” she shut off the lights, and she directed the
     men where to stand in anticipation of Mr. Sharp’s arrival.

           Ms. Laurence admitted that the Commonwealth charged
     her as a co-defendant and offered her leniency in exchange for
     her testimony. Ms. Laurence admitted that she uses illegal
     drugs, Mr. Sharp paid her for sex, she uses aliases, and she has
     several criminal convictions.

           At the conclusion of the Commonwealth’s case-in-chief,
     Appellant’s and Mr. Maxwell’s attorneys made a motion for
     judgment of acquittal, which the trial court denied. Thereafter,3
     specifically finding the Commonwealth’s witnesses to be credible,
     the trial court found Appellant guilty of the crimes indicated
     supra.4
           3
               We note the defense put forth no witnesses.


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            4
               The trial court also found Mr. Maxwell guilty of
            robbery, burglary, and criminal conspiracy.

Commonwealth v. Stetter, 711 WDA 2010, 30 A.3d 538 (Pa. Super. filed

May 13, 2011) (unpublished memorandum at 1-6) (internal citations

omitted).

      Following   Appellant’s   above-referenced   convictions   of    burglary,

robbery, and criminal conspiracy at Criminal Information No. CC 200602814,

Appellant was sentenced to the mandatory minimum term of imprisonment

of ten to twenty years for the burglary conviction. The sentence was to run

consecutively to a seven-to-fourteen-year sentence that Appellant had

already begun serving at Criminal Information No. CC 200806982.           There

were no further penalties imposed at the remaining convictions. Appellant

filed a post-sentence motion in which he requested that the ten-to-twenty-

year term of imprisonment at the burglary count run concurrently with the

term of incarceration previously imposed at No. CC 200806982. The post-

sentence motion was denied.

      As noted, Appellant filed a direct appeal. The appeal challenged the

sufficiency of the evidence, the weight of the evidence, and the fact that the

sentence was imposed consecutively rather than concurrently.          A panel of

this Court denied Appellant’s claims and affirmed his judgment of sentence,

and on March 1, 2013, the Supreme Court of Pennsylvania denied

Appellant’s petition for allowance of appeal.   Commonwealth v. Stetter,




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711 WDA 2010, 30 A.3d 538, (Pa. Super. filed May 13, 2012) (unpublished

memorandum), appeal denied, 63 A.3d 1247 (Pa. 2013).

       On May 22, 2014, Appellant filed a pro se PCRA petition.1 Robert S.

Carey, Jr., Esquire, was appointed to represent Appellant.   On August 27,

2014, Attorney Carey filed a “Motion to Withdraw as PCRA Counsel,

Proposed Order Pursuant to Pa.R.[Crim].P. 907, and Turner/Finley[2] No-

Merit Letter”. Judge Machen of the PCRA court granted counsel’s request to

withdraw and gave Appellant notice of the court’s intent to dismiss his PCRA

petition. Appellant filed a pro se response to Judge Machen’s notice of the
____________________________________________


1
    A PCRA petition must be filed within one year of the date that the
judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). A judgment
of sentence “becomes final at the conclusion of direct review, including
discretionary review in the Supreme Court of the United States and the
Supreme Court of Pennsylvania, or at the expiration of time for seeking the
review.” 42 Pa.C.S. § 9545(b)(3). Here, U.S. Supreme Court review could
have been sought within ninety days of March 1, 2013. U.S. Sup. Ct. R. 13.
Thus, Appellant had until May 30, 2013, to seek additional review, and until
May 30, 2014, to timely file a PCRA Petition.

     Appellant’s pro se PCRA petition is docketed as filed on June 5, 2014.
Attached to the pro se filing, however, is a certificate of service from
Appellant that he placed his petition in the prison mail system on May 22,
2014. Pursuant to the “prisoner mailbox rule,” this petition would be timely
filed. See Commonwealth v. Crawford, 17 A.3d 1279, 1281 (Pa. Super.
2011) (“Under the prisoner mailbox rule, we deem a pro se document filed
on the date it is placed in the hands of prison authorities for mailing.”).
Thus, we agree with the trial court’s conclusion that “[t]he necessary
quantum of evidence is before this Court to rule that [Appellant’s] PCRA was
timely filed based upon his Certificate of Service.” PCRA Court Opinion,
2/11/15, at 5 n.1.
2
  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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court’s intent to dismiss. By order entered October 7, 2014, Judge Machen

dismissed Appellant’s PCRA petition.

        On November 3, 2014, Appellant filed a pro se notice of appeal to this

Court.3 On November 18, 2014, this case was assigned to Judge Joseph K.

Williams, III following the retirement of Judge Machen.          On December 14,

2014,    Appellant    filed   his   court-ordered   concise   statement   of   errors

complained of on appeal. Judge Williams issued a Pa.R.A.P. 1925(a) opinion

on February 11, 2015.

        Appellant presents the following issues for our review, which we

reproduce verbatim:

        1): P.C.R.A. COUNSEL WAS INEFFECTIVE FOR FAILURE TO
        RAISE TRAIL COUNSELS INEFFECITIVENESS, FOR FAILURE TO
        OBJECT TO TRIAL COURTS APPLICATION OF 42 Pa.C.S. 9714 IN
        SENTENCING PETITIONER TO A MANDATORY MINIMUM OF 10-
        20 YRS. LAYERED INEFFECTIVE ASSISTANCE OF COUNSEL,
        WHERE COUNSEL FAILED TO OBJECT TO THE COURT “ERROR”
        IN SENTENCING.

        1): Ineffective assistance of appeal counsel, counsel failed to
        investigate after-discovered evidence of commonwealth’s key
        witness perjured testimony.



____________________________________________


3
    The notice of appeal is docketed as filed with the Superior Court on
November 12, 2014. Based on the postage time stamp on Appellant’s notice
of appeal, however, it appears that the notice was deposited in the prison’s
mail on November 3, 2014. Thus, we deem Appellant’s notice of appeal
timely filed pursuant to the “prisoner mailbox rule.” See Crawford, 17 A.3d
at 1281 (“Under the prisoner mailbox rule, we deem a pro se document filed
on the date it is placed in the hands of prison authorities for mailing.”).



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       2): Trial counsel was ineffective for failing to unequivocally
       establish facts at trail which would have proven the
       commonwealth’s key testified falsely.

       3): Ineffective assistance of counsel for failing to investigate the
       witness’s and the alleged co-conspirator, Mary Laurence.

Appellant’s Brief at 1, 5.4

       Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA

court’s determination is free of legal error. Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 2005)).              The PCRA court’s findings will not be

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

Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001)).

       All of Appellant’s claims allege ineffective assistance of counsel. When

considering an allegation of ineffective assistance of counsel (“IAC”), counsel

is presumed to have provided effective representation unless the PCRA

petitioner pleads and proves that: (1) the underlying claim is of arguable
____________________________________________


4
    Appellant failed to raise all of his issues in a statement of questions
involved as required by Pa.R.A.P. 2116. Three of his issues are raised under
the heading “Issues before the court” on page five of Appellant’s brief. The
first issue listed above, however, is found on page one of Appellant’s brief.
Additionally, Appellant has failed to divide the argument section of his brief
into as many parts as there are questions to be argued as required by
Pa.R.A.P. 2119. While our review is somewhat hampered by Appellant’s
failure to comply with these rules, we will address the issues to the extent
possible.



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merit; (2) counsel had no reasonable basis for his or her conduct; and (3)

appellant was prejudiced by counsel’s action or omission. Commonwealth

v. Spotz, 84 A.3d 294, 311 (Pa. 2014).            “In order to meet the prejudice

prong of the ineffectiveness standard, a defendant must show that there is a

‘reasonable probability that but for counsel’s unprofessional errors, the result

of the proceeding would have been different.’” Commonwealth v. Reed,

42 A.3d 314, 319 (Pa. Super. 2012).            A claim of ineffective assistance of

counsel will fail if the petitioner does not meet any of the three prongs.

Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013). “The burden

of proving ineffectiveness rests with Appellant.” Commonwealth v. Rega,

933 A.2d 997, 1018 (Pa. 2007).

      Appellant first argues that PCRA counsel was ineffective for failing to

raise trial counsel’s alleged ineffectiveness of failing to object to the trial

court’s application of 42 Pa.C.S. § 9714 in sentencing Appellant to a

mandatory minimum sentence of ten to twenty years. Appellant’s Brief at 1.

Appellant maintains that the sentencing court had insufficient evidence of

Appellant’s prior criminal history as is necessary under section 9714. Id. at

2.

      Pursuant   to   42   Pa.C.S.   §    9714(a)(1),     “[a]ny   person   who   is

convicted . . . of a crime of violence shall, if at the time of the commission of

the current offense the person had previously been convicted of a crime of

violence, be sentenced to a minimum sentence of at least ten years of total


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confinement. . . .”   The PCRA court provided the following analysis in

addressing Appellant’s claims:

            The statutory language [of section 9714] sets up the
     necessary events which must occur before this recidivist
     provision can apply. The initial inquiry is the present crime. It
     must be a crime of violence. Section 9714(g) includes burglary
     under Section 3502(a)(1) as satisfying that definition.       The
     Information did not make reference to a specific sub-section but
     contained sufficient facts to put [Appellant] on notice that
     someone was present when the burglary happened. The facts at
     trial also showed a person was present when [Appellant] entered
     the trailer. The present crime was a crime of violence under
     Section 9714(g).

           The next area of inquiry is date driven as there is a
     connection between the present crime and one’s criminal past.
     The present crime of violence was committed on September 18,
     2005. So, this date is the cut-off date for any prior convictions.
     The [c]ourt has reviewed the entire record and, unfortunately,
     the sentencing guideline form is not part of the court papers.
     Despite its absence, the record still shows, by circumstantial
     evidence, that his prior crime of violence happened before
     September 18, 2005. At sentencing, the prosecutor told the
     [c]ourt that defense counsel knew that upon conviction the 10
     year mandatory would be sought. Transcript, pg. 70. The post-
     sentence motion filed after sentencing referenced the 10 year
     mandatory but its focus was on the [c]ourt’s exercise of
     discretion and not some infirmity associated with the mandatory.
     The absence of argument informs this [c]ourt that [Appellant]
     was adjudicated guilty of his prior crime of violence before
     Sept. 18, 2005.

           A clear inference from reading the sentencing transcript is
     that Judge Machen received information about the prior matter.
     However, those documents are not part of the Clerk of Courts
     file. However, this Court will take judicial notice of the contents
     of case #CP-02-CR-10828-1991. See, Pa.R.E. 201(f)(“[j]udicial
     notice may be taken at any stage of the proceeding.”);
     Commonwealth v. Tau Kappa Epsilon, 609 A.2d 791 (Pa. 1992).
     On April 6, 1992, [Appellant] entered a guilty plea to a felony -
     one robbery wherein he received a sentence of 2 to 5 years. By


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     every indication, this 1991 matter is the prior, predicate crime of
     violence that triggered the application of the 10 year mandatory.

           So with this discussion behind us, [Appellant’s] two,
     specific arguments can be resolved rather quickly. He first
     complains that “the burglary conviction upon which the request
     was based occurred AFTER the acts giving rise to the instant
     case”. Defendant’s Response/Objections to 907 Notice, pg. 1 -2.
     [Appellant] has his facts wrong. The prior conviction was a
     robbery and he was sentenced on that case many years before
     the present September, 2005 conduct. Transcript, pg. 71 (“So
     because of a prior robbery, the burglary now, you’re invoking the
     mandatory?”). His other complaint is that the [c]ourt did not
     require the government to provide proof of the “first strike
     conviction”. The factual record tells a totally different story.
     Defense counsel knew about the prior conviction and how it
     would serve as a predicate to the imposition of the mandatory.
     The trial court received the guidelines from the prosecutor.
     Transcript, pg. 69. A short time later, the [c]ourt reviewed what
     precisely the government was asking for. “So because of a prior
     robbery, the burglary now, you’re invoking the mandatory?[”]
     Transcript, pg. 71.     The record also shows there was no
     objection from defense counsel about the prior. The absence is
     supportive of the [c]ourt’s conclusion that the government did,
     in fact, discharge its burden of proof regarding the prior
     conviction.

PCRA Court Opinion, 2/11/15, at 7-8.

     The Commonwealth agrees that the first degree felony robbery at

Criminal Information No. CC 199110828, to which Appellant pled guilty on

April 6, 1992, was the prior crime of violence that resulted in the mandated

ten-year minimum sentence for the instant burglary. Commonwealth’s Brief

at 13. As noted, the court may take judicial notice of that prior conviction.

See Commonwealth v. Brown, 839 A.2d 433, 435 (Pa. Super. 2003) (“A

court may take judicial notice of an indisputable adjudicated fact.”); see

also Pa.R.E. 201(b)(2) (“The court may judicially notice a fact that is not

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subject to reasonable dispute because it . . . can be accurately and readily

determined    from     sources   whose     accuracy    cannot      reasonably     be

questioned.”). Thus, we agree with the PCRA court’s conclusion that there

was sufficient evidence of record to establish Appellant’s prior conviction for

a violent crime as required under section 9714(a)(1).        Moreover, because

the underlying claim lacks arguable merit, Appellant’s claim for ineffective

assistance of PCRA counsel fails.

      Appellant next asserts that appellate counsel was ineffective for failing

to   investigate    after-discovered    evidence   related    to    two   of    the

Commonwealth’s       main   witnesses     who   Appellant    contends     perjured

themselves at trial.    Appellant’s Brief at 5.    First, Appellant asserts that

Commonwealth witness Mary Laurence wrote Appellant a letter after trial

stating that she lied at trial, and “followed her attorney’s advise [sic] to

avoid imprisonment and she would get leniency in exchange for her

testimony.”   Id.    Appellant argues that PCRA counsel was ineffective for

failing to investigate this claim, and instead, filing a “no-merit” letter. Id.

      We acknowledge that, as a general matter, recantation evidence “is

notoriously unreliable, particularly where the witness claims to have

committed perjury.” Commonwealth v. D’Amato, 856 A.2d 806, 825 (Pa.

2004). When seeking a new trial based on alleged after-discovered evidence

in the form of recantation testimony, the petitioner must establish that: (1)

the evidence has been discovered after trial and it could not have been


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obtained at or prior to trial through reasonable diligence; (2) the evidence is

not cumulative; (3) it is not being used solely to impeach credibility; and (4)

it would likely compel a different verdict. Commonwealth v. Johnson, 966

A.2d 523, 541 (Pa. 2009).

      A review of the note written to Appellant by Ms. Laurence vaguely

states that she lied, but it does not specify the content of her alleged

fabricated testimony. PCRA Petition, 5/22/14, Attachment. Thus, the lack

of specificity makes it unclear as to whether this testimony would compel a

different verdict.

      Additionally, at trial it was made clear that Ms. Laurence was charged

as a co-defendant in the matter and was offered leniency, specifically

probation, in exchange for her testimony.           N.T., 11/2/09, at 53-57.

Ms. Laurence also admitted on cross-examination that she had a history of

convictions for crimes that involved dishonesty or false statements and that

she had used aliases before.        Id. at 54-55.   Thus, evidence calling into

question Ms. Laurence’s credibility already had been introduced at trial.

Accordingly, we cannot agree that it is likely that the letter would compel a

different verdict.   Moreover, Appellant states in his PCRA petition that

Ms. Laurence is deceased. PCRA Petition, 5/22/14, at 4. The unavailability

of Ms. Laurence, coupled with the vague nature of the content contained in

her letter, is insufficient to establish that the recantation testimony would

likely compel a different result.


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      Thus, we agree with the PCRA court’s determination that the

underlying claim has no arguable merit. Because the underlying assertion

lacks arguable merit, Appellant has failed to establish a claim of ineffective

assistance of counsel.

      Appellant next contends that appellate counsel was ineffective for

failing to investigate after-discovered evidence pertaining to Stacey Bulford.

Appellant’s Brief at 6.    In support of this claim, Appellant presents the

following verbatim explanation:

      Petitioner made an after-discovered evidence on commonwealth
      key witness Stacy Bulford, she made statements to two men
      who she was trying to by drugs from that she lied about
      everything and that the police forced her to do so and so did
      Mr. Sharp who was supporting her drug habit, These two men
      informed petitioners brother what was said and stated to him
      they would testify to this, petitioner brother then notified this
      petitioner of these events taken place.

Appellant’s Brief at 6.   In his PCRA petition, Appellant identifies these two

men as John Stenger and Donny Ukalettie. PCRA Petition, 5/22/14, at 6-7.

      We first note that the proposed testimony is not valid after-discovered

evidence because it is merely an attack on Ms. Bulford’s credibility.

Furthermore, in his no-merit letter, PCRA counsel Attorney Carey stated that

during his representation of Appellant, counsel was unable to make contact

with any of the following proposed witnesses: William Stetter (Appellant’s

brother), John Stenger, or Donny Ukalettie. PCRA Counsel No-Merit Letter,

8/27/14, at 10.   Thus, the veracity of Appellant’s assertion has not been

confirmed, and this “after-discovered evidence” is no more than Appellant’s

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unsupported statement.         Because the underlying claim lacks merit, we

cannot agree that appellate counsel was ineffective. This claim also fails.

      In his next issue, although inartfully pled, it appears that Appellant is

attempting to argue that trial counsel was ineffective for failing to argue that

evidence presented at trial was insufficient to sustain his convictions.

Appellant’s Brief at 5, 7. Appellant identifies in his brief inconsistencies in

testimony among the witnesses at trial. Id. at 7-8. To the extent Appellant

is making an insufficiency of evidence argument, we conclude that the

underlying claim of insufficiency of the evidence due to the inconsistencies in

trial testimony was previously addressed by a panel of this Court, and this

Court determined those claims lacked merit. Commonwealth v. Stetter,

711 WDA 2010 (unpublished memorandum at 7-10).                    Because the

underlying claim lacks arguable merit, Appellant’s claim for ineffective

assistance of counsel fails.

      In his final issue, Appellant alleges “Ineffective assistance of counsel

for failing to investigate the witness’s and the alleged co-conspirator,

Mary Laurence.”     Appellant’s Brief at 5.    Despite identifying this as a

separate issue, Appellant fails to provide any argument regarding counsel’s

failure to investigate “witnesses” or Mary Laurence beyond the arguments he

raised in relation to previous issues addressed herein.     Because Appellant

has failed to develop any argument on this issue, we find this claim waived.

See Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007)


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(“The failure to develop an adequate argument in an appellate brief may [ ]

result in waiver of the claim” under Pa.R.A.P. 2119.).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/22/2015




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