J-S66007-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT
                                                               OF
                                                          PENNSYLVANIA
                             Appellee

                        v.

    JOHN RANDOLPH SLOAN,

                             Appellant                  No. 1745 WDA 2016


            Appeal from the PCRA Order Entered November 1, 2016
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0013842-2011


BEFORE: BENDER, P.J.E., DUBOW, J., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                      FILED DECEMBER 21, 2017

        Appellant, John Randolph Sloan, appeals from the post-conviction

court’s November 1, 2016 order dismissing his petition filed pursuant to the

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.1 We affirm.

        In a prior Pa.R.A.P. 1925(a) opinion, the trial court described the factual

background of this case as follows:
        On September 18, 2011, Sonya Smith was watching television
        inside the second floor bedroom of her residence … in the Penn
        Hills section of Allegheny County. Smith and Appellant’s co-
        defendant, Mark Martin, had been involved in an intimate
        relationship since 2006, but became estranged in May 2011.
        Appellant grew up in the same neighborhood as Smith and had
        contact with Smith during the course of her relationship with

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*   Retired Senior Judge assigned to the Superior Court.

1Although the PCRA court dated its order as October 31, 2016, it was not
entered on the docket until November 1, 2016.
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     Martin, as Appellant and Martin were friends. Martin was familiar
     with Smith’s residence from staying there during their
     relationship. Smith had locked all of the doors to her house before
     retiring to her bedroom. At approximately 3:45 A.M.[,] Smith was
     awakened by the voices of Appellant and Martin outside of her
     home below her bedroom window. Smith called the police when
     she heard prying noises at the kitchen window, which was directly
     below her bedroom. Appellant and Martin, who were unable to
     gain entry through the locked doors, broke through a window pane
     in the kitchen door to gain entry to Smith’s home through that
     door.

     Shortly thereafter, Appellant, wearing black sweatpants, a black
     sweatshirt, gloves, a Halloween mask and a paintball mask,
     entered Smith’s bedroom holding a 9mm firearm. Appellant
     ordered Smith to lie on her bed facedown and struck Smith in the
     head and arms multiple times with the firearm. Martin, who was
     wearing light colored clothes and a ski mask, entered Smith’s
     bedroom shortly after Appellant. Both men straddled Smith and
     struck her multiple times in the arms and head; Appellant with the
     9mm firearm and Martin with a heavy object, most likely a
     crowbar. Smith sustained a total of nine broken bones in her
     arms, bruising on her arms and back, and a concussion. As a
     result of the attack[,] Smith spent several days in the hospital and
     one month in a nursing facility for rehabilitation.

     Following the assault, the two men fled the residence. Martin left
     first, exiting through the sliding glass door in the dining room, a
     door that because of its “stickiness” could only be opened by
     someone familiar with the premises. At the same time[,] Penn
     Hills police officers arrived on [the] scene in response to Smith’s
     911 call. As Officer Ronald Como approached Smith’s residence[,]
     he saw Martin jog across the street, away from Smith’s home.
     Officer Richard Pine approached from the opposite direction and
     witnessed Appellant, a short, black male with a distinct beard,
     exiting out the side kitchen door of Smith’s residence. Appellant
     ran towards the rear[-]wooded area of the home. Officer Pine
     gave a description of the man and his direction of travel over the
     radio. As Appellant fled[,] he discarded the paintball mask and
     hat that he wore during the assault in the wooded area behind
     Smith’s home.        Appellant continued to flee the scene, and
     discarded the Halloween mask outside a nearby residence as he
     made his way to Frankstown Road.



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       Penn Hills Sergeant Patrick Manning, responding to Smith’s
       residence, observed Appellant jogging on Frankstown Road as the
       sergeant traveled toward the Smith residence. Appellant was less
       than one-half mile away from Smith’s residence when he was
       observed by Sergeant Manning. Sergeant Manning, based on the
       information broadcast by officers Pine and Como, stopped and
       made contact with Appellant. Appellant, who had no identification
       on him, was wearing black sweatpants, a black sweatshirt, had a
       distinctive beard, and had mud and grass stains on his shoes.
       Appellant told Sergeant Manning that he had been in a domestic
       altercation nearby and was out “blowing off steam.” Appellant
       was taken to the police station for interview and identification
       purposes. At that time[,] Smith was hospitalized and not available
       for interviewing purposes[;] consequently Appellant, once
       identified, was released from custody pending further
       investigation.

       A paintball mask and hat were recovered from the wooded area
       behind Smith’s residence, and the Halloween mask was recovered
       from the neighbor’s yard…. The hat and paintball mask were
       tested and the DNA on both items was a match to Appellant. At
       trial[,] Smith identified the Halloween and paintball masks as the
       masks worn by Appellant during the assault. Additionally, Smith
       identified Appellant by his voice and his bowlegged gait….

Trial Court Rule 1925(a) Opinion (TCO), 10/21/2014, at 5-8 (internal citations

to record and footnote omitted).

       A jury trial took place on October 15-23, 2013.2 Important to the issues

presently on appeal, on October 16, 2013, after the parties had finished

picking the jury, Appellant made an oral motion to sever his trial from his co-

defendant’s, Martin, trial. The trial court denied Appellant’s motion, and the

case proceeded to a joint trial.




____________________________________________


2We note that a prior jury trial occurred on April 9-13, 2012, and ended in a
mistrial when that jury was unable to reach a verdict.

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      Following the joint trial, the jury convicted Appellant of aggravated

assault, 18 Pa.C.S. § 2702(a)(1), burglary, 18 Pa.C.S. § 3502(c)(1), and

conspiracy to commit aggravated assault, 18 Pa.C.S. § 903(c).         Appellant

received an aggregate sentence of twelve to twenty-four years’ imprisonment.

Thereafter, he filed a post-sentence motion, claiming, inter alia, that he did

not receive a fair trial because the trial court denied his request for a

severance of trials.   The trial court denied his post-sentence motion, and

Appellant then filed a timely appeal to this Court. In a court-ordered Pa.R.A.P.

1925(b) statement, Appellant again alleged that the trial court erred when it

denied his motion to sever. In response, in its Rule 1925(a) opinion, the trial

court stated that Appellant had waived this issue because “[w]hile it was noted

on Appellant’s information that his motion to sever was denied on October 16,

2013, nothing in the record indicates that a formal written motion to sever

was filed, nor was a hearing, argument, or decision to deny the severance

transcribed.” TCO at 14. As a result, the trial court explained that it could

not “know on what basis Appellant sought a severance from co-defendant

Mark Martin.” Id.

      On June 22, 2015, in an unpublished memorandum, we affirmed

Appellant’s judgment of sentence. Commonwealth v. Sloan, 122 A.3d 1140

(Pa. Super. 2015) (unpublished memorandum). Notably, Appellant did not

raise his severance claim to this Court.

      On August 4, 2015, Appellant filed a pro se PCRA petition. The PCRA

court appointed counsel to represent Appellant.       On February 26, 2016,

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Appellant filed an amended PCRA petition, arguing, among other things, that

his direct appeal counsel was ineffective because he failed to investigate and

uncover that Appellant’s trial counsel, in fact, had placed the motion to sever

on the record.3         As a result, Appellant contended that “but for the

ineffectiveness of [his direct appeal] counsel, the trial court’s decision to deny

the Motion to Sever would have been subject to appellate review.”            See

Appellant’s Amended PCRA Petition, 2/26/2016, at 12 (unnumbered pages).

After the Commonwealth filed an answer, the PCRA court issued a

Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s petition, and




____________________________________________


3Appellant gave the following explanation as to why the motion to sever did
not previously appear in the record:
       After speaking to trial counsel, who was adamant that his motion
       to sever on behalf of [Appellant] was put on the record, [PCRA]
       counsel contacted [the] court reporter…. After speaking with [the
       court reporter] on several occasions and having her review the
       proceeding, she was able to locate a part of the transcript that
       had not been transcribed into the trial transcripts, because the
       motion, which was on the record, was heard in the midst of several
       other cases that [the trial court] was presiding over on October
       16, 2013. [The court reporter] promptly transcribed the motion
       and provided counsel with a copy for review. Said transcript
       revealed that [Appellant’s trial counsel] provided an argument on
       the record to sever the case based upon evidence that was to be
       heard which related only to [Appellant’s] co-defendant, Martin.
       [Trial counsel] argued that this evidence that was set to be
       introduced, which included witnesses whose testimony would
       delve further than just the facts surrounding the incident in which
       [Appellant] was charged with, would be prejudicial to [Appellant].

Appellant’s Amended PCRA Petition, 2/26/2016, at 10 (unnumbered pages).


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Appellant filed an objection in response. On November 1, 2016, the PCRA

court entered an order denying Appellant’s PCRA petition.

      On November 16, 2016, Appellant filed a timely notice of appeal to this

Court. The PCRA court did not direct Appellant to file a Pa.R.A.P. 1925(b)

statement of errors complained of on appeal. Presently, Appellant raises the

following issues for our review:
         1) Whether prior appellate counsel was ineffective for failing to
            raise a meritorious claim on direct appeal regarding the
            motion to sever, which in the circumstances of the particular
            case, so undermined the truth-determining process that no
            adjudication of guilt or innocence could have taken place.

         2) Whether there was a violation of the Constitution of the
            Commonwealth or the Constitution 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.

Appellant’s Brief at 5 (unnecessary capitalization omitted).

      Our standard of review regarding an order denying post-conviction relief

is whether the findings of the PCRA court are “supported by the record and

free of legal error.” Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa.

2010) (citations omitted). With respect to Appellant’s ineffectiveness claims,
      [an a]ppellant is required to plead and prove by a preponderance
      of the evidence … that the conviction or sentence resulted from …
      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. It is the ineffectiveness claim, not the underlying error at
      trial, which is reviewed.      To establish ineffectiveness, [the]
      appellant must show: (1) the claim has arguable merit; (2)
      counsel had no reasonable strategic basis for his or her action;
      and (3) but for the errors and omissions of counsel, there is a
      reasonable probability that the outcome of the proceedings would


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      have been different. [An a]ppellant bears the burden of proving
      all three prongs, failure to prove any of these prongs is sufficient
      to warrant dismissal of the claim without discussion of the other
      two.

Commonwealth v. Robinson, 877 A.2d 433, 439 (Pa. 2005) (internal

citations and quotation marks omitted).

      In his first issue, Appellant argues that his direct appeal counsel was

“ineffective for his failure to address the trial court’s decision to deny …

Appellant’s Motion to Sever on appeal[,] which resulted in Appellant’s

appellate rights on the issue being waived.”           Appellant’s Brief at 12.

Consequently, Appellant claims to have suffered prejudice because he could

not seek appellate review of the trial court’s decision on his motion to sever.

Id. In addition, he claims that he “suffered severe prejudice from being tried

along with his co-defendant, Martin.” Id.

      “The decision whether to sever trials of co-defendants is within the

sound discretion of the trial court and will not be disturbed on appeal absent

a manifest abuse of that discretion.” Commonwealth v. Bond, 985 A.2d

810, 824 (Pa. 2009) (citation omitted). “The determinative factor is whether

the defendant has been prejudiced by the trial court’s refusal to sever his trial,

and it is the burden of the defendant to establish such prejudice.” Id. Further,

our Supreme Court has explained:
      Where, as here, the crimes charged against each defendant arise
      out of the same facts and virtually all of the same evidence is
      applicable to both defendants, this Court, as well as the United
      States Supreme Court, have indicated a preference to encourage
      joint trials to conserve resources, promote judicial economy, and
      enhance fairness to the defendants:


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         It would impair both the efficiency and the fairness of the
         criminal justice system to require ... that prosecutors bring
         separate proceedings, presenting the same evidence again
         and again, requiring victims and witnesses to repeat the
         inconvenience (and sometimes trauma) of testifying, and
         randomly favoring the last tried defendants who have the
         advantage of knowing the prosecution’s case beforehand.
         Joint trials generally serve the interests of justice by
         avoiding inconsistent verdicts and enabling more accurate
         assessment of relative culpability.

      Given this preference, the burden is on defendants to show a real
      potential for prejudice rather than mere speculation. Separate
      trials of co-defendants should be granted only where the defenses
      of each are antagonistic to the point where such individual
      differences are irreconcilable and a joint trial would result in
      prejudice. Although antagonistic defenses are a factor for a trial
      court to consider in determining whether to grant a motion to
      sever, the fact that defendants have conflicting versions of what
      took place, or the extent to which they participated in it, is a
      reason for rather than against a joint trial because the truth may
      be more easily determined if all are tried together.

Commonwealth v. Rainey, 928 A.2d 215, 231-32 (Pa. 2007) (internal

citations and quotation marks omitted). Further, “[w]here … the defendants

have been charged with conspiracy, joint, rather than separate, trials are

preferred.” See, e.g., Commonwealth v. Marinelli, 690 A.2d 203, 212-13

(Pa. 1997) (citation omitted).

      In the case sub judice, Appellant maintains that “he suffered significant

prejudice from being tried along with Martin as evidence was presented at trial

that would not have been admissible if Appellant were tried separate.”

Appellant’s Brief at 16. Specifically, he states that “the evidence introduced,

including the Commonwealth’s entry of several phone calls … created … sort

of an element to [the] case that is unique to Mark Martin, but not unique to …



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Appellant.”    Id. (citation to record, internal quotations marks, and original

brackets omitted).       Moreover, according to Appellant, “[t]here was also

significant evidence that was admitted against Martin that had no relation to

the case involving Appellant[,]” which “included two … witnesses … who saw

Martin as he was seeking shelter in their residences while police were

searching for suspects on the night the crime occurred.” Id. at 16-17.

       Notwithstanding, Appellant does not elaborate on the content of the

above-mentioned evidence, let alone where to find it in the record.4          See

Pa.R.A.P. 2119(c) (“If reference is made to … evidence, … or any other matter

____________________________________________


4 Our review of Appellant’s motion to sever, post-sentence motion, and initial
Pa.R.A.P. 1925(b) statement also provide little insight. Arguably, the most
detailed description of the supposedly prejudicial evidence appears in his oral
motion to sever. In moving to sever the trials, Appellant’s trial counsel
claimed:

       With regard to the jail calls for Mr. Martin, [the Commonwealth]
       has informed me of the discussions that were held yesterday after
       we were done picking the jury, and it seems that there is now an
       element to the Commonwealth versus Mark Martin case for this
       retrial that was not as present for the first trial; namely, a bunch
       of phone calls about working on his alibi, about working on his
       witnesses, which has created sort of an element to this case that
       is unique to Mark Martin, but not unique to [Appellant]. It has
       nothing to do with [Appellant].

       Because of that — Your Honor may see where I’m going with this
       — we feel the case is stronger against Mark Martin.

       We feel trying it with [Appellant] will prejudice the case against
       [him] now since there’s a deviation from the common facts of just
       the witnesses and about what happened that night, and I would
       ask Your Honor and make a formal motion to sever the case.

N.T., 10/16/2013, at 4-5.

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appearing in the record, the argument must set forth, in immediate connection

therewith, or in a footnote thereto, a reference to the place in the record where

the matter referred to appears[.]”). Moreover, Appellant does not develop an

argument as to why this evidence prejudiced him. See Commonwealth v.

Hardy, 918 A.2d 766, 771 (Pa. Super. 2007) (“The brief must support the

claims with pertinent discussion, with references to the record and with

citations to legal authorities. … This Court will not act as counsel and will not

develop arguments on behalf of an             appellant.”) (citations omitted).

Accordingly, we deem Appellant’s argument waived.

      Nevertheless, even if not waived, we would determine Appellant’s claim

lacks arguable merit. From what we can glean from our examination of the

record, Appellant complains of phone calls Martin made from jail to

purportedly establish an alibi and solicit others to hurt Sonya Smith, as well

as testimony from two witnesses who encountered Martin seeking shelter as

police searched for suspects on the day in question. Appellant claims that

such evidence created a “stronger” case against Martin, and would not have

been admissible if Appellant had been tried separately. See Appellant’s Brief

at 15; N.T., 10/16/2013, at 4. This argument is unpersuasive.

      As the trial court discerned, “Appellant and co-defendant Mark Martin

were charged with participating in the same series of acts, namely the

burglary of Sonya Smith’s home and the brutal assault, and both defendants

were charged with conspiracy.” TCO at 15. Therefore, because Appellant and

Martin faced conspiracy charges, a joint trial was appropriate and “preferred.”

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Marinelli, 690 A.2d at 212-13 (citation omitted). In addition, Appellant does

not state that he and Martin’s defenses were antagonistic and irreconcilable.

See Rainey, 928 A.2d at 232 (“Separate trials of co-defendants should be

granted only where the defenses of each are antagonistic to the point where

such individual differences are irreconcilable and a joint trial would result in

prejudice.”) (citation omitted).   Indeed, in her closing argument, Martin’s

counsel did not even remotely implicate Appellant; instead, she primarily

focused on attacking Sonya Smith’s credibility and pointing out the

inconsistencies in her testimony. See, e.g., N.T., 10/22/2013, at 774, 776-

78.   While Appellant may believe that the Commonwealth’s case against

Martin was “stronger,” we observe that “the mere fact that one defendant

might have a better chance of acquittal if tried separately is an insufficient

ground to require severance.” Commonwealth v. Jones, 668 A.2d 491, 501

(Pa. 1995) (citation omitted). We also note that the trial court instructed the

jury to “consider the evidence as to each defendant, and decide the cases

separately, of course, in the sense [that] the Commonwealth must prove each

and every element against each defendant before you can find either of them

guilty.” N.T., 10/22/2013, at 856.     Finally, as stated supra, the joint trial

spanned from October 15-23, 2013, involved over twenty witnesses, and —

based on our cursory assessment of the trial transcripts — mostly included

evidence regarding the common crimes for which Appellant and Martin were

charged, i.e., the burglary and assault of Sonya Smith. Thus, the joint trial

promoted judicial economy.

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      Based on the foregoing, we would not determine that the trial court

abused its discretion in denying Appellant’s motion for severance. While we

acknowledge that Appellant’s counsel likely could have pursued this issue on

direct appeal if he had practiced greater diligence, Appellant’s claim lacks

merit and would not have warranted relief. Accordingly, even if not waived,

Appellant’s ineffectiveness argument would fail.

      In his second issue, Appellant argues that “[t]he ineffectiveness of

counsel in failing to pursue the denial of Appellant’s Motion to Sever on appeal

denied Appellant his right to effective representation in this case.” Appellant’s

Brief at 17. Thus, according to Appellant, “[t]he apparent ineffectiveness of

appellate counsel violated Appellant’s rights afforded to him by the Sixth

Amendment of the United States Constitution.” Id. at 17-18. Because we

would not consider Appellant’s counsel ineffective for the reasons discussed

above, we likewise would conclude that Appellant’s constitutional rights under

the Sixth Amendment were not violated on this basis.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/21/2017

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