J-S21011-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JOHN HOPSON,

                            Appellant                   No. 76 EDA 2015


        Appeal from the Judgment of Sentence Entered January 21, 2011
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0014793-2009


BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                          FILED APRIL 29, 2016

        Appellant, John Hopson, appeals nunc pro tunc from the judgment of

sentence of an aggregate term of 4 to 8 years’ incarceration, imposed after

a jury convicted him of robbery (18 Pa.C.S. § 3701(a)(1)(ii)), theft by

unlawful taking (18 Pa.C.S. § 3921(a)), receiving stolen property (RSP) (18

Pa.C.S. § 3925(a)), and terroristic threats (18 Pa.C.S. § 2701(a)(1)). After

careful review, we affirm.

        The trial court summarized the evidence presented at Appellant’s trial,

which commenced on November 30, 2010, as follows:

              The Commonwealth presented several witnesses during
        Appellant’s three-day trial, including Vanessa Montijo (“Ms.
        Montijo”), Rainer Young (“Mr. Young”), Eddie Almodovar (“Mr.

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     Almodovar”), and Philadelphia Police Detective Joseph Garvin
     (“Detective Garvin”).

            Ms. Montijo testified that on January 26, 2009, she was a
     bank teller at an M&T Bank located at 7121 Frankford Avenue, in
     the city and county of Philadelphia, Pennsylvania. Around 11:35
     a.m., a male “dressed in black from head to toe” approached Ms.
     Montijo’s teller window and handed her a note stating: “This is
     not a joke. You have 30 seconds to empty your drawers. No
     funny stuff or I will hurt you.       Take me serious.”    (N.T.,
                            1
     11/30/10, pp. 13-20).
       1
        The Commonwealth submitted the note into evidence as
       Exhibit “C-3.”

            Ms. Montijo immediately filled a bag with money, while the
     male ordered her to “hurry up” and threatened to “hurt” and
     “kill” her if he was “caught.” Ms. Montijo felt “threatened” and
     “scared” by the male’s remarks and complied with his demands
     in order “to keep [her] and … [her] coworkers safe.” After the
     male left the bank with $20,644.00, Ms. Montijo advised the
     bank’s head teller of the robbery and pressed the security alarm.
     The bank’s surveillance cameras had photographed the robber,
     who was wearing a black coat, black hat, black gloves, and dark
     sunglasses. (N.T., 11/30/10, pp. 17-24; and Exhibit “C-4”).

           Mr. Young testified that he had known Appellant “from the
     neighborhood” for approximately three (3) years, and that he
     and Appellant were incarcerated together at Bucks County
     Correctional Facility in May 2009. While incarcerated, Appellant
     advised Mr. Young of “a few bank robberies that he had gotten
     away with,” including the robbery of M&T Bank. According to Mr.
     Young, Appellant described how he saw one of the bank’s
     surveillance photographs in the newspaper and “was kind of
     laughing,” as the photograph obviously was of Appellant “but
     nobody seemed to notice.”        Mr. Young likewise had seen
     Appellant’s newspaper photo and contacted the legal authorities
     after Appellant described the robbery in several jailhouse
     conversations.2 In June 2009, Mr. Young gave a “statement”
     about these conversations to Detective Garvin and Special Agent
     for the Federal Bureau of Investigation (FBI), Todd Berry. (N.T.,
     11/30/10, pp. 36-56).3
       2
          Mr. Young testified that the man in the bank’s
       surveillance photographs is Appellant. (N.T., 11/30/10,
       pp. 36-40).

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       3
         At the time of trial, Mr. Young had a criminal history that
       included a theft conviction in 2001 and a guilty plea to
       theft charges in 2004. Mr. Young also admitted that he
       used several aliases in the past. In his transcription of Mr.
       Young’s statement, which the Commonwealth introduced
       as Exhibit “C-5C,” Detective Garvin indicated that Mr.
       Young contacted the authorities because he sought to
       obtain an early release from incarceration so that his child
       would not be placed in foster care. Although Mr. Young
       testified at trial that he was concerned about his child[’s]
       being placed in foster care, he claimed that the
       Commonwealth neither offered nor bestowed him any
       favorable treatment in exchange for his statement and
       testimony. (N.T., 11/30/10, pp. 43-56).

           Mr. Almodovar testified that in the Spring or Summer of
     2009, while [he was] in custody and awaiting sentenc[ing] on
     robbery charges, he contacted Detective Garvin and Agent Berry
     and advised that an individual approached him to buy drugs in
     January or February of 2009.        The individual showed Mr.
     Almodovar a bag of money and advised that he robbed the M&T
     Bank on Frankford Avenue. Around the time of this encounter,
     Mr. Almodovar saw the newspaper photo of the robbery suspect
     and “thought” the individual that approached him was the same
     person from the photo. (N.T., 12/1/10, pp. 4-20).4
       4
         At the time of trial, Mr. Almodovar was serving a fifteen
       (15) to thirty (30) year[] sentence on robbery-related
       charges.     Mr. Almodovar testified that before being
       sentenced on these charges, he spoke to Detective Garvin
       and Agent Berry about Appellant and several other
       individuals, hoping that his cooperation would favorably
       affect his sentence. (N.T., 12/1/10, pp. 13-20).

            Detective Garvin testified that he investigated the robbery
     and provided the bank’s surveillance photographs to the
     Philadelphia Daily News. After the newspaper published one of
     the photos, Detective Garvin was contacted by Messrs.
     Almodovar and Young, whom the detective interviewed,
     respectively, in March 2009 and June 2009. Detective Garvin
     testified that Messrs. Almodovar and Young gave statements
     advising that an individual named John Hopson separately
     approached each of them, at different times and different places,
     and admitted to robbing the M&T Bank. To confirm that Messrs.
     Almodovar and Young were speaking of the same person, the

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       detective showed them photographs of Appellant that the
       Commonwealth subsequently introduced at trial as Exhibits “C-9”
       and “C-10.” During their respective interviews, Mr. Almodovar
       wrote on Exhibit “10” that the photographed individual is the
       “person who was bragging about [r]obbing the bank,” and Mr.
       Young wrote on Exhibit “C-9” that the photographed individual is
       the “person who admitted” robbing the bank. (N.T., 12/01/10,
       pp. 20-44; and Exhibits “C-9” and “C-10”).5
          5
            This [c]ourt admitted the police photographs over the
          objections of defense counsel. (N.T., 12/01/10, pp. 25-27,
          29-30, 43-50).

Trial Court Opinion (TCO), 6/1/15, at 2-4 (emphasis omitted).

       Based on this evidence, the jury convicted Appellant of the above-

stated offenses. On January 21, 2011, he was sentenced to an aggregate

term of 4 to 8 years’ incarceration. Appellant did not file a post-sentence

motion or a direct appeal. However, on May 2, 2011, he filed a timely, pro

se petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-

9546. Counsel was appointed and filed an amended petition on Appellant’s

behalf, seeking, inter alia, the restoration of his direct appeal rights. After

conducting a hearing, the PCRA court granted Appellant’s petition, thus

reinstating his right to file this direct appeal nunc pro tunc.1 Appellant filed

a timely notice of appeal, and also timely complied with the trial court’s

order to file a Pa.R.A.P. 1925(b) concise statement of errors complained of

on appeal. Herein, Appellant presents the following issues for our review:
____________________________________________


1
  The court’s order stated that all other claims presented in Appellant’s PCRA
petition were deemed withdrawn, without prejudice to his right to raise
those claims following our disposition of Appellant’s direct appeal. See Trial
Court Order, 1/7/15.



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      1. Whether the evidence was sufficient to prove [Appellant]
      guilty of the following charges: Robbery § 3701; Theft § 3921;
      RSP § 3925; and Terroristic Threats § 2706 where the court
      improperly admitted evidence through the testimony of the
      detective when the witnesses did not adopt the written
      statements and where the testimony given by the detective was
      not elicited from or presented by the witnesses?

      2. Whether the verdict was against the weight of the evidence
      where improperly admitted evidence was utilized by the jury to
      reach a verdict that shocks one sense of justice?

      3. Whether the trial court erred by permitting a witness to
      identify [] Appellant as the person depicted in the photo when
      said witness was not an eye witness to the act depicted in the
      photo and where his conclusion that Appellant was the person in
      the photo should have been determined by the jury?

      4. Whether the trial court erred by admitting hearsay testimony
      of Detective Garvin who testified about information he received
      from Young when Young did not testify regarding notations on
      the back of C9 and information the detective received from an
      anonymous tip that provided Appellant’s name?

      5. Whether trial counsel was ineffective for failing to: investigate
      an alibi witness; consult with the client for trial preparation, to
      investigate Commonwealth witnesses for trial; … object to
      admission of C9 and C10; object to the detective’s reading of
      writing on the back of a photo that had not been testified to by
      the witness; move the court for a curative instruction when []
      Young was permitted to testify regarding other bank robberies
      relating to Appellant; object to the Commonwealth[’s] question
      to the detective of whether [] Appellant gave a statement to
      police; and file a post[-]sentence motion?

Appellant’s Brief at 8-10.

      Appellant first challenges the sufficiency of the evidence to sustain his

convictions of robbery, theft, RSP, and terroristic threats.

           In reviewing a sufficiency of the evidence claim, we must
      determine whether the evidence admitted at trial, as well as all
      reasonable inferences drawn therefrom, when viewed in the light
      most favorable to the verdict winner, are sufficient to support all
      elements of the offense. Commonwealth v. Moreno, 14 A.3d

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      133 (Pa. Super. 2011). Additionally, we may not reweigh the
      evidence or substitute our own judgment for that of the fact
      finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
      2009). The evidence may be entirely circumstantial as long as it
      links the accused to the crime beyond a reasonable doubt.
      Moreno, supra at 136.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).

      Initially, in Appellant’s Rule 1925(b) statement, he did not specify

which element(s) of the above-offenses the Commonwealth failed to prove;

instead, he baldly claimed that, “the evidence was insufficient to prove

[Appellant] guilty of the following charges: Robbery § 3701; Theft § 3921;

RSP § 3925; and Terroristic Threats § 2706.” Pa.R.A.P. 1925(b) Statement,

2/12/15, at 1.      Additionally, in his brief to this Court, Appellant offers no

discussion of how the Commonwealth’s evidence was insufficient to prove

any specific element(s) of the various crimes for which he was convicted. As

such, we conclude that Appellant’s boilerplate presentation of his sufficiency

challenge in his Rule 1925(b) statement, and his underdeveloped argument

on appeal, waives his sufficiency of the evidence issue for our review. See

Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009) (finding

the   appellant’s    sufficiency   claim   waived   where   his   argument   was

underdeveloped, he did not “set forth the elements of the crimes he was

convicted” or “which specific elements were not met[,]” and he failed in his

Rule 1925(b) statement to “‘specify the element or elements upon which the

evidence was insufficient’ in order to preserve the issue for appeal”)

(citations omitted).



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      Nevertheless, even had Appellant preserved his sufficiency claim, we

would deem it meritless. Appellant’s entire sufficiency argument centers on

challenging the court’s admission of certain evidence. While Appellant does

not explicitly state as much, he suggests that this Court should assess only

the properly admitted evidence, and conclude that it was inadequate to

sustain his convictions.

      To do so would be contrary to our standard of review.        In analyzing

the sufficiency of the evidence, we evaluate all of the evidence that was

presented to the fact-finder during the trial, “without consideration as to the

admissibility of that evidence.”   Commonwealth v. Smith, 568 A.2d 600,

602-603 (Pa. 1989).

      The question of sufficiency is not assessed upon a diminished
      record. Where improperly admitted evidence has been allowed
      to be considered by the jury, its subsequent deletion does not
      justify a finding of insufficient evidence. The remedy in such a
      case is the grant of a new trial.

Id. at 603 (internal citations omitted); see also Koch, 1001 (“[I]n

conducting our analysis [of the sufficiency of the evidence], we consider all

of the evidence actually admitted at trial and do not review a diminished

record.”).    Accordingly, even if preserved, we would conclude that

Appellant’s challenge to the sufficiency of the evidence is meritless.

      In Appellant’s second issue, he argues that the jury’s verdict was

contrary to the weight of the evidence. To properly preserve a challenge to

the weight of the evidence, that claim must be raised before the trial court.

See Pa.R.Crim.P. 607(A).      Appellant did not file a post-sentence motion

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raising this issue, and he fails to point to where in the record he preserved

this claim prior to sentencing.      Pa.R.A.P. 2119(e) (directing that the

appellant must set forth in the argument portion of his brief where in the

record he preserved the issue before the trial court).           Accordingly,

Appellant’s challenge to the weight of the evidence is also waived.

      Next, Appellant briefly argues that the trial court erred by allowing

Rainer Young to identify Appellant as the person seen in a photograph taken

by a security camera in the bank, where Young was “neither associated with

the commission of the crime nor a witness to the crime….” Appellant’s Brief

at 19.   Appellant contends that permitting Young’s identification “usurped

the province of the jury[,]” which is tasked with “disposing issues of fact in

criminal cases.” Id. at 18 (quoting Commonwealth v. Sanchez, 36 A.3d

24, 55 (Pa. 2011)).

      Again, we are constrained to deem Appellant’s claim waived. The only

issue presented in his Rule 1925(b) statement that could be viewed as

including the above-stated argument is the following: “The trial court erred

by permitting a witness to identify [Appellant] in a video when said witness

was not an eyewitness to the act depicted in the video[.]” Pa.R.A.P. 1925(b)

Statement, 2/12/15, at 2. In its opinion, the trial court declined to address

this issue, explaining:

            There was no “video” introduced at trial and, therefore,
      Appellant’s appeal on this ground is incomprehensible. Beyond
      that, since every witness that testified was shown photographs
      from the bank’s surveillance camera, Appellant’s bland reference
      to “said witness” is inexcusably vague and any appeal on this

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        ground is waived. Commonwealth v. Cannon, 954 A.2d 1222,
        1228 (Pa. Super. 2008) (“Where an appellant fails to identify the
        issues sought to be pursued on appeal in a concise manner, the
        trial court is impeded in its preparation of a legal analysis which
        is pertinent to those issues. … Essentially, when the trial court
        has to guess what issues an appellant is appealing, that is not
        enough for meaningful review.”).

TCO at 14 (emphasis in original).

        We agree with the trial court that Appellant’s reference to a video,

rather than a photograph, and his using “said witness” rather than

identifying Young by name, render his Rule 1925(b) statement inexcusably

vague.    See also Pa.R.A.P. 1925(b)(4)(ii) (“The Statement shall concisely

identify each ruling or error that the appellant intends to challenge with

sufficient detail to identify all pertinent issues for the judge.”).             This is

especially true where both Young and Almodovar were shown a picture

taken    from   the   bank’s    surveillance    camera,     over   defense     counsel’s

objections, and were asked questions regarding the identity of the person in

the photograph. See N.T. Trial, 11/30/10, at 40-41; N.T. Trial, 12/1/10, at

9-11. We also stress that even if the court were able to identify Appellant’s

claim    as   pertaining   to   Young’s   testimony,      Appellant’s   Rule    1925(b)

statement only explains that this evidence should not have been admitted

because Young was not an eyewitness; at no point did Appellant allude to his

argument, herein, that Young’s testimony ‘usurped the province of the jury.’

Accordingly, we agree with the court that Appellant’s third issue is waived.




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      In any event, even if Appellant had preserved his claim that it was

improper to admit Young’s testimony that Appellant was the person in the

photograph, we would deem his argument meritless.

      The standard of review employed when faced with a challenge to
      the trial court's decision as to whether or not to admit evidence
      is well settled. Questions concerning the admissibility of evidence
      lie within the sound discretion of the trial court, and a reviewing
      court will not reverse the trial court's decision absent a clear
      abuse of discretion. Commonwealth v. Hunzer, 868 A.2d 498
      (Pa. Super. 2005). Abuse of discretion is not merely an error of
      judgment, but rather where the judgment is manifestly
      unreasonable or where the law is not applied or where the record
      shows that the action is a result of partiality, prejudice, bias or ill
      will. Id.

Commonwealth v. Young, 989 A.2d 920, 924 (Pa. Super. 2010) (citation

omitted).

      Here, the Commonwealth argues, and we agree, that Young’s

statement that Appellant was the person in the photograph constituted

admissible opinion testimony. The applicable version of Pennsylvania Rule of

Evidence 701, addressing opinion testimony by a lay witness, provides, in

pertinent part:

      If the witness is not testifying as an expert, the witness’
      testimony in the form of opinions or inferences is limited to
      those opinions or inferences which are rationally based on the
      perception of the witness, helpful to a clear understanding of the
      witness’ testimony or the determination of a fact in issue, and
      not based on scientific, technical, or other specialized knowledge
      within the scope of Rule 702.




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See Pa.R.E. 701.2

       In this case, Young’s challenged testimony satisfies the requirements

of Rule 701. First, Young’s opinion that Appellant was the individual in the

photograph was based upon his own perception. Specifically, Young testified

that he recognized Appellant in the picture because he had known Appellant

for three years, and had interacted with Appellant when they lived in the

same neighborhood.         See N.T. Trial, 11/30/10, at 40-41.   Second, a fact

that was in issue at trial was whether Appellant was the person depicted in

the photograph taken during the bank robbery. Thus, Young’s opinion that

Appellant was the person seen in the photograph was helpful to determining

this fact.    Third, Young’s opinion was not based on any specialized or

technical knowledge that would fall within the scope of Rule 702, pertaining

to expert testimony. Accordingly, even if properly preserved, we would find

no merit in Appellant’s challenge to the admission of Young’s opinion

testimony that Appellant was the person in the photograph from the bank’s

surveillance camera.

       In Appellant’s next issue, he argues that the trial court erred by

admitting hearsay testimony by Detective Garvin.         Appellant’s confusing


____________________________________________


2
  Effective March 18, 2013, our Supreme Court rescinded and replaced this
rule of evidence. See Pa.R.E. 701, Comment. Appellant's trial preceded the
effective date of the revised rule and, thus, we apply the former version of
Rule 701 herein.




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argument in support of this claim seemingly identifies two portions of

purported hearsay testimony by the detective, which we will address in turn.

      First, Appellant takes issue with the fact that Detective Garvin was

“permitted to testify at trial regarding a notation on the back of

[Commonwealth’s Exhibit] C9….” Appellant’s Brief at 21. That exhibit was a

copy of a photograph that was shown to Ranier Young by the detective

during his interview of Young. Appellant specifically challenges testimony by

the detective during which the Commonwealth showed him the photograph

and asked him if he could read the writing on back of it. See id. (citing N.T.

Trial, 12/1/10, at 26).   Detective Garvin read the notation, which stated:

“This is the person who admitted doing the bank robberies at the M&T

Banks, Aramingo and Mayfair branches.”        Id. at 26-27.    The detective

testified that the notation was signed by Rainer Young, and that he was

present when Young wrote the statement and signed it.             Id. at 27.

Appellant argues that because “no testimony regarding the notation had

been provided by Young[,]” the detective’s testimony about what Young

wrote on the photograph was inadmissible hearsay. Appellant’s Brief at 21.

      In Appellant’s Rule 1925(b) statement, he presented this issue as

follows: “The trial court erred by admitting the testimony of Detective Garvin

who testified regarding hearsay statements by Mr. Almodovar, photos

shown to Mr. Almodovar and his responses, and the admission of

testimony regarding an anonymous tip[.]”      Pa.R.A.P. 1925(b) Statement,

2/12/15, at 2 (emphasis added). Appellant did not specifically challenge the

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testimony by Detective Garvin about Young’s written notation on the

photograph and, thus, the trial court did not address this claim in its opinion.

Accordingly, Appellant waived his challenge to Detective Garvin’s testimony

pertaining to Young’s written notation on the back of the photograph. See

Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement and/or not

raised in accordance with the provisions of this paragraph (b)(4) are

waived.”).

      Appellant also argues that the court erred by allowing Detective Garvin

“to testify, over objection, that he received Appellant’s name from an

anonymous tip, when the tipster did not testify at trial.” Appellant’s Brief at

21 (citing N.T. Trial, 12/1/10, at 30-31).        While we deem this claim

preserved, despite that Appellant did not specifically point to what testimony

he was challenging in his Rule 1925(b) statement, we conclude that the

court did not abuse its discretion in admitting this evidence. In the specific

portion of the record cited by Appellant in his brief, Detective Garvin

provided the following testimony regarding an anonymous tip:

      [The Commonwealth:] And, detective, based on your interviews
      with Eddie Almodovar and Rainer Young, did you speak to
      anyone else involving this investigation?

      [Detective Garvin:] Yes, ma’am. I received a telephone tip from
      a source --

      [Defense Counsel:] Objection, Your Honor, to hearsay.

      THE COURT: Without saying what this tipster said, just tell us
      what you did, please.

      …


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      [Detective Garvin]: Based on the information I received, I was
      led to believe that --

      [Defense Counsel]: Objection.

      THE COURT: Just tell us what you did, detective

      [Detective Garvin]: I put that information on the affidavit of
      probable cause.

N.T. Trial, 12/1/10, at 30-31.

      While    Appellant   baldly    states     that    this   testimony   constituted

inadmissible hearsay, he provides no further discussion, nor any legal

authority, to support that assertion. Hearsay is defined as “a statement that

… the declarant does not make while testifying at the current trial or

hearing[,]” that is “offer[ed] in evidence to prove the truth of the matter

asserted in that statement.” Pa.R.E. 801(c). Detective Garvin did not state

what the anonymous caller told him; instead, he simply explained that he

received information from a caller that he put into the affidavit of probable

cause.   The jury was never explicitly apprised of what that information

included. Moreover, even if the jury could have inferred from the detective’s

testimony that the caller identified Appellant as the bank robber, Appellant

does not provide any legal authority to support that raising such an

inference,    alone,   turns   the   detective’s       non-hearsay   testimony    into

inadmissible evidence.     Accordingly, Appellant has not demonstrated that

the trial court abused its discretion by admitting Detective Garvin’s

testimony regarding the anonymous caller.




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      In Appellant’s final issue, he raises eight claims of trial counsel

ineffectiveness.     We decline to review these claims on direct appeal.   In

Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), our Supreme Court

reaffirmed its prior holding in Commonwealth v. Grant, 813 A.2d 726 (Pa.

2002), that, absent certain circumstances, claims of ineffective assistance of

counsel should be deferred until collateral review under the PCRA. Holmes,

79 A.3d at 576.       The specific circumstances under which ineffectiveness

claims may be addressed on direct appeal are not present in this case. See

id. at 577-78 (holding that the trial court may address claim(s) of

ineffectiveness where they are “both meritorious and apparent from the

record so that immediate consideration and relief is warranted,” or where

the appellant’s request for review of “prolix” ineffectiveness claims is

“accompanied by a knowing, voluntary, and express waiver of PCRA

review”).   Accordingly, Appellant must wait to present these claims on

collateral review.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/29/2016



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