J-S21007-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 TERREL NOAKS                           :
                                        :
                     Appellant          :   No. 348 WDA 2019

           Appeal from the PCRA Order Entered February 19, 2019
   In the Court of Common Pleas of Allegheny County Criminal Division at
                      No(s): CP-02-CR-0013737-2011


BEFORE: LAZARUS, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                         FILED APRIL 17, 2020

     Terrel Noaks appeals, pro se, from the order, entered in the Court of

Common Pleas of Allegheny County, denying his petition filed pursuant to the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541-9546. Upon careful

review, we affirm.

     On February 4, 2014, a jury convicted Noaks of third-degree murder

and firearms not to be carried without a license. The charges stemmed from

the shooting death of Antwan Leake on August 14, 2011. This Court affirmed

Noaks’ judgment of sentence on August 25, 2017. See Commonwealth v.

Noaks, 1994 WDA 2014 (Pa. Super. filed Aug. 25, 2017) (unpublished

memorandum). Our Supreme Court denied allowance of appeal on December

27, 2017. See Commonwealth v. Noaks, 176 A.3d 858 (Pa. 2017) (Table).
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       On June 27, 2018, Noaks filed a timely, pro se PCRA petition. The PCRA

court appointed counsel, who filed a Turner/Finley1 “no-merit” letter and

motion to withdraw. On November 27, 2018, the PCRA court issued a notice

of intent to dismiss pursuant to Pa.R.Crim.P. 907. After receiving an extension

from the court, Noaks filed a pro se Rule 907 response on February 6, 2019.

That same day, the PCRA court granted counsel’s request to withdraw and

dismissed Noaks’ petition. Noaks filed a timely notice of appeal followed by a

Pa.R.A.P. 1925(b) court-ordered concise statement of errors complained of on

appeal. Noaks raises the following issues for our review:2

       [1.] [Noaks’] right to due process and a fair trial were violated by
       the prosecution’s misconduct in securing the testimony of key
       witnesses where said action was stripped of the essential
       adversarial nature of the criminal justice system by not declaring
       exception under hostile witness.

       [2.] The trial . . . court violated [Noaks’] state and federal due
       process rights by instructing the jury that [he] could be convicted
       of criminal homicide simply because [Noaks and his co-defendant


____________________________________________


1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

2 Noaks’ statement of the questions presented sets forth the following single
issue, verbatim: “Whether this pro se brief upon appeal from the PCRA court’s
February 6, 2019 final order [dismissal], merit redress is ‘a question of
exceptional circumstances and the laws’?” Brief of Appellant, at [2]. However,
the argument portions of his brief raises the three issues we have listed above.
Generally, issues that are not set forth in the statement of questions presented
or reasonably suggested thereby are deemed waived. See Pa.R.A.P., Rule
2116(a). However, because our appellate review is not hampered by Noaks’
failure to strictly comply with the Rules of Appellate Procedure, and in light of
his pro se status, we will address his claims raised in his brief.


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      were] partners therefore they are responsible for each others[’]
      actions.

      [3.] Trial counsel ineffectively failed to obtain an independent
      ballistics evaluation of the cartridge cases, and the court erred in
      allowing the admissibility of a real Glock-model 27, S&W 40-
      caliber firearm in prejudice to [Noaks].

Brief of Appellant, at [8], [10] (reordered for ease of disposition).

      This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by evidence of record and is free of legal error. Commonwealth v. Burkett,

5 A.3d 1260, 1267 (Pa. Super. 2010) (citations omitted). In evaluating a

PCRA court’s decision, our scope of review is limited to the findings of the

PCRA court and the evidence of record, viewed in the light most favorable to

the prevailing party at the trial level. Id.

      To be eligible for relief under the PCRA, a petitioner must plead and

prove, by a preponderance of the evidence, that his conviction or sentence

arose from one or more of the errors enumerated in the Act, see 42 Pa.C.S.A.

§ 9543(a)(2), and that the issues raised have not been previously litigated or

waived. See id. at (a)(3). Here, Noaks’ first and second claims, regarding

alleged prosecutorial misconduct and trial court error in instructing the jury,

could have been raised on direct appeal. Because he failed to do so, we find

them waived. See 42 Pa.C.S. § 9543(a)(3); see also Commonwealth v.

Ford, 809 A.2d 325 (Pa. 2002) (where claims of trial court error and

prosecutorial misconduct could have been raised on direct appeal and were

not, claims deemed waived under PCRA).


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      Noaks lastly asserts that trial counsel was ineffective for failing to obtain

an expert ballistics report and for “allowing the admissibility” of demonstrative

firearms evidence. Brief of Appellant, at [8]. Noaks’ entire argument with

respect this claim is as follows:

      Here, trial counsel was ineffective for failing to obtain and present
      a ballistic expert at trial, considering this was a case where the
      available ballistics raised but did not answer serious questions
      about the veracity of the Commonwealth’s key prosecutorial police
      and expert witnesses and its theory of the case.

Brief of Appellant, at [9] (unnecessary capitalization omitted).

      Pursuant to Pa.R.A.P. 2119, an appellant is required to support his

argument with “such discussion and citation of authorities as are deemed

pertinent.”   Pa.R.A.P. 2119(a). Here, Noaks neither identifies the “serious

questions” that allegedly exist with regard to the testimony of the

Commonwealth’s witnesses, nor offers any citation to relevant authority that

might be pertinent to his claim. “[I]t is a well[-]settled principle of appellate

jurisprudence that undeveloped claims are waived and unreviewable on

appeal.”   Commonwealth v. McDermitt, 66 A.3d 810, 814 (Pa. Super.

2013). Because Noaks has failed to provide this Court with any developed

advocacy on this issue, it must be deemed waived.            Commonwealth v.

Baumhammers, 92 A.3d 708, 744 (Pa. 2014).

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/17/2020




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