J-S66008-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

DONALD R. HOWARD,

                         Appellant                    No. 1696 WDA 2014


            Appeal from the PCRA Order of September 12, 2014
                In the Court of Common Pleas of Erie County
            Criminal Division at No(s): CP-25-CR-0000530-2010


BEFORE: OLSON, STABILE and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                           FILED JANUARY 05, 2016

      Appellant, Donald R. Howard, appeals from the order entered on

September 12, 2014, dismissing his first petition filed pursuant to the Post

Conviction Relief Act, 42 Pa.C.S.A. §§ 9141-9546. Upon review, we affirm.

      On direct appeal, we summarized the facts and procedural history of

this case as follows:

        On July 5, 2009, Ellen Martin (“Martin”) arrived at the home
        of her paramour, Ray Goodwill (“Goodwill”), which was
        located on West High Street in Union City, Pennsylvania. On
        the front door of Goodwill’s home, Martin discovered a note
        stating “When [sic] with Jerry. Talk to late[r].” N.T.,
        2/22/11, at 206, 207. Martin observed that the writing on
        the note was not in Goodwill’s handwriting. When Martin
        entered the residence, she found Goodwill dead. Goodwill
        had been bound with yellow rope and covered with blankets
        on the couch.

        Martin told investigators that Goodwill ordinarily kept his
        wallet in his shirt pocket. Martin also indicated that Goodwill
        kept a fake million[-]dollar bill in his wallet at all times. The

*Retired Senior Judge assigned to the Superior Court.
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          wallet had a chain that Goodwill kept attached to his
          suspenders. At the crime scene, however, investigators
          found Goodwill’s wallet on a dresser near the television set,
          with the fake million[-]dollar bill missing. The Erie County
          Coroner estimated Goodwill’s time of death as between
          10:00 p.m. on July 3, 2009, and 10:00 a.m. on July 4,
          2009.

          Investigators    questioned     [Appellant]   regarding   his
          whereabouts at the time of Goodwill’s death. [Appellant]
          provided several contradictory statements to investigators.
          Investigators also discovered that [Appellant] had used a
          fake million[-]dollar bill in a drug transaction after
          Goodwill’s death. Subsequently, the Pennsylvania State
          Police arrested [Appellant] and charged him with, inter alia,
          [second-degree murder, theft by unlawful taking, and
          burglary1]. [Appellant] proceeded to a jury trial on
          November 8, 2010. The trial court declared a mistrial on
          November 10, 2010, when the jury was unable to reach a
          verdict. On February 24, 2011, following [Appellant’s]
          re-trial, the jury convicted [Appellant] of [second-degree
          murder, robbery, theft by unlawful taking and burglary].
          The trial court subsequently sentenced [Appellant] to life in
          prison for his conviction of second[-]degree murder. For his
          conviction of burglary, the trial court sentenced [Appellant]
          to a concurrent prison term of two to [10] years. The
          remaining charges merged at sentencing. [Appellant] filed a
          direct appeal at 769 WDA 2011. This Court dismissed
          [Appellant’s] appeal. Thereafter, [Appellant] filed a
          [p]etition for relief pursuant to the [PCRA and the] PCRA
          court reinstated [Appellant’s] direct appeal rights nunc pro
          tunc.

Commonwealth v. Howard, 69 A.3d 1281 (Pa. Super. 2013) (unpublished

memorandum).         This Court affirmed Appellant’s judgment of sentence on

March 4, 2013. Id.


____________________________________________


1
    18 Pa.C.S.A. §§ 2502, 3701, 3921, and 3502, respectively.



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       On February 27, 2014, Appellant filed a pro se PCRA petition raising

two ineffective assistance of counsel claims, as well as a claim he was denied

the right to confront a witness whose testimony was permitted into evidence

through a police officer testifying at trial.          In his pro se PCRA petition,

Appellant indicated he did not want counseled representation. On June 5,

2014, the PCRA court granted Appellant’s request to amend his PCRA

petition. On July 29, 2014, Appellant filed an amended PCRA petition raising

five additional claims. On July 29, 2014, the PCRA court held a hearing on

Appellant’s pro se PCRA petitions.          At the commencement of that hearing,

the   PCRA     court    conducted      an      on-the-record   colloquy   pursuant   to

Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) and Pa.R.Crim.P. 121

and determined Appellant validly waived his rule-based right to counsel and

permitted him to proceed pro se.                 The PCRA hearing proceeded with

testimony from Appellant and trial counsel.            On September 12, 2014, the

trial court entered an order, and                accompanying opinion, dismissing

Appellant’s claims. This timely, counseled appeal resulted.2

____________________________________________


2
    Appellant filed a pro se notice of appeal on October 13, 2014. On
November 5, 2014, Appellant filed a pro se concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b), as ordered. On
November 19, 2014, the PCRA court filed an opinion pursuant to Pa.R.A.P.
1925(a), relying upon its rationale in its earlier opinion entered on
September 12, 2014. On December 29, 2014, Appellant filed an application
for relief with this Court, seeking the appointment of counsel. On January
16, 2015, this Court entered a per curiam order remanding the case to
determine whether Appellant was entitled to the appointment of counsel.
(Footnote Continued Next Page)


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      On appeal, Appellant presents the following issues for our review:

         A. Whether the PCRA [c]ourt erred in failing to find that
            [Appellant] was afforded ineffective assistance of counsel
            in that trial counsel failed to present exculpatory
            evidence that the wrong wallet was introduced at trial
            and that Ellen Martin offered perjured testimony with
            defense counsel then inadequately conducting cross-
            examination to demonstrate her patent perjury?

         B. Whether the PCRA [c]ourt erred in failing to find that
            [Appellant] was afforded ineffective assistance of counsel
            in that defense counsel failed to call Jean Firewick as a
            defense witness for the purpose of documenting,
            presenting and displaying a factual foundation to
            introduce the specimen wallet?

         C. Whether the PCRA [c]ourt erred in failing to find that
            [Appellant] was deprived of a fair trial given he was not
            allowed to confront Mary Hoffman whose out of court
            evidence and statements were permitted to come into
            evidence by and through the testimony of Trooper
            Keller?

         D. Whether the PCRA [c]ourt erred in failing to find that
            [Appellant’s] right to a speedy trial was violated and that
                       _______________________
(Footnote Continued)

On February 10, 2015, the PCRA court appointed appellate counsel. As
further ordered by this Court, appointed counsel filed an amended Rule
1925(b) statement on March 2, 2015. On March 31, 2015, the PCRA court
filed a supplemental Rule 1925(a) opinion, relying on its earlier decision and
noting “that most of Appellant’s issues raised in his Rule 1925(b) statement
were waived as undeveloped and not preserved at the evidentiary hearing.”
PCRA Court Supplemental 1925(a) Opinion, 3/3/2015, at 1. After issuing a
revised briefing schedule, the Commonwealth and appointed counsel for
Appellant filed timely briefs with this Court. Moreover, Appellant filed a pro
se appellate brief, as well. We will not consider this filing, however, because
Appellant requested appellate counsel and he is not entitled to hybrid
representation. See Commonwealth v. Spotz, 99 A.3d 866, 914 (Pa.
2014) (“Pennsylvania has a policy against ‘hybrid’ representation, that is, we
typically do not consider the merits of pro se briefs or motions filed by
counseled defendants.”).



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            counsel was ineffective in failing to present and preserve
            that claim?

        E. Whether the PCRA [c]ourt erred in failing to find the
           imposition of an illegal sentence as per 18 Pa.C.S.A. [§]
           1102?

        F. Whether the PCRA [c]ourt erred in failing to find that
           [Appellant] was deprived of a fair trial given that the
           lower [c]ourt rushed the deliberations of the jury
           because of an impending storm and in furtherance of
           expediting the jury improperly placed limitations on the
           duration of closing arguments?

        G. Whether the PCRA [c]ourt erred in failing to find that
           [Appellant’s] right of confrontation of the DNA report was
           abrogated?

        H. Whether the PCRA [c]ourt committed legal error and
           abused its discretion in denying [Appellant’s] [m]otion to
           [a]mend [his] PCRA [petition] submitted on September
           2, 2014?

        I. Whether the PCRA [c]ourt committed legal error and
           abused its discretion in finding that all of [Appellant’s]
           PCRA claims were deemed waived for failure to develop
           those claims during the course of the evidentiary
           hearing?

Appellant’s Brief at 3.

      “This Court's standard of review regarding an order dismissing 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


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level.” Id. “The PCRA court's findings will not be disturbed unless there is

no support for the findings in the certified record.”          Commonwealth v.

Lewis, 63 A.3d 1274, 1278 (Pa. Super. 2013) (citation omitted).

       Primarily, we note the PCRA court determined, “[a]t the evidentiary

hearing, [Appellant] limited his claim to the victim’s wallet[,]” as presented

in Appellant’s first issue on appeal. PCRA Court Opinion, 9/12/2014, at 4.

Upon review of the record, we agree. “[F]ailure to present any evidence …

during the PCRA hearing [is] fatal to [a] claim.” Commonwealth v. Spotz,

896 A.2d 1191, 1219 (Pa. 2006).                Appellant “had the responsibility of

bringing all of his evidence to the PCRA hearing.”          Id.   “While the PCRA

permits liberal amendment of a petition, it does not extend to forgive a

petitioner's failure to present evidence at the PCRA hearing.” Id.

       In presenting his PCRA claims, Appellant initially represented himself

pro se. In his original pro se PCRA petition, Appellant checked a box on the

pre-printed PCRA petition form indicating he did not want a lawyer to

represent him.       PCRA Petition, 2/27/20145, at 7.         Thereafter, Appellant

amended his petition by adding additional claims, but, again, did not request

counsel. At the beginning of the PCRA hearing, the PCRA court conducted a

proper colloquy to ensure Appellant wanted to represent himself.3 See N.T.,
____________________________________________


3
 “[I]f a post-conviction waiver of counsel is requested by the defendant, the
PCRA court must ascertain that “the defendant understands: (1) his right to
be represented by counsel; (2) that if he waived this right, he will still be
bound by all normal procedural rules; and (3) that many rights and potential
(Footnote Continued Next Page)


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7/29/2014, at 2-3. The PCRA court was satisfied that Appellant knowingly

and voluntarily waived his right to counsel. Subsequently, while Appellant

raised multiple issues in both his initial and amended pro se PCRA petitions,

he only presented evidence on his first issue, as listed above, at the PCRA

hearing. The lack of presentation of evidence was fatal to the remainder of

Appellant’s claims. After dismissal of his petition, Appellant asked this Court

to appoint counsel for the purpose of appeal. This subsequent appointment

of appellate counsel does not relate back to before the original pro se filings

and pro se representation at the PCRA evidentiary hearing. Thus, we find

that Appellant validly waived his right to counsel before the PCRA court and

he subsequently failed to introduce evidence or arguments pertaining to the

other issues that are now raised on appeal. Therefore, we will only address

Appellant’s first issue as presented, issue A.

      In his first issue presented, Appellant claims trial counsel was

ineffective for failing “to present exculpatory evidence that the wrong wallet

was introduced at trial.” Appellant’s Brief at 5. More specifically, Appellant

claims, “a black tri-fold wallet” presented at trial “was not the same wallet

that the decedent had when he was murdered.”           Id. at 7-8.   Appellant

contends, “his sister, Jean Firewick, purchased a specimen wallet similar to

the decedent’s actual wallet in size, color, and dimensions and gave that
                       _______________________
(Footnote Continued)

claims may be permanently lost if not timely asserted. Commonwealth v.
Stossel, 17 A.3d 1286, 1289 (Pa. Super. 2011).




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specimen wallet” to defense counsel, but counsel “elected not to present this

evidence.”     Id. at 7.   He claims that the decedent’s paramour incorrectly

identified the black wallet as the decedent’s and that same wallet had

Appellant’s DNA on it. Id. at 8. Thus, Appellant argues he was deprived “of

a critical means to call into question the authenticity of the physical evidence

in the form of the wallet admitted and further to impeach the credibility of

Ellen Martin as to her basic ability to properly identify the decedent’s actual

wallet.” Id.

      Counsel for Appellant has failed to cite any legal authority to support

this issue. Hence, the claim is waived. Commonwealth v. Cox, 72 A.3d

719, 721 (Pa. Super. 2013) (“waiver of an issue results when an appellant

fails to properly develop an issue or cite to legal authority to support his

contention in his appellate brief.”); see also Commonwealth v. Bracey,

795 A.2d 935, 940 n.4 (Pa. 2001) (“An underdeveloped argument, which

fails to meaningfully discuss and apply the standard governing the review of

ineffectiveness claims, simply does not satisfy Appellant's burden of

establishing that he is entitled to relief.”); see also Pa.R.A.P. 2119(b).

Regardless, this claim is without merit.

      In asserting a claim that counsel was ineffective,

        [a] PCRA petitioner [must] prove: (1) the underlying legal
        claim was of arguable merit; (2) counsel had no reasonable
        strategic basis for his action or inaction; and (3) the
        petitioner was prejudiced—that is, but for counsel's deficient
        stewardship, there is a reasonable likelihood the outcome of



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        the proceedings would have been different. If a petitioner is
        unable to prove any of these prongs, his claim fails.

        Importantly, counsel is presumed to be effective, and a
        petitioner must overcome that presumption to prove the
        three [aforementioned] factors.

Commonwealth v. Simpson, 112 A.3d 1194, 1197 (Pa. 2015) (internal

citations omitted).

      Here, the PCRA court determined:

        Trial counsel, Garrett Taylor, Esquire, testified that during
        and after the first trial [(which ended in a mistrial)],
        [Appellant] never mentioned that the wrong wallet was
        admitted into evidence. In fact, it was not until the middle
        of the second trial (and after [the victim’s paramour,] Ellen
        Martin’s testimony [and identification of the victim’s wallet])
        that [Appellant] claimed it was the wrong wallet.
        [Appellant] was unable to provide counsel with a valid
        reason for waiting until the middle of the second trial to
        raise his claim. Therefore, based on the timing of the
        disclosure and the manner it was presented, Attorney Taylor
        did not seek to introduce the specimen wallet during the
        second trial.

        Upon review, [the PCRA court] conclude[d] that the
        specimen wallet was not admissible during the second trial
        and,     therefore,   [Appellant’s]   claim   is   meritless.
        Furthermore, [the PCRA court found] that Attorney Taylor,
        who [the PCRA court found] credible, reasonably believed
        that the specimen wallet offered no evidentiary value to
        [Appellant’s] defense due to the late disclosure and the fact
        that it had no positive impact on his defense. Accordingly,
        Attorney Taylor had a reasonable basis for not calling
        [Appellant’s] sister as a witness or attempting to introduce
        the specimen wallet through other means.

PCRA Court Opinion, 9/12/2014, at 4-5 (footnotes omitted).

      We agree with the PCRA court that the specimen wallet would not have

been admissible at trial.   Upon review of the record, forensic investigators


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found the wallet, which the Commonwealth admitted into evidence at trial,

on a dresser near the decedent. N.T., 2/23/2011, at 107, 118-119. Ellen

Martin testified at length about the wallet.        She was able to identify it

because it had a John Deere tractor on it and she had purchased it. N.T.,

2/22/2011, at 219. The decedent kept a fake million-dollar bill in the wallet.

Id. at 217-218.      At 2:00 a.m. on July 4, 2009, after the last time the

decedent was seen alive, Appellant went to the home of Ann Biggers and

attempted to buy crack cocaine with “phony money.”           N.T., 2/23/2011, at

147-148.      Trooper Mark Russo testified that Appellant admitted that he

attempted to use a fake million-dollar bill that he obtained from the

decedent to purchase drugs.      Id. at 193.      During the course of a single

police interview, Appellant gave Trooper Russo three different versions of

how he came into possession of the decedent’s fake money.             Id. at 194.

Forensics revealed Appellant’s DNA was on the wallet that was admitted into

evidence. N.T., 2/24/2011, at 21-22.          In light of this evidence, Appellant

has not demonstrated how the specimen wallet would have been probative,

relevant, or admissible.    Moreover, counsel had a reasonable basis to not

introduce the specimen wallet based upon the timing of Appellant’s request.

Counsel had no time to investigate the claim and Ellen Martin had already

testified.   Moreover, Appellant would have known during his first trial that

the admitted wallet was not the correct one. His belated attempt to distance

himself from the found wallet does not equate to the ineffective assistance of

counsel.     Here, there is no merit to Appellant’s claim and counsel had a

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reasonable strategy for not introducing the specimen wallet at trial. Hence,

he is not entitled to relief.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/5/2016




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