J-S89009-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                            IN THE SUPERIOR COURT OF
                                                               PENNSYLVANIA
                            Appellee

                       v.

THOMAS EDWARDS,

                            Appellant                         No. 1 EDA 2016


                Appeal from the PCRA Order December 11, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0003642-2008


BEFORE: SHOGAN, MOULTON, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                                 FILED JANUARY 05, 2017

       Appellant,    Thomas      Edwards,      appeals    from   the   order   entered

December 11, 2015, denying his petition for relief filed pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

       The PCRA court summarized the procedural and factual history of this

case as follows:

             On November 13, 2009, following a jury trial . . . ,1
       [Appellant] was found guilty of murder of the first degree (H-1)
       and criminal conspiracy (F-1).2 Sentencing was deferred until
       November 24, 2009, at which time [Appellant] was sentenced to
       the mandatory term3 of life in prison.4 On December 3, 2009,
       [Appellant] filed post-sentence motions, which were denied by
       [the trial court] on April 1, 2010. On August 17, 2011, the
       Superior Court affirmed [Appellant’s] judgment of sentence.5

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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           1
               At trial, [Appellant] was represented by Robert
           Gamburg, Esquire. [Appellant] was tried with a co-
           defendant, Terrence Snead, who was also found
           guilty by the jury of first-degree murder and criminal
           conspiracy. CP-51-CR-0003643-2008.
           2
              18 Pa.C.S. §§ 2502(a) and 903, respectively.
           [Appellant] was found not guilty of the charge of
           abuse of a corpse.
           3
               18 Pa.C.S. § 1102(a).
           4
             As to the charge of criminal conspiracy, [Appellant]
           was sentenced to a consecutive term of not less than
           ten nor more than twenty years in prison.
           5
             Commonwealth v. Thomas Edwards, No. 1174 EDA
           2010, slip op. (Pa. Super., Aug. 17, 2011)
           (memorandum opinion). Matthew Wolfe, Esquire[,]
           represented [Appellant] on appeal.

            On July 2, 2012, [Appellant] filed a pro se petition
     pursuant to the [PCRA], requesting reinstatement of his
     appellate rights nunc pro tunc. Thereafter, following a hearing,
     on September 10, 2012, [the PCRA court] reinstated
     [Appellant’s] right to petition for allowance of appeal nunc pro
     tunc in our Supreme Court. On March 6, 2013, [Appellant’s]
     petition for allowance of appeal was denied.7
           7
               Commonwealth v. Edwards, No. 478 EAL 2012,
           slip op. (Pa. March 6, 2013).

            On July 9, 2013, [Appellant] filed his first substantive
     PCRA petition, pro se. Counsel was appointed8 and filed an
     amended petition on December 17, 2014.9 The Commonwealth
     filed a motion to dismiss on July 3, 2015. Having reviewed the
     pleadings and petitioner’s file, on November 9, 2015, [the PCRA
     court] sent petitioner notice of its intent to deny and dismiss his
     claims without a hearing, pursuant to Pa.R.Crim.P. 907 (907
     Notice). [The PCRA court] dismissed [Appellant’s] PCRA petition
     consistent with its 907 Notice on December 11, 2015. This
     timely appeal followed.




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          8
              Barnaby Wittels, Esquire, was appointed to
          represent [Appellant] on collateral attack.
          9
                In his amended petition, PCRA counsel
          represented that he would be making an additional
          filing: “Undersigned counsel will file a Second or
          Supplemental Amended Petition prior to the next
          compliance date together with a memorandum of law
          addressing all issues to be raised in Petitioner’s PCRA
          proceeding.” Amended Petition, 12/17/14 at 5. This
          Court gave PCRA counsel until October 2, 2015 to
          make any additional filings; however, PCRA counsel
          informed this Court on November 6, 2015 that he
          would not be filing anything further.

     FACTS:

           In the early morning hours of April 28, 2006, the body of
     Terrence Hawkins (victim) was discovered by police at 3036
     Harper Street, a dead-end street in the Fairmount section of
     Philadelphia. The victim had been strangled to death, and his
     body had been wrapped in large, black plastic garbage bags,
     doused in gasoline, and set on fire.

           At the time of his death, the victim was working at
     Savanna’s Restaurant and living with Terrence Snead (co-
     defendant) in a rented house at 3030 Fontaine Street. The
     victim had been living with the co-defendant for approximately
     one year.     A few days before the victim’s death, the co-
     defendant became upset when he noticed that several items
     were missing from his bedroom, including his watch, money,
     cocaine, and a gun belonging to a friend, Dimitri Lambert. A few
     days later, on the day the victim was murdered, the co-
     defendant called Dimitri Lambert to come to 3030 Fontaine
     Street to discuss the missing items. When Dimitri Lambert
     arrived at the house, the co-defendant and two other men,
     Jermaine Rippy and Khalil Rippy, were questioning several
     people, including the victim, about the missing items and
     whether they knew who took them. [Appellant] who had been
     friends with the co-defendant for years, arrived during the
     questioning and joined in. Eventually, Dimitri Lambert was
     permitted to leave, at which point [Appellant], the co-defendant,
     Jermaine Rippy, Khalil Rippy, and the victim were together in the


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     basement. As he left the house, Dimitri Lambert heard “slight
     yelling” from a voice he thought was the victim’s.

           [Appellant] and co-defendant were then told that the
     victim had been one of the last people in the house before the
     items went missing from the co-defendant’s room. At this point,
     the co-defendant began “kicking, punching, and smacking” the
     victim. [Appellant] was going to shoot the victim, but the co-
     defendant told him not to, took the wire out of a lamp, and put a
     sock around his hand. Jermaine Rippy recalled that “[Appellant]
     started hitting [victim] in the head with the gun. He was
     tempted to shoot him, but the co-defendant told him no. He was
     going to do it another way. [Co-defendant] pulled a wire off a
     lamp in the basement. He put a sock around his hand and
     started talking to [victim].” The co-defendant began to strangle
     the victim, at which point Jermaine Rippy left the basement.11
     Jermaine Rippy went to the first floor of the house, and after a
     short while he saw the co-defendant exit the basement and
     retrieve some garbage bags.12 The co-defendant was wearing
     socks on his hands, and was covered in what looked like vomit.
     [Appellant] remained in the basement.
          11
              The Medical Examiner testified that the cause of
          death was strangulation accomplished by placing an
          object around the neck, for example, a rope or cord,
          and tightening it for an uninterrupted period of three
          to five minutes.
          12
             Jermaine Rippy described the bags as “big heavy-
          duty bags . . . like real thick type of bags.”

           The victim’s body was discovered ablaze a short time later
     at 3036 Harper Street, an abandoned house approximately ten
     blocks from Fontaine Street. A white sedan was seen pulling
     away from the house at which the body was found, immediately
     after the fire was set. The co-defendant drove a white Crown
     Victoria sedan at the time of the murder.13 Police seized the
     Crown Victoria sedan and discovered large, black plastic garbage
     bags in the car’s trunk.14
          13
              The white Crown Victoria was not registered in
          the co-defendant’s name; however, he was seen
          driving the car by several witnesses, and had
          received two traffic citations while driving the car.

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            14
               These garbage bags were described by a Crime
            Scene Investigator as “contractor” garbage bags,
            which are larger than standard garbage bags.

            Two days after the victim was killed, his mother and sister
      went to 3030 Fontaine Street to collect his personal effects, at
      which point the co-defendant told them that he had not seen the
      victim since Wednesday, two days before he was killed. When
      the victim’s family entered his bedroom it had been “emptied out
      like he never lived there.” The victim also kept a closet in the
      home’s dining room, and the victim’s family collected his clothing
      from that closet. When the victim’s family asked for something
      to put the clothes in, the co-defendant gave them some large,
      black plastic garbage bags. The victim’s sister later gave police
      the large garbage bags filled with the victim’s clothes.15
            15
                 Police determined the      bags   to   be   “large,
            contractor-type trash bags.”

             Police conducted interviews with the victim’s co-workers,
      who informed them that Dimitri Lambert and Jermaine Rippy
      were friends of the victim. Police located both men, and each
      individually told police that [Appellant] and co-defendant had
      committed the murder. A latent fingerprint, lifted from an
      additional black garbage bag near where the victim’s body was
      found, matched [Appellant’s] fingerprint.

PCRA Court Opinion, 3/29/16 at 1-5 (internal citations and some footnotes

omitted) (emphasis in original).

      Appellant presents the following issue for our review: “Did the PCRA

court err in not granting an evidentiary hearing?” Appellant’s Brief at 6 (full

capitalization omitted).

      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).      The PCRA court’s findings will not be

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

Id.

      The right to an evidentiary hearing on a post-conviction petition is not

absolute.   Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa. Super.

2001). It is well established that “[t]he PCRA court need not hold a hearing

on every issue appellant raises, as a hearing is only required on genuine

issues of material fact.”   Commonwealth v. Albrecht, 994 A.2d 1091,

1093 (Pa. 2010) (citations and quotations omitted). “A trial court’s decision

not to hold a hearing will only be reversed when the trial court abused its

discretion.” Commonwealth v. Collins, 888 A.2d 564, 579 (Pa. 2005).

      Before addressing the merits of Appellant’s issue, we note that

inexplicably, the majority of the argument section of Appellant’s brief sets

forth case law pertaining to claims of ineffective assistance of counsel,

despite there being no such issue before this Court. Appellant’s Brief at 14-

16.   The remainder of the argument sets forth only case law regarding

evidentiary hearings in PCRA proceedings; there is no analysis applying that

law to the facts of this particular case. Specifically, there is no reference to

the record and no synopsis of the evidence, as is required by Pa.R.A.P.

2119. In fact, Appellant fails to present any argument as to why he believes

he was entitled to an evidentiary hearing in this case. Appellant’s Brief at

13-18.




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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.” Commonwealth

v. Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007) (internal citation and

quotation marks omitted).           Because Appellant fails to develop any

meaningful legal argument, we hold that his issue is waived.                 See

Commonwealth v. Freeman, 128 A.3d 1231, 1249 (Pa. Super. 2015)

(explaining that the appellant “ha[d] made no effort whatsoever to discuss

the applicable law or link the facts of his case to that law” and concluding

that “[h]is failure to develop a coherent legal argument in support of his

claim results in waiver of [the] issue”); Beshore, 916 A.2d at 1140 (finding

waiver where appellant presented no argument explaining how he was

affected by a statutory provision and included no citation to the record to

support his argument, and wherein the Court stated its refusal to develop an

argument    for   the   appellant    or   scour   the   record   for   evidence);

Commonwealth v. Hakala, 900 A.2d 404, 407 (Pa. Super. 2006) (finding

waiver where the appellant “fail[ed] to offer either analysis or case citation

in support of the relief he seeks” and admonishing that “it is not this Court’s

function or duty to become an advocate for the [appellant]”).

      Assuming arguendo that this issue is not waived, we would affirm on

the basis of the PCRA court opinion.         Although Appellant’s brief fails to

clearly define an argument, Appellant asserts the following in his Pa.R.A.P.

1925(b) statement:


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     The [c]ourt erred in not granting an evidentiary hearing in a
     matter wherein Appellant had made a prima facie showing of
     new evidence. While the evidence was from a witness who had
     testified at trial, the new evidence was the recanted statement
     and proposed testimony of the witness Jermaine Rippy. The
     recantation of Mr. Rippy was timely submitted to the court and
     therefore, being timely, merited an evidentiary hearing.

Pa.R.A.P. 1925(b), 1/7/15, at 1.    Appellant also set forth this claim in his

PCRA petition, wherein he stated:

     Petitioner asserts that he is entitled to relief as newly discovered
     evidence that was unavailable at the time of trial, in the form of
     ballistics evidence, provides exculpatory evidence that would
     have changed the outcome of the trial.             That exculpatory
     evidence is in the form of an affidavit from the witness Jermaine
     Rippy attached hereto as Exhibit A. Petitioner asserts that
     Mr. Rippy has recanted his trial testimony as per the attached
     affidavit in which Mr. Rippy asserts the assigned homicide
     Detective, Kenneth Rossiter coerced his statement and trial
     testimony.

Amended PCRA petition, 12/17/14, at ¶ 20 (emphasis in original).

Accordingly, the PCRA court addressed that issue in its Pa.R.A.P. 1925(a)

opinion.

     The PCRA court opinion thoroughly and accurately explains why the

information contained in Jermaine Rippy’s post-trial affidavit does not

constitute after-discovered evidence.   In sum, at the 2009 trial, Mr. Rippy

recanted the statement he had previously made to police and at the

preliminary hearing.    The affidavit merely reiterated the recantation

testimony that was provided at trial. Because no material issue of fact was

raised, Appellant was not entitled to an evidentiary hearing.     PCRA Court

Opinion, 3/29/16, at 5-7.   Accordingly, were we to consider the issue, we

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would conclude that the PCRA court properly dismissed Appellant’s PCRA

petition without conducting an evidentiary hearing.

     Order affirmed.

     Judge Moulton joins the Memorandum.

     Justice Fitzgerald concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/5/2017




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