J-S59021-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BILLY WHITE                                :
                                               :
                       Appellant               :   No. 3130 EDA 2016

                Appeal from the PCRA Order September 27, 2016
              In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0002430-2012


BEFORE:      BENDER, P.J.E., OTT, J., and FITZGERALD, J.

MEMORANDUM BY OTT, J.:                               FILED DECEMBER 26, 2017

        Billy White appeals pro se1 from the order entered September 27, 2016,

in the Court of Common Pleas of Montgomery County, that denied in part,

following a hearing, his first petition filed pursuant to the Pennsylvania Post

Conviction Relief Act, 42 Pa.C.S. §§ 9541–9546.2 White seeks collateral relief
____________________________________________



    Former Justice specially assigned to the Superior Court.

1
   On November 18, 2016, following a hearing in accordance with
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), the PCRA court entered
an order concluding that White made a knowing, intelligent and voluntary
waiver of his right to counsel for his direct appeal to this Court. The PCRA
court’s order of November 18, 2016 also granted court-appointed counsel’s
petition for leave to withdraw from representation of White in the PCRA court.
This Court, on December 19, 2016, granted counsel leave to withdraw from
representation of White in this appeal, based upon the PCRA court’s November
18, 2016 order.

2
  The PCRA court’s order granted relief with regard to sentencing and denied
all other claims. This order is a final, appealable order. See Commonwealth
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from the judgment of sentence to serve an aggregate term of five to 10 years’

imprisonment, imposed after a jury found him guilty of burglary, criminal

trespass, terroristic threats, possession of marijuana, possession of drug

paraphernalia, and carrying a firearm without a license.3    Based upon the

following, we affirm in part, reverse in part, and remand for resentencing.

       The parties are well acquainted with the facts of this case, which were

set forth by this Court in White’s direct appeal.   See Commonwealth v.

White, 100 A.3d 294 (Pa. Super. 2014) (unpublished memorandum).

       Before this Court, White raises the following 11 issues, which we

reproduce verbatim:

       [1.] WAS TRIAL COUNSEL INFFECTIVE IN FAILING TO REQUEST
       A MISSING WITNESS CHARGE FOR KENNETH TUGGLE WHOSE
       NAME WAS PROVIDED IN THE AFFIDAVIT WHICH COULD BEEN
       DISCOVERED SIMPLY BY READING THE AFFIDAVIT BEING THAT
       COUNSEL CIRILLO NEVER COME TO VISIT THE PETITIONER OR
       WENT OVER A STRATEGY BEFORE TRIAL BECAUSE OF HIS
       ASSUMPTION WITNESSES WERE NOT WILLING TO TESTIFY?

       [2.] WAS THE TRIAL COUNSEL INEFFECTIVE IN FAILING TO
       CHALLENGE THE VERACITY AND THE ‘LACK OF PROBABLE CAUSE;
       OF THE AFFIDAVIT BEING THAT THE PETITIONER WAS ARRESTED
       SOLEY ON A ARREST WARRANT THAT DOES NOT EXIST THE
       NIGHT IN QUESTION?

       [3.] WAS TRIAL COUNSEL INEFFECTVE IN FAILING TO SUPPRESS
       THE ILLEGAL ENTRY IN TO PETITIONER GARAGE AT HIS GIRL
       FRIENDS HOUSE AND THE ILLEGAL SEIZURE OF PETITIONER’S
____________________________________________


v. Grove, 170 A.3d 1127 [2017 Pa. Super. LEXIS 662 *17-*18] (Pa. Super.
2017).

3
  18 Pa.C.S. §§ 3502(a), 3503(a)(1)(i), and 2706(a)(1); 35 P.S. § 780-
113(a)(31) and (32); and, 18 Pa.C.S. § 6106(a)(1), respectively.

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       MOTHER’S VEHICLE WITH OUT A WARRANT OR HER PERMITTING
       AND STATEMENTS THAT WAS PROVIDED DAYS LATER?

       [4.] WAS TRIAL COUNSEL INEFFECTIVE IN FAILING TO FILE POST
       MOTIONS ON THE BEHALF OF PETITIONER ESPECIALLY AFTER
       THE NEW DISCOVERED EVIDENCE OF OFFICER TRIMBUR
       TESTIMONY AT TRIAL WAS DIFFERENT THEN DETECTIVE
       JACKSON AFFIDAVIT AND [T.T.’S] NEW STATEMENT AND [B.T.’S]
       SUPRIZED AMENDED ALLEGED INCIDENT?[4]

       [5.]   DID     OFFICERS    ‘LACK   SUBJECT     MATTER
       JURISDICTION’/PROBABLE CAUSE TO ARREST THE PETITIONER
       WHEN NO ARREST WARRANT DID NOT EXIST AND NO FELONIES
       OR MISDEMEANOR WERE COMMITED IN THE PRESENCE OF THE
       OFFICER THE NIGHT IN QUESTION?

       [6.] WAS THERE A LACK OF “SUBJECT MATTER JURISDICTION”
       WHEN PROPERLY PROSECUTING THE PETITIONER WHEN NO
       INDICTMENT TOOK PLACE WHEREAS THOUGH THE BILL OF
       INFORMATION IS INVAILD ON ITS FACE BECAUSE THE
       INFORMATION DOES NOT SPECIFIY WHICH SUB SECTION
       PARTICULAR MODE OR CONSTITUTION OR STATUE FOR
       BURGLARY THE PETITIONER COMMITED, THAT'S A DEFECT?

       [7.] DID THE TRIAL COURT HAVE JURISDICTION OVER THE
       PETITIONER WHEN NO INDICTMENT TOOK PLACE AT THE
       PRELIMINARY AND THE WITNESSES CHOSE NOT TO TESTIFY AND
       EXERCISING THEIR 5TH AMENDMENT RIGHT IN WHICH VIOLATED
       PETITIONERS CONSTITUTIONAL RIGHT TO CONFRONT HIS
       ACCUSERS?

       [8.] WAS THE TRIAL COUNSEL INEFFECTIVE IN FAILING TO LET
       THE COURT AND THE JURY AND CLIENT KNOW HE PREVIOUSLY
       REPRESENTED [T.T.] AND WAS CURRENTLY REPRESENTING HER
       DAUGHTER FOR DRUG CHARGES?

       [9.] DID THE PROSECUTION COMMIT A MISCONDUCT WHEN
       ESTABLISHING PRIMA FACIE CASE AT THE PRELIMINARY WHEN
       THE AFFIDAVIT AND STATEMENTS WAS PREPARED AFTER THE
       ILLEGAL SEARCH AND THE CERTIFIED SEARCH WARRANT WAS
____________________________________________


4
 Because the names of T.T. and B.T. were changed to initials in White’s direct
appeal, we do likewise.

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J-S59021-17


       UNSIGNED AND NO ARREST EVEN EXISTED AT THAT TIME AND
       WITNESSES DID NOT TESTIFY FOR THE COMMONWEALTH AND
       WITH HOLD EVIDENCE BEFORE AND AFTER TRIAL?

       [10.] DID THE POLICE COMMIT A MISCONDUCT BY PURPOSELY
       MISLEADING REPORTS ON THE CRIMINAL JUSTICE PROCESS BY
       FALSIFYING PERJURING FRAUD PREPPING AND TAMPERING WITH
       WITNESSES?

       [11.] DID THE TRIAL COURT COMMIT PROFESSIONAL
       MISCONDUCT WHEN LEAD ATTORNEY CIRILLO AT THE P.C.R.A.
       HEARING TO MAKE HIM EFFECTIVE AND PERSUAUDE HIM TO SAY
       SOMETHING CIRILLO KNEW WAS UNTRUE AFTER HE JUST
       PERJURED HIMSELF ON THE STAND?

White’s Brief at 4–5 (Statement of Questions Involved).5

       Our standard of review of a PCRA court’s ruling is well settled:

       Under the applicable standard of review, we must determine
       whether the ruling of the PCRA court is supported by the record
       and is free of legal error. The PCRA court’s credibility
       determinations, when supported by the record, are binding on this
       Court. However, this Court applies a de novo standard of review
       to the PCRA court’s legal conclusions.

Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011) (citations omitted).

       Preliminarily, we note that White presents no argument regarding the

fifth, seventh, ninth, tenth, and eleventh issues identified in the Statement of

Questions Involved.        Accordingly, these issues have been waived.     See

Commonwealth v. Bullock, 948 A.2d 818, 823 (Pa. Super. 2008) (stating




____________________________________________


5
 White timely complied with the order of the trial court to file a Pa.R.A.P.
1925(b) statement, after the PCRA granted an extension of time. White raised
52 claims in his concise statement.      See White’s Concise Statement,
11/25/2016.

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an issue identified on appeal but not developed in an appellant’s brief is

abandoned and, therefore, waived).

     Herein, White raises numerous claims to trial counsel’s ineffectiveness.

In our reviewing these ineffectiveness claims,

     [w]e begin our analysis … with the presumption that counsel is
     effective. To prevail on his ineffectiveness claims, Appellant must
     plead and prove, by a preponderance of the evidence, three
     elements: (1) the underlying legal claim has arguable merit; (2)
     counsel had no reasonable basis for his action or inaction; and (3)
     Appellant suffered prejudice because of counsel’s action or
     inaction.

Spotz, supra, 18 A.3d at 259-60 (2011) (citations omitted).

     White first claims trial counsel was ineffective for failing to request a

missing witness charge for Kenneth Tuggle.

     The missing witness adverse inference rule has been summarized
     as follows:

         When a potential witness is available to only one of the
         parties to a trial, and it appears this witness has special
         information material to the issue, and this person's
         testimony would not merely be cumulative, then if such
         party does not produce the testimony of this witness, the
         jury may draw an inference that it would have been
         unfavorable.

     Commonwealth v. Manigault, 501 Pa. 506, 510-11, 462 A.2d
     239, 241 (1983) (quotations, citations and emphasis omitted).
     This Court has delineated the circumstances which preclude
     issuance of the instruction.

         1. The witness is so hostile or prejudiced against the party
         expected to call him that there is a small possibility of
         obtaining unbiased truth;




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          2. The testimony of such a witness is comparatively
          unimportant, cumulative, or inferior to that already
          presented;

          3. The uncalled witness is equally available to both parties;

          4. There is a satisfactory explanation as to why the party
          failed to call such a witness;

          5. The witness is not available or not within the control of
          the party against whom the negative inference is desired;
          and

          6. The testimony of the uncalled witness is not within the
          scope of the natural interest of the party failing to produce
          him.

      Commonwealth v. Evans, 444 Pa. Super. 545, 664 A.2d 570,
      573-74 (Pa. Super. 1995). To invoke the missing witness
      instruction against the Commonwealth, the witness must only be
      available to the Commonwealth and no other exceptions must
      apply. Commonwealth v. Culmer, 413 Pa. Super. 203, 604
      A.2d 1090, 1098 (Pa. Super. 1992).

Commonwealth v. Boyle, 733 A.2d 633, 638-39 (Pa. Super. 1999).

      Here, White failed to prove that Kenneth Tuggle was only available to

the Commonwealth.        Further, the testimony of Kenneth Tuggle was

comparatively unimportant and cumulative.        See N.T., 9/14/2016, at 47

(Lieutenant Jackson explaining, “the only information [Kenneth Tuggle] had

was that Billy White was standing outside, but we already confirmed that when

police arrived and Billy White was outside the home.”). As such, a missing

witness instruction would not have been available. Therefore, White’s first

claim fails.




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J-S59021-17


       With regard to the second and fourth issues, which are ineffectiveness

claims, these issues were not raised in the PCRA Court. See Pa.R.A.P. 302(a)

(“Issues not raised in the lower court are waived and cannot be raised for the

first time on appeal.”).   Even if these claims were raised below, White failed

to include these claims in his Pa.R.A.P. 1925(b) statement.        See White’s

Concise Statement, 11/25/2016, at 4 (“Trial Counsel’s ineffectiveness). Rule

1925(b)(vii) provides:     “Issues not included in the Statement and/or not

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

Therefore, the claims would be waived on this basis. Accordingly, no relief is

due.

       The third and eighth issues are also ineffectiveness claims, and we

address them sequentially. In the third issue, White contends trial counsel

was ineffective in failing to file a suppression motion regarding the search of

his car. In the eighth issue, White contends trial counsel was ineffective for

representing White when counsel had a conflict of interest based upon his

representation of a witness, T.T., and her daughter, B.T.

       With respect to the third issue, where “an assertion of ineffective

assistance of counsel is based upon the failure to pursue a suppression motion,

proof of the merit of the underlying suppression claim is necessary to establish

the merit of the ineffective assistance of counsel claim.” Commonwealth v.

Jones, 942 A.2d 903, 909 (Pa. Super. 2008).




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J-S59021-17


      The PCRA court explained the suppression issue revolved around the

assertion that the search warrant was unsigned by the issuing authority

and/or there was a problem with the date the warrant was signed. The PCRA

court determined the suppression issue was meritless because testimony at

the PCRA hearing belied these contentions.       The PCRA court found that

Detective Michael Jackson testified credibly that the search warrant date read

the 27th and not the 22nd as it appeared to PCRA counsel, and that he waited

for the issuing authority, Judge Cathleen Rebar, to sign the warrant before he

began searching White’s car.    The PCRA court concluded any suppression

motion would have been denied, and we find no error in the PCRA court’s

determination. See PCRA Court Opinion, 1/3/2017, at 19. Therefore, White’s

third claim fails.

      Nor do we find merit in White’s eighth claim, that trial counsel was

ineffective because he had a conflict of interest because he represented

Commonwealth witness, T.T., and her daughter, B.T.

      [T]o establish a conflict of interest, an appellant must show that
      “counsel actively represented conflicting interests[,] and the
      actual conflict adversely affected counsel's performance.”
      Commonwealth v. Small, 602 Pa. 425, 980 A.2d 549, 563 (Pa.
      2009) (citing Spotz V, 896 A.2d at 1232); see also
      Commonwealth v. Weiss, 604 Pa. 573, 986 A.2d 808, 818 (Pa.
      2009) (rejecting the view that counsel's representation of a client
      continues until such time as the client's sentence expires, and
      requiring a petitioner who alleges a conflict of interest rooted in
      his counsel's obligation to a former client to establish that the
      conflict adversely affected counsel's performance).

Spotz, supra, 18 A.3d at 268.


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      The PCRA court found White waived this ineffectiveness claim with

respect to B.T. because this issue was raised for the first time on appeal. The

PCRA court further opined that with respect to trial counsel’s previous

representation of T.T., trial counsel credibly testified at the evidentiary hearing

that his previous representation of T.T. did not affect his cross-examination of

her at White’s trial. The PCRA court concluded White had established neither

that his counsel represented conflicting interests, nor that the alleged conflict

adversely affected counsel’s performance.            See PCRA Court Opinion,

1/3/2017, at 17–18. We find the PCRA court has properly disposed of this

claim, and we conclude White’s argument warrants no further discussion by

this Court. Therefore, White’s eighth claim fails.

      With regard to the sixth issue, regarding subject matter jurisdiction

based upon an alleged defect in the charging document, White argues the

“information is invalid on its face because the information does not specify

which sub section particular mode or constitution or statue for burglary the

petitioner committed that’s a defect.” White’s Brief at 26 (verbatim).

      The courts of common pleas have statewide jurisdiction in all cases

arising under the Crimes Code. Commonwealth v. Jones, 929 A.2d 205,

210 (Pa. 2007) (citation omitted).           The Commonwealth invokes that

jurisdiction when it files a formal and specific accusation of the crimes

charged. Id. at 211-212. Although the Information is not included in the

certified record, it is evident from this Court’s prior memorandum, which


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reproduces the burglary charge set forth in the Information, that White was

properly charged with burglary under extant 18 Pa.C.S. § 3502(a).            See

Commonwealth v. White, 100 A.3d 294 (Pa. Super. 2014) (unpublished

memorandum, at 15 n.5). Therefore, this issue is meritless.

       Nevertheless, while the claims presented by White in this appeal are

either waived or meritless, we recognize the PCRA court found merit in White’s

claim that “trial counsel was ineffective for failing to object to White’s illegal

mandatory minimum sentence of five to ten years” imposed on the burglary

conviction, pursuant to 42 Pa.C.S. § 9712. PCRA Court Opinion, 1/3/2017, at

20. The PCRA court opined:

       In this case, White was sentenced on February 8, 2013 and he
       was sentenced pursuant to a mandatory minimum in Section
       9712. White did file a timely appeal, which was decided on March
       4, 2014. White’s direct appeal was pending at the time Alleyne
       [v. United States, 133 S. Ct. 2151 (U.S. 2013)] was decided on
       June 17, 2013. Therefore, the holding of Alleyne applies.[6] See
       Commonwealth v. Ruiz, 131 A.3d 54, 58 (Pa. Super. 2015)
       (defendant was entitled to the benefit of Alleyne where he raised
       the claim in a timely PCRA petition and his judgment of sentence
____________________________________________


6
  In Alleyne, the United States Supreme Court held “[a]ny fact that, by law,
increases the penalty for a crime is an ‘element’ that must be submitted to
the jury and found beyond a reasonable doubt.” Alleyne, supra, 133 S.Ct. at
2155. Applying Alleyne, the courts of this Commonwealth have determined
our mandatory minimum sentencing statutes are unconstitutional where the
language of those statutes “permits the trial court, as opposed to the jury, to
increase a defendant’s minimum sentence based upon a preponderance of the
evidence” standard. Commonwealth v. Newman, 99 A.3d 86, 98 (Pa.
Super. 2014) (en banc) (invalidating 42 Pa.C.S. § 9712.1), appeal denied,
632 Pa. 693, 121 A.3d 496 (Pa. 2015). See Commonwealth v. Valentine,
101 A.3d 801 (Pa. Super. 2014) (declaring 42 Pa.C.S. § 9712 unconstitutional
under Alleyne and Newman).


                                          - 10 -
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      was still pending on direct review when Alleyne was handed
      down). Accordingly, White is entitled to a new sentencing hearing.

Id. at 21. The PCRA court “requests a limited remand so that White might be

granted a new sentencing hearing.” Id. at 1. We agree with the PCRA court,

and note the Commonwealth concedes that White is entitled to resentencing.

See Commonwealth’s Brief at 8.

      Accordingly, the order of the PCRA court is affirmed in part, reversed in

part, and this case is remanded for resentencing.

      Order affirmed in part, reversed in part.          Case remanded for

resentencing. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/26/2017




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