J-S68025-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                    Appellee              :
                                          :
            v.                            :
                                          :
MICHAEL McLAUGHLIN,                       :
                                          :
                    Appellant             :   No. 1965 EDA 2014

                    Appeal from the PCRA Order May 29, 2014,
                   Court of Common Pleas, Philadelphia County,
                 Criminal Division at No. CP-51-CR-0303571-2006

BEFORE: BENDER, P.J.E., DONOHUE and MUNDY, JJ.

MEMORANDUM BY DONOHUE, J.:                      FILED DECEMBER 08, 2015

      Appellant, Michael McLaughlin (“McLaughlin”), appeals from the order

entered on May 29, 2014 by the Court of Common Pleas of Philadelphia

County, Criminal Division, dismissing his petition filed pursuant to the Post

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

review, we affirm.

      The PCRA court summarized the relevant facts and procedural history

of this case as follows:

               In 2005, [McLaughlin] was charged with the
            stalking and related offenses of his ex-girlfriend,
            Audria Leone.     [McLaughlin] was provided the
            assistance of various court-appointed attorneys,
            including the Defender Association, Bruce Wolf,
            Michael F. Medway, Max G. Kramer, and Steven G.
            Laver. [McLaughlin]’s case was originally assigned
            to Judge Amanda Cooperman for trial. Despite the
            persistence of Judge Cooperman that [McLaughlin]
            should be represented by counsel, [McLaughlin]
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          insisted upon proceeding with his trial pro se.
          [McLaughlin] repeatedly referenced his right to self-
          representation, citing Faretta v. California, 422
          U.S. 806 (1975), and requested a waiver of counsel
          colloquy.

              In a hearing on August 11, 2006, Judge
          Cooperman allegedly performed a waiver of counsel
          colloquy after which she found [McLaughlin]’s waiver
          of counsel knowing, intelligent, and voluntary. Mr.
          Laver was the attorney of record at the time of the
          alleged colloquy and was [allegedly] appointed by
          Judge Cooperman as standby trial counsel for
          [McLaughlin] on that date.       However, for some
          unknown reason, there was no record preserved of
          the hearing at which the colloquy supposedly took
          place. Furthermore, the only action reflected on the
          docket for that date was the ordering of a mental
          health evaluation of [McLaughlin].

             Judge Cooperman ultimately recused herself from
          [McLaughlin]’s case due to his repeated and
          inappropriate ex parte communications with her
          staff. [McLaughlin]’s case was reassigned to Judge
          Berry, who referenced Judge Cooperman’s colloquy
          on the record at the first listing before him. Judge
          Berry also completed a partial waiver colloquy of
          [McLaughlin], during which [McLaughlin] told Judge
          Berry that he was familiar with the court proceedings
          and that he had represented himself in two previous
          cases.       Judge   Berry      ultimately  permitted
          [McLaughlin] to proceed at trial pro se with the
          assistance of newly-appointed standby counsel,
          Kevin Mincey.

             After a four[-]day jury trial, [McLaughlin] was
          found guilty of stalking on September 4, 2007. On
          October    30,   2007,    Judge   Berry  sentenced
          [McLaughlin] to two to four years of incarceration




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           followed by three years of probation.[1] At the
           sentencing hearing, Judge Berry appointed Mr.
           Mincey as counsel. At this hearing, immediately
           following sentencing, [McLaughlin] told Judge Berry
           that    he     “was     never    properly    colloquied.”
           [McLaughlin] did not file any post-sentence motions.
           On November 30, 2007, [McLaughlin], through
           counsel, filed a notice of appeal to the Pennsylvania
           Superior Court, one day late. On March 17, 2009,
           the Superior Court quashed [McLaughlin]’s first
           appeal as untimely filed.          On April 1, 2009,
           [McLaughlin] filed his first PCRA petition, with the
           assistance      of   counsel,    Davis    S.    Winston.
           [McLaughlin]’s first PCRA petition requested relief on
           the basis of ineffective assistance of counsel in that
           Mr. Mincey’s filing of [McLaughlin]’s [n]otice of
           [a]ppeal was untimely. In this petition, Mr. Winston
           only requested the reinstatement of [McLaughlin]’s
           right to file a direct appeal, not the right to file post-
           sentence motions.        On October 22, 2009, Judge
           Sheila Woods-Skipper granted [McLaughlin]’s first
           PCRA petition and reinstated [his] right to file a
           direct appeal nunc pro tunc.

               On October 23, 2009, [McLaughlin] filed his
           second direct appeal with the Superior Court, with
           the assistance of Mr. Winston. [McLaughlin] raised
           two issues. First, he claimed that the trial court’s
           pro se colloquy was inadequate, and secondly, he
           claimed that his trial counsel was ineffective for
           failing to object to the inadequate colloquy. The
           Superior Court affirmed the judgment of sentence on
           November 8, 2010, indicating that [McLaughlin]
           waived the issue of trial court error because he did
           not raise it before the trial court. The Court also
           held that the ineffective assistance of counsel claim
           was improper on direct appeal and should be
           deferred until collateral review. The Supreme Court



1
  Because of a probation violation and subsequent revocation of probation
and re-sentencing, McLaughlin is still on probation stemming from his
conviction in this case. See N.T., 1/29/14, at 5-7.


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           denied [McLaughlin]’s [p]etition for [a]llowance of
           [a]ppeal on April 7, 2011.

              [McLaughlin] filed [the instant PCRA [p]etition pro
           se on April 4, 2012 which he amended on July 9,
           2012. On January 3, 2013, [McLaughlin] filed an
           amended [] PCRA petition, with the assistance of
           counsel, Stephen T. O’Hanlon. In this counseled
           petition, [McLaughlin] requested that this [c]ourt
           vacate the judgment of sentence because Mr. Laver
           had provided ineffective assistance of counsel when
           he failed to object to an inadequate waiver of
           counsel colloquy.

               On July 25, 2013, the Commonwealth filed a
           motion to dismiss the petition, arguing that
           [McLaughlin]’s waiver of counsel was valid and also
           that [McLaughlin] forfeited his right to counsel by his
           dilatory and disruptive conduct.          [McLaughlin]
           answered the Commonwealth’s motion on October
           29, 2013 with the assistance of counsel, Kevin Mark
           Wray. This [c]ourt heard argument and testimony
           on the Commonwealth’s motion to dismiss on seven
           different occasions between January and May of
           2014. The [c]ourt ultimately dismissed the petition
           on May 29[], 2014, finding that although
           [McLaughlin] had not forfeited his right to counsel
           through any misbehavior, he could not prevail on his
           petition because he was not prejudiced by the trial
           court’s failure to provide an adequate waiver of
           counsel colloquy.

PCRA Court Opinion, 2/12/15, at 2-5 (footnote and record citations omitted).

     On June 27, 2014, McLaughlin filed a timely notice of appeal.       On

October 16, 2014, the PCRA court ordered McLaughlin to file a concise

statement of the errors complained of on appeal pursuant to Rule 1925(b) of

the Pennsylvania Rules of Appellate Procedure.        On October 25, 2014,

McLaughlin timely filed his Rule 1925(b) statement.



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      On appeal, McLaughlin raises the following issues for our review:

            1.    Did the [PCRA court] err by denying
                  [McLaughlin] relief where the trial court did not
                  conduct an adequate waiver of counsel
                  colloquy as required by [Pa.R.Crim.P.] 121?

            2.    Did the [PCRA court] err by denying
                  [McLaughlin] relief due to Judge Willis Berry
                  presiding over the trial?

McLaughlin’s Brief at 3.

      We begin by acknowledging that “[o]ur standard of review regarding a

PCRA court’s order is whether the determination of the PCRA court is

supported   by   the   evidence   of     record   and   is   free   of   legal   error.”

Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011). “The

PCRA court’s findings will not be disturbed unless there is no support for the

findings in the certified record.” Id.

      For his first issue on appeal, McLaughlin argues that the PCRA court

erred in denying his PCRA petition because the trial court failed to conduct

an adequate waiver of counsel colloquy pursuant to Rule 121 of the

Pennsylvania Rules of Criminal Procedure. See McLaughlin’s Brief at 29-34.

We conclude that this claim does not entitle McLaughlin to relief.

      Section 9543(a) of the PCRA identifies a petitioner’s burden of proof

and pleading requirements to be eligible for PCRA relief.           Section 9543(a)

provides, in pertinent part, as follows:

            (a) General rule.--To be eligible for relief under
            this subchapter, the petitioner must plead and prove



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          by a preponderance of the evidence all of the
          following:

                            *       *    *

               (2) That the conviction or sentence resulted
               from one or more of the following:

                    (i) A violation of the Constitution of this
                    Commonwealth or the Constitution or
                    laws of the United States which, in the
                    circumstances of the particular case, so
                    undermined       the    truth-determining
                    process that no reliable adjudication of
                    guilt or innocence could have taken
                    place.

                    (ii) Ineffective assistance of counsel
                    which, in the circumstances of the
                    particular case, so undermined the truth-
                    determining process that no reliable
                    adjudication of guilt or innocence could
                    have taken place.

                    (iii) A plea of guilty unlawfully induced
                    where the circumstances make it likely
                    that    the    inducement   caused    the
                    petitioner to plead guilty and the
                    petitioner is innocent.

                    (iv) The     improper    obstruction by
                    government officials of the petitioner’s
                    right of appeal where a meritorious
                    appealable issue existed and was
                    properly preserved in the trial court.

                    (v) Deleted.

                    (vi) The unavailability at the time of trial
                    of exculpatory        evidence that has
                    subsequently become available and
                    would have changed the outcome of the
                    trial if it had been introduced.



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                        (vii) The imposition of a sentence greater
                        than the lawful maximum.

                        (viii) A proceeding in a tribunal without
                        jurisdiction.

42 Pa.C.S.A. § 9543(a)(2).

      McLaughlin raised the issue of the trial court’s failure to conduct an

adequate   waiver   of counsel colloquy pursuant to         Rule   121 of the

Pennsylvania Rules of Criminal Procedure in his direct appeal to this Court

decided on November 8, 2010. See Commonwealth v. McLaughlin, 3144

EDA 2009 at 2-3 (Pa. Super. Nov. 8, 2010) (unpublished memorandum). As

the prior panel of this Court determined, McLaughlin waived this claim, and

therefore it does not entitle him to relief, because he failed to raise the issue

before the trial court and raised it for the first time on appeal. See id.; see

also Commonwealth v. Hankerson, 118 A.3d 415, 420 (Pa. Super. 2015)

(issues, even of constitutional dimension, are waived if not raised in the

court below); Pa.R.A.P. 302(a).

      Thus, in order for McLaughlin to raise a meritorious claim under the

PCRA relating to his alleged inadequate waiver of counsel colloquy, he would

have to plead and prove that his colloquy counsel was ineffective for failing

to object to a deficient colloquy and that his appellate counsel was

ineffective for failing to preserve the issue for his direct appeal. See, e.g.,

Commonwealth v. Spotz, 18 A.3d 244, 262-64 (Pa. 2011); see also




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42 Pa.C.S.A. § 9543(a)(2)(ii). Indeed, McLaughlin framed the issue this way

in his amended PCRA petition. See PCRA Petition, 1/3/13, at 4-7. For the

reasons that follow, however, McLaughlin has waived this ineffective

assistance of counsel claim on appeal.

      There are several layers of preservation required for an issue in a

criminal case to be appropriately subject to appellate review. The appellant

must raise the issue before the trial 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.”). If the trial court issues an order requiring the filing of a

1925(b) statement, any issue the appellant must include any issue he or she

seeks to raise on appeal therein. 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.”). The appellant must also

include the issue in the statement of questions involved section of the

appellate brief.   See Pa.R.A.P. 2116(a) (“No question will be considered

unless it is stated in the statement of questions involved or is fairly

suggested thereby.”). Lastly, for an issue to be reviewable on appeal, the

appellant must include a properly developed argument in support of the

issue in the argument section of his or her appellate brief.              See

Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (“[W]here an

appellate brief fails to provide any discussion of a claim with citation to




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relevant authority or fails to develop the issue in any other meaningful

fashion capable of review, that claim is waived.”).

          While McLaughlin included the ineffectiveness claim relating to

colloquy counsel and appellate counsel in his amended PCRA petition, he

failed to raise the issue in his Rule 1925(b) statement and the statement of

questions involved section of his appellate brief.         See Rule 1925(b)

Statement, 10/25/14; McLaughlin’s Brief at 3.         Furthermore, McLaughlin

failed to include discussion on the issue with citation to relevant authority in

the argument section of his appellate brief. See McLaughlin’s Brief at 29-34.

Therefore, McLaughlin has waived his claim that colloquy counsel was

ineffective for failing to object to the waiver of counsel colloquy and that

appellate counsel was ineffective for failing to preserve the issue for his

direct appeal.2 Accordingly, McLaughlin’s first issue does not entitle him to

relief.



2
   Moreover, even if McLaughlin had preserved this issue on appeal, it would
not entitle him to relief. To prevail on an ineffective assistance of counsel
claim, the petitioner must establish: “(1) the underlying claim has arguable
merit; (2) no reasonable basis existed for counsel’s action or failure to act;
and (3) the petitioner suffered prejudice as a result of counsel’s error, with
prejudice measured by whether there is a reasonable probability that the
result of the proceeding would have been different.” Commonwealth v.
Bomar, 104 A.3d 1179, 1188 (Pa. 2014) (citation omitted). “When a
petitioner claims ineffective assistance of counsel based on a failure to object
to an allegedly defective waiver colloquy, … [t]o establish prejudice, the
petitioner must demonstrate a reasonable probability that but for counsel’s
ineffectiveness, he would not have waived the right at issue.” Spotz, 18
A.3d at 263-64. Here, McLaughlin has never pled, much less proved, that
he would not have waived his right to counsel had the trial court conducted


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      For his second issue on appeal, McLaughlin argues that the PCRA court

erred in denying his PCRA petition because Judge Berry, who conducted

McLaughlin’s nonjury trial, exhibited bias in favor of the Commonwealth.

See McLaughlin’s Brief at 34-36. McLaughlin asserts that Judge Berry was

attempting to gain favor with the Commonwealth because he knew that he

was going to be the subject of a criminal investigation by the District

Attorney’s Office, as he had been engaging in criminal activity since January

1997. See id.

      We conclude that this claim is not cognizable under the PCRA. In his

appellate brief, McLaughlin does not state which provision of section

9543(a)(2) is applicable.     Additionally, although difficult to discern his

precise argument, he does not appear to be raising a violation of his

constitutional rights, ineffective assistance of counsel, improper obstruction

by government official with his right to appeal, the unavailability at the time

of trial of exculpatory evidence, an illegal sentence, or a proceeding in a

tribunal without jurisdiction. See 42 Pa.C.S.A. § 9543(a)(2). McLaughlin’s

claim is merely that the District Attorney’s investigation into Judge Berry

caused Judge Berry to be biased in favor of the Commonwealth in order to

curry favor with the District Attorney’s Office. See McLaughlin’s Brief at 34-

36.

a proper colloquy. To the contrary, the certified record on appeal is replete
with evidence that McLaughlin wished to represent himself in this matter.
See, e.g., N.T., 2/26/07, at 2-5; N.T., 7/13/06, at 2, 7-10, 13.



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      Even if this claim were cognizable under the PCRA, it is meritless.

While the activity that brought Judge Berry under investigation by the

District Attorney’s Office dates back to January 1997, see In re Berry, 979

A.2d 991, 994 (Pa. Ct. Jud. Disc. 2009), Judge Berry did not become aware

of any potential criminal investigation by the District Attorney’s Office until

June 25, 2009, see Commonwealth v. Cain, 3254 EDA 2009 at 4 (Pa.

Super. Nov. 26, 2012) (unpublished memorandum), nearly two years after

McLaughlin’s conviction.   Therefore, the District Attorney’s investigation of

Judge Berry could not have caused Judge Berry to be biased in favor of the

Commonwealth at the time of McLaughlin’s trial in 2007.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/8/2015




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