J-S53011-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                   Appellee               :
                                          :
             v.                           :
                                          :
JUAN JOSE PEREZ,                          :
                                          :
                   Appellant              :   No. 134 MDA 2015

              Appeal from the Order entered December 19, 2014,
                  Court of Common Pleas, Schuylkill County,
               Criminal Division at No. CP-54-CR-0001391-2012

BEFORE: DONOHUE, OTT and MUSMANNO, JJ.

MEMORANDUM BY DONOHUE, J.:                          FILED AUGUST 28, 2015

        In this appeal, Juan Jose Perez (“Perez”) challenges the dismissal and

denial of his petition filed pursuant to Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A §§ 9541-9546. Following our review, we affirm.

        On April 7, 2012, a shooting occurred in Shenandoah, Schuylkill

County. The next day, an arrest warrant for Perez was issued in connection

with the shooting.    On June 21, 2012, the police arrested Perez.     In the

course of doing so, Perez attempted to flee. This led to charges of escape,

resisting arrest and flight to avoid prosecution.

        All charges related to the April 7, 2012 shooting were eventually

dropped, but Perez was convicted of all charges related to his attempt to

flee.    The trial court sentenced him to seven to seventeen months of

incarceration on the flight to avoid prosecution conviction and a concurrent
J-S53011-15


term of nine to twenty-four months on the resisting arrest conviction. This

Court affirmed his judgment of sentence in June 2014. Perez filed a pro se

PCRA petition raising two issues on August 11, 2014. On August 13, 2014,

the PCRA court issued a rule on the Commonwealth to show cause why a

hearing should not be granted. The PCRA court also granted Perez in forma

pauperis status and “noted that [Perez] has not requested the appointment

of counsel and has proceeded pro se.” PCRA Court Order, 8/131/4. Perez

subsequently petitioned for the appointment of counsel, and the PCRA court

granted his request on September 3, 2014. Just four days later, the PCRA

court issued notice of its intent to dismiss Perez’s PCRA petition pursuant to

Pa.R.Crim.P. 907.   After receiving two extensions of time in which to file,

PCRA counsel filed a response to the Rule 907 notice and raised three

additional issues on Perez’s behalf. On December 19, 2014, the PCRA court

denied and dismissed Perez’s petition.

      This timely appeal follows, in which Perez raises the following two

issues for our review:

            1. Whether the defective warrant used to arrest
               [Perez] invalidated the entire case against
               [Perez]?

            2. Whether [Perez] was denied his right to counsel?

Perez’s Brief at 5. As we consider these issues, we are mindful that

            [when] conducting review of a PCRA matter, we
            consider the record “in the light most favorable to
            the   prevailing  party   at    the  PCRA    level.”



                                    -2-
J-S53011-15


            Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.
            Super. 2014) (en banc). Our review is limited to the
            evidence of record and the factual findings of the
            PCRA court. Id. This Court will afford “great
            deference to the factual findings of the PCRA court
            and will not disturb those findings unless they have
            no support in the record.” Id. Thus, when a PCRA
            court's ruling is free of legal error and is supported
            by record evidence, we will not disturb its decision.
            Id. Of course, if the issue pertains to a question of
            law, “our standard of review is de novo and our
            scope of review is plenary.” Id.

Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super. 2015).

      Perez first argues that his trial counsel was ineffective for failing to

challenge the validity of the arrest warrant that the police were executing

when Perez attempted to flee. To prove ineffective assistance of counsel, an

appellant must show (1) that the underlying claim is of arguable merit; (2)

that counsel had no reasonable basis designed to effectuate the appellant’s

interests for the act or omission in question; and (3) that counsel's

ineffectiveness actually prejudiced the appellant.      Commonwealth v.

Moser, 921 A.2d 526, 531 (Pa. Super. 2007).         The failure to meet any

prong of this test requires that the claim be dismissed. Id.

      Perez argues that “had [trial counsel] attempted to challenge the

validity of the arrest warrant, the challenge … would have been successful

and the warrant would have been found to be invalid, and therefore, the

entire prosecution of the instant case would have been the fruit of the

poisonous tree.”   Perez’s Brief at 11. The only basis Perez identifies for

invalidating the warrant is the fact that “the charges for which this warrant


                                    -3-
J-S53011-15


were [sic] issued were ultimately dismissed.” Id.1 The PCRA court rejected

this argument upon concluding that Perez “has not pled nor alleged nor

averred any facts showing that the warrant … was not based on probable

cause.   … [S]imply asserting that the charges under the warrant were

ultimately dismissed does not in any way attack the probable cause basis

presented to the issuing authority for the issuance of the warrant.”         PCRA

Court Opinion, 9/10/14, at 3.

      We can find no error with this determination. As noted by the PCRA

court, Pennsylvania Rule of Criminal Procedure 513(B) governs the issuance

of arrest warrants. It provides that “[n]o arrest warrant shall issue but upon

probable cause supported by one or more affidavits sworn to before the

issuing authority in person or using advanced communication technology.

The issuing authority, in determining whether probable cause has been

established,   may   not   consider   any   evidence   outside   the   affidavits.”

Pa.R.Crim.P. 513(B)(2).      Perez does not challenge the content of the

supporting affidavit or otherwise make any allegation contesting the

magistrate’s finding of probable cause. Accordingly, he has failed to prove




1
  We note that Perez also states that the warrant was invalid because the
issuing authority placed the incorrect date next to his signature. Perez’s
Brief at 11. Perez did not raise this claim as a basis for invalidating the
warrant at any time before the PCRA court, and he cannot raise it now for
the first time on appeal. See Commonwealth v. Rush, 959 A.2d 945, 949
(Pa. Super. 2008). This aspect of his argument is not properly before us.


                                      -4-
J-S53011-15


that there is merit to the claim underlying his assertion of ineffective

assistance of counsel, and so he has failed to meet his burden.

      Next, Perez argues that “he was denied his Constitutional right to

counsel” in a “crucial stage” of the PCRA proceedings. Perez’s Brief at 12.

Perez makes this claim without citation to, much less discussion of, any

relevant authority; indeed, his “argument” on this issue is a single

paragraph.     The Rules of Appellate Procedure require that appellants

adequately develop each issue raised with discussion of pertinent facts and

pertinent authority.       See Pa.R.A.P. 2119(a).            It is not this Court’s

responsibility to comb through the record seeking the factual underpinnings

of an appellant’s claim.    Commonwealth v. Mulholland, 702 A.2d 1027,

1034 n.5 (Pa. 1997). Further, this Court will not become the counsel for an

appellant    and     develop       arguments       on   an     appellant’s     behalf.

Commonwealth v. Gould, 912 A.2d 869, 873 (Pa. Super. 2006). It was

Perez’s   responsibility   to    provide   an    adequately    developed     argument

providing citation to and discussion of relevant authority.         Because he has

failed to do so, we find this issue waived.

      Even if we were not to find this issue waived, we would find that it

affords Perez no relief.        First, contrary to Perez’s assertion, there is no

constitutional right to counsel in PCRA proceedings; rather, as this Court has

explained, it is “pursuant to the rules of criminal procedure and interpretive

case law[] [that] a criminal defendant has a right to representation of



                                           -5-
J-S53011-15


counsel for purposes of litigating a first PCRA petition through the entire

appellate process.” Commonwealth v. Robinson, 970 A.2d 455, 457 (Pa.

Super. 2009) (citing Pa.R.Crim.P. 904(c); Commonwealth v. White, 871

A.2d 1291, 1294–95 (Pa. Super .2005); Commonwealth v. Quail, 729

A.2d 571, 573 (Pa. Super. 1999)).

      Further, the record in the present case reveals that although the PCRA

court did not immediately appoint counsel for Perez, it did appoint counsel

and grant two lengthy extensions of time for PCRA counsel to file a response

to its Rule 907 notice. In this response, PCRA counsel not only addressed

the two issues that Perez raised in his pro se PCRA petition, but also raised

three additional issues on his behalf.      See Response of Petitioner to the

Court’s Rule 907 Notice, 11/21/14, at 6-7. Thus, although the PCRA should

have automatically appointed counsel upon its finding that Perez was

indigent, see Commonwealth v. Kutnyak, 781 A.2d 1259, 1262 (Pa.

Super. 2001), it did eventually appoint counsel.        That counsel dutifully

executed her duties, as she reviewed the record, responded to the PCRA

court’s belief that Perez’s claims lacked merit (thereby refining the

arguments that Perez articulated in his pro se petition), and raised three

additional issues on Perez’s behalf. Thus, we would not hesitate to conclude

that Perez was afforded, and enjoyed, his right to counsel for purposes of

litigating his first PCRA petition.   Cf. Commonwealth v. Hampton, 718

A.2d 1250, 1253 (Pa. Super. 1998) (finding proceedings effectively



                                      -6-
J-S53011-15


uncounseled and in violation of the representation requirement “when

appointed counsel fails to amend an inarticulately drafted pro se [PCRA]

petition, or fails otherwise to participate meaningfully[.]”).

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/28/2015




                                      -7-
