J-S19023-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

CHARLES PACK

                            Appellant                 No. 1340 EDA 2015


                Appeal from the PCRA Order Dated April 24, 2015
                 In the Court of Common Pleas of Lehigh County
                Criminal Division at No: CP-39-CR-0001361-2008


BEFORE: BENDER, P.J.E., STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                       FILED SEPTEMBER 16, 2016

         Appellant Charles Pack appeals from the April 24, 2015 order of the

Court of Common Pleas of Lehigh County (“PCRA court”), which denied his

request for collateral relief under the Post Conviction Relief Act (the “Act”),

42 Pa.C.S.A. §§ 9451-46. Upon review, we affirm.

         On December 22, 2005, two men forced their way into an Allentown

apartment shared by Benjamin Luck and his girlfriend Elinette Nieves.1

Mr. Luck and Ms. Nieves, along with Debra Schlegel, were present in the

apartment that evening.         One of the intruders shot Mr. Luck in the head

twice.     Ms. Schlegel testified that she heard three shots.      One of the
____________________________________________


1
  Unless otherwise specified, these facts come from this Court’s January 10,
2012 Memorandum affirming Appellant’s judgment of sentence.
Commonwealth v. Pack, No. 2373 EDA 2010 (Pa. Super. Jan. 10, 2010)
(unpublished memorandum).
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intruders was injured while inside of the apartment, leaving a trail of blood

leading through the apartment’s kitchen, out the door, and down a walkway

to the street.      A DNA test later confirmed that the trail of blood was

Appellant’s.    While interviewing Appellant, detectives noticed his injured

hand. Appellant initially told them that he injured it while changing a tire.

The detectives photographed Appellant’s injury, because they believed it

would explain the trail of blood at the crime scene.        The detectives later

interviewed Appellant a second time. During this interview, the detectives

told Appellant his DNA had been found at the crime scene, and that they had

been informed Appellant had been shot. According to one of the detectives,

Appellant became agitated and said he knew they were going to find that

out.

        The PCRA court summarized the procedural background as follows:

        On May 17, 2010, following a jury trial, [Appellant] was found
        guilty of Murder of the Second Degree, Burglary, Robbery and
        two counts of Criminal Conspiracy.2 I ordered a Pre-sentence
        Investigation Report (PSI), and on June 22, 2010, I sentenced
        [Appellant] on the homicide charge to life imprisonment without
        the possibility of parole, and a consecutive term of 32 ½ years to
        80 years on the remaining charges.

        [Appellant] filed Post-Sentence Motions, which were denied on
        July 20, 2010, following a hearing. [Appellant] timely appealed,
        and the Superior Court affirmed his judgment of sentence on
        January 10, 2012. Our Supreme Court denied [Appellant’s]
        petition for allowance of appeal on September 19, 2012.
        [Appellant] did not file a petition for writ of certiorari with the
        United States Supreme Court. At all relevant times, [Appellant]
        was represented by James D. Nechin, Esquire, of the Lehigh
        County Public Defender’s Office.
____________________________________________


2
    Respectively, 18 Pa.C.S.A. §§ 2501(a), 3502(a), 3701(a)(1)(i), and 903.



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       On December 27, 2013, [Appellant] filed a pro se petition
       pursuant to the Post-Conviction Relief Act (PCRA). Attorney
       Robert Long was appointed to represent [Appellant], and on May
       1, 2014, Attorney Long filed a petition addressing only the
       timeliness of [Appellant]’s petition, as directed by this court.
       After review of the same, I issued an order finding that
       [Appellant]’s petition was timely pursuant to the prisoner
       mailbox rule, and directing counsel to file an amended petition
       addressing the merits of [Appellant]’s claims. Attorney Long
       filed an amended petition on August 14, 2014, and a second
       amended petition on December 8, 2014, raising claims of
       ineffective assistance of counsel. A hearing was held on October
       8, 2014, and December 17, 2014, following which I took the
       matter under advisement. The parties submitted briefs, and this
       opinion follows.

PCRA Court Opinion, 4/24/15, at 1-2.             On appeal,3 Appellant raises the

following issues for our review.

       Did the [PCRA] court err in finding that trial counsel was not
       ineffective for:

              1. Failing to object to the prosecutor’s use of an
              inflammatory photograph of [Appellant]’s hand
              during his closing;

              2. Failing to object to the prosecutor’s statement
              that a bullet went through the victim’s body and
              entered [Appellant]’s hand during his closing, when
              there was no evidence to support the argument;

              3. Failing to call Deb Schlegel’s son as a witness at
              trial to testify that Deb Schlegel, a Commonwealth
              witness, was involved in the crimes.

Appellant’s Brief at 4.

       A PCRA petitioner is entitled to relief if he pleads and proves that prior

counsel    rendered      ineffective   assistance   of   counsel.   42   Pa.C.S.A.


____________________________________________


3
  “In reviewing the denial of PCRA relief, we examine whether the PCRA
court’s determination ‘is supported by the record and free of legal error.’”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quoting
Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)).



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§ 9543(a)(2)(ii). “To prevail on an [ineffectiveness] claim, a PCRA petitioner

must plead and prove by a preponderance of the evidence that (1) the

underlying legal claim has arguable merit; (2) counsel had no reasonable

basis for acting or failing to act; and (3) the petitioner suffered resulting

prejudice.” Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 780 (Pa.

Super. 2015) (en banc).         “A petitioner must prove all three factors of the

“Pierce[4] test,” or the claim fails.” Id.

       Based on our review of Appellant’s brief, we agree with the

Commonwealth’s observation that Appellant’s ineffectiveness claims sub

judice are waived because his brief is bereft of any discussion or argument

with respect to any one of the three Pierce prongs.              As we recently

emphasized, “[a] petitioner must prove all three factors of the Pierce test,

or the [ineffectiveness] claim fails. In addition, on appeal, a petitioner must

adequately discuss all three factors of the Pierce test, or the appellate

court will reject the claim.” Reyes-Rodriguez, 111 A.3d at 780 (emphasis

added) (citing Fears, 86 A.3d at 804)). Thus, given Appellant’s failure to

adequately discuss the Pierce prongs on appeal, we must reject his

ineffectiveness claims.

       Order affirmed.



____________________________________________


4
    Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/16/2016




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