J-S49002-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    ANTHONY MORGAN                             :
                                               :
                      Appellant                :   No. 83 WDA 2016

                 Appeal from the PCRA Order December 7, 2015
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0010913-2011


BEFORE:        DUBOW, J., SOLANO, J., and FITZGERALD J.*

MEMORANDUM BY DUBOW, J.:                            FILED SEPTEMBER 07, 2017

        Appellant, Anthony Morgan, appeals from the Order entered in the

Allegheny County Court of Common Pleas denying his first Petition filed

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-46.

Upon careful review, we affirm.

        This Court summarized the pertinent facts of Appellant’s underlying

conviction for First-Degree Murder on direct appeal. See Commonwealth

v. Morgan, No. 599 WDA 2013, unpublished memorandum at 2-5 (Pa.

Super. filed May 23, 2014). We briefly summarize the facts and procedural

history relevant to the instant appeal as follows.



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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      The victim in this case, Deon Thomas, was a drug dealer whose

customers included Appellant.     The evening of September 1, 2004, the

victim’s girlfriend, Crystal McHirella, discovered the victim lying dead in a

pool of blood on the floor of his entryway.     The victim had been stabbed

multiple times, with at least five fatal stab wounds to his neck and trunk.

The victim had also suffered blunt force trauma to his face, neck,

extremities, and back.

      Police investigators questioned Appellant in October of 2004 regarding

the murder.   Appellant denied any involvement in the victim’s death, and

stated that he had only ever been in the living room of the victim’s home.

Investigators released Appellant, and the case went cold after 2004.

      In 2010, investigators reopened the case and obtained a warrant to

collect DNA from Appellant to compare to evidence collected at the crime

scene. Appellant’s DNA matched a sample recovered from the victim’s sink,

and Appellant was identified as a possible contributor to a mixed DNA

sample recovered from the murder weapon.

      After investigators collected his DNA, Appellant went into hiding.    In

August of 2011, however, investigators located and arrested Appellant and

charged him with one count of Criminal Homicide.

      Appellant elected to proceed by way of a jury trial.    He presented a

theory of self-defense to the jury, testifying that the victim had attacked him

with a knife without warning and he had stabbed the victim after disarming


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him.    The jury did not believe Appellant’s self-defense claims, and on

November 1, 2012, it found Appellant guilty of First-Degree Murder.      The

trial court sentenced him to a mandatory term of life imprisonment.

       On appeal, this Court rejected Appellant’s claim that the evidence was

insufficient to disprove his self-defense claim, and we affirmed his Judgment

of Sentence on May 23, 2014. Id.

       On June 19, 2015, Appellant timely filed a pro se PCRA Petition. The

PCRA court appointed PCRA counsel, who filed a Petition to Withdraw as

counsel and an accompanying no-merit letter pursuant to Commonwealth

v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550

A.2d 213 (Pa. Super. 1988) (en banc). In the letter, PCRA counsel identified

and addressed sixteen claims.

       On November 17, 2015, the PCRA court granted PCRA counsel’s

Petition to Withdraw and filed a Notice of Intention to Dismiss PCRA Petition

Without a Hearing, pursuant to Pa.R.Crim.P. 907. The PCRA court’s Order

gave Appellant twenty days in which to file a response.

       On December 7, 2015, Appellant filed a pro se Response to the PCRA

court’s Rule 907 Notice restating the sixteen claims identified by PCRA

counsel and identifying two additional claims. The next day, the PCRA court

dismissed Appellant’s Petition.

       Appellant filed a timely appeal.   In response to a PCRA court Order,

Appellant filed a Pa.R.A.P. 1925(b) Statement that failed to include most of


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the issues raised in his PCRA Petition, and raised numerous claims not

previously raised.   The PCRA court filed a responsive 1925(a) Opinion in

which it concluded that most, if not all, of Appellant’s claims were waived.

      On appeal, Appellant raises the following ten claims, copied verbatim

but reordered for ease of disposition:

      1. Whether Appellant was entitled to PCRA relief in the form of
      an evidentiary hearing and/or a new trial as a result of being
      denied a fair trial; where the trial Court erred in “NOT” making a
      ruling on Appellant's Omnibus pretrial motion; specifically where
      the Court denied Appellant ‘any’ ruling; complete denial of the
      14th Amendment’s Due Process.            Subsequently, the ‘only’
      hearing held here was a Statues hearing where Appellant was
      told to cooperate with counsel, and where Appellant pleaded for
      Court appointed counsel?

      2. Did the PCRA Court err, “abusing it's discretion”, where the
      Court denied Appellant PCRA relief in the form of an evidentiary
      hearing and/or a new trial as a result of being ‘denied’ a fair trial
      as a result of trial, appellate and PCRA counsel's ineffectiveness,
      i.e. [“layered-claim”] of ineffectiveness? Appellate asserts’ due
      to ‘all’ counsel's ineffectiveness he was ‘denied’ the adversary
      processes’ challenges’ of:

         (a). Counsel’s failure to thoroughly investigate the case;

         (b). Trial counsel’s investigator was deficient and ‘failed’
         to adequately investigate the case, including, failure to
         investigate the crime scene, interview witnesses’,
         investigate evidence and, recreate the crime scene;

         (c). Trial counsel’s failure to investigate Appellant’s
         clothing;

         (d). Trial counsel’s failure to present character witnesses’
         in favor of Appellant, and rebutted evidence in opposition
         to the Commonwealths evidence;

         (e). Trial counsel’s “ill[-]advising” Appellant to take the
         stand;


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        (f). Trial     counsel “ill[-]advisement”, waiving a pre-
        Sentence      investigation which would have (est)ablished
        Appellant     suffered from multiple diagnoses’ of mental
        illnesses’,   and;

        (g). A conflict of interest between Appellant/trial counsel,
        and appellate counsel, where Appellant requested counsel
        be removed and new counsel be appointed?

     3. Did the PCRA Court err where Appellant was entitled to PCRA
     relief in the form of an evidentiary hearing and/or a new trial as
     a result of being denied effective assistance of counsel, where
     trial counsel's private investigator leaked information in regards
     to Appellant's clothing?

     4. Did the PCRA Court err where Appellant was entitled to PCRA
     relief in the form of an evidentiary hearing and/or a new trial as
     a result of being denied effective assistance at trial, where
     counsel at Suppression Motion’s withdrew motion, rendering
     counsel deficient---specifically, where Appellant was illegally
     questioned by police---complete denial of Miranda rights’?

     5. Did the PCRA Court err denying Appellant PCRA relief in the
     form of an evidentiary hearing and/or a new trial, where during
     trial, the [B]ench had “abused it’s discretion”---taking second
     degree off the table and proceeding upon the Prosecutions
     reasoning for wanting to proceed on first degree murder. In
     which, the prosecution offered ‘no’ further evidence to have
     supportted first degree---the prosecution only offered it’s theory;
     subsequently, theory alone is ‘not’ sufficient evidence enough to
     request, and for the [B]ench to GRANT a first degree instruction.
     Thus, the juries’ instruction was based on the Court’s err and
     abuse alone?

     6. Did the PCRA Court err denying Appellant an evidentiary
     hearing and/or a new trial where exculpatory evidence existed,
     mainly, finger[-]nail marks’, and abrasion’s to the knees’ and
     shins of the deceased---and because Appellant had testified at
     trial that, the deceased was on top of him when Appellant
     himself, disarming the deceased of the knife and stabbing the
     deceased and where the foot[-]stool had aligned perfectly to the
     deceased’s knees’ and shins, clearly (est)ablishing that the
     victim “NOT” only being on top of Appellant, but also being the
     deceased was the aggresser?


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      7. Did the PCRA Court err denying Appellant PCRA relief in the
      form of an evidentiary hearing and/or a new trial, where the
      prosecution committed, “prosecutorial misconduct”, inasmuch
      imparting fabricated evidence to the jury of Appellants’ prior
      arrest photograph used falsely showing Appellant being
      big/muscular weighing 207, rather than Appellant’s photograph
      at the time of the arrest of the case, where Appellant weighed
      170 pds.---well (est)ablished fabrication?

      8. Did the PCRA Court err, denying Appellant PCRA review in the
      form of an evidentiary hearing, where the Court ‘denied’
      Appellant his Due Process and Procedural Due Process right to
      Supplement/Amend his PCRA for purposes’ of review; and where
      the PCRA Court ‘failed’ to [make] a ruling on Appellants’ 907
      objection?

      9. Did the PCRA Court err where Appellant was entitled to PCRA
      relief in the form of an evidentiary hearing and/or a new trial as
      a result of being denied effective counsel, where counsel ‘failed’
      to cross-examine Crystal Mchirella as being a victim of the
      deceased’s violent behavior, which had included indecent assault
      and assault.      Well (est)ablished indirect evidence that the
      deceased was the aggressor in this case? Citing, [Com. V.
      Carbone; 707 A.2d 1145 (Pa.Super. 1998)].

      10. Was Appellant entitled to PCRA relief in the form of an
      evidentiary hearing as a result of being denied a fair trial, where
      the Prosecuting attorney committed a Brady violation---violating
      Appellant's Due Process right's where a DNA sample was taken
      from Appellant on, (10/8/04), but, Appellant wasn’t arrested
      with the ‘alleged’ murder until [2011]?

Appellant’s Brief at 1-4 (capitalizations, typographical errors, misspellings,

and punctuation including bracket and parentheses in original).

      When reviewing the denial of a PCRA Petition, “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) (internal

quotation marks and citation omitted). “The scope of review is limited to the

findings of the PCRA court and the evidence of record, viewed in the light

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most favorable to the prevailing party at the trial level.” Commonwealth

v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted). When the PCRA

court denies a petition without an evidentiary hearing, we “examine each

issue raised in the PCRA petition in light of the record certified before it in

order to determine if the PCRA court erred in its determination that there

were no genuine issues of material fact in controversy and in denying relief

without conducting an evidentiary hearing.” Commonwealth v. Khalifah,

852 A.2d 1238, 1240 (Pa. Super. 2004) (citation omitted).

                                       Waived Claims

       Appellant waived his first seven claims, including the subissues, by

failing to raise them before the PCRA court. “Issues not raised in the lower

court are waived and cannot be raised for the first time on appeal.”

Pa.R.A.P. 302(a).       This requirement also acts to bar an appellant from

raising “a new and different theory of relief” for the first time on appeal.

Commonwealth v. York, 465 A.2d 1028, 1032 (Pa. Super. 1983).

       In the instant case, Appellant did not raise any of his first five issues

on appeal in his Petition or his Response to the PCRA court’s Rule 907

Notice. Appellant raised claims similar to his sixth and seventh issues before

the PCRA court, but now relies upon “new and different” theories of relief.1

____________________________________________


1
  In his sixth claim, Appellant argues exculpatory evidence in the form of
injuries to the victim’s body.     However, before the PCRA court, his
exculpatory evidence claim was premised on a missing shirt. In his seventh
(Footnote Continued Next Page)


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For all seven claims, Appellant failed to properly preserve them and they

are, therefore, waived.

           Appellant’s Response to Notice of Intent to Dismiss

      In his eighth issue, Appellant avers that the PCRA court’s failure to

enter a separate Order specifically ruling on his Response to the PCRA

court’s Rule 907 Notice “was an error and complete deprivation of

Appellant’s right to be heard in [c]ourt[.]” Appellant’s Brief at 13.

      Appellant’s Response to the PCRA court’s Rule 907 Notice reiterated

the sixteen claims raised in Appellant’s counseled Petition and included two

additional claims.2 The PCRA court reviewed the Response and found each

of the claims therein to be previously litigated and/or meritless. See Trial

Court Opinion, filed 1/17/17, at 3-4. Appellant was not denied his right to

“be heard” on his Response where, as the PCRA court noted, “all of the

issues raised in Petitioner’s [Response] were considered by [the PCRA c]ourt

when it issued the final dismissal [O]rder in this case.” Id. at 4.


                       _______________________
(Footnote Continued)

claim, Appellant argues that prosecutorial misconduct resulted in the jury
seeing misleading photos of his physique. Before the PCRA court, however,
Appellant premised this claim on a theory of ineffective assistance of
counsel.
2
  The additional claims raised by Appellant in his Response were (i) a
rewording of an ineffective assistance of counsel claim previously included in
his counseled Petition, and (ii) a statement of Appellant’s intention to
“challenge and preserve his self-defense” claim. See Response to Notice of
Intent to Dismiss, filed 12/7/15, at 6.



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      Appellant asserts that the Order dismissing his PCRA Petition was

insufficient to address his Response, and that the PCRA court was required

to   enter   an   order   specifically   “granting   or   denying”   his   Response.

Appellant’s Brief at 11. However, Appellant does not cite to any authority

requiring the PCRA court to issue a formal order “granting or denying” a

response to a Rule 907 Notice of Intent to Dismiss. To the contrary, Rule

907 mandates that, where a Response is filed, the PCRA court “shall order

the petition dismissed, grant leave to file an amended petition, or direct that

the proceedings continue.”        Pa.R.Crim.P. 907(1).      It does not require a

separate order.

      The PCRA court properly ordered Appellant’s Petition dismissed, in

accordance with the dictates of Rule 907. Accordingly, the PCRA court did

not err, and Appellant is not entitled to relief on this claim.

                   Cross-Examination of Crystal McHirella

      In his ninth issue, Appellant avers that trial counsel was ineffective for

failing to cross-examine the victim’s girlfriend, Crystal McHirella, about the

victim’s alleged history of violence towards her. Specifically, Appellant avers

that the victim previously committed acts of indecent assault, assault, and

unlawful restraint against McHirella, and that trial counsel should have cross-

examined her about those events to bolster Appellant’s theory that the

victim was the initial aggressor in the instant case.




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     In analyzing claims of ineffective assistance of counsel, we presume

that counsel was effective unless the PCRA petitioner proves otherwise.

Commonwealth v. Williams, 732 A.2d 1167, 1177 (Pa. 1999). In order to

succeed on a claim of ineffective assistance of counsel, Appellant must

demonstrate (1) that the underlying claim is of arguable merit; (2) that

counsel’s performance lacked a reasonable basis; and (3) that the

ineffectiveness of counsel prejudiced the appellant.    Commonwealth v.

Fulton, 830 A.2d 567, 572 (Pa. 2003).        Appellant bears the burden of

proving each of these elements, and his “failure to satisfy any prong of the

ineffectiveness test requires rejection of the claim of ineffectiveness.”

Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 2009) (citation

omitted).

     We note that Appellant did not present any evidence of the victim’s

alleged violent acts toward McHirella to the PCRA court.      On appeal he

concedes that he “cannot provide proof” that the victim assaulted McHirella,

but states that “this information will be easy for the courts to obtain.”

Appellant Brief at 34.1 (unpaginated document inserted between the 34th

and 35th pages of Appellant’s Brief). It is not this Court’s role to develop

and advance claims on Appellant’s behalf. See Commonwealth v. Hardy,

918 A.2d 766, 771 (Pa. Super. 2007) (stating that this Court “will not act as

counsel and will not develop arguments on behalf of an appellant”).




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      Moreover, Appellant has failed to establish that his claim is of arguable

merit; i.e., that the allegations of sexual violence would have been

admissible at trial. As our Supreme Court has explained, “testimony as to

the victim's character is admissible for the following purposes: (1) to

corroborate the defendant's alleged knowledge of the victim's violent

character to corroborate the defendant's testimony that he had a reasonable

belief his life was in danger[;] and (2) to prove the allegedly violent

propensities of the victim to show he was the aggressor.” Commonwealth

v. Smith, 416 A.2d 986, 988 (Pa. 1980). Generally, character evidence is

only admissible in the form of reputation testimony. Id.

      There are two exceptions that apply in self-defense claims and permit

defendants to introduce prior acts of the victim. First, prior violent acts of

the victim are admissible at trial to show the defendant’s state of mind,

whether or not the victim was convicted of these acts, where the defendant

can show that he was aware of these acts at the time of the offense. Id.

Second, prior violent acts of the victim may be introduced as propensity

evidence, but only where those prior violent acts resulted in a conviction.

Id.

      In the instant case, Appellant has failed to establish the existence of

any relevant, admissible evidence of the victim’s violent behavior. He does

not aver that witnesses were available who could have testified to the

victim’s reputation for violence. Nor does he aver that, at the time of the


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victim’s murder, he was aware of the alleged sexual violence towards

McHirella, a requirement to admissibility under the first exception discussed

in Smith, supra. Finally, Appellant does not aver that the victim’s violent

acts against McHirella resulted in a conviction as required under the second

exception discussed in Smith.

      Having concluded that Appellant failed to establish the existence of

these alleged violent acts, or their admissibility at trial, we conclude that

Appellant is not entitled to relief on this claim.

                                  Brady Claim

      In his final claim, Appellant purports to raise a claim pursuant to

Brady v. Maryland, 373 U.S. 83 (1963). Specifically, Appellant avers that

the Commonwealth violated Brady “where a DNA sample was taken from

Appellant on [October 8, 2004,] yet [Appellant] wasn’t arrested [for] the

‘alleged’ Murder until . . . 2011.” Appellant’s Brief at 36.

      Appellant’s reliance on Brady is misplaced. As our Supreme Court has

noted, “[t]he law governing alleged Brady violations is well-settled.”

Commonwealth v. Lambert, 884 A.2d 848, 853 (Pa. 2005).               It is a

violation of a defendant’s right to due process for the Commonwealth to

“withhold[] evidence that is favorable to the defense and material to the

defendant’s guilt or punishment.”       Smith v. Cain, 132 S. Ct. 627, 630

(2012) (citation omitted).




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     To prevail on a claim that the Commonwealth has committed a Brady

violation, “an appellant must prove three elements: (1) the evidence at issue

is favorable to the accused, either because it is exculpatory or because it

impeaches; (2) the evidence was suppressed by the prosecution, either

willfully or inadvertently; and (3) prejudice ensued.”    Commonwealth v.

Weiss, 81 A.3d 767, 783 (Pa. 2013) (citations omitted).

     In the instant case, Appellant does not aver the existence of any

evidence favorable to his case, nor does he assert that the prosecution

suppressed any evidence. Instead, his disjointed argument complains about

the delay between an alleged DNA collection in 2004 and his arrest in 2011.

There is nothing in our reading of Brady that would give rise to such a

claim.

     Moreover, Appellant bases this alleged Brady claim on a misstatement

of the facts presented in the instant case. Although unknown DNA samples

were recovered from the crime scene in 2004, investigators had no DNA to

which to compare the samples. Contrary to his assertions, investigators did

not obtain a DNA sample from Appellant until 2010. It was then that testing

revealed that the samples obtained from Appellant matched the unknown

samples recovered in 2004.     Once investigators obtained conclusive DNA

evidence matching Appellant to the crime, the only delay in prosecution was

caused by Appellant’s own efforts to abscond from justice.




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     Having concluded that Appellant is not entitled to relief on any of the

claims presented, we affirm the PCRA court’s Order.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/7/2017




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