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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                     v.

KAREEM JONES

                          Appellant                 No. 3114 EDA 2013


              Appeal from the PCRA Order September 13, 2013
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0309721-2004


BEFORE: MUNDY, J., OLSON, J., and WECHT, J.

MEMORANDUM BY MUNDY, J.:                        FILED FEBRUARY 17, 2015

      Appellant, Kareem Jones, appeals pro se from the September 13, 2013

order, dismissing his first petition for relief filed pursuant to the Post

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

review, we affirm.

      A prior panel of this Court summarized the relevant factual and

procedural history of this case as follows.

                         At   approximately   7:00     p.m.    on
                  November 30, 2003, Clarence Davis and
                  Jessica Treadway were seated in a vehicle
                  parked on the 200 block of East Albanus Street
                  in Philadelphia. Mr. Davis was in [the] driver’s
                  seat and Ms. Treadway was next to Davis in
                  the front passenger seat.           [Appellant]
                  approached, knocked on the window, and
                  asked Davis “Do you have that?”[]         When
                  Davis responded “yes”, [Appellant] entered the
                  rear of the vehicle.
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                      Ms. Treadway had known Davis for
               several months and had known [Jones] for
               approximately ten years. A minute or two
               after [Appellant] got into the vehicle, Treadway
               heard a single gunshot go off. Although she
               did not see the gun, the firearm was so close
               that she felt the heat from the muzzle on the
               left side of her face.[FN] Indeed, the medical
               examiner testified that Davis suffered a contact
               wound to the right back side of his head that
               was so close as to cause the victim’s skin to
               burn. [] Davis died as a result of the gunshot
               wound to his head.

               [Footnote]: Following the shooting, Ms.
               Treadway contacted Philadelphia Police Officer
               Dierdre Still, a friend of the family, and told
               her about the shooting.       At Officer Still’s
               direction, Ms. Treadway later gave a statement
               to homicide detectives. Treadway also testified
               at a preliminary hearing a couple of months
               following the murder, and gave a trial
               deposition video approximately two years after
               the murder.

                      Police found [Appellant’s] cell phone in
               the rear of the vehicle in which the victim was
               killed. The cell phone showed calls between
               [Appellant] and the victim. Additionally, Ms.
               Treadway turned over a letter sent to her from
               [Appellant] postmarked February 23, 2004[,]
               in which he denied involvement in the
               shooting, but advised her not to cooperate with
               authorities or to implicate him in the incident.

          Trial Court   Opinion,   1/3/07,   at   2-3   (citations
          omitted).

                A jury subsequently found [Appellant] guilty of
          [one count each of first-degree murder and firearms




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              not to be carried without a license.1] Thereafter, [on
              December 19, 2005,] the trial court sentenced
              [Appellant] to life in prison for his conviction of first[-
              ]degree murder. The trial court imposed no further
              sentence for [Appellant]’s conviction of the firearms
              charge. [Appellant]’s counsel failed to file a timely
              direct appeal of the judgment of sentence. However,
              the trial court subsequently reinstated [Appellant]’s
              direct appeal rights, nunc pro tunc.

Commonwealth v. Jones, 938 A.2d 1115 (Pa. Super. 2007) (unpublished

memorandum at 1-2).             On September 25, 2007, this Court affirmed

Appellant’s judgment of sentence. Id. Appellant did not file a petition for

allowance of appeal in our Supreme Court.

        On August 15, 2008, Appellant filed a timely pro se PCRA petition.

The PCRA court appointed counsel. On October 14, 2010, PCRA counsel filed

a petition to withdraw as counsel along with a “no-merit” letter pursuant to

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

Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), and their progeny. On

January 20, 2012, this case was reassigned to a new judge due to the

former judge’s retirement. On April 23, 2012, PCRA counsel resubmitted his

Turner/Finley letter. On June 11, 2012, the PCRA court entered an order

notifying Appellant of its intent to dismiss his PCRA petition without a

hearing pursuant to Pennsylvania Rule of Criminal Procedure 907. On June

27, 2012, Appellant filed a pro se response to the PCRA court’s Rule 907


____________________________________________
1
    18 Pa.C.S.A. §§ 2502(a) and 6106, respectively.



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notice.2    On September 13, 2013, the PCRA court entered an order

dismissing Appellant’s PCRA petition and granting PCRA counsel’s petition to

withdraw. On November 6, 2013, Appellant filed a pro se notice of appeal.3

       On appeal, Appellant raises the following four issues for our review.

              [1].   Whether [Appellant] was denied his right to
                     effective assistance of counsel in [PCRA]
                     proceedings, and lawful evaluation of his
                     [PCRA] petition[?]

              2.     Whether trial counsel was ineffective for failing
                     to object to and preserving for appeal[,] the
                     testimony of [O]fficer Still, [D]etective Lynch
                     and [D]etective Bova, of which none of these
____________________________________________
2
 On July 27, 2012, Appellant filed a notice of appeal to this Court from the
PCRA court’s Rule 907 notice, which this Court quashed as interlocutory.
Superior Court Order, 2494 EDA 2012, 1/11/13, at 1.
3
  We note that Appellant’s notice of appeal was filed 54 days after the PCRA
court entered its order dismissing Appellant’s PCRA petition. Ordinarily, this
would subject the appeal to immediate quashal. See Pa.R.A.P. 903(a)
(stating that all “notice[s] of appeal … shall be filed within 30 days after the
entry of the order from which the appeal is taken[]”). However, the PCRA
court notes in its opinion that the PCRA court’s dismissal order “was not
mailed to Appellant in accordance with Pennsylvania Rule of Criminal
Procedure 114(b)(3)(a)(v).” PCRA Court Opinion, 6/30/14, at 3-4. This
Court has held that a failure to serve the underlying order on an appellant
constitutes a breakdown in court operations. See, e.g., Commonwealth v.
Khalil, 806 A.2d 415, 420-421 (Pa. Super. 2002) (concluding a breakdown
in court operations occurred, excusing late notice of appeal, where the trial
court failed to issue an order informing the defendant that his post-sentence
motion had been denied by operation of law), appeal denied, 818 A.2d 503
(Pa. 2003). As a result, we conclude that we possess appellate jurisdiction
in this case, and we will address the merits of Appellant’s claims. We further
note the PCRA court did not direct Appellant to file a concise statement of
errors complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). The PCRA court filed its Rule 1925(a) opinion on June
30, 2014.



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                     witnesses submitted an offering of proof[,] no
                     pre-trial statement of testimony[?]

               3.    Whether trial counsel was ineffective for failing
                     to object to and or file a motion to have any
                     and all evidence obtained at the crime scene
                     suppressed, due to the fact that the crime
                     scene was tampered with, [due to m]issing
                     evidence, [and a] tampered phone[?]

               4.    Whether trial counsel was ineffective for failing
                     to object to the failure of the [C]ommonwealth
                     to produce its key witness at the time of
                     trial[?]

Appellant’s Brief at 3.

      We begin by noting our well-settled standard of review. “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) (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 most

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

Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).           “It is well-settled

that a PCRA court’s credibility determinations are binding upon an appellate

court so long as they are supported by the record.”            Commonwealth v.

Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this

Court reviews the PCRA court’s legal conclusions de novo. Commonwealth

v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).




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       The Sixth Amendment to the Federal Constitution provides in relevant

part that, “[i]n all criminal prosecutions, the accused shall enjoy the right …

to have the Assistance of Counsel for his defence.”4 U.S. Const. amend. VI.

The Supreme Court has long held that the Counsel Clause includes the right

to the effective assistance of counsel.          See generally Strickland v.

Washington, 466 U.S. 668, 686 (1984); Commonwealth v. Pierce, 527

A.2d 973, 975 (Pa. 1987).

       In analyzing claims of ineffective assistance of counsel, “[c]ounsel is

presumed effective, and [appellant] bears the burden of proving otherwise.”

Fears, supra at 804 (brackets in original; citation omitted). As established

by Strickland and Pierce, to prevail on a claim of ineffective assistance of

counsel, a PCRA petitioner must allege and prove “(1) the underlying legal

claim was of arguable merit; (2) counsel had no reasonable strategic basis

for his action or inaction; and (3) the petitioner was prejudiced—that is, but

for counsel’s deficient stewardship, there is a reasonable likelihood the

outcome of the proceedings would have been different.”       Commonwealth

v. Simpson, 66 A.3d 253, 260 (Pa. 2013). “A claim of ineffectiveness will

be denied if the petitioner’s evidence fails to satisfy any one of these


____________________________________________
4
  Likewise, Article I, Section 9 of the Pennsylvania Constitution states in
relevant part, “[i]n all criminal prosecutions the accused hath a right to be
heard by himself and his counsel ….” Pa. Const. art. I, § 9. Our Supreme
Court has held that the Pennsylvania Constitution does not provide greater
protection than the Sixth Amendment. Pierce, supra at 976.



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prongs.” Commonwealth v. Elliott, 80 A.3d 415, 427 (Pa. 2013) (citation

omitted), cert. denied, Elliott v. Pennsylvania, 135 S. Ct. 50 (2014).

      We also note that a PCRA petitioner is not automatically entitled to an

evidentiary hearing.    We review the PCRA court’s decision dismissing a

petition without a hearing for an abuse of discretion.    Commonwealth v.

Roney, 79 A.3d 595, 604 (Pa. 2013) (citation omitted), cert. denied, Roney

v. Pennsylvania, 135 S. Ct. 56 (2014).

            [T]he right to an evidentiary hearing on a post-
            conviction petition is not absolute. It is within the
            PCRA court’s discretion to decline to hold a hearing if
            the petitioner’s claim is patently frivolous and has no
            support either in the record or other evidence. It is
            the responsibility of the reviewing court on appeal to
            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. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (internal

citations omitted). “[A]n evidentiary hearing is not meant to function as a

fishing expedition for any possible evidence that may support some

speculative claim of ineffectiveness.”      Roney, supra at 605 (citation

omitted).

      In his first issue, Appellant avers that PCRA counsel was ineffective in

not acting diligently with regards to his PCRA petition. Appellant’s Brief at 8-

11. Specifically, Appellant argues that PCRA counsel did not meet with or

consult him during PCRA proceedings, and that PCRA counsel should have

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raised trial counsel’s ineffectiveness for not objecting to hearsay testimony

by Detective Bova regarding a phone call from Nicole Speeks. Id. at 8, 11.

Upon review of Appellant’s brief, we deem Appellant’s claims waived for

failure to preserve them for our review.

      Generally, appellate briefs are required to conform to the Rules of

Appellate Procedure.   See Pa.R.A.P. 2101.     “This Court may … dismiss an

appeal if the appellant fails to conform to the requirements set forth in the

Pennsylvania Rules of Appellate Procedure.” In re Ullman, 995 A.2d 1207,

1211 (Pa. Super. 2010) (citation omitted), appeal denied, 20 A.3d 489 (Pa.

2011). This Court is willing to construe pro se materials liberally, but “pro

se status confers no special benefit on an appellant.” Id. at 1211-1212.

      Pennsylvania Rule of Appellate Procedure 2119(a) requires that the

argument section of an appellate brief include “citation of authorities as are

deemed pertinent.”     Pa.R.A.P. 2119(a).    This Court will not consider an

argument where an appellant fails to cite to any legal authority or otherwise

develop the issue. Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa.

2009), cert. denied, Johnson v. Pennsylvania, 131 S. Ct. 250 (2010); see

also, e.g., In re Estate of Whitley, 50 A.3d 203, 209 (Pa. Super. 2012)

(stating, “[f]ailure to cite relevant legal authority constitutes waiver of the

claim on appeal[]”) (citation omitted), appeal denied, 69 A.3d 603 (Pa.

2013).




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       In this case, Appellant’s brief is devoid of any citations to any legal

authority in support of his claims that would entitle him to an evidentiary

hearing.5    Further, we note that in this issue, Appellant has raised the

argument of PCRA counsel’s ineffectiveness for the first time on appeal. This

Court recently explicitly reiterated, “claims of PCRA counsel’s ineffectiveness

may not be raised for the first time on appeal.”          Commonwealth v.

Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) (en banc), appeal denied, 101

A.3d 785 (Pa. 2014). Based on these considerations, we deem Appellant’s

first issue waived. See Johnson, supra; Whitley, supra.

       In his second issue on appeal, Appellant avers that trial counsel was

ineffective for not objecting to the testimony of Detective Bova, Detective

Lynch and Officer Still in their entirety because the Commonwealth did not

provide “pre-trial statements” concerning the testimony of these witnesses.

Appellant’s Brief at 12.        In support of his argument, Appellant cites to

Commonwealth v. Mejia-Arias, 734 A.2d 870 (Pa. Super. 1999), for the

proposition that “the law is clear that a criminal defendant is entitled to

know about any information that may affect the reliability of the witnesses
____________________________________________
5
   Appellant’s brief as to PCRA counsel’s diligence has one citation to
Commonwealth v. Hill, 549 A.2d 199 (Pa. Super. 1988), for the
proposition that if a defendant’s claim has arguable merit, then an
evidentiary hearing is in order to determine whether counsel had a
reasonable basis for his or her action. Id. at 201; Appellant’s Brief at 10.
What we find lacking, however, is that Appellant has not cited to any legal
authority to show this Court that his claim has arguable merit in the first
instance.



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against him.” Id. at 876; Appellant’s Brief at 14. Mejia-Arias pertained to

the scope of a defendant’s subpoena to inspect certain files in possession of

the Attorney General. Mejia-Arias, supra at 876. Appellant also cites to

Commonwealth v. Ulen, 650 A.2d 1416 (Pa. 1994), and Commonwealth

v. Grayson, 353 A.2d 428 (Pa. 1976), which concerned the Commonwealth

denying a defense request to examine existing pre-trial statements. Ulen,

supra at 418; Grayson, supra at 428.               However, Appellant does not allege

a Brady6 or discovery rule violation.          Instead, Appellant argues that trial

counsel was ineffective for not objecting to these witnesses because they did

not give any pre-trial statement as a prerequisite to testifying. Appellant’s

Brief at 12.

        None of the cases Appellant cites in his brief support his assertion that

the Commonwealth must secure and turn over a “pre-trial statement” as a

prerequisite to a witness testifying. The PCRA court could not find any law

requiring such statements, nor can this Court.             See PCRA Court Opinion,

6/30/14, at 5. As Appellant has not given any legal authority in support of

his argument, Appellant cannot show that it has arguable merit. Therefore,

Appellant is not entitled to relief on this issue.

        Next, Appellant avers in his third issue that trial counsel was

ineffective for failing to file a motion to suppress all evidence obtained at the


____________________________________________
6
    Brady v. Maryland, 373 U.S. 83 (1963).



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crime scene. Appellant’s Brief at 19.    In Appellant’s view, all crime scene

evidence should have been suppressed because “the complete crime scene

was tampered with and corrupted.”       Id.   It was allegedly tampered with

because the first officer on the scene noticed “a pair of white latex gloves

laying on the body of the deceased[.]” Id. Apparently, this supposed pair

of gloves disappeared. Id. Appellant also argues that the crime scene was

“corrupted” by Detective Lynch when he removed a mobile phone that he

found from the crime scene and took it with him back to the police station.

Id. at 22.

      As noted above, to obtain PCRA relief, a defendant must prove his or

her underlying legal claim has arguable merit. See Simpson, supra. As to

the mobile phone found inside the vehicle, Appellant freely admits that he

does not own the vehicle in question.    Appellant’s Brief at 23.   This alone

would preclude suppression of the mobile phone as Appellant cannot show a

reasonable expectation of privacy in a vehicle that he does not possess.

See Commonwealth v. Enimpah, --- A.3d ---, 2014 WL 7369744, *1 (Pa.

2014) (stating, “a defendant must show a legitimate privacy interest to

prevail upon a suppression motion[]”) (internal quotation marks and citation

omitted; emphasis in original); Commonwealth v. Millner, 888 A.2d 680,

692 (Pa. 2005) (rejecting suppression argument where the defendant

“produced no evidence that he owned the vehicle, nor did he produce

evidence which remotely suggested that he had any other connection to the


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vehicle which could form the basis for so much as a subjective expectation of

privacy[]”). Therefore, regarding the mobile phone, Appellant cannot show

that his claim would have arguable merit. See Elliott, supra.

      Turning to the latex gloves, assuming arguendo that the latex gloves

were part of the crime scene and were exculpatory, Appellant does not

explain how the lack of gloves renders any of the other evidence of the

crime scene inadmissible.     Suppression motions are proper vehicles to

challenge the admissibility of “evidence alleged to have been obtained in

violation of the defendant’s rights.” Pa.R.Crim.P. 581(A). Appellant argues

that there were “all kinds of inconsistencies in regard to the agents of the

[C]ommonwealth’s testimonies [sic] regards to these gloves ….” Appellant’s

Brief at 19-20. However, it is axiomatic that testimonial inconsistencies go

to the weight of the evidence, not its admissibility.   Commonwealth v.

Taylor, 876 A.2d 916, 929-930 (Pa. 2005) (citations omitted).      Based on

these considerations, we conclude Appellant has not shown that his claim

has arguable merit. As a result, the PCRA court properly denied Appellant

relief on this claim.

      In his fourth issue, Appellant avers that trial counsel was ineffective

for failing to object to the Commonwealth’s failure to produce its key

witness, Ms. Treadway, live at trial. Appellant’s Brief at 25. Treadway gave

previously recorded testimony on videotape, she was subject to cross-

examination, and said tape was played for the jury.     PCRA Court Opinion,


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6/30/14, at 8. However, Appellant claims that after Treadway’s testimony

was recorded, it came to light that Officer Still had several private

conversations with Treadway, and he was denied the opportunity to cross-

examine her as to those conversations. Appellant’s Brief at 25.

      It is axiomatic that to be entitled to PCRA relief, a defendant must be

able to show how he or she was prejudiced from trial counsel’s alleged

ineffectiveness.

                   Relating to the prejudice prong of the
            ineffectiveness test, the PCRA petitioner must
            demonstrate that there is a reasonable probability
            that, but for counsel’s error or omission, the result of
            the proceeding would have been different.
            Particularly relevant herein, it is well-settled that a
            court is not required to analyze the elements of an
            ineffectiveness claim in any particular order of
            priority; instead, if a claim fails under any necessary
            element of the Strickland test, the court may
            proceed to that element first.

Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012).

      In this case, Appellant avers that he would have wished to cross-

examine Treadway on additional conversations she had with Officer Still.

However, Appellant does not explain how cross-examining her on these

conversations would have so undermined her credibility as to create “a

reasonable probability that … the result of the proceeding would have been

different.” Id. Based on these considerations, we conclude Appellant is not

entitled to relief on this issue.      See Spotz, supra at 319 (stating,

“remanding for the PCRA court to make factual findings and credibility


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determinations as to the ‘reasonable basis’ prong will be unnecessary if we

determine there is no reasonable probability that an objection to the

challenged jury instruction at trial would have led to a more favorable

outcome for [the defendant]”); Elliott, supra; Commonwealth v. Steele,

961 A.2d 786, 797 (Pa. 2008) (stating, “a petitioner must set forth and

individually discuss substantively each prong of the Pierce test[]”).

      Based on the foregoing, we conclude all of Appellant’s issues are either

waived or devoid of merit.    Accordingly, the PCRA court’s September 13,

2013 order is affirmed.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/17/2015




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