J-S53009-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                    Appellee              :
                                          :
            v.                            :
                                          :
NIGEL ALI MAITLAND,                       :
                                          :
                    Appellant             :   No. 2075 MDA 2014

                 Appeal from the PCRA Order November 5, 2014,
                      Court of Common Pleas, York County,
                 Criminal Division at No. CP-67-CR-0003898-2009

BEFORE: DONOHUE, OTT and MUSMANNO, JJ.

MEMORANDUM BY DONOHUE, J.:                         FILED AUGUST 17, 2015

      Nigel Ali Maitland (“Maitland”) appeals from the order of court denying

his petition filed pursuant to the Post Conviction Relief Act, (“PCRA”), 42

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

      The PCRA court aptly summarized the factual and procedural histories

underlying this appeal as follows:

                   [Maitland’s] conviction stems from a shooting
            incident in the afternoon of May 10, 2009, in the City
            of York, Pennsylvania. The victim, [ten-]year[-]old
            Ciara “CeCe” Savage, was playing on the sidewalk
            when a shootout erupted; she was struck by a stray
            bullet and later died. [Maitland] admitted to being at
            the scene and firing his weapon. … .

                   [Maitland was convicted of first-degree
            murder, conspiracy, and persons not to possess
            firearms on March 11, 2011.] On April 26, 2011, the
            trial [j]udge appointed T. Korey Leslie, Esquire to
            represent     [Maitland].   [After  granting    two
            extensions,] [o]n June 27, 2011, Maitland filed his
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           post-sentence motion arguing that his convictions
           were against the weight and sufficiency of the
           evidence[] and that the trial court erred when it
           denied his pre-sentence request for a change of
           venire/venue. At the hearing held on August 4,
           2011, the trial court denied [Maitland’s] motion.

                 [Maitland] filed [a] timely [n]otice of [a]ppeal
           to the Superior Court on August 10, 2011. The
           Superior Court affirmed [his judgment of sentence]
           on June 19, 2012 … . [Maitland] petitioned the
           [Pennsylvania] Supreme Court for [a]llowance of
           [a]ppeal, which was denied on April 26, 2013. He
           then petitioned the United States Supreme Court for
           [w]rit of [c]ertiorari, which was denied [on]
           November 14, 2013.

                  On February 26, 2014, [Maitland] filed his
           petition for [p]ost-[c]onviction relief. [The PCRA
           court] appointed Heather A. Reiner, Esquire, and
           scheduled a hearing for June 25, 2014.         Some
                                            th
           testimony was taken on the 25 , but the hearing
           took longer than expected, so [the PCRA court]
           scheduled another hearing for July 14, 2014. At the
           [July 14th] hearing, the [PCRA court] denied
           [Maitland’s] first, second, third, fifth and sixth
           issues, but reserved decision on [Maitland’s] fourth
           issue, which raised a question regarding trial
           counsel’s failure to impeach two witnesses. [The
           PCRA court] subsequently denied [Maitland’s] fourth
           issue on November 5, 2014.

     PCRA Court Opinion, 2/3/125, at 1-2 (footnote omitted). This timely

appeal follows, in which Maitland raises the following four issues for our

review:

           1. Whether the [PCRA] court committed an error of
              law when it denied relief pursuant to the [PCRA]
              on the basis that trial counsel was ineffective for
              failing to timely object to the prosecutor’s




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               references in closing argument to [Maitland’s]
               gang affiliation?

            2. Whether the [PCRA] court committed an error of
               law when it denied relief pursuant to the [PCRA]
               on the basis that the trial court’s curative
               instruction regarding [Maitland’s] gang affiliation
               and the prosecutor’s closing argument was
               insufficient to prevent prejudice?

            3. Whether the [PCRA] court committed an error of
               law when it denied relief pursuant to the [PCRA]
               on the basis that trial counsel was ineffective for
               failing to strike Juror Number [Forty-eight] who
               felt sorry for the victim and was unsure of
               whether she could be fair and impartial?

            4. Whether the [PCRA] court committed an error of
               law when it denied relief pursuant to the [PCRA]
               on the basis that [d]efense counsel was
               ineffective for withdrawing a Rule 600 motion
               which had arguable merit and [Maitland] was not
               in agreement?

Maitland’s Brief at 3.

      We begin with our standard of review:

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




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

      Three of Maitland’s issues alleged ineffective assistance of trial

counsel, and we address those claims first. 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.

      Maitland first argues that his trial counsel,1 Vincent Spadafora,

Esquire, was ineffective for failing to lodge timely objections to statements

the Commonwealth made during its closing argument that Maitland was a

gang member. Maitland’s Brief at 11-12.         At the PCRA hearing, Attorney

Spadafora testified that he did not object during the closing argument

because he believed that was a logical inference from the evidence the

Commonwealth presented,2 and therefore not objectionable because it was




1
    Maitland was first represented by Bruce P. Blocher, Esquire, of the York
County Public Defenders Office. Maitland subsequently retained Attorney
Spadafora, who in turn enlisted the help of Autumn Walden, Esquire, for
trial. Maitland levels claims of ineffectiveness against all three attorneys.
2
   During her closing argument, the district attorney stated that the shooting
was caused by “two rival gangs”; that other people involved were members
of the Parkway gang; that the event that precipitated the shooting (a bar
fight) “started because of gang rivalry”; and characterized the recipient of a


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within the latitude allowed parties during closing argument. N.T., 7/14/14,

at 8-9.

        The PCRA court agreed with Attorney Spadafora and concluded that

Maitland failed to establish the first prong of the test for ineffectiveness.

N.T., 7/14/14, at 35-35.     We find no error with that determination.      “[A]

prosecutor has considerable latitude during closing arguments and his or her

statements are fair if they are supported by the evidence or use inferences

that can reasonably be derived from the evidence.”         Commonwealth v.

Noel, 53 A.3d 848, 858 (Pa. Super. 2012), aff'd, 104 A.3d 1156 (Pa. 2014).

The Commonwealth’s expert in gangs and gang violence was shown a

picture of Maitland’s tattoo, which says “P-Way.” He testified that based on

his training and experience, it was “an indication that th[e] individual is

involved with the Parkway gang.”       N.T., 3/9/11 Vol II, at 603-04.       The

complained-of statements, that Maitland was in a gang or affiliated with

gang members, were therefore based on inferences that were reasonably

drawn from this evidence.      The statements were not objectionable, and

therefore, Attorney Spadafora was not ineffective for failing to object to

them.

        Maitland also argues that Attorney Spadafora and co-counsel, Autumn

Walden, Esquire, were ineffective for failing to strike a particular juror, Juror



letter that Maitland wrote while in jail as “another Parkway member.” N.T.,
3/9/11 Vol. II, at 788-89.


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Number Forty-eight, for cause because she stated that she had read about

the crime and felt sad for the family of the victim. Maitland’s Brief at 17.

Maitland does not cite, much less discuss, even one authority in support of

his position.   See id. at 17-20.     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 Maitland’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.

      The   third   allegation   of   ineffectiveness   involves   trial   counsel’s

withdrawal of a motion to dismiss filed under Pennsylvania Rule of Criminal

Procedure 600 in exchange for the Commonwealth’s agreement to not seek

the death penalty.3 Maitland claims that his counsel threatened and bullied

Maitland into withdrawing the motion, despite the fact that it had merit.

Maitland’s Brief at 20.    At the PCRA hearing, both Attorney Blocher and


3
   Attorney Blocher filed the Rule 600 motion and was initially involved in
these negotiations.     Attorney Spadafora finalized the agreement and
formally withdrew the motion.


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Attorney Spadafora testified that when discussing this issue with Maitland,

Maitland veritably jumped at the chance to have the death penalty taken off

the table and eagerly agreed to withdraw the Rule 600 motion in exchange

for the Commonwealth’s agreement not to seek the death penalty.           N.T.,

6/25/14, at 33-34; N.T., 7/14/14, at 6. Although Maitland testified to the

contrary, see N.T., 6/25/14, at 23, the PCRA court found Attorneys Blocher

and Spadafora credible and concluded that there was a reasonable basis for

the withdrawal of the Rule 600 motion. PCRA Court Opinion, 2/3/15, at 6.

      Maitland disagrees with the PCRA court’s determination that Attorneys

Blocher and Spadafora were credible.         Maitland’s Brief at 24 (“The PCRA

court erred in assessing credibility in favor of [Maitland’s] counsel[.]”). As

an appellate court, we may not disturb the lower court’s credibility

determinations. Commonwealth v. Paxton, 821 A.2d 594, 597 (Pa. Super.

2003) (“It is not the role of an appellate court … to pass on the credibility of

witnesses or to act as the trier of fact, and an appellate court will not

substitute its judgment for that of the fact-finder.”).       Based upon this

credibility determination, which we are bound to accept, we find no error in

the PCRA court’s conclusion that Maitland failed to prove that there was no

reasonable basis for trial counsel’s withdraw of the Rule 600 motion.

Accordingly, Maitland’s claim fails.

      Maitland’s final claim alleges an error on the part of the trial court;

specifically, that a curative instruction the trial court gave to the jury was



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inadequate. Maitland’s Brief at 14. A prerequisite for relief under the PCRA

is that the claim the petition seeks to raise is not previously litigated or

waived. 42 Pa.C.S.A. § 9543(a)(3). A claim is waived for purposes of PCRA

review if the petitioner could have raised it on direct appeal but did not.

Commonwealth v. Rivera, 108 A.3d 779, 802 (Pa. 2014). Maitland could

have raised this claim of trial court error on direct appeal, but he did not.

Accordingly, he has waived it and cannot raise it under the PCRA.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/17/2015




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