J-S17017-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CHARLES M. ADAMS,

                            Appellant                 No. 809 WDA 2015


                  Appeal from the Order Entered May 11, 2015
                In the Court of Common Pleas of Fayette County
              Criminal Division at No(s): CP-26-CR-0000048-1982


BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                             FILED APRIL 15, 2016

       Appellant, Charles M. Adams, appeals from the order of the Court of

Common Pleas of Fayette County denying his motion for post-conviction DNA

testing filed pursuant to section 9543.1 of the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

       On direct appeal, this Court summarized the underlying facts of the

case as follows:

       On January 6, 1982, [Appellant] went to a hardware store in
       Hopwood to purchase an O-ring which he needed to fix a leaky
       spigot in his home. He purchased the O-ring, drove home and
       attempted to fix the faucet. When his wife complained that the
       faucet still leaked, [Appellant] removed the spigot and drove
       back to the hardware store. There he proceeded to stab Harry
       Frankhouser 29 times, causing his death.      [Appellant] then
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S17017-16


      dragged the body of the deceased man to the back room. As he
      returned to the front of the store, Joseph Keffer entered the
      front door. Keffer and [Appellant] remained in the store until
      the police arrived.

Commonwealth v. Adams, 1632 Pgh 1984, 503 A.2d 453 (Pa. Super. filed

September 13, 1985) (unpublished memorandum at 3).

      Appellant was charged with criminal homicide and criminal attempt-

robbery.   On October 19, 1983, a jury convicted Appellant of first-degree

murder and attempted robbery.         On November 26, 1984, the trial court

sentenced Appellant to serve a mandatory term of life imprisonment on the

first-degree murder conviction and a consecutive term of incarceration of

five to ten years on the attempted-robbery conviction. This Court affirmed

Appellant’s judgment of sentence on September 13, 1985, and the

Pennsylvania Supreme Court denied Appellant’s petition for allowance of

appeal on May 4, 1987.       Commonwealth v. Adams, 503 A.2d 453 (Pa.

Super. 1985), appeal denied, 527 A.2d 534 (Pa. 1987).

      The PCRA court summarized the subsequent procedural history as

follows:

            [Appellant] filed his first [petition for post-conviction relief]
      on February 21, 1985 which was dismissed [because of] the fact
      it was premature due to his pending appeal. On April 18, 2005,
      [Appellant] filed a pro se Motion for DNA testing under 42
      Pa.C.S.A. [§ 9543.1(a)]. On August 9, 2005 the motion was
      granted.    On July 28, 2006, [counsel] was appointed to
      represent [Appellant] in his Petition for DNA testing and all
      subsequent matters stemming from it. On August 3, 2006 this
      [c]ourt ordered the Commonwealth to send all clothing items to
      the Pennsylvania State Police Crime Laboratory for DNA
      evaluation and testing. On January 4, 2007, [Appellant] was

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      required to submit to blood samples and testing for DNA
      analysis. The State Police lab report [received in May of 2007]
      indicated that additional “alleles” not consistent with the DNA
      profiles of [Appellant] or the victim were present on the victim’s
      navy blue sock.

PCRA Court Opinion, 4/12/10, at 2.

      On July 2, 2007, Appellant filed a PCRA petition seeking relief on the

basis of newly discovered evidence.           Subsequently, Appellant filed two

amended PCRA petitions.          After multiple delays, the PCRA court held an

extensive evidentiary hearing on December 18, 2009, at which both

Appellant and the Commonwealth presented expert testimony. On April 12,

2010, the PCRA court entered an order denying relief.

      Appellant brought an appeal to this Court, which affirmed the decision

of the PCRA court on December 17, 2010. L.C. v. Adams, 23 A.3d 586 (Pa.

Super. 2010).       Subsequently, the Pennsylvania Supreme Court denied

Appellant’s     petition   for   allowance    of   appeal   on   May   12,   2011.

Commonwealth v. Adams, 22 A.3d 1033 (PA. 2011).

      On March 19, 2015, Appellant filed with the PCRA court the instant

“motion for post conviction DNA testing.” In an order dated March 30, 2015,

the PCRA court directed the Commonwealth to file a response to Appellant’s

motion within thirty days. The Commonwealth failed to file a response as

directed.     Thereafter, on May 11, 2015, the PCRA court entered an order

denying Appellant’s request for post-conviction DNA testing.           This timely




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appeal followed.1      Both Appellant and the trial court have complied with

Pa.R.A.P. 1925.2

I.      THE PCRA COURT ERRED WHEN IT FAILED TO ISSUE AN ORDER
        TO HAVE THE VICTIMS BI-FOCALS, A CHROME PIPE, A BLOOD
        STAINED CARDBOARD BOX, A YELLOW 15 QUART DISH PAN, A
        BROWN LEATHER BELT SHEATH THAT WERE SOAKED WITH
        BLOOD, THAT WERE NEVER TESTED FOR DNA, BUT WERE
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1
  An order granting or denying a motion for DNA testing disposes of all
claims raised by all parties to the litigation and, therefore, is a final order.
Commonwealth v. Scarborough, 64 A.3d 602, 609 (Pa. 2013).
2
    In its Pa.R.A.P. 1925(a) filing, the trial court observed the following:

        On [May 21, 2015], the [trial c]ourt issued a 1925(b) order,
        directing [Appellant] to file a statement of errors complained of
        on appeal within twenty-one (21) days.

               On June 17, 2015, [Appellant] filed his Statement of
        Matters Complained on Appeal.        [Appellant’s] Certificate of
        Service attests that he mailed the statement to all parties on
        June 9, 2015. However, the envelope (attached) received by the
        [trial c]ourt is postmarked June 15, 2015, appearing to be four
        days past the June 11, 2015 deadline to file. Failure to file a
        concise statement within the 21-day time limit set forth in Rule
        1925(b)(2) will result in waiver of all issues not raised by that
        date. Commonwealth v. Gravely, 970 A.2d 1137, 1145 (Pa.
        2009).

               We do recognize that under the prisoner mailbox rule, a
        petition is considered “filed” by a prisoner on the date it is
        deposited with prison authorities for mailing, not postmarked.
        Commonwealth v. Jerman, 762 A.2d 366, 368 (Pa. Super.
        2000).

Statement in Lieu of Opinion, 6/19/15, at 1-2. Thus, it appears the PCRA
court accepted Appellant’s assertion that he filed his Pa.R.A.P. 1925(b)
statement on June 9, 2015, applied the prisoner mailbox rule, and
considered the filing to be timely.       Therefore, because the trial court
accepted Appellant’s filing as being timely, we will do likewise.



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       PRESENTED AT APPELLANT’S TRIAL IN 1983, WHICH WOULD
       RESULT   IN   NEWLY  DISCOVERED   EVIDENCE   PROVING
       APPELLANT’S INNOCENCE.

II.    THE PCRA COURT ERRED WHEN IT RULED THAT DEFENDANT
       NOW ADVANCES THE EXACT SAME ARGUMENT HE DID AT HIS
       PCRA HEARING IN 2009, THAT AN UNKNOWN THIRD PARTY DNA
       PROFILE PROVES HIS INNOCENCE, WHEN IN FACT, DEFENDANT
       REQUESTED THAT A NATIONWIDE CODIS SEARCH BE
       CONDUCTED IN HIS CURRENT REQUEST FOR DNA TESTING,
       SINCE THE COMMONWEALTH ONLY DID A CODIS SEARCH FOR
       WESTERN PENNSYLVANIA.

Appellant’s Brief at 3.3

       This Court has set forth the following standard of review of orders for

post-conviction DNA testing:4

       Post-conviction DNA testing falls under the aegis of the
       Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§
       9541–9546, and thus, “[o]ur standard of review permits us to
       consider only whether the PCRA court’s determination is
       supported by the evidence of record and whether it is free from
       legal error.”

Commonwealth v. Conway, 14 A.3d 101, 108 (Pa. Super. 2011) (citations

omitted). Great deference is granted to the findings of the PCRA court, and

these findings will not be disturbed unless they have no support in the
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3
  We note with disapproval the fact that the Commonwealth has failed to file
an appellee’s brief in this matter in addition to failing to comply with the
PCRA court’s directive to file a response to Appellant’s most recent motion
for DNA testing.
4
  We observe that motions for post-conviction DNA testing, while considered
post-conviction petitions under the PCRA, are “separate and distinct” from
claims pursuant to other sections of the PCRA; thus, the one-year time bar
does not apply to them. Commonwealth v. Perry, 959 A.2d 932, 938 (Pa.
Super. 2008).



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certified record.     Commonwealth v. Watson, 927 A.2d 274, 277 (Pa.

Super. 2007).       Moreover, when reviewing an order denying a motion for

post-conviction DNA testing, this Court determines whether the movant

satisfied the statutory requirements of Section 9543.1. Commonwealth v.

Brooks, 875 A.2d 1141, 1147-1148 (Pa. Super. 2005). It is an appellant’s

burden to persuade us that the PCRA court erred and relief is due.

Commonwealth v. Wrecks, 931 A.2d 717, 722 (Pa. Super. 2007).

      As a prefatory matter, we observe the following.      A movant should

make a request for post-conviction DNA testing in a motion, not in a PCRA

petition.    Commonwealth v. Young, 873 A.2d 720, 724 n.2 (Pa. Super.

2005). A request for post-conviction DNA testing is not a direct exception to

the one-year time limit for filing a PCRA petition.      Commonwealth v.

Weeks, 831 A.2d 1194, 1196 (Pa. Super. 2003). Such a request, however,

allows a convicted person “to first obtain DNA testing which could then be

used within a PCRA petition to establish new facts in order to satisfy the

requirements of an exception under 42 Pa.C.S.A. § 9545(b)(2).”           Id.

(citations omitted).    Moreover, Section 9543.1 does not grant movants a

right to counsel. Brooks, 875 A.2d at 1147.

      Pennsylvania’s post-conviction DNA testing statute provides, in part,

as follows:

      (a) Motion.--

               (1) An individual convicted of a criminal offense in a
            court of this Commonwealth and serving a term of

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       imprisonment or awaiting execution because of a sentence
       of death may apply by making a written motion to the
       sentencing court for the performance of forensic DNA
       testing on specific evidence that is related to the
       investigation or prosecution that resulted in the judgment of
       conviction.

           (2) The evidence may have been discovered either prior
       to or after the applicant’s conviction. The evidence shall be
       available for testing as of the date of the motion. If the
       evidence was discovered prior to the applicant’s conviction,
       the evidence shall not have been subject to the DNA testing
       requested because the technology for testing was not in
       existence at the time of the trial or the applicant’s counsel
       did not seek testing at the time of the trial in a case where
       a verdict was rendered on or before January 1, 1995, or the
       applicant’s counsel sought funds from the court to pay for
       the testing because his client was indigent and the court
       refused the request despite the client’s indigency.

                                   ***

     (c) Requirements.--In any motion under subsection (a), under
     penalty of perjury, the applicant shall:

                                   ***

       (2) (i) assert the applicant’s actual innocence of the offense
       for which the applicant was convicted; and

                                   ***

       (3) present a prima facie case demonstrating that the:

          (i) identity of or the participation in the crime by the
          perpetrator was at issue in the proceedings that
          resulted in the applicant’s conviction and sentencing;
          and

          (ii) DNA testing of the specific evidence, assuming
          exculpatory results, would establish:

              (A) the applicant’s actual innocence of the
              offense for which the applicant was convicted;

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                                    ***

      (d) Order.--

            (1) Except as provided in paragraph (2), the court shall
        order the testing requested in a motion under subsection
        (a) under reasonable conditions designed to preserve the
        integrity of the evidence and the testing process upon a
        determination, after review of the record of the applicant’s
        trial, that the:

            (i) requirements of subsection (c) have been met;

            (ii) evidence to be tested has been subject to a chain
            of custody sufficient to establish that it has not been
            altered in any material respect; and

            (iii) motion is made in a timely manner and for the
            purpose of demonstrating the applicant’s actual
            innocence and not to delay the execution of sentence
            or administration of justice.

           (2) The court shall not order the testing requested in a
        motion under subsection (a) if, after review of the record of
        the applicant’s trial, the court determines that there is no
        reasonable possibility that the testing would produce
        exculpatory evidence that:

            (i) would establish the applicant’s actual innocence of
            the offense for which the applicant was convicted;

42 Pa.C.S. § 9543.1.

      Before turning to Appellant’s argument, we note the following legal

principles. A motion for DNA testing must allege a prima facie case that the

requested testing, assuming favorable results, would establish the movant’s

actual innocence.    Commonwealth v. Smith, 889 A.2d 582, 583 (Pa.

Super. 2005). If, after reviewing the record, the trial court determines there


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is no reasonable probability that the testing would produce exculpatory

results establishing the movant’s actual innocence, the court shall deny the

motion. Id.

      In his first issue, Appellant asserts that various items from the crime

scene should either be retested or tested for the first time. Appellant’s Brief

at 6-9. Appellant assumedly believes that his DNA is missing from various

items present at the scene and that DNA from additional unknown persons

might be found on various items offered into evidence.       Ignoring the fact

that previous DNA testing was damaging to his argument, Appellant expects

that new results will somehow prove that he is innocent of the crime.

      Our review of the certified record reflects the following discussion

offered by the PCRA court in its order denying Appellant’s most recent

request for DNA testing of items presented into evidence at Appellant’s trial:

      [Appellant] previously requested and obtained DNA-testing in
      2005-2007. This [c]ourt then held a hearing on the findings and
      denied [Appellant’s] PCRA in 2009-2010.            In denying
      [Appellant’s] PCRA, we explicitly addressed why an unidentified
      DNA profile on the victim’s sock does not exonerate [Appellant].
      (PCRA Ct. Op., April 12, 2010). . . .

             [Appellant] again seeks testing of additional evidence, as
      further specified in his Motion. As reasoning for more testing,
      [Appellant] maintains that improvements in technology will
      vindicate him and find the owner of the third DNA profile, “who
      is actually the murderer.” (Def.’s Mot. ¶ 23-24). Notably,
      [Appellant] now advances the exact same argument that he did
      at his PCRA hearing in 2009, that an unknown third-party DNA
      profile proves his innocence. The Court already ruled on this
      issue in the 2010 PCRA Opinion and found that this argument in
      no way proves [Appellant’s] prima facie case of innocence. . . .


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Order, 5/11/15, at 2.

     Our further review of the record reflects the following thorough

analysis offered by the PCRA court in support of its decision to deny

Appellant’s previous PCRA petition based upon after-discovered evidence

once DNA testing had been conducted:

     In this particular case, the new DNA technology[,] which was
     unavailable at the time [Appellant] was convicted, allows this
     petition to be filed over twenty years after the date of
     [Appellant’s] judgment [of sentence]. DNA testing was not
     widely accepted in Pennsylvania until 1994, when the
     Pennsylvania Supreme Court first held that evidence of DNA
     testing was admissible in a criminal trial, after finding that such
     testing had become routine and fully accepted in the scientific
     community. See Commonwealth v. Crews, 536 Pa. 508, 640
     A.2d 395, 403 (Pa. 1994).

                                   ***

     [The PCRA] statute requires the petitioner to present a prima
     facie case that the DNA testing produced exculpatory results that
     establishes the petitioner’s actual innocence.

                                   ***

           The major issue in this case concerns a minor allele found
     on [the victim’s] navy blue sock identified as Q16 in evidence
     that is inconsistent with [Appellant’s] and [the victim’s] DNA.
     [Appellant] avers that the minor allele[] found on [the victim’s]
     sock reveals the presence of a third unidentified person’s DNA,
     which is exculpatory evidence.

           [Appellant] has the burden to show that this exculpatory
     evidence establishes his “actual innocence.” . . . In fact, the
     new DNA results may have done the opposite.

           The Commonwealth agrees with [Appellant] that there is
     an additional minor allele found on the victim’s sock which is
     inconsistent with [Appellant’s] or [the victim’s] DNA. However,
     the Commonwealth pointed out at the hearing that those minor

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     alleles could be obtained in many ways and could be from
     countless individuals that touched the sock at issue during the
     course of investigation. Protocol back in the 1980’s when this
     crime occurred did not require anyone at the crime scene to
     wear gloves and as such both defense and prosecution expert
     witnesses agreed that the source for the minor allele could not
     be determined and might have been from anyone from a police
     officer, detectives, the coroner, or even [the victim’s] wife.

            However, at the [PCRA] hearing, both experts agreed that
     [Appellant’s] DNA matched the major component of the stain
     obtained from the victim’s sock. [Appellant’s] DNA was also
     found in numerous blood patterns as testified to [at the PCRA
     hearing] by [Commonwealth expert witness] Sarah Kinner
     (hereinafter “Kinner”). Kinner explained the difference between
     passive and transfer stains stating, “passive drops/bleeding are
     bloodstains that are created by the force of gravity acting alone.
     So if you are just standing there bleeding, it is just gravity acting
     on it, they are just going down.” (PCRA t. p. 83). On the other
     hand, a transfer bloodstain, “is when a bloody object comes in
     contact with a clean object and blood is left behind. If you think
     of it, it is kind of like if you had a stamp with ink on it and you
     sat it down on the surface and removed it, the stamp would be
     left behind, the image of whatever it was.” (Id.)

           Kinner further testified that among other stains:

           “A transfer/contact stain was identified on the front
           lower left pant leg of [the victim] . . . The DNA
           from the transfer contact stain on the front lower left
           pant leg and the rounded stain on the back of the
           pants reportedly matched [Appellant].” (Id. at 95.)

           Moreover, the transfer stains on the shovel handle were
     reportedly consistent with [Appellant’s] DNA as well as transfer
     contact stains that were found on the handle and blade of the
     knife and the cash register handle. [Appellant] testified at trial
     he had never touched any of the enumerated objects on which
     transfer stains with his DNA were found. That appears to be
     demonstrably untrue due to the new DNA results. (Id. at 96).

           Further, Kinner testified that:




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           “A rounded drop of blood reportedly matching
           [Appellant’s] on the back of [the victim’s] pants
           cannot have been deposited while [the victim] lay in
           his final resting position.”

     When asked by counsel why it was significant that [Appellant’s]
     DNA was found on that particular location, Kinner explained:

           “The location of that stain on his pants, if he was
           laying-from the picture that I have of him laying
           there, that portion of his pants was not even
           exposed if somebody had just been standing near
           him and dripping down on him. He had to have been
           manipulated in some way for that stain to be
           deposited.” (Id. at 98).

           While [Appellant] has continuously asserted his innocence,
     this additional expert testimony is far more inculpatory of
     [Appellant] than the single small minor allele is exculpatory.
     Kinner stated that [the victim’s] “body would have had to have
     been in a different position in order for that stain to be placed
     there.” Id. at 106. While [Appellant] admits to walking around
     the victim in the back room, he has never admitted to even
     touching the victim’s body, much less turning him over.

             Similar to the victim’s pant leg, Kinner testified that the
     blood on the front of the shovel blade was consistent with
     [Appellant’s] DNA. This stain however was found face down in
     the photographs she saw of the crime scene. Kinner stated “so
     if it is face down like this against the floor with these drips, i[f]
     you are standing over the shovel, you can’t deposit those stains
     in that position as it is photographed[.]”          (Id. at 9[9]).
     Therefore, the shovel must have been moved after [Appellant’s]
     blood dropped onto it. [Appellant’s] trial testimony as to what
     occurred that day is completely inconsistent with the new DNA
     evidence.

           While [Appellant] claims this new evidence is exculpatory,
     the [court] finds that it supports [Appellant’s] conviction. The
     DNA evidence substantiates [Appellant’s] blood was not simply
     passive[ly] dripped as he moved around the scene. Rather,
     [Appellant’s] DNA was the major component of the transfer
     stains found on the victim’s sock as well as his pant leg and


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      numerous other objects such as the knife, shovel and cash
      register handle.

             Furthermore, while minor alleles were found on the sock,
      there is no other indication of anybody else’s DNA on any of the
      other evidentiary items. Without more than that solitary minor
      allele, the DNA evidence does not establish his prima facie case
      of “actual innocence.” On the contrary, it creates a stronger
      case of his guilt. As such [Appellant’s] PCRA petition must be
      DENIED.

PCRA Court Opinion, 4/12/10, at 3-7 (emphasis in original).

      In his instant motion seeking DNA testing, Appellant has asserted his

innocence as required under the statute. However, Appellant has failed to

set forth a prima facie case demonstrating that further DNA testing of the

specific evidence, assuming exculpatory results, would establish Appellant’s

actual innocence.     Indeed, Appellant’s assertion of innocence, while

necessary, is insufficient to establish a prima facie showing of “actual

innocence” under 42 Pa.C.S. § 9543.1.        Appellant must offer more than a

bald assertion of innocence and must demonstrate that the DNA testing

“would establish” actual innocence. Commonwealth v. Heilman, 867 A.2d

542, 547 (Pa. Super. 2005).

      Moreover, even if the results of the requested DNA testing definitively

excluded Appellant’s DNA from the scene, further confirmation of this

absence does not enable Appellant to meet his burden. See Heilman, 867

A.2d at 547 (“In DNA as in other areas, an absence of evidence is not

evidence of absence”). Likewise, even if the results of the requested DNA

testing positively identified someone else’s DNA at the scene, Appellant fails

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to explain how that necessarily points to a different assailant. Thus, it would

not exculpate Appellant.        See Smith, 889 A.2d at 585 (“Merely detecting

DNA from another individual on the victim’s fingernails, in the absence of

any evidence as to how and when that DNA was deposited, would not

exculpate appellant by pointing to a different assailant.”).

       Consequently, we are left to conclude that Appellant has failed to

establish a prima facie case demonstrating that the DNA test, if exculpatory,

would have established his actual innocence. Because we detect no error in

the PCRA court’s evaluation of this case, we conclude that Appellant fails to

qualify for relief.

       In his second issue, Appellant argues that the PCRA court erred in

refusing to conduct a more extensive search of the Combined DNA Index

System (“CODIS”) of the previous DNA results.5 Appellant’s Brief at 9-12.

We need not reach the merits of this issue because we are constrained to

conclude that Appellant’s discussion in the argument section of his brief is

not properly developed for appellate review.        It is well settled that the

argument portion of an appellate brief must be developed with pertinent

discussion of the issue, which includes citations to relevant authority.

Pa.R.A.P. 2119(a). See Commonwealth v. Genovese, 675 A.2d 331, 334

(Pa. Super. 1996) (stating that “[t]he argument portion of an appellate brief
____________________________________________


5
  In addition, Appellant attempts to present, for the first time on appeal, a
claim that his PCRA counsel was ineffective. Appellant’s Brief at 10.



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must be developed with a pertinent discussion of the point which includes

citations to the relevant authority”).

      In Commonwealth v. B.D.G., 959 A.2d 362 (Pa. Super. 2008), a

panel of this Court offered the following relevant observation regarding the

proper formation of the argument portion of an appellate brief:

      In an appellate brief, parties must provide an argument as to
      each question, which should include a discussion and citation of
      pertinent authorities. Pa.R.A.P. 2119(a). This Court is neither
      obliged, nor even particularly equipped, to develop an argument
      for a party. Commonwealth v. Williams, 566 Pa. 553, 577,
      782 A.2d 517, 532 (2001) (Castille, J., concurring). To do so
      places the Court in the conflicting roles of advocate and neutral
      arbiter. Id. When an appellant fails to develop his issue in an
      argument and fails to cite any legal authority, the issue is
      waived. Commonwealth v. Luktisch, 680 A.2d 877, 879 (Pa.
      Super. 1996).

Id. at 371-372.    Thus, failure to cite case law or other legal authority in

support of an argument results in waiver of the claim. Commonwealth v.

Owens, 750 A.2d 872, 877 (Pa. Super. 2000).

      Here, Appellant’s argument pertaining to this issue contains no citation

to relevant legal authority beyond a cursory legal citation at the beginning of

his argument. Appellant’s Brief at 9-12. Because Appellant’s argument on

this issue consists of broad statements and allegations and no analysis with

relevant law, the argument is not properly developed for our review as it

fails to apply any law to the facts of the case. This failure to develop a legal

argument precludes appellate review. Thus, we conclude that this issue is

waived because the argument is not adequately developed.



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     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/15/2016




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