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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                                          :
                  v.                      :
                                          :
MICHAEL L. HOWARD,                        :
                                          :
                         Appellant        :     No. 2569 EDA 2015

                 Appeal from the PCRA Order August 7, 2015
            In the Court of Common Pleas of Philadelphia County
             Criminal Division at No.: CP-51-CR-0002767-2010

BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.:                           FILED MARCH 28, 2017

      Appellant, Michael L. Howard, appeals from the August 7, 2015 Order

entered in the Philadelphia County Court of Common Pleas denying his first

Petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546.    We affirm on the basis of the PCRA court’s July 8, 2016

Opinion.

      This Court previously set forth the underlying facts and we need not

repeat them in detail.    See Commonwealth v. Howard, 64 A.3d 1082,

1084-86 (Pa. Super. 2013). In summary, Appellant’s charges arose out of a

police investigation of the sale of illegal drugs from a residence at 5820 N.

12th Street in Philadelphia. On August 9, 2011, following a stipulated bench

trial, the trial court convicted Appellant of Possession of a Controlled

Substance With Intent to Deliver (“PWID”) and related offenses.            On
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September 23, 2011, the trial court sentenced Appellant to an aggregate

term of 15 to 30 years’ imprisonment.

        This Court affirmed Appellant’s Judgment of Sentence on March 19,

2013. Commonwealth v. Howard, 64 A.3d 1082 (Pa. Super. 2013). On

August    28,   2013, our   Supreme     Court   denied   allowance   of   appeal.

Commonwealth v. Howard, 74 A.3d 118 (Pa. 2013).

        On November 4, 2013, Appellant filed a pro se PCRA Petition, later

amended by appointed counsel, claiming that newly discovered evidence of

police misconduct entitled him to a new trial.        Amended PCRA Petition,

9/29/14, at 2.      Specifically, Appellant alleged facts about Officer John

Speiser, the affiant on the search warrant and one of the officers involved in

executing the search warrant, including, inter alia, that he was “indicted by

the federal government on July 30, 2014 and charged with robbery,

falsification of records, RICO and related crimes.” Id. Appellant avers that

Officer Speiser, “played a significant role in [this] case[,]” and that Appellant

should be granted a new trial because Officer Speiser’s testimony is tainted.

Appellant’s Brief at 11.

        After providing notice to Appellant pursuant to Pa.R.Crim.P. 907, the

PCRA court dismissed Appellant’s Petition without a hearing on August 7,

2015.

        Appellant filed a timely pro se Notice of Appeal.     On February 12,

2016, the PCRA court conducted a hearing pursuant to Commonwealth v.



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Grazier, 713 A.2d 81 (Pa. 1998), permitted Appellant to represent himself

pro se, and removed Appellant’s court-appointed attorney. Both Appellant

and the trial court complied with Pa.R.A.P. 1925.1

      Appellant presents four issues for our review:

      I. Whether PCRA court erred in the dismissal of Appellant’s PCRA
      Petition, depriving Appellant [sic] due process of the law, equal
      protection, fundamental fairness, where, in view of the facts and
      circumstances within Appellant’s case, was the court arbitrary
      when it failed to treat Appellant’s case as to case(s) similarly-
      situated where relief was proportionally allocated?

      II. Whether PCRA court erred in depriving Appellant [of the]
      right to a full and fair PCRA proceeding, when the court failed to
      provide an adequate opinion/reason(s) for dismissal, and for
      failing to address all of the claims raised in Appellant’s pro se
      PCRA Petition?

      III. Whether PCRA counsel inaction amounted to ineffective
      [assistance] when he failed to file a proper/amended PCRA
      Petition, and where PCRA counsel performance during PCRA
      proceedings was deficient?

      IV. Whether PCRA counsel was ineffective when conflict of
      int[e]rest rose allowing co-representation with counsel who
      Appellant petitioned ineffective (layered claim) in Appellant’s pro
      se PCRA Petition?

Appellant’s Brief at 3 (capitalization omitted).

      We review the denial of a PCRA Petition to determine whether the

record supports the PCRA court’s findings and whether its order is otherwise

1
  On February 6, 2017, Appellant filed an Application for Relief urging this
Court to decide his case on the merits and sanction the Commonwealth
because the Commonwealth failed to file a timely brief.           Appellant’s
Application is hereby denied. See Pa.R.A.P. 2188 (the consequence of an
appellee’s failure to file a timely brief is denial of participation in oral
argument unless the court directs otherwise).



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free of legal error.     Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014). This Court grants great deference to the findings of the PCRA court if

they are supported by the record. Commonwealth v. Boyd, 923 A.2d 513,

515 (Pa. Super. 2007). We give no such deference, however, to the court’s

legal conclusions.     Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.

Super. 2012).

      To be eligible for relief pursuant to the PCRA, Appellant must establish,

inter alia, that his conviction or sentence resulted from one or more of the

enumerated errors or defects found in 42 Pa.C.S. § 9543(a)(2). Appellant

must also establish that the issues raised in the PCRA petition have not been

previously litigated or waived.    42 Pa.C.S. § 9543(a)(3).   An allegation of

error “is waived if the petitioner could have raised it but failed to do so

before trial, at trial, during unitary review, on appeal[,] or in a prior state

postconviction proceeding.” 42 Pa.C.S. § 9544(b).

      There is no right to a PCRA hearing; a hearing is unnecessary where

the PCRA court can determine from the record that there are no genuine

issues of material fact. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.

Super. 2008).

      In his first claim, Appellant avers that the PCRA court erred in

dismissing his claim regarding Officer Speiser’s tainted testimony because

the PCRA court had purportedly granted relief in similar cases. Appellant’s

Brief at 11-18.      Appellant argues that failing to treat “similarly-situated



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litigants in a [consistent] manner” constitutes a denial of equal protection.

Id. at 18.

      The PCRA provides relief for a petitioner who demonstrates his

conviction or sentence resulted from “[t]he unavailability at the time of trial

of exculpatory evidence that has subsequently become available and would

have changed the outcome of the trial if it had been introduced.” 42 Pa.C.S.

§ 9543(a)(2)(vi).    To establish a claim of newly discovered evidence, a

petitioner must prove that: (1) the evidence has been discovered after trial

and it could not have been obtained at or prior to trial through reasonable

diligence; (2) the evidence is not cumulative; (3) it is not being used solely

to impeach credibility; and (4) it would likely compel a different verdict.

Commonwealth v. Sepulveda, 144 A.3d 1270, 1276 n.14 (Pa. 2016).

Newly discovered evidence must be producible and admissible in order to

entitle a petitioner to relief. Commonwealth v. Castro, 93 A.3d 818, 825

(Pa. 2014).

      It is axiomatic that “[a]llegations are not evidence.” Commonwealth

v. Delbridge, 859 A.2d 1254, 1258 (Pa. 2004) (plurality). “One cannot

glean from [] bald allegations what evidence of misconduct appellee

intended to produce.” Castro, supra at 825.

      Based on its review of the record, the PCRA court determined that

Appellant failed to establish that Officer Speiser played a critical role in his




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arrest and prosecution. PCRA Court Opinion, 7/8/16, at 3. The PCRA court

explained its reasoning as follows:

      According to the police paperwork, which was also included in
      [A]ppellant’s objection to the Rule 907 Notice, Police Officer
      Deirdre Still and Police Officer Simpson set up the surveillance
      and made observations at 5820 [N.] 12th [S]treet in response to
      complaints about the sale of illegal drugs. Officer Still observed
      approximately four transactions involving [A]ppellant and other
      parties over the course of the surveillance and radioed that
      information to back-up officers. In addition, the paperwork
      indicates that [A]ppellant was placed under arrest by back-up
      officer, Officer Kensley, who also performed the search incident
      to arrest[,] which netted, among other things, crack cocaine.
      Officer Still also testified at trial. None of these officers were
      among those named in the federal indictment. Accordingly,
      Speiser did not play a critical role in the prosecution of
      [A]ppellant’s case and the [c]ourt did not commit error by failing
      to grant [A]ppellant relief on this claim.

Id.

      Our review of the certified record confirms the PCRA court’s findings.

Officer Speiser testified at Appellant’s preliminary hearing, stating that he

prepared the search warrant and later led the team that executed the search

warrant at 5820 N. 12th Street.         N.T., 3/3/10, at 14-18.    At Appellant’s

stipulated bench trial following the denial of his Motion to Suppress, the

Commonwealth      proffered   Officer    Speiser’s   testimony    regarding   the

preparation and execution of the search warrant following Officer Still’s

observations of the drug transactions, as well as the evidence Officer Speiser

and his squad recovered from 5820 N. 12th Street. N.T. 8/9/11, at 38-41.

      Insofar as Appellant has attached several newspaper articles regarding

the six indicted police officers, including Officer Speiser, the newspaper


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articles do not meet the definition of “evidence” because they are merely the

reporter’s version of facts and are not admissible at trial. Commonwealth

v. Griffin, 137 A.3d 605, 610 (Pa. Super. 2016).     As our Supreme Court

held in Castro, “[w]hile newspaper articles can alert a party to the possible

existence of evidence, the party must do more than attach the article as

establishing the evidence that will meet the four-pronged test.”     Castro,

supra at 827 (emphasis added).

      Further, “[a]n evidentiary hearing ... is not meant to function as a

fishing expedition for any possible evidence that may support some

speculative claim.”    Castro, supra at 828.      “[T]here must be actual

discovery of actual evidence, not merely the possibility of such evidence.”

Id.

      Assuming, arguendo, Officer Speiser’s testimony is “tainted” and

excludable, the remaining untainted evidence that supports the guilty verdict

would be largely unaffected. We agree with the PCRA court’s analysis, and

conclude that Appellant failed to prove that his newly discovered evidence

would likely compel a different verdict.

      In his second claim, Appellant avers that the PCRA court failed to

provide an adequate Pa.R.A.P. 1925(a) Opinion because the PCRA court did

not address all of the claims he raised in his pro se PCRA Petition.

Appellant’s Brief at 3, 18-22.

      The PCRA court addressed Appellant’s claim as follows:



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      Appellant next complains that the [c]ourt failed to provide an
      adequate opinion addressing all of the claims raised in his pro
      se PCRA [P]etition. Appellant’s assertion is misplaced. The
      counseled [P]etition presented to the [c]ourt raised the issue of
      police misconduct in the prosecution of [A]ppellant’s case. The
      PCRA court is only required to address the issues raised in the
      counseled [P]etition, which the [c]ourt did.                 [See
      Commonwealth v. Pursell, 724 A.2d 293, 302 (Pa. 1999)]
      (“We will not require courts considering PCRA petitions to
      struggle through the pro se filings of defendants when qualified
      counsel represent those defendants[.]”).         Furthermore, in
      response to the [c]ourt’s 1925(b) order, appellate counsel
      indicated that she could identify no meritorious issue(s) to raise
      on appeal and it was her intent to file an Anders brief.
      Consequently, the [c]ourt declined to file a formal opinion. See
      Commonwealth v. Reeves, 907 A.2d 1, 2 (Pa. Super. 2006)
      (a 1925(b) statement must specify for the trial court, the issues
      the [A]ppellant wishes to raise on appeal). Accordingly, this
      complaint lacks merit.

PCRA Court Opinion, 7/8/16, at 4. We agree with the PCRA court’s analysis.

      Appellant’s counseled PCRA Petition only raised claims regarding

Officer Speiser and his tainted testimony. Pursell, supra, held that a PCRA

court need not rule on each issue raised in a lengthy pro se filing prior to the

appointment of PCRA counsel.         See also Commonwealth v. Markowitz,

32 A.3d 706, 713 n.5 (Pa. Super. 2011) (stating “Amended petitions are

required on first-time PCRA cases, and the PCRA court is only permitted to

address   issues   raised   in   a   counseled   petition.”   (citations   omitted)).

Accordingly, Appellant’s second claim merits no relief.




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      Appellant’s last two issues challenge the effective assistance of PCRA

counsel.2   The law presumes counsel has rendered effective assistance.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010).                 The

burden of demonstrating ineffectiveness rests on Appellant. Id. To satisfy

this burden, Appellant must plead and prove by a preponderance of the

evidence that: “(1) his underlying claim is of arguable merit; (2) the

particular course of conduct pursued by counsel did not have some

reasonable basis designed to effectuate his interests; and, (3) but for

counsel’s ineffectiveness, there is a reasonable probability that the outcome

of the challenged proceeding would have been different.” Commonwealth

v. Fulton, 830 A.2d 567, 572 (Pa. 2003). Failure to satisfy any prong of the

test will result in rejection of the appellant’s ineffective assistance of counsel

claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).

      First, Appellant must meet the “arguable merit” prong. “The threshold

inquiry in ineffectiveness claims is whether the issue/argument/tactic which

counsel has foregone and which forms the basis for the assertion of

ineffectiveness is of arguable merit[.]”     Commonwealth v. Pierce, 645

A.2d 189, 194 (Pa. 1994) (quotation and citation omitted). “Counsel cannot

be found ineffective for failing to pursue a baseless or meritless claim.”

2
  Appellant baldly asserts the ineffective assistance of trial and direct appeal
counsel, but he failed to raise these issues as separate ineffectiveness claims
in his statement of questions and Appellant failed to develop intelligible
arguments regarding these claims in his Brief. Thus, these claims regarding
trial and direct appeal counsel are waived. Pa.R.A.P. 2116, 2119.



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Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa. Super. 2004)

(quotation and citation omitted).

      Second, Appellant must meet the “no reasonable basis” prong.         We

apply the “reasonable basis” test to determine whether counsel’s chosen

course was designed to effectuate his client’s interests.   Pierce, supra at

194-95. “If we conclude that the particular course chosen by counsel had

some reasonable basis, our inquiry ceases and counsel’s assistance is

deemed effective.” Id. at 195 (quotation and citation omitted).

      Third, Appellant must meet the “prejudice” prong.           “Prejudice is

established when a defendant demonstrates that counsel’s chosen course of

action had an adverse effect on the outcome of the proceedings.”

Commonwealth v. Chambers, 807 A.2d 872, 883 (Pa. 2002) (quotation

marks and citation omitted).    “The defendant must show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.”              Id. (quoting

Strickland v. Washington, 466 U.S. 668, 694 (1984)).           “A reasonable

probability is a probability sufficient to undermine confidence in the

outcome.” Id.

      The Honorable Sheila Woods-Skipper, sitting as the PCRA court, has

authored a comprehensive, thorough, and well-reasoned Opinion, citing to

the record and relevant case law in addressing Appellant’s ineffectiveness

claims and concluding that Appellant relied on boilerplate allegations of



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ineffective assistance of counsel and that Appellant’s vague, generalized,

and undeveloped claims are not reviewable.        See PCRA Court Opinion,

7/8/16, at 6-7. The record supports the PCRA court’s findings and its Order

is otherwise free of legal error. We affirm on the basis of the PCRA court’s

July 8, 2016 Opinion. Id.

      The parties are instructed to attach a copy of the PCRA court’s July 8,

2016 Opinion to all future filings.

      Order affirmed. Application for Relief denied.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/28/2017




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