J-S53004-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,  :           IN THE SUPERIOR COURT OF
                               :                PENNSYLVANIA
             Appellee          :
                               :
         v.                    :
                               :
AVON CONSTANT QUIERO, JR., AKA :
AVON CONSTANTIN QUIERO, JR.,   :
                               :
             Appellant         :           No. 2039 MDA 2014

           Appeal from the Judgment of Sentence June 18, 2014,
                 Court of Common Pleas, Lebanon County,
             Criminal Division at No. CP-38-CR-0001570-2012

BEFORE: DONOHUE, OTT and MUSMANNO, JJ.

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

      Avon C. Quiero (“Quiero”) appeals from the judgment of sentence

entered following his convictions of two counts of robbery, 18 Pa.C.S.A. §

3701. Following our review, we affirm.

      The trial court summarized the factual history underlying his appeal as

follows:

                 On October 2, 2012, the Wachovia Bank at 801
           Cumberland Street, Lebanon City, Lebanon County,
           Pennsylvania was robbed. The [r]obber handed a
           note written on a social security card to Irma Calero-
           Haser (herein “Haser”), a teller, which said that he
           had a gun and demanded that she empty her
           drawer. Haser followed the instructions and gave
           the robber the money. Haser testified that she saw
           metal on him and that she believed that he did have
           a gun. The robber put the money in his pocket and
           exited the Bank through the front, side door.
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                   Haser told her co-worker, Danielle Peachy
            (herein “Peachy”), what had happened. Peachy was
            working the drive through window and saw the
            robber through the drive through window, he was
            about four feet away from the window. As the
            supervisor on duty, Peachy shut down the bank and
            notified police. When the police arrived, both women
            gave a description of the robber. Haser described
            the robber as male, tall, Hispanic, wore a hat, and
            husky/chubby. At trial, Haser testified that she is
            five foot, two inches tall, so any one [sic] taller than
            her is “tall.” Peachy described the robber as a husky
            Hispanic male wearing a hat.

                  Later that day, Peachy was shown a photo
            array by Sargent [sic] John Hess (herein “Sgt.
            Hess”) of the Lebanon City Police. Peachy identified
            [Quiero] as the man who had committed the
            robbery. Haser was not able to identify anyone from
            the photo array on that day. Peachy gave police
            access to the surveillance video.

Trial Court Opinion, 10/17/14, at 4.

      Quiero was subsequently arrested in connection with this robbery.

After numerous continuances, Quiero’s jury trial occurred on May 8, 2014.

Quiero represented himself at trial and a court-appointed attorney, Elizabeth

Judd, Esquire, acted as stand-by counsel. He was convicted of two counts of

robbery and sentenced to six to twenty years of incarceration. Quiero filed a

post-sentence motion, which the trial court denied after a hearing.     This

timely appeal followed.

      Quiero presents the following four issues for our review:

            [1.] Did the court err in its assessment of the need
            of [the] Commonwealth to establish an independent
            basis for victims[’] in-court identification?



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            [2.] Did the Honorable Charles Jones[’] refusal to
            recuse himself after making prejudicial statements
            against [Quiero] violate defense right [sic] to a fair
            trial?

            [3.] Did [the] court abuse its discretion by
            preventing [the] defense from arguing lack of
            clothing, money and other physical evidence?

            [4.] Did stand by [sic] counsel Elizabeth Judd’s
            failure to comply with court order to provide [the]
            defense     separate  DNA     testing  and   future
            misrepresentation of said testing violate [the]
            defense[’s] due process rights?

Quiero’s Brief at 2.

      First, Quiero argues that the trial court erred in allowing Haser and

Peachy to make in-court identifications of Quiero. The basis for this claim is

Quiero’s allegation that both women’s identifications were the result of the

police officers’ suggestiveness. He argues that Pennsylvania Rule of Criminal

Procedure 581(I) “requires the [trial] [c]ourt to record on the record

finding[s] regarding alleged suggestiveness” of the witnesses’ identification

and that where suggestiveness is found, it “requires the Commonwealth to

establish an independent basis for [the] identification[s].” Quiero’s Brief at

6. He concludes that the witnesses’ “in-court id’s [sic] are tainted and by

law must be suppressed.     They prejudiced the defense and a new trial is

warranted.” Id. at 7.

      The record reveals that Quiero did not raise the argument he advances

now (that the trial court erred by failing to comply with the requirements of



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Rule 581(I)) at any time before the trial court. See N.T., 5/8/14, at 18-19;

Motion for a New Trial, 7/9/14, ¶ 11. “[A] new and different theory of relief

may   not      be   successfully   advanced   for   the   first   time   on   appeal.”

Commonwealth v. Santiago, 980 A.2d 659, 666 n.6 (Pa. Super. 2009);

see also Commonwealth v. Duffy, 832 A.2d 1132, 1136 (Pa. Super.

2003) (“[A]n appellant may not raise a new theory for an objection made at

trial on his appeal.”); Pa.R.A.P. 302.        Because Quiero did not raise this

theory of relief before the trial court, we will not entertain it on appeal. 1

      Next, Quiero contends that the trial court erred in denying his motion

for recusal.    Our Rules of Appellate Procedure require that each issue an

appellant raises must be supported by discussion and analysis of relevant

authority. See Pa.R.A.P. 2119. Quiero has failed to do meet these

requirements. See Quiero’s Brief at 7. It is well established that 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). Accordingly, we conclude that Quiero has waived this issue.

See Commonwealth v. Hunzer, 868 A.2d 498, 516 (Pa. Super. 2005)

(holding that an appellant waived a claim where he failed to cite any legal



1
   Even if we were not to find this issue waived, it would afford Quiero no
relief because his reliance on Rule 581 is misplaced. Quiero is challenging
the witnesses’ in-court identification of him, but Rule 581 governs the
motions practice for seeking suppression of evidence prior to trial. See
Pa.R.Crim.P. 581. Quiero never filed a motion seeking to suppress witness
identifications, and so the requirements of Rule 581 are not applicable.


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authority in support of an argument in his appellate brief); Commonwealth

v. Ellis, 700 A.2d 948, 957 (Pa. Super. 1997) (holding waiver results if an

appellant fails to properly develop an issue or cite to legal authority to

support his contention in his appellate brief).

      In his third issue, Quiero contends that the trial court erred by refusing

to let him argue to the jury that the police never recovered clothes or money

from him that would connect him with the robbery. Quiero’s Brief at 7-8.

Again, Quiero fails to develop this argument with citation to, or discussion

of, relevant authority.   In support of this claim, Quiero provides only the

definition of relevant evidence and then baldy states, “This was an abuse of

discretion.” Id. at 8. Accordingly, we find this issue waived, as well.

      Finally, Quiero argues that Attorney Judd was ineffective for failing to

have the state police perform DNA testing on his behalf; he contends that he

is “legally entitled” to this testing, and that “by law [it] must be done by the

[s]tate [p]olice.” Quiero’s Brief at 9. In 2002, the Pennsylvania Supreme

Court created a bright-line rule that claims of ineffective assistance of

counsel must be deferred until collateral appeal. Commonwealth v. Grant,

813 A.2d 726, 738 (Pa. 2002).       More recently, that court delineated two

exceptions to the Grant rule:

            First, … trial courts retain discretion, in extraordinary
            circumstances, to entertain a discrete claim of trial
            counsel ineffectiveness if the claim is both apparent
            from the record and meritorious, such that
            immediate consideration best serves the interest of



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            justice. Second, … trial courts also have discretion
            to entertain prolix claims of ineffectiveness if there is
            a good cause shown and the unitary review thus
            permitted is accompanied by a knowing and express
            waiver by the defendant of the right to pursue a first
            PCRA petition.

Commonwealth v. Arrington, 86 A.3d 831, 856-57 (Pa. 2014) (discussing

Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013)).

      There is no indication in the record that the trial court did considered

these exceptions; indeed, in its opinion, the trial court only notes that “as a

general rule” such claims should be deferred until collateral review, but then

considers the merits of the claim without any recognition of the Holmes

exceptions. Trial Court Opinion, 10/17/14, at 9-10. Accordingly, we dismiss

Quiero’s claim of ineffective assistance of counsel without prejudice for him

to raise it on collateral appeal. See Commonwealth v. Burno, 94 A.3d

956, 971 (Pa. 2014) (dismissing claims of ineffective assistance of counsel

without prejudice to raise on collateral appeal where trial court addressed

merits of ineffectiveness claims raised in post-sentence motions without

considering applicability of Holmes exceptions).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/17/2015


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