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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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.                              :
                                          :
ADAM JOSEPH BROWN,                        :
                                          :
                  Appellant               :   No. 1690 WDA 2017

                  Appeal from the PCRA Order October 12, 2017
                   in the Court of Common Pleas of Erie County
               Criminal Division at No(s): CP-25-CR-0002744-2013

BEFORE:        BENDER, P.J.E., STABILE, and STRASSBURGER, JJ.*

MEMORANDUM BY STRASSBURGER, J.:                      FILED JUNE 06, 2018

     Adam Joseph Brown (Appellant) appeals from the October 12, 2017

order denying his petition filed pursuant to the Post Conviction Relief Act

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

     On May 14, 2014, Appellant was convicted by a jury of numerous

offenses after a July 2013 “brutal attack on an elderly couple[, Frank and

Elfreda Karmazin,] in their home, during which he slit both of their throats

and stole money and various other items from them.” Commonwealth v.

Brown, 133 A.3d 78 (Pa. Super. 2015) (unpublished memorandum at 1).

Relevant to this appeal, at trial, eighty-two-year-old Elfreda testified that

Appellant came onto the sun porch at her home where she was sitting and

asked to use her phone. Appellant used the phone, then left and came back

about ten minutes later to use the phone again.     Elfreda went to get the

phone and when she came back onto the porch, Appellant had put on black

*Retired Senior Judge assigned to the Superior Court.
J-S30034-18


gloves, had a silver pistol in his hand, and “was busting into the mudroom.”

N.T., 5/12/2014, at 61.     Appellant then launched into a brutal attack on

Elfreda in the kitchen and then on Frank, who was in his bedroom. Among

other things, Appellant slit the necks of both victims, who required extensive

hospital and rehabilitation stays thereafter.

      After a jury convicted Appellant, he was sentenced to an aggregate

term of 60 to 120 years of incarceration. Appellant filed a direct appeal to

this Court, and on September 24, 2015, this Court affirmed Appellant’s

judgment of sentence. Brown, supra.             Appellant filed a petition for

allowance of appeal, which was denied by our Supreme Court on March 15,

2016. Commonwealth v. Brown, 134 A.3d 54 (Pa. 2016).

      On February 24, 2017, Appellant pro se filed a timely PCRA petition.

Counsel was appointed, and he filed an amended petition on July 24, 2017.

On September 8, 2017, the PCRA court filed notice pursuant to Pa.R.Crim.P.

907 of its intent to dismiss the petition without a hearing. Appellant filed a

response, and on October 12, 2017, the PCRA court dismissed Appellant’s

petition. Appellant timely filed a notice of appeal.1

      Before we consider Appellant’s issues, we would be remiss not to first

point out the woefully inadequate brief filed by Appellant’s counsel on



1 The PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b), but the PCRA court
directed this Court to consider its opinion issued along with its Rule 907
notice in lieu of a Pa.R.A.P. 1925(a) opinion.

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appeal.   He has presented to us five separate arguments, each one

consisting of approximately one paragraph. See Appellant’s Brief at 6-8. He

has not cited to the notes of testimony, despite the fact his issues relate to

errors that occurred during trial. See Pa.R.A.P. 2119(c) (“If reference is

made to … any [] matter appearing in the record, the argument must set

forth, in immediate connection therewith, or in a footnote thereto, a

reference to the place in the record where the matter referred to appears.”).

He has also not cited to any case law in support of any of these arguments.

Pa.R.A.P. 2119(a), (b).   It is well-settled that “[w]e shall not develop an

argument for [an appellant], nor shall we scour the record to find evidence

to support an argument.” Commonwealth v. Beshore, 916 A.2d 1128,

1140 (Pa. Super. 2007).

      In other words, it would be well within our discretion to dismiss this

appeal for the failure to present a proper brief on appeal. See Pa.R.A.P.

2101 (“Briefs and reproduced records shall conform in all material respects

with the requirements of these rules as nearly as the circumstances of the

particular case will admit, otherwise they may be suppressed, and, if the

defects are in the brief or reproduced record of the appellant and are

substantial, the appeal or other matter may be quashed or dismissed.”).

Nevertheless, because the defects are not so substantial to impede review,

we will proceed to address the issues that we can.




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       “Our standard of review of a trial court order granting or denying relief

under the PCRA calls upon us to determine ‘whether the determination of the

PCRA court is supported by the evidence of record and is free of legal error.’”

Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013) (quoting

Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011)).

       We first consider Appellant’s claims that the trial court erred in

denying two of his pre-trial motions.        He first claims that he is entitled to

PCRA    relief   because   the   trial   court   erred   in   denying   Appellant   “a

psychological evaluation for purposes of exploring and substantiating a

prospective insanity defense and/or mitigation of his criminal culpability.” 2

Appellant’s Brief at 6. Appellant also claims the trial court erred by “denying

[Appellant] the right to proceed pro se at the time of trial.”3 Id. at 7.



2  On November 7, 2013, Appellant filed a motion for a psychological
evaluation. The trial court obtained Appellant’s mental health records and
reviewed them. On December 3, 2013, the trial court entered an order
denying Appellant’s motion. The trial court relied, inter alia, on a May 3,
2013 mental status exam, which revealed no concerning findings as to
Appellant’s mental health status. On appeal, Appellant argues that this
conclusion was “misguided” in light of the trial court’s “statements at the
time of sentencing.” Appellant’s Brief at 5.

3  By way of background, shortly after his arrest, Appellant filed an
application for a public defender. The trial court appointed Attorney Stephen
Langer on Appellant’s behalf. On October 2, 2013, Appellant pro se filed a
motion requesting that he be permitted to represent himself in this case. A
hearing was held on this motion on October 10, 2013, and the trial court
concluded that Appellant was waiving his right to counsel knowingly,
intelligently, and voluntarily. N.T., 10/10/2013, at 9. Thus, the trial court
permitted Attorney Langer to withdraw. Subsequently, on February 18,
2014, Appellant filed a motion requesting the appointment of counsel. The

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      In considering these issues, we first point out that issues that could

have been raised on direct appeal, but were not raised, are waived for the

purposes of the PCRA. See 42 Pa.C.S. § 9544(b) (providing that “an issue 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”). Here, both of Appellant’s claims could have been raised in his

direct appeal; therefore, they are waived.4           Based on the foregoing,

Appellant is not entitled to relief on either of these claims.

      We now consider Appellant’s three claims regarding the ineffective

assistance of trial counsel. In doing so, we bear in mind the following. We

presume counsel is effective. Commonwealth v. Washington, 927 A.2d

586, 594 (Pa. 2007).       To overcome this presumption and establish the

ineffective assistance of counsel, a PCRA [petitioner] must prove, by a

preponderance of the evidence: “(1) the underlying legal issue has arguable


trial court granted that motion on February 25, 2014, and re-appointed
Attorney Langer to represent Appellant. In early May 2014, just prior to his
scheduled trial date, Appellant informed Attorney Langer that he wanted to
proceed pro se at trial. On the first day of trial, the trial court considered
this request, and denied Appellant permission to proceed pro se. N.T.,
5/12/2014, at 4.

4  We recognize that the derivative claims that appellate counsel was
ineffective for failing to raise these claims on direct appeal is cognizable
under the PCRA. See Commonwealth v. Spotz, 47 A.3d 63, 124 (Pa.
2012) (“[C]laims of trial court error are waived pursuant to 42 Pa.C.S.
§§ 9543(a)(3) and 9544(b), but his derivative claims of ineffectiveness for
failing to raise the asserted errors are cognizable.”). Nevertheless, Appellant
did not present these issues in this fashion in PCRA proceedings or in his
brief on appeal.

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merit; (2) that counsel’s actions lacked an objective reasonable basis; and

(3) actual prejudice befell the [appellant] from counsel’s act or omission.”

Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009) (citations

omitted). “[A petitioner] establishes prejudice when he demonstrates that

there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Id. A claim

will be denied if the petitioner fails to meet any one of these requirements.

Commonwealth v. Springer, 961 A.2d 1262, 1267 (Pa. Super. 2008).

      Appellant first contends that trial counsel was ineffective in failing to

pursue an insanity defense at trial. Appellant’s Brief at 6. In order to pursue

an insanity defense, trial     counsel would have had to prove by a

preponderance of the evidence that Appellant

      at the time of the commission of the offense, … was laboring
      under such a defect of reason, from disease of the mind, as not
      to know the nature and quality of the act he was doing or, if the
      actor did know the quality of the act, that he did not know that
      what he was doing was wrong.

18 Pa.C.S. § 315(b). Furthermore, we point out that

      [a] defense of insanity acknowledges commission of the act by
      the defendant, while maintaining the absence of legal
      culpability…. Where a defendant has testified at trial and has
      denied having committed a crime, this Court has declined to
      deem counsel ineffective for failing to present a defense that
      would have been in conflict with his client’s own testimony.

Commonwealth v. Hughes, 865 A.2d 761, 788 (Pa. 2004) (citations

omitted).



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      Here, Appellant’s defense at trial was that he participated in the

conspiracy-related aspects of the crime, but believed that no part of the plan

involved hurting anyone.    Specifically, Appellant testified that he was only

supposed to drive a vehicle to the house where his cousin, Dennis White,

and friends had planned to steal money and pills. Appellant claims he went

into the house, asked the woman he encountered if he could use the phone,

then left the house.   Appellant testified that he went back into the house

about ten minutes after another friend had gone in, and at that point,

Appellant testified he saw “blood everywhere.” N.T., 5/13/2014, at 177.

Appellant claims that he helped his friend out of the house, but did not ask

him what happened. He dropped his friend off at the home of another friend.

According to Appellant, when the friends concocted this plan, “there was

nothing about anybody getting hurt.” Id. at 180.        His friend was “just

supposed to go in the house and get the money and the pills.” Id. Appellant

admitted that he “conspired with others,” but testified that he did not “slit

the throats of these two elderly people.” Id. at 181.

      In other words, Appellant testified essentially that he knew exactly

what he was doing when he entered into this conspiracy, he wanted to

participate in the robbery, but did not want anyone to get hurt. Thus, an

insanity defense, where he would have to claim he did not know what he

was doing, is wholly inconsistent, and could have undermined the defense




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that was pursued. Thus, we cannot conclude that counsel was ineffective for

failing to pursue an insanity defense.

      Appellant next contends that trial counsel was ineffective for not

objecting to Elfreda’s testimony “relative to her purported in[-]court

identification of [A]ppellant as the perpetrator.” Appellant’s Brief at 7.

According to Appellant, her identification of Appellant “was suspect and

compromised.” Id.

      At trial, Elfreda was asked by the Commonwealth whether she saw in

the courtroom the person who attacked her. N.T., 5/12/2014, at 60.

Despite some difficulty,5 she identified Appellant. Id.    Subsequently, the

Commonwealth showed Elfreda the photo array she had been shown in the

hospital shortly after the attack.   Elfreda testified that she drew a circle

around the picture of Appellant at that time. Id. at 75.

      Based on the foregoing, even if Elfreda’s in-court identification of

Appellant was a bit uncertain, Appellant makes no argument that her

identification of him shortly after the attack was suspect in any way. Thus,

we conclude that any objection to the in court identification would have been

meritless.   See Commonwealth v. Tilley, 780 A.2d 649 (Pa. 2001)

(holding that counsel will not be deemed ineffective for failing to raise a

meritless claim).


5 Elfreda stated, “I’m pretty sure that’s him.” N.T., 5/12/2014, at 60. She
also stated, “I think he’s sitting at the end of the table right over there”
wearing a “light-colored shirt.” Id.

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      Moreover, even had counsel objected to the in court identification, we

conclude that the outcome of the trial would not have been different.

Elfreda had a good opportunity to view Appellant prior to being attacked,

then identified Appellant shortly after the attack while she was in the

hospital recovering from her injuries.    In addition, Elfreda testified that

Appellant took keys to her Ford Explorer out of her cabinet during this

attack, and Appellant was found in possession of that Ford Explorer. N.T.,

5/12/2014, at 147. Further, Appellant had in his possession at the time of

his arrest a gold crucifix necklace that Appellant “ripped off” Elfreda’s neck

during the attack. Id. at 72.   Moreover, when Appellant was arrested, his

hands and clothes were covered in Elfreda’s blood.            Based on this

overwhelming evidence that Appellant participated in the crime, we conclude

that Appellant was not prejudiced. See Commonwealth v. Domek, 167

A.3d 761, 766 (Pa. Super. 2017) (“In order to determine whether a

defendant was actually prejudiced, the Supreme Court has weighed the

gravity of the error against the overwhelming strength of the evidence[.]”)

(quotation marks omitted).

      Finally, Appellant claims that counsel was ineffective for failing to

object to the testimony of Shannon Baughman. Appellant’s Brief at 8.

Shannon Baughman testified that she knew Appellant as the cousin of her

child’s father, Dennis White. She testified on direct examination about her

seeing Appellant shortly after the attack on the Karmazins.        On cross-


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examination, counsel for Appellant questioned Baughman about some

discrepancies in the testimony she provided on direct examination and the

statement she gave to police shortly after the incident. She acknowledged

that she lied to police in order to cover up for some of the other individuals.

N.T., 5/12/2014, at 138. She also testified that she was told by police her

son would be taken away if she did not testify. Id. at 144.          On appeal,

Appellant argues that trial counsel was ineffective for not objecting to this

“tainted testimony.” Appellant’s Brief at 8.

      In his brief, Appellant does not explain on what basis trial counsel

should have objected to this testimony.        Trial counsel did cross-examine

Baughman about the discrepancies in her statement and her testimony, and

he also got Baughman to acknowledge that police had threatened to take

away her child if she did not testify. This testimony was actually helpful to

Appellant, so we cannot see how trial counsel was ineffective in any way

with respect to this witness. Accordingly, Appellant is not entitled to relief.

      Because Appellant has not presented any issue on appeal that would

entitle him to relief under the PCRA, we affirm the order of the PCRA court.

      Order affirmed.



Judgment Entered.




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Joseph D. Seletyn, Esq.

Prothonotary




Date: 6/6/2018




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