J-S83035-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMES DOUGLAS BRAGES,                      :
                                               :
                       Appellant               :       No. 935 WDA 2018

              Appeal from the PCRA Order Entered May 15, 2018
               in the Court of Common Pleas of Cambria County
              Criminal Division at No(s): CP-11-CR-0001574-2012

BEFORE: PANELLA, J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                             FILED MARCH 15, 2019

        James Douglas Brages (“Brages”) appeals from the Order denying his

first Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).

See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        On February 12, 2013, following a jury trial, Brages was found guilty of

theft by unlawful taking, receiving stolen property, and possession of an

instrument of crime.1 The trial court sentenced Brages to an aggregate term

of 48 to 96 months in prison.          On April 30, 2014, this Court affirmed the

judgment of sentence, and on November 6, 2014, the Pennsylvania Supreme

Court denied Brages’s Petition for allowance of appeal. See Commonwealth

v. Brages, 102 A.3d 548 (Pa. Super. 2014) (unpublished memorandum),

appeal denied, 104 A.3d 1 (Pa. 2014).


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1   See 18 Pa.C.S.A. §§ 3921(a), 3925(a), 907(a).
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       On February 3, 2015, Brages, pro se, filed the instant timely PCRA

Petition. The PCRA court appointed Brages counsel, who filed an Amended

Petition.   On May 15, 2018, following a hearing, the PCRA court denied

Brages’s PCRA Petition. Brages filed a timely Notice of Appeal and a Pa.R.A.P.

1925(b) Concise Statement of matters complained of on appeal.

       On appeal, Brages presents the following claims for our review:

       1. The [PCRA c]ourt erred in denying [Brages’s] claim for post-
       conviction relief as it pertained to his [trial] counsel’s failure to call
       a witness at trial who would have corroborated [Brages’s] defense
       that the $9,000.00 found on his person was his and not the alleged
       victim’s.

       2. The [PCRA c]ourt erred in denying [Brages’s] claim for post-
       conviction relief as it pertained to his [trial] counsel’s failure to
       request a “Kloiber”2 jury charge in regards to the testimony of
       [Samuel]    Mardis[,]     who    testified   on    behalf   of    the
       Commonwealth[,] that he could not see the alleged suspect’s face,
       nor could he make out any facial features, and that his view was
       obstructed by trees, shrubs[,] and full foliage as he briefly viewed
       a person over 260 feet away from his enclosed porch.

       3. The [PCRA c]ourt erred in denying [Brages’s] claim for post-
       conviction relief as it pertained to his [trial] counsel’s failure to
       request a mistrial as it pertained to several prejudicial comments
       made by the attorney for the Commonwealth during closing
       arguments.

       4. The [PCRA c]ourt erred in denying [Brages’s] claim for post-
       conviction relief as it pertained to his claim that his [direct appeal]
       counsel was ineffective in failing to file a Statement [p]ursuant to
       [Pa.]R.A.P. 2119(f) to challenge the discretionary aspects of his
       sentence on direct appeal.

Brief for Appellant at 4 (footnote added).


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2   See Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).

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        In his first claim, Brages alleges that his trial counsel, Patricia Moore,

Esquire (“Attorney Moore”), was ineffective by failing to investigate, interview,

and call at trial a witness.3 See Brief for Appellant at 10-12. Brages argues

that the witness would have testified that the money found in his possession

at the time of his arrest belonged to Brages. Id. at 12. Brages claims that

he advised Attorney Moore of this witness, and Attorney Moore “failed to

pursue the lead.” Id. According to Brages, had the witness testified, Brages

may have been acquitted of all charges. Id.

        “The standard of review of an order [denying] a PCRA petition is whether

that determination is supported by the evidence of record and is free of legal

error.”    Commonwealth v. Weimer, 167 A.3d 78, 81 (Pa. Super. 2017).

“The PCRA court’s findings will not be disturbed unless there is no support for

the findings in the certified record.” Id. (citation omitted).

        To prevail on a claim of ineffective assistance of counsel under the PCRA,

a petitioner must plead and prove by a preponderance of the evidence that

counsel’s ineffectiveness “so undermined the truth-determining process that

no reliable adjudication of guilt or innocence could have taken place.”        42

Pa.C.S.A. § 9543(a)(2)(ii). Specifically, a petitioner must establish that “the

underlying claim has arguable merit; second, that counsel had no reasonable

basis for his action or inaction; and third, that [the a]ppellant was prejudiced.”


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3   Brages did not name the purported witness in his brief.


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Commonwealth v. Charleston, 94 A.3d 1012, 1020 (Pa. Super. 2014). “A

PCRA    petitioner   must   address   each    of   these   prongs   on   appeal.”

Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018).

       A claim of ineffective assistance of counsel for

       [n]eglecting to call a witness differs from failing to investigate a
       witness in a subtle but important way. The failure to investigate
       presents an issue of arguable merit where the record
       demonstrates that counsel did not perform an investigation. It
       can be unreasonable per se to conduct no investigation into known
       witnesses.     Importantly, a petitioner still must demonstrate
       prejudice. To demonstrate prejudice where the allegation is the
       failure to interview a witness, the petitioner must show that there
       is a reasonable probability that the testimony the witness would
       have provided would have led to a different outcome at trial.

              In this respect, a failure to investigate and interview a
       witness claim overlaps with declining to call a witness since the
       petitioner must prove: (i) the witness existed; (ii) the witness was
       available to testify; (iii) counsel knew of, or should have known
       of, the existence of the witness; (iv) the witness was willing to
       testify; and (v) the absence of the testimony was so prejudicial as
       to have denied the defendant a fair trial.

Commonwealth v. Pander, 100 A.3d 626, 638-39 (Pa. Super. 2014)

(citations and quotation marks omitted).

       In its Opinion, the PCRA court concisely addressed Brages’s first claim

as follows:

              At the [PCRA] hearing, Attorney Moore testified that she
       recalled conversations related to a witness who could corroborate
       Brages’[s] contention that the large amount of currency seized in
       his backpack was from a tax refund. This witness was, in Attorney
       Moore’s recollection, a female that had formerly been in a
       relationship with Brages. Attorney Moore indicated she did not
       get a name or number of the person[,] and [she] encouraged
       Brages to get this information from the witness. Attorney Moore
       testified that she was unsure if this person would be a good


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     witness. She also indicated she [had] discussed her preferred trial
     strategy with Brages that focusing on the money was not as
     beneficial as focusing on the actual identification of him by the
     Commonwealth’s witnesses. Attorney Moore indicated that the
     facts she heard from Brages regarding the tax return did not
     remain consistent[,] and that she feared it may be an unwise
     strategy to present it if Brages took the stand. We found Attorney
     Moore’s testimony to be credible in all respects.

            Brages testified that the unnamed witness was Melanie
     Pinette, his ex-wife. As far as he knew[,] she had a house in
     Harrisburg or Mechanicsburg. He did not indicate any number or
     address for her. He indicated that the tax return was deposited
     in her bank account and then she took $1,000.00 and he kept
     $5,000.00. No evidence outside of Brages[’s] testimony was
     presented regarding the existence of this person. We do not find
     Brages credible with regard to this witness. Moreover, there was
     no evidence presented that this witness was available to testify or
     willing to testify, assuming arguendo, that she exists. The
     absence of this witness was not shown to this [c]ourt to be so
     prejudicial as to have denied Brages a fair trial. Without any
     credible evidence about this witness, we cannot speculate as to
     her importance at trial. There is no way to gauge the credibility
     or the weight the jury would have given to this witness. For these
     reasons, we find Brages fails to meet all three prongs of the
     ineffectiveness standard….

PCRA Court Opinion, 5/15/18, at 5-6. We agree with the PCRA court’s sound




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rationale and determination, and affirm on this basis in rejecting Brages’s first

claim.4

       In his second claim, Brages alleges that Attorney Moore was ineffective

for failing to request a “Kloiber” jury instruction. See Brief for Appellant at

13-15.    According to Brages, one of the eyewitnesses at his trial, Samuel

Mardis (“Mardis”), testified that he did not clearly see Brages on the night of

the crime, and that his view of Brages was obstructed and at a long distance.

Id. at 13. Brages points out that a Kloiber instruction would have cautioned

the jury regarding the reliability of Mardis’s identification, and argues that

Attorney Moore was ineffective for failing to request the Kloiber instruction.

Id.

              A Kloiber instruction informs the jury that an eyewitness
       identification should be viewed with caution when either the
       witness did not have an opportunity to view the defendant clearly,
       equivocated on the identification of the defendant, or has had
       difficulties identifying the defendant on prior occasions.




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4 We note that the PCRA hearing transcript is absent from the certified record.
“With regard to missing transcripts, the Rules of Appellate Procedure require
an appellant to order and pay for any transcript necessary to permit resolution
of the issues raised on appeal. Pa.R.A.P. 1911(a). When the appellant … fails
to conform to the requirements of Rule 1911, any claims that cannot be
resolved in the absence of the necessary transcript or transcripts must be
deemed waived for the purpose of appellate review.” Commonwealth v.
Preston, 904 A.2d 1, 7 (Pa. Super. 2006). Nonetheless, we affirm on the
merits based on the summary of testimony provided in the PCRA court’s
Opinion.


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Commonwealth v. Pander, 100 A.3d 626, 635 (Pa. Super. 2014) (emphasis

added).

      Here, Mardis did not specifically identify Brages as the individual he

observed. Indeed, in his testimony, Mardis stated that he did not see the

person’s face, and could not identify the individual:

      Q     … Did anything out of the usual, did you see anything out of
      the usual on that day as you were sitting on your back porch?

      A     I saw a man wearing dark clothes and a backpack, ball cap
      on a bicycle….

      ….

      Q     Were you ever able to see his face?

      A     No, I was not.

      Q     Just his clothes, his backpack?

      A     His clothes, yes, and the bicycle.

N.T., 2/11/13, at 68-71.     Thus, the requisite for a Kloiber instruction, an

eyewitness identification, was not met, and Brages’s underlying claim lacks

merit. See Pander, supra. Moreover, Brages failed to establish that he was

prejudiced. See Charleston, supra. Accordingly, Attorney Moore was not

ineffective for failing to request a Kloiber instruction.

      In his third claim, Brages alleges that Attorney Moore was ineffective for

failing to request a mistrial. See Brief for Appellant at 15-21. Brages argues

that several comments made in the Commonwealth’s closing argument

constituted prosecutorial misconduct. Id. at 17-21. Brages claims that the

comments prejudiced the jury, and were grounds for a mistrial. Id.

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      In its Opinion, the PCRA court set forth the relevant law and addressed

Brages’s claim as follows:

             Comments by the Commonwealth’s attorney do not
      constitute reversible error unless the “unavoidable effect of such
      comments would be to prejudice the jury, forming in their minds
      fixed bias and hostility toward the defendant so that they could
      not weigh the evidence objectively and render a true verdict.”
      Commonwealth v. Anderson, 461 A.2d 208, 211 (Pa. 1983).
      In Anderson[,] it was alleged that trial counsel was ineffective
      for failing to request a mistrial after objectionable remarks were
      made by the Commonwealth during summation. [Id. at 213.]
      Trial counsel testified that he believed he was winning the case[,]
      and therefore[,] did not request a mistrial. Id. The Pennsylvania
      Supreme Court found this to be a reasonable basis for electing not
      to move for a mistrial. [Id. at 215.]

             Similarly, Attorney Moore testified that her belief at the time
      of the comments was that the trial had gone well and she made a
      tactical decision to not move for mistrial. Such a belief was,
      perhaps with the benefit of hindsight to some degree, borne out
      by the fact that the jury did indeed render not guilty verdicts for
      the lead charges of burglary and criminal trespass. Thus, we find
      that Attorney Moore had a reasonable basis for not pursuing a
      mistrial and do not find that the failure to request a mistrial was
      ineffective assistance of counsel where she: 1) made a timely
      objection, 2) received a favorable ruling and 3) the [trial c]ourt
      gave a curative instruction not once but twice in the midst of the
      Commonwealth’s summation.            Additionally, Attorney Moore
      testified that although it was not her intention[,] she believed that
      her objections may have benefitted [Brages] to some degree in
      that [the objections] may have blunted the effectiveness of the
      Commonwealth’s argument. For these reasons, we decline to
      afford relief.

PCRA Court Opinion, 5/15/18, at 8-9 (some citations omitted).              As an

addendum, we note that Brages failed to demonstrate that the outcome of

trial would have been different if not for Attorney Moore’s purported errors.

See Charleston, supra; see also id. at 1026 (stating that “unsupported



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speculation” does not establish a reasonable probability that the outcome of

trial would have been different).          We agree with the PCRA court’s sound

rationale and determination, and affirm on this basis in rejecting Brages’s third

claim.5

       In his fourth claim, Brages alleges that his direct appeal counsel, John

Lovette, Esquire (“Attorney Lovette”), was ineffective for failing to file a

Statement pursuant to Pa.R.A.P. 2119(f) with his brief on direct appeal. See

Brief for Appellant at 21-23. Brages states that this omission resulted in a

waiver of his excessive sentence claim.          Id. at 21.   Brages argues that

Attorney Lovette’s omission constitutes per se ineffectiveness of counsel. Id.

       Here, Brages cites extensive legal support, but fails to develop any

meaningful argument as to how his underlying claim has merit, why Attorney

Lovette lacked a reasonable basis for his actions, and how Brages was

prejudiced. “[W]here an appellate brief fails to provide any discussion of a

claim with citation to relevant authority or fails to develop the issue in any

other meaningful fashion capable of review, that claim is waived.”

Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009). It is not the

role of this Court to “formulate [an a]ppellant’s arguments for him.” Id. at



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5 Similar to Brages’s second claim, because we are deprived of the PCRA
hearing transcript, we could deem this claim waived. See Preston, supra.
However, we affirm on the merits based on the summary of testimony
provided by the PCRA court.


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925; see also Commonwealth v. Chmiel, 30 A.3d 1111, 1128 (Pa. 2011)

(noting that boilerplate allegations and bald assertions cannot satisfy a

petitioner’s burden to prove ineffective assistance of counsel).       Because

Brages failed to properly develop this claim for our review, it is waived.

      Based on the foregoing, the PCRA court properly denied Brages’s PCRA

Petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/15/2019




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