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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                   :
                                        :
ROBERT HARRY THOMAS,                    :         No. 1191 MDA 2015
                                        :
                        Appellant       :


                 Appeal from the PCRA Order, June 23, 2015,
               in the Court of Common Pleas of Franklin County
               Criminal Division at No. CP-28-CR-0000837-2009


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., AND STEVENS, P.J.E.*


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED APRIL 25, 2016

     Robert Harry Thomas appeals, pro se, from the June 23, 2015 order

dismissing his first petition under the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546, without a hearing. We affirm.

     A previous panel of this court articulated the following facts on direct

appeal:

                 The record reveals that, in the early morning
           hours of May 10, 2009, Appellant broke into the
           home of his ex-girlfriend (“the victim”), bound her
           wrists, ankles and face in duct tape, threatened her
           with a knife, and caused her to fear for her life.
           After several hours, Appellant released the victim.
           She had minor injuries to her face, neck, and wrists.
           Later that morning, the victim went to a neighbor
           and reported the incident; the neighbor contacted
           the police. Appellant was arrested and charged with
           one count each of kidnapping, burglary, terroristic
           threats, and false imprisonment.



* Former Justice specially assigned to the Superior Court.
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                The trial court summarized the procedural
          history of this case as follows:

               In a two-day trial on August 30 and
               August 31, 2010, [Appellant] was
               convicted by a jury of one count of
               burglary, one count of terroristic threats,
               and one count of false imprisonment.
               [Appellant] was also charged with one
               count of kidnapping on which the jury
               was hung.       This Court sentenced
               [Appellant] on December 8, 2010 but
               vacated its sentence on January 19,
               2012 after holding that the sentence
               imposed was illegal.      The Court re-
               sentenced [Appellant] on February 29,
               2012. Post-sentence motions were filed
               by [Appellant] on March 12, 2012 and a
               hearing was scheduled before this Court
               on March 30, 2012. On March 16, 2012,
               [Appellant] filed a pro se motion
               requesting new counsel be appointed to
               represent him in an appeal. The Court
               appointed new counsel for [Appellant] on
               March 23, 2012 and provided counsel
               twenty days to make any amendments
               to the post-sentence motions previously
               filed.  New counsel filed an amended
               post-sentence motion on April 13, 2012.
               The Commonwealth filed an Answer to
               the original post-sentence motion on
               April 27, 2012 as well as an Answer to
               the amended post-sentence motion on
               May 3, 2012. The Court issued a Post-
               Sentence Opinion on July 9, 2012
               denying    [Appellant’s]   post-sentence
               motions.

          Trial Court Opinion, 9/27/12, at 1-2 (footnotes
          omitted).   The record further reveals that, upon
          resentencing, the trial court reduced the length of
          Appellant’s aggregate term of incarceration to 10 to
          20 years and imposed Laboratory User’s Fees



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           (“Lab Fees”) totaling $4,077.00, pursuant             to
           42 Pa.C.S.A. § 1725.3 Order of Court, 2/29/12.

Commonwealth          v.   Thomas,   No.   1412   MDA    2012,    unpublished

memorandum (Pa.Super. filed May 30, 2013).          This court affirmed the

February 29, 2012 judgment of sentence, and our supreme court denied

appellant’s petition for allowance of appeal on March 11, 2014.          See

Commonwealth v. Thomas, 87 A.3d 319 (Pa. 2014).

     Appellant timely filed the instant PCRA petition on December 3, 2014.

On May 22, 2015, the trial court granted appellant’s counsel’s petition to

withdraw pursuant to the requirements set forth by Turner and Finley1 and

notified appellant of the court’s intentions to dismiss the PCRA petition

without a hearing pursuant to Pa.R.Crim.P. 907(1). The trial court dismissed

appellant’s PCRA petition on June 23, 2015. On July 9, 2015, appellant filed

a notice of appeal.    The trial court ordered appellant to produce a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)

on July 13, 2015, and appellant complied on July 30, 2015.

     Appellant raises the following issues on appeal:

           1.    Was Appellant denied effective assistance of
                 counsel before trial and after said trial and
                 during the trial[?]

           2.    [Were] there Procedural Errors by the trial
                 court[?]



1
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 607 (Pa.Super. 1988) (en banc).


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            3.     Did Appellant receive a fair trial in accordance
                   with Due Process standards . . . [?]

Appellant’s brief at 4.

      PCRA petitions are subject to the following standard of review:

            “[A]s a general proposition, we review a denial of
            PCRA relief to determine whether the findings of the
            PCRA court are supported by the record and free of
            legal error.” Commonwealth v. Dennis, 609 Pa.
            442, 17 A.3d 297, 301 (Pa. 2011) (citation omitted).
            A PCRA court’s credibility findings are to be accorded
            great deference, and where supported by the record,
            such determinations are binding on a reviewing
            court. Id. at 305 (citations omitted). To obtain
            PCRA relief, appellant must plead and prove by a
            preponderance of the evidence: (1) his conviction or
            sentence resulted from one or more of the errors
            enumerated in 42 Pa.C.S. § 9543(a)(2); (2) his
            claims have not been previously litigated or waived,
            id. § 9543(a)(3); and (3) “the failure to litigate the
            issue prior to or during trial . . . or on direct appeal
            could not have been the result of any rational,
            strategic or tactical decision by counsel[.] Id. §
            9543(a)(4). An issue is previously litigated if “the
            highest appellate court in which [appellant] could
            have had review as a matter of right has ruled on
            the merits of the issue[.]” Id. § 9544(a)(2). “[A]n
            issue is waived if [appellant] could have raised it but
            failed to do so before trial, at trial, . . . on appeal or
            in a prior state postconviction proceeding.” Id. §
            9544(b).

Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015).

            As a prefatory matter, although this Court is willing
            to construe liberally materials filed by a pro se
            litigant, pro se status generally confers no special
            benefit upon an appellant.      Commonwealth v.
            Maris, 427 Pa.Super. 566, 629 A.2d 1014, 1017 n. 1
            (1993). Accordingly, a pro se litigant must comply
            with the procedural rules set forth in the
            Pennsylvania Rules of the Court. Id. This Court


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            may quash or dismiss an appeal if an appellant fails
            to conform with the requirements set forth in the
            Pennsylvania Rules of Appellate Procedure.     Id.;
            Pa.R.A.P. 2101. For example,

                  The argument [section] shall be divided
                  into as many parts as there are
                  questions to be argued; and shall have
                  at the head of each part-in distinctive
                  type or in type distinctively displayed-the
                  particular point treated therein, followed
                  by such discussion and citation of
                  authorities as are deemed pertinent.

            Pa.R.A.P. 2119(a).

Commonwealth v. Lyons, 833 A.2d 245, 251-252 (Pa.Super. 2003),

appeal denied, 879 A.2d 782 (Pa. 2005).

      In the instant appeal, appellant raises three questions presented, yet

presents an argument that is separated into four sections.      Much like the

defendant in Lyons, appellant’s argument is “rambling, repetitive, and often

incoherent.” See id. at 252. As the Lyons court did, we shall extract the

arguments that can be reasonably construed from appellant’s argument and

address them “in the interest of justice.” See id.

      Under his first issue, appellant alleges ineffective assistance of

counsel.   Specifically, appellant makes a litany of allegations regarding his

counsel before and during trial, then-Chief Public Defender Michael Toms




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and James Reed, Esq.2        He alleges, inter alia, that Attorneys Toms and

Reed failed to adequately communicate with appellant; that Attorney Reed

did not notify appellant of a plea offer from the Commonwealth; and that

during   trial,   Attorney    Reed   failed   to   adequately    impeach   the

Commonwealth’s witnesses.

            The governing legal standard of review of ineffective
            assistance of counsel claims is well settled:

                          [C]ounsel is presumed effective,
                   and to rebut that presumption, the PCRA
                   petitioner    must    demonstrate      that
                   counsel’s performance was deficient and
                   that such deficiency prejudiced him.
                   Strickland v. Washington, 466 U.S.
                   668 (1984). This Court has described
                   the Strickland standard as tripartite by
                   dividing the performance element into
                   two          distinct         components.
                   Commonwealth v. Pierce, 527 A.2d
                   973, 975 (Pa. 1987). Accordingly, to
                   prove counsel ineffective, the petitioner
                   must     demonstrate     that   (1)     the
                   underlying legal issue has arguable
                   merit; (2) counsel’s actions lacked an
                   objective reasonable basis; and (3) the
                   petitioner was prejudiced by counsel’s
                   act or omission.       Id.    A claim of
                   ineffectiveness will be denied if the
                   petitioner’s evidence fails to satisfy any
                   one of these prongs.


2
  Attorney Toms was originally appointed by the trial court to represent
appellant. Appellant requested to be represented by a different attorney,
and the trial court granted Attorney Toms’ motion to withdraw as counsel on
January 12, 2010. The trial court appointed Attorney Reed to represent
appellant on February 19, 2010. Stephen Kulla, Esq., represented appellant
in the interim and is not the subject of any of appellant’s allegations of
ineffective assistance of counsel.


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            Commonwealth v. Busanet, 54 A.3d 34, 45 (Pa.
            2012) (citations formatted).      Furthermore, “[i]n
            accord with these well-established criteria for review,
            [an appellant] must set forth and individually discuss
            substantively each prong of the Pierce test.”
            Commonwealth v. Fitzgerald, 979 A.2d 908, 910
            (Pa.Super. 2009).

Commonwealth v. Perzel, 116 A.3d 670, 671-672 (Pa.Super. 2015).

      Here, appellant does not set forth and substantively discuss each

Pierce prong as required by Perzel. Instead, appellant makes conclusory

allegations of ineffective assistance by Attorneys Toms and Reed. A careful

review of the record indicates that appellant’s allegations are lacking any

arguable merit.   Moreover, aside from a cursory reference to the Pierce

prongs in his brief, appellant does not address how Attorneys Toms’ and

Reed’s actions or inactions either lacked an objectively reasonable basis or

prejudiced appellant.    Therefore, we find that appellant’s first issue is

without merit.

      In appellant’s second issue for our review, he avers that the trial court

committed procedural errors.    (Appellant’s brief at 4.)   At no point in his

argument does appellant allege any specific procedural errors committed by

the trial court, aside from the due process issues that appellant addresses in

his third issue, which we shall address infra.    “‘The failure to develop an

adequate argument in an appellate brief may [] result in waiver of the claim’

under Pa.R.A.P. 2119.” Commonwealth v. Beshore, 916 A.2d 1128, 1140

(Pa.Super. 2007), appeal denied, 982 A.2d 509 (Pa. 2007), quoting



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Commonwealth v. Gonzalez, 608 A.2d 528, 531 (Pa.Super. 1992).

Because appellant failed to develop his argument as to alleged procedural

errors committed by the trial court, we find the issue to be waived.

         In his third and final issue, appellant avers that he did not receive a

fair trial because of due process violations allegedly committed by the trial

court.     (Appellant’s brief at 4.)    Before we can address the merits of

appellant’s claim, we must first look to whether appellant’s claims have been

previously litigated or waived.        The PCRA requires that, in order for a

petitioner to be eligible for relief, his or her claim cannot have been

“previously litigated or waived.”       42 Pa.C.S.A. § 9543(a)(3).   The PCRA

mandates 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 post-conviction proceeding.”        42 Pa.C.S.A. § 9544(b).     Our

supreme court has stated that “a PCRA petitioner’s waiver will only be

excused upon a demonstration of ineffectiveness of counsel in waiving the

issue.” Commonwealth v. Albrecht, 720 A.2d 693, 700 (Pa. 1998). An

issue has been previously litigated if, “the highest appellate court in which

[appellant] could have had review as a matter of right has ruled on the

merits of the issue[.]” 42 Pa.C.S.A. § 9544(a)(2).

         Here, appellant raised the issue on direct appeal; however, this court

found his issue was waived because appellant had failed to raise the issue




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with the trial court. See Thomas, No. 1412 MDA 2012 at *7. This court,

however, did note the following in an alternative holding:3

            Even if we did not deem this issue to be waived, we
            would deny relief. Prejudice is presumed in certain
            criminal contexts where a structural error occurs.
            See Arizone v. Fulminate, 499 U.S. 279, 310
            (1991) (defining a structural error as one “affecting
            the framework within which the trial proceeds, rather
            than simply an error in the trial process itself.”);
            Commonwealth v. Johnson, 600 Pa. 329, 966
            A.2d 523, 538 n.6 (2009) (recognizing that this
            Court has presumed prejudice where a constitutional
            error has caused a total failure in the relevant
            proceeding). These limited circumstances involving
            structural errors include the right to counsel, see
            Gideon v. Wainwright, 372 U.S. 335 (1963); the
            right to a unanimous jury verdict beyond a
            reasonable doubt, see Sullivan v. Louisiana, 508
            U.S. 275 (1993); and the right to represent one’s
            self, see McKaskle v. Wiggins, 465 U.S. 168
            (1984). The jury issue presented by Appellant does
            not implicate a structural error or a total failure in
            the relevant proceeding.

            Furthermore, the Pennsylvania Supreme Court has
            held that “one who claims that he has been denied a
            fair trial because of the pre-trial publicity must show
            actual prejudice in the empaneling of the jury.”
            Commonwealth v. Weiss, 565 Pa. 504, 776 A.2d
            958 ([2001]), cert. denied, 535 U.S. 1101 (2002).
            Accord, Carter by Carter v. U.S. Steel Corp., 529
            Pa. 409, 604 A.2d 1010 (1992) (relying on criminal
            cases to resolve a question of extraneous influence
            on a civil jury; “Once the existence of a potentially

3
  Alternative holdings are valid holdings that constitute the law of the case.
See Commonwealth v. Reed, 971 A.2d 1216, 1220 (Pa. 2009) (where the
Superior Court determined that Reed’s claims were waived, and also
determined that even if the claims had not been waived, they were without
merit, and explained the basis for its conclusions, the alternative holding
that Reed’s claim regarding the admission of prior bad acts testimony was
meritless was a valid holding that constituted the law of the case).


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            prejudicial extraneous influence has been established
            by competent testimony, the trial judge must assess
            the prejudicial effect of such influence.”). Because
            Appellant presents no evidence of extraneous
            influences and no evidence that the jury empaneled
            in this matter was actually prejudiced, he would not
            be entitled to relief.

Id. at *8 n.4.

      At no point does appellant allege that his failure to raise any due

process issues with the trial court was a result of ineffective assistance of

counsel. Therefore, appellant is not eligible for relief on this issue because

the matter has been previously litigated.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/25/2016




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