Com. v. Minor, R. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 MINOR :
:
Appellant : No. 3009 EDA 2016
Appeal from the PCRA Order August 26, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003269-2009
BEFORE: BOWES, J., LAZARUS, J., and RANSOM, J.
MEMORANDUM BY BOWES, J.: FILED APRIL 20, 2018
Robert Minor appeals pro se from the order denying his first PCRA
petition. We affirm.
On September 15, 2011, a jury convicted Appellant of murder in the
third degree, conspiracy, possessing an instrument of crime (“PIC”), and
carrying a firearm without a license. The convictions stemmed from the
February 2008 shooting death of Daunte Hart near the 3000 block of Berks
Street in Philadelphia. Appellant and two cohorts got in an altercation with
the victim, and the quarrel quickly escalated to a shootout. The victim
sustained five gunshot wounds, one of which severed his spinal cord and
penetrated his heart. As it relates to the issue on appeal, during the
ensuing murder trial, Sam P. Gulino, M.D., the Chief Medical Examiner for
Philadelphia, testified about an autopsy report prepared by his then-
assistant, Ian Hood, M.D., who performed the autopsy on the victim.
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On January 3, 2012, the trial court imposed an aggregate term of
thirty-two and one-half to sixty-five years in prison.1 In the ensuing appeal,
Appellant challenged, inter alia, the sufficiency and weight of the evidence
supporting the murder and conspiracy convictions. We affirmed the
judgment of sentence on July 29, 2013, and our Supreme Court denied
allowance of appeal on January 29, 2014. Commonwealth v. Minor, 82
A.3d 1081 (Pa.Super. 2013) (unpublished memorandum), appeal denied, 85
A.3d 483 (Pa. 2014).
On December 17, 2014, Appellant filed a pro se PCRA petition that
raised a generic claim of ineffective assistance of trial counsel and asserted
that the court imposed a sentence that exceeded the lawful maximum.
Before the PCRA court appointed counsel, Appellant filed an amended
petition that honed his ineffective assistance claim to assail counsel for
failing to challenge the validity of the conspiracy conviction. He also
challenged the propriety of grading the homicide as a third-degree murder
when the indictment listed a non-specific homicide. PCRA counsel was
appointed, but on May 13, 2016, he filed a petition to withdraw and a no-
merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.
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1 The sentence was imposed consecutively to an aggregate term of seven
and one-half to fifteen years imprisonment that the court imposed on the
same date for three unrelated firearm convictions at CP-51-CR-0011780-
2008. Thus, the total term of confinement for both criminal dockets was
forty to eighty years.
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1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en
banc) .
The PCRA Court issued notice pursuant to Pa.R.A.P. 907 of its intention
to dismiss the petition without a hearing. In response, Appellant raised a
fresh claim that trial counsel was ineffective for neglecting to challenge Dr.
Gulino’s competency to testify about the autopsy report that he did not
prepare. Framing this issue under the rubric of the Confrontation Clause to
the United States Constitution, Appellant contended that trial counsel
provided ineffective assistance in failing to object to Dr. Gulino’s testimony
and in neglecting to demand that the Commonwealth present Dr. Hood for
cross-examination.
PCRA counsel countered Appellant’s new allegation with a
supplemental no-merit letter that explained why it lacked arguable merit.
That is, counsel highlighted that (1) Dr. Gulino testified as to his own opinion
of the autopsy report and was available to be confronted about the opinion
he proffered; and (2) Appellant failed to assert, much less establish, how
counsel’s purported failure to object to Dr. Gulino’s testimony was
prejudicial, i.e., that it would have changed the outcome of the trial.
On August 26, 2016, the PCRA court dismissed Appellant’s petition due
to lack of merit and granted counsel leave to withdraw. This timely appeal
followed. The PCRA court declined to order Appellant to file a concise
statement of errors complained of on appeal. On March 10, 2017, the court
filed its Rule 1925(a) opinion.
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Appellant presents four questions for our review:
1. Was Appellant’s Sixth Amendment [right under the]
(Confrontation Clause). . . violated?
2. Was trial counsel ineffective?
3. Was Appellant[’s] sentence legal?
4. How is the Appellant the sole defendant an[d] still charged
with conspiracy[?]
Appellant’s brief at unnumbered 6.2
Our scope and standard of review of decisions denying PCRA relief is
limited to examining whether the PCRA court’s findings of fact are supported
by the record, and whether its legal conclusions are free from error.
Commonwealth v. Chmiel, 173 A.3d 617, 624 (Pa. 2017). We review
questions of law de novo. Id. at 625.
At the outset, we observe that all of Appellant’s arguments are either
waived or abandoned. Importantly, Appellant did not couch his first issue in
terms of ineffective assistance of counsel. While Appellant challenged
counsel’s stewardship regarding confrontation in the PCRA court, he
neglected to assert that ineffective assistance claim in his appellate brief.
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2 In his reply brief, Appellant attempts to level an additional claim of
ineffective assistance in relation to counsel’s failure to object to the trial
court’s jury instruction regarding causation. As the claim was not asserted
before the PCRA court, it is waived. Pa.R.A.P. 302(a); Commonwealth v.
Edmiston, 851 A.2d 883, 889 (Pa. 2004) (“Claims not raised in the PCRA
court are waived and cannot be raised for the first time on appeal to this
Court.”).
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Instead, he argued the merits of the underlying contention that the trial
court violated his Confrontation Clause rights. However, that specific claim
is waived pursuant to both Pa.R.A.P. 302(a) and 42 Pa.C.S. § 9543(a)(3).
Rule 302(a) provides, “Issues not raised in the lower court are waived
and cannot be raised for the first time on appeal.” As Appellant neglected to
assert trial court error before the PCRA court, it is waived. For similar
reasons, Appellant’s argument is thwarted by § 9543(a)(3), which requires a
PCRA petitioner to plead and prove that the claim has not been previously
litigated or waived. Instantly, Appellant could have asserted trial court error
on direct appeal, but he did not. Accordingly, Appellant cannot satisfy the
threshold eligibility requirements outlined in § 9543.
The second, third, and fourth claims listed in Appellant’s statement of
questions presented are abandoned because he failed to develop them in his
appellate brief. It is well settled that, “where 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.” In re W.H., 25 A.3d 330, 339 n.3 (Pa.Super. 2011)
(quoting In re A.C., 991 A.2d 884, 897 (Pa.Super. 2010)); see e.g.,
Commonwealth v. Bullock, 948 A.2d 818, 823 (Pa.Super. 2008) (“As
Appellant has not developed a weight of the evidence claim in his brief, he
has abandoned the same”). Since Appellant’s brief is utterly devoid of any
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discussion relating to the stated issues, we are precluded from reviewing
them on appeal.3
As it relates to the ineffective assistance claim, Appellant attempted to
rectify some of the foregoing flaws in a reply brief. However, those efforts
were also defective. Even ignoring the fact that Appellant’s corrective tactics
flouted the requirement under Pa.R.A.P. 2113 that a reply brief is limited to
“matters raised by appellee’s brief,” Appellant’s revisions still failed to
present a lucid argument that trial counsel provided ineffective assistance.
While the reply brief clearly alleged that trial counsel was ineffective for
“failing to object to the testimony of Dr. Gulino about an autopsy that he did
not perform,” Appellant failed to frame the issue under the rubric of an
ineffective assistance of counsel claim. See Appellant’s reply brief at
unnumbered 9. Indeed, he neglected even to set forth the legal framework
necessary to attain relief. See e.g., Commonwealth v. Pierce, 527 A.2d
973 (Pa. 1987) (outlining three-prong test required to prevail on an
ineffectiveness claim: (1) arguable merit; (2) absence of reasonable trial
strategy; and (3) prejudice). Again, the failure to develop a legal argument
with citation to relevant authority is fatal. In re W.H., supra at 339 n.3.
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3 In light of the fact that we may address the legality of sentence sua
sponte, we review Appellant’s sentence and confirm that the thirty-two-and-
one-half to sixty-five year sentence imposed at CP-51-CR-0003269-2009 is
legal. The sentence is an aggregation of the statutory maximum terms of
imprisonment for third-degree murder, criminal conspiracy to commit
homicide, and PIC. See 18 Pa.C.S. §§ 1102(d); 1103(3); and 1104(1).
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As Appellant failed to present any meaningful legal argument in support of
his contention that trial counsel provided ineffective assistance, the issue is
waived.
As all of the issues that Appellant presented on appeal are either
abandoned or waived, we affirm the PCRA court’s order denying his petition
for post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/20/18
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