Com v. Brown, G. , 161 A.3d 960 ( 2017 )

J-S29035-17
2017 PA Super 133COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GREGORY BROWN :
:
Appellant : No. 3186 EDA 2015
Appeal from the PCRA Order October 2, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0802711-2005
BEFORE: LAZARUS, SOLANO, JJ., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED MAY 04, 2017
Appellant Gregory Brown appeals from the trial court’s order entered
in the Court of Common Pleas of Philadelphia County on October 2, 2015,
dismissing his first petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Following a careful review, we
affirm.
A panel of this Court previously set forth the relevant facts and
procedural history herein as follows:
Appellant’s conviction stems from his assault on 26 year-
old, Complainant [S.L.], in the early morning of October 31,
2004, at her apartment at 1051 E. Mount Airy Avenue in the city
and county of Philadelphia. Appellant lived with his girlfriend,
Tonya Feggens, in the same apartment building as Complainant,
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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and was Complainant’s drug supplier. At approximately 2 a.m.,
Complainant awoke to hear Appellant knocking on her door,
holding a vacuum cleaner in his hand. He told Complainant that
T[o]nya was getting evicted, and asked her whether she wanted
to buy the vacuum cleaner from him. When she said no,
Appellant told her she could have the vacuum, then asked her
how much for a hug, telling her it would be the last time he
would see her. Complainant opened the door partially to give
Appellant a hug, and he pushed the door open and closed it
behind him.
Appellant, at 6’ 2’’ and 280 pounds, pushed Complainant
(5’ 8’’, 110 pounds) to the floor and held her down with his
forearm. As she lay on her back, Appellant covered
Complainant’s mouth with his hand and started taking her
clothes off. Complainant was scared, and pleaded with Appellant
— telling him to stop, telling him she needed to take a shower,
and that she’d had an abortion – but he continued pulling her
clothes off until her pants and shorts were completely removed.
Appellant told her to “Shut up” and put his fingers in
Complainant’s vagina. He also attempted to put his penis in her
vagina, but could only put the tip in, because he was not erect.
Appellant was interrupted by his girlfriend banging on the front
door, then told Complainant “he would kill her if she said
anything,” and continued to try and penetrate her further with
his penis.
Appellant’s girlfriend returned to Complainant’s door
several times, and continued to bang on the door, and Appellant
took his penis out of Complainant’s vagina without ejaculating.
When Appellant got off of her, Complainant ran to the door and
told T[o]nya that Appellant had raped her. Complainant ran into
the laundry room across the hall, while Appellant left the
apartment. While Appellant was fighting with his girlfriend in the
hallway, Complainant ran back into her apartment, locked the
door, and called her aunt, [Michelle J.], and told her what
happened. Complainant called police, then called Michelle back,
and stayed on the phone with her until they arrived
approximately ten minutes later. Police officers Arthur Armstrong
and Megan Marks responded to the call, noting that when they
arrived Complainant was visibly upset, and wearing only a hip-
length t-shirt, naked from the waist down.
They took Complainant’s statement, and took pictures of
the scratches on her forearms and face, then transported her to
Episcopal Hospital, where she was given a rape kit, before giving
her statement to SVU detective Victoria Smith. Complainant was
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treated for light scratches on her face and arms, but there was
no bruising on her body. There was no hair or seminal fluid from
Appellant found on Complainant, and no DNA matching
Appellant’s was found in her vagina or cervix. Appellant was
arrested [in Georgia] pursuant to a warrant on June 28, 2005.
Trial Court Opinion, 1/28/08, at 1-3. During his direct
examination, Appellant testified that the victim consented to his
sexual conduct because she had agreed to give Appellant sex in
exchange for drugs. Appellant informed the jury that on at least
ten prior occasions, S.L. had performed sexual favors for him
and he had given her drugs in return.
Based on this evidence, Appellant was convicted of sexual
assault and acquitted of rape, burglary, and trespass. The
district attorney agreed to withdraw the charges of simple
assault, reckless endangerment, unlawful restraint, false
imprisonment, aggravated indecent assault, indecent assault,
and indecent exposure.
Based on his commission of a predicate offense, Appellant
was referred to the Sexual Offenders Assessment Board. The
Commonwealth filed notice of its intent to proceed under 42
Pa.C.S. § 9714,1 mandatory sentence for second or subsequent
offenses, based upon Appellant’s previous conviction of a crime
of violence. On January 11, 2007, after the court determined
that Appellant was not a sexually violent predator, Appellant was
sentenced in accordance with § 9714 to ten to twenty years
imprisonment. This timely appeal followed.
______
1
42 Pa.C.S.A. § 9714 (1) provides:
Any person who is convicted in any court of this Commonwealth
of a crime of violence shall, if at the time of the commission of
the current offense the person had previously been convicted of
a crime of violence, be sentenced to a minimum sentence of at
least ten years of total confinement, notwithstanding any other
provision of this title or other statute to the contrary.
Commonwealth v. Brown, No. 429 EDA 2007, unpublished memorandum
at 1-4 (Pa. Super. filed March 8, 2010).
On direct appeal, Appellant maintained he had been denied his
constitutional right to confront S.L. due to the trial court’s prohibiting him
from questioning S.L. regarding their prior, consensual sexual encounters on
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cross-examination. This Court ultimately affirmed Appellant’s judgment of
sentence. In doing so, we determined Appellant waived this issue because
defense counsel never had attempted to cross-examine S.L. about whether
she had agreed with Appellant to trade sexual favors for drugs and whether
the two had engaged in such transactions in the past. Id. 5 citing N.T. Trial,
4/24/06, at 144-77. Additionally, this Court found Appellant had waived this
claim for his failure to raise it in his Pa.R.A.P. 1925(b) statement. Instead,
Appellant confined his issues raised therein to matters concerning a potential
witness, Lonnie Crawford. Id. at 6. Our Supreme Court denied Appellant’s
petition for allowance of appeal. Commonwealth v. Brown, 608 Pa. 615,
8 A.3d 340 (2010).
Appellant filed a timely PCRA petition, pro se, on August 15, 2011.
Counsel was appointed and filed an amended petition on February 3, 2015,
and a Supplemental Amended Petition on July 15, 2015, raising various
claims of trial counsel’s ineffectiveness. After providing Appellant with notice
under Pa.R.CrimP. 907, the PCRA court dismissed Appellant’s petition
without an evidentiary hearing on October 2, 2015, upon finding the issues
presented therein lacked arguable merit. Appellant filed a timely notice of
Appeal on October 22, 2015.
In an Order entered on October 28, 2015, the PCRA court directed
Appellant to file a concise statement of the matters complained of on appeal
pursuant to Rule 1925(b), and Appellant filed the same on November 5,
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2015. In his brief, Appellant presents the following Statement of the
Questions Involved:
I. Whether the court erred in denying [ ] Appellant’s PCRA
petition without an evidentiary hearing on the issues raised
in the amended PCRA petition regarding trial counsel’s
ineffectiveness[?]
II. Whether the court erred in not granting relief on the PCRA
petition alleging counsel was ineffective?1
Brief for Appellant at 9.2
____________________________________________
1
We note Appellant’s brief is in violation of Pa.R.A.P. 2119(a), which
provides that “[t]he argument shall be divided into as many parts as there
are questions to be argued,” in that it is not divided into sections that
correlate with the questions presented. While the Statement of the
Questions Presented consists of two issues, the Argument portion of the
brief contains Section I entitled “The PCRA Court Erred in Denying
Appellant’s PCRA Petition Without An Evidentiary Hearing,” and Section II
entitled “The PCRA Court Was In Error In Not Granting Relief On The Issue
That Counsel Was Ineffective” under which are subsections A-D. Appellant
introduces a distinct question for review in each subsection of Section II.
2
The Commonwealth did not comply with our January 3, 2017, per curiam
Order which granted it a second extension of time in which to file an
appellate brief with a due date of February 27, 2017. The Order specifically
stated that no further extensions would be granted absent extraordinary
circumstances. Notwithstanding, the Commonwealth sought a third
extension of time in which to file a brief on February 27, 2017. We denied
the same in a per curiam Order filed on February 28, 2017. The
Commonwealth did not file its appellate brief until April 10, 2017. As it filed
its brief at this late juncture, we will not consider it in reaching our decision.
See Commonwealth v. Tisdale, 100 A.3d 216, 217, n. 4 (Pa.Super. 2014)
(arguments advanced in untimely Commonwealth brief will not be
considered). We disapprove of the Commonwealth’s flouting our January 3,
2017, Order.
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In PCRA proceedings, this Court’s scope of review is limited by the
PCRA's parameters. Since most PCRA appeals involve mixed questions of
fact and law, the standard of review we apply is whether the PCRA court's
findings are supported by the record and free of legal error.
Commonwealth v. Pitts, 603 Pa. at 1, 7, 981 A.2d 875, 878 (2009).
Pursuant to Rule 907, a PCRA court has discretion to dismiss a
PCRA petition without a hearing if the court is satisfied that there
are no genuine issues concerning any material fact; that the
defendant is not entitled to post-conviction collateral relief; and
that no legitimate purpose would be served by further
proceedings. Pa.R.Crim.P. 907(1); Commonwealth v. Roney,
622 Pa. 1, 79 A.3d 595, 604 (2013).
Commonwealth v. Burton, 2017 WL 1149203, at *2 n. 4 (Pa. Mar. 28,
2017).
Counsel is presumed effective, and an appellant has the burden of
proving otherwise. See Commonwealth v. Pond, 846 A.2d 699, 708
(Pa.Super. 2004). “In order for Appellant to prevail on a claim of ineffective
assistance of counsel, he must show, by a preponderance of the evidence,
ineffective assistance of counsel which ... so undermined the truth-
determining process that no reliable adjudication of guilt or innocence could
have taken place.” Commonwealth v. Johnson, 868 A.2d 1278, 1281
(Pa.Super. 2005) (citation omitted).
To prevail on his ineffectiveness claims, Appellant must plead
and prove by a preponderance of the evidence that (1): the
underlying legal claim has arguable merit; (2) counsel had no
reasonable basis for his action or inaction; and (3) Appellant
suffered prejudice because of counsel's action or inaction. With
regard to the [reasonable basis] prong, we will conclude that
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counsel's chosen strategy lacked a reasonable basis only if
Appellant proves that an alternative not chosen offered a
potential for success substantially greater than the course
actually pursued. To establish the [prejudice] prong, Appellant
must show that there is a reasonable probability that the
outcome of the proceedings would have been different but for
counsel's action or inaction.
Commonwealth v. Spotz, 610 Pa. 17, 44-45, 18 A.3d 244, 260 (2011)
(internal quotation marks and citations omitted).
Appellant initially claims the PCRA court erred in dismissing his petition
without an evidentiary hearing. As shall be discussed infra, Appellant has
presented no issues of material fact; therefore, no further purpose would
have been served had the PCRA court held an evidentiary hearing, because
Appellant is not entitled to post conviction collateral relief. Accordingly, the
PCRA court properly dismissed Appellant’s PCRA petition without a hearing.
Burton, supra.
Appellant next avers trial counsel had been ineffective for failing to
cross-examine S.L. regarding her alleged past sexual conduct with Appellant
where he had presented a consent defense at trial. When considering this
claim in its Rule 1925(a) Opinion, the PCRA court reasoned that little was to
be gained by such questioning:
Rather than pursuing a fruitless attempt to confront the victim
with something she surely would have denied, trial counsel
chose instead to attack the victim’s credibility by effectively
bringing out inconsistencies in her memory of the event as well
as the fact that she had repeatedly lied about being on drugs on
the evening of the assault. In doing so, trial counsel called into
questions [sic] the veracity of the victim’s testimony and
undermined her ability to recall the assault. Thus, trial counsel
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cannot be deemed to have acted unreasonably in choosing not to
confront the victim on the unfounded allegation that she had a
history of exchanging sex for drugs with [] Appellant. For this
reason alone Appellant’s claim fails.
Trial Court Opinion, filed 7/15/16, at 6 (citations omitted). The PCRA court
proceeded to find Appellant also failed to establish the prejudice prong of the
ineffectiveness test. The court reasoned that even if the jury deemed
testimony that Appellant routinely had traded sex with S.L. for drugs to be
credible, such statements could not disprove that Appellant raped S.L. on
October 31, 2014, especially in light of testimonial and physical evidence
that S.L. bore marks on her body and face consistent with her report of the
attack. Id. at 6-7 citing N.T., 4/24/06, at 228-29.
In response, Appellant generally avers that if S.L. had denied having
had a sexual history with him, arguable merit still existed as to whether trial
counsel’s failure to cross-examine her regarding her past sexual conduct
adversely affected the outcome of his case. Brief for Appellant at 19. While
Appellant acknowledges trial counsel “had already called into the question
the credibility of [S.L.]” Appellant baldly concludes counsel should have
questioned her further regarding her sexual history, because “the
confrontation of the sexual history between [S.L.] and [ ] [Appellant] is
crucial when establishing a consent defense.” Id. Appellant concludes that
he “suffered prejudice for trial attorney’s failure to confront the sexual
history of the complainant and Appellant,” and that “[a] different verdict of
the jury would have likely resulted” had he done so. Id. at 19-20.
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While we question the propriety of the trial court’s speculating as to
whether S.L. would have denied any sexual arrangement with Appellant on
cross-examination, we find it did not err in finding no merit to Appellant’s
claim. Appellant has presented only general allegations to support his
assertions of trial counsel’s ineffectiveness in this regard and in doing so
ignores the fact that defense counsel otherwise challenged S.L.’s credibility
repeatedly at trial.
On direct examination S.L. conceded Appellant had supplied her with
cocaine, which she used recreationally, and claimed that prior to October 31,
2004, she had not purchased drugs from Appellant for over six months.
N.T., 4/24/06, at 105-106. Yet, S.L. admitted on cross-examination that
she had injected cocaine that evening, although she told police that no drugs
had been involved and she had no relationship with Appellant prior to that
time. Id. at 162-63, 175. S.L. also admitted she did not scream or
otherwise attempt to forcibly stop Appellant from touching her and that her
clothing bore no rips or tears. Id. at 159-160. S.L. acknowledged she had
committed perjury during her preliminary hearing when she denied knowing
Appellant. Id. at 167-168.
In addition, Appellant testified in his own defense and stated that he
routinely had provided the victim with drugs in exchange for sex. N.T.,
4/25/06, at 23-30. Appellant further explained that on the night in question,
he had agreed to provide S.L. with an amount of cocaine worth forty dollars
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in exchange for sex. Id. As S.L. had not been cross-examined about such
an arrangement, Appellant’s testimony remained uncontradicted and
supported his position that he was “being tried on the word of a liar,”
because there was no rape or burglary. See N.T. Trial, 4/24/06, at 92-95.
Trial Counsel will not be deemed ineffective for pursuing a particular trial
strategy so long as the chosen course was reasonable. Commonwealth v.
Rivers , 567 Pa. 239, 786 A.2d 923, 930 (2001).
Moreover, Appellant has failed to prove he was prejudiced by counsel’s
tactics. The crux of Appellant’s argument is that had trial counsel
established through cross-examination of S.L. that she routinely had had
sexual relations with Appellant in the past in exchange for drugs, the jury
likely would have concluded that the encounter at issue herein, too, had
been consensual. However, had S.L. admitted she exchanged sex for drugs
with Appellant in the past, her admission would have provided little
additional insight into the specific events surrounding the sexual offenses for
which Appellant was on trial, especially in light of his own testimony that the
two had, in fact, entered into a similar agreement on October 31, 2004. In
fact, even had trial counsel questioned S.L. about prior sexual encounters
with Appellant, the Commonwealth presented ample evidence that the
incident on October 31, 2004, had not been consensual.
Michelle J., S.L.’s aunt, testified S.L. called her crying and distraught
immediately following the incident at which time she revealed Appellant had
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just forced his way into her apartment and raped her. Michelle J. never had
received such a call from S.L. in the past, which prompted her to instruct her
niece to call the police. N.T. Trial, 4/24/06, at 190-95. Officer Arthur
Anderson testified that when he arrived at S.L.’s home in response to a radio
call, S.L. was “disturbed,” crying and shaking and indicated she had been
raped. Id., at 199-201. Detective Victoria Smith stated that when she
interviewed S.L. at the Special Victim’s Unit that evening, she observed
scratches on S.L.’s neck, face and right arm. Id., at 233-34. Physical
evidence in the form of medical records and photographs of S.L.’s injuries
presented at trial bolstered this testimony. Id. at 236-38.
Aside from the cursory conclusion that trial counsel’s failure to cross-
examine S.L. regarding her past sexual contact with Appellant “adversely
affected the outcome of the case,” and a bald citation to Commonwealth v.
Paolello, ___ Pa. ____, 665 A.2d 439 (1995),3 Appellant has not developed
an argument that counsel had no reasonable basis not to engage in that line
of questioning or that there was a reasonable probability that, but for
counsel's alleged unprofessional error the result of the proceedings would
have been different. See Appellant’s Brief at 18-19. Therefore, Appellant
has failed to establish any of the three prongs necessary to prove an
ineffectiveness claim. See Spotz, supra.____________________________________________
3
Therein, our Supreme Court discussed various claims of ineffectiveness of
trial counsel. See id. at 75-79, 665 A.2d at 454-55.
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Appellant next argues that trial counsel had been ineffective for failing
to present two witnesses, Lonnie Crawford and Tonya Feggens, at trial.
“To be entitled to relief on a claim of ineffectiveness for
failure to call a witness, [an] appellant must demonstrate [that]:
the witness existed, was available, and willing to cooperate;
counsel knew or should have known of the witness; and the
absence of the witness's testimony prejudiced [the] appellant.”
Commonwealth v. Birdsong, 611 Pa. 203, 24 A.3d 319, 334
(2011) (citing Commonwealth v. Fletcher, 561 Pa. 266, 750
A.2d 261, 275 (2000)). A PCRA petitioner cannot succeed on
such a claim if the proposed witness' testimony “would not have
materially aided him. In such a case, the underlying-merit and
prejudice prongs of the [ineffective assistance of counsel] test
logically overlap.” Commonwealth v. Baumhammers, 625 Pa.
354, 92 A.3d 708, 725 (2014). “To show prejudice, the
petitioner must demonstrate that there is a reasonable
probability that, but for counsel's allegedly unprofessional
conduct, the result of the proceedings would have been different.
A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. (citing Commonwealth v.
Gibson, 597 Pa. 402, 951 A.2d 1110, 1120 (2008)).
Commonwealth v. Johnson, ___ Pa. ____, 139 A.3d 1257, 1284 (2016).
Herein, Appellant failed to provide the PCRA court with affidavits or
certifications from either Mr. Crawford or Ms. Feggens stating that he or she
had been willing and available to testify on his behalf at trial and describing
the proffered testimony. Upon this basis alone, the PCRA court could have
rejecting Appellant’s claim without holding an evidentiary hearing. See
Commonwealth v. Khalil, 806 A.2d 415, 422-23 (Pa.Super. 2002)
(holding trial counsel not ineffective for failing to call alleged witness where
Appellant failed to provide affidavits indicating the putative witness’s
availability and willingness to testify on appellant’s behalf).
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Importantly, the record establishes defense counsel and the
Commonwealth did attempt to present Mr. Crawford and Ms. Feggens at
trial, to no avail. N.T. Trial, 4/20/06, at 14, 21-24; 4/24/06, at 8, 25-47,
253-57). In fact, Appellant admits defense counsel had sought a
continuance to investigate and subpoena Mr. Crawford as a witness, but the
trial court denied the same. In light of Appellant’s failure to show Mr.
Crawford and Ms. Feggens were willing and available to testify on his behalf
at trial, this claim must fail. Commonwealth v. Johnson, 815 A.2d 563,
579 (Pa.Super. 2002).
Appellant further avers that due to trial counsel’s ineffectiveness, the
sentencing court calculated his criminal history and sentenced him
incorrectly. Specifically, Appellant reasons that trial counsel should have
informed the court that a prior burglary conviction did not constitute a
“crime of violence” under the mandatory minimum sentencing statute for
second and subsequent offenses. Appellant adds that counsel should have
asked the sentencing court to have his time of incarceration commence from
the date of his arrest on June 3, 2005, and not from June 28, 2005, the date
upon which he was extradited to Philadelphia. Brief for Appellant at 22.
A sentencing court is required to impose a minimum prison sentence
of at least ten years where a defendant has been convicted of a second
“crime of violence.” 42 Pa.C.S.A. § 9714. The term “crime of violence” is
defined in the statute as including, inter alia, rape, sexual assault, and
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certain types of Burglaries. 42 Pa.C.S.A. § 9714(g). A burglary is considered
a crime of violence where the premises have been adapted for overnight
accommodation and a person was present. Id. citing 18 Pa.C.S.A. §
3502(a)(1).
In setting forth his argument, Appellant references his Supplemental
Amended PCRA Petition wherein he indicated he presented evidence that no
one had been present when he burglarized a deli in 1991 and allegedly
attached the court summary, complaint, bill of information and sentencing
transcripts of 9/30/91 thereto and labeled them “Appendix A.” Brief for
Appellant at 23. However, our attempt to review the attached documents
was futile, for the copies of all but the court summary are either partially or
totally illegible. In fact, the purported copy of the Transcript from the
preliminary hearing consists of nothing more than blank pages with
intermittent ink smudges. Our law is unequivocal that an appellant bears the
responsibility to ensure that the record certified on appeal is complete in the
sense that it contains all of the materials necessary for the reviewing court
to perform its duty. Commonwealth v. B.D.G., 959 A.2d 362, 372
(Pa.Super. 2008). Therefore, “we can only repeat the well established
principle that ‘our review is limited to those facts which are contained in the
certified record’ and what is not contained in the certified record ‘does not
exist for purposes of our review.’” Id. (citation omitted).
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Deprived as we are of the documents essential to a meaningful review
of Appellant’s sentencing claim, we could find this issue to be waived;
however we decline to do so as the PCRA court observed that in his
supplemental petition “Appellant did present some old court documents that
showed that no one was present at the deli he burglarized.” Trial Court
Opinion, filed 7/15/16, at 9. Notwithstanding, in setting forth his argument,
Appellant disregards that during his voir dire hearing held on April 20, 2006,
it was revealed that in addition to his prior burglary conviction, he had a
prior rape conviction which itself constituted a crime of violence. N.T. Voir
Dire, 4/20/06, at 8-9. Defense counsel reiterated the Commonwealth had
offered Appellant eight (8) years to sixteen (16) years in prison. Counsel
informed Appellant that were he convicted of the charges in the instant
matter, in light of his prior convictions, he was subject to a minimum prison
term sentence of ten (10) years to twenty (20) years and possibly a twenty-
five (25) years to life in prison sentence if his prior robbery conviction were
to constitute a crime of violence, in which case a conviction in the instant
matter would constitute a third strike. Id. at 9-10. Defense counsel further
clarified that Appellant understood “the prior rape would be the strike one.”
Id. at 10-11.
At Appellant’s sentencing hearing, the prosecutor informed the
sentencing court Appellant had a prior conviction for burglary and in
response to the sentencing court’s query indicated that someone had been
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present. The sentencing court concluded Appellant’s conviction herein,
therefore, constituted a second conviction for a crime of violence and
imposed the mandatory minimum sentence of ten (10) years’ to twenty (20)
years’ incarceration. N.T. Sentencing, 1/11/07, at 19. The sentencing court
stated that even were it not required to sentence in accordance with the
second strike statute “[it] would probably give him ten to twenty. Look, it
was egregious [referencing Appellant’s assault on S.L.].” N.T. Sentencing,
1/11/07, at 14. Although given an opportunity to speak to the sentencing
court, Appellant did not challenge the prosecutor’s representation, and
simply claims herein he “told” defense counsel to relay contradictory
information, although counsel inexplicably chose to say nothing.
In light of the foregoing, even if Appellant’s unsubstantiated claim he
had informed trial counsel at the time of sentencing that no one was present
during the prior burglary and that the premises were not adapted for
overnight accommodation were deemed to be true, the mandatory minimum
sentence still applied in light of his prior rape conviction. Therefore,
Appellant has failed to prove he was prejudiced by counsel’s alleged failure
to inform the sentencing court of the specific nature of his prior burglary
conviction.
Appellant also avers in a single sentence that trial counsel was
ineffective for failing to ensure his time of incarceration commenced at the
date of his arrest, not the date of his extraction to Philadelphia. Brief for
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Appellant at 22. However, Appellant's failure to properly develop this claim
and to set forth applicable case law to advance it in the argument portion of
his brief renders this issue waived. 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).4
Appellant devotes a half-page argument to the development of his
final issue that appellate counsel had been ineffective for failing to raise on
direct appeal in a Rule 1925(b) statement that the trial court improperly
precluded him from cross-examining S.L. regarding her prior sexual
encounters with Appellant. Brief of Appellant at 24. Appellant has failed to
properly develop this claim. Ellis, supra. Notwithstanding, even if appellate
counsel had included this issue in a Rule 1925(b) statement, this Court
would have been unable to review it since, as stated previously, trial counsel
did not cross-examine S.L. concerning her alleged agreement to trade sex
for drugs with Appellant, and there had been no trial court ruling concerning
____________________________________________
4
We note that at both the voir dire and sentencing hearings, the trial court
and sentencing court, respectively, stated Appellant would receive credit for
the time he had served in prison while in custody, and the Commonwealth
did not dispute that Appellant was entitled to receive such a credit. See
N.T. Voir Dire, 11/20/06, at 9; N.T. Sentencing, 1/11/07, at 19.
Accordingly, even if properly developed, this claim of ineffective assistance
of counsel would fail.
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the alleged sexual history between the two. Trial Court Opinion, filed
7/15/16, at 10. Therefore, we conclude this claim is meritless.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/4/2017
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