Com. v. Harris, M.

• Court: Superior Court of Pennsylvania
• Decided: October 23, 2019
• Docket: 2263 EDA 2018
• Status: Unpublished

Opinion

J-S49033-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MARK HARRIS : : Appellant : No. 2263 EDA 2018

Appeal from the PCRA Order Entered June 29, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0003255-2008

BEFORE: BENDER, P.J.E., STABILE, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 23, 2019

Appellant Mark Harris appeals from the Order entered in the Court of

Common Pleas of Philadelphia County on June 29, 2018, denying his petition

filed pursuant to the Post Conviction Relief Act (“PCRA”).1 After review, we

affirm.

A detailed recitation of the facts and procedural history herein is not

necessary for our disposition. Notwithstanding, the PCRA court aptly detailed

the factual background and procedural history in its Opinion filed pursuant to

Pa.R.A.P. 1925(a), which we incorporate herein by reference. See PCRA Court

Opinion, filed 12/18/18, at 1-7.

____________________________________________

* Former Justice specially assigned to the Superior Court. 1 42 Pa.C.S.A. §§ 9541-9546. J-S49033-19

On August 15, 2012, this Court affirmed Appellant’s judgment of

sentence. Commonwealth v. Harris, 60 A.3d 527 (Pa.Super. 2012) (Table).

Appellant filed a petition for allowance of appeal with the Pennsylvania

Supreme Court, and the same was denied on April 17, 2013.

Commonwealth v. Harris, 619 Pa. 713, 64 A.3d 630 (2013) (Table).

Appellant presents a single issue for our review in the Statement of

Questions Presented portion of his appellate brief:

1. Did the prosecution’s failure to disclose the identity of the gun’s true owner, amount to a Brady[2] Violation?

Brief for Appellant at 5. Appellant also includes an ineffective assistance of

counsel challenge in the argument portion of his brief. See Brief for Appellant

at 14-16.

Initially, we note appellate briefs must conform materially to the briefing

requirements set forth in the Pennsylvania Rules of Appellate Procedure.

Pursuant to Pa.R.A.P. 2101, when a party's brief fails to conform to the rules

of appellate procedure and the defects therein are substantial, an appellate

court may, in its discretion, quash or dismiss the appeal. Rule 2111 provides

specific guidelines regarding the content of an appellant's brief. See Pa.R.A.P.

2111 (setting forth general contents of appellant's brief).

Herein, we deem Appellant’s issue waived for several reasons. First, his

brief does not comply with Pa.R.A.P. 2119(a). Rule 2119(a) sets forth that

2 Full cite and summary of Brady v. Maryland, 373 U.S. 83 (1963).

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“[t]he argument 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).

In the case sub judice, Appellant does not divide his argument into as

many parts as there are questions to be argued, for he lists just one question

but includes a distinct ineffective assistance of counsel argument at the end

of his brief. In addition, the argument Appellant supplies in support of his

alleged Brady violation contains two sub-parts which collectively string

together bald allegations of Brady and due process violations; prosecutorial

and procedural police misconduct; a warrantless search and seizure of

Appellant and his vehicle; and a challenge to the weight of the evidence to

sustain his convictions. Brief at 10-14. For example, Appellant avers that this

claim illustrates “an inconsistent verdict and one that went against the weight

of the evidence,” and that “[t]he Brady violation in this case, dovetailed to a

denial of due process on behalf of [Appellant].” Brief for Appellant at 9. As a

result, we find this claim to be waived. See Commonwealth v. Hakala, 900

A.2d 404, 407 (Pa.Super. 2006) (“Because [the appellant] fails to offer either

analysis or case citation in support of the relief he seeks, we deem all of his

questions waived.”).

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Moreover, Appellant’s argument section largely rehashes what occurred

below in the trial court. He includes little citation to caselaw or any meaningful,

coherent analysis to support his request for post-conviction relief.

Furthermore, Appellant attempts to relitigate issues he could have presented,

and which this Court, in fact, denied on direct appeal in 2012. “Generally

speaking, any claim deriving from an event at trial could have been challenged

at trial and raised on direct appeal. To the extent such a claim was not raised

at trial, it is waived under the PCRA, unless an exception applies.”

Commonwealth v. Blakeney, 108 A.3d 739, 749 (2014). Appellant has

neither pled nor attempted to prove such an exception.

Appellant next purports to establish an ineffective assistance of counsel

claim. It is well-established that counsel 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.”

Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012) (citation omitted).

“To prevail on an [ineffectiveness] claim, a PCRA petitioner 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 acting or failing

to act; and (3) the petitioner suffered resulting prejudice.” Commonwealth

v. Reyes-Rodriguez, 111 A.3d 775, 780 (Pa.Super. 2015) (en banc). “A

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petitioner must prove all three factors of the ‘Pierce[3] test,’ or the claim fails.”

Id. Put differently, “[t]he burden of proving ineffectiveness rests with

Appellant.” Commonwealth v. Chmiel, 889 A.2d 501, 540 (Pa. 2005).

Other than citations to general principles of law pertaining to ineffective

assistance of counsel, see Brief for Appellant at 14-15, Appellant presents

little argument to support a challenge to trial counsel’s effectiveness herein.

Indeed, his entire argument in this regard is as follows:

The decision of trial counsel was ineffective for failing to call and investigate Officer Terry. There was an absence of registration, incorrect testimony regarding to whom the gun was registered. It was not merely a decision of trial strategy to not investigate Officer Terry, rather it was ineffective assistance as such testimony would have assisted the finder of fact in making a decision based on the weight of the evidence.

Brief for Appellant at 16. We find Appellant’s bald assertions fail to satisfy the

three prongs of the Pierce test.

Moreover, as the PCRA court notes, Appellant has failed to identify how

the testimony of Officer Terry would have been “exculpatory” or otherwise

show how trial counsel’s alleged omission could have been prejudicial. PCRA

Court Opinion, filed 12/18/18, at 9. Therefore, counsel’s action could not have

been ineffective.

In light of the foregoing, we determine that Appellant has waived his

issues and affirm the Order of the PCRA court.

3 Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).

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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/23/19

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