J-S65038-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
ERIC KASHKASHIAN,
Appellant No. 933 EDA 2014
Appeal from the PCRA Order March 14, 2014 in the Court of Common Pleas of Bucks County Criminal Division at No.: CP-09-CR-0004153-2001
BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED DECEMBER 05, 2014
Appellant, Eric Kashkashian, appeals from the order of March 14,
2014, which dismissed, following a hearing, his first, counseled petition
brought under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-
9546. We affirm.
We take the underlying facts and procedural history in this matter
from the PCRA court’s April 24, 2014 opinion.
On June 11, 2011, [Appellant] was arrested and charged with two counts of Aggravated Assault, 18 Pa.C.S.[A.] § 2702(a)(3), one count of Disarming Law Officer, 18 Pa.C.S.[A.] § 5104.1(a)(1), one count of Resisting Arrest or Other Law Enforcement, 18 Pa.C.S.[A.] § 5104(a), one count of Disorderly Conduct — Engages in Fighting, 18 Pa.C.S.[A.] § 5503(a)(1),
____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-S65038-14
and one count of Disorderly Conduct — Creates a Hazardous or Physically Offensive Condition, 18 Pa.C.S.[A.] § 5503(a)(4).
* * *
On the evening of June 12, 2011, Sergeant Michael Jones and Officers Frederick Williamson and Ryan Hand of the Upper Southampton Township Police Department responded to [Appellant’s] residence at 1330 Stephan Way in Upper Southampton Township, Bucks County, Pennsylvania, after receiving a 911 emergency call from there. Upon arrival, they observed that the house was completely dark and heard “very high pitched and shrill” screaming from inside. They heard [Appellant] screaming, “help, they’re going to shoot me,” and after entering the house, they observed [Appellant] “on his hands and knees in the kitchen, screaming” and a screwdriver, cellphone and a razor knife laying in front of him.
When [Appellant] failed to obey orders to back away from the screwdriver and cutter, Sergeant Jones warned [Appellant] and then deployed a Taser weapon, utilizing the “drive stun method” on him. The five[-]second Taser burst appeared to have no effect on [Appellant], who then stood up and engaged in a violent physical struggle with the police officers attempting to handcuff him. During this struggle [Appellant] bit Officer Williamson’s finger, Officer Hand applied his Taser to [Appellant] with no apparent effect, and Sergeant Jones’ activated Taser became separated from him in the melee, shocking him and Officer Williamson. [Appellant] then escaped from the three officers and as he ran out of the house, he was again Tasered in his back by Officer Williamson, once again with no apparent effect. [Appellant] ran down the street, but he was subsequently subdued and handcuffed on the ground, still kicking and screaming. [Appellant] was then transported to Doylestown Hospital.
[Appellant], testifying on his own behalf, admitted calling 911, explaining that he had been “scared” because he found a “footprint and blood on the floor” and wanted the FBI and CIA to investigate. He disputed the officers’ testimony that he had been screaming, describing it instead as “more or less yelling, trying to make sure my voice goes through a radius of a 2-foot range between my mouth and the cell phone speaker.” [Appellant] admitted having prior encounters with the police and
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stated he did not comply with the officers this time because he “didn’t know they wanted to arrest me.” He did not recall stating to the police “I’m going to kick your ass. I’m going to kick the shit out of you,” and he denied taking “haymaker” punches at the officers.
(PCRA Court Opinion, 4/24/14, at 1-3) (record citations omitted).
Following a February 2012 jury trial, the jury found Appellant guilty of
two counts of aggravated assault and disorderly conduct, and one count of
resisting arrest. The jury found Appellant not guilty of disarming a law
officer. On May 3, 2012, the trial court sentenced Appellant to an aggregate
term of seven years of probation. The trial court also ordered Appellant to
pay restitution, the costs of prosecution, and to undergo a mental health
evaluation.1 Appellant did not file a direct appeal.
On February 21, 2013, Appellant filed the instant, timely PCRA
petition. The PCRA court appointed counsel on April 11, 2013. Counsel filed
an amended PCRA petition on Appellant’s behalf on March 5, 2014. A PCRA
hearing took place on March 14, 2014. The PCRA Court described the
testimony at the hearing as follows:
[Appellant’s] PCRA defense counsel initially presented Jeffrey Drebes, who testified as to [Appellant’s] good character and reputation as an honest and peaceful person.
[Appellant] then testified that his uncle, Arsen Kashkashian (“A.K.”) had represented him at trial. According to [Appellant], A.K. had a conflict of interest because he had administered ____________________________________________
1 The lower court resentenced Appellant to the identical sentence on April 30, 2013, following a probation violation.
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[Appellant’s] father’s estate, and a dispute subsequently arose between [Appellant] and his brother over the distribution of the estate[,] which resulted in litigation. [Appellant] eventually obtained other counsel to represent him in that matter. [Appellant] also claimed that A.K. had failed to obtain discovery he had requested, including Taser calibration information, photos, DNA evidence and medical reports. [Appellant] claimed this evidence would show that he had no Taser marks or medical injuries after the incident, which in turn would indicate that the police “were lying and had set up the crime scene.” When queried further as to how this material would be relevant, [Appellant] responded that the “biggest example would be the perjury that the officers have done, the amount of lying and disgrace to the [c]ourt.” [Appellant] also claimed that he had expressed a desire to appeal his verdict but A.K. failed to file any appeal or post-sentence motions.
[Appellant] stated that he had ingested Ritalin or Adderal on the date of the incident, but stated that he did not want to pursue a mental health defense strategy as suggested by [A.K.]. When he was shown a photograph, identified as Defense Exhibit 2, 3rd page, showing three marks on his back, he disputed that they were Taser prong marks, and instead insisted that they were “pimples, ingrown hairs. I’m Italian-Armenian, I have to shave my back.”
A.K. then testified that he had fifty years of criminal defense experience. He stated that [Appellant] was his nephew whom he had known all his life, and he undertook [Appellant’s] representation after he had called him from Brooke Glen, the institution he had been sent to for a mental health evaluation after he had been taken to Doylestown Hospital by the police. A.K. testified that the evidence and testimony presented at the preliminary hearing was consistent with the mental health hearing, police incident reports and the 911 emergency telephone recording. A.K. stated that [Appellant] sounded delusional on the 911 recording, but when they got to trial, [Appellant] claimed it wasn’t his voice. A.K. stated that he wanted to assert a mental health defense and obtained a signed order from Judge Boylan for a competency evaluation but [Appellant] was not cooperative. Although the initial evaluation had indicated that he was not competent to stand trial, he was eventually deemed competent after treatment and medication.
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Nonetheless, [Appellant] refused to allow A.K. to present such a defense.
A.K. stated that [Appellant] “didn’t exactly say the cops were lying but he did say he thought they had used too much force,” and he therefore presented that strategy at trial. A.K. felt that the police had been cooperative and believed that the incident had occurred as a result of [Appellant’s] mental health issues. A.K. felt he had effectively argued at trial that the police had employed excessive use of the Tasers, but his major problem was that he “had a client who wasn’t listening to what we were telling him.” A.K. stated that the use of a strategy of calling the police liars, as insinuated by [Appellant], would have “backfired.” A.K. testified that although he had negotiated with the District Attorney to have the charges reduced to misdemeanors with an accompanying sentence of two or three years of probation, [Appellant] refused the offer. He stated that [Appellant] insisted on testifying at trial, even though he had advised him not to because he felt there was sufficient doubt and the 911 recording had damaged [Appellant’s] credibility. A.K. also felt that character witnesses would have been ineffective and insufficient to challenge the charges.
A.K. stated that [Appellant] had later raised the issue of DNA testing and investigation, but it was untimely because the DNA had not been preserved, and in any event[,] A.K. felt it would be of little or no significance to the case.
A.K. stated that he advised [Appellant] of his appellate rights after sentencing, but advised him not to appeal because the sentence was reasonable. A.K. stated he told [Appellant] to seek other counsel for any appellate matters, and that [Appellant] “did not express any willingness to take an appeal at that moment.”
A.K. testified that he had no financial interests that were adverse to [Appellant], and he had only served as counsel to the administrators of his brother’s estate, who were the two sons, [Appellant], and Nicholas Kashkashian. Since there was no will and the mother had also passed away, the estate was to be divided equally between the two sons. However, a dispute subsequently developed after this case between the brothers regarding the distribution of the estate assets including the ownership interests in Frankford Associates, a business [that]
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A.K. represented as corporate counsel. A.K. stated that he therefore “stepped aside” and the brothers retained separate counsel. A.K. stated that at one time[,] he had power of attorney for [Appellant’s] affairs but he had never exercised it because [Appellant’s] brother also had power of attorney and had controlled [Appellant’s] finances.
Detective James Schirber of the Upper Southampton Police Department explained the use and operation of Taser weapons. He testified that the marks on [Appellant’s] back as shown in the photographs introduced earlier were consistent with Taser prong marks, which he said resembled bug bite injuries and would not be discernable a day or two after they occurred.
(PCRA Ct. Op., at 4-7) (record citations omitted).
Immediately following the hearing, the PCRA court found that
Appellant’s allegation had no merit and denied the PCRA petition. The
instant, timely appeal followed. On March 24, 2014, the PCRA court ordered
Appellant to file a concise statement of errors complained of on appeal. See
Pa.R.A.P. 1925(b). Appellant filed a timely Rule 1925(b) statement on April
4, 2014. See id. On April 24, 2014, the trial court issued an opinion. See
Pa.R.A.P. 1925(a).
On appeal, Appellant raises three questions for our review:
A. Did the [PCRA] court err in finding that Appellant failed to establish that he was denied effective assistance of counsel where trial counsel failed to fully investigate, retain experts, present character witnesses, review evidence, consult with the client, and conduct full and proper cross-examination of witnesses?
B. Did the [PCRA] court err in finding that Appellant failed to establish that he was denied effective assistance of counsel where counsel failed to protect and preserve Appellant’s rights to a reconsideration of sentence and direct appellate review?
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C. Did the [PCRA] court err in failing to grant Appellant’s request for a post-conviction DNA analysis and examination of the physical evidence?
(Appellant’s Brief, at 4).
Our standard of review is long settled. “Our standard of review from
the grant or denial of post-conviction relief is limited to examining whether
the PCRA court’s determination is supported by the evidence of record and
whether it is free of legal error. We will not disturb findings that are
supported by the record.” Commonwealth v. Ousley, 21 A.3d 1238, 1242
(Pa. Super. 2011), appeal denied, 30 A.3d 487 (Pa. 2011) (citations
omitted). “The court’s scope of review is limited to the findings of the PCRA
court and the evidence on the record of the PCRA court’s hearing, viewed in
the light most favorable to the prevailing party.” Commonwealth v.
Duffey, 889 A.2d 56, 61 (Pa. 2005) (citation omitted). Further, to be
eligible for relief pursuant to the PCRA, Appellant must establish that his
conviction or sentence resulted from one or more of the enumerated errors
or defects found in 42 Pa.C.S.A. § 9543(a)(2). He must also establish that
the issues raised in the PCRA petition have not been previously litigated or
waived. See 42 Pa.C.S.A. § 9543(a)(3). An allegation of error “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 postconviction
proceeding.” 42 Pa.C.S.A. § 9544(b).
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Here, Appellant raises three issues, all challenging trial counsel’s
stewardship. (See Appellant’s Brief, at 4). Counsel is presumed effective,
and an appellant bears the burden to prove otherwise. See
Commonwealth v. McDermitt, 66 A.3d 810, 813 (Pa. Super. 2013). The
test for ineffective assistance of counsel is the same under both the Federal
and Pennsylvania Constitutions. See Strickland v. Washington, 466 U.S.
668 (1984); Commonwealth v. Jones, 815 A.2d 598, 611 (Pa. 2002). An
appellant must demonstrate that: (1) his underlying claim is of arguable
merit; (2) the particular course of conduct pursued by counsel did not have
some reasonable basis designed to effectuate his interests; and (3) but for
counsel’s ineffectiveness, there is a reasonable probability that the outcome
of the proceedings would have been different. See Commonwealth v.
Pierce, 786 A.2d 203, 213 (Pa. 2001), abrogated on other grounds by
Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002). “A failure to satisfy
any prong of the test for ineffectiveness will require rejection of the claim.”
Jones, supra at 611 (citation omitted).
In his first claim, Appellant alleges multiple instances of ineffective
assistance of trial counsel. (See Appellant’s Brief, at 13-18). Appellant
claims that counsel was ineffective for failing to discuss with him and obtain
a waiver for a conflict of interest based upon counsel’s involvement with the
distribution of Appellant’s father’s estate. (See id. at 14-15). Further,
Appellant avers that counsel was ineffective for failing to obtain and present
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as evidence Appellant’s medical records from Doylestown Hospital and his
mental health records from Brooke Glen Hospital. (See id. at 15-16).
Appellant also maintains that counsel was ineffective for failing to present
the testimony of character witness Jeffrey Drebes. (See id. at 16).
Additionally, Appellant contends that that trial counsel was ineffective for
failing to call expert witnesses regarding the appropriate use of a Taser and
regarding DNA analysis. (See id. at 16-17). Lastly, Appellant states that
counsel was ineffective for failing to request jury instructions regarding good
character, self-defense, or involuntary act. (See id. at 17-18).
With respect to Appellant’s claim of conflict of interest, the United
States Supreme Court has held that, “[i]n order to establish a violation of
the Sixth Amendment, a defendant who raised no objection at trial must
demonstrate that an actual conflict of interest adversely affected his lawyer’s
performance.” Cuyler v. Sullivan, 446 U.S. 335, 348 (1980) (footnote
omitted). The Supreme Court later stated, “it [is] at least necessary, to void
the conviction, for petitioner to establish that the conflict of interest
adversely affected his counsel’s performance.” Mickens v. Taylor, 535 U.S.
162, 174 (2002). Further,
[t]o establish a breach of that duty [of loyalty], the client must show the existence of an actual conflict of interest that adversely affected the outcome of the case. An actual conflict of interest is evidenced whenever during the course of representation, the interests of appellant—and the interests of another client towards whom counsel bears obligations—diverge with respect to a material factual or legal issue or to a course of action.
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Commonwealth v. Tedford, 960 A.2d 1, 54 (Pa. 2008) (citations and
quotation marks omitted). Thus, “multiple representation, in itself, does not
give rise to presumed denial of counsel. Rather, the burden remains on the
defendant to demonstrate that the asserted conflict adversely affected his
lawyer’s performance.” Commonwealth v. King, 57 A.3d 607, 618 (Pa.
2012) (citations omitted).
Here, Appellant has not met this standard. The record demonstrates
that it was his decision to retain his uncle to represent him. (See N.T. PCRA
Hearing, 3/14/14, at 22). Further, Appellant knew at that time that counsel
also represented Appellant and his brother as co-administrators of his
father’s estate, because such representation began in 2009, some two years
prior to the incident at issue. (See id. at 22, 90). Counsel had no financial
interest in the estate. (See id.). Lastly, Appellant’s own exhibits
demonstrate that the dispute over the estate did not arise until November
2012, some nine months after the trial in the instant matter. (See id. at
41-42; D-7, D-8).
Appellant has utterly failed to provide any evidence, beyond a bald
statement that a conflict of interest existed, which would demonstrate any
actual prejudice suffered by him because of the alleged conflict. (See
Appellant’s Brief, at 15). Appellant has not pointed to any witnesses counsel
did not interview, any questions counsel did not ask, or any argument
counsel failed to make because of the alleged conflict of interest. (See id.).
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Appellant’s claim that trial counsel was ineffective because of a conflict of
interest fails. See Tedford, supra at 54 (appellant failed to establish actual
conflict of interest and prejudice resulting from public defender’s
representation of two Commonwealth witnesses at his trial where there was
no evidentiary support for his claim that lawyer was present when
Commonwealth made undisclosed deals with witnesses and lawyer had
concluded representation of witnesses prior to appellant’s trial); see also
Commonwealth v. Weiss, 81 A.3d 767, 794-96 (Pa. 2013) (appellant
failed to show actual conflict of interest based upon counsel’s prior
representation of various Commonwealth witnesses, where counsel no
longer represented individuals and appellant did not show that prior
representation adversely affected counsel’s performance).
Appellant next claims that counsel was ineffective for failing to obtain
and present as evidence his medical records from Doylestown Hospital and
his mental health records from Brooke Glen Hospital. (See id. at 15-16).
Because Appellant’s argument is undeveloped, this claim must fail.
The records in question were admitted as exhibits at the PCRA
hearing, (see N.T. PCRA Hearing, 3/14/14, at 31, 33), and Appellant
claimed, without much specification or reference to any particular portion of
the records, that they would show that the police lied, (See id. at 29-33).
On appeal, Appellant fails to explain why these records would have been
relevant and admissible at trial, especially because he refused to present a
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mental health defense. (See Appellant’s Brief, at 15-16; N.T. PCRA Hearing,
3/14/14, at 73-75); see also Pa.R.E. 402 (“Evidence that is not relevant is
not admissible.”). Appellant’s argument on this issue consists of four
sentences. They baldly state that counsel was aware of these records and
that the records would have supported Appellant’s claim that the police were
lying. (See Appellant’s Brief at 15-16). However, the argument does not
include any reference to the records, the facts underlying the claim, or
citation to pertinent legal authority. (See id.). This Court will not act as
counsel and will not develop arguments on behalf of an appellant. See In
re R.D., 44 A.3d 657, 674 (Pa. Super. 2012), appeal denied, 56 A.3d 398
(Pa. 2012). When deficiencies in a brief hinder our ability to conduct
meaningful appellate review, we can dismiss the appeal entirely or find
certain issues to be waived. See Pa.R.A.P. 2101; R.D., supra. at 674.
Accordingly, we find Appellant’s claim waived.
Appellant next contends that counsel was ineffective for failing to
present the testimony of character witness Jeffrey Drebes. (See Appellant’s
Brief, at 16). Again, we note that Appellant’s argument on this issue consists
of three sentences and is utterly devoid of citation to legal authority. (See
id.). Thus, Appellant has waived this claim. See Pa.R.A.P. 2101; R.D.,
supra. at 674.
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Moreover, it is without merit. In order to show that trial counsel was
ineffective in failing to present the testimony of the additional witnesses,
Appellant must demonstrate:
the existence of and the availability of the witnesses, counsel’s actual awareness, or duty to know, of the witnesses, the willingness and ability of the witnesses to cooperate and appear on the defendant’s behalf and the necessity for the proposed testimony in order to avoid prejudice. Moreover, [an a]ppellant must show how the uncalled witnesses’ testimony would have been beneficial under the circumstances of the case.
Commonwealth v. Gibson, 951 A.2d 1110, 1133-1134 (Pa. 2008)
(quotation marks and citations omitted).
Even assuming, arguendo, that Appellant has demonstrated that
counsel was aware of the existence of the witness and that the witness was
willing and able to testify, Appellant’s claim must still fail.
Firstly, Appellant argues that the witness would have testified as to his
reputation for truthfulness. (See Appellant’s Brief, at 16). However, our
review of the record demonstrates that such testimony would not have been
admissible in his case. In Commonwealth v. Fulton, 830 A.2d 567 (Pa.
2003), the Pennsylvania Supreme Court reaffirmed the long-standing
principle that rehabilitative evidence of a defendant’s good reputation for
truthfulness is admissible only in cases where either the character trait of
truthfulness is implicated by the elements of the charged offenses, or in
cases where the Commonwealth specifically impeached the defendant’s
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reputation for truthfulness. See Fulton, supra at 572-73. The
Pennsylvania Supreme Court went on to explain that:
where the prosecution has merely introduced evidence denying or contradicting the facts to which the defendant testified, but has not assailed the defendant’s community reputation for truthfulness generally, evidence of the defendant’s alleged reputation for truthfulness is not admissible. Similarly, cross- examination of the defendant that challenges the veracity of his testimony in the particular case, but does not touch upon his general reputation in the community for being truthful, does not open the door to the introduction of good character evidence concerning reputation for truthfulness.
Id. at 573 (citations omitted).
Here, we have reviewed the record, and the elements of the charged
offenses did not implicate the character trait of truthfulness. Further,
Appellant does not point to any instance wherein the Commonwealth
impugned his reputation for truthfulness. (See Appellant’s Brief, at 16).
Thus, Appellant has not demonstrated that the Commonwealth ever
“attacked, impugned or otherwise besmirched his general reputation in the
community for telling the truth.” Fulton, supra at 573. Therefore the
witness’s testimony would not have been admissible with respect to showing
his truthfulness. See id.
Secondly, to the extent that Appellant sought to have the witness
testify as to his reputation for law-abidingness and peacefulness (see
Appellant’s Brief at 16), the record demonstrates that proposed witness
Jeffrey Drebes would not have qualified as a character witness. Drebes
testified as to his personal opinion of Appellant, not his reputation in the
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community for peacefulness or law-abidingness. (See N.T. PCRA Hearing,
3/14/14, at 17, 19-20). Drebes admitted that he did not know Appellant’s
general reputation in the community. (See id. at 19). To qualify as a
character witness, the witness must be able to testify to the defendant’s
general reputation in the community, rather than his personal opinion of the
him. See Commonwealth v. Presbury, 478 A.2d 21, 25 (Pa. Super.
1984). Trial counsel is not ineffective for failing to call a proposed character
witness, who would not have qualified as character witness. See id.
Appellant’s claim lacks merit.
Next, Appellant avers that that trial counsel was ineffective for failing
to call expert witnesses to testify regarding the appropriate use of a Taser
and about DNA analysis. (See Appellant’s Brief, at 16-17). “To establish
ineffective assistance of counsel for the failure to present an expert witness,
appellant must present facts establishing that counsel knew or should have
known of the particular witness.” Commonwealth v. Millward, 830 A.2d
991, 994 (Pa. Super. 2003), appeal denied, 848 A.2d 928 (Pa. 2004)
(citation omitted). Further, “the defendant must articulate what evidence
was available and identify the witness who was willing to offer such
evidence.” Commonwealth v. Bryant, 855 A.2d 726, 745 (Pa. 2004)
(citations omitted). Appellant’s amended PCRA petition did not identify any
witness willing to offer expert testimony. (See Amended PCRA Petition,
3/05/14, at unnumbered pages 1-5). Therefore, his claim fails. See
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Bryant, supra at 745; see also Commonwealth v. Gwynn, 943 A.2d
940, 945 (Pa. 2008) (citations omitted) (when defendant claims counsel was
ineffective for failing to introduce expert testimony at trial he must articulate
“what evidence was available and identify a witness who was willing to offer
such [evidence].”)
Also, Appellant states that counsel was ineffective for failing to request
jury instructions regarding good character, self-defense, and involuntary act.
(See Appellant’s Brief, at 17-18). However, Appellant did not include this
issue in his Rule 1925(b) statement. (See Statement of Matters Complained
of on Appeal, 4/04/14, at unnumbered pages 1-2). Therefore, the PCRA
court did not address this claim in its Rule 1925(a) opinion. (See PCRA Ct.
Op., at 8-18). As amended in 2007, Rule 1925 provides that issues that are
not included in the Rule 1925(b) statement or raised in accordance with Rule
1925(b)(4) are waived. See Pa.R.A.P. 1925(b)(4)(vii); see also
Commonwealth v. Lord, 719 A.2d 306, 308 (Pa. 1998), superseded by
rule on other grounds as stated in Commonwealth v. Burton, 973 A.2d
428, 430 (Pa. Super. 2009).
Further, Appellant did not raise this issue in his statement of the
questions involved. (See Appellant’s Brief, at 4). The Rules of Appellate
Procedure provide that issues to be resolved must be included in the
statement of questions involved or “fairly suggested” by it. Pa.R.A.P. 2116.
This issue is not included in the statement of questions involved, nor is it
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“fairly suggested” by it. Thus, we hold that Appellant has waived his claim
that trial counsel was ineffective for failing to request certain jury
instructions. See Pa.R.A.P. 1925(b)(4)(vii); see also Commonwealth v.
Harris, 979 A.2d 387, 397 (Pa. Super. 2009) (holding claim waived when
not included in statement of questions involved).2 Therefore, Appellant’s
first challenge lacks merit.
In his second issue, Appellant claims that trial counsel was ineffective
for failing to file a motion for reconsideration of sentence and for failing to
file a direct appeal. (See Appellant’s Brief, at 19-22). We disagree.
With respect to Appellant’s claim that trial counsel was ineffective for
failing to file post-sentence motions, we note that in Commonwealth v.
Reaves, 923 A.2d 1119 (Pa. 2007), our Supreme Court explained that while
there are some limited situations in which prejudice may be presumed by
counsel’s inaction, the failure to file post-sentence motions is not one of
those situations. See Reaves, supra at 1128-29. Our Supreme Court
reaffirmed this holding in Commonwealth v. Liston, 977 A.2d 1089 (Pa.
2009), stating “[p]resumably, since post-sentence motions are optional . . .
rarely will counsel be deemed to have been ineffective for failing to file them ____________________________________________
2 We note that in his statement of the questions involved, Appellant alleges that counsel was ineffective for failing to cross-examine witnesses. (See Appellant’s Brief, at 4). However, Appellant abandons this claim in the body of his brief. (See id. at 13-18). Therefore, he has waived the claim. See Jones, supra at 604 n.3 (claims raised in the statement of questions involved but not pursued in the body of the brief are waived).
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except, for example, when the claim involves the discretionary aspects of
sentence or a challenge to a verdict on weight of the evidence grounds,
claims which must be raised in the trial court to be preserved for purposes of
appellate review.” Liston, supra at 1094 n.10 (citation omitted).
Here, assuming arguendo that Appellant actually requested that trial
counsel file a post-sentence motion, he has failed to demonstrate any
prejudice based upon the failure to do so. Appellant claims that, in a post-
sentence motion, he wished to challenge the sufficiency of the evidence, the
weight of the evidence, evidentiary rulings, and the sentence itself. (See
Appellant’s Brief, at 20). He further argues that the failure to file a post-
sentence motion prohibited appellate review of these issues. (See id.).
However, Appellant has not provided any legal support for his
contention that the failure to file a post-sentence motion waived appellate
review of the sufficiency of the evidence or any of the unspecified
evidentiary challenges. We note that Pennsylvania Rule of Criminal
Procedure 606 and its comments make clear that an appellant may raise the
issue of sufficiency of the evidence for the first time on appeal. See
Pa.R.Crim.P. 606(A)(7).
A challenge to the discretionary aspects of sentence is waived if not
raised in post-sentence motions. See Commonwealth v. McAfee, 849
A.2d 270, 275 (Pa. Super. 2004), appeal denied, 860 A.2d 122 (Pa. 2004).
However, Appellant has failed to specify the nature of the challenge to the
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discretionary aspects of sentence and has failed to argue that counsel’s filing
of a post-sentence motion challenging the discretionary aspects of sentence
would have had any likelihood of success, given that Appellant was
sentenced to probation. Thus, this undeveloped claim lacks merit. See
Pierce, supra at 213.
Appellant’s argument regarding the weight of the evidence is equally
vague. Appellant generally states that counsel should have challenged
“[i]nconsistencies in testimony between the officers [and i]consistency
between testimony and the circumstantial evidence.” (Appellant’s Brief, at
20). However, Appellant does not highlight any inconsistencies in the
testimony or the circumstantial evidence and, at the PCRA hearing, trial
counsel testified, without contradiction, that there were few inconsistencies
in the officers’ testimony. (See Appellant’s Brief, at 20; N.T. PCRA Hearing,
3/14/14, at 72, 75). Our review of the record also demonstrates that any
inconsistencies between the officers’ testimony was minimal. (See N.T.
Trial, 2/16/12, at 20-84). It is long settled that “[b]efore a trial court may
award a new trial on [the] ground [that the verdict is against the weight of
the evidence,] it must appear that the verdict was so contrary to the
evidence as to shock one’s sense of justice and make the award of a new
trial imperative.” Commonwealth v. Hunter, 554 A.2d 550, 555 (Pa.
Super. 1989) (citation and footnote omitted). Appellant does not discuss
this standard, (see Appellant’s Brief, at 20), and does not argue that, had
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counsel filed a post-sentence motion challenging the weight of the evidence,
the result would have been different. (See id.).
Therefore, with respect to the claim that counsel was ineffective for
failing to file post-sentence motions, Appellant has failed to set forth the
ineffectiveness analysis required by Strickland. (See Appellant’s Brief, at
19-20). Because Appellant has not established any of the three prongs, we
must deem counsel’s assistance constitutionally effective. See
Commonwealth v. Rolan, 964 A.2d 398, 406 (Pa. Super. 2008) (holding
that where appellant fails to address three prongs of ineffectiveness test, he
does not meet his burden of proving ineffective assistance of counsel, and
counsel is deemed constitutionally effective). Accordingly, Appellant’s claim
that counsel was ineffective for failing to file post-sentence motions must
fail.
Appellant also claims that trial counsel was ineffective for failing to file
a requested direct appeal. (See Appellant’s Brief, at 21-22). It is settled
that if counsel ignores a defendant’s request to file a direct appeal, the
defendant is entitled to have his appellate rights restored. See
Commonwealth v. Lantzy, 736 A.2d 564, 572 (Pa. 1999).
In Lantzy, our Supreme Court held that an unjustified failure to file a direct appeal upon request is prejudice per se, and if the remaining requirements of the PCRA are satisfied, a defendant does not have to demonstrate his innocence or the merits of the issue he would have pursued on appeal to be entitled to relief. However, such relief is appropriate only where the petitioner pleads and proves that a timely appeal was in fact requested and that counsel ignored that request. A mere allegation will not
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suffice to prove that counsel ignored a petitioner’s request to file an appeal.
Commonwealth v. Spencer, 892 A.2d 840, 842 (Pa. Super. 2006)
(citations omitted).
At the PCRA hearing, Appellant testified that, both before and after
sentencing, he informed counsel that he wanted to file an appeal. (See N.T.
PCRA Hearing, 3/14/14, at 42-43, 61-62). He denied that counsel had ever
told him that he was unwilling to file an appeal and that he needed to seek
new counsel. (See id. at 61-62).
Counsel, however, testified that, following the sentencing hearing, he
explained Appellant’s appeal rights to him, explained to him that he did not
believe Appellant had grounds for an appeal, and advised him that if he
wished to appeal he needed to find new counsel. (See id. at 87-88).
Counsel confirmed this conversation in a letter to Appellant. (See id. at 88;
Commonwealth’s Exhibit 1, Letter, 5/23/12, at unnumbered page 1).
Counsel stated that, after their conversation, Appellant was no longer
interested in taking an appeal. (See N.T. PCRA Hearing, 3/14/14, at 87-88).
The PCRA court accepted counsel’s testimony and did not accept
Appellant’s testimony. It found that Appellant was uninterested in taking an
appeal, stating, “[Appellant] . . . opted not to file a direct appeal.” (PCRA
Ct. Op., at 11; see also id. at 6). The PCRA court further characterized
Appellant’s claim that counsel was ineffective for failing to fail a direct appeal
as “another baseless assertion.” (Id. at 13). Our review of the record
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supports that determination. When a PCRA court finds that the petitioner’s
testimony that he requested an appeal is not credible, this Court will not
disturb those findings. See Commonwealth v. Maynard, 900 A.2d 395,
398 (Pa. Super. 2006) (rejecting claim that counsel failed to file requested
direct appeal after PCRA court found the appellant’s testimony not credible
and record supported PCRA court’s findings); see also Commonwealth v.
Harmon, 738 A.2d 1023, 1025 (Pa. Super. 1999), appeal denied, 753 A.2d
815 (Pa. 2000) (same). Appellant’s second claim lacks merit.
In his third claim, Appellant alleges that the PCRA court erred in
denying his request for post-conviction DNA analysis and examination of the
physical evidence. (See Appellant’s Brief, at 23-24). We disagree.
Initially, we note that motions for post-conviction DNA testing, while
considered post-conviction petitions under the PCRA are “separate and
distinct” from claims pursuant to other sections of the PCRA; thus, the one-
year time bar does not apply to them. Commonwealth v. Perry, 959 A.2d
932, 938 (Pa. Super. 2008) (citation omitted). We review a denial of a post-
conviction petition to determine whether the record supports the PCRA
court’s findings and whether its order is otherwise free of legal error. See
Commonwealth v. McClellan, 887 A.2d 291, 297 (Pa. Super. 2005),
appeal denied, 897 A.2d 453 (Pa. 2005).
42 Pa. C.S.A. § 9543.1 provides, in relevant part:
(a) Motion.—
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(1) An individual convicted of a criminal offense in a court of this Commonwealth and serving a term of imprisonment or awaiting execution because of a sentence of death may apply by making a written motion to the sentencing court for the performance of forensic DNA testing on specific evidence that is related to the investigation or prosecution that resulted in the judgment of conviction.
(2) The evidence may have been discovered either prior to or after the applicant’s conviction. The evidence shall be available for testing as of the date of the motion. If the evidence was discovered prior to the applicant’s conviction, the evidence shall not have been subject to the DNA testing requested because the technology for testing was not in existence at the time of the trial or the applicant's counsel did not seek testing at the time of the trial in a case where a verdict was rendered on or before January 1, 1995, or the applicant’s counsel sought funds from the court to pay for the testing because his client was indigent and the court refused the request despite the client’s indigency.
(c) Requirements.—In any motion under subsection (a), under penalty of perjury, the applicant shall:
(1) (i) specify the evidence to be tested;
(2) (i) assert the applicant’s actual innocence of the offense for which the applicant was convicted; and
(3) present a prima facie case demonstrating that the:
(i) identity of or the participation in the crime by the perpetrator was at issue in the proceedings that resulted in the applicant’s conviction and sentencing; and
(ii) DNA testing of the specific evidence, assuming exculpatory results, would establish:
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(A) the applicant's actual innocence of the offense for which the applicant was convicted. . .
42 Pa.C.S.A. § 9543.1(a), (c)(1)(i), (c)(2)(i), (c)(3)(i), (c)(ii)(a).
Appellant has not complied with these requirements. Firstly, Appellant
did not file a proper petition pursuant to 42 Pa.C.S.A. § 9543.1. Instead,
the request for post-conviction DNA testing is somewhat vaguely made in
paragraph 13 of his amended PCRA petition. (See Amended PCRA Petition,
3/05/14, at unnumbered page 4, ¶ 13). Secondly, Appellant has not alleged
that he is serving a term of imprisonment; rather the record reflects that he
was sentenced to probation. (See PCRA Ct. Op., at 3). Thus, he is not
eligible for post-conviction DNA testing pursuant to 42 Pa.C.S.A. § 9543.1.3
See Commonwealth v. Frederick, 929 A.2d 214, 219 (Pa. Super. 2007).
Accordingly, his claim that the trial court erred in denying his request for
post-conviction DNA testing fails.
Order affirmed.
3 Moreover, Appellant would also not be eligible for post-conviction DNA testing, because the verdict in this matter was not rendered before January 1, 1995, and counsel did not seek funds at trial for DNA testing and have that request refused. See 42 Pa.C.S.A. § 9543.1(a)(2).
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 12/5/2014
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