Com. v. Kashkashian, E.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

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*
Retired Senior Judge assigned to the Superior Court.
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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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