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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JUAN JOSE PEREZ, :
:
Appellant : No. 134 MDA 2015
Appeal from the Order entered December 19, 2014,
Court of Common Pleas, Schuylkill County,
Criminal Division at No. CP-54-CR-0001391-2012
BEFORE: DONOHUE, OTT and MUSMANNO, JJ.
MEMORANDUM BY DONOHUE, J.: FILED AUGUST 28, 2015
In this appeal, Juan Jose Perez (“Perez”) challenges the dismissal and
denial of his petition filed pursuant to Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A §§ 9541-9546. Following our review, we affirm.
On April 7, 2012, a shooting occurred in Shenandoah, Schuylkill
County. The next day, an arrest warrant for Perez was issued in connection
with the shooting. On June 21, 2012, the police arrested Perez. In the
course of doing so, Perez attempted to flee. This led to charges of escape,
resisting arrest and flight to avoid prosecution.
All charges related to the April 7, 2012 shooting were eventually
dropped, but Perez was convicted of all charges related to his attempt to
flee. The trial court sentenced him to seven to seventeen months of
incarceration on the flight to avoid prosecution conviction and a concurrent
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term of nine to twenty-four months on the resisting arrest conviction. This
Court affirmed his judgment of sentence in June 2014. Perez filed a pro se
PCRA petition raising two issues on August 11, 2014. On August 13, 2014,
the PCRA court issued a rule on the Commonwealth to show cause why a
hearing should not be granted. The PCRA court also granted Perez in forma
pauperis status and “noted that [Perez] has not requested the appointment
of counsel and has proceeded pro se.” PCRA Court Order, 8/131/4. Perez
subsequently petitioned for the appointment of counsel, and the PCRA court
granted his request on September 3, 2014. Just four days later, the PCRA
court issued notice of its intent to dismiss Perez’s PCRA petition pursuant to
Pa.R.Crim.P. 907. After receiving two extensions of time in which to file,
PCRA counsel filed a response to the Rule 907 notice and raised three
additional issues on Perez’s behalf. On December 19, 2014, the PCRA court
denied and dismissed Perez’s petition.
This timely appeal follows, in which Perez raises the following two
issues for our review:
1. Whether the defective warrant used to arrest
[Perez] invalidated the entire case against
[Perez]?
2. Whether [Perez] was denied his right to counsel?
Perez’s Brief at 5. As we consider these issues, we are mindful that
[when] conducting review of a PCRA matter, we
consider the record “in the light most favorable to
the prevailing party at the PCRA level.”
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Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.
Super. 2014) (en banc). Our review is limited to the
evidence of record and the factual findings of the
PCRA court. Id. This Court will afford “great
deference to the factual findings of the PCRA court
and will not disturb those findings unless they have
no support in the record.” Id. Thus, when a PCRA
court's ruling is free of legal error and is supported
by record evidence, we will not disturb its decision.
Id. Of course, if the issue pertains to a question of
law, “our standard of review is de novo and our
scope of review is plenary.” Id.
Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super. 2015).
Perez first argues that his trial counsel was ineffective for failing to
challenge the validity of the arrest warrant that the police were executing
when Perez attempted to flee. To prove ineffective assistance of counsel, an
appellant must show (1) that the underlying claim is of arguable merit; (2)
that counsel had no reasonable basis designed to effectuate the appellant’s
interests for the act or omission in question; and (3) that counsel's
ineffectiveness actually prejudiced the appellant. Commonwealth v.
Moser, 921 A.2d 526, 531 (Pa. Super. 2007). The failure to meet any
prong of this test requires that the claim be dismissed. Id.
Perez argues that “had [trial counsel] attempted to challenge the
validity of the arrest warrant, the challenge … would have been successful
and the warrant would have been found to be invalid, and therefore, the
entire prosecution of the instant case would have been the fruit of the
poisonous tree.” Perez’s Brief at 11. The only basis Perez identifies for
invalidating the warrant is the fact that “the charges for which this warrant
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were [sic] issued were ultimately dismissed.” Id.1 The PCRA court rejected
this argument upon concluding that Perez “has not pled nor alleged nor
averred any facts showing that the warrant … was not based on probable
cause. … [S]imply asserting that the charges under the warrant were
ultimately dismissed does not in any way attack the probable cause basis
presented to the issuing authority for the issuance of the warrant.” PCRA
Court Opinion, 9/10/14, at 3.
We can find no error with this determination. As noted by the PCRA
court, Pennsylvania Rule of Criminal Procedure 513(B) governs the issuance
of arrest warrants. It provides that “[n]o arrest warrant shall issue but upon
probable cause supported by one or more affidavits sworn to before the
issuing authority in person or using advanced communication technology.
The issuing authority, in determining whether probable cause has been
established, may not consider any evidence outside the affidavits.”
Pa.R.Crim.P. 513(B)(2). Perez does not challenge the content of the
supporting affidavit or otherwise make any allegation contesting the
magistrate’s finding of probable cause. Accordingly, he has failed to prove
1
We note that Perez also states that the warrant was invalid because the
issuing authority placed the incorrect date next to his signature. Perez’s
Brief at 11. Perez did not raise this claim as a basis for invalidating the
warrant at any time before the PCRA court, and he cannot raise it now for
the first time on appeal. See Commonwealth v. Rush, 959 A.2d 945, 949
(Pa. Super. 2008). This aspect of his argument is not properly before us.
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that there is merit to the claim underlying his assertion of ineffective
assistance of counsel, and so he has failed to meet his burden.
Next, Perez argues that “he was denied his Constitutional right to
counsel” in a “crucial stage” of the PCRA proceedings. Perez’s Brief at 12.
Perez makes this claim without citation to, much less discussion of, any
relevant authority; indeed, his “argument” on this issue is a single
paragraph. The Rules of Appellate Procedure require that appellants
adequately develop each issue raised with discussion of pertinent facts and
pertinent authority. See Pa.R.A.P. 2119(a). It is not this Court’s
responsibility to comb through the record seeking the factual underpinnings
of an appellant’s claim. Commonwealth v. Mulholland, 702 A.2d 1027,
1034 n.5 (Pa. 1997). Further, this Court will not become the counsel for an
appellant and develop arguments on an appellant’s behalf.
Commonwealth v. Gould, 912 A.2d 869, 873 (Pa. Super. 2006). It was
Perez’s responsibility to provide an adequately developed argument
providing citation to and discussion of relevant authority. Because he has
failed to do so, we find this issue waived.
Even if we were not to find this issue waived, we would find that it
affords Perez no relief. First, contrary to Perez’s assertion, there is no
constitutional right to counsel in PCRA proceedings; rather, as this Court has
explained, it is “pursuant to the rules of criminal procedure and interpretive
case law[] [that] a criminal defendant has a right to representation of
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counsel for purposes of litigating a first PCRA petition through the entire
appellate process.” Commonwealth v. Robinson, 970 A.2d 455, 457 (Pa.
Super. 2009) (citing Pa.R.Crim.P. 904(c); Commonwealth v. White, 871
A.2d 1291, 1294–95 (Pa. Super .2005); Commonwealth v. Quail, 729
A.2d 571, 573 (Pa. Super. 1999)).
Further, the record in the present case reveals that although the PCRA
court did not immediately appoint counsel for Perez, it did appoint counsel
and grant two lengthy extensions of time for PCRA counsel to file a response
to its Rule 907 notice. In this response, PCRA counsel not only addressed
the two issues that Perez raised in his pro se PCRA petition, but also raised
three additional issues on his behalf. See Response of Petitioner to the
Court’s Rule 907 Notice, 11/21/14, at 6-7. Thus, although the PCRA should
have automatically appointed counsel upon its finding that Perez was
indigent, see Commonwealth v. Kutnyak, 781 A.2d 1259, 1262 (Pa.
Super. 2001), it did eventually appoint counsel. That counsel dutifully
executed her duties, as she reviewed the record, responded to the PCRA
court’s belief that Perez’s claims lacked merit (thereby refining the
arguments that Perez articulated in his pro se petition), and raised three
additional issues on Perez’s behalf. Thus, we would not hesitate to conclude
that Perez was afforded, and enjoyed, his right to counsel for purposes of
litigating his first PCRA petition. Cf. Commonwealth v. Hampton, 718
A.2d 1250, 1253 (Pa. Super. 1998) (finding proceedings effectively
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uncounseled and in violation of the representation requirement “when
appointed counsel fails to amend an inarticulately drafted pro se [PCRA]
petition, or fails otherwise to participate meaningfully[.]”).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/28/2015
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