J-S19023-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHARLES PACK
Appellant No. 1340 EDA 2015
Appeal from the PCRA Order Dated April 24, 2015
In the Court of Common Pleas of Lehigh County
Criminal Division at No: CP-39-CR-0001361-2008
BEFORE: BENDER, P.J.E., STABILE, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 16, 2016
Appellant Charles Pack appeals from the April 24, 2015 order of the
Court of Common Pleas of Lehigh County (“PCRA court”), which denied his
request for collateral relief under the Post Conviction Relief Act (the “Act”),
42 Pa.C.S.A. §§ 9451-46. Upon review, we affirm.
On December 22, 2005, two men forced their way into an Allentown
apartment shared by Benjamin Luck and his girlfriend Elinette Nieves.1
Mr. Luck and Ms. Nieves, along with Debra Schlegel, were present in the
apartment that evening. One of the intruders shot Mr. Luck in the head
twice. Ms. Schlegel testified that she heard three shots. One of the
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1
Unless otherwise specified, these facts come from this Court’s January 10,
2012 Memorandum affirming Appellant’s judgment of sentence.
Commonwealth v. Pack, No. 2373 EDA 2010 (Pa. Super. Jan. 10, 2010)
(unpublished memorandum).
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intruders was injured while inside of the apartment, leaving a trail of blood
leading through the apartment’s kitchen, out the door, and down a walkway
to the street. A DNA test later confirmed that the trail of blood was
Appellant’s. While interviewing Appellant, detectives noticed his injured
hand. Appellant initially told them that he injured it while changing a tire.
The detectives photographed Appellant’s injury, because they believed it
would explain the trail of blood at the crime scene. The detectives later
interviewed Appellant a second time. During this interview, the detectives
told Appellant his DNA had been found at the crime scene, and that they had
been informed Appellant had been shot. According to one of the detectives,
Appellant became agitated and said he knew they were going to find that
out.
The PCRA court summarized the procedural background as follows:
On May 17, 2010, following a jury trial, [Appellant] was found
guilty of Murder of the Second Degree, Burglary, Robbery and
two counts of Criminal Conspiracy.2 I ordered a Pre-sentence
Investigation Report (PSI), and on June 22, 2010, I sentenced
[Appellant] on the homicide charge to life imprisonment without
the possibility of parole, and a consecutive term of 32 ½ years to
80 years on the remaining charges.
[Appellant] filed Post-Sentence Motions, which were denied on
July 20, 2010, following a hearing. [Appellant] timely appealed,
and the Superior Court affirmed his judgment of sentence on
January 10, 2012. Our Supreme Court denied [Appellant’s]
petition for allowance of appeal on September 19, 2012.
[Appellant] did not file a petition for writ of certiorari with the
United States Supreme Court. At all relevant times, [Appellant]
was represented by James D. Nechin, Esquire, of the Lehigh
County Public Defender’s Office.
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2
Respectively, 18 Pa.C.S.A. §§ 2501(a), 3502(a), 3701(a)(1)(i), and 903.
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On December 27, 2013, [Appellant] filed a pro se petition
pursuant to the Post-Conviction Relief Act (PCRA). Attorney
Robert Long was appointed to represent [Appellant], and on May
1, 2014, Attorney Long filed a petition addressing only the
timeliness of [Appellant]’s petition, as directed by this court.
After review of the same, I issued an order finding that
[Appellant]’s petition was timely pursuant to the prisoner
mailbox rule, and directing counsel to file an amended petition
addressing the merits of [Appellant]’s claims. Attorney Long
filed an amended petition on August 14, 2014, and a second
amended petition on December 8, 2014, raising claims of
ineffective assistance of counsel. A hearing was held on October
8, 2014, and December 17, 2014, following which I took the
matter under advisement. The parties submitted briefs, and this
opinion follows.
PCRA Court Opinion, 4/24/15, at 1-2. On appeal,3 Appellant raises the
following issues for our review.
Did the [PCRA] court err in finding that trial counsel was not
ineffective for:
1. Failing to object to the prosecutor’s use of an
inflammatory photograph of [Appellant]’s hand
during his closing;
2. Failing to object to the prosecutor’s statement
that a bullet went through the victim’s body and
entered [Appellant]’s hand during his closing, when
there was no evidence to support the argument;
3. Failing to call Deb Schlegel’s son as a witness at
trial to testify that Deb Schlegel, a Commonwealth
witness, was involved in the crimes.
Appellant’s Brief at 4.
A PCRA petitioner is entitled to relief if he pleads and proves that prior
counsel rendered ineffective assistance of counsel. 42 Pa.C.S.A.
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3
“In reviewing the denial of PCRA relief, we examine whether the PCRA
court’s determination ‘is supported by the record and free of legal error.’”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quoting
Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)).
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§ 9543(a)(2)(ii). “To prevail on an [ineffectiveness] claim, a PCRA petitioner
must plead and prove by a preponderance of the evidence that (1) the
underlying legal claim has arguable merit; (2) counsel had no reasonable
basis for acting or failing to act; and (3) the petitioner suffered resulting
prejudice.” Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 780 (Pa.
Super. 2015) (en banc). “A petitioner must prove all three factors of the
“Pierce[4] test,” or the claim fails.” Id.
Based on our review of Appellant’s brief, we agree with the
Commonwealth’s observation that Appellant’s ineffectiveness claims sub
judice are waived because his brief is bereft of any discussion or argument
with respect to any one of the three Pierce prongs. As we recently
emphasized, “[a] petitioner must prove all three factors of the Pierce test,
or the [ineffectiveness] claim fails. In addition, on appeal, a petitioner must
adequately discuss all three factors of the Pierce test, or the appellate
court will reject the claim.” Reyes-Rodriguez, 111 A.3d at 780 (emphasis
added) (citing Fears, 86 A.3d at 804)). Thus, given Appellant’s failure to
adequately discuss the Pierce prongs on appeal, we must reject his
ineffectiveness claims.
Order affirmed.
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4
Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/16/2016
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Com. v. Pack, C.
Combined Opinion