J-S89009-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
THOMAS EDWARDS,
Appellant No. 1 EDA 2016
Appeal from the PCRA Order December 11, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003642-2008
BEFORE: SHOGAN, MOULTON, and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED JANUARY 05, 2017
Appellant, Thomas Edwards, appeals from the order entered
December 11, 2015, denying his petition for relief filed pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.
The PCRA court summarized the procedural and factual history of this
case as follows:
On November 13, 2009, following a jury trial . . . ,1
[Appellant] was found guilty of murder of the first degree (H-1)
and criminal conspiracy (F-1).2 Sentencing was deferred until
November 24, 2009, at which time [Appellant] was sentenced to
the mandatory term3 of life in prison.4 On December 3, 2009,
[Appellant] filed post-sentence motions, which were denied by
[the trial court] on April 1, 2010. On August 17, 2011, the
Superior Court affirmed [Appellant’s] judgment of sentence.5
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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1
At trial, [Appellant] was represented by Robert
Gamburg, Esquire. [Appellant] was tried with a co-
defendant, Terrence Snead, who was also found
guilty by the jury of first-degree murder and criminal
conspiracy. CP-51-CR-0003643-2008.
2
18 Pa.C.S. §§ 2502(a) and 903, respectively.
[Appellant] was found not guilty of the charge of
abuse of a corpse.
3
18 Pa.C.S. § 1102(a).
4
As to the charge of criminal conspiracy, [Appellant]
was sentenced to a consecutive term of not less than
ten nor more than twenty years in prison.
5
Commonwealth v. Thomas Edwards, No. 1174 EDA
2010, slip op. (Pa. Super., Aug. 17, 2011)
(memorandum opinion). Matthew Wolfe, Esquire[,]
represented [Appellant] on appeal.
On July 2, 2012, [Appellant] filed a pro se petition
pursuant to the [PCRA], requesting reinstatement of his
appellate rights nunc pro tunc. Thereafter, following a hearing,
on September 10, 2012, [the PCRA court] reinstated
[Appellant’s] right to petition for allowance of appeal nunc pro
tunc in our Supreme Court. On March 6, 2013, [Appellant’s]
petition for allowance of appeal was denied.7
7
Commonwealth v. Edwards, No. 478 EAL 2012,
slip op. (Pa. March 6, 2013).
On July 9, 2013, [Appellant] filed his first substantive
PCRA petition, pro se. Counsel was appointed8 and filed an
amended petition on December 17, 2014.9 The Commonwealth
filed a motion to dismiss on July 3, 2015. Having reviewed the
pleadings and petitioner’s file, on November 9, 2015, [the PCRA
court] sent petitioner notice of its intent to deny and dismiss his
claims without a hearing, pursuant to Pa.R.Crim.P. 907 (907
Notice). [The PCRA court] dismissed [Appellant’s] PCRA petition
consistent with its 907 Notice on December 11, 2015. This
timely appeal followed.
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8
Barnaby Wittels, Esquire, was appointed to
represent [Appellant] on collateral attack.
9
In his amended petition, PCRA counsel
represented that he would be making an additional
filing: “Undersigned counsel will file a Second or
Supplemental Amended Petition prior to the next
compliance date together with a memorandum of law
addressing all issues to be raised in Petitioner’s PCRA
proceeding.” Amended Petition, 12/17/14 at 5. This
Court gave PCRA counsel until October 2, 2015 to
make any additional filings; however, PCRA counsel
informed this Court on November 6, 2015 that he
would not be filing anything further.
FACTS:
In the early morning hours of April 28, 2006, the body of
Terrence Hawkins (victim) was discovered by police at 3036
Harper Street, a dead-end street in the Fairmount section of
Philadelphia. The victim had been strangled to death, and his
body had been wrapped in large, black plastic garbage bags,
doused in gasoline, and set on fire.
At the time of his death, the victim was working at
Savanna’s Restaurant and living with Terrence Snead (co-
defendant) in a rented house at 3030 Fontaine Street. The
victim had been living with the co-defendant for approximately
one year. A few days before the victim’s death, the co-
defendant became upset when he noticed that several items
were missing from his bedroom, including his watch, money,
cocaine, and a gun belonging to a friend, Dimitri Lambert. A few
days later, on the day the victim was murdered, the co-
defendant called Dimitri Lambert to come to 3030 Fontaine
Street to discuss the missing items. When Dimitri Lambert
arrived at the house, the co-defendant and two other men,
Jermaine Rippy and Khalil Rippy, were questioning several
people, including the victim, about the missing items and
whether they knew who took them. [Appellant] who had been
friends with the co-defendant for years, arrived during the
questioning and joined in. Eventually, Dimitri Lambert was
permitted to leave, at which point [Appellant], the co-defendant,
Jermaine Rippy, Khalil Rippy, and the victim were together in the
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basement. As he left the house, Dimitri Lambert heard “slight
yelling” from a voice he thought was the victim’s.
[Appellant] and co-defendant were then told that the
victim had been one of the last people in the house before the
items went missing from the co-defendant’s room. At this point,
the co-defendant began “kicking, punching, and smacking” the
victim. [Appellant] was going to shoot the victim, but the co-
defendant told him not to, took the wire out of a lamp, and put a
sock around his hand. Jermaine Rippy recalled that “[Appellant]
started hitting [victim] in the head with the gun. He was
tempted to shoot him, but the co-defendant told him no. He was
going to do it another way. [Co-defendant] pulled a wire off a
lamp in the basement. He put a sock around his hand and
started talking to [victim].” The co-defendant began to strangle
the victim, at which point Jermaine Rippy left the basement.11
Jermaine Rippy went to the first floor of the house, and after a
short while he saw the co-defendant exit the basement and
retrieve some garbage bags.12 The co-defendant was wearing
socks on his hands, and was covered in what looked like vomit.
[Appellant] remained in the basement.
11
The Medical Examiner testified that the cause of
death was strangulation accomplished by placing an
object around the neck, for example, a rope or cord,
and tightening it for an uninterrupted period of three
to five minutes.
12
Jermaine Rippy described the bags as “big heavy-
duty bags . . . like real thick type of bags.”
The victim’s body was discovered ablaze a short time later
at 3036 Harper Street, an abandoned house approximately ten
blocks from Fontaine Street. A white sedan was seen pulling
away from the house at which the body was found, immediately
after the fire was set. The co-defendant drove a white Crown
Victoria sedan at the time of the murder.13 Police seized the
Crown Victoria sedan and discovered large, black plastic garbage
bags in the car’s trunk.14
13
The white Crown Victoria was not registered in
the co-defendant’s name; however, he was seen
driving the car by several witnesses, and had
received two traffic citations while driving the car.
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14
These garbage bags were described by a Crime
Scene Investigator as “contractor” garbage bags,
which are larger than standard garbage bags.
Two days after the victim was killed, his mother and sister
went to 3030 Fontaine Street to collect his personal effects, at
which point the co-defendant told them that he had not seen the
victim since Wednesday, two days before he was killed. When
the victim’s family entered his bedroom it had been “emptied out
like he never lived there.” The victim also kept a closet in the
home’s dining room, and the victim’s family collected his clothing
from that closet. When the victim’s family asked for something
to put the clothes in, the co-defendant gave them some large,
black plastic garbage bags. The victim’s sister later gave police
the large garbage bags filled with the victim’s clothes.15
15
Police determined the bags to be “large,
contractor-type trash bags.”
Police conducted interviews with the victim’s co-workers,
who informed them that Dimitri Lambert and Jermaine Rippy
were friends of the victim. Police located both men, and each
individually told police that [Appellant] and co-defendant had
committed the murder. A latent fingerprint, lifted from an
additional black garbage bag near where the victim’s body was
found, matched [Appellant’s] fingerprint.
PCRA Court Opinion, 3/29/16 at 1-5 (internal citations and some footnotes
omitted) (emphasis in original).
Appellant presents the following issue for our review: “Did the PCRA
court err in not granting an evidentiary hearing?” Appellant’s Brief at 6 (full
capitalization omitted).
Our standard of review of an order denying PCRA relief is whether the
record supports the PCRA court’s determination and whether the PCRA
court’s determination is free of legal error. Commonwealth v. Phillips, 31
A.3d 317, 319 (Pa. Super. 2011). The PCRA court’s findings will not be
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disturbed unless there is no support for the findings in the certified record.
Id.
The right to an evidentiary hearing on a post-conviction petition is not
absolute. Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa. Super.
2001). It is well established that “[t]he PCRA court need not hold a hearing
on every issue appellant raises, as a hearing is only required on genuine
issues of material fact.” Commonwealth v. Albrecht, 994 A.2d 1091,
1093 (Pa. 2010) (citations and quotations omitted). “A trial court’s decision
not to hold a hearing will only be reversed when the trial court abused its
discretion.” Commonwealth v. Collins, 888 A.2d 564, 579 (Pa. 2005).
Before addressing the merits of Appellant’s issue, we note that
inexplicably, the majority of the argument section of Appellant’s brief sets
forth case law pertaining to claims of ineffective assistance of counsel,
despite there being no such issue before this Court. Appellant’s Brief at 14-
16. The remainder of the argument sets forth only case law regarding
evidentiary hearings in PCRA proceedings; there is no analysis applying that
law to the facts of this particular case. Specifically, there is no reference to
the record and no synopsis of the evidence, as is required by Pa.R.A.P.
2119. In fact, Appellant fails to present any argument as to why he believes
he was entitled to an evidentiary hearing in this case. Appellant’s Brief at
13-18.
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“The failure to develop an adequate argument in an appellate brief
may result in waiver of the claim under Pa.R.A.P. 2119.” Commonwealth
v. Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007) (internal citation and
quotation marks omitted). Because Appellant fails to develop any
meaningful legal argument, we hold that his issue is waived. See
Commonwealth v. Freeman, 128 A.3d 1231, 1249 (Pa. Super. 2015)
(explaining that the appellant “ha[d] made no effort whatsoever to discuss
the applicable law or link the facts of his case to that law” and concluding
that “[h]is failure to develop a coherent legal argument in support of his
claim results in waiver of [the] issue”); Beshore, 916 A.2d at 1140 (finding
waiver where appellant presented no argument explaining how he was
affected by a statutory provision and included no citation to the record to
support his argument, and wherein the Court stated its refusal to develop an
argument for the appellant or scour the record for evidence);
Commonwealth v. Hakala, 900 A.2d 404, 407 (Pa. Super. 2006) (finding
waiver where the appellant “fail[ed] to offer either analysis or case citation
in support of the relief he seeks” and admonishing that “it is not this Court’s
function or duty to become an advocate for the [appellant]”).
Assuming arguendo that this issue is not waived, we would affirm on
the basis of the PCRA court opinion. Although Appellant’s brief fails to
clearly define an argument, Appellant asserts the following in his Pa.R.A.P.
1925(b) statement:
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The [c]ourt erred in not granting an evidentiary hearing in a
matter wherein Appellant had made a prima facie showing of
new evidence. While the evidence was from a witness who had
testified at trial, the new evidence was the recanted statement
and proposed testimony of the witness Jermaine Rippy. The
recantation of Mr. Rippy was timely submitted to the court and
therefore, being timely, merited an evidentiary hearing.
Pa.R.A.P. 1925(b), 1/7/15, at 1. Appellant also set forth this claim in his
PCRA petition, wherein he stated:
Petitioner asserts that he is entitled to relief as newly discovered
evidence that was unavailable at the time of trial, in the form of
ballistics evidence, provides exculpatory evidence that would
have changed the outcome of the trial. That exculpatory
evidence is in the form of an affidavit from the witness Jermaine
Rippy attached hereto as Exhibit A. Petitioner asserts that
Mr. Rippy has recanted his trial testimony as per the attached
affidavit in which Mr. Rippy asserts the assigned homicide
Detective, Kenneth Rossiter coerced his statement and trial
testimony.
Amended PCRA petition, 12/17/14, at ¶ 20 (emphasis in original).
Accordingly, the PCRA court addressed that issue in its Pa.R.A.P. 1925(a)
opinion.
The PCRA court opinion thoroughly and accurately explains why the
information contained in Jermaine Rippy’s post-trial affidavit does not
constitute after-discovered evidence. In sum, at the 2009 trial, Mr. Rippy
recanted the statement he had previously made to police and at the
preliminary hearing. The affidavit merely reiterated the recantation
testimony that was provided at trial. Because no material issue of fact was
raised, Appellant was not entitled to an evidentiary hearing. PCRA Court
Opinion, 3/29/16, at 5-7. Accordingly, were we to consider the issue, we
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would conclude that the PCRA court properly dismissed Appellant’s PCRA
petition without conducting an evidentiary hearing.
Order affirmed.
Judge Moulton joins the Memorandum.
Justice Fitzgerald concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/5/2017
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