Com. v. Grant, M.

J-A25011-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL GRANT :
:
Appellant : No. 1847 EDA 2017

Appeal from the PCRA Order June 1, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003425-2007,
CP-51-CR-0003426-2007

BEFORE: PANELLA, J., DUBOW, J., and KUNSELMAN, J.

MEMORANDUM BY DUBOW, J.: FILED MAY 06, 2019

Michael Grant (“Appellant”) appeals from the Order dismissing his

Petition filed pursuant to the Post-Conviction Relief Act (“PCRA”). He avers,

among other things, that trial and appellate counsel provided ineffective

assistance. After careful review, we affirm.

A jury convicted Appellant of numerous offenses arising from an armed

carjacking and shooting at pursuing police officers. This Court previously set

forth the underlying factual and procedural history as follows:

At approximately 6:45 p.m. on December 29, 2006, [Appellant]
and his co-defendant, Antwuan White, approached Mahn Doan
outside of 2800 Bittern Place in Philadelphia. [Appellant] and
White, who were wearing ski masks and dark coats, held Doan at
gunpoint. They ordered Doan to hand over his money and car
keys. When Doan pretended to not understand English,
[Appellant] removed his mask, grabbed Doan by the jacket, and
repeated his demand. In order to stall, Doan handed them the
wrong set of keys. When [Appellant] and White discovered that
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the keys did not fit the car door, [Appellant] threatened to shoot
Doan if he did not relinquish the correct key. Doan complied, and
[Appellant] and White drove away with the car, Doan’s cell
phones, and his four dollars.

Doan then went across the street to the home of a police officer,
who called 911 for Doan. Coincidentally, another off-duty police
officer witnessed the incident from his car and pursued [Appellant]
and White. The pursuit turned into a high-speed car chase
[through a residential neighborhood]. At the intersection of 65th
Street and Eastwick Street, [Appellant] exited the stolen vehicle
to fire several gunshots at the off-duty officer pursuing them.
[Appellant] then returned to the car, and the chase resumed. As
they crossed the Passyunk Bridge, [Appellant] again fired his
weapon at the officer, who returned fire. When [Appellant] and
White reached the corner of Sixth and Ritner Streets, they stopped
the vehicle and attempted to escape on foot. The officer chased
and arrested White. Doan was brought to the scene and identified
White as one of his assailants.

[Appellant] was arrested later at the University of Pennsylvania
Hospital [on December 30, 2006] when he sought treatment for a
gunshot wound to the arm. Although [Appellant’s] physical
characteristics did not match the first description given by Doan,
the police had reason to believe that [Appellant] was the second
perpetrator. The police constructed a photographic array around
[Appellant’s] actual physical characteristics and presented the
array to Doan for identification. The presenting officer informed
Doan that the police had a suspect, but the officer did not suggest
which one of the eight persons in the array was the suspect. Doan
positively identified [Appellant] from the array.

[The court held a preliminary hearing on March 20, 2007, and the
matter was held for court. The Commonwealth filed the
Information on April 2, 2007. Appellant was released on nominal
bail to house arrest with electronic monitor on July 27, 2007,
pursuant to Pa.R.Crim.P. 600(E). The court revoked Appellant’s
release after his arrest for having two women purchase firearms
for him.]

[The court granted one continuance of 24 days to the
Commonwealth, which was not excusable delay for purposes of
Rule 600. The court continued the trial an additional 57 days due
to the complainant’s unavailability. In addition, the court granted
numerous continuances to Appellant, which amounted to 251 days

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of excludable time. Further, 133 days was excludable from the
Rule 600 calculation due to the court’s schedule.]

Prior to trial, [Appellant] moved to suppress all identifications and
the testimonies of Sharee Bostic and Lawandra Casey. Both Bostic
and Casey were prepared to testify that they had straw purchased
nine millimeter (9mm) handguns for [Appellant]—the same
caliber of weapons as the shell casings recovered from the scene.
The trial court denied [Appellant’s] motions to suppress. The
court also granted, over [Appellant’s] objection, the
Commonwealth’s motion in limine to introduce the 911 recordings
that captured some of the incident in live action. All of the
foregoing evidence was admitted at trial. [In addition, Appellant
stipulated to the authenticity of the 911 tapes prior to their
introduction to the jury.]

A jury convicted [Appellant] of one count of robbery by threat of
serious bodily injury,1 one count of criminal conspiracy,2 one count
of robbery of a motor vehicle,3 one count of carrying a firearm
without a license,4 one count of carrying a firearm in public in
Philadelphia without a license,5 and one count of possessing an
instrument of crime.6 On November 25, 2008, the trial court
sentenced [Appellant] to an aggregate term of twenty-five to fifty
years of imprisonment, followed by fifteen years of probation.

Commonwealth v. Grant, No. 114 EDA 2009, at 1-4 (Pa. Super. filed Aug.

4, 2010); see also N.T. Sentencing, 11/05/2008, at 20-25.

This Court affirmed the Judgment of Sentence and the Pennsylvania

Supreme Court denied allowance of appeal on March 20, 2011.

Commonwealth v. Grant, 19 A.3d 1050 (Pa. 2011).

____________________________________________

1 18 PA. C.S. § 3701(a)(1)(ii).
2 18 PA. C.S. § 903(a)(1).
3 18 PA. C.S. § 3702(a).
4 18 PA. C.S. § 6106(a)(1).
5 18 PA. C.S. § 6108.
6 18 PA. C.S. § 907(a).

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On November 30, 2011, Appellant filed pro se the instant PCRA Petition.

The court appointed counsel on March 12, 2012, who filed an amended Petition

on July 27, 2014, adopting Appellant’s issues raised in his pro se filing. On

May 13, 2016, the Commonwealth filed a Motion to Dismiss. On July 15, 2016,

Appellant filed a Motion seeking permission to file a “supplement” to the

Amended PCRA Petition and a Supplemental Petition for PCRA Relief. The

Commonwealth responded. On August 26, 2016, the PCRA court filed a Notice

of its intent to dismiss the Petition pursuant to Pa.R.Crim.P. 907, to which

Appellant responded. On November 28, 2016, the Commonwealth filed a

response to Appellant’s Rule 907 Response, again filing its Motion to Dismiss

annexed as an exhibit. Appellant responded on January 17, 2017, and the

Commonwealth responded to Appellant’s response.

On April 24, 2017, the court again filed a Rule 907 Notice, and on June

1, 2017, the court granted the Commonwealth’s Motion and dismissed the

Petition. Appellant timely appealed on June 5, 2017. On June 12, 2017,

counsel filed a motion to withdraw as counsel with the trial court, and on July

5, 2017, counsel filed an ordered Pa.R.A.P. 1925(b) statement. On September

22, 2017, the trial court granted counsel’s motion and appointed current

counsel, Daniel A. Alvarez, Esq., to represent Appellant in this appeal.7

____________________________________________

7 We note that after Appellant filed his Notice of Appeal, the PCRA court no
longer had jurisdiction. However, in the interests of judicial economy, we
accept the trial court’s appointment of appellate counsel.

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Appellant raises the following 10 issues, renumbered for ease of

disposition, challenging the stewardship provided by trial and appellate

counsel:

1. Did the Commonwealth violate Brady[8] by intentionally
withholding or by gross negligence failing to discover the
complainant’s criminal record, to include for crimen falsi?

2. Was trial (and appellate counsel) counsel ineffective for not
raising a speedy trial motion to dismiss?

3. Were trial and appellate counsel ineffective for not raising
issues of police negligence and/or misconduct?

4. Were trial and appellate counsel ineffective while arguing for
suppression of the in-court and out of court identification by the
complainant as a result of failure to investigate?

5. Was trial counsel ineffective for failing to competently
investigate whether there were any eyewitnesses or alibi
witnesses?

6. Were trial and appellate counsel ineffective in challenging the
introduction of the 911 tapes of police officers at trial where they
were offered to inflame the emotions of the jurors, and where its
probative value was substantially outweighed by its unfair
prejudice, confusion of issues, undue delay and cumulative effect?

7. Was appellate counsel ineffective for not raising trial counsel’s
failure to object to the Commonwealth’s failure to disclose the
results of the ballistic expert’s ballistics examination, during the
motion in limine, which resulted in the lower court’s permitting the
testimony of Sharee Bostsic and Lawandra Casey?

8. Was trial counsel ineffective for failing to request adequate jury
instructions?
____________________________________________

8 Brady v. Maryland, 373 U.S. 83, 87 (1963). Although not stated in his
Statement of Questions Involved, Appellant notes in his Brief that trial counsel
failed to discover and obtain the complainant’s criminal record. The trial court
addressed this claim as an ineffectiveness claim and we will do likewise.

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9. Was trial counsel ineffective for failing to object to or request
a mistrial when the Commonwealth acted in bad faith by including
speculative and inaccurate comments at trial intended to create
bias and hostility toward Appellant, while bolstering the
complainant’s testimony?

10. Was trial counsel ineffective for failing to challenge with post-
sentence motions the excessiveness of the sentence where the
lower court entered a sentence more than needed for the
protection of the public, and where many of the charges received
sentences that were upward guideline departures where the trial
court failed to consider compelling mitigation factors presented by
the Appellant?

Appellant’s Brief at 4.9

We review the denial of a PCRA Petition to determine whether the record

supports the PCRA court’s findings and whether its order is otherwise free of

legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This

Court grants great deference to the findings of the PCRA court if they are

supported by the record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.

____________________________________________

9 Appellant also raises the following issue, originally numbered as 6: “Did the
lower court err in not granting a lineup as requested by trial counsel for the
Complainant where the identification testimony in this matter was tainted?”
This issue as stated is not cognizable under the PCRA. See 42 Pa.C.S. §
9543(a)(2)-(4); 42 Pa.C.S. § 9544(b). Moreover, in his brief, Appellant
asserts in one phrase of one sentence in conclusion, without any development,
that “Appellant’s counsel should have objected to and pointed this out.”
Appellant’s Brief at 28. He then “incorporate[s] by reference” the arguments
of his PCRA Petition. Our Supreme Court has categorically rejected
incorporation by reference as a means of presenting an issue. See
Commonwealth v. Briggs, 12 A.3d 291, 342–43 (Pa. 2011) (citations
omitted) (stating that, where an appellant incorporates prior arguments by
reference in contravention of Pa.R.A.P. 2119(a) and (b), he or she waives such
claims on appeal). We, thus, decline to address this issue.

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Super. 2007). We give no such deference, however, to the court’s legal

conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super.

2012).

Ineffective Assistance of Counsel

The law presumes counsel has rendered effective assistance.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). The

burden of demonstrating ineffectiveness rests on Appellant. Id. To satisfy

this burden, Appellant must plead and prove by a preponderance of the

evidence 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 challenged

proceeding would have been different.” Commonwealth v. Fulton, 830 A.2d

567, 572 (Pa. 2003) (citations omitted). Failure to satisfy any prong of the

test will result in rejection of the appellant’s ineffective assistance of counsel

claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).

With respect to layered ineffectiveness claims, the Pennsylvania

Supreme Court has provided the following guidance:

[I]n order for a petitioner to properly raise and prevail on a layered
ineffectiveness claim, sufficient to warrant relief if meritorious, he
must plead, present, and prove the ineffectiveness of Counsel
2 (appellate counsel), which as we have seen, necessarily reaches
back to the actions of Counsel 1 (trial counsel). To preserve (plead
and present) a claim that Counsel 2 was ineffective in our
hypothetical situation, the petitioner must: (1) plead, in his PCRA
petition, that Counsel 2 was ineffective for failing to allege that

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Counsel 1 was ineffective for not [taking the suggested actions],
see Commonwealth v. Marrero, 748 A.2d 202, 203, n. 1
(2000); and (2) present argument on, i.e., develop, each prong
of the Pierce test as to Counsel 2's representation, in his briefs or
other court memoranda. Then, and only then, has the petitioner
preserved a layered claim of ineffectiveness for the court to
review[.]

Commonwealth v. McGill, 832 A.2d 1014, 1022 (Pa. 2003) (emphasis in

original).

“Where, however, the petitioner fails to plead, present and prove all

three prongs of the [] test regarding the underlying issue of trial counsel's

ineffectiveness, … [a] petitioner is unable to establish the requisite arguable

merit prong of his layered claim of appellate counsel's ineffectiveness.”

Commonwealth v. Reyes, 870 A.2d 888, 897 (Pa. 2005) (citation omitted).

Appellant raises ten ineffective assistance of counsel claims. We

address the merits of each underlying issue seriatim.

Brady claim

Appellant first asserts that the Commonwealth improperly withheld from

defense counsel the fact that, when he testified, the victim had convictions for

crimin falsi offenses. He asserts that “only the Commonwealth has access to

the FBI criminal record database,” and the victim’s social security number, so

“the Commonwealth’s contention that they could not have known and did not

know of the [victim’s] criminal record [because of his use of aliases] is

completely without credibility.” Appellant’s Brief at 14. He asserts that “the

crimen falsi criminal record would have been used by Appellant at trial to

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impeach the victim; and this resulted in great prejudice to the Appellant.” Id.

In a one-sentence footnote, Appellant “contends that the trial counsel failed

to discover and obtain the [victim’s] criminal record.” Id., at 14 n.3.

Brady provides that “the suppression by the prosecution of evidence

favorable to an accused upon request violates due process where the evidence

is material either to guilt or to punishment, irrespective of the good faith or

bad faith of the prosecution.” 373 U.S. at 87. See also Pa.R.Crim.P.

573(B)(1)(a) (pertaining to the mandatory disclosure of evidence favorable to

the accused which is material to guilt or to punishment of the accused, and

which is within the possession or control of the prosecutor).

Impeachment evidence falls within the parameters of Brady. United

States v. Bagley, 473 U.S. 667, 676 (1985). As the United States Supreme

Court has stated, “[w]hen the ‘reliability of a given witness may well be

determinative of guilt or innocence,’ nondisclosure of evidence affecting

credibility falls within this general [Brady] rule.” Giglio v. United States,

405 U.S. 150, 154 (1972) (quoting Napue v. Illinois, 360 U.S. 264, 269

(1959)). “Thus, at the time of [the] appellant's trial, the Commonwealth was

required to provide [the] appellant with information in its possession [that]

impacted upon the credibility of its witnesses.” Commonwealth v.

Galloway, 640 A.2d 454, 457 (Pa. Super. 1994).

It is without doubt that the information upon which Appellant bases his

Brady violation claim may have “impacted upon the credibility” of the victim.

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Id. However, to establish a Brady violation, an appellant must prove three

elements: “(1) the evidence at issue is favorable to the accused, either

because it is exculpatory or because it impeaches; (2) the evidence was

suppressed by the prosecution, either willfully or inadvertently; and (3)

prejudice ensued.” Commonwealth v. Weiss, 81 A.3d 767, 783 (Pa. 2013)

(emphasis added). In addition, “[t]he withheld evidence must have been in

the exclusive control of the prosecution at the time of trial. No Brady violation

occurs when the defendant knew, or with reasonable diligence, could have

discovered the evidence in question. Similarly, no violation occurs when the

evidence was available to the defense from a non-governmental source.”

Commonwealth v. Haskins, 60 A.3d 538, 547 (Pa. Super. 2012).

In order to demonstrate prejudice, “the evidence suppressed must have

been material to guilt or punishment.” Commonwealth v. Gibson, 951 A.2d

1110, 1126 (Pa. 2008).

Evidence is material under Brady when there is a reasonable
probability that, had the evidence been disclosed, the result of the
trial could have been different. Kyles v. Whitley, 514 U.S. 419,
433–34[ ] (1995). “The mere possibility that an item of
undisclosed information might have helped the defense, or might
have affected the outcome of the trial does not establish
materiality in the constitutional sense.” Commonwealth v.
McGill, [ ] 832 A.2d 1014, 1019 ([Pa.] 2003) (quoting U.S. v.
Agurs, 427 U.S. 97, 109–10[ ] (1976)). The relevant inquiry is
“not whether the defendant would more likely than not have
received a different verdict with the evidence, but whether in its
absence he received a fair trial, understood as a trial
resulting in a verdict worthy of confidence.” Kyles, 514 U.S.
at 434 [ ] [(emphasis added)]. To prove materiality where the
undisclosed evidence affects a witness' credibility, a defendant
“must demonstrate that the reliability of the witness may well be

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determinative of the defendant's guilt or innocence.”
Commonwealth v. Johnson, 556 Pa. 216, 727 A.2d 1089, 1094
(1999).

Haskins, 60 A.3d at 547 (duplicative citations omitted; emphasis added).

In the instant case, while the evidence at issue may have been favorable

to Appellant in that it may have provided a basis to impeach the credibility of

the victim’s testimony, we cannot conclude that had the evidence been

disclosed, there is a reasonable probability that “the result of the trial would

have been different.” Kyles, supra at 433 (citation omitted). As the trial

court observed:

Here, there is no evidence the Commonwealth was aware of the
victim’s criminal convictions. [The victim] did have several
criminal convictions, but those convictions were all prosecuted
under a different name. Therefore, searching for [the victim’s]
name would not have revealed the convictions. Further Petitioner
does not allege how the lack of impeachment on the victim’s
criminal record would cause prejudice in light of the overwhelming
evidence of guilt. Indeed, the victim was not the only witness to
identify defendant, and there was also significant circumstantial
evidence of guilt. This claim is meritless. Because this claim is
meritless, trial counsel cannot be deemed ineffective for failure to
cross-examine on these grounds.

Trial Ct. Op., filed Sept. 29, 2017, at 7.

The record supports the PCRA court’s analysis. Appellant could not

prove that the Commonwealth knew or possessed any impeachment evidence,

and he cannot show that there is a reasonable probability the outcome of the

trial would have been different or that he received an unfair trial. Accordingly,

Appellant’s Brady claim is meritless, and his claim of trial counsel’s

ineffectiveness, thus, fails.

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Pa.R.Crim.P. 600

Appellant next asserts a layered ineffectiveness claim, averring that

counsel should have filed a Rule 600 motion to dismiss because “much more

than 365 days had elapsed from arrest to the time of trial.” Appellant’s Brief

at 18.10

Under Rule 600, “[t]rial in a court case in which a written complaint is

filed against the defendant shall commence within 365 days from the date on

which the complaint is filed.” Pa.R.Crim.P. 600(A)(2)(a). “[P]eriods of delay

at any stage of the proceedings caused by the Commonwealth when the

Commonwealth has failed to exercise due diligence shall be included in the

computation of the time within which trial must commence.” Pa.R.Crim.P.

600(C)(1). “Any other periods of delay shall be excluded from the

computation.” Id.

To determine whether dismissal is required for a violation of Rule 600,

“a court must first calculate the ‘mechanical run date,’ which is 365 days after

the complaint was filed.” Commonwealth v. Goldman, 70 A.3d 874, 879

(Pa. Super. 2013). Thereafter, an adjusted Rule 600 run date is computed,

____________________________________________

10 In a footnote, Appellant asserts that appellate counsel was also ineffective
“on this point” and “incorporate[s] by reference” his argument as found in his
pro se PCRA Petition. Appellant’s Brief at 15 n.4. Our Supreme Court has
categorically rejected incorporation by reference as a means of presenting an
issue. See Commonwealth v. Briggs, 12 A.3d 291, 342–43 (Pa. 2011).
Accordingly, we conclude Appellant waived his claim challenging appellate
counsel’s assistance for failing to raise a Rule 600 issue.

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and the defendant is entitled to discharge under Rule 600 only where trial

started after the adjusted run date. Id. (noting that Rule 600 “provides for

dismissal of charges only in cases in which the defendant has not been brought

to trial within the term of the adjusted run date, after subtracting all

excludable and excusable time.”).

The adjusted run date is calculated by adding to the mechanical run date

both excludable and excusable delay. Id. Excludable delay is delay caused

by the defendant or his lawyer. Id. “Excusable delay is delay that occurs as

a result of circumstances beyond the Commonwealth's control and despite its

due diligence.” Id. Excusable delay encompasses a wide variety of situations

where the postponement of trial was outside of the Commonwealth's control.

Commonwealth v. Armstrong, 74 A.3d 228, 236 (Pa. Super. 2013).

Additionally, “[d]ue diligence is a fact-specific concept that must be

determined on a case-by-case basis. Due diligence does not require perfect

vigilance and punctilious care, but rather a showing by the Commonwealth

that a reasonable effort has been put forth.” Id. (citation omitted).

Finally, we are mindful that Rule 600 not only guards a defendant's

speedy trial rights, but also protects society's interest in prosecuting crime.

“[T]he administrative mandate of Rule 600 was not designed to insulate the

criminally accused from good faith prosecution delayed through no fault of the

Commonwealth.” Id. at 235. Thus, if “there has been no misconduct on the

part of the Commonwealth in an effort to evade the fundamental speedy trial

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rights of an accused, Rule 600 must be construed in a manner consistent with

society's right to punish and deter crime.” Id.

Here, the Commonwealth filed the information on April 2, 2007, and the

mechanical run date was, thus, April 1, 2008.11 From April 2, 2007, until the

date of trial, September 19, 2008, 537 days elapsed, thus, exceeding the 365-

day period provided in Rule 600. However, in addressing the delays in its

Pa.R.A.P. 1925(a) Opinion, the court stated:

[T]he vast majority of the delay was due to either defense
continuances or difficulties in court scheduling. These delays
cannot be properly attributed to the Commonwealth. When all
excludable and excusable time is considered, defendant was
brought to trial well within 365 of his arrest. Thus, the case was
tried within the time allotted by Rule 600. In light of the
foregoing, counsel cannot be deemed ineffective for failing to file
a meritless . . . Rule 600 motion.

Trial Ct. Op., 9/29/17, 9-10.

In support of his claim, Appellant presents a rather sketchy recitation of

certain delays that occurred, and concludes that “only 23 [days] were

attributable to the defense, and 615 were attributable to the Commonwealth.”

Appellant’s Brief at 20. Our review of the docket indicates that Appellant

grossly misstates the facts.

The calculation of time for Rule 600 purposes began to run on April 2,

2007, when the Commonwealth filed its information. See Rule 600(A)(2)(a),

____________________________________________

11 The calculation accounts for the extra day in the 2008 leap-year.

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supra. The mechanical run date was, therefore, April 1, 2008. When

Appellant’s trial began September 19, 2008, a total of 537 days had elapsed.

Our review of the docket shows that of 81 days of delay attributable to

the Commonwealth, 57 days were excusable due to the unavailability of the

complainant and the court’s schedule.12 Further, our review shows that

Appellant requested four continuances, totaling 251 days of excludable delay.

Finally, 133 days of delay was due to the court’s scheduling conflicts.

Accordingly, 441 days were excludable and/or excusable delay.

Therefore, adding these days to the mechanical run date renders an

adjusted run date of June 16, 2009. Appellant’s trial began on September 19,

2008, well within the adjusted run date. Accordingly, Appellant’s Rule 600

issue has no merit. Because Appellant has not proven all three prongs of the

ineffectiveness test, this ineffectiveness claim fails.

Police negligence and/or misconduct

Appellant contends that there was “separate[ ] and especially

cumulative[ ]” police “misconduct and/or negligence” that “were ‘bad faith’

acts and unfairly prejudiced him” Appellant’s Brief at 22. He lists 9 instances

of alleged misconduct, see id. at 22, and summarily concludes that trial

counsel was ineffective for failing to investigate and argue that the photo array

identification should not have been introduced at trial as a prior identification

____________________________________________

12Appellant has not alleged, and the record does not show, that the
Commonwealth did not act with diligence.

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because Appellant was in the hospital and allegedly arrested prior to the

identification, and defense counsel was not present when the complainant

picked Appellant out of the photo array. With respect to the other instances

of alleged police misconduct/negligence, Appellant “incorporate[s] by

reference” the arguments set forth in his PCRA Petition. We conclude

Appellant has waived this issue for the following reasons.

To develop an issue for our review, Appellant bears the burden of

ensuring that his argument section includes citations to pertinent authorities

as well as discussion and analysis of the authorities. See Pa.R.A.P. 2119(a);

Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007) (“[I]t is an

appellant’s duty to present arguments that are sufficiently developed for our

review. The brief must support the claims with pertinent discussion, with

references to the record and with citations to legal authorities.” (citations

omitted)). As this Court has made clear, we “will not act as counsel and will

not develop arguments on behalf of an appellant.” Id. (citation omitted).

Where defects in a brief “impede our ability to conduct meaningful appellate

review, we may dismiss the appeal entirely or find certain issues to be

waived.” Id. (citations omitted).

With respect to the one instance Appellant specifically challenges in his

Brief, he contends that he was under arrest while in the hospital because he

“was not free to leave” and his clothes had been taken by police as evidence

because he was a suspect. Aside from these conclusory statements and

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citation to his PCRA Petition, he fails to develop an argument with citation to

the record or authority beyond citation to boilerplate case law. Appellant’s

failure to develop an argument as required by our briefing rules significantly

hampers this Court’s review.

In addition, our Supreme Court has categorically rejected incorporation

by reference as a means of presenting an issue. See Commonwealth v.

Briggs, 12 A.3d 291, 342–43 (Pa. 2011) (citations omitted) (stating that,

where an appellant incorporates prior arguments by reference in

contravention of Pa.R.A.P. 2119(a) and (b), he or she waives such claims on

appeal). Accordingly, we conclude Appellant has waived this issue and, thus,

this ineffectiveness claim garners no relief.

Suppression Motion

In a two-paragraph presentation, Appellant asserts a layered

ineffectiveness claim ostensibly challenging the manner in which trial counsel

argued his pre-trial suppression motion, “especially with regard to the post-

arrest photo array that took place in violation of Appellant’s right to counsel.”

Appellant’s Brief at 25. Appellant then incorporates by reference the

arguments presented in his PCRA Petition. Id. Appellant utterly fails to

provide any factual context, citation to the record, citation to legal authority,

or a developed argument in his Brief. Accordingly, this claim is waived.

Pa.R.A.P. 2119(a)-(e); Briggs, supra at 342–43.

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Failure to Investigate

In his fifth issue, Appellant “contends that trial counsel failed to

competently investigate whether there were any eye witnesses or alibi

witnesses on Appellant’s behalf.” Appellant’s Brief at 26. In support,

Appellant contends that preliminary hearing counsel ignored his requests to

obtain footage from a fast food restaurant “miles away during the approximate

time of the incident” which would have been exculpatory when combined with

a receipt from the restaurant. Id., quoting PCRA Petition, 11/30/11, at 31.

He avers that there was at least one alibi witness who counsel should have

called, an employee of the restaurant, who would corroborate his alibi that

Appellant was there at the time of the shooting. He then incorporates by

reference the argument asserted in his PCRA Petition.

As noted above, incorporating an argument by reference results in

waiver of the claim. Briggs, supra at 342–43.

Moreover, we note that Appellant’s counsel did file a Notice of Alibi

Defense in the trial court on June 28, 2007, listing the names of five

individuals. Appellant’s asserted alibi was that he was “travelling in West

Philadelphia near 5400 Pashall Avenue” at the time of the shooting. Notice of

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Alibi Defense, filed 6/28/07.13 Accordingly, there is no merit to Appellant’s

claim that counsel failed to ascertain the existence of alibi witnesses.

Most significantly, Appellant fails to acknowledge that during a colloquy

with the court, Appellant stated that he had discussed with his counsel calling

potential witnesses, beside defense counsel’s investigator who testified, and

concluded that it was “best not to.” N.T., 9/23/08, at 50. “A defendant who

voluntarily waives the right to call witnesses during a colloquy cannot later

claim ineffective assistance[.]” Commonwealth v. Lawson, 762 A.2d 753,

756 (Pa. Super. 2000).14 Thus, even if not waived, we would conclude the

issue is meritless.

____________________________________________

13 The Notice of Alibi Defense does not indicate that Appellant was in a
restaurant at the time of the incident. See Notice of Alibi Defense, filed June
28, 2007.

14 Moreover, as the trial court acknowledged in its Rule 1925(a) Opinion, in
order to obtain relief on a claim that counsel failed to investigate the existence
of witnesses, an appellant must show the court that (1) the witnesses existed;
(2) the witnesses were available and prepared to cooperate and testify on the
appellant’s behalf; (3) counsel was informed of the existence of the witnesses
or should have known of their existence; and (4) the absence of the testimony
prejudiced the appellant. Commonwealth v. Lawson, 762 A.2d 753, 756
(Pa. Super. 2000). Here, Appellant has not identified the alleged alibi witness
by name, and has failed to submit an affidavit from the alleged witness
indicating he/she was available and willing to testify on Appellant’s behalf.
Moreover, there is nothing in the record indicating that trial counsel knew of
this alleged alibi prior to or during trial since his Notice of Alibi Defense states
that he was traveling on a street at the time of the incident. Accordingly,
Appellant’s claim, even if not waived, would garner no relief.

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Preliminary Hearing Lineup Request

Appellant next contends that preliminary hearing counsel was ineffective

for not challenging the preliminary hearing court’s denial of his request for a

lineup. Appellant contends that the Commonwealth “confused and/or misled”

the preliminary hearing court when it stated only the circumstances

surrounding the arrest of his co-defendant which led to the denial of the lineup

request. Appellant’s Brief at 27-28. He asserts that Appellant’s counsel

should have “objected to and pointed this out.” Id. at 28. He then

incorporates by reference the arguments presented in his PCRA Petition,

providing no further discussion or analysis in his Brief.

We conclude Appellant has waived this claim. See Briggs, supra at

342–43 (stating that where an appellant incorporates prior arguments by

reference in contravention of Pa.R.A.P. 2119(a) and (b), he or she waives such

claims on appeal); Pa.R.A.P. 2119 (briefing requirements).15

____________________________________________

15Moreover, we note that the victim identified Appellant from a photo array
shortly after the incident, and one of the police officers involved in the car
chase identified Appellant from both a subsequent lineup and at trial. See
N.T., 9/18/08, at 119-27; 9/19/07 at 10, 14; and 9/22/08, at 107. Appellant
does not explain to this Court how the failure of the preliminary hearing
counsel to challenge the court’s denial of his then-request to conduct a lineup
caused him to suffer prejudice.

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Failure to advise properly regarding stipulation of 911
tapes’ authenticity

Appellant next contends that, although counsel challenged the

introduction of the 911 tapes that were recorded during the high speed chase

by Officer Williams of the suspects, counsel ultimately provided ineffective and

incompetent advice to Appellant prior to his agreeing to stipulate to the tape’s

authenticity in light of their prejudicial nature. Appellant’s Brief at 28. Once

again, Appellant utterly fails to present any discussion or argument to support

his claim, stating only that the tapes were inflammatory and prejudicial and

then incorporating by reference the arguments outlined in his PCRA Petition.

Appellant has waived this issue for, once again, failing to develop it in

accordance with our rules of appellate procedure.16 See Pa.R.A.P. 2119(a)-

(e); Briggs, supra at 342–43. Accordingly, no relief is due.

Appellate counsel’s failure to raise trial counsel’s failure

Appellant asserts appellate counsel should have raised trial counsel’s

failure to object to the Commonwealth’s failure to disclose the results of the

expert ballistics report when the motion in limine was argued. Appellant’s

Brief at 29. Appellant again makes no attempt to present any argument or

____________________________________________

16In addition, in our disposition of Appellant’s direct appeal, this Court held
that the trial court did not abuse its discretion in admitting the tapes. See
Commonwealth v. Grant, No. 114 EDA 2009, at 9 (Pa. Super. filed Aug. 4,
2010). Accordingly, Appellant’s claim that the tapes were highly prejudicial
has been previously litigated and cannot be addressed in the context of the
PCRA. 42 Pa.C.S. § 9543(a)(3).

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analysis, instead incorporating by reference “the entirety of his argument in

his PCRA Petition.” Accordingly, this issue is waived. See Pa.R.A.P. 2119(a)-

(e); Briggs, supra.

Moreover, the time for challenging trial counsel’s assistance is in a post-

conviction relief petition, not on direct appeal. 42 Pa.C.S. § 9543(a)(2)(ii);

Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002). Accordingly,

appellate counsel could not be found ineffective for failing to challenge trial

court’s stewardship on direct appeal.

Failure to request adequate jury instructions

After stating that trial counsel “failed to competently request adequate

jury instructions” at the charging conference, Appellant states “[t]he

arguments outlined in the PCRA Petition are hereby incorporated by reference

herein.” Appellant’s Brief at 30. His failure to develop an argument as

required by our rules of appellate procedure has, once again, resulted in the

waiver of the issue. See Pa.R.A.P. 2119(a)-(e); Briggs, supra.

Prosecutorial Misconduct

In his penultimate issue, Appellant contends that “trial counsel was

ineffective when not requesting a mistrial in response to certain statements

made by the Commonwealth during [c]losing [a]rguments, which amounted

to prosecutorial misconduct.” Appellant’s Brief at 30. Appellant quotes from

his PCRA Petition to direct our attention to the statements he asserts are part

of the prosecutor’s misconduct. See id., at 30-31. He fails, however, to cite

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to the record and presents no case law or legal analysis. Instead, Appellant

again notes that “[t]he arguments outlined in the PCRA Petition are hereby

incorporated by reference herein.” Id. at 32. Accordingly, as with the other

issues discussed above, this issue is waived. See Pa.R.A.P. 2119(a)-(e);

Briggs, supra.

Failure to file post sentence motions challenging
excessiveness of sentence

In his last issue, Appellant asserts that trial counsel was ineffective for

failing to file a Post-Sentence Motion challenging the excessiveness of his

sentence. Because Appellant raised this challenge for the first time in his

Pa.R.A.P. 1925(b) Statement, it is waived. See Pa.R.A.P. 302(a); Pa.R.A.P.

1925(b)(4)(vii); Commonwealth v. Melendez–Rodriguez, 856 A.2d 1278,

1287 (Pa. Super. 2004) (en banc) (holding issues raised for first time in

1925(b) Statement waived).

CONCLUSION

In sum, we conclude that the issues Appellant raised in this appeal of

the denial of his first PCRA Petition are either waived or without merit. Our

review of the record supports the PCRA court’s disposition and we discern no

errors of law. We, thus, affirm the Order denying PCRA relief.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/6/19

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