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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RASHEED WOODS :
:
Appellant : No. 2317 EDA 2022
Appeal from the PCRA Order Entered August 11, 2022
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0006139-2016
BEFORE: BENDER, P.J.E., LAZARUS, J., and SULLIVAN, J.
MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 21, 2023
Rasheed Woods appeals from the order, entered in the Court of Common
Pleas of Delaware County, dismissing his petition filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon review, we
affirm.
This Court previously summarized the factual and procedural history of
this case as follows:
[Woods] was arrested and charged with [possession with intent to
deliver (PWID) and related offenses] after undercover officers
observed him and his co-defendant, Kaleke Burrell, engage in a
sale of narcotics to an unidentified[] white male on July 21, 2016.
[Woods] and Burrell were arrested shortly after the sale[] and
found to be in possession of large quantities of crack cocaine and
U.S. currency.
Prior to trial, both [Woods] and Burrell filed motions to suppress
the evidence recovered following their warrantless arrests,
arguing that police lacked probable cause. A suppression hearing
was conducted on April 20, 2017. There, Officer Anthony
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Salvatore of the Darby Borough Police Department testified.
Officer Salvatore explained that in February of 2016, he received
information from Andrew Heffer, a then-confidential informant
[(CI)], that [Woods] was the leader of a drug trafficking
organization selling heroin and crack through southwest
Philadelphia and Delaware County. [Officer Salvatore]
investigated Heffer’s claims by checking police reports and
speaking with Sergeant Mike Davis of the 12th District in
Philadelphia. The investigations showed that [Woods] had been
arrested numerous times for drug trafficking [and] firearm
violations. Officer Salvatore deemed Heffer’s tip about [Woods]
reliable[] and set up a controlled purchase of drugs between
Heffer and [Woods]. During the controlled buy, [Woods] sold
Heffer cocaine. Over the ensuing months, Officer Salvatore and
other officers kept continuous[,] non-routine surveillance on
[Woods].
In March of 2016, an individual named Brian Burnett-McCullough
contacted Officer Salvatore, claiming that [Woods] was the leader
of a drug trafficking organization that controlled the area of 72 nd
and 73rd Streets in Southwest Philadelphia. Officer Salvatore
again spoke to Sergeant Davis, who confirmed that he had
received the same information from other sources. Officer
Salvatore also discovered that [Woods] had been arrested by
Cherry Hill Police in New Jersey after a search of an apartment, in
which [Woods] was present and mail addressed to him was found,
had uncovered [cocaine].
On July 21, 2016, Officer Salvatore received information that
[Woods] was going to be making a narcotics transaction in the
area of Andrews Avenue and Blunston Avenue in Collingdale,
Pennsylvania. Officer Salvatore set up surveillance at that
location[] and observed [Woods] arrive in the area around 2:00
p.m., driving a silver Toyota Scion with non-tinted windows. Using
binoculars, Officer Salvatore could see that another man, later
identified as [] Burrell, was a passenger in the car. The vehicle
turned into a driveway and a female came out of the house,
walked over to the driver side of the [] Scion, leaned into the
driver side window, was there for approximately 30 seconds, and
then walked right back into the house.
[Woods] then drove the vehicle out of the driveway and proceeded
to Andrews Avenue and Blunston Avenue, where the car pulled
over again and met with a white male. The man handed U.S.
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currency into the passenger window. The [] ma[n] then received
[a small, clear, Ziploc bag that contained a white substance] in
return and put it in his pocket, turned around and walked right
back across the street and into a house.
* * *
After the man went back into the house, the vehicle driven by
[Woods] . . . was stopped shortly thereafter by Lieutenant Richard
Gibney. . . . Lieutenant Gibney[, accompanied by other officers,]
blocked [Woods’ vehicle and ordered him and Burrell out of the
vehicle.] . . . [Woods] and Burrell were [making furtive
movements,] reaching into their waistbands [and] all over the car.
Ultimately, [police] removed [the men] from the vehicle and
detained [them], after which they were transported to the police
station. During a subsequent search, officers recovered 13
knotted sandwich bags containing [] a hard[,] white[,] chunky
substance[, later determined to be crack cocaine.] Additionally,
in Woods’ possession, officers found $2,110 [] as well as a large
bag holding 37 small[er] clear plastic bags containing a hard,
white, and chunky substance[, later determined to be crack
cocaine.]
Based on this evidence, the [trial] court denied [the suppression
motions].
Commonwealth v. Woods, 221 A.3d 329 (Pa. Super. 2019) (Table)
(footnotes, quotations, and citations omitted).
Following a jury trial, on January 7, 2018, Woods was convicted of PWID
and related offenses. On March 27, 2018, the trial court sentenced Woods to
an aggregate period of four to eight years in prison, followed by five years of
probation. Woods filed a timely notice of appeal to this Court, and we affirmed
his judgment of sentence on August 30, 2019. See id. On September 27,
2019, Woods filed a petition for allowance of appeal in our Supreme Court,
which was denied on March 10, 2020. See id., 226 A.3d 968 (Pa. 2020)
(Table).
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On May 28, 2020, Woods filed the instant pro se PCRA petition. The
PCRA court appointed counsel. However, on January 1, 2021, Woods filed a
pro se motion, requesting that the PCRA court formally remove appointed
counsel because Woods had fired him and Woods’ family had retained Jason
Kadish, Esquire, to represent Woods.1
On April 24, 2021, Attorney Kadish filed an amended PCRA petition. On
February 15, 2022, the Commonwealth filed a response. On July 15, 2022,
the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss Woods’
PCRA petition. On August 10, 2022, the PCRA court dismissed Wood’s PCRA
petition.2
____________________________________________
1 No formal order disposing of the January 1, 2021, motion appears in the
record before this Court. However, we note that the PCRA court began
accepting filings from Attorney Kadish.
2 On August 17, 2022, while still represented by Attorney Kadish, Woods filed
a pro se response to the PCRA court’s Rule 907 notice. We note that hybrid
representation is forbidden in this Commonwealth, and, therefore, the PCRA
court was under no requirement to address this untimely filing. See
Commonwealth v. Jette, 23 A.3d 1032, 1036 (Pa. 2011).
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Woods filed a timely, pro se, notice of appeal3 and a court-ordered
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.4
Woods now raises the following claims for our review:
1. Was [Woods] denied effective assistance of [t]rial [c]ounsel
when [counsel] failed to:
a) Challenge the false [a]ffidavit of [p]robable [c]ause
which[,] was the result of an unlawful search and seizure in
violation of [Woods’] [c]onstitutional rights under the Fourth
Amendment and also failing to request a [Franks5]
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3 In the context of a pro se notice of appeal, “this Court is required to docket
a pro se [n]otice of appeal despite [a]ppellant being represented by
counsel[.]” Commonwealth v. Williams, 151 A.3d 621, 624 (Pa. Super.
2016).
4 Prior to the filing of briefs, Attorney Kadish filed, in this Court, a motion to
withdraw from representation. See Motion to Withdraw, 10/3/22, at 1-2
(unnumbered); see also id. at Exhibit A (handwritten letter, signed by
Woods, requesting PCRA counsel not to file “anything on [his] behalf”). On
October 24, 2022, this Court denied Attorney Kadish’s motion without
prejudice. See Order, 10/24/22, at 1.
Subsequently, Woods, acting pro se, filed, in this Court, an application to stay
his appeal. See Application to Stay, 11/16/22, at 1-3. In this application,
Woods asserted that he had fired Attorney Kadish on August 17, 2022, and
had been acting in a pro se capacity since that date. Id. at 1-2 (detailing pro
se filings of notice of appeal and Rule 1925(b) concise statement, as well as
Attorney Kadish’s motion to withdraw). On December 28, 2022, this Court,
citing Jette, directed that Woods’ application be forwarded to Attorney Kadish.
See Order, 12/28/22. Additionally, this Court directed the PCRA court to
determine whether Woods had waived his right to counsel. See id.
The PCRA Court conducted a hearing pursuant to Commonwealth v.
Grazier, 713 A.2d 1 (Pa. 1998), and determined that Woods had not waived
his rights to counsel. See PCRA Court Order, 1/6/23. Accordingly, the PCRA
court appointed Scott D. Galloway, Esquire, to represent Woods on appeal.
Attorney Galloway has filed an appellate brief in this Court.
5 Franks v. Delaware, 438 U.S. 154 (1978).
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[h]earing to challenge the fraudulent [a]ffidavit of
[p]robable [c]ause[?]
b) Request and provide [Woods] with any and all pre-trial
discovery which [Woods] has not yet received in violation of
the [Brady6] rule?
c) To investigate and/or interview all law enforcement
officers involved in the alleged investigation of [Woods]?
d) Request the testimony of the two alleged [CIs] thereby
denying [Woods] the ability to test the Commonwealth’s
prima facie case, no witnesses to cross examine, no
testimony to preserve, counsel could have had the
opportunity to identify weaknesses in the Commonwealth’s
case or identify possible defenses?
e) [D]evelop through pre-trial, trial[,] and direct appeal
states of proceedings, the specific issue decided in
Alexander,7 that the warrantless each violated [Woods’]
rights as enumerated at Article 1, Section 8 of the
Pennsylvania Constitution[?]
2. Was [Woods] denied the effective assistance of PCRA counsel
when he . . . [f]ailed to properly argue exigent circumstances and
the constitutionality of Commonwealth v. Gary, [] 91 A.3d 102
(Pa[.] 2014) and failed to raise other meritorious issues[?]
3. Was [Woods] denied a fair trial under the [Fourteenth]
Amendment of the United States Constitution when the
prosecution obtained through [sic] the knowing use of . . .
[p]erjured testimony in clear violation of established law[?]
4. Did the PCRA [c]ourt abuse its discretion and violate [Woods’]
constitutional rights under the due process and equal protection
of the law [clauses] when it . . . [d]ismissed [Woods’] PCRA
petition without a hearing, and alleging facts not supported by the
record[?]
____________________________________________
6 Brady v. Maryland, 373 U.S. 82 (1963).
7 Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020).
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Brief for Appellant, at 5-6 (reorganized for clarity).
When reviewing the [dismissal] of a PCRA petition, our scope of
review is limited by the parameters of the [PCRA]. Our standard
of review permits us to consider only whether the PCRA court’s
determination is supported by the evidence of record and whether
it is free from legal error. Moreover, in general[,] we may affirm
the decision of the [PCRA] court if there is any basis on the record
to support the [PCRA] court’s action; this is so even if we rely on
a different basis in our decision to affirm.
Commonwealth v. Heilman, 867 A.2d 542, 544 (Pa. Super. 2005)
(quotations and citations omitted).
For ease of disposition, we address Woods’ ineffectiveness claims first.
Woods raises five sub-issues challenging his trial counsel’s purported
ineffectiveness. Generally, counsel is presumed to be effective and “the
burden of demonstrating ineffectiveness rests on [the] appellant.”
Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010).
To satisfy this burden, an 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. Failure to satisfy any prong
of the test will result in rejection of the appellant’s ineffective
assistance of counsel claim.
Commonwealth v. Holt, 175 A.3d 1014, 1018 (Pa. Super. 2017) (internal
citations omitted).
Instantly, many of Woods’ ineffectiveness challenges are waived, and
we dispose of those claims first. Woods’ argument section fails to mention his
Brady claim, counsel’s alleged failure to investigate the investigating officers,
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or his claim that counsel was ineffective for failing to cross examine the
Commonwealth’s CIs. See Brief for Appellant, at 14-23. Rather, Woods
focuses exclusively on trial counsel’s failure to challenge exigency and his
failure to file a Franks motion. See id. Thus, these three sub-issues are
waived for failure to include any argument, and for failure to address the three
prongs of ineffectiveness. See Pa.R.A.P. 2119(a) (requiring “discussion and
citation of authorities as are deemed pertinent”); Commonwealth v.
Johnson, 985 A.2d 915, 924 (Pa. 2009) (“[W]here an appellate brief fails to
provide any discussion of a claim with citation to relevant authority[,] or fails
to develop the issue in any other meaningful fashion capable of review, that
claim is waived.”); id. at 925 (“It is not the role of this Court to formulate [an
a]ppellant’s arguments for him.”).
Next, we conclude that Woods’ fourth sub-issue his challenge that trial
counsel rendered ineffective assistance for failing to file a Franks motion is
also waived. See Brief for Appellant, at 14-20. This claim does not appear in
Wood’s PCRA petition or his amended PCRA petition. See Pa.R.A.P. 302(a)
(“issues not raised in the lower court are waived and cannot be raised for the
first time on appeal”). Accordingly, this claim is waived as well.
In his fifth sub-issue, Woods’ contends that trial counsel erred by failing
to challenge exigent circumstances in the suppression motion. See Brief for
Appellant, at 11-14, 21-23. Woods acknowledges that Alexander was not
the law of this Commonwealth at the time, but nevertheless contends that
trial counsel should have still challenged exigency. Id.
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This claim is meritless. As acknowledged by Woods, the
Commonwealth, and the PCRA court, Commonwealth v. Gary, 91 A.3d 102,
(Pa. 2014), was the controlling law of our Commonwealth at all times
throughout the pendency of Woods’ case, including the filing of his
suppression motion, suppression hearing, jury trial, and sentencing. See
PCRA Court Opinion, 11/3/22, at 4-8. Indeed, our Supreme Court did not
decide Alexander until two years after Woods’ judgment of sentence. See
Alexander, supra. Therefore, Woods’ trial counsel had a reasonable basis
to not challenge the exigent circumstances, because he was acting in
accordance with the law of our Commonwealth at the time. Similarly, Woods
is unable to demonstrate that his claim had arguable merit, because, at the
time trial counsel could have challenged exigency, the law of this
Commonwealth did not require police to show exigent circumstances. See
Gary, supra; Alexander, supra. Accordingly, Woods is not entitled to relief
on this claim. See Holt, supra.
In his second issue, Woods argues that his PCRA counsel rendered
ineffective assistance by failing to “properly argue exigent circumstances”
when raising his Alexander claim. Brief for Appellant, at 20.
Preliminarily, Woods’ argument on this claim fails to address any of the
three ineffectiveness prongs and, therefore, it fails. Moreover, as we noted
above, PCRA counsel could not have been ineffective for failing to raise trial
counsel’s ineffectiveness, because trial counsel was not ineffective on this
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basis. See Holt, supra. Accordingly, Woods’ is not entitled to relief on this
claim.
In his third issue, Woods argues that at trial, the Commonwealth
knowingly presented “perjured testimony” from Officer Salvatore. See Brief
for Appellant, at 24.
Preliminarily, we find that Woods has waived this claim for failure to
preserve it before the PCRA court. See Pa.R.A.P. 302(a). Indeed, our review
of the record reveals that the first time this claim was raised was in Woods’
appellate brief. Moreover, Woods does not direct us to anywhere in the record
where this claim was presented to the PCRA court, and the PCRA court does
not address it in its Rule 1925(a) opinion. Accordingly, this claim is waived. 8
In his fourth issue, Woods argues that the PCRA court erred in
dismissing his petition without first conducting an evidentiary hearing. See
Brief for Appellant, at 11-12. We disagree. See Pa.R.Crim.P. 907(2) (PCRA
petition may be dismissed without hearing when no genuine issue concerning
any material fact and petitioner not entitled to relief as matter of law). A PCRA
court’s decision to deny a request for an evidentiary hearing is within the
____________________________________________
8 We note that in his brief, Woods refers to this claim a single time, as a
challenge to the ineffectiveness of his trial counsel. Nevertheless, he does not
address any of the three ineffectiveness prongs regarding this claim. See
Holt, supra. Additionally, he routinely refers to this claim in the context of
prosecutorial misconduct. See Brief for Appellant, at 23-26 (Woods titling
argument section “Prosecutorial Misconduct,” and addressing prosecutorial
misconduct caselaw and standard of review). Accordingly, Woods’ single
reference to this claim as an ineffectiveness of counsel claim does not revive
this claim for our review.
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sound discretion of the PCRA court and will not be overturned absent an abuse
of discretion. See Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015).
Instantly, most of Woods’ challenges were waived either for failure to
present them to the PCRA court or for failing to properly brief his arguments
before this Court. Therefore, those claims cannot support his argument that
the PCRA court erred in failing to grant an evidentiary hearing. Moreover, as
discussed supra, Woods’ claims presented to the PCRA court lack merit and
do not satisfy the ineffectiveness prongs. Consequently, the PCRA court did
not abuse its discretion in denying an evidentiary hearing. See Mason,
supra. Accordingly, Woods is not entitled to relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/21/2023
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