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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
KARIM GAGE
Appellant No. 1219 EDA 2015
Appeal from the PCRA Order Dated March 18, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No: CP-23-CR-0004663-2007
BEFORE: MUNDY, OTT, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED FEBRUARY 13, 2017
Appellant Karim Gage pro se appeals from the March 18, 2015 order of
the Court of Common Pleas of Delaware County (“PCRA court”), which
denied without a hearing his request for collateral relief under the Post
Conviction Relief Act (the “Act”), 42 Pa.C.S.A. §§ 9451-46. Upon review, we
affirm.
The facts and procedural history underlying this case are undisputed.
As recounted by a prior panel of this Court:
At 2:08 a.m. on April 12, 2007, police were called to Diamond
Lounge in Darby, Delaware County, where, as a result of
witnesses’ statements and the evidence at the scene, Appellant
was identified as a person of interest in a shooting. Later that
day, police received a report of shots fired at Appellant’s
residence. When they responded, Appellant was not at the
residence; however police received a tip from a known, reliable
confidential informant that individuals went to Appellant’s home
to kill him in retaliation for the earlier shooting. The informant
also told police that Appellant fled from his home and was hiding
with a gun at the Sunshine Laundromat in Darby.
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When the police entered the laundromat, Appellant was
standing near a plastic laundry bin in the corner of the premises
and moved away from it as the police approached. The laundry
bin had a locking lid and there were folded clothes on top of it.
Police searched Appellant for weapons and handcuffed him for
safety. Police discovered several hundred dollars in cash on his
person. At that time, they placed Appellant under arrest and
asked whether anything else in the Laundromat, including the
laundry bin in the corner, belonged to him. Appellant indicated
that nothing in the laundromat belonged to him. Upon searching
the laundry bin, police found a bag of crack cocaine, around 100
empty Ziploc bags, and a gun. The gun was a .22 caliber
revolver that had been fired once.
After finding this evidence, the police asked the
laundromat owner to review the surveillance video. The video
showed Appellant enter the laundromat, walk back and forth
while looking out the windows, go to the rear of the laundromat,
and approach the laundry basket, and make motions with his
hands. Later, while in custody, Appellant admitted he had fired
one bullet from his gun while fleeing his house. Prior to trial,
Appellant filed a motion to suppress the gun and the drugs,
which the trial court denied.
On September 18, 2008, following a jury trial, Appellant
was found guilty of [possession with intent to deliver (“PWID”)
(35 P.S. § 780-113(a)(30))], possession of a controlled
substance [(35 P.S. § 780-113(a)(16))], and possession of drug
paraphernalia [(35 P.S. § 780-113(a)(32))]. Appellant was also
found guilty in a bench trial of possession of a firearm by a
person not to possess a firearm [(18 Pa.C.S.A. § 6105)]. The
trial court sentenced him to a mandatory minimum of five to ten
years for PWID, a consecutive term of three to six years for the
firearms conviction.[1]
Appellant filed a timely notice of appeal and Pa.R.A.P.
1925(b) statement of errors complained of on appeal on January
7, 2009; however, counsel failed to file a brief and the appeal
was dismissed. Appellant sought relief under the PCRA and the
PCRA court reinstated his direct appeal rights nunc pro tunc on
October 6, 2010.
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1
The charge of simple possession merged with PWID for the purpose of
sentencing.
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Commonwealth v. Gage, No. 3012 EDA 2010, unpublished memorandum,
at 1-3 (Pa. Super. filed October 25, 2011) (internal citations and footnotes
omitted), appeal denied, 63 A.3d 774 (Pa. 2013).
On appeal, we affirmed Appellant’s judgment of sentence, concluding
that his conviction was supported by sufficient evidence and that the trial
court did not err in denying his suppression motion. As noted, our Supreme
Court denied Appellant’s petition for allowance of appeal and subsequently,
on October 7, 2013, Appellant pro se petitioned the PCRA court for PCRA
relief. The PCRA court appointed counsel who eventually filed a no-merit
letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc) and
petitioned to withdraw from the case. The PCRA court granted counsel’s
petition on February 20, 2015. Thereafter, following the PCRA court’s
issuance of a Pa.R.Crim.P. 907 notice of its intent to dismiss the petition
without a hearing, the PCRA court denied Appellant PCRA relief on March 18,
2015. Appellant timely appealed to this Court. Appellant pro se filed a
Pa.R.A.P. 1925(b) statement, raising three assertions of error, reproduced
verbatim here:
I. Whether a county or federal government has jurisdiction to
charge me with these crimes inside the State of
Pennsylvania? (Specifically Delaware County). I hereby
request that the court order Delaware County, and the
Department of Justice to produce the documentation
specified per the statute to establish their criminal
jurisdiction. I Karim A. Gage hereby challenge the
jurisdiction of the local and federal prosecutors. 40 USCS
§ 255, 3112(b)(c).
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II. If an individual has a natural right of liberty, to be free
from intrusion and infringement, (specifically during police
encounters.) Is it the duty of the officers and the court as
evidenced by your oath of office and fidelity bond to
uphold the constitution and protect all citizens and, or
individuals from government intrusion?
III. Whether sentence imposed was lawful including: but not
limited to mandatory minimums, enhanced sentencing,
aggregate sentences, and consecutive sentences?
Rule 1925(b) Statement, 4/12/15. In response, the PCRA court issued a
Pa.R.A.P. 1925(a) opinion, concluding that Appellant’s claims either lack
merit or are waived.
On appeal,2 Appellant raises three issues for our review:
I. Whether the trial court abused it’s [sic] discretion when it
denied [the] motion to suppress evidence since the
evidence was seized in violation of the Fourth and
Fourteenth Amendment of the United States and State
Constitution and Article III, Section 1 and 2. Article 1
Section 8 of the Pennsylvania Constitution and the Fruit of
the Poisonous Tree Doctrine?
II. Whether the confiscation of the $870.00 and a cell phone
from my person was lawful?
III. Whether all prior counsel were ineffective for failing to
raise the fact that other people occupied the area where
the items were allegedly found?
Appellant’s Brief at 5.3
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2
“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)).
3
To the extent Appellant appears to challenge the jurisdiction of the PCRA
court, such challenge is waived because Appellant did not raise it in his
question presented. See Pa.R.A.P. 2116(a) (“No question will be considered
unless it is stated in the statement of questions involved or is fairly
suggested thereby.”).
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At the outset, we note that Appellant’s issues on appeal are without
merit or waived because he either raised them or could have raised them on
direct appeal, or failed to preserve them for our review by failing to include
them in his Rule 1925(b) statement. Specifically, Appellant’s first issue does
not warrant review because he previously litigated it on direct appeal. See
42 Pa.C.S.A. § 9543(a)(3) (“That the allegation of error has not been
previously litigated or waived.”); see also 42 Pa.C.S.A. § 9544(a)(2) (an
issue is previously litigated if “the highest appellate court in which the
petitioner could have had review as a matter of right has ruled on the merits
of the issue”).
Appellant’s second claim is waived because “it could have been raised
prior to the filing of the PCRA petition, but was not.” Commonwealth v.
Turetsky, 925 A.2d 876, 879 (Pa. Super. 2007), appeal denied, 940 A.2d
365 (Pa. 2007) (citation omitted); see also 42 Pa.C.S.A. § 9544(b) (stating,
“an issue is waived if the petitioner could have raised it but failed to do so
before trial, at trial, during unitary review, on appeal or in a prior state post
conviction proceeding.”).
Appellant’s third issue is waived because he failed to raise it in his Rule
1925(b) statement. As amended in 2007, Pennsylvania Rule of Appellate
Procedure 1925 provides that issues that are not included in the Rule
1925(b) statement or raised in accordance with Rule 1925(b)(4) are waived.
See Pa.R.A.P. 1925(b)(4)(vii); see also Commonwealth v. Lord, 719 A.2d
306, 308 (Pa. 1998). Moreover, an appellant cannot raise a new issue on
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appeal. See Pa.R.A.P. 302(a). Even if Appellant had preserved his third
issue for review, he still would not be entitled to relief because he fails to
develop the issue adequately with citation to the record and legal authority.
Indeed, Appellant does not mention his third claim in the argument section
of his brief. It is settled that “[w]e shall not develop an argument for [the
appellant], nor shall we scour the record to find evidence to support an
argument; consequently, we deem this issue waived.” Commonwealth v.
Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007), appeal denied sub
nom. Commonwealth v. Imes, 982 A.2d 509 (Pa. 2009); see Pa.R.A.P.
2119(a), (b). “The failure to develop an adequate argument in an appellate
brief may result in waiver of the claim under Pa.R.A.P. 2119.” Beshore,
916 A.2d at 1140 (Pa. Super. 2007) (internal citation and quotation marks
omitted); see also 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”); 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]”).
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Finally, insofar as Appellant argues that, based on Alleyne,4 his
sentence is illegal because the trial court imposed a mandatory minimum
sentence, such argument is without merit. As mentioned earlier, our
Supreme Court denied Appellant’s petition for allowance of appeal on
February 14, 2013. Appellant’s ninety days for filing a writ of certiorari in
the United States Supreme Court expired on May 15, 2013. See 42
Pa.C.S.A. § 9545(b)(3); United States Supreme Court Rule 13. Thus,
Appellant’s sentence became final prior to the United States Supreme
Court’s issuance of Alleyne on June 17, 2013. As our Supreme Court
recently concluded in Commonwealth v. Washington, 142 A.3d 810 (Pa.
2016), Alleyne does not apply retroactively to cases on collateral review
where the petitioner’s judgment of sentence already had become final. The
Court explained that:
[A] new rule of law does not automatically render final, pre-
existing sentences illegal. A finding of illegality, concerning such
sentences, may be premised on such a rule only to the degree
that the new rule applies retrospectively. In other words, if the
rule simply does not pertain to a particular conviction or
sentence, it cannot operate to render that conviction or sentence
illegal.
....
[N]ew constitutional procedural rules generally pertain to future
cases and matters that are pending on direct review at the time
of the rule’s announcement.
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4
Alleyne v. United States, 133 S. Ct. 2151, 2161-63 (2013) (holding that
any fact other than a prior conviction that triggers a mandatory minimum
sentence must be found by a jury beyond a reasonable doubt).
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Washington, 142 A.3d at 814-15.
In sum, we agree with the PCRA court’s conclusion that Appellant is
not entitled to relief on his PCRA petition.
Order affirmed.
Judge Mundy did not participate in the consideration or decision of this
case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/13/2017
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