Opinion
J-S45014-19 No. 3375 EDA 2018
11-13-2019
COMMONWEALTH OF PENNSYLVANIA, Appellee v. MONTEZ BETHEA, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered October 19, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009460-2011 BEFORE: BENDER, P.J.E., MURRAY, J., and PELLEGRINI, J. MEMORANDUM BY BENDER, P.J.E.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Montez Bethea, appeals from the post-conviction court's October 19, 2018 order denying his petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.
The PCRA court provides a lengthy summary of the facts and procedural history underlying Appellant's conviction, which we adopt for purposes of this appeal. See PCRA Court Opinion (PCO), 1/28/19, at 1-8. We only highlight that on April 15, 2016, Appellant filed a timely, pro se PCRA petition. Although the court initially appointed counsel, Appellant ultimately retained a private attorney, who filed two amended petitions on his behalf. After the court conducted a bifurcated evidentiary hearing on April 27, 2018, and July 20, 2018, it issued an order denying Appellant's petition on October 19, 2018. He filed a timely notice of appeal, and he also timely complied with the PCRA court's order to file a Pa.R.A.P. 1925(b) statement. On January 28, 2019, the PCRA court filed a Rule 1925(a) opinion.
Herein, Appellant states six issues for our review:
I. Was Appellant denied his rights under the Sixth Amendment of the U.S. Constitution and Article 1, sec. 9 of the Pennsylvania Constitution when trial counsel ineffectively advised Appellant not to testify on his own behalf?Appellant's Brief at 3.
II. Was Appellant entitled to relief based upon after[-]discovered evidence that the Commonwealth's key witness, Darryl Rigney, lied when he inculpated [] Appellant in the crime?
III. Was Appellant denied his Sixth Amendment and Article 1, sec. 9 rights when trial counsel ineffectively failed to secure and use ... phone records at trial?
IV. Was Appellant denied his rights under the Sixth Amendment of the U.S. Constitution and Article 1, sec. 9 of the Pennsylvania Constitution when counsel ineffectively failed to obtain and use available impeachment evidence?
V. Was Appellant denied his rights under the Sixth Amendment of the U.S. Constitution and Article 1, sec. 9 of the Pennsylvania Constitution when counsel ineffectively failed to object to the trial court['s] using hearsay evidence obtained as part of the Motion to Suppress for truth of the matter asserted at trial?
VI. Was Appellant denied his rights under the Sixth Amendment of the U.S. Constitution and Article 1, sec. 9 of the Pennsylvania Constitution when counsel ineffectively failed to preserve, raise and argue a claim on direct appeal that the trial court erred in denying the Motion to Suppress?
We have reviewed the certified record, the briefs of the parties, and the applicable law. Additionally, we have reviewed the thorough and well-crafted opinion of the Honorable Glenn B. Bronson of the Court of Common Pleas of Philadelphia County. We conclude that Judge Bronson's well-reasoned opinion accurately disposes of the issues presented by Appellant. Accordingly, we adopt his opinion as our own and affirm the order denying Appellant's PCRA petition for the reasons set forth therein.
We observe, however, that there are two claims raised in Appellant's brief that were not addressed by Judge Bronson. First, Appellant contends that his trial counsel acted ineffectively by advising him not to testify "for purposes of the suppression motion[,]" which was heard by the court simultaneously with Appellant's non-jury trial. See Appellant's Brief at 15. In Judge Bronson's opinion, he analyzed only Appellant's related allegation that trial counsel acted ineffectively by advising him not to testify at trial. See PCO at 12-17. However, Appellant does not point to, and we do not see, where he questioned trial counsel at the PCRA hearing about counsel's allegedly advising him not to testify for purposes of the motion to suppress. Therefore, he has waived this undeveloped claim for our review. 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.").
Judge Bronson also did not address Appellant's assertion (which he adds to the end of his fifth issue) "that counsel was ineffective for failing to have the contents of the white bag thrown by Andrews tested for fingerprints." Appellant's Brief at 43. Appellant did not raise this claim in his Rule 1925(b) statement and, therefore, it is waived. Pa.R.A.P. 1925(b)(4)(vii) ("Issues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived.").
Order affirmed. Judgment Entered. /s/ _________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/13/2019
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