Opinion
J-S67044-17 No. 3832 EDA 2016
11-13-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. JULIUS DANIEL ALLEN Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order November 28, 2016
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0005263-2013 BEFORE: GANTMAN, P.J., MUSMANNO, J., and STEVENS, P.J.E. MEMORANDUM BY GANTMAN, P.J.:
Former Justice specially assigned to the Superior Court.
Appellant, Julius Daniel Allen, appeals pro se from the order entered in the Montgomery County Court of Common Pleas, which denied his first petition brought pursuant to the Post Conviction Relief Act ("PCRA"). We affirm.
In its opinion, the PCRA court sets forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them.
The PCRA court ordered Appellant to file a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b), on December 19, 2016. Appellant had already filed a voluntary Rule 1925(b) statement with his pro se notice of appeal on December 14, 2016.
Preliminarily, we observe that appellate briefs must conform in all material respects to the briefing requirements set forth in the Pennsylvania Rules of Appellate Procedure. Pa.R.A.P. 2101. This Court may quash or dismiss an appeal if the appellant fails to conform to the requirements set forth in the Pennsylvania Rules of Appellate Procedure. Id.; Commonwealth v. Lyons , 833 A.2d 245 (Pa.Super. 2003). Although this Court is willing to liberally construe materials filed by a pro se litigant, pro se status confers no special benefit upon the appellant. Id.
The Pennsylvania Rules of Appellate Procedure provide guidelines regarding the required content of an appellate brief as follows:
Rule 2111. Brief of the Appellant
(a) General Rule. The brief of the appellant, except as otherwise prescribed by these rules, shall consist of the following matters, separately and distinctly entitled and in the following order:
(1) Statement of jurisdiction.
(2) Order or other determination in question.
(3) Statement of both the scope of review and the standard of review.
(4) Statement of the questions involved.
(5) Statement of the case.
(6) Summary of the argument.
(7) Statement of the reasons to allow an appeal to challenge the discretionary aspects of a sentence, if applicable.
Pa.R.A.P. 2111(a). More specifically:(8) Argument for Appellant.
(9) A short conclusion stating the precise relief sought.
(10) The opinions and pleadings specified in Subdivisions (b) and (c) of this rule.
(11) In the Superior Court, a copy of the statement of errors complained of on appeal, filed with the trial court pursuant to Rule 1925(b), or an averment that no order requiring a statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) was entered.
Rule 2116. Statement of Questions InvolvedPa.R.A.P. 2116(a) (emphasis added). The omission of a statement of the questions involved is particularly grievous because it defines the specific issues this Court is asked to review. Commonwealth v. Maris , 629 A.2d 1014, 1015 (Pa.Super. 1993). Additionally, Rule 2117 states:
(a) General rule. The statement of the questions involved must state concisely the issues to be resolved, expressed in the terms and circumstances of the case but without unnecessary detail. The statement will be deemed to include every subsidiary question fairly comprised therein. No question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby. ...
Rule 2117. Statement of the Case
(a) General rule. The statement of the case shall contain, in the following order:
(1) A statement of the form of action, followed by a brief procedural history of the case.
(2) A brief statement of any prior determination of
Pa.R.A.P. 2117(a).any court or other government unit in the same case or estate, and a reference to the place where it is reported, if any.
(3) The names of the judges or other officials whose determinations are to be reviewed.
(4) A closely condensed chronological statement, in narrative form, of all the facts which are necessary to be known in order to determine the points in controversy, with an appropriate reference in each instance to the place in the record where the evidence substantiating the fact relied on may be found. ...
(5) A brief statement of the order or other determination under review.
The law presumes counsel has rendered effective assistance. Commonwealth v. Williams , 597 Pa. 109, 950 A.2d 294 (2008). Under the traditional analysis, to prevail on a claim of ineffective assistance of counsel, a petitioner bears the burden to prove his claims by a preponderance of the evidence. Commonwealth v. Turetsky , 925 A.2d 876 (Pa.Super. 2007), appeal denied, 596 Pa. 707, 940 A.2d 365 (2007). The petitioner must demonstrate: (1) the underlying claim is of arguable merit; (2) counsel had no reasonable strategic basis for the asserted action or inaction; and (3) but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. Id. See also Commonwealth v. Kimball , 555 Pa. 299, 724 A.2d 326 (1999). "A reasonable probability is a probability that is sufficient to undermine confidence in the outcome of the proceeding." Commonwealth v. Spotz , 624 Pa. 4, 34, 84 A.3d 294, 312 (2014) (quoting Commonwealth v. Ali , 608 Pa. 71, 86-87, 10 A.3d 282, 291 (2010)). "Where it is clear that a petitioner has failed to meet any of the three, distinct prongs of the...test, the claim may be disposed of on that basis alone, without a determination of whether the other two prongs have been met." Commonwealth v. Steele , 599 Pa. 341, 360, 961 A.2d 786, 797 (2008).
"The threshold inquiry in ineffectiveness claims is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit...." Commonwealth v. Pierce , 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). "Counsel cannot be found ineffective for failing to pursue a baseless or meritless claim." Commonwealth v. Poplawski , 852 A.2d 323, 327 (Pa.Super. 2004).
Once this threshold is met we apply the "reasonable basis" test to determine whether counsel's chosen course was designed to effectuate his client's interests. If we conclude that the particular course chosen by counsel had some reasonable basis, our inquiry ceases and counsel's assistance is deemed effective.Pierce , supra at 524, 645 A.2d at 194-95 (internal citations omitted).
Prejudice is established when [an appellant] demonstrates that counsel's chosen course of action had an adverse effect on the outcome of the proceedings. The [appellant] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. In [ Kimball , supra ], we held that a criminal [appellant] alleging prejudice must show
that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.Commonwealth v. Chambers , 570 Pa. 3, 21-22, 807 A.2d 872, 883 (2002) (internal citations and quotation marks omitted).
Further, "to succeed on an allegation of...counsel's ineffectiveness...a post-conviction petitioner must, at a minimum, present argumentation relative to each layer of ineffective assistance, on all three prongs of the ineffectiveness standard...." Commonwealth v. D'Amato , 579 Pa. 490, 500, 856 A.2d 806, 812 (2004) (internal citations omitted). "[A]n undeveloped argument, which fails to meaningfully discuss and apply the standard governing the review of ineffectiveness claims, simply does not satisfy [the petitioner's] burden of establishing that he is entitled to any relief." Commonwealth v. Bracey , 568 Pa. 264, 273 n.4, 795 A.2d 935, 940 n.4 (2001).
Instantly, the defects in Appellant's brief are substantial. Appellant's brief falls well below the standard delineated in the Rules of Appellate Procedure. Appellant fails to include in his brief a statement of questions involved or a statement of the case. See Pa.R.A.P. 2116(a); 2117(a); Maris , supra. Therefore, Appellant has waived all issues on appeal. See Pa.R.A.P. 2101; Lyons , supra.
Additionally, Appellant raises claims of ineffective assistance of counsel in his brief. In his argument section, however, Appellant fails to develop his claims under the three prongs of the ineffective assistance of counsel test. See Turetsky , supra. Therefore, Appellant's claims are waived on this ground as well. See D'Amato , supra ; Bracey , supra.
Moreover, even if Appellant properly preserved his issues on appeal, we would affirm based on the PCRA court's analysis. ( See PCRA Court Opinion, filed March 2, 2017, at 4-15) (finding: initially, several of Appellant's issues are not cognizable under the PCRA; nevertheless, to extent Appellant raises his claims in context of ineffectiveness of counsel, court will address each issue: (1) PCRA counsel detailed nature and extent of his review, finding all issues were frivolous; PCRA counsel set forth all issues Appellant wished to have reviewed and provided thorough analysis of why each issue lacked merit; PCRA court conducted independent review of issues and agreed they lacked merit; PCRA counsel complied with dictates of Turner/Finley ; (2) bill of information regarding charge of possession with intent to deliver contained all required elements and complied with Pa.R.Crim.P. 560; (3) Appellant stipulated that substances recovered tested positive for drugs; Appellant also stipulated at trial that expert would testify 23 baggies found on Appellant's person were possessed with intent to deliver; based on stipulations, court properly found Appellant possessed drugs with intent to deliver; (4) Commonwealth charged Appellant with violations of Crimes Code; controversies arising out of violations of Crimes Code are entrusted to original jurisdiction of Court of Common Pleas; thus, court had subject matter jurisdiction over Appellant's trial and sentencing; (5) Appellant does not explain how private investigator Mr. Kadash's testimony would have helped Appellant's case; in any event, trial court and defense counsel viewed Appellant's vehicle and agreed it was impossible to view interior of vehicle without placing flashlight directly on glass of vehicle; therefore, court's direct observation would have rendered any conflicting testimony by Mr. Kadash meaningless and not credible on this issue; (6-7) Appellant's claims of prosecutorial misconduct and trial counsel's alleged ineffectiveness for failing to advise Appellant that stipulated bench trial constitutes "admission of guilt" are waived for failure to raise these issues in his pro se PCRA petition or PCRA counsel's Turner/Finley letter; (8) court did not sentence Appellant under mandatory minimum sentencing scheme, so any challenge to application of mandatory minimum sentence lacks merit; because none of Appellant's issues have arguable merit, neither trial nor PCRA counsel were ineffective). Accordingly, Appellant's issues are waived and the order is affirmed.
To the extent Appellant raises any claims not addressed by the PCRA court in its opinion, these issues were waived because his Rule 1925(b) statement is too vague. See Commonwealth v. Reeves , 907 A.2d 1 (Pa.Super. 2006) (stating vague Rule 1925(b) statement can result in waiver). --------
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/13/2017
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