Opinion
J-S95035-16 No. 673 EDA 2016
02-14-2017
COMMONWEALTH OF PENNSYLVANIA v. KARL K. MYERS, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order February 8, 2016 in the Court of Common Pleas of Montgomery County, Criminal Division, No(s): CP-46-CR-0004755-2011 BEFORE: STABILE, MOULTON and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Karl K. Myers ("Myers") appeals from the Order dismissing his first Petition filed pursuant to the Post Conviction Relief Act. We affirm.
In its Opinion, the PCRA court set forth the relevant factual and procedural history, which we adopt for the purpose of this appeal. See PCRA Court Opinion, 4/19/16, at 1-3.
On appeal, Myers raises the following issues for our review:
1. Did the [PCRA] court err in dismissing[,] without an evidentiary hearing, [Myers's] claim of ineffective assistance of trial counsel for making an argument to the jury that [Myers] was never at the barber[ ]shop when[,] in fact[,] he was on the video surveillance, which was in the custody of counsel prior to trial?
2. Did the [PCRA] court err in dismissing[,] after an evidentiary hearing, [Myers's] claim of ineffective assistance of trial counsel for even representing
[Myers,] when his co-defendant was represented by counsel from the same [law] firm, specifically[, trial counsel's] boss?Brief for Appellant at 1 (unnumbered).
In his first issue, Myers contends that, prior to trial, the prosecutor represented to Myers's trial counsel that there was no surveillance video of Myers at the barber shop, which was the location where the drugs were allegedly stored. Id. at 8. Myers asserts that, due to this assertion, his trial counsel developed a defense theory that Myers was simply a buyer/user of narcotics, with no connection to the barber shop. Id. Myers notes that the prosecutor ultimately introduced surveillance video showing Myers at the barber shop, and claims that his trial counsel was ineffective because, had he viewed the videos, he would have known that Myers was, in fact, in the barber shop surveillance videos. Id.
Myers also argues that the PCRA court erred by denying his request for an evidentiary hearing. Brief for Appellant at 12. However, Myers failed to raise this issue in his Concise Statement. See Commonwealth v. Lord , 719 A.2d 306, 309 (Pa. 1998) (holding that, if an appellant is directed to file a concise statement of matters to be raised on appeal pursuant to Pa.R.A.P. 1925(b), any issues not raised in that statement are waived). Therefore, Myers failed to preserve this issue for our review.
The PCRA court addressed Myers's first issue, set forth the relevant law, and determined that the issue lacks merit. See PCRA Court Opinion, 4/19/16, at 12-17. We agree with the reasoning of the PCRA court, which is supported by the record and free of legal error, and affirm on this basis as to Myers's first issue. See id.
In his second issue, Myers contends that there was an inherent conflict of interest in this case, as the payments for his trial counsel's representation were made to the law firm of Charles Peruto, Jr., Esquire ("Attorney Peruto"), who represented one of Myers's co-defendants. Brief for Appellant at 13. Myers also asserts that "a third defendant in this case was represented by James Lloyd, Esquire, who was also a part of [Attorney] Peruto's law firm." Id. Myers claims that "[he] was offered 3 to 6 years (less than half of the mandatory minimum 7 years to 14 years which was in effect at the time) but ONLY if [he] testified against [Attorney] Peruto's client." Id. Myers notes that he received a prison sentence of 14 to 28 years, and argues that he was prejudiced by the ineffectiveness of his trial counsel. Id.
Myers's trial counsel was employed as an attorney at Attorney Peruto's law firm.
Myers's second claim is woefully underdeveloped. See Pa.R.A.P. 2119(a) (stating that the parties' briefs must include a discussion of each question raised on appeal and a "citation of authorities as are deemed pertinent."). While we could find waiver on this basis, we decline to do so, as the PCRA court thoroughly addressed the issue in its Opinion.
The PCRA court addressed Myers's second issue, set forth the relevant law, and determined that the issue lacks merit. See PCRA Court Opinion, 4/19/16, at 4-10. The PCRA court further determined that Myers had been thoroughly apprised of the potential conflict that trial counsel's representation presented, and Myers had expressly waived the conflict. See id. at 10. Finally, the PCRA court determined that no "actual prejudice" resulted from trial counsel's representation because the conflicting interests did not affect his performance. See id. at 11-12. We agree with the reasoning of the PCRA court, which is supported by the record and free of legal error, and affirm on this basis as to Myers's second issue. See id. at 4-12.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/14/2017
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