Commonwealth v. Brown

J-S29035-17

2017 PA Super 133

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

GREGORY BROWN :

:

Appellant : No. 3186 EDA 2015

Appeal from the PCRA Order October 2, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0802711-2005

BEFORE: LAZARUS, SOLANO, JJ., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.: FILED MAY 04, 2017

Appellant Gregory Brown appeals from the trial court’s order entered

in the Court of Common Pleas of Philadelphia County on October 2, 2015,

dismissing his first petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Following a careful review, we

affirm.

A panel of this Court previously set forth the relevant facts and

procedural history herein as follows:

Appellant’s conviction stems from his assault on 26 year-

old, Complainant [S.L.], in the early morning of October 31,

2004, at her apartment at 1051 E. Mount Airy Avenue in the city

and county of Philadelphia. Appellant lived with his girlfriend,

Tonya Feggens, in the same apartment building as Complainant,

____________________________________________

*

Former Justice specially assigned to the Superior Court.

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and was Complainant’s drug supplier. At approximately 2 a.m.,

Complainant awoke to hear Appellant knocking on her door,

holding a vacuum cleaner in his hand. He told Complainant that

T[o]nya was getting evicted, and asked her whether she wanted

to buy the vacuum cleaner from him. When she said no,

Appellant told her she could have the vacuum, then asked her

how much for a hug, telling her it would be the last time he

would see her. Complainant opened the door partially to give

Appellant a hug, and he pushed the door open and closed it

behind him.

Appellant, at 6’ 2’’ and 280 pounds, pushed Complainant

(5’ 8’’, 110 pounds) to the floor and held her down with his

forearm. As she lay on her back, Appellant covered

Complainant’s mouth with his hand and started taking her

clothes off. Complainant was scared, and pleaded with Appellant

— telling him to stop, telling him she needed to take a shower,

and that she’d had an abortion – but he continued pulling her

clothes off until her pants and shorts were completely removed.

Appellant told her to “Shut up” and put his fingers in

Complainant’s vagina. He also attempted to put his penis in her

vagina, but could only put the tip in, because he was not erect.

Appellant was interrupted by his girlfriend banging on the front

door, then told Complainant “he would kill her if she said

anything,” and continued to try and penetrate her further with

his penis.

Appellant’s girlfriend returned to Complainant’s door

several times, and continued to bang on the door, and Appellant

took his penis out of Complainant’s vagina without ejaculating.

When Appellant got off of her, Complainant ran to the door and

told T[o]nya that Appellant had raped her. Complainant ran into

the laundry room across the hall, while Appellant left the

apartment. While Appellant was fighting with his girlfriend in the

hallway, Complainant ran back into her apartment, locked the

door, and called her aunt, [Michelle J.], and told her what

happened. Complainant called police, then called Michelle back,

and stayed on the phone with her until they arrived

approximately ten minutes later. Police officers Arthur Armstrong

and Megan Marks responded to the call, noting that when they

arrived Complainant was visibly upset, and wearing only a hip-

length t-shirt, naked from the waist down.

They took Complainant’s statement, and took pictures of

the scratches on her forearms and face, then transported her to

Episcopal Hospital, where she was given a rape kit, before giving

her statement to SVU detective Victoria Smith. Complainant was

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treated for light scratches on her face and arms, but there was

no bruising on her body. There was no hair or seminal fluid from

Appellant found on Complainant, and no DNA matching

Appellant’s was found in her vagina or cervix. Appellant was

arrested [in Georgia] pursuant to a warrant on June 28, 2005.

Trial Court Opinion, 1/28/08, at 1-3. During his direct

examination, Appellant testified that the victim consented to his

sexual conduct because she had agreed to give Appellant sex in

exchange for drugs. Appellant informed the jury that on at least

ten prior occasions, S.L. had performed sexual favors for him

and he had given her drugs in return.

Based on this evidence, Appellant was convicted of sexual

assault and acquitted of rape, burglary, and trespass. The

district attorney agreed to withdraw the charges of simple

assault, reckless endangerment, unlawful restraint, false

imprisonment, aggravated indecent assault, indecent assault,

and indecent exposure.

Based on his commission of a predicate offense, Appellant

was referred to the Sexual Offenders Assessment Board. The

Commonwealth filed notice of its intent to proceed under 42

Pa.C.S. § 9714,1 mandatory sentence for second or subsequent

offenses, based upon Appellant’s previous conviction of a crime

of violence. On January 11, 2007, after the court determined

that Appellant was not a sexually violent predator, Appellant was

sentenced in accordance with § 9714 to ten to twenty years

imprisonment. This timely appeal followed.

______

1

42 Pa.C.S.A. § 9714 (1) provides:

Any person who is convicted in any court of this Commonwealth

of a crime of violence shall, if at the time of the commission of

the current offense the person had previously been convicted of

a crime of violence, be sentenced to a minimum sentence of at

least ten years of total confinement, notwithstanding any other

provision of this title or other statute to the contrary.

Commonwealth v. Brown, No. 429 EDA 2007, unpublished memorandum

at 1-4 (Pa. Super. filed March 8, 2010).

On direct appeal, Appellant maintained he had been denied his

constitutional right to confront S.L. due to the trial court’s prohibiting him

from questioning S.L. regarding their prior, consensual sexual encounters on

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cross-examination. This Court ultimately affirmed Appellant’s judgment of

sentence. In doing so, we determined Appellant waived this issue because

defense counsel never had attempted to cross-examine S.L. about whether

she had agreed with Appellant to trade sexual favors for drugs and whether

the two had engaged in such transactions in the past. Id. 5 citing N.T. Trial,

4/24/06, at 144-77. Additionally, this Court found Appellant had waived this

claim for his failure to raise it in his Pa.R.A.P. 1925(b) statement. Instead,

Appellant confined his issues raised therein to matters concerning a potential

witness, Lonnie Crawford. Id. at 6. Our Supreme Court denied Appellant’s

petition for allowance of appeal. Commonwealth v. Brown, 608 Pa. 615,

8 A.3d 340 (2010).

Appellant filed a timely PCRA petition, pro se, on August 15, 2011.

Counsel was appointed and filed an amended petition on February 3, 2015,

and a Supplemental Amended Petition on July 15, 2015, raising various

claims of trial counsel’s ineffectiveness. After providing Appellant with notice

under Pa.R.CrimP. 907, the PCRA court dismissed Appellant’s petition

without an evidentiary hearing on October 2, 2015, upon finding the issues

presented therein lacked arguable merit. Appellant filed a timely notice of

Appeal on October 22, 2015.

In an Order entered on October 28, 2015, the PCRA court directed

Appellant to file a concise statement of the matters complained of on appeal

pursuant to Rule 1925(b), and Appellant filed the same on November 5,

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2015. In his brief, Appellant presents the following Statement of the

Questions Involved:

I. Whether the court erred in denying [ ] Appellant’s PCRA

petition without an evidentiary hearing on the issues raised

in the amended PCRA petition regarding trial counsel’s

ineffectiveness[?]

II. Whether the court erred in not granting relief on the PCRA

petition alleging counsel was ineffective?1

Brief for Appellant at 9.2

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1

We note Appellant’s brief is in violation of Pa.R.A.P. 2119(a), which

provides that “[t]he argument shall be divided into as many parts as there

are questions to be argued,” in that it is not divided into sections that

correlate with the questions presented. While the Statement of the

Questions Presented consists of two issues, the Argument portion of the

brief contains Section I entitled “The PCRA Court Erred in Denying

Appellant’s PCRA Petition Without An Evidentiary Hearing,” and Section II

entitled “The PCRA Court Was In Error In Not Granting Relief On The Issue

That Counsel Was Ineffective” under which are subsections A-D. Appellant

introduces a distinct question for review in each subsection of Section II.

2

The Commonwealth did not comply with our January 3, 2017, per curiam

Order which granted it a second extension of time in which to file an

appellate brief with a due date of February 27, 2017. The Order specifically

stated that no further extensions would be granted absent extraordinary

circumstances. Notwithstanding, the Commonwealth sought a third

extension of time in which to file a brief on February 27, 2017. We denied

the same in a per curiam Order filed on February 28, 2017. The

Commonwealth did not file its appellate brief until April 10, 2017. As it filed

its brief at this late juncture, we will not consider it in reaching our decision.

See Commonwealth v. Tisdale, 100 A.3d 216, 217, n. 4 (Pa.Super. 2014)

(arguments advanced in untimely Commonwealth brief will not be

considered). We disapprove of the Commonwealth’s flouting our January 3,

2017, Order.

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In PCRA proceedings, this Court’s scope of review is limited by the

PCRA's parameters. Since most PCRA appeals involve mixed questions of

fact and law, the standard of review we apply is whether the PCRA court's

findings are supported by the record and free of legal error.

Commonwealth v. Pitts, 603 Pa. at 1, 7, 981 A.2d 875, 878 (2009).

Pursuant to Rule 907, a PCRA court has discretion to dismiss a

PCRA petition without a hearing if the court is satisfied that there

are no genuine issues concerning any material fact; that the

defendant is not entitled to post-conviction collateral relief; and

that no legitimate purpose would be served by further

proceedings. Pa.R.Crim.P. 907(1); Commonwealth v. Roney,

622 Pa. 1, 79 A.3d 595, 604 (2013).

Commonwealth v. Burton, 2017 WL 1149203, at *2 n. 4 (Pa. Mar. 28,

2017).

Counsel is presumed effective, and an appellant has the burden of

proving otherwise. See Commonwealth v. Pond, 846 A.2d 699, 708

(Pa.Super. 2004). “In order for Appellant to prevail on a claim of ineffective

assistance of counsel, he must show, by a preponderance of the evidence,

ineffective assistance of counsel which ... so undermined the truth-

determining process that no reliable adjudication of guilt or innocence could

have taken place.” Commonwealth v. Johnson, 868 A.2d 1278, 1281

(Pa.Super. 2005) (citation omitted).

To prevail on his ineffectiveness claims, Appellant must plead

and prove by a preponderance of the evidence that (1): the

underlying legal claim has arguable merit; (2) counsel had no

reasonable basis for his action or inaction; and (3) Appellant

suffered prejudice because of counsel's action or inaction. With

regard to the [reasonable basis] prong, we will conclude that

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counsel's chosen strategy lacked a reasonable basis only if

Appellant proves that an alternative not chosen offered a

potential for success substantially greater than the course

actually pursued. To establish the [prejudice] prong, Appellant

must show that there is a reasonable probability that the

outcome of the proceedings would have been different but for

counsel's action or inaction.

Commonwealth v. Spotz, 610 Pa. 17, 44-45, 18 A.3d 244, 260 (2011)

(internal quotation marks and citations omitted).

Appellant initially claims the PCRA court erred in dismissing his petition

without an evidentiary hearing. As shall be discussed infra, Appellant has

presented no issues of material fact; therefore, no further purpose would

have been served had the PCRA court held an evidentiary hearing, because

Appellant is not entitled to post conviction collateral relief. Accordingly, the

PCRA court properly dismissed Appellant’s PCRA petition without a hearing.

Burton, supra.

Appellant next avers trial counsel had been ineffective for failing to

cross-examine S.L. regarding her alleged past sexual conduct with Appellant

where he had presented a consent defense at trial. When considering this

claim in its Rule 1925(a) Opinion, the PCRA court reasoned that little was to

be gained by such questioning:

Rather than pursuing a fruitless attempt to confront the victim

with something she surely would have denied, trial counsel

chose instead to attack the victim’s credibility by effectively

bringing out inconsistencies in her memory of the event as well

as the fact that she had repeatedly lied about being on drugs on

the evening of the assault. In doing so, trial counsel called into

questions [sic] the veracity of the victim’s testimony and

undermined her ability to recall the assault. Thus, trial counsel

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cannot be deemed to have acted unreasonably in choosing not to

confront the victim on the unfounded allegation that she had a

history of exchanging sex for drugs with [] Appellant. For this

reason alone Appellant’s claim fails.

Trial Court Opinion, filed 7/15/16, at 6 (citations omitted). The PCRA court

proceeded to find Appellant also failed to establish the prejudice prong of the

ineffectiveness test. The court reasoned that even if the jury deemed

testimony that Appellant routinely had traded sex with S.L. for drugs to be

credible, such statements could not disprove that Appellant raped S.L. on

October 31, 2014, especially in light of testimonial and physical evidence

that S.L. bore marks on her body and face consistent with her report of the

attack. Id. at 6-7 citing N.T., 4/24/06, at 228-29.

In response, Appellant generally avers that if S.L. had denied having

had a sexual history with him, arguable merit still existed as to whether trial

counsel’s failure to cross-examine her regarding her past sexual conduct

adversely affected the outcome of his case. Brief for Appellant at 19. While

Appellant acknowledges trial counsel “had already called into the question

the credibility of [S.L.]” Appellant baldly concludes counsel should have

questioned her further regarding her sexual history, because “the

confrontation of the sexual history between [S.L.] and [ ] [Appellant] is

crucial when establishing a consent defense.” Id. Appellant concludes that

he “suffered prejudice for trial attorney’s failure to confront the sexual

history of the complainant and Appellant,” and that “[a] different verdict of

the jury would have likely resulted” had he done so. Id. at 19-20.

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While we question the propriety of the trial court’s speculating as to

whether S.L. would have denied any sexual arrangement with Appellant on

cross-examination, we find it did not err in finding no merit to Appellant’s

claim. Appellant has presented only general allegations to support his

assertions of trial counsel’s ineffectiveness in this regard and in doing so

ignores the fact that defense counsel otherwise challenged S.L.’s credibility

repeatedly at trial.

On direct examination S.L. conceded Appellant had supplied her with

cocaine, which she used recreationally, and claimed that prior to October 31,

2004, she had not purchased drugs from Appellant for over six months.

N.T., 4/24/06, at 105-106. Yet, S.L. admitted on cross-examination that

she had injected cocaine that evening, although she told police that no drugs

had been involved and she had no relationship with Appellant prior to that

time. Id. at 162-63, 175. S.L. also admitted she did not scream or

otherwise attempt to forcibly stop Appellant from touching her and that her

clothing bore no rips or tears. Id. at 159-160. S.L. acknowledged she had

committed perjury during her preliminary hearing when she denied knowing

Appellant. Id. at 167-168.

In addition, Appellant testified in his own defense and stated that he

routinely had provided the victim with drugs in exchange for sex. N.T.,

4/25/06, at 23-30. Appellant further explained that on the night in question,

he had agreed to provide S.L. with an amount of cocaine worth forty dollars

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in exchange for sex. Id. As S.L. had not been cross-examined about such

an arrangement, Appellant’s testimony remained uncontradicted and

supported his position that he was “being tried on the word of a liar,”

because there was no rape or burglary. See N.T. Trial, 4/24/06, at 92-95.

Trial Counsel will not be deemed ineffective for pursuing a particular trial

strategy so long as the chosen course was reasonable. Commonwealth v.

Rivers , 567 Pa. 239, 786 A.2d 923, 930 (2001).

Moreover, Appellant has failed to prove he was prejudiced by counsel’s

tactics. The crux of Appellant’s argument is that had trial counsel

established through cross-examination of S.L. that she routinely had had

sexual relations with Appellant in the past in exchange for drugs, the jury

likely would have concluded that the encounter at issue herein, too, had

been consensual. However, had S.L. admitted she exchanged sex for drugs

with Appellant in the past, her admission would have provided little

additional insight into the specific events surrounding the sexual offenses for

which Appellant was on trial, especially in light of his own testimony that the

two had, in fact, entered into a similar agreement on October 31, 2004. In

fact, even had trial counsel questioned S.L. about prior sexual encounters

with Appellant, the Commonwealth presented ample evidence that the

incident on October 31, 2004, had not been consensual.

Michelle J., S.L.’s aunt, testified S.L. called her crying and distraught

immediately following the incident at which time she revealed Appellant had

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just forced his way into her apartment and raped her. Michelle J. never had

received such a call from S.L. in the past, which prompted her to instruct her

niece to call the police. N.T. Trial, 4/24/06, at 190-95. Officer Arthur

Anderson testified that when he arrived at S.L.’s home in response to a radio

call, S.L. was “disturbed,” crying and shaking and indicated she had been

raped. Id., at 199-201. Detective Victoria Smith stated that when she

interviewed S.L. at the Special Victim’s Unit that evening, she observed

scratches on S.L.’s neck, face and right arm. Id., at 233-34. Physical

evidence in the form of medical records and photographs of S.L.’s injuries

presented at trial bolstered this testimony. Id. at 236-38.

Aside from the cursory conclusion that trial counsel’s failure to cross-

examine S.L. regarding her past sexual contact with Appellant “adversely

affected the outcome of the case,” and a bald citation to Commonwealth v.

Paolello, ___ Pa. ____, 665 A.2d 439 (1995),3 Appellant has not developed

an argument that counsel had no reasonable basis not to engage in that line

of questioning or that there was a reasonable probability that, but for

counsel's alleged unprofessional error the result of the proceedings would

have been different. See Appellant’s Brief at 18-19. Therefore, Appellant

has failed to establish any of the three prongs necessary to prove an

ineffectiveness claim. See Spotz, supra.

____________________________________________

3

Therein, our Supreme Court discussed various claims of ineffectiveness of

trial counsel. See id. at 75-79, 665 A.2d at 454-55.

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Appellant next argues that trial counsel had been ineffective for failing

to present two witnesses, Lonnie Crawford and Tonya Feggens, at trial.

“To be entitled to relief on a claim of ineffectiveness for

failure to call a witness, [an] appellant must demonstrate [that]:

the witness existed, was available, and willing to cooperate;

counsel knew or should have known of the witness; and the

absence of the witness's testimony prejudiced [the] appellant.”

Commonwealth v. Birdsong, 611 Pa. 203, 24 A.3d 319, 334

(2011) (citing Commonwealth v. Fletcher, 561 Pa. 266, 750

A.2d 261, 275 (2000)). A PCRA petitioner cannot succeed on

such a claim if the proposed witness' testimony “would not have

materially aided him. In such a case, the underlying-merit and

prejudice prongs of the [ineffective assistance of counsel] test

logically overlap.” Commonwealth v. Baumhammers, 625 Pa.

354, 92 A.3d 708, 725 (2014). “To show prejudice, the

petitioner must demonstrate that there is a reasonable

probability that, but for counsel's allegedly unprofessional

conduct, the result of the proceedings would have been different.

A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. (citing Commonwealth v.

Gibson, 597 Pa. 402, 951 A.2d 1110, 1120 (2008)).

Commonwealth v. Johnson, ___ Pa. ____, 139 A.3d 1257, 1284 (2016).

Herein, Appellant failed to provide the PCRA court with affidavits or

certifications from either Mr. Crawford or Ms. Feggens stating that he or she

had been willing and available to testify on his behalf at trial and describing

the proffered testimony. Upon this basis alone, the PCRA court could have

rejecting Appellant’s claim without holding an evidentiary hearing. See

Commonwealth v. Khalil, 806 A.2d 415, 422-23 (Pa.Super. 2002)

(holding trial counsel not ineffective for failing to call alleged witness where

Appellant failed to provide affidavits indicating the putative witness’s

availability and willingness to testify on appellant’s behalf).

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Importantly, the record establishes defense counsel and the

Commonwealth did attempt to present Mr. Crawford and Ms. Feggens at

trial, to no avail. N.T. Trial, 4/20/06, at 14, 21-24; 4/24/06, at 8, 25-47,

253-57). In fact, Appellant admits defense counsel had sought a

continuance to investigate and subpoena Mr. Crawford as a witness, but the

trial court denied the same. In light of Appellant’s failure to show Mr.

Crawford and Ms. Feggens were willing and available to testify on his behalf

at trial, this claim must fail. Commonwealth v. Johnson, 815 A.2d 563,

579 (Pa.Super. 2002).

Appellant further avers that due to trial counsel’s ineffectiveness, the

sentencing court calculated his criminal history and sentenced him

incorrectly. Specifically, Appellant reasons that trial counsel should have

informed the court that a prior burglary conviction did not constitute a

“crime of violence” under the mandatory minimum sentencing statute for

second and subsequent offenses. Appellant adds that counsel should have

asked the sentencing court to have his time of incarceration commence from

the date of his arrest on June 3, 2005, and not from June 28, 2005, the date

upon which he was extradited to Philadelphia. Brief for Appellant at 22.

A sentencing court is required to impose a minimum prison sentence

of at least ten years where a defendant has been convicted of a second

“crime of violence.” 42 Pa.C.S.A. § 9714. The term “crime of violence” is

defined in the statute as including, inter alia, rape, sexual assault, and

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certain types of Burglaries. 42 Pa.C.S.A. § 9714(g). A burglary is considered

a crime of violence where the premises have been adapted for overnight

accommodation and a person was present. Id. citing 18 Pa.C.S.A. §

3502(a)(1).

In setting forth his argument, Appellant references his Supplemental

Amended PCRA Petition wherein he indicated he presented evidence that no

one had been present when he burglarized a deli in 1991 and allegedly

attached the court summary, complaint, bill of information and sentencing

transcripts of 9/30/91 thereto and labeled them “Appendix A.” Brief for

Appellant at 23. However, our attempt to review the attached documents

was futile, for the copies of all but the court summary are either partially or

totally illegible. In fact, the purported copy of the Transcript from the

preliminary hearing consists of nothing more than blank pages with

intermittent ink smudges. Our law is unequivocal that an appellant bears the

responsibility to ensure that the record certified on appeal is complete in the

sense that it contains all of the materials necessary for the reviewing court

to perform its duty. Commonwealth v. B.D.G., 959 A.2d 362, 372

(Pa.Super. 2008). Therefore, “we can only repeat the well established

principle that ‘our review is limited to those facts which are contained in the

certified record’ and what is not contained in the certified record ‘does not

exist for purposes of our review.’” Id. (citation omitted).

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Deprived as we are of the documents essential to a meaningful review

of Appellant’s sentencing claim, we could find this issue to be waived;

however we decline to do so as the PCRA court observed that in his

supplemental petition “Appellant did present some old court documents that

showed that no one was present at the deli he burglarized.” Trial Court

Opinion, filed 7/15/16, at 9. Notwithstanding, in setting forth his argument,

Appellant disregards that during his voir dire hearing held on April 20, 2006,

it was revealed that in addition to his prior burglary conviction, he had a

prior rape conviction which itself constituted a crime of violence. N.T. Voir

Dire, 4/20/06, at 8-9. Defense counsel reiterated the Commonwealth had

offered Appellant eight (8) years to sixteen (16) years in prison. Counsel

informed Appellant that were he convicted of the charges in the instant

matter, in light of his prior convictions, he was subject to a minimum prison

term sentence of ten (10) years to twenty (20) years and possibly a twenty-

five (25) years to life in prison sentence if his prior robbery conviction were

to constitute a crime of violence, in which case a conviction in the instant

matter would constitute a third strike. Id. at 9-10. Defense counsel further

clarified that Appellant understood “the prior rape would be the strike one.”

Id. at 10-11.

At Appellant’s sentencing hearing, the prosecutor informed the

sentencing court Appellant had a prior conviction for burglary and in

response to the sentencing court’s query indicated that someone had been

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present. The sentencing court concluded Appellant’s conviction herein,

therefore, constituted a second conviction for a crime of violence and

imposed the mandatory minimum sentence of ten (10) years’ to twenty (20)

years’ incarceration. N.T. Sentencing, 1/11/07, at 19. The sentencing court

stated that even were it not required to sentence in accordance with the

second strike statute “[it] would probably give him ten to twenty. Look, it

was egregious [referencing Appellant’s assault on S.L.].” N.T. Sentencing,

1/11/07, at 14. Although given an opportunity to speak to the sentencing

court, Appellant did not challenge the prosecutor’s representation, and

simply claims herein he “told” defense counsel to relay contradictory

information, although counsel inexplicably chose to say nothing.

In light of the foregoing, even if Appellant’s unsubstantiated claim he

had informed trial counsel at the time of sentencing that no one was present

during the prior burglary and that the premises were not adapted for

overnight accommodation were deemed to be true, the mandatory minimum

sentence still applied in light of his prior rape conviction. Therefore,

Appellant has failed to prove he was prejudiced by counsel’s alleged failure

to inform the sentencing court of the specific nature of his prior burglary

conviction.

Appellant also avers in a single sentence that trial counsel was

ineffective for failing to ensure his time of incarceration commenced at the

date of his arrest, not the date of his extraction to Philadelphia. Brief for

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Appellant at 22. However, Appellant's failure to properly develop this claim

and to set forth applicable case law to advance it in the argument portion of

his brief renders this issue waived. Commonwealth v. Ellis, 700 A.2d 948,

957 (Pa.Super. 1997) (holding waiver results if an appellant fails to properly

develop an issue or cite to legal authority to support his contention in his

appellate brief).4

Appellant devotes a half-page argument to the development of his

final issue that appellate counsel had been ineffective for failing to raise on

direct appeal in a Rule 1925(b) statement that the trial court improperly

precluded him from cross-examining S.L. regarding her prior sexual

encounters with Appellant. Brief of Appellant at 24. Appellant has failed to

properly develop this claim. Ellis, supra. Notwithstanding, even if appellate

counsel had included this issue in a Rule 1925(b) statement, this Court

would have been unable to review it since, as stated previously, trial counsel

did not cross-examine S.L. concerning her alleged agreement to trade sex

for drugs with Appellant, and there had been no trial court ruling concerning

____________________________________________

4

We note that at both the voir dire and sentencing hearings, the trial court

and sentencing court, respectively, stated Appellant would receive credit for

the time he had served in prison while in custody, and the Commonwealth

did not dispute that Appellant was entitled to receive such a credit. See

N.T. Voir Dire, 11/20/06, at 9; N.T. Sentencing, 1/11/07, at 19.

Accordingly, even if properly developed, this claim of ineffective assistance

of counsel would fail.

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the alleged sexual history between the two. Trial Court Opinion, filed

7/15/16, at 10. Therefore, we conclude this claim is meritless.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/4/2017

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