Com. v. Edens, W.

C
J-S06043-21


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    WALEED EDENS                               :
                                               :
                       Appellant               :   No. 1020 EDA 2019

              Appeal from the PCRA Order Entered March 7, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0012926-2012


BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                             Filed: March 18, 2021

        Waleed Edens (Edens) appeals from an order of the Court of Common

Pleas of Philadelphia County (PCRA court) denying his petition filed pursuant

to the Post Conviction Collateral Relief Act (PCRA), 42 Pa.C.S. §§ 9542-9546.

On appeal, Edens contends that the trial court erred in dismissing his PCRA

petition without a hearing, contending that his trial counsel, for a number of

reasons, was ineffective. He also contends that the PCRA court in its 1925(a)

opinion impermissibly changed the disposition of his petition from dismissal

for being without merit to one that quashed his appeal because it was

prematurely filed before appeals on the merits had concluded.          While we




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S06043-21


decline not to address the merits of the appeal, we affirm the trial court’s

order dismissing the PCRA petition without a hearing.

                                               I.

        We take the following factual background and procedural history from

our independent review of the record, this Court’s October 12, 2017

memorandum decision and the PCRA court’s December 10, 2019 opinion.

                                               A.

        In Philadelphia, on the night of July 25, 2012, Edens, after an argument,

shot his father, Jerome Edens (Complainant) three times.            Edens fled the

scene and went into hiding until he was arrested six weeks later.               On

November 13, 2012, the Commonwealth filed an information charging Edens

with Criminal Attempt (Murder), Aggravated Assault, Possession of a Firearm

Prohibited, Firearms Not To Be Carried Without a License, Carrying a Firearm

on a Public Street in Philadelphia, Possession of an Instrument of Crime,

Simple     Assault   and    Recklessly     Endangering   Another   Person   (REAP).

Apparently, the case was held for court without Edens being arraigned. After

a January 2, 2013 scheduling conference, the court scheduled trial for

November 6, 2013.

        Before the scheduled trial date, on October 7, 2013, Edens’ trial counsel

filed a Rule 600 motion1 to dismiss that he later withdrew as premature. The

____________________________________________


1   Pa.R.Crim.P. 600(C) provides:



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motion was not renewed. On November 6, 2013, the court granted a defense

motion for a continuance, continuing trial until July 8, 2014, and in July 2014,

granted another defense continuance motion and continued the trial until

December 4, 2014, when a trial readiness conference was held and trial listed

for December 8, 2014. Due to the trial court’s docket, trial did not occur at

that time, but instead commenced on July 8, 2015.

       At   trial,   the   Commonwealth        presented   the   testimony   of   the

Complainant, Philadelphia Police Officers Daniel Martinez and Joseph Moore,2

and Philadelphia Police Detective Donald Liebsch. The Complainant testified



____________________________________________


       In determining the period for commencement of trial, there shall
       be excluded therefrom:

             (1) the period of time between the filing of the written
       complaint and the defendant’s arrest, provided that the defendant
       could not be apprehended because his or her whereabouts were
       unknown and could not be determined by due diligence;

            (2) any period of time for which the defendant expressly
       waives Rule 600;

             (3) such period of delay at any stage of the proceedings as
       results from:

                  (a) the unavailability of the defendant or the
       defendant’s attorney;

                  (b) any continuance granted at the request of the
       defendant or the defendant’s attorney.

2Officer Moore testified to securing Edens’ identification information at the
police department on his arrest.


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about the night of the incident. He stated that he is Edens’ father and on that

night, he went to the home of Edens’ friend, Troy Timms. He spoke to Mr.

Timms about how much time Edens was spending with him instead of at home

with his pregnant wife. Upon returning home, the Complainant ran into Ron

Watkins and was speaking with him when Edens approached them, saying, “I

ain’t scared of you dad.” The Complainant saw a cell phone in one of Edens’

hands and then saw the gun in the other before Edens shot at him three times

and ran. (See N.T. Trial, 7/08/15, at 45-47).

      Police Officer Daniel Martinez was the first officer on the scene and the

Complainant told him that Edens had shot him, gave him his son’s address

and the make and model of his vehicle.       He did not observe a gun in the

Complainant’s possession or anywhere else at the scene, although he did

recover shell casings.

      Detective Liebsch testified in pertinent part that Edens fled the shooting,

went into hiding, and remained a fugitive until his arrest roughly six weeks

later. Prior to introducing recordings of prison phone calls to play for the jury

and about which Detective Liebsch would testify, the prosecutor stated that

the parties had stipulated to what the custodian of records for the Philadelphia

Department of Corrections would have testified. Specifically, she advised the

jury that:

      [T]here’s a stipulation by and between counsel meaning both
      sides agree, that if the custodian of records from the Philadelphia
      Department of Corrections were to testify, he would testify that
      calls from inmates in Philadelphia prisons are recorded. That prior

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     to each call a message is played to the inmate alerting the inmate
     that the call is being recorded.

             Each inmate has a PIN number they use in order to make
     outgoing calls and track those calls. The calls themselves are
     recorded as well as the date, the time, and the phone number to
     which the call is made.

              The custodian of records has a duty to keep accurate
     copies of these recordings. The CD which is marked C-18 is an
     accurate copy of the defendant’s calls made by the defendant
     while incarcerated in the Philadelphia prisons on his case prior to
     posting of bail.

(Id. at 112-13). Defense counsel did not object to the stipulation.

     The prosecutor then examined Detective Donald Liebsch and played the

tape of Edens’ pretrial prison phone calls with various friends and family

members. Detective Liebsch stated that he listened to Edens’ calls because

of the Complainant’s concerns. In one call, Edens, said of the Complainant,

“You don’t fucking come to court.” (Id. at 114). After listening to the phone

calls, the detective advised the Complainant that Edens had made threatening

remarks about him if he appeared at court.

     Edens presented the testimony of Ron Watkins, the individual speaking

with the Complainant prior to the shooting. He testified that he was talking

with the Complainant about Edens outside the home the Complainant shared

with his wife and Edens when he saw Edens walking up the street with a cell

phone in his hand. As Watkins turned to watch Edens, the Complainant was

behind him and Edens forcefully grabbed Watkins’ shoulder and told him to

move. Watkins did so because of the “severity” with which Edens directed


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him, testifying that he felt “fear” and “danger.” Watkins ran down the street,

turning around to see the Complainant and Edens “tussling.” Watkins testified

that the Complainant had his hand under his shirt and appeared to be reaching

for something, but he did not see either man with a gun. Upon reaching the

corner, he heard three shots and turned to see the Complainant lying on the

ground.    When Officer Martinez arrived, Watkins was at the scene, but he

testified Edens had left and that he did not tell the officer that he witnessed

the shooting. (See

id. at 11-15, 21, 27).

Edens did not testify on his own

behalf.

        On July 9, 2015, a jury convicted Edens of Aggravated Assault and

Possession of a Firearm Prohibited3 and acquitted him on the charges of

Attempted Murder and Carrying a Firearm without a License.4 The same day,

the trial court held a waiver trial at which counsel stipulated that Edens was

prohibited from carrying a firearm due to a previous conviction and the court

convicted him of Carrying a Firearm on a Public Street in Philadelphia.5 On

November 9, 2015, the court sentenced Edens to an aggregate term of not

less than twelve nor more than twenty years’ incarceration, followed by five

years of probation.


____________________________________________


3   18 Pa.C.S. §§ 2702(a)(1) and 6105(a)(1), respectively.

4   The Commonwealth nolle prossed the remaining charges.

5   18 Pa.C.S. § 6108.


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                                               B.

        A panel of this Court affirmed the judgment of sentence on October 12,

2017. (See Commonwealth v. Edens, 

179 A.3d 553

(Pa. Super. 2017)).

Edens filed a petition for allowance of appeal in the Pennsylvania Supreme

Court. While the petition was still pending, on February 20, 2018, Edens filed

a pro se PCRA petition, and on February 28, 2018, the court appointed

Attorney Krakower. The Pennsylvania Supreme Court denied Edens’ petition

for allowance of appeal on March 13, 2018. (See Commonwealth v. Edens,

182 A.3d. 446 (Pa. 2018)).

        Attorney Krakower filed an amended and a supplemental PCRA petition

on June 20, 2018, and July 23, 2018, respectively. The PCRA court issued

notice of its intent to dismiss the petition on February 1, 2019.                See

Pa.R.Crim.P. 907(1).6 The notice advised Edens that the PCRA petition lacked


____________________________________________


6   Pa. R. Crim. P. 907 provides:

        Except as provided in Rule 909 for death penalty cases,

              (1) the judge shall promptly review the petition, any answer
        by the attorney for the Commonwealth, and other matters of
        record relating to the defendant’s claim(s). If the judge is satisfied
        from this review that there are no genuine issues concerning any
        material fact and that the defendant is not entitled to post-
        conviction collateral relief, and no purpose would be served by any
        further proceedings, the judge shall give notice to the parties of
        the intention to dismiss the petition and shall state in the notice
        the reasons for the dismissal. The defendant may respond to the
        proposed dismissal within 20 days of the date of the notice. The



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merit because he failed to plead and prove trial counsel was ineffective for

failing to convey a plea offer, failing to investigate and interview exculpatory

witnesses, failing to request a colloquy before stipulating to the authenticity

of prison phone calls or for failing to file a Rule 600 motion. (See Notice

Pursuant to Pa.R.C.P. 907, 2/01/19, at 1-2). Edens did not respond to the

notice and on March 7, 2019, the court formally dismissed the petition on the

merits. Edens timely appealed pro se and filed a statement of errors raised

on appeal pursuant to the PCRA court’s order. See Pa.R.A.P. 1925(b).

       On August 6, 2019, the PCRA court sent correspondence to this Court

advising that Edens’ appeal should be quashed because he prematurely filed

his PCRA petition while his direct appeal was still pending in the Pennsylvania

Supreme Court. In response to a rule to show cause, Attorney Krakower7

indicated that he made all attempts to preserve the PCRA petition, including

filing amended petitions after Edens’ judgment of sentence became final. On

December 24, 2019, the rule to show cause was discharged and the issue

referred to the merits panel. The court filed a Rule 1925(a) opinion in which




____________________________________________


       judge thereafter shall order the petition dismissed, grant leave to
       file an amended petition, or direct that the proceedings continue.

7 On March 20, 2020, this case was remanded to the PCRA court for an
abandonment hearing because Attorney Krakower failed to file an appellate
brief on behalf of Edens. After the hearing, the PCRA court appointed Attorney
Love, who filed an appellate brief on Edens’ behalf.


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it did not address the merits of Edens’ PCRA issues but, instead, again

suggested that we quash his appeal. See Pa.R.A.P. 1925(a).

                                               II.

       Edens raises three issues on appeal, which we reorder for ease of

disposition: (1) whether the PCRA court erred in bringing up the jurisdictional

issue for the first time in this Court, thus depriving him of notice; (2) whether

the PCRA court erred in denying his petition based on its allegations of

ineffective assistance of trial counsel; and (3) whether the trial court failed to

provide a timely formal arraignment.8 Because we cannot dispose of the other

issues if the PCRA petition was filed prematurely, depriving the court of

jurisdiction, we will address that issue first.

                                               A.

       Edens maintains that the PCRA court erred in its Rule 1925(a) opinion

by stating, for the first time,9 that its denial of his petition was proper because

it lacked jurisdiction due to Edens’ premature PCRA filing. (See Edens’ Brief,

____________________________________________


8 This Court’s standard of review regarding an order denying a petition under
the PCRA is whether the determination of the PCRA court is supported by the
evidence of record and is free of legal error. See Commonwealth v. Rizvi,

166 A.3d 344

, 347 (Pa. Super. 2017).

9 As stated previously, the PCRA court first raised this issue in its October 6,
2019 correspondence to this Court, not in its Rule 1925(a) opinion. However,
this does not affect Edens’ argument, that by failing to raise this ground for
dismissal of his PCRA petition while in the PCRA court, he was deprived the
opportunity to address and remedy the procedural problem.




                                           -9-
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at 17-19). He argues that by raising this issue for the first time at this point

in the proceedings, the court denied him the opportunity to cure the defect

prior to the PCRA petition’s dismissal. (See

id. at 19).

       In considering jurisdiction in this case, we note preliminarily that:

       A PCRA court lacks jurisdiction to consider a PCRA petition when
       a petitioner’s judgment is not final. … Accordingly, until [an]
       [a]ppellant’s judgment of sentence becomes final in accordance
       with the procedural mechanisms recognized in 42 Pa.C.S.A.
       § 9545(b)(3),[10] we lack jurisdiction to consider the merits of
       [his] remaining [PCRA] claims.

Id. (citations omitted).

This

Court has instructed that, “[i]f a petition is filed while a direct

appeal is pending, the PCRA court should dismiss it without prejudice towards

the petitioner’s right to file a petition once his direct appeal rights have been

exhausted.” Commonwealth v. Smith, ___ A.3d ___, 

2020 WL 7501859

,

at *3 (Pa. Super filed Dec. 21, 2020) (citation omitted). “The fact that the

PCRA court declined to do so is of no consequence [because] [i]n the PCRA

context, statutory jurisdiction cannot be conferred by silence, agreement or

neglect.”

Id. at *4

(internal quotation marks and citation omitted).

       In this case, Edens filed his PCRA petition while his direct appeal was

pending in the Pennsylvania Supreme Court. The PCRA court should have


____________________________________________


10Section 9545(b)(3) of the PCRA provides that a judgment becomes final at
the conclusion of direct review, including discretionary review in the Supreme
Court of the United States and the Supreme Court of Pennsylvania, or at the
expiration of time for seeking the review.” 42 Pa.C.S. § 9545(b)(3).


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dismissed it as a legal nullity without prejudice to him re-filing it when his

judgment of sentence became final. Had it done so, Edens would have been

within the one-year window for filing a timely petition.       See 42 Pa.C.S.

§ 9545(b)(1) (a PCRA petition “shall be filed within one year of the date the

judgment becomes final.”). Instead, the trial court appointed counsel who

filed an amended PCRA petition and a supplemental PCRA petition, which were

filed after Edens’ judgment of sentence was final. The PCRA court allowed

the matter to proceed, issued a Pa.R.Crim.P. 907(1) notice, then dismissed

the PCRA petition as meritless.

      After that order was final, the court then issued its 1925(a) opinion that

did not address the rationale behind its dismissal of Eden’s PCRA petition.

After Edens’ one-year window for filing a new petition expired, and without

addressing whether the amended and supplemental PCRA petitions filed after

the appeal on the merits had concluded made the matter not premature, the

court quashed his PCRA petition as premature.

      Under these circumstances, we decline to quash this appeal on the basis

that the PCRA petition was premature because it would be unjust to consider

Edens’ petition a legal nullity where the court’s misstep has resulted in his

inability to file a timely petition. See Commonwealth v. Mojica, 

242 A.3d

949

, 954 (Pa. Super. 2020) (declining to treat premature PCRA petition as

legal nullity where doing so would be unjust due in part to the PCRA court’s

“misapprehension” about appellant’s prematurely filed petition); see also


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Commonwealth v. Patterson, 

940 A.2d 493

, 498 (Pa. Super. 2007), appeal

denied, 

960 A.2d 838

(Pa. 2008) (“Generally, an appellate court cannot

extend the time for filing an appeal. Nonetheless, this general rule does not

affect the power of the courts to grant relief in the case of fraud or breakdown

in the processes of the court.”) (citations omitted).

        Now to the merits.

                                       B.

        Edens maintains that counsel was ineffective (1) for failing to renew a

Rule 600 motion, (2) failing to interview exculpatory witnesses, (3) stipulating

to prison phone calls without a colloquy, and (4) failing to communicate a plea

deal.

        In considering an ineffective assistance of counsel claim, we observe

first that counsel is presumed effective and that a petitioner bears the burden

to prove otherwise. See Commonwealth v. Fears, 

86 A.3d 795

, 804 (Pa.

Super. 2014). To establish an ineffectiveness claim, a defendant must prove:

        (1) the underlying claim has arguable merit; (2) no reasonable
        basis existed for counsel’s actions or failure to act; and (3)
        [appellant] suffered prejudice as a result of counsel’s error such
        that there is a reasonable probability that the result of the
        proceeding would have been different absent such error.

Id. (citation omitted). “Failure

to prove any prong of this test will defeat an

ineffectiveness claim. When an appellant fails to meaningfully discuss each of

the three ineffectiveness prongs, he is not entitled to relief, and we are

constrained to find such claims waived for lack of development.”

Id. (citations

– 12

-
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and internal quotation marks). Finally, counsel will not be found ineffective

for failing to raise a meritless claim. See

id.

1.

      As to the Rule 600 issue, Edens maintains that the failure to renew the

prematurely filed Rule 600 motion was prejudicial to him because it could have

resulted in dismissal of the charges against him. (See

id. at 20-21).

      Pursuant to Rule 600, generally, a trial must commence against a

defendant within 365 days of the complaint’s filing.          See Pa.R.Crim.P.

600(A)(2)(a). When computing this time, “periods of delay at any stage of

the proceedings caused by the Commonwealth when the Commonwealth has

failed to exercise due diligence shall be included in the computation of time

within which trial must commence.        Any other periods of delay shall be

excluded from the computation.” Pa.R.Crim.P. 600(C)(1). Time attributable

to the normal progression of the case in the pre-trial period may be excluded

at the trial court’s discretion. See Commonwealth v. Mills, 

162 A.3d 323

,

325 (Pa. 2017).

      In his amended PCRA petition, Edens baldly asserted that trial counsel

“took the case to trial on July 8, 2015; approximately a year and a half beyond

the 365 day limit provided in the rule,” as the sole basis for his Rule 600 issue.

(See Amended Petition, at Paragraph B(3)). He offered no specific dates or

pertinent argument. Based on this sparse argument provided to the PCRA

court, we cannot conclude that it abused its discretion in finding that Edens


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failed to plead and prove that counsel lacked a reasonable basis for not

renewing the Rule 600 motion or that Edens was prejudiced by this inaction.

(See Rule 907 Notice, at 2).

      In his appellate brief, Edens expands on this issue by adding, for the

first time, that although some of the time was excludable (specifically,

November 6, 2013, to July 8, 2014, and July 15, 2018, to December 4, 2015),

the case did not go to trial until over two-and-a-half years from the filing of

the complaint. (See Edens’ Brief, at 21). He does not provide any argument

regarding the Commonwealth’s due diligence, merely offering that this fact

issue required a hearing. (See

id. at 20-21).

      However, even based on these additional meager facts, we cannot find

that the PCRA court’s denial of his petition without a hearing was an abuse of

discretion. See Commonwealth v. Maddrey, 

205 A.3d 323

, 329 (Pa. Super.

2019), appeal denied, 

205 A.3d 323

(Pa. 2019) (declining to find PCRA court

abuse of discretion where appellant fails to provide sufficient fact and

argument). In fact, our review of the record does not reveal any continuance

requests by the Commonwealth, and most continuances appear to be due to

the normal pre-trial progression of the case. Because there is no evidence

that the Commonwealth failed to act with due diligence in bringing Edens to

trial or that it caused any periods of delay, the PCRA court properly found that

Edens failed to meet his burden to plead and prove that trial counsel was




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ineffective for failing to renew his Rule 600 motion where it would have lacked

underlying merit. See Fears, supra at 804.

                                       2.

      Next, Edens argues that the PCRA court abused its discretion in denying

his petition without a hearing where trial counsel was ineffective for failing to

interview exculpatory witnesses, specifically, Deborah and Troy Timms.

      “[T]he decision whether to grant an evidentiary hearing is within the

discretion of the PCRA court and will not be overturned absent an abuse of

discretion.” Commonwealth v. Reid, 

99 A.3d 470

, 485 (Pa. 2014) (citation

omitted). To be entitled to an evidentiary hearing on a claim of ineffective

assistance of counsel for failure to interview potential witnesses, the PCRA

court requires “a signed certification as to each intended witness stating the

witness’s name, address, date of birth and substance of testimony.”           42

Pa.C.S. § 9545(d)(1). “Failure to substantially comply with the requirements

of this paragraph shall render the proposed witness’s testimony inadmissible.”

Id.

In his amended

PCRA petition, Edens provided the substance of Deborah

Timm’s potential testimony that she saw the Complainant with a gun

threatening that he would kill Edens days before the incident, her incomplete

phone number, “267-326—980” and a blank line for date of birth.            (See

Amended PCRA Petition, 6/20/18, at Paragraph B(1)). He represented that

Troy Timms would testify similarly but provided no phone number and no date


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of birth for him. (See id.). He did not include a signed certification as to each

potential witness and the information provided in the body of his amended

PCRA petition was incomplete. Therefore, his claim fails on this basis alone.

See Commonwealth v. Priovolos, 

715 A.2d 420

, 422, n.3 (Pa. 1998)

(where a petitioner requests a hearing, the petition must include a signed

certification with all required information as to each intended witness).

       Moreover, even if he had provided proper certifications as to Deborah

and Troy Timms, he failed to establish that he was prejudiced by counsel’s

choice not to investigate them.

       The failure to investigate presents an issue of arguable merit
       where the record demonstrates that counsel did not perform an
       investigation. It can be unreasonable per se to conduct no
       investigation into known witnesses. Importantly, a petitioner still
       must demonstrate prejudice. To demonstrate prejudice where the
       allegation is the failure to interview a witness, the petitioner must
       show that there is a reasonable probability that the testimony the
       witness would have provided would have led to a different
       outcome at trial.

Commonwealth v. Pander, 

100 A.3d 626

, 638-39 (Pa. 2014), appeal

denied, 

109 A.3d 679

(Pa. 2015) (citations and quotation marks omitted).

       Edens maintains that both Deborah and Troy Timms would have testified

that the Complainant told them before the shooting11 that he was looking for



____________________________________________


11 In his amended PCRA petition, Edens represented that the Timms would
have testified that the Complainant made this threat days before the shooting.
In his brief to this Court, he maintains that the Complainant showed the guns
to Deborah Timms and made the threat an hour before the shooting.


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Edens and was going to shoot him for disgracing his family and that the

Complainant displayed a gun to Ms. Timms.        (Amended PCRA Petition, at

Paragraph B(1)).    He argues that this evidence would have disputed the

Commonwealth’s claim that Edens possessed the gun prior to the incident,

leading to a different outcome.

      However, based on the other evidence of record, Edens failed to

establish that there is a reasonable probability that the outcome of the

proceeding would have been any different had these witnesses testified.

Specifically, the Complainant, Edens’ father, testified that immediately after

he went to Edens’ friend’s home to talk with him about Edens not spending

enough time with his pregnant wife, Edens angrily approached him as he was

returning home and shot him three times. Officer Martinez stated that when

he arrived at the scene, the Complainant was not in possession of a gun, there

was no firearm at the location and that the Complainant identified Edens as

the shooter.   Furthermore, the Commonwealth introduced evidence that

Edens fled the shooting, went into hiding and remained a fugitive until his

arrest approximately six weeks later. Finally, the jury heard a series of prison

phone calls made by Edens in which he made threatening remarks about the

Complainant should he come to court, phone calls Detective Liebsch testified

he reviewed because of the Complainant’s concerns about which he felt

compelled to warn the Complainant.




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      Based on the foregoing, we conclude the PCRA court properly found that

Edens has failed to plead and prove he was prejudiced by counsel’s failure to

investigate these proposed witnesses. Although they would have testified that

the Complainant was upset with Edens and had a gun at some point before

the shooting, which might have bolstered Watkins’ testimony, in the totality

of the circumstances, we conclude that the PCRA court did not abuse its

discretion when it found Edens failed to establish that this testimony would

have impacted the outcome of the trial.        See Fears, supra at 804.    This

argument fails.

                                      3.

      Edens then maintains that the trial court abused its discretion in denying

his petition without a hearing because counsel was ineffective for failing to

request a colloquy before stipulating that the Custodian of Records of the

Philadelphia Department of Corrections would testify to the authenticity of

phone calls he made while in pre-trial custody. (See Edens’ Brief, at 26-28).

He argues that the stipulation effectively prevented any challenge to the

records and “virtually assured [his] conviction.” (Id. at 27). In sum, he states

that trial counsel was “obligated” to ask for a colloquy to ensure Edens

understood the agreement and its effect. (See

id. at 28).

      First, we note that Edens does not allege he would have objected to the

stipulation had he received a colloquy.       Moreover, he did not point to any

specific aspect of the records that were untrustworthy or explain how cross-


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examination of the Custodian of Records would have cast any doubt on the

credibility of that information.       Hence, he has failed to prove that he was

prejudiced by counsel’s failure to request a colloquy prior to stipulating to

what the Custodian of Records would have testified regarding the authenticity

of the prison phone calls. See Commonwealth v. Smith, 

17 A.3d 873

, 910-

11 (Pa. 2011), cert. denied, 

567 U.S. 937

(2012) (no prejudice from

stipulation where petitioner did not demonstrate that the outcome of the case

would have been different if trial counsel had an opportunity to cross-examine

the witness).12

       Accordingly, the PCRA court properly found that this argument lacks

merit. See Fears, supra at 804.

                                               4.

       Finally, Edens complains that trial counsel was ineffective for failing to

communicate a plea offer of eight to sixteen years’ incarceration in exchange

for his guilty plea. (See Edens’ Brief, at 28-30).




____________________________________________


12 Moreover, we are not persuaded by the cases Edens relies on in support of
this claim. (See Edens’ Brief, at 27-28). In Commonwealth v. Williams,

443 A.2d 338

(Pa. Super. 1982), and Commonwealth v. Davis, 

322 A.2d
103

(Pa. 1974), the defendants were awarded new trials where the trial
attorneys stipulated to the testimony of the complaining witness, thereby
preventing cross-examination of a significant fact witness in each case. Here,
trial counsel merely stipulated to the Custodian of Records’ pro forma
authentication of prison phone calls making Williams and Davis inapposite
to the case herein.


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        To prove ineffective assistance of counsel in the context of a plea deal,

“a defendant must show the outcome of the plea process would have been

different with competent advice.”         Lafler v. Cooper, 

566 U.S. 156

, 163

(2012). Where the alleged ineffectiveness led to an offer’s rejection:

        [D]efendant must show that but for the ineffective advice of
        counsel there is a reasonable probability that the plea offer would
        have been presented to court (i.e., that the defendant would have
        accepted the plea and the prosecution would not have withdrawn
        it in light of intervening circumstances), that the court would have
        accepted its terms, and that the conviction or sentence, or both,
        under the offer’s terms would have been less severe than the
        judgment and sentence that were in fact imposed.

Id. at 164.

        Here, in support of the claim, Edens attached an affidavit signed by

Jerome Edens, the Complainant, to his pro se PCRA petition. In the affidavit,

the Complainant represented that he met with a detective and assistant

district attorney in 2014 and that he was told “[defendant] would be offered

a term of eight (8) years to sixteen (16) years at this interview by the assistant

district attorney.” (See Pro Se PCRA Petition, at Exhibit J). However, the

affidavit does not state that trial counsel was at the meeting or aware of this

alleged deal, ostensibly since it was a meeting with the Complainant, not

Edens.

        In his supplemental PCRA petition, Edens asserted for the first time that

“[he] informed undersigned [PCRA] counsel that … [his] trial attorney, Shawn

Page,    Esquire,   was   present   at    the     time   of   the   ‘offer’   statement.”

(Supplemental PCRA Petition, at 1).         However, Edens did not provide any

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J-S06043-21


evidence of trial counsel’s attendance at this purported meeting, instead only

making the bald allegation or establish that even if the Complainant were told

at the purported meeting that Edens would be offered an eight-to-sixteen-

year plea deal, that any such offer was ever made. Hence, we conclude that

Edens failed to establish that his underlying claim had merit.            See

Commonwealth v. Hentosh, 

554 A.2d 20

, 24-25 (Pa. 1989) (claims of

ineffectiveness are not self-sustaining, but must be established by submission

of relevant proofs, and failure to submit such relevant proofs supporting claim

of ineffectiveness warrants summary rejection of the claim); Commonwealth

v. Jones, 

811 A.2d 994

, 1003 (Pa. 2002) (ineffective assistance of counsel

claims are not self-proving and undeveloped claims are insufficient to prove

an entitlement to relief).13

       Accordingly, Edens has failed to prove that counsel was ineffective for

failing to advise him of a plea offer where he provides no evidence that an

offer was made or that counsel was aware of it. For all these reasons, we



____________________________________________


13 The PCRA court denied this claim because Edens failed to establish he was
prejudiced by counsel’s inaction because “he rejected a prior plea offer of
eight-and-one half to seventeen years of incarceration.” (Rule 907 Notice, at
1). While the record is clear that Edens rejected a plea offer on January 28,
2013, we found no evidence of the offer’s terms. Hence, we decline to rely
on this reasoning. However, we may affirm a PCRA court’s decision on any
basis appearing of record. See Commonwealth v. Clouser, 

998 A.2d 656

,
661 n.3 (Pa. Super. 2010), appeal denied, 

26 A.3d 1100

(Pa. 2011).




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J-S06043-21


conclude that the PCRA court did not abuse its discretion in denying Edens’

PCRA petition.

                                               C.

       Finally, Edens complains that his conviction should be vacated because

he was not arraigned, and that trial counsel was ineffective for failing to

request a stand your ground14 jury instruction. (See Edens’ Brief, at 30-31).

These issues are waived.

                                               1.

       As to the stand your ground issue, Edens admits that it was not raised

in either his amended or supplemental PCRA petitions and our review of the

record confirms he did not raise it in his pro se petition. Instead, it was raised

for the first time in his Rule 1925(b) statement.      Further, he provides no

pertinent law, discussion thereof or identify any evidence in support of this

claim, offering only that counsel should have pursued the defense “to obviate

[Edens’] need to retreat.” (Edens’ Brief, at 31). For all these reasons, this

issue is waived. See Pa.R.A.P. 302(a) (“Issues not raised in the trial court



____________________________________________


14 “Stand your ground” is related to the duty to retreat in the context of self-
defense and is codified in Section 505 of the Crimes Code. It provides, in
pertinent part, that “[a]n actor who is not engaged in a criminal activity, who
is not in illegal possession of a firearm and who is attacked … has no duty to
retreat and has the right to stand his ground and use force, including deadly
force[]” where the actor has the right to be in the place in which he was
attacked and the person against whom the force is used uses a firearm. 18
Pa.C.S. § 505(b)(2.3).


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J-S06043-21


are waived and cannot be raised for the              first   time on appeal.”).

Commonwealth v. Bedell, 

954 A.2d 1209

, 1216 (Pa. Super. 2008), appeal

denied, 

964 A.2d 893

(Pa. 2009) (Issue not raised in PCRA petition is waived);

Pa.R.A.P. 2119(a)-(b). Nor will we scour the record to find support for a claim

or to make an argument on Edens’ behalf. See Commonwealth v. Cannavo,

199 A.3d 1282

, 1289 (Pa. Super. 2018), appeal denied, 

217 A.3d 180

(Pa.

2019) (“We shall not develop an argument for an appellant, nor shall we scour

the record to find evidence to support an argument; instead, we will deem

[the] issue to be waived.”) (citation omitted).

                                               2.

       As to his arraignment15 issue, Edens concedes that it is not raised in

either his amended or supplemental PCRA petitions. (See Edens’ Brief, at

30). Although he did raise it in his pro se petition, which the amended petition

purported to incorporate, the amended petition also qualified that the

argument “ha[s] a fatal flaw or defect which prevents us from arguing that

th[e] issue[] justif[ies] giving petitioner a new trial.” (Amended PCRA Petition,

at (C); (Pro Se PCRA Petition, at 7). We agree because the arraignment issue

is waived under the PCRA where Edens could have raised it in his direct appeal,


____________________________________________


15  An arraignment’s main purpose is to advise the defendant of the charges
against him or her, have counsel enter an appearance and to start the time
for filing pre-trial motions and initiate discovery. See Pa.R.Crim.P. 571,
Comment. Here, the record reflects that Edens was on notice of the charges
against him, counsel entered his appearance, multiple pre-trial motions were
filed and discovery was initiated.

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J-S06043-21


particularly where he argues that trial counsel raised it before trial, but that

the court “erroneously rejected” it.    (Edens’ Brief, at 31); see 42 Pa.C.S.

§ 9544(b) (Issues that could have been raised on direct appeal are waived

under the PCRA); Commonwealth v. Lambert, 

797 A.2d 232

, 240 (Pa.

2001) (finding claims waived where they could have been raised on direct

appeal).

      Moreover, just as in his stand your ground claim, Edens provides no

pertinent citation to authorities or discussion thereof, and he fails to identify

where in the record this issue was raised, thus waiving this claim on this basis

as well. See Pa.R.A.P 2119(a)-(d); Cannavo, supra at 1289.

      Therefore, for all these reasons, Edens’ bald claims that his conviction

should be vacated on the bases of the arraignment and stand your ground

arguments are waived for our review and Edens is due no relief.

      For the foregoing reasons, we affirm the order of the court denying

Edens’ PCRA petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/18/21

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