J-S42036-19

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CORNELIUS BROCKENBOROUGH 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1125 EDA 2018

Appeal from the PCRA Order March 27, 2018

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0007278-2009

BEFORE: OTT, J., KUNSELMAN, J., and COLINS*, J.

JUDGMENT ORDER BY COLINS, J.: FILED AUGUST 28, 2019

Appellant, Cornelius Brockenborough, pro se,

1 appeals from the order 

entered March 27, 2018, that dismissed his timely first petition filed under the 

Post Conviction Relief Act (“PCRA”)

2 without a hearing. We affirm.

The facts and procedural history of this appeal were set forth by this 

Court in Commonwealth v. Brockenborough, No. 60 EDA 2011, 

unpublished memorandum at 1-5 (Pa. Super. filed March 9, 2012), and by the 

PCRA court in its opinion filed September 14, 2018, at 1-2; therefore, we have 

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1 Appellant’s PCRA counsel filed a petition to withdraw and a “no merit” letter 

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), and 

was granted permission to withdraw by the PCRA court.

2 42 Pa.C.S. §§ 9541–9546.
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no reason to restate them.

3

 In his brief to this Court, Appellant presents the 

following issue for our review:

Whether Appellant’s judgment of conviction should be rever[s]ed 

on . . . the basi[s] of ineffective assistance of cou[n]sel(under 

Strickland-v-Washington,466 U.S.688(1984)and Commonwealth 

v Pierce, 527 [A]2d-973(1987)[Since his PCRA counsel failed to 

plead that Appellant’s trial counsel was ineffective in failing to 

move for mistrial after Appellant’s constitutional right to confront 

witnesses against him was violated by the Commonwealth's 

introduction [of] the content of Deanna Ferriol[a]’s five-page 

report []entered as Commonwealth’s Exhibit Number 39 @ NT Vol 

1,Nov.19,2010 @ P.-118-123),[

4 ]without affording Appellant the 

opportunity to cross-examine Deanna Ferriol[a] on the testing she 

performed to generate her published results.

Appellant’s Brief at 2 (emphasis in original).

“Issues not raised in the lower court are waived and cannot be raised 

for the first time on appeal.” Pa.R.A.P. 302(a). Appellant failed to raise the 

above challenge before the PCRA court. See generally PCRA Petition, 

9/9/2013; Response to Rule 907 Notice, 1/17/2018; Statement of Errors 

Complained of on Appeal, 5/10/2018. Accordingly, his sole claim raised on 

appeal is waived.

More specifically, in his PCRA petition, Appellant alleged: (1) his trial 

counsel was ineffective for failing to protect his right to a speedy trial; (2) his 

trial counsel was ineffective for failing to investigate his case; (3) his 

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3 Appellant is currently serving life imprisonment for murder of the first degree 

and possessing instruments of crime. See 42 Pa.C.S. § 9543(a)(1)(i) (to be 

eligible for PCRA relief, petitioner must currently be serving sentence).

4 Ferriola prepared the report documenting the interim step between the police 

officer submitting the evidence to the crime lab and the actual DNA analysis. 

N.T., 11/19/2010, at 118.
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confession should have been excluded from evidence; and (4) a DNA test 

would have exonerated him. PCRA Petition, 9/9/2013, at 2-3. Nowhere in his 

PCRA petition did Appellant maintain that his trial counsel was ineffective for 

failing to challenge the admission of Ferriola’s report or to request a mistrial 

due to that admission. Consequently, Appellant’s claim is waived, due to his 

failure to include it in his PCRA petition:

Regardless of the reasons for [an a]ppellant’s belated raising of 

[an] issue, it is indisputably waived. We have stressed that a 

claim not raised in a PCRA petition cannot be raised for the first 

time on appeal. We have reasoned that permitting a PCRA 

petitioner to append new claims to the appeal already on review 

would wrongly subvert the time limitation and serial petition 

restrictions of the PCRA. The proper vehicle for raising this claim 

is thus not the instant appeal, but rather is a subsequent PCRA 

petition.

Commonwealth v. Santiago, 855 A.2d 682, 691 (Pa. 2004) (internal 

brackets, citations, and quotation marks omitted).

Additionally, Appellant failed to insist in his response to the PCRA court’s 

Rule 907 Notice, filed January 17, 2018, that his PCRA counsel was ineffective 

for failing to raise the above claim of ineffectiveness against his trial counsel, 

and his claim of ineffective assistance of PCRA counsel thus is waived. See 

Commonwealth v. Rykard, 55 A.3d 1177, 1186-87 (Pa. Super. 2012).

Appellant’s claim that his PCRA counsel was ineffective for failing to state 

that his trial counsel was ineffective for failing to object to the admission of 

Ferriola’s report without first allowing Appellant the opportunity to confront 

and to cross-examine Ferriola is also waived due to Appellant’s failure to 
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include this challenge in his statement of errors complained of on appeal. 

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.”).

For the reasons given above, we conclude that Appellant’s sole issue

raised on appeal is waived.5 We affirm the order below.

Order affirmed.

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5 Assuming that Appellant’s issue were not waived, we would still find it 

meritless. Trial counsel and the Commonwealth entered into a stipulation on 

the record that, if Ferriola were to testify at trial, she would be certified as an 

expert in the field of forensic science. Id. at 118-23. However, Ferriola did 

not analyze the samples collected by police at the crime scene for DNA; her 

report merely chronicled the chain of evidence, when the samples arrived at 

the crime laboratory for examination, and whether they tested positive for 

blood or human protein and were worth further testing for DNA by a DNA 

analyst. Id. at 119-22.

The actual DNA analyst, Bryne Strother, who, in fact, performed the 

examination of the samples collected from the crime scene for DNA, was called 

to testify at trial immediately after the stipulation about Ferriola. Id. at 124. 

Thus, any questions about the testing of the samples were appropriately 

directed by trial counsel to Strother, who was the more suitable person to ask, 

as opposed to Ferriola. Id. at 152-54. Appellant’s constitutional rights 

therefore were not violated by not being able to cross-examine Ferriola. This 

underlying claim hence is meritless, and trial “[c]ounsel will not be deemed 

ineffective for failing to raise a meritless claim.” Commonwealth v. Spotz, 

896 A.2d 1191, 1210 (Pa. 2006). Appellant’s claim that his PCRA counsel was 

ineffective for failing to allege that trial counsel was ineffective likewise would 

merit no relief, because Appellant failed to establish trial counsel’s ineffective 

representation. See Commonwealth v. Elliott, 80 A.3d 415, 427 (Pa. 2013) 

(to prevail on a claim of most recent counsel’s ineffectiveness for failure to 

raise an allegation of earlier counsel’s ineffectiveness, a PCRA petitioner must 

present a layered claim that shows ineffectiveness at each layer of allegedly 

ineffective representation).
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/28/19