J-S73044-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

DERECK MARTZ, :

:

Appellant : No. 742 MDA 2014

Appeal from the PCRA Order entered on April 10, 2014

in the Court of Common Pleas of Montour County,

Criminal Division, No. CP-47-CR-0000205-2003

BEFORE: BOWES, WECHT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED MARCH 31, 2015

Dereck Martz (“Martz”) appeals from the Order denying his first 

Petition filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We 

affirm.

This Court set forth the relevant procedural history in a prior Opinion,

as follows:

On June 22, 2005, a jury convicted [Martz] on one count 

of indecent assault, 18 Pa.C.S.A. § 3126(a)(7), and one count of 

corruption of minors, 18 Pa.C.S.A. § 6301(a)(1), in connection 

with his sexual assault of an eleven-year-old girl. On February 

22, 2006, the trial court sentenced [Martz] to one year to four 

years in prison for indecent assault, and one year to four years 

in prison for corruption of minors, the sentences to run 

consecutively. Thus, [Martz]’s aggregate sentence was two 

years to eight years in prison. Additionally, the trial court found 

[Martz] to be a sexually violent predator for Pennsylvania’s 

Megan’s Law III purposes.

 

1 See 42 Pa.C.S.A. §§ 9541-9546. 
J-S73044-14

- 2 -

On August 10, 2006, the trial court filed an amended 

sentencing [O]rder indicating [that Martz]’s sentences were to 

run concurrently, resulting in a reduced aggregate sentence of 

one year to four years in prison. On direct appeal, this Court 

affirmed [Martz]’s conviction[,] but held the trial court erred 

when it filed its amended sentencing [O]rder reducing [Martz]’s 

sentence. Commonwealth v. Martz, 2007 PA Super 165, 926 

A.2d 514 (Pa. Super. 2007). Therefore, on June 25, 2007, upon 

remand, the trial court reinstated [Martz]’s original sentence 

[whereby Martz] was to serve his sentences consecutively, thus 

resulting in an aggregate [sentence] of two years to eight years 

in prison. However, after the trial court reinstated [Martz]’s 

original sentence, for unknown reasons, the Montour County 

Clerk of Courts failed to transmit the June 25, 2007 sentencing 

[O]rder to the Pennsylvania Department of Corrections (the 

DOC).

On January 18, 2008, [Martz] filed a [P]etition under the 

[PCRA]. However, during the pendency of his [P]etition, 

unaware [Martz]’s sentences were to run consecutively, the DOC 

released [Martz] from custody on January 21, 2010, at the end 

of his maximum four-year “concurrent” sentence. That is, 

[Martz] was not placed on parole; but rather, he was released 

from prison after he “maxed out” his August 10, 2006 sentence, 

which imposed concurrent sentences, as opposed to his 

reinstated June 25, 2007 sentence, which imposed consecutive 

sentences.

Believing [Martz] was no longer eligible for relief since he 

was not “currently serving a sentence of imprisonment, 

probation, or parole for the crime,” 42 Pa.C.S.A. § 9543(a)(1)(i), 

the Commonwealth moved to dismiss [Martz]’s PCRA [P]etition. 

On June 22, 2010, the PCRA court granted the Commonwealth’s 

[M]otion, thereby dismissing [Martz]’s PCRA [P]etition without 

reaching the merits thereof. On July 12, 2010, [Martz] filed a 

[N]otice of [A]ppeal to this Court.

Subsequently, on August 11, 2011, the Commonwealth 

discovered the Clerk of Courts had failed to send the June 25, 

2007 re-sentencing [O]rder to the DOC, and therefore, [Martz] 

had been mistakenly released from prison before the completion 

of his sentence. As a result, the Commonwealth applied for a 

bench warrant, and, on August 12, 2011, [Martz] was detained. 

On September 1, 2011, following a hearing, the trial court 

recommitted [Martz] to serve the remainder of his sentence 

under the terms of the June 25, 2007 re-sentencing [O]rder. 
J-S73044-14

- 3 -

However, the trial court gave [Martz] credit for “time served” 

from January 21, 2010, when he was mistakenly released from 

prison due to an apparent clerical error, until September 1, 

2011, when he was recommitted to serve the remainder of his 

sentence. The Commonwealth filed a [N]otice of [A]ppeal to this 

Court, arguing in its timely-filed court-ordered Pa.R.A.P. 1925(b)

[S]tatement that the trial court imposed an illegal sentence on 

September 1, 2011, when it gave [Martz] credit for “time 

served” while he was at liberty.

Commonwealth v. Martz, 42 A.3d 1142, 1143-44 (Pa. Super. 2012) 

(footnotes omitted).

Subsequently, this Court vacated the portion of the trial court’s 

sentencing Order pertaining to credit for time served during the period in 

which Martz was erroneously at liberty. Id. at 1151. Additionally, upon 

joint Motion of the Commonwealth and Martz, this Court vacated the PCRA 

court’s Order dismissing Martz’s PCRA Petition, and remanded for further 

PCRA proceedings. Upon remand, Martz filed an amended PCRA Petition. 

Following an evidentiary hearing, the PCRA court denied Martz’s Petition on 

April 10, 2014. Thereafter, Martz filed a timely Notice of Appeal and a courtordered Pa.R.A.P. 1925(b) Concise Statement of Matters Complained of on 

Appeal. 

On appeal, Martz raises the following issues for our review:

1. Did the [PCRA] court commit an error of law in not finding 

trial counsel ineffective for failing to request a Kloiber[2]

cautionary instruction before the jury[,] in violation of 

[Martz’s] Sixth Amendment and Fourteenth Amendment 

rights?

 

2 Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).
J-S73044-14

- 4 -

2. Did the [PCRA] court commit an error of law in failing to find 

trial counsel ineffective for failing to notify the court about 

prosecutorial misconduct of the Montour County District 

Attorney, Robert Buehner?

3. Did the [PCRA] court commit an error of law in failing to find 

trial counsel ineffective for stipulating to the results of the 

Sexual Offender’s Assessment [Board (“SOAB”)] Report[,] 

and allowing the facts into evidence[,] which were used as 

factors by the sentencing judge when imposing his sentence 

upon [Martz]?

4. Did the [PCRA] court commit an error of law in failing to find 

appellate counsel ineffective when [counsel] failed to address 

the lack of a certified record on appeal of the trial transcript, 

which resulted in the dismissal of [Martz’s] direct appeal?

Brief for Appellant at 4 (capitalization omitted, footnote added).

In reviewing the denial of a PCRA Petition, we examine whether the 

PCRA court’s determination “is supported by the record and free of legal 

error.” Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)

(citations omitted).

Here, Martz has not divided his brief into parts or provided, “at the 

head of each part--in distinctive type or in type distinctively displayed--the 

particular point treated therein.” Pa.R.A.P. 2119(a). Martz has not provided 

sufficient “discussion” relating to any of his issues, nor any “citation of 

authorities” to support them. See id.; see also Pa.R.A.P. 2119(b). 

Although Martz raises claims which pertain to events that occurred during 

trial, he has failed to make any “reference to the place[s] in the record 

where the matter[s] referred to appear[].” Pa.R.A.P. 2119(c). Finally, Martz 

makes vague, conclusory statements regarding his claims, without providing 
J-S73044-14

- 5 -

sufficient detail to permit meaningful appellate review. Pa.R.A.P. 2119(d) 

(stating that “the argument must contain a synopsis of all the evidence on 

the point, with a reference to the place in the record where the evidence 

may be found.”).

This Court will not make Martz’s arguments for him. See 

Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (stating that 

“where an appellate brief fails to provide any discussion of a claim with 

citation to relevant authority or fails to develop the issue in any other 

meaningful fashion capable of review, that claim is waived. It is not the 

obligation of [an appellate court] to formulate [a]ppellant’s arguments for 

him.”) (internal citations omitted). Because our review of Martz’s brief on 

appeal reveals that he has provided insufficient explanation, authority, or 

analysis for his claims, they are waived on appeal for lack of development. 

See Commonwealth v. Rahman, 75 A.3d 497, 504 (Pa. Super. 2013). 

Nevertheless, had we not found waiver, we would have determined 

that Martz’s claims lack merit. To succeed on an ineffectiveness claim, Martz

must demonstrate by the preponderance of the evidence that 

(1) [the] underlying claim is of arguable merit; (2) the particular 

course of conduct pursued by counsel did not have some 

reasonable basis designed to effectuate his interests; and (3) but 

for counsel’s ineffectiveness, there is a reasonable probability 

that the outcome of the proceedings would have been different.

Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010). A failure to satisfy 

any prong of the test for ineffectiveness will require rejection of the claim. 
J-S73044-14

- 6 -

Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010). Counsel is 

presumed to be effective and the burden is on the appellant to prove 

otherwise. Commonwealth v. Hanible, 30 A.3d 426, 439 (Pa. 2011).

As to Martz’s first issue, he has failed to establish that counsel was 

ineffective for failing to request a Kloiber instruction, as the evidence of 

record reveals that the child victim positively identified Martz as being in her 

bedroom before she fell asleep, and Martz did not contest that he had been 

in the victim’s bedroom on several occasions and had slept there at night. 

See N.T., 4/3/14, at 35-37, 43-44; see also Kloiber, 106 A.2d 826-27 

(stating that the court should warn the jury that the testimony as to identity 

must be received with caution where the witness “is not positive as to 

identity” or has failed “to identify defendant on one or more prior 

occasions.”). Thus, no Kloiber instruction was warranted. 

With respect to Martz’s second claim, he has failed to establish that 

trial counsel was ineffective for failing to report alleged prosecutorial 

misconduct, as the evidence of record reveals that counsel testified that, “no 

matter what[,]” he was not going to call Julie Hidlay to testify at trial. See

N.T., 4/3/14, at 37-38. Thus, even if the prosecutor had instructed Ms. 

Hidlay not to respond to a subpoena, no prejudice resulted to Martz. 

As to Martz’s third claim, he has failed to establish that there was no 

reasonable basis for trial counsel’s stipulation to the admission of the SOAB 

report, as the evidence of record reveals that the author of the report was 
J-S73044-14

- 7 -

present at trial to authenticate the report, trial counsel objected to the 

factual inaccuracies in the report, and trial counsel feared that raising an 

objection to the admissibility of the report might have had a negative impact 

on the additional child rape charges that Martz was facing at the time of 

trial. See N.T., 4/3/14, at 44-46. 

As to Martz’s final claim, Martz has failed to provide any explanation as 

to how the outcome of his direct appeal would have been different if 

appellate counsel had ordered a copy of the trial transcript. Thus, had we 

not found waiver, we would have concluded that Martz has failed to establish 

the ineffectiveness of appellate counsel.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/31/2015