J-S83018-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ROBERT LEROY MASON,

Appellant No. 235 WDA 2016

Appeal from the PCRA Order February 1, 2016

In the Court of Common Pleas of Potter County

Criminal Division at No(s): CP-53-CR-0000268-2012

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STRASSBURGER,*JJ.

MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 06, 2016

Appellant, Robert Leroy Mason, appeals from the February 1, 2016 

order denying his first petition filed pursuant to the Post Conviction Relief 

Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546. We affirm.

At the guilty plea colloquy, the Commonwealth summarized the facts 

of the crimes as follows:

[B]eginning in June of 1998 and then thereafter on dates not 

specifically known to the Commonwealth [Appellant] had sexual 

intercourse with his step daughter at a family camp . . . Sylvania 

Township and in Avis, which is in Clinton County, Pennsylvania. 

On those occasions he drugged her and had sex by forcible 

compulsion, the sex acts included oral sex on her and forced her 

to perform oral sex on him. The victim at the time was 16 years 

or younger and [Appellant] was 21 years older than she was.

____________________________________________

*

 Retired Senior Judge assigned to the Superior Court.
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N.T., 4/3/13, at 2.

The PCRA court summarized the procedural history as follows:

[Appellant], Robert Mason was charged with several 

sexually related crimes perpetrated upon his step daughter who 

was between the ages of thirteen and nineteen at the time the 

crimes were committed.[1] [Appellant] pled guilty on April 3, 

2013 to the charges of Rape, 18 Pa.C.S.A. § 3121 (A) (1) and 

IDSI Person Less than 16 Years of Age, 18 Pa.C.S.A. § 3123(A) 

(7). [Appellant] was the subject of an evaluation by the Sexual 

Offenders Assessment Board which indicated that [Appellant] 

was a Sexually Violent Predator (SVP). After a contested 

hearing on SVP status on October 25, 2013 the Court did find 

that [Appellant] was a[n] SVP. On the same date the [c]ourt 

sentenced [Appellant] within the standard range of the 

Sentencing Guidelines to a cumulative sentence of 110 to 220 

months. [Appellant] filed a Motion for Reconsideration on 

November 4, 2013 which the [c]ourt denied on April 15, 2014.[2]

PCRA Court Opinion, 2/1/16, at 1.

Appellant did not file a direct appeal. On April 21, 2015, Appellant 

filed a pro se PCRA petition. The PCRA court appointed counsel by order 

filed May 5, 2015.3 The court held a hearing on the pro se petition on 

January 12, 2016; Appellant participated by telephone conference. The 

____________________________________________

1

 Appellant, born in August of 1965, was between the ages of thirty-three 

and forty years old at the time of the assaults. N.T. (SVP Hearing), 

10/25/13, at 8.

2

 The trial court continued the hearing on the motion in November of 2013 

and January of 2014.

3

 In the appointment order, the PCRA court gave counsel thirty days to file 

an “Amended PCRA Petition if such a filing is necessary.” Order, 5/5/15. By 

order filed July 6, 2015, “having received no such Amended PCRA Petition,” 

the court scheduled a hearing on the pro se petition. Order, 7/6/15.
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PCRA court denied the petition on February 1, 2016. Appellant filed a timely 

notice of appeal to this Court. Both Appellant and the PCRA court complied 

with Pa.R.A.P. 1925.

Appellant raises the following issues on appeal:

Should the Superior Court reverse and remand the denial 

of Appellants PCRA where ineffective assistance of counsel so 

interfered with the Appellants right to receive a fair tribunal and 

sentence where:

a. The Appellant was denied the right of allocation at 

sentencing?

b. The attorney client relationship and 

communication had so deteriorated the Appellant did 

not understand the difference between concurrent 

and consecutive sentences, the Appellant thought his 

plea agreement was for a maximum of two to four 

(2-4) years of incarceration, trial counsel failed to 

advise the Appellant of the October 25, 2013 

sexually violent predator hearing, and failed to 

advise him of his reconsideration of sentence hearing 

and its results until well after the date of denial?

Appellant’s Brief at 17 (verbatim).

When reviewing the propriety of an order denying PCRA relief, this 

Court is limited to determining whether the evidence of record supports the 

conclusions of the PCRA court and whether the ruling is free of legal error. 

Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016). The PCRA 

court’s findings will not be disturbed unless there is no support for them in 

the certified record. Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa. 

Super. 2014).
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On appeal, Appellant is alleging trial counsel’s ineffective assistance in 

two respects. To plead and prove ineffective assistance of counsel a 

petitioner must establish: (1) that the underlying issue has arguable merit; 

(2) counsel’s actions lacked an objective reasonable basis; and (3) actual 

prejudice resulted from counsel’s act or failure to act. Commonwealth v. 

Stewart, 84 A.3d 701, 706 (Pa. Super. 2013) (en banc). A claim of 

ineffectiveness will be denied if the petitioner’s evidence fails to meet any 

one of these prongs. Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 

2010). Counsel is presumed to have rendered effective assistance of 

counsel. Commonwealth v. Montalvo, 114 A.3d 401, 410 (Pa. 2015). We 

have explained that trial counsel cannot be deemed ineffective for failing to 

pursue a meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132 

(Pa. Super. 2003) (en banc). “We need not analyze the prongs of an 

ineffectiveness claim in any particular order. Rather, we may discuss first 

any prong that an appellant cannot satisfy under the prevailing law and the 

applicable facts and circumstances of the case.” Commonwealth v.

Johnson, 139 A.3d 1257, 1272 (Pa. 2016) (citing Commonwealth v. 

Albrecht, 720 A.2d 693, 701 (Pa. 1998)).

We first note that Appellant has failed to comply with Pa.R.A.P. 

2119(a), which states:

The argument shall be divided into as many parts as there are

questions to be argued; and shall have at the head of each 

part—in distinctive type or in type distinctively displayed—the 
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particular point treated therein, followed by such discussion 

and citation of authorities as are deemed pertinent.

Pa.R.A.P. 2119(a) (emphasis added). Instead, Appellant labels each 

argument in bold type, but fails to confine his argument to the issue labeled. 

For example, following his heading regarding the alleged denial of allocution4

at sentencing, Appellant references case law relating to ineffectiveness for 

failure to explain the consequences of pleading guilty, an issue he does not 

raise. Appellant’s Brief at 22–24. He includes one conclusory sentence 

relating to allocution. Id. at 22.

Appellant also fails to develop this issue in any meaningful way and 

does not refer to anything in the record to support his claim. “It is not this 

Court’s responsibility to comb through the record seeking the factual 

underpinnings of [the appellant’s] claim.” Irwin Union Nat. Bank & Trust 

Co. v. Famous, 4 A.3d 1099, 1103 (Pa. Super. 2010) (citing 

Commonwealth v. Mulholland, 702 A.2d 1027, 1034 n.5 (Pa. 1997)). 

Moreover, Appellant’s argument does not correspond with the issues 

presented and does not facilitate our review. Therefore, we find the issue 

waived. See Commonwealth v. Woodard, 129 A.3d 480, 509 (Pa. 2015) 

(quoting Wirth v. Commonwealth, 95 A.3d 822, 837 (Pa. 2013), which 

stated that “where an appellate brief fails to . . . develop an issue in any 

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

____________________________________________

4

 Appellant labels such right as “allocation.” Appellant’s Brief at 22.
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the obligation of an appellate court to formulate [the] appellant’s arguments 

for him.”) (internal quotations omitted)).5

Appellant’s second issue asserts that he was provided ineffective 

assistance of counsel when his attorney failed to clarify the difference 

between concurrent and consecutive sentences and misled him into believing 

that he would receive a two-to-four-year sentence. In rejecting this 

allegation as lacking arguable merit, we rely on the following explanation by 

the PCRA court:

[Trial counsel] testified that District Attorney Watson would 

not offer a binding plea of any duration to [Appellant] and that 

she never told [Appellant] that he would receive a 2 to 4 year 

sentence. Additionally, [trial counsel] averred that she read and 

completed a Guilty Plea Statement with [Appellant] which 

[Appellant] then signed. At his April 3, 2013 plea hearing 

[Appellant] indicated he had read and signed the Guilty Plea 

Statement. That Guilty Plea Statement indicated at question 

number 19 that the maximum sentence was 10 years, $25,000 

fine. As indicated by the record, the [c]ourt further advised 

[Appellant] of the maximum possible sentence and [Appellant] 

indicated he did not have any questions about the same at his 

April 3, 2013 plea hearing. Finally, [Appellant] indicated at his 

plea hearing that he had not been promised anything in 

exchange for his plea. As there is no credible evidence that 

[Appellant] was ever promised a 2 to 4 year sentence and [trial 

counsel] testified that he was never promised the same, the 

____________________________________________

5

 Contrary to Appellant’s testimony at the PCRA hearing that he was not 

offered the right of allocution, and his family was denied the right to speak, 

the record reveals that the trial court offered Appellant the right of 

allocution, trial counsel testified Appellant was given the option to address 

the court, and the court indicated that it received and considered Appellant’s 

family members’ statements. N.T. (PCRA), 1/12/16, at 20–21; N.T. 

(Sentencing), 10/25/13, at 37, 67; PCRA Court Opinion, 2/1/16, at 

unnumbered 5.
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[c]ourt finds this claim is without arguable merit and counsel 

was not ineffective with regard to this issue. See 

[Commonwealth v.] Milligan, [693 A.2d 1313, 1319 (Pa. Super 

1997)].

* * *

[Trial counsel] testified that she discussed consecutive and 

concurrent sentence[s] with [Appellant]. [Trial counsel] also 

testified that [Appellant] fully understood the plea and the 

potential sentence he was facing. The [c]ourt finds that 

testimony to be credible and [Appellant’s] testimony to the 

contrary to not be credible. [Appellant]’s Guilty Plea Statement 

indicated at question number 19 that the maximum sentence 

was 10 years, $25,000 fine. As indicated by the record, the 

[c]ourt further advised [Appellant] of the maximum possible 

sentence and [Appellant] indicated he did not have any 

questions about the same at his April 3, 2013 plea hearing. 

[Appellant’s] Plea Agreement, which he signed, indicates that 

District Attorney Watson made no recommendations as to 

sentencing. [Appellant] indicated at his plea hearing that he had 

not been promised anything in exchange for his plea. As 

[Appellant] was informed of the maximum possible sentence and 

knew he had not been promised a certain sentence in exchange 

for his plea, it is clear that he understood the concept of an open 

plea and had agreed to enter an open plea. Even if [Appellant] 

did not understand the difference between consecutive and 

concurrent sentences; it is irrelevant since this was an open plea 

and no agreement as to whether the sentences would run 

together or consecutively. Accordingly, the [c]ourt finds this 

claim is without arguable merit and counsel was not ineffective 

with regard to this issue. See Milligan, Supra.

PCRA Court Opinion, 2/1/16, at unnumbered 6, 7.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/6/2016