J-S34043-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

GEORGE WILLIAMS,

Appellant No. 1417 EDA 2016

Appeal from the PCRA Order April 22, 2016

in the Court of Common Pleas of Philadelphia County

Criminal Division at No.: CP-51-CR-0006521-2008

BEFORE: BOWES, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED JULY 24, 2017

Appellant, George Williams, appeals from the order of April 22, 2016, 

which dismissed, without a hearing, his first counseled petition brought 

under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. 

We affirm.

We take the underlying facts and procedural history in this matter 

from this Court’s December 3, 2012 opinion on direct appeal, the PCRA 

court’s June 27, 2016 opinion, and our independent review of the certified 

record.

Appellant was charged in connection with the shooting

death of Derrick Ralston (hereinafter “the victim”). The victim’s 

body was discovered in an alley in the vicinity of Bridge and 

Granite Streets in Philadelphia, near Cappy’s Bar. At Appellant’s 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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trial, two witnesses, Marcos Vinzenni and John Joseph Miller, 

testified to the events that occurred immediately prior to the 

victim’s murder. Both Vinzenni and Miller were standing on the 

porch of Cappy’s Bar in the early morning hours of October 19, 

2007, when they saw three black males shouting at one white 

male in the middle of the street. The black males ordered the 

white male to strip off his clothes and two of the black males 

were pointing guns at the white male. Both Vinzenni and Miller 

recognized two of the black males, who they only knew by their 

nicknames “Killa” and “Stacks.” Vinzenni and Miller testified that 

Killa and Stacks were the two men pointing guns at the victim. 

Miller testified that he heard the white male say “[w]e can work 

this out. I can take care of this. You don’t have to do this.” 

Despite the white male’s pleading, Killa, Stacks, and the 

other black male chased the naked white male down the street. 

Miller testified that approximately seven seconds later, he saw 

gun flashes and heard eight to nine gunshots. Miller reported 

that he saw the black males run back in front [of] the bar, where 

he witnessed Killa pick up the white male’s clothes from the 

street and saw both Killa and Stacks holding guns. The three 

black men left the area. When Miller gave his statement to 

police, he identified Appellant as the man he knew as “Killa” 

from a photo array.

In another account, prosecution witness Vinzenni testified 

that he went back inside the bar after the black men chased the 

white male down the street. Vinzenni’s friends followed him into

the bar shortly thereafter and reported they heard gunshots. 

After making his statement to police, Vinzenni was shown photo 

arrays and also identified Appellant as the man he knew as 

“Killa.” As noted above, police discovered the naked body of a 

white male in an alley between Bridge and Granite Streets. The 

white male, who was identified as the victim, was lying on his 

side and had suffered multiple gunshot wounds to the head and 

chest.

The victim’s wife, Lauren Ralston, testified that a friend 

had introduced her and the victim to “Killa” in 2005 or 2006. 

She did not know Appellant by any other name than Killa until 

after the death of her husband. The day before the victim was 

murdered, Lauren discovered that the victim owed Appellant 

money after listening to four or five messages that Appellant left 

on the victim’s voicemail. In this last message, Appellant told 
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the victim “don’t worry about calling back because it’s too late.” 

When Lauren questioned the victim about the messages, the 

victim admitted that he owed Killa money, but promised he 

would pay him back. The victim’s cell phone records showed 

that Appellant had called him over [forty] times that evening. 

Appearing nervous, the victim told Lauren that he was going out 

to get Killa some “weed,” left the couple’s home in Pottstown, 

and took Lauren’s SUV to meet Appellant. The victim never 

came home that evening.

After awaking in the early morning hours of October 19, 

2007 and discovering the victim was not home, Lauren 

attempted to call Appellant to find out where the victim had 

gone. Appellant denied ever meeting the victim in Pottstown 

and denied knowing the victim’s whereabouts. After the victim 

was gone for several hours, Lauren began desperately searching 

for him, driving around her hometown and calling local hospitals 

and the police to report his disappearance. Lauren called 

Appellant again to ask him to help her look for the victim and 

talk to the local police. Appellant again denied knowing the 

victim’s whereabouts.

After Lauren told Pottstown detectives about “Killa,” the 

Pottstown detectives contacted Appellant in order to speak with 

him about the victim’s disappearance. Appellant arranged to 

meet Pottstown detectives near his home in Philadelphia. Before 

Pottstown detectives met with Appellant, they were notified that 

the victim’s body had been found near Appellant’s home. 

Appellant told Pottstown detectives that he had last seen the 

victim two or three days earlier. Shortly thereafter, Philadelphia 

detectives arrived to speak with Appellant and transported him 

to their headquarters.

Appellant gave the Philadelphia homicide detectives a 

different account, admitting that he was present when the victim 

was killed, but claimed to have no part in his murder. After 

learning the victim was struggling financially, Appellant set up a 

meeting so that the victim could sell drugs for “Raheem.” When 

the victim did not pay Raheem for the drugs he sold, Appellant 

claimed that Raheem and Stacks threatened him at gunpoint and 

made him call the victim repeatedly to meet up with them in 

Pottstown. When they picked the victim up, Raheem and Stacks 

forced Appellant and the victim to go with them to Philadelphia, 

where they ordered both Appellant and the victim out of the car, 
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ordered the victim to strip his clothes and shot the victim in a 

nearby alley. Appellant claims Raheem and Stacks forced him to 

go along with the abduction and warned him if he would “run his 

mouth” about the shooting, the same thing would happen to 

him. 

When the Philadelphia police told Appellant that his version 

of the shooting was not true, Appellant again changed his story. 

Appellant claimed the victim had told Raheem that he would “set 

up” three people who owed him money for drugs to repay the 

victim’s debt to Raheem. On the evening of October 18, 2007, 

Raheem, Stacks, and Appellant went to the victim’s home to 

execute this plan. The victim began to make excuses and 

claimed he wanted to be home with his wife as they were having 

problems. However, the victim reluctantly agreed to drive his 

vehicle to show Raheem where the alleged targets of their plan 

lived, but his vehicle ran out of gas.

Subsequently, Raheem and Stacks forced the victim to ride 

with them and drove him to Philadelphia. Appellant claimed he 

had nothing to do with their forced abduction of the victim. 

Appellant alleged that Raheem gave him a P–38 9–mm weapon 

before ordering the victim out of the car onto the Philadelphia 

Street and then shooting him moments later. When driving 

Raheem home, Appellant claims that he tried to return the gun 

to Raheem, but Raheem told him to hold it. Once Raheem 

discovered that the victim’s wife was calling Appellant to find out 

where the victim had gone, Appellant contends that Raheem 

took the firearm from Appellant and told him not to tell the 

police what happened.

After the victim’s body was discovered and the police 

executed a search warrant for Appellant’s home, they did not 

find any firearms, but did find Appellant’s cell phone, from which 

police recovered a photograph of Appellant holding a Walther P–

38 pistol. At trial, the Commonwealth presented Police Officer 

Louis Grandizio as a ballistics expert. Officer Grandizio testified 

that all the casings recovered from the murder scene came from 

one single .380 automatic weapon. After observing the bullets 

themselves, Officer Grandizio opined that the bullets used to kill 

the victim were not fired from a Walther P–38, which is a .9 mm 

pistol.
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Prior to trial, Appellant filed a motion in limine seeking 

inter alia to preclude the Commonwealth from referring to him 

by his nickname “Killa” and to prevent the admission of the 

photograph of Appellant holding a firearm. The trial court denied 

Appellant’s motion in limine. Appellant proceeded to trial for the 

murder of victim Derrick Ralston, after which the jury found 

Appellant guilty of second-degree murder, conspiracy, and 

carrying a firearm without a license. The trial court sentenced 

Appellant to an aggregate sentence of life imprisonment without 

the possibility of parole. . . . 

(Commonwealth v. Williams, 58 A.3d 796, 797-99 (Pa. Super. 2012), 

(footnote and record citations omitted)).

On December 3, 2012, this Court affirmed Appellant’s judgment of 

sentence. (See id. at 802). On June 7, 2013, the Pennsylvania Supreme 

Court denied leave to appeal. (See Commonwealth v. Williams, 68 A.3d 

908 (Pa. 2013)).

On May 28, 2014, Appellant, through retained counsel, filed a timely 

PCRA petition. On November 25, 2014, Appellant, despite being represented 

by counsel, filed an amended pro se PCRA petition. On October 15, 2015, 

the Commonwealth filed a motion to dismiss the PCRA petition. Appellant 

filed a response on March 8, 2016. On March 23, 2016, the PCRA court 

issued notice of its intent to dismiss the petition pursuant to Pennsylvania 

Rule of Criminal Procedure 907(1). Appellant filed a response on April 12, 

2016. On April 22, 2016, the court dismissed Appellant’s PCRA petition.

On April 25, 2016, Appellant filed a timely notice of appeal. On April 

29, 2016, the PCRA court directed Appellant to file a concise statement of 

errors complained of on appeal. See Pa.R.A.P. 1925(b). Appellant filed a 
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timely Rule 1925(b) statement on May 27, 2016. See id. On June 27, 

2016, the PCRA court issued an opinion. See Pa.R.A.P. 1925(a).

On appeal, Appellant raises the following questions for our review.1

A. Did Appellant present meritorious issues warranting relief to the 

PCRA court in his [PCRA] petition for relief?

B. Did the PCRA court below err in [dismissing] Appellant’s PCRA 

petition without an evidentiary hearing and in denying him PCRA 

relief?

(Appellant’s Brief, at 7) (unnecessary capitalization omitted).2

____________________________________________

1 We have reordered the issues in Appellant’s brief.

2 We direct Appellant’s attention to Pa.R.A.P. 2119, which addresses the 

requirements for the argument section of appellate briefs and provides, in 

relevant part as follows:

Rule 2119. Argument

(a) General Rule. The argument shall be divided into 

as many parts as there are questions to be argued[.]

Pa.R.A.P. 2119(a). “The Rules of Appellate Procedure state unequivocally 

that each question an appellant raises is to be supported by discussion and 

analysis of pertinent authority.” Estate of Haiko v. McGinley, 799 A.2d 

155, 161 (Pa. Super. 2002) (citations omitted). Here, Appellant’s 

“Questions Presented” lists two questions. (Appellant’s Brief, at 7). 

However, the argument portion of his brief regarding his first claim includes 

eleven separate topics not mentioned in his statement of the questions 

involved. (See id. at 29-53). We remind Appellant that the Rules of 

Appellate Procedure provide that issues to be resolved must be included in 

the statement of questions involved or “fairly suggested” by it. Pa.R.A.P. 

2116(a). While it is somewhat questionable that the eleven sub-issues were 

“fairly suggested” by Appellant’s statement of the questions involved, and 

his combination of claims presents a confusing format, it does not hamper 

appellate review, and we shall proceed with our analysis. 
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Appellant appeals from the denial of his PCRA petition. Our standard 

of review is settled. We review the denial of a post-conviction petition to 

determine whether the record supports the PCRA court’s findings and 

whether its order is otherwise free of legal error. See Commonwealth v. 

Faulk, 21 A.3d 1196, 1199 (Pa. Super. 2011). To be eligible for relief 

pursuant to the PCRA, Appellant must establish, inter alia, that his conviction 

or sentence resulted from one or more of the enumerated errors or defects 

found in 42 Pa.C.S.A. § 9543(a)(2). See 42 Pa.C.S.A. § 9543(a)(2). He 

must also establish that the issues raised in the PCRA petition have not been 

previously litigated or waived. See 42 Pa.C.S.A. § 9543(a)(3). An 

allegation of error “is waived if the petitioner could have raised it but failed 

to do so before trial, at trial, during unitary review, on appeal or in a prior 

state postconviction proceeding.” 42 Pa.C.S.A. § 9544(b). Further, 

. . . a PCRA petitioner is not automatically entitled to an 

evidentiary hearing. We review the PCRA court’s decision 

dismissing a petition without a hearing for an abuse of 

discretion. 

[T]he right to an evidentiary hearing on a postconviction petition is not absolute. It is within the 

PCRA court’s discretion to decline to hold a hearing if 

the petitioner’s claim is patently frivolous and has no 

support either in the record or other evidence. It is 

the responsibility of the reviewing court on appeal to 

examine each issue raised in the PCRA petition in 

light of the record certified before it in order to 

determine if the PCRA court erred in its 

determination that there were no genuine issues of 

material fact in controversy and in denying relief 

without conducting an evidentiary hearing.
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Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citations 

omitted).

As discussed above, Appellant asserts that he raised eleven issues 

meriting an evidentiary hearing. (See Appellant’s brief, at 29-53). Our 

review of the brief demonstrates that, in actuality, Appellant’s eleven claims 

are six layered claims of ineffective assistance of counsel and one purported 

challenge to the legality of Appellant’s sentence. (See id.). 

Appellant asserts that he received ineffective assistance of trial, posttrial, and appellate counsel. Counsel is presumed effective, and an appellant 

bears the burden to prove otherwise. See Commonwealth v. McDermitt, 

66 A.3d 810, 813 (Pa. Super. 2013). The test for ineffective assistance of 

counsel is the same under both the United States and Pennsylvania 

Constitutions. See Strickland v. Washington, 466 U.S. 668, 687 (1984); 

Commonwealth v. Jones, 815 A.2d 598, 611 (Pa. 2002). An appellant 

must demonstrate that: (1) his 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. See Commonwealth v. 

Pierce, 786 A.2d 203, 213 (Pa. 2001), abrogated on other grounds by 

Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002). “A failure to satisfy 
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any prong of the test for ineffectiveness will require rejection of the claim.” 

Jones, supra at 611 (citation omitted).

Further,

[w]here the defendant asserts a layered ineffectiveness claim he 

must properly argue each prong of the three-prong 

ineffectiveness test for each separate attorney.

Layered claims of ineffectiveness are not wholly distinct 

from the underlying claims[,] because proof of the underlying 

claim is an essential element of the derivative ineffectiveness 

claim[.] In determining a layered claim of ineffectiveness, the 

critical inquiry is whether the first attorney that the defendant 

asserts was ineffective did, in fact, render ineffective assistance 

of counsel. If that attorney was effective, then subsequent 

counsel cannot be deemed ineffective for failing to raise the 

underlying issue.

Commonwealth v. Rykard, 55 A.3d 1177, 1190 (Pa. Super. 2012), appeal 

denied, 64 A.3d 631 (Pa. 2013) (citations and quotation marks omitted).

In his first layered claim of ineffective assistance of counsel, Appellant 

argues that trial counsel was ineffective for failing to preserve an objection 

to the trial court’s jury charge on felony murder, specifically on the 

requirement for a predicate offense. (See Appellant’s Brief, at 29-37). We 

disagree.

Initially, we note that the majority of Appellant’s argument on this 

issue consists of complaints regarding the manner in which our courts 

require trial counsel to preserve challenges to a jury charge. (See id. at 29-

33). Appellant devotes approximately two pages to the actual issue and his 

argument is undeveloped. 
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After quoting both the trial court’s initial charge on felony murder and 

a clarification issued by the trial court at defense counsel’s request, (see id.

at 33-34; N.T. Trial, 10/12/10, at 197-200), Appellant baldly states that the 

charge was in error and counsel was ineffective for failing to renew his 

objection to the charge. (See Appellant’s Brief, at 34-35). At no point does 

Appellant specify what portion of the charges was erroneous, give an 

example of a correct charge on felony murder, or explain how preserving 

this issue for appeal would have changed the result. Thus, Appellant has 

failed to set forth the ineffectiveness analysis required by Strickland. See 

Strickland, supra at 687. Because Appellant has not established any of the 

three prongs, we must deem counsel’s assistance constitutionally effective. 

See Commonwealth v. Rolan, 964 A.2d 398, 406 (Pa. Super. 2008) 

(holding that where appellant fails to address three prongs of ineffectiveness 

test, he does not meet his burden of proving ineffective assistance of 

counsel, and counsel is deemed constitutionally effective). Thus, there is no 

basis to upset the PCRA court’s finding that Appellant was not entitled to

PCRA relief on this basis.3

____________________________________________

3 Moreover, Appellant’s claim is without merit. As the Commonwealth 

correctly states, the trial court’s charge on felony murder is nearly identical 

to the Pennsylvania Suggested Standard Jury Instruction on felony murder. 

(See Commonwealth’s Brief, at 12; N.T. Trial, 10/12/10, at 185-86); 

Pa.S.S.J.I. (Criminal) § 15.2502B. Our Supreme Court has held that a jury 

charge that closely tracks the language of the suggested standard jury 

charge is accurate, adequate, and sufficiently clear. See Commonwealth 

(Footnote Continued Next Page)
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Appellant’s next claim of layered ineffective assistance of counsel is 

that trial counsel was ineffective for not renewing at trial his motion in limine 

to exclude the use of Appellant’s nickname and a photograph of him holding

a gun, thus waiving the claim on appeal. (See Appellant’s Brief, at 38-43). 

Appellant’s claim is without merit.

Initially, we note that Appellant litigated his motion prior to the start of 

trial and the trial court denied it. (See N.T. Motion Hearing, 10/04/10, at 4-

9; 30-35). Appellant does not explain why he believes counsel had any 

basis for renewing this motion at trial. (See Appellant’s Brief, at 38-43). 

Moreover, the gravamen of Appellant’s contention is that trial counsel’s 

failure to renew the motion at trial or litigate the issue in his post-sentence 

motion resulted in a waiver on appeal. (See id.). However, this is 

incorrect; in the published opinion on direct appeal, this Court reviewed the 

issue of the denial of Appellant’s motion in limine on the merits, and 

concluded that the trial court’s decision regarding the nickname and the 

photograph of Appellant holding a gun was correct. (See Williams, 58 A.3d 

at 800-01.). Thus, there is simply no factual basis to support Appellant’s 

contention that trial counsel was ineffective for failing to renew the motion in 

limine, thus resulting in a waiver of the issue on appeal. Therefore, there is 

(Footnote Continued) _______________________

v. Prosdocimo, 578 A.2d 1273, 1276-77 (Pa. 1990). Thus, there was no 

basis for counsel to object to the trial court’s instruction on felony murder.
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no basis to upset the PCRA court’s finding that Appellant was not entitled to 

PCRA relief on this basis.

Appellant’s third layered claim of ineffective assistance of counsel is 

that trial counsel erred in not moving for a mistrial based on prosecutorial 

misconduct because of the Commonwealth’s continued use of his nickname, 

“Killa,” throughout the trial. (Appellant’s Brief at 43; see id. at 43-47). We 

disagree.

In determining whether a prosecutor committed misconduct during 

opening and closing statements such as to justify the grant of a mistrial, our 

Supreme Court has stated:

It is within the discretion of the trial court to determine whether 

a defendant has been prejudiced by misconduct or impropriety 

to the extent that a mistrial is warranted. Comments by a 

prosecutor do not constitute reversible error unless the 

unavoidable effect of such comments would be to prejudice the 

jury, forming in their minds a fixed bias and hostility toward the 

defendant such that they could not weigh the evidence 

objectively and render a true verdict. 

In considering appellant’s claims of prosecutorial 

misconduct, we note that a prosecutor’s comments are not 

evidence. . . . 

* * *

Opening statements must be fair deductions from the 

evidence which the prosecutor expects will be presented at trial. 

. . . 

* * *

. . . The complained-of comments must be considered in the 

context of the entire [closing argument] and allegations of 

prosecutorial misconduct will not warrant the grant of a new trial 
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unless they are such as to arouse the jury’s emotions to such an 

extent that it is impossible for the jury to reach a verdict based 

on relevant evidence.

Commonwealth v. Bronshtein, 691 A.2d 907, 917-18 (Pa. 1997), cert. 

denied, 522 U.S. 936 (1997).

Appellant alleges that the Commonwealth used his nickname to 

suggest he was a person of bad character or prone to criminal behavior. 

(See Appellant’s Brief, at 43-44). Initially, we note, as discussed above, 

that the trial court permitted the use of the nickname during trial and this 

Court affirmed this decision on appeal. Moreover, we specifically stated:

Our review of the record shows that the Commonwealth did not 

use Appellant’s nickname to suggest Appellant had a violent 

character, but used it to show that the witnesses recognized 

Appellant and could identify him as one of the perpetrators even 

though the witness did not know Appellant’s real name.

(Williams, 58 A.3d at 800.). 

Moreover, at no point in his argument on this issue does Appellant cite 

to the record to support his contention that the use of his nickname 

pervaded the testimony of the Commonwealth witnesses and infected the 

arguments of the prosecutor. (See Appellant’s Brief, at 43-44).

In his previous argument regarding counsel’s ineffectiveness for failing 

to renew the motion in limine, Appellant provides a single citation to the 

Commonwealth’s opening statement. However, nothing in the opening 

statement demonstrates that the Commonwealth was using the nickname to 

inflame the jury or demonstrate that Appellant had a propensity for violence; 
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rather, in each instance, the Commonwealth was either explaining that the 

witness only knew Appellant by his nickname and/or was directly quoting 

statements made by the witness. (See N.T. Trial, 10/06/10, at 30-45). We 

remind counsel for Appellant that it is not this Court’s responsibility to comb 

through the record seeking the factual underpinnings of his claim. See 

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

1997) (“In a record containing thousands of pages, this [C]ourt will not 

search every page to substantiate a party’s incomplete argument”) (citation 

omitted). Given Appellant’s failure to cite to pertinent portions of the record 

in support of his contention that there was an arguable basis in law to move 

for a mistrial, and given that our review of the record fails to demonstrate 

any such basis, we will not fault trial counsel for failing to move for one. 

See Commonwealth v. Ogrod, 839 A.2d 294, 325 (Pa. 2003), cert. 

denied, 534 U.S. 1188 (2005) (declining to find counsel ineffective for failing 

to move for mistrial where claim lacked arguable merit). Therefore, there is 

no basis to upset the PCRA court’s finding that Appellant was not entitled to 

PCRA relief on this basis.

In his next layered claim of ineffective assistance of counsel, Appellant 

contends that trial counsel was ineffective for not having a coherent defense 

theory. (See Appellant’s Brief, at 47-48). However, Appellant waived this 

claim.
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Appellant’s argument is undeveloped. Appellant fails to cite to the 

record to support his claim that there was a valid defense of duress and/or 

that Appellant was only involved in an attempt to collect a debt rather than 

kidnapping, robbery, or murder. (See id. at 47). He further fails to cite to 

any pertinent case law, merely including a general cite to two cases with no 

explanation of their relevance. (See id.). He concludes with bald 

statements that trial counsel was ineffective. (See id. at 47-48). 

“Claims of ineffective assistance of counsel are not self-proving[.]” 

Commonwealth v. Spotz, 896 A.2d 1191, 1250 (Pa. 2006) (citation 

omitted). Our Supreme Court has repeatedly refused to consider bald 

allegations of ineffectiveness, such as this one. See Commonwealth v. 

Thomas, 744 A.2d 713, 716 (Pa. 2000) (declining to find counsel ineffective 

“where appellant fail[ed] to allege with specificity sufficient facts in support 

of his claim.”). Thus, because Appellant has failed to argue his claim with 

sufficient specificity, we find it waived. Therefore, there is no basis to upset 

the PCRA court’s finding that Appellant was not entitled to PCRA relief on this 

issue.

Appellant’s next layered claim of ineffective assistance of counsel is 

that trial counsel was ineffective for failing to object to his illegal sentence

for conspiracy. (See Appellant’s Brief, at 48-50). Again, Appellant has 

waived this claim.
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While Appellant states that his claim is a challenge to counsel’s 

ineffectiveness for not objecting to an illegal sentence, this is not an 

accurate characterization of his argument. (See id.). Appellant never 

discusses the sentence for conspiracy or attempts to explain why it is illegal. 

(See id.). Rather, in actuality, Appellant’s contention is that counsel was 

ineffective for not challenging the sufficiency of the evidence underlying his 

conspiracy conviction. (See id.).

However, it is long settled that issues not raised in a PCRA petition or 

amended PCRA petition are waived on appeal. See Commonwealth v. 

Lauro, 819 A.2d 100, 103-04 (Pa. Super. 2003), appeal denied, 830 A.2d 

975 (Pa. 2003) (waiving five issues not in original or amended PCRA 

petition). Also, as amended in 2007, Rule 1925 provides that issues that are 

not included in the Rule 1925(b) statement or raised in accordance with Rule 

1925(b)(4) are waived. See Pa.R.A.P. 1925(b)(4)(vii); see also 

Commonwealth v. Lord, 719 A.2d 306, 308 (Pa. 1998), superseded by 

rule on other grounds as stated in Commonwealth v. Burton, 973 A.2d 

428, 430 (Pa. Super. 2009). Further, an appellant cannot raise a subject for 

the first time on appeal. See Commonwealth v. Hanford, 937 A.2d 1094, 

1098 n.3 (Pa. Super. 2007), appeal denied, 956 A.2d 432 (Pa. 2008) (new 

legal theories cannot be raised for first time on appeal); Pa.R.A.P. 302(a). 

Here, Appellant did not claim that trial counsel was ineffective for falling to 

challenge the sufficiency of the evidence in his PCRA petition or his Rule 
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1925(b) statement, raising the issue for the first time in his brief on appeal. 

Thus, he waived his contention. See Lord, supra at 308; Hanford, supra 

at 1098 n.3; Lauro, supra at 103-04. 

In his last layered claim of ineffective assistance of counsel, Appellant 

claims that counsel was ineffective for not moving to vacate his conviction 

for murder of the second degree in the absence of a conviction for a 

predicate act. (See Appellant’s Brief, at 50-51). Appellant’s claim is waived 

because Appellant neither cites to any pertinent law in support of his 

contention nor attempts to apply the Strickland test. See Spotz, supra at 

1250; Thomas, supra at 716; Rolan, supra at 406. Therefore, there is no 

basis to upset the PCRA court’s finding that Appellant was not entitled to 

PCRA relief on this issue.4

Thus, for the reasons discussed above, we find that all of Appellant’s 

ineffective assistance of trial counsel claims are waived or meritless. 

Therefore, subsequent counsel cannot be deemed ineffective. See Rykard, 

supra at 1190. Thus, his layered claims must also fail. 

 Next, Appellant contends that his sentence of life without the possibility 

of parole imposed as a result of his conviction for murder of the second 

degree is violative of the Eighth and Fourteenth Amendments to the United 

____________________________________________

4

In any event, the claim is meritless because it is settled that a defendant 

need not be convicted of the predicate offense. See Commonwealth v. 

Miller, 35 A.3d 1206, 1212-13 (Pa. 2012). We will not fault trial counsel for 

failing to file a meritless motion to vacate.
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States Constitution because “he was not the shooter” and the sentence “is 

an arbitrary and capricious application of state power that deprives Appellant 

of his right to an individualized sentence.” (Appellant’s Brief, at 51). 

Appellant admits that he did not raise this issue below, but appears to 

maintain that challenges of a constitutional nature need not be preserved in 

the PCRA court. (See id. at 51). While this is not true in all cases of 

constitutional challenges, see Commonwealth v. Lawrence, 99 A.3d 116, 

122-23 (Pa. Super. 2014), appeal denied, 114 A.3d 416 (Pa. 2015)

(reaffirming that not all constitutional issues implicating sentencing are 

unwaivable challenges to legality of sentence), we have held that Eighth 

Amendment challenges need not be preserved below. See Commonwealth 

v. Brown, 71 A.3d 1009, 1015-16 (Pa. Super. 2013), appeal denied, 77 

A.3d 635 (Pa. 2013). Nonetheless, while Appellant did not need to raise this 

claim in the PCRA court, we find that it is waived because of Appellant’s utter 

failure to develop his argument.

Appellant’s argument on this issue is in contravention of Pennsylvania 

Rule of Appellate Procedure 2119. He fails to provide pertinent law or 

discussion of this issue, or any citation to the certified record. (See 

Appellant’s Brief, at 51-53); see also Pa.R.A.P. 2119(a)-(c), (e). Appellant 

provides no evidentiary support for his conclusory statement that he was not 

the shooter. (See Appellant’s Brief, at 51). Further the only legal support 

he provides for his claim that his sentence violates the Eighth Amendment is 
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a brief citation to the United States Supreme Court’s decision in Tilson v. 

Arizona, 481 U.S. 137 (1987). The issue in Tilson was whether the 

Arizona Supreme Court used the correct standard of review5in sentencing 

two defendants to death where they neither intended to kill the victim nor 

inflicted the fatal shot, but rather were convicted under the felony-murder 

law. See Tilson, supra at 138. Appellant does not attempt to explain how 

Tilson is in any way applicable to the instant matter. Thus, Appellant has 

not satisfied his burden, and hence we deem this issue waived. See 

Commonwealth v. Murchinson, 899 A.2d 1159, 1162 (Pa. Super. 2006) 

(finding claim waived where appellant provided only boilerplated law and 

conclusion); see also Pa.R.A.P. 2101, 2119(a)-(c), (e).

In his final claim, Appellant argues that the PCRA court erred in 

dismissing his petition without an evidentiary hearing. (See Appellant’s 

Brief, at 24-28). The Pennsylvania Rules of Criminal Procedure provide the 

PCRA court with the discretion to dismiss a PCRA petition without an 

evidentiary hearing if it is patently without merit. See Pa.R.Crim.P. 907. 

Because Appellant’s ineffective assistance of counsel and sentencing claims 

lack merit, he is not entitled to an evidentiary hearing. See Miller, supra 

at 992.

____________________________________________

5 While holding that the Arizona Supreme Court applied the wrong standard 

of review, the Tilson court did not foreclose the application of the death 

penalty to accomplices convicted under the felony-murder rule. See Tilson, 

supra at 158.
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Accordingly, for the reasons discussed above, we affirm the PCRA 

court’s dismissal of Appellant’s PCRA petition without a hearing. 

Order affirmed.

Judge Solano joins the Memorandum.

Judge Bowes concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/24/2017