J-A10014-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ISAAC CARMICHAEL 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1824 EDA 2021

Appeal from the PCRA Order Entered August 13, 2021

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0008846-2013

BEFORE: PANELLA, P.J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, P.J.: FILED JULY 18, 2023

Isaac Carmichael appeals from the order dismissing his first petition for 

relief filed pursuant to the Post Conviction Relief Act (“PCRA”). See 42 

Pa.C.S.A. §§ 9541-9546. Carmichael argues that his counsel was ineffective 

for failing to file a habeas corpus motion after the preliminary hearing, file a 

Pa.R.Crim.P. 600 motion, properly cross-examine the victim, and object to the 

introduction of a surveillance video; the evidence was insufficient to support 

his convictions; the verdict was against the weight of the evidence; and the

sentence was illegal and the trial court failed to consider various factors, 

including Carmichael’s rehabilitative needs, in imposing the sentence. We 

affirm.

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* Former Justice specially assigned to the Superior Court.
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On June 2, 2013, Carmichael shot a gun multiple times at people at the 

intersection of 6th and South Streets in Philadelphia. Sergeant Dominick Cole 

and Officer Matthew White responded to the scene. Thereafter, Carmichael 

fired a shot at the responding officers. The officers chased Carmichael down,

arrested him, and charged him with numerous crimes, including aggravated 

assault and assault of a law enforcement officer arising out the shot fired 

toward Sergeant Cole.1

The charges were held for court on July 10, 2013. Subsequently, on 

September 16, 2013, Carmichael filed a motion to continue based upon his 

counsel’s lack of availability. The matter was continued until September 23, 

2013, when a pre-trial conference was held. On October 10, 2013, Carmichael 

again sought a continuance for a possible “non-trial disposition.” The matter 

was continued until November 18, 2013. Carmichael then sought a 

continuance on November 19, 2013, to obtain a psychiatric evaluation to 

determine whether he was competent to testify. On June 9, 2014, at a status 

conference, Carmichael sought another continuance to hire an expert for a 

mental health evaluation. To complete this evaluation, Carmichael requested, 

and the trial court granted, multiple continuances until June 11, 2015. 

____________________________________________

1 The Commonwealth charged and convicted Carmichael with multiple other 

offenses at case number CP-51-CR-0008845-2013, but Carmichael did not 

appeal those convictions. Carmichael only appealed his judgment of sentence

and filed the instant PCRA petition from the convictions relating to Sergeant 

Cole.
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The matter proceeded to a jury trial on June 15, 2015. Notably, a 

security camera video, which captured certain aspects of the incident, was 

admitted at trial. The jury found Carmichael guilty of aggravated assault and 

assault of a law enforcement officer. Ultimately, the trial court sentenced 

Carmichael to 20 to 40 years in prison for the assault of a law enforcement 

officer and a concurrent prison term of 5 to 10 years for the aggravated assault 

conviction. This Court affirmed the judgment of sentence, and our Supreme 

Court denied allowance of appeal. See Commonwealth v. Carmichael, 433 

EDA 2016 (Pa. Super. filed Feb. 9, 2018) (unpublished memorandum), appeal 

denied, 189 A.3d 389 (Pa. 2018).

In June 2019, Carmichael, pro se, filed a timely PCRA petition, and 

following the appointment of counsel, an amended PCRA petition. The PCRA 

court held an evidentiary hearing, after which it dismissed Carmichael’s PCRA 

petition. This timely appeal followed.

On appeal, Carmichael raises the following questions for our review:

1. Whether the PCRA court erred by dismissing the PCRA petition 

when clear and convincing evidence was presented to establish 

that trial counsel was ineffective for failing to protect 

[Carmichael’s] constitutional rights to a speedy trial, his right 

to adequately confront the witnesses against him, and his 

procedural and substantive due process rights[?]

2. Whether the PCRA court erred by dismissing the PCRA petition 

when clear and convincing evidence was presented to establish 

violations of [Carmichael’s] constitutional rights under the 

United States and Pennsylvania Constitutions[?]

3. Whether the PCRA court erred by dismissing the PCRA petition 

when clear and convincing evidence was presented to establish 
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that the trial court issued an illegal sentence by imposing a 

sentence in excess of the statutory maximum based on the 

evidence presented at trial, and because the court did not 

consider the protection of the public, the gravity of the offense 

as it relates to the victim and the community, the rehabilitative 

needs of [Carmichael], and the sentencing guidelines[?]

Appellant’s Brief at 8.

Our standard of review regarding a PCRA court’s order “is whether the 

determination of the PCRA court is supported by the evidence of record and is 

free of legal error.” Commonwealth v. Rizvi, 166 A.3d 344, 347 (Pa. Super. 

2017). “The PCRA court’s findings will not be disturbed unless there is no 

support for the findings in the certified record.” Commonwealth v. Garcia, 

23 A.3d 1059, 1061 (Pa. Super. 2011) (citation omitted).

In his first claim, Carmichael raises four distinct ineffective assistance 

of trial counsel claims. See Appellant’s Brief at 13-16. To succeed on an 

ineffectiveness claim, Carmichael must demonstrate by a preponderance of 

evidence that “(1) the underlying claim has arguable merit; (2) counsel had 

no reasonable basis for his or her action or inaction; and (3) the petitioner 

suffered prejudice as a result of counsel’s action or inaction.” 

Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018) (citation omitted). 

Counsel is presumed to be effective, and the burden is on Carmichael to prove 

otherwise. See Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013). 

A failure to satisfy any prong of the test for ineffectiveness will require 

rejection of the claim. See Commonwealth v. Montalvo, 244 A.3d 359, 368 

(Pa. 2021).
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We will address each of Carmichael’s claims in turn. First, Carmichael 

contends that trial counsel failed to file a habeas corpus motion after the 

preliminary hearing. See Appellant’s Brief at 14. Carmichael argues that trial 

counsel’s failure satisfied the “arguable merit and reasonableness 

requirements.” Id. Carmichael asserts that the failure to file this motion 

established his due process rights were violated. See id. According to 

Carmichael, he was prejudiced by counsel’s failure because it adversely 

affected the outcome of the trial. See id. at 16.

Here, Carmichael cites the three prongs of the ineffectiveness test and 

merely provides conclusory statements that counsel was ineffective. See 

Commonwealth v. Spotz, 896 A.2d 1191, 1250 (Pa. 2006) (“[B]oilerplate, 

undeveloped” arguments regarding ineffective assistance of counsel are

“insufficient to establish an entitlement to post-conviction relief.” (citation 

omitted)). In fact, Carmichael fails to support his argument with citation to 

and discussion of relevant case law. “When an appellant cites no authority 

supporting an argument, this Court is inclined to believe there is none.” 

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 781 (Pa. Super. 2015) 

(citing Pa.R.A.P. 2119(a), which requires the appellant to discuss and cite to 

pertinent authorities). Therefore, Carmichael waived this ineffectiveness 

claim. See Commonwealth v. Paddy, 15 A.3d 431, 444 (Pa. 2011) (stating 

that when an appellant fails “to set forth all three prongs of the ineffectiveness 

test and [to] meaningfully discuss them, he is not entitled to relief, and we 
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are constrained to find such claims waived for lack of development”) (citation 

omitted)). In any event, Carmichael cannot establish prejudice, as any issues 

arising from a pre-trial petition for habeas corpus become moot once the 

defendant has been convicted. See Commonwealth v. Jacobs, 640 A.2d 

1326, 1330 (Pa. Super. 1994). 

Next, Carmichael argues that trial counsel was ineffective for not filing 

a motion to dismiss his case based on a violation of Pa.R.Crim.P. 600, noting 

that he waited over two years before his case proceeded to trial. See 

Appellant’s Brief at 14, 16. Carmichael highlights that the trial court found the 

various continuances to have been requested by the defense. See id. at 14. 

Carmichael baldly claims he did not agree with counsel seeking the 

continuances. See id. 

Pertinently, Rule 600 provides that “[t]rial in a court case in which a 

written complaint is filed against the defendant shall commence within 365 

days from the date on which the complaint is filed.” Pa.R.Crim.P. 

600(A)(2)(a). Further, “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 the time within which 

trial must commence,” while “[a]ny other periods of delay shall be excluded 

from the computation.” Pa.R.Crim.P. 600(C)(1). “[T]he Commonwealth is 

required to demonstrate that it acted with due diligence during a time period 

before that period can be deemed excludable.” Commonwealth v. Harth, 
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252 A.3d 600, 617 (Pa. 2021). “Due diligence is fact-specific, to be determined 

case-by-case; it does not require perfect vigilance and punctilious care, but 

merely a showing the Commonwealth has put forth a reasonable effort.” 

Commonwealth v. Selenski, 994 A.2d 1083, 1089 (Pa. 2010). However, in 

the context of a PCRA petition alleging ineffective assistance of counsel, the 

burden lies on Carmichael to establish that the Commonwealth did not 

exercise due diligence. See Commonwealth v. Wiggins, 248 A.3d 1285, 

1289 (Pa. Super. 2021).

Here, in Carmichael’s single paragraph argument, he does not establish 

that the Commonwealth failed to exercise due diligence when he sought the 

continuances. See id. at 1290-91 (noting that appellant’s failure to establish 

that the Commonwealth did not exercise due diligence demonstrated that 

counsel was not ineffective by neglecting to file a Rule 600 motion). 

Carmichael merely opines he did not agree with the continuances without 

providing any proof supporting his claim. Based upon the paucity of his 

ineffectiveness claim, we conclude that this claim is waived.

Carmichael also contends that trial counsel was ineffective for failing to 

object to the introduction of the surveillance video at trial. See Appellant’s 

Brief at 15. Carmichael asserts the video was introduced in violation of the 

best evidence rule. See id. Carmichael claims that he established the three 

prongs of the ineffectiveness test. See id. at 15, 16.
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Again, Carmichael merely raises bald allegations of trial counsel’s 

ineffectiveness and fails to satisfy any of the three prongs of the 

ineffectiveness test for counsel. Accordingly, we conclude that Carmichael’s 

trial counsel ineffectiveness claim in this regard is waived. See Paddy, 15 

A.3d 431, 444; Spotz, 896 A.2d at 1250.

Finally, Carmichael asserts that trial counsel was ineffective for failing 

to properly cross-examine Sergeant Cole. See Appellant’s Brief at 15, 16. 

According to Carmichael, counsel failed to develop the record to place 

Sergeant Cole’s credibility in question. See id. at 15. Carmichael claims that 

counsel should have asked Sergeant Cole if Carmichael looked in his direction

or heard Sergeant Cole identify himself, which would have helped establish 

that he did not know he was shooting at a police officer. See id. Carmichael 

further alleges counsel failed to recall Sergeant Cole during his defense, 

despite Carmichael’s pleas to do so. See id.

At trial, Carmichael’s trial counsel cross-examined Sergeant Cole. See 

N.T., 6/16/15, at 85-100. Specifically, trial counsel asked Sergeant Cole 

whether Carmichael turned around and saw him during the chase, to which 

Sergeant Cole stated no. See id. at 89. Trial counsel elicited testimony from 

Sergeant Cole that he yelled “stop police,” and that Carmichael was about one 

car length in front of Sergeant Cole. See id. at 90. Additionally, under crossexamination, Sergeant Cole conceded there were a row of cars between him 

and Carmichael when Carmichael shot his gun and that he did not see where 
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the shot went. See id. at 90-91; see also id. at 94 (wherein Sergeant Cole 

admitted that he did not see Carmichael with a gun but saw a muzzle flash).

Here, because trial counsel cross-examined Sergeant Cole and attacked 

his credibility, we conclude that Carmichael’s underlying ineffectiveness claim 

lacks merit. See Commonwealth v. Dennis, 715 A.2d 404, 408-09 (Pa. 

1998) (stating that trial counsel was not ineffective in failing to impeach a 

witness on specific grounds, where trial counsel adequately cross-examined 

the witness on other matters). Moreover, Carmichael does not establish that 

further cross-examination would have been helpful in disproving the 

Commonwealth’s case or rebutting Sergeant Cole’s testimony. In fact, 

Carmichael merely speculates that trial counsel’s examination of Sergeant 

Cole would have changed the result of the trial. See Spotz, 896 A.2d at 1216 

(noting that a petitioner cannot rely on mere conjecture and speculation to 

establish a claim of ineffectiveness). Therefore, we conclude that trial counsel 

did not render ineffective assistance, and Carmichael is not entitled to relief 

on any of his sub-claims of ineffective assistance of trial counsel.

Next, Carmichael asserts that the evidence was insufficient to support 

his convictions and the verdicts were against the weight of the evidence. See 

Appellant’s Brief at 16-19. Carmichael argues that the evidence was 

insufficient to support his convictions because the Commonwealth failed to 

prove that he had knowledge that Sergeant Cole was a law enforcement officer

or acted with an intent to cause bodily injury. See id. at 17-18. Likewise, 
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Carmichael claims that verdicts shock the conscience because of the lack of 

evidence establishing his intent to cause bodily injury or knowledge of the 

presence of a law enforcement officer. See id. at 19.

Critically, Carmichael’s sufficiency and weight claims were raised on 

direct appeal. See Carmichael, 433 EDA 2016 (unpublished memorandum at 

6-10 (addressing the sufficiency claim), 13-18 (addressing the weight 

challenge)). Therefore, Carmichael previously litigated these claims in this 

Court, and is ineligible for relief under the PCRA. See 42 Pa.C.S.A. 

§ 9543(a)(3) (noting that to be eligible for relief under the PCRA, the 

petitioner must plead and prove that the “allegation of error has not been 

previously litigated”); see also id. § 9544(a)(2) (stating that an issue is 

deemed previously litigated if the highest court where review was due as a 

matter of right has reviewed the issue on the merits); Commonwealth v. 

Postie, 200 A.3d 1015, 1025 (Pa. Super. 2018) (en banc) (“Because the 

Superior Court is the highest court in which [a]ppellant was entitled to review 

as a matter of right, and he obtained merits review on his current claim of 

trial court error, [a]ppellant’s underlying issue has been ‘previously litigated’ 

for purposes of the PCRA.” (emphasis in original) (citation omitted)).

Moreover, and in any event, these claims are not cognizable under the PCRA. 

See 42 Pa.C.S.A. § 9543(a)(2); see also Commonwealth v. Price, 876 

A.2d 988, 995 (Pa. Super. 2005) (rejecting a sufficiency claim that was raised 

on PCRA appeal without an ineffective assistance of counsel analysis because 
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it is not cognizable under the PCRA). Therefore, we cannot conclude the PCRA 

court erred in denying Carmichael any relief on either the sufficiency or weight 

of the evidence presented at trial.

In his final claim, Carmichael contends that his sentence for the assault 

of a law enforcement officer was illegal because it exceeded the maximum 

amount allowed by law. See Appellant’s Brief at 19-20. Although the PCRA 

states that a challenge to the legality of sentence is cognizable in a timely 

PCRA petition, see 42 Pa.C.S.A. § 9543(a)(2)(vii), we note this Court 

previously rejected this specific claim on direct appeal. See Carmichael, 433 

EDA 2016 (unpublished memorandum at 10-13); see also id. (unpublished 

memorandum at 13 (“[Carmichael’s] sentence of twenty to forty years was 

both mandated and proper.”)). Therefore, this claim was previously litigated, 

and we cannot grant any relief to Carmichael. See 42 Pa.C.S.A. § 9544(a)(2); 

Postie, 200 A.3d at 1025.

Carmichael also challenges the discretionary aspects of his sentence. 

See Appellant’s Brief at 20. “Challenges to the discretionary aspects of 

sentencing are not cognizable under the PCRA.” Commonwealth v. Fowler,

930 A.2d 586, 593 (Pa. Super. 2007). Therefore, we cannot review this claim.

Since Carmichael has not established the PCRA court erred in rejecting 

his petition, we affirm the PCRA court’s order.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/18/2023