J-S53011-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MICHAEL STONE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1122 EDA 2020

Appeal from the PCRA Order Entered March 12, 2020

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

No(s): CP-51-CR-0010016-2015

COMMONWEALTH OF PENNSYLVANIA

v.

MICHAEL STONE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1123 EDA 2020

Appeal from the PCRA Order Entered March 12, 2020

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

No(s): CP-51-CR-0010017-2015

BEFORE: SHOGAN, J., LAZARUS, J., and STRASSBURGER, J.*

MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 23, 2021

Appellant, Michael Stone, appeals from the March 12, 2020 order 

denying his petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 

42 Pa.C.S. §§ 9541-9546. We affirm.

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* Retired Senior Judge assigned to the Superior Court.
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On direct appeal, a prior panel of this Court summarized the relevant 

facts and procedural history of this case as follows:

[Appellant] was arrested in August 2015, and charged by 

criminal complaint with robbery, burglary, and related offenses. 

See Complaint, 8/11/15, at 2. The factual description supporting 

the charges read:

At 439 Domino Lane [Appellant], with intent to 

commit a crime therein, unlawfully entered a building 

or occupied structure belonging to the complainant, 

John McFarland [(“the victim”)], by forcing open a 

door, and [Appellant] forcibly took money from the 

complainant by struggling with the complainant and 

taking the complainant’s wallet and phone, and 

[Appellant] intimidated or attempted to intimidate the 

complainant to refrain from reporting the incident by 

telling the complainant that “it would be worse” if 

complainant called police.

Id. (unnecessary capitalization omitted).

The trial court held a preliminary hearing on October 6, 

2015, and found that the Commonwealth had established a prima 

facie case on most of the charged offenses, including robbery and 

burglary. See Trial Disposition and Dismissal Form at 1. The 

Commonwealth thereafter filed a bill of information on October 14, 

2015, charging [Appellant] with robbery, burglary, and other 

offenses. See Information at 1.[1] The burglary charge specified 

John McFarland as the victim, and 439 Domino Lane, Philadelphia, 

as the location [of the crime]. Id.

Formal arraignment took place on October 27, 2015. 

Although the record does not reflect what occurred during those 

proceedings, [Appellant’s] counsel later stated that the burglary 

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1

 The lower court docket number was CP-51-CR-0010016-2015.
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charge had been included in that arraignment. See N.T., 5/17/16 

(Trial), at 112.[2]

Jury selection for [Appellant’s] trial commenced on May 17, 

2016. . . .

* * *

The jury found [Appellant] guilty of both robbery and 

burglary.5 [,3] The court sentenced [Appellant] on August 4, 2016, 

to consecutive terms of ten to 20 years’ incarceration for burglary 

and one to five years’ incarceration for robbery.

5 [Appellant] was found not guilty of robbery at CP51-CR-0010017-2015

[Appellant] filed a timely notice of appeal . . . .

Commonwealth v. Stone, 193 A.3d 1058, 2632 EDA 2016, at *1–3 (Pa. 

Super. filed June 8, 2018) (unpublished memorandum). We affirmed the 

judgment of sentence, id., and our Supreme Court declined further review. 

Commonwealth v. Stone, 199 A.3d 334, 293 EAL 2018 (Pa. filed December 

11, 2018).

Appellant filed a pro se PCRA petition on April 30, 2019. The PCRA court 

appointed counsel, who filed an amended petition on October 18, 2019. The 

PCRA court issued notice of its intent to dismiss the petition pursuant to 

Pa.R.Crim.P. 907 on February 19, 2020. Appellant did not file a response, and 

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2

 Appellant also had been charged with robbery under lower court docket 

number CP-51-CR-0010017-2015, which was consolidated with docket CP-51-

CR-0010016-2015.

3

 18 Pa.C.S. §§ 3701(a)(1)(iv) and 3502(a)(1), respectively.
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the PCRA court dismissed the petition on March 12, 2020. Appellant filed 

timely notices of appeal from the March 12, 2020 order. Both Appellant and 

the PCRA court complied with Pa.R.A.P. 1925.4

The notice of appeal listing lower court docket number CP-51-CR0010016-2015 was assigned Superior Court docket number 1122 EDA 2020; 

the notice of appeal listing lower court docket number CP-51-CR-0010017-

2015 was assigned Superior Court docket number 1123 EDA 2020. On July 

20, 2020, we consolidated the appeals sua sponte. Order, 7/20/20, at 1.

Appellant presents the following issues in his Statement of Questions 

Involved in his appellate brief5:

1. Whether the PCRA court erred by dismissing the PCRA 

petition when clear and convincing evidence was presented 

that established multiple instances of trial counsel’s 

ineffectiveness[?]

2. Whether the PCRA court erred by dismissing the PCRA 

petition when clear and convincing evidence was presented 

that established multiple violations of [A]ppellant’s 

constitutional rights[?]

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4

 The PCRA court filed a “Letter in Lieu of Opinion” referencing “the reasons 

for the dismissal of Appellant’s [PCRA] petition” in footnote one of its order 

dismissing the petition, which merely states the basis of its reasoning in 

conclusory single sentences in a footnote. Order Sur PCRA Petition, 6/8/20, 

at 1 n.1.

5

 Apellant’s Brief does not comply with multiple Rules of Appellate Procedure, 

including, for example, Pa.R.A.P. 124(3) (“Text must be double spaced”); 

Pa.R.A.P. 2111(a)(11) and (d) (requiring Appellant to append the statement 

of errors complained of on appeal filed with the trial court); Pa.R.A.P. 2119 

(c) (Reference to the record) and (e) (statement of place of raising or 

preservation of issues).
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3. Whether the PCRA court erred by failing to grant an 

evidentiary hearing[?]

Appellant’s Brief at 8.

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

consider the record “in the light most favorable to the prevailing party at the 

PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super. 

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) 

(en banc)). 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. Rykard, 55 A.3d 1177, 1183 (Pa. 

Super. 2012). We grant great deference to the PCRA court’s findings that are 

supported in the record and will not disturb them unless they have no support 

in the certified record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. 

Super. 2014).

To be eligible for relief under the PCRA, a defendant must plead and 

prove that his conviction and/or sentence resulted from one of the 

circumstances delineated by the PCRA. See 42 Pa.C.S. § 9543 (outlining the 

eligibility requirements for PCRA relief). Among those requirements are that 

the issue must not be previously litigated or waived. 42 Pa.C.S. § 9543(a)(3). 

An issue is previously litigated if “the highest appellate court in which the 

petitioner could have had review as a matter of right has ruled on the merits 

of the issue[.]” 42 Pa.C.S. § 9544(a)(2).
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Appellant’s first issue assails the effectiveness of trial counsel. 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. Treiber, 121 A.3d 435, 445 (Pa. 

2015). A claim of ineffectiveness will be denied if [Appellant’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). 

Moreover, 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).

With regard to the second prong, we have reiterated that trial counsel’s 

approach must be “so unreasonable that no competent lawyer would have 

chosen it.” Commonwealth v. Ervin, 766 A.2d 859, 862-863 (Pa. Super. 

2000) (quoting Commonwealth v. Miller, 431 A.2d 233 (Pa. 1981)). “The 

test is not whether other alternatives were more reasonable, employing a 

hindsight evaluation of the record. . . . [T]he balance tips in favor of a finding 

of effective assistance as soon as it is determined that trial counsel’s decision 

had any reasonable basis.” Commonwealth v. Pierce, 527 A.2d 973, 975 

(Pa. 1987).
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As to the third prong, generally, prejudice requires proof that there is a 

reasonable probability that but-for counsel’s error, the outcome of the 

proceeding would have been different. Commonwealth v. Diaz, 226 A.3d 

995, 1008 (Pa. 2020). “A failure to satisfy any prong of the ineffectiveness 

test requires rejection of the claim of ineffectiveness.” Commonwealth v. 

Daniels, 963 A.2d 409, 419 (Pa. 2009). Thus, when it is clear that a 

petitioner has failed to meet the prejudice prong of an ineffective-assistanceof-counsel claim, the claim may be disposed of on that basis alone, without a 

determination of whether the first two prongs have been met. 

Commonwealth v. Baker, 880 A.2d 654, 656 (Pa. Super. 2005).

Finally, we are bound by the PCRA court’s credibility determinations 

where there is support for them in the record. Commonwealth v. Battle, 

883 A.2d 641, 648 (Pa. Super. 2005) (citing Commonwealth v. Abu-Jamal, 

720 A.2d 79 (Pa. 1998)).

The PCRA court noted as follows:

Because [Appellant’s] claims are devoid of merit, counsel cannot 

be ineffective. See Commonwealth v. Koehler, 36 A.3d 121, 144 

(Pa. 2012). Specifically,

1. [Appellant] failed to demonstrate that counsel was

ineffective for failing to investigate or call witnesses on his 

behalf, where he has not provided proof that such witnesses 

existed, that they were available, that counsel knew or 

should have known of such witnesses, that the witnesses 

were willing to testify, and that the absence of such 

witnesses’ testimony prejudiced him.

2. [Appellant] failed to demonstrate that counsel was 

ineffective for failing to file post sentence motions, where 
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there is no claim that he asked sentencing counsel to do so, 

and he did not demonstrate what the unfiled motions would 

have addressed or, if there was a failure to file, that the post 

sentence motions would have altered the outcome.

3. [Appellant] failed to demonstrate that counsel was 

ineffective for failing to adequately cross examine the 

complainant. The record demonstrates that counsel 

adequately cross examined the complainant and [Appellant]

failed to allege any additional areas of cross examination, or 

that such additional examination would have altered the 

outcome.

4. [Appellant] failed to demonstrate that counsel was 

ineffective for failing to file a motion challenging the affidavit 

of probable cause. He failed to allege any specific falsehoods 

in the affidavit or evidence that the affiant officer knew the 

Information was false, and there is no basis upon which to

conclude that had such a motion been filed, it would have 

been successful.

5. [Appellant] failed to demonstrate that counsel was 

ineffective for failing to adequately communicate with him 

before trial. When given the opportunity to claim such 

failure to communicate, he failed to do so. Instead, 

[Appellant] testified that he had the opportunity to discuss 

his case with counsel. NT[,] 5/17/16, 108. He also failed 

to allege any prejudice from any alleged failure to 

communicate, what he would have communicated, or that 

such additional communication would have altered the 

outcome.

6. [Appellant] failed to demonstrate that counsel was 

ineffective for failing to investigate DNA and fingerprint 

evidence. He failed to demonstrate that there was any such 

evidence available for testing, or how such evidence would 

have changed the result.

7. [Appellant] failed to demonstrate that the evidence was 

insufficient to support his conviction or that appellate 

counsel was ineffective in failing to raise such a claim.

[Appellant] waived the claim by failing to raise it on direct 

appeal and he do[es] not offer any evidence that he asked 

appellate counsel to raise the claim, or that the claim had 
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any merit. The evidence at trial, as summarized in the 

court’s January 30, 2017, Memorandum Opinion, 2-4, was 

sufficient to support the convictions[.]

Order Sur PCRA Petition, 6/8/20, at 1 n.1.

Appellant’s first issue is waived. Appellant provides merely conclusory 

statements of the alleged ineffectiveness of trial counsel and fails to develop 

his arguments. Appellant’s Brief at 12–15. The only case law set forth in his 

brief references PCRA standards and requirements to establish ineffective 

assistance of counsel. Id. at 12–14. Appellant wholly fails to cite to the record 

where any of the various alleged instances of ineffectiveness occurred. For 

example, Appellant stated that he “sought to impeach the testimony of the 

complaining witness based on a pre-existing acrimony between [the victim] 

and [Appellant],” but there is no reference to the record where Appellant 

allegedly so testified. Id. at 13. Appellant contends that trial counsel failed 

to “present defense witness testimony,” id. at 13, but he does not identify 

what witness or witnesses were foregone. Id. To prevail on a claim of trial 

counsel’s ineffectiveness for failure to call a witness, an appellant must prove: 

“(1) the witness existed; (2) the witness was available; (3) trial counsel was 

informed of the existence of the witness or should have known of the witness’s

existence; (4) the witness was prepared to cooperate and would have testified 

on [the] appellant’s behalf; and (5) the absence of the testimony prejudiced 

[the] appellant.” Commonwealth v. Chmiel, 889 A.2d 501, 545-546 (Pa. 

2005) (citations omitted). Trial counsel’s failure to call a particular witness
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does not constitute ineffective assistance without some showing that the 

absent witness’s testimony would have been beneficial or helpful in 

establishing the asserted defense. Id. Appellant must demonstrate how the 

testimony of the uncalled witness would have been beneficial under the 

circumstances of the case. Id. Appellant has not identified any witness, let 

alone complied with the parameters of the level of proof to prove ineffective 

assistance of counsel for failure to call a witness. See Commonwealth v. 

Brown, 161 A.3d 960, 967–968 (Pa. Super. 2017) (failure to provide 

affidavits or certifications from foregone witness indicating willingness and 

availability to testify is sufficient for PCRA court to reject claim without holding 

evidentiary hearing).

“It is not this Court’s responsibility to comb through the record seeking 

the factual underpinnings of an appellant’s claim.” Commonwealth v. 

Samuel, 102 A.3d 1001, 1005 (Pa. Super. 2014). Appellant has not 

developed any of the bald allegations nor explained how he was prejudiced, 

and he failed to support his allegations of ineffectiveness by any citation to 

the record. It is beyond cavil 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. Commonwealth v. Woodward, 129 A.3d 480 (Pa. 2015).

In his second issue, Appellant contends the PCRA court erred in 

dismissing his petition because he presented clear and convincing evidence 
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that his constitutional rights were violated “by the introduction of perjured 

testimony and a conviction based on insufficient evidence.” Appellant’s Brief 

at 15.

Appellant asserts that his constitutional rights were violated at trial “by 

the Commonwealth’s failure to prove each element of the crimes charged 

beyond a reasonable doubt.” Appellant’s Brief at 15. This claim is waived. 

The PCRA requires a petitioner to prove that his claim “has not been previously 

litigated or waived.” 42 Pa.C.S. § 9543(a)(3). A claim is waived under the 

PCRA “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. § 9544(b) (emphasis added). Appellant could have 

raised this issue in his direct appeal but failed to do so. See Stone, 2632 

EDA 2016, (unpublished memorandum); Commonwealth v. Koehler, 36 

A.3d 121, 140 (Pa. 2012) (Koehler’s substantive due-process-violation claim 

was waived on PCRA review where he could have raised it on direct appeal, 

but failed to do so); Commonwealth v. Cox, 983 A.2d 666, 704 (Pa. 2009) 

(claim that trial court violated the appellant’s right to due process by failing 

to give a jury instruction was waived on PCRA review where the appellant 

failed to raise it previously). While Appellant apparently asserted appellate 

counsel’s ineffectiveness in this regard to the trial court, he has not argued it 

in his appellate brief. Therefore, as the claim is abandoned, it is waived. See 

Commonwealth v. Heggins, 809 A.2d 908, 912 n.2 (Pa. Super. 2002) 
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(“[A]n issue identified on appeal but not developed in the appellant’s brief is 

abandoned and, therefore, waived.”).

Furthermore, Appellant failed to identify to the PCRA court, and to us on 

appeal, which crime was not proven and what element was foregone. “An 

appellant’s [Pa.R.A.P.] 1925(b) statement must state with specificity the 

element or elements upon which the appellant alleges that the evidence was 

insufficient.” Commonwealth v. Stiles, 143 A.3d 968, 982 (Pa. Super. 

2016) (quoting Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super. 

2013)); see also Pa.R.A.P. 1925(b)(4)(ii) (“[T]he Statement shall concisely 

identify each ruling or error that the appellant intends to challenge with 

sufficient detail to identify all pertinent issues for the judge.”). “Such 

specificity is of particular importance in cases where, as here, [A]ppellant was 

convicted of multiple crimes each of which contains numerous elements that 

the Commonwealth must prove beyond a reasonable doubt.” Garland, 63 

A.3d at 344. Failure to identify what specific elements the Commonwealth did 

not prove at trial in a Rule 1925(b) statement renders an appellant’s 

sufficiency-of-the-evidence claim waived for appellate review. See 

Commonwealth v. Tyack, 128 A.3d 254, 261 (Pa. Super. 2015) (finding 

appellant’s issues waived where “1925(b) statement simply declared, in 

boilerplate fashion, that the evidence was insufficient to support his 

conviction”).
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Instantly, Appellant generically stated the following in his Pa.R.A.P. 

1925(b) statement: “Appellant also established a violation of his Due Process 

rights based on his conviction upon evidence that did not prove his guilt 

beyond a reasonable doubt.” Pa.R.A.P. 1925(b) Statement, 4/18/20, at 2. 

Appellant does not identify any element of burglary or robbery that was not 

proven beyond a reasonable doubt. Additionally, Appellant’s “Statement of 

the Questions Involved” fails to specify what element(s) of burglary or robbery 

was not challenged on appeal. Appellant’s Brief at 8. Consequently, 

Appellant’s nonspecific and inaccurate due process claim based upon a lack of

sufficiency of the evidence, which fails to state any elements of any crimes 

allegedly not proven by the Commonwealth, is waived for this reason, as well.

Tyack, 128 A.3d at 261.

Even if not waived, we would conclude the issue lacks arguable merit 

because the evidence presented at trial was sufficient. In reviewing the 

sufficiency of the evidence, we must determine whether the evidence admitted 

at trial and all reasonable inferences drawn therefrom, viewed in the light most 

favorable to the Commonwealth as verdict winner, were sufficient to prove 

every element of the offense beyond a reasonable doubt. Commonwealth 

v. Green, 203 A.3d 250, 253 (Pa. Super. 2019), appeal denied, 216 A.3d 

1036, 54 WAL 2019 (Pa. July 30, 2019). “[T]he facts and circumstances 

established by the Commonwealth need not preclude every possibility of 

innocence.” Commonwealth v. Colon-Plaza, 136 A.3d 521, 525–526 (Pa. 
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Super. 2016) (quoting Commonwealth v. Robertson-Dewar, 829 A.2d 

1207, 1211 (Pa. Super. 2003)). It is within the province of the fact-finder to 

determine the weight to be accorded to each witness’s testimony and to 

believe all, part, or none of the evidence. Commonwealth v. Tejada, 107 

A.3d 788, 792–793 (Pa. Super. 2015). The Commonwealth may sustain its 

burden of proving every element of the crime by means of wholly 

circumstantial evidence. Commonwealth v. Mucci, 143 A.3d 399, 409 (Pa. 

Super. 2016). Moreover, as an appellate court, we may not re-weigh the 

evidence and substitute our judgment for that of the fact-finder. 

Commonwealth v. Rogal, 120 A.3d 994 (Pa. Super. 2015).

A person commits burglary as a felony of the first degree when he 

enters, with the intent to commit a crime therein, a building or occupied 

structure adapted for overnight accommodations when “at the time of the 

offense any person is present.” 18 Pa.C.S. § 3502(a)(1)(i). “A person is guilty 

of robbery if, in the course of committing a theft, he inflicts bodily injury upon 

another or threatens another with or intentionally puts him in fear of 

immediate bodily injury.” 18 Pa.C.S. § 3701(a)(1)(iv). Bodily injury is defined 

as “[i]mpairment of physical condition or substantial pain.” 18 Pa.C.S. § 2301. 

An act is deemed “in the course of committing a theft” if it occurs “in an 

attempt to commit theft or in flight after the attempt or commission.” 18 

Pa.C.S § 3701(2).
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In this case, all of the elements of burglary and robbery were met. The 

victim, who is “semi-paralyzed,” testified that as he entered his apartment on 

August 8, 2015, at approximately 1:00 a.m., Appellant forced his way into the 

victim’s apartment by overpowering the victim, and demanded money. N.T., 

5/17/16, at 19, 23, 25. Initially, the victim did not know who was assaulting 

him because it was dark and the assailant wore a ski mask, but the victim 

then recognized him as Appellant; Appellant later removed the ski mask. Id.

at 25–27.

Appellant returned the next morning, and the victim telephoned the 

police. N.T., 5/17/16, at 31–32. Later that day, as the victim was going to a 

friend’s house because he was fearful in his apartment, Appellant attacked the 

victim again, overpowered him, and demanded more money. Id. at 34–35. 

The credited testimony of the victim alone was sufficient to support Appellant’s

convictions. Thus, even if this issue were not waived, we would conclude that 

Appellant has not suffered a due process violation based on the lack of 

sufficient evidence to support his convictions.

Appellant’s final claim of a due-process violation alleges prosecutorial 

misconduct. Appellant’s Brief at 16. This claim is waived. Appellant did not 

assert such issue in his Pa.R.A.P. 1925(b) statement (“Issues not included in 

the Statement and/or not raised in accordance with the provisions of this 

paragraph (b)(4) are waived”), nor was it included in Appellant’s statement of 

questions involved pursuant to Pa.R.A.P. 2116 (“No question will be 
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considered unless it is stated in the statement of questions involved or is fairly 

suggested thereby.”).

In his final issue, Appellant avers that the PCRA court erred “by failing 

to grant an evidentiary hearing.” Appellant’s Brief at 17. “There is no absolute 

right to an evidentiary hearing on a PCRA petition, and if the PCRA court can 

determine from the record that no genuine issues of material fact exist, then 

a hearing is not necessary.” Commonwealth v. Jones, 942 A.2d 903, 906 

(Pa. Super. 2008) (quoting Commonwealth v. Barbosa, 819 A.2d 81 (Pa. 

Super. 2003)). “[S]uch a decision is within the discretion of the PCRA court 

and will not be overturned absent an abuse of discretion.” Commonwealth 

v. Mason, 130 A.3d 601, 617 (Pa. 2015). Because there were no discernable 

genuine issues of material fact regarding counsel’s effectiveness that were 

properly preserved, we cannot identify any abuse of the PCRA court’s 

discretion in denying Appellant an evidentiary hearing. Id.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/23/2021