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[U] Commonwealth v. Hammond

Superior Court of Pennsylvania

February 11, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
BYRON HAMMOND, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order Dated December 10, 2012 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0001576-2008

BEFORE: BENDER, P.J., SHOGAN, J., and FITZGERALD, J. [*]

MEMORANDUM

BENDER, P.J.

Appellant, Byron Hammond, appeals pro se from the trial court's December 10, 2012 order denying his petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.[1] For the following reasons, we affirm.

On May 8, 2009, a jury convicted Appellant of third-degree murder, conspiracy, burglary, and aggravated indecent assault. Appellant's convictions stemmed from his and two other individuals' act of burglarizing the home of O'Neill and Marquita Blackwood on September 27, 2007. During the burglary, Mrs. Blackwood was sexually assaulted and Mr. Blackwood was shot and killed.[2] On July 21, 2009, Appellant was sentenced to an aggregate term of 45 to 90 years' incarceration. He filed a timely direct appeal, and this Court affirmed his judgment of sentence on February 28, 2011. Commonwealth v. Hammond, 24 A.3d 468 (Pa.Super. 2011) (unpublished memorandum). Appellant did not seek permission to appeal to our Supreme Court.

On October 13, 2011, Appellant filed a timely pro se PCRA petition and counsel was appointed. Rather than filing an amended petition on Appellant's behalf, counsel filed a petition to withdraw on October 2, 2012. On October 4, 2012, the court granted counsel's petition to withdraw and, at the same time, the court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant's PCRA petition. Appellant did not respond to the Rule 907 notice. On December 10, 2012, the PCRA court issued an order dismissing his petition.

Appellant filed a timely pro se notice of appeal, as well as a timely Rule 1925(b) concise statement of errors complained of on appeal. Herein, he raises three issues for our review:

1. Wheather [sic] council [sic] was ineffective by not following through on alibi witnesses presented by [Appellant] in statement, that it posed so much of a [sic] error that [Appellant] could not recieve [sic] a fair trial[?]
2. Did the trial court … impose an illegal sentence for the crime of burglary, the underlying felony for Appellant's third[-]degree murder conviction, where the sentence was imposed consecutively to the sentence for third[-]degree murder[?]
3. That the prosecutor so inflamed the jury by flagrant comments made in her summations were indeed making jurors hostile and … biased so much so that [Appellant] could not recieve [sic] a clear and impartial verdic [sic] from jurors[?]

Appellant's Brief at 3 (unnumbered pages; unnecessary capitalization omitted).

Initially, we note that in the argument portion of his brief, Appellant does not discuss (or even mention) the third issue set forth supra. He also did not raise this assertion in his Rule 1925(b) statement. Therefore, Appellant's third claim is waived. See Pa.R.A.P. 1925(b)(4)(vii) ("Issues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived."); Commonwealth v. Hernandez, 39 A.3d 406, 412 (Pa.Super. 2012) (stating that the appellant's failure to develop an argument with citations to pertinent caselaw or other authority waives claim for appellate review).

Likewise, in the argument portion of Appellant's brief, he avers that his PCRA counsel was ineffective. Not only was this claim omitted from Appellant's "Statement of Questions Involved" section of his brief, but it also was not raised in response to the PCRA court's Rule 907 notice or counsel's petition to withdraw. Accordingly, this claim is also waived. See Pa.R.A.P. 2116(a) ("No question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby."); Pa.R.A.P. 302 ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal."); Commonwealth v. Pitts, 981 A.2d 875, 879 n.3 (Pa. ...


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