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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN W. LYNN,
Appellant No. 641 EDA 2014
Appeal from the PCRA Order entered February 6, 2014,
in the Court of Common Pleas of Wayne County,
Criminal Division, at No(s): CP-64-CR-0000375-2010.
BEFORE: ALLEN, OLSON, and OTT, JJ.
MEMORANDUM BY ALLEN, J.: FILED OCTOBER 08, 2014
John W. Lynn (“Appellant”) appeals pro se from the order denying his
petition for relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
sections 9541-46. We affirm.
This Court previously summarized the factual and procedural
background as follows:
Appellant’s wife found a picture of two naked bodies
engaged in sexual intercourse on her computer. [She]
contacted the police believing that the two bodies in the
picture were those of her minor daughter (“Complainant”)
and her husband, Complainant’s stepfather. [Complainant
was born in November of 1993.] The police questioned
Complainant, during which she disclosed that she and
Appellant had been engaged in a three-year-long sexual
relationship, and that she had placed the picture on her
mother’s computer knowing her mother would find it.
Appellant was arrested and charged with, inter alia,
Corruption of a Minor, Statutory Sexual Assault, and
Involuntary Deviate Sexual Intercourse. Prior to trial,
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Complainant recanted her initial statements to the police,
and later, she recanted her recantation. As a result, the
Commonwealth submitted a memorandum informing the
trial court that the Commonwealth anticipated that
Complainant may deny her allegations against Appellant at
trial and that it intended to impeach Complainant’s
testimony if she contradicted her initial statements to
police. At trial, Complainant denied the sexual relations
with Appellant, saying she fabricated the allegations. The
Commonwealth proceeded to impeach Complainant,
confronting her with prior statements wherein she stated
she and Appellant had been engaged in sexual relations,
including both vaginal and anal intercourse.
Commonwealth v. Lynn, 60 A.3d 555 (Pa. Super. 2012), unpublished
memorandum at 1-2 (footnote omitted). As part of its case against
Appellant, the Commonwealth also introduced forensic analysis of items
seized from the Complainant’s bedroom, which matched Appellant’s DNA.
On July 20, 2011, a jury convicted Appellant of the above charges. On
November 23, 2011, the trial court sentenced him to an aggregate sentence
of ten to twenty years of imprisonment. Thereafter, the trial court denied
Appellant’s post-sentence motion. Appellant filed a timely appeal to this
Court. On August 2, 2012, we affirmed Appellant’s judgment of sentence.
Lynn, supra. On January 18, 2013, our Supreme Court denied Appellant’s
petition for allowance of appeal. Commonwealth v. Lynn, 62 A.3d 379
(Pa. 2013).
Appellant filed a pro se PCRA petition on July 15, 2013, and the PCRA
court appointed counsel. On October 17, 2013, PCRA counsel filed a “no-
merit” letter and motion to withdraw pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550
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A.2d 213 (Pa. Super. 1988) (en banc). On January 3, 2014, the PCRA court
issued Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s petition
without a hearing. That same day, the PCRA court granted PCRA counsel’s
motion to withdraw. On January 14, 2014, Appellant filed a response in
which he sought to amend his PCRA petition to include a claim that PCRA
counsel was ineffective in his assessment of Appellant’s claims. By order
entered February 6, 2014, the PCRA court dismissed Appellant’s PCRA
petition. In so doing, the PCRA court specifically noted that, although
Appellant preserved his claim of PCRA counsel’s ineffectiveness, this
allegation did “not alter the fact that the PCRA claims are frivolous and there
are no genuine issues of fact in dispute.” Order, 2/6/14, at n.1. This timely
appeal followed. Both Appellant and the PCRA court have complied with
Pa.R.A.P. 1925.
Appellant raises the following issues:
I. IS [PCRA] COUNSEL INEFFECTIVE IN FILING A NO
MERIT LETTER WHEN THERE ARE ISSUES OF EX PARTE
COMMUNICATION BETWEEN AN ARRESTING OFFICER AND
A SITTING JURY MEMBER?
II. IS PCRA COUNSEL INEFFECTIVE IN HIS ASSESSMENT
WHEN PCRA [COUNSEL] STATED, INEFFECTIVENESS OF
TRIAL COUNSEL SHOULD HAVE BEEN RAISED DURING
DIRECT APPEAL?
III. IS PCRA COUNSEL INEFFECTIVE IN HIS ASSESSMENT
OF TRIAL COUNSEL[‘S] APPROACH TO A MEDICAL EXPERT
IN THE FIELD OF THE DEVELOPMENTAL PROCESS OF A
CHILD?
IV. IS PCRA COUNSEL INEFFECTIVE IN HIS ASSESSMENT
OF TRIAL COUNSEL[‘S] HANDLING OF THE PLEA OFFER,
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WHERE TRIAL COUNSEL STATES HE ADVISED APPELLANT
OF THE PLEA, WHERE NO RECORD EXISTS?
V. IS PCRA COUNSEL INEFFECTIVE IN HIS ASSESSMENT
OF [APPELLATE COUNSEL] STATING THIS CLAIM LACKS
MERIT, BECAUSE IT SHOULD HAVE BEEN RAISED ON
DIRECT APPEAL?
VI. IS PCRA COUNSEL INEFFECTIVE IN HIS ASSESSMENT
OF THE CLAIMS OF TRIAL COUNSEL[‘S]
INEFFECTIVENESS?
VII. DOES THE “NO-MERIT” LETTER REQUIREMENT OF THE
[PCRA] PROCESS RENDER THE PCRA [ITSELF]
INEFFECTIVE?
VIII. IS PCRA COUNSEL INEFFECTIVE IN HIS ASSESSMENT
OF APPELLANT’S CASE?
Appellant’s Brief at 4-5.
In its Pa.R.A.P. 1925(a) opinion, the PCRA court incorporated its prior
memorandum filed with its Pa.R.A.P. 907 notice. In addition, the PCRA court
concluded that PCRA counsel fully complied with the Turner/Finley
requirements, and agreed with PCRA counsel’s assessment of Appellant’s
claims, determining that Appellant’s appeal “lacks merit.” PCRA Court
Opinion, 4/15/14, at 2. Although some of Appellant’s claims overlap, we
address them separately.
In reviewing the propriety of an order granting or denying PCRA relief,
an appellate court is limited to ascertaining whether the record supports the
determination of the PCRA court and whether the ruling is free of legal error.
Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). We pay great
deference to the findings of the PCRA court, “but its legal determinations are
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subject to our plenary review.” Id. Moreover, a PCRA court may decline to
hold a hearing on the petition if the PCRA court determines that petitioner’s
claim is patently frivolous and is without a trace of support in either the
record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011,
1014 (Pa. Super. 2001). Before an evidentiary hearing will be granted, a
PCRA petitioner “must set forth an offer to prove at an appropriate hearing
sufficient facts upon which a reviewing court can conclude that trial counsel
may have, in fact, been ineffective.” Commonwealth v. Begley, 780 A.2d
605, 635 (Pa. 2001) (quoting Commonwealth v. Pettus, 424 A.2d 1332,
1335 (Pa. 1981)).
To be eligible for post-conviction relief, a petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
resulted from one or more of the enumerated errors or defects in 42
Pa.C.S.A. section 9543(a)(2), and that the issues he raises have not been
previously litigated. Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa.
2012). An issue has been "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, or if the issue has been raised and decided
in a proceeding collaterally attacking the conviction or sentence.” Koehler,
36 A.3d at 131-132; 42 Pa.C.S.A. § 9544(a)(2). If a claim has not been
previously litigated, the petitioner must prove that the issue was not waived.
An issue will be deemed waived under the PCRA “if the petitioner could have
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raised it but failed to do so before trial, at trial, during unitary review, on
appeal, or in a prior state post[-]conviction proceeding.” Id. at 132; 42
Pa.C.S.A. § 9544(b).
Appellant raises claims of PCRA counsel’s ineffectiveness. To obtain
relief under the PCRA premised on a claim that counsel was ineffective, a
petitioner must establish by a preponderance of the evidence that counsel's
ineffectiveness so undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place. Id. “Generally,
counsel’s performance is presumed to be constitutionally adequate, and
counsel will only be deemed ineffective upon a sufficient showing by the
petitioner.” Id. This requires the petitioner to demonstrate that: (1) the
underlying claim is of arguable merit; (2) counsel had no reasonable
strategic basis for his or her action or inaction; and (3) petitioner was
prejudiced by counsel's act or omission. Id. at 533. A finding of "prejudice"
requires the petitioner to show "that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would
have been different." Id. In assessing a claim of ineffectiveness, when it is
clear that appellant has failed to meet the prejudice prong, the court may
dispose of the claim on that basis alone, without a determination of whether
the first two prongs have been met. Commonwealth v. Travaglia, 661
A.2d 352, 357 (Pa. 1995). Counsel cannot be deemed ineffective for failing
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to pursue a meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132
(Pa. Super. 2003) (en banc), appeal denied, 852 A.2d 311 (Pa. 2004).
Appellant first claims that PCRA counsel was ineffective for filing a “no-
merit” letter when Appellant raised a meritorious issue regarding an instance
during his trial where “a jury member had contact & conversation with one
of the arresting, Pennsylvania State Police, (hereinafter) (PSP) Officers, who
was also a Commonwealth witness testifying at Appellant’s trial.”
Appellant’s Brief at 8. According to Appellant, PCRA counsel was ineffective
“in attempting to interview this officer as to the nature of the contact.” Id.
Appellant avers that PCRA counsel should have amended his pro se petition,
and should have “requested a hearing to develop a record on this claim and
a new trial in this matter.” Id.
The PCRA court found this claim of PCRA counsel’s ineffectiveness
failed because Appellant did not establish the merit of the underlying claim.
As part of its Pa.R.Crim.P. 907 notice, the PCRA court explained:
[Appellant’s] PCRA contains a statement from Barbara
Widmark. Ms. Widmark’s statement indicates that she saw
a Trooper speaking with a woman who had walked out of
the courthouse. Ms. Widmark’s statement indicates that
[A.B., the Complainant’s] mother, informed Ms. Widmark
that the woman was a juror on the trial. [Appellant’s]
PCRA alleges that the arresting officer was the Trooper
who spoke with a juror. Ms. Widmark’s sworn statement
indicates that she saw a Trooper speak with a woman. Ms.
Widmark’s statement does not indicate that the Trooper
was the arresting officer. Furthermore, Ms. Widmark’s
statement that the woman was a juror was based upon
hearsay. No credible evidence was presented to the Court
that a juror was speaking with the arresting officer.
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Additionally, this issue is waived as [Appellant] failed to
preserve this issue by objecting at trial, and [Appellant]
has not asserted that Ms. Widmark’s statement was newly
discovered evidence.
Opinion Order and Pa.R.A.P. Notice 907, 1/3/14, at 5-6.
Our review of the record supports the PCRA court’s conclusion.
Initially, Appellant does not present a layered claim of ineffectiveness
regarding trial counsel’s failure to raise an objection to the alleged improper
communication. Thus, the claim is waived. See Koehler, supra. Appellant
baldly asserts “that the encounter occurred, & that thats [sic] all the law
requires, as it is so hard to prove what was discussed, if a new trial isn’t
granted, it would be a miscarriage of justice.” Appellant’s Brief at 10.
Appellant cites no relevant case authority for his proposition. Our review of
the affidavits attached to his PCRA petition reveals, as found by the PCRA
court, that Ms. Widmark’s vague description of the encounter is supported
by hearsay, and that A.B.’s affidavit does not mention the incident. Thus,
Appellant’s first issue fails.
Appellant next claims that PCRA counsel was ineffective “in his
assessment of, when, [sic] [he] should have raised trial [counsel’s]
ineffective assistance[.]” Id. According to Appellant, PCRA counsel erred in
stating that Appellant should have raised claims of trial counsel’s
ineffectiveness on direct appeal rather than in a PCRA petition. While our
review indicates that PCRA counsel mistakenly made such a statement in his
Turner/Finley letter, PCRA counsel nevertheless explained why Appellant’s
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ineffectiveness claims were meritless. Appellant’s second issue entitles him
to no relief.
In his third issue, Appellant asserts that PCRA counsel was ineffective
in his assessment of Appellant’s claim that trial counsel should have called
an expert witness. Our standard of review is well settled:
[W]hen raising a claim of ineffectiveness for failure to call
a potential witness at trial, our Supreme Court has
instructed that the PCRA petitioner must establish that:
(1) the witness existed; (2) the witness was available to
testify for the defense; (3) counsel knew, or should have
known, of the existence of the witness; (4) the witness
was willing to testify for the defense; and (5) the absence
of the testimony of the witness was so prejudicial as to
have denied the defendant a fair trial.
Commonwealth v. Wantz, 84 A.3d 324 (Pa. Super. 2014). Within his pro
se PCRA petition, Appellant does not identify in what regard trial counsel
should have called an expert witness. In his Pa.R.A.P. 1925(b) statement,
Appellant avers that “trial counsel is not an expert in the medical field of the
development of a child as they grow and an expert in this field could have
contradicted the findings of the [Commonwealth’s] expert on this issue.”
Our review of the record reveals that the Commonwealth did not call
an expert to testify regarding child development. In rejecting Appellant’s
claim, the PCRA court discussed Appellant’s failure to call a rebuttal expert
to contradict the experts presented by the Commonwealth, who testified
how DNA evidence connected Appellant to the crimes charged. Given the
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foregoing, Appellant’s claim is inadequate and therefore waived. See
generally, In re A.B., 63 A.3d 345 (Pa. Super. 2013).
Absent waiver, Appellant has failed to meet his burden of proof
regarding this claim. Wantz, supra. According to Appellant, “[trial
counsel] could have contacted any local pediatrician to review the
photograph & evaluate whether the female depicted in the photograph was
in fact that of a minor female or an adult female, and/or if it was the
[Complainant], as a pediatrician would be an expert in the developmental
stages of a minor as they grow & who also could have testified at trial as to
the picture.” Appellant’s Brief at 12. This assertion is lacking. Appellant
fails to identify any “local pediatrician” or other expert who was available
and willing to testify regarding the characteristics of the female depicted in
the picture. More importantly, in light of the abundance of DNA evidence
linking Appellant to the crimes, as well as A.B. and the Complainant’s
identification of the individuals in the picture, Appellant utterly fails to
establish prejudice. Again, Appellant’s claim is meritless.
Appellant next claims that PCRA counsel was ineffective in his
assessment of Appellant’s claim involving trial counsel’s alleged
shortcomings regarding a plea bargain offered by the Commonwealth. The
PCRA court dismissed this claim, noting that Appellant’s “bald assertion that
[trial counsel] denied a negotiated plea without discussing it with [Appellant]
has not been developed by [Appellant] in [his] PCRA.” Opinion Order and
Pa.R.A.P. 907 Notice, 1/3/14, at 8.
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In his Turner/Finley letter, PCRA counsel explained:
From my discussion with [trial counsel], I understand
that [Appellant] chose to decline the District Attorney’s
plea offer despite [trial counsel’s] strong recommendation
that he accept it. [Appellant] cannot now claim ineffective
counsel where he had the opportunity, and advice, to
accept a plea bargain but instead chose to reject it.
Turner/Finley Letter, 10/17/013, at 3. Appellant faults PCRA counsel for
this assessment, when no evidence of record exists to support trial counsel’s
statements. Although Appellant acknowledges that he was offered a
sentence of two and one-half to five years of incarceration in return for a
guilty plea, Appellant’s Brief at 15, he otherwise fails to develop his claim.
Thus, we will not consider it further. See Commonwealth v. Tielsch, 934
A.2d 81, 93 (Pa. Super. 2007) (holding that undeveloped claims will not be
considered on appeal).
In his next issue, Appellant asserts that appellate counsel was
ineffective for failing to properly raise claims of trial counsel’s
ineffectiveness. As Appellant himself noted in his second issue, claims of
ineffectiveness are generally not raised on direct appeal. See generally
Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), and its progeny.
Thus, this issue is without merit.
In his sixth issue, Appellant repeats his claim that PCRA counsel was
ineffective in his assessment of Appellant’s allegations of trial counsel’s
ineffectiveness. As we have already determined that the record supports the
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PCRA court’s conclusions that Appellant’s claims of trial counsel’s
ineffectiveness are meritless, we need not discuss this issue further.
In his seventh issue, Appellant avers that the Turner/Finley process
is “itself ineffective, in that it denies [him] meaningful review.” Appellant’s
Brief at 18 (capitalization omitted). Because Appellant did not raise this
claim in his Pa.R.A.P. 1925(b) statement, the PCRA court did not address it.
Accordingly, Appellant is raising this issue for the first time on appeal, and it
is waived. See generally, Pa.R.A.P. 302; Commonwealth v. Rolan, 964
A.2d 398 (Pa. Super. 2008).
In his final issue, Appellant asserts that PCRA counsel was ineffective
in his assessment of the sentence imposed upon him by the trial court.
Again, Appellant failed to raise this claim in his Pa.R.A.P. 1925(b) statement,
such that it is waived. Id. To the extent that Appellant claims his sentence
is illegal because the mandatory minimum statute is “ambiguous,”
Appellant’s Brief at 20, his argument is undeveloped. Tielsch, supra.
In sum, our review of the record supports the conclusions of PCRA
counsel and the PCRA court that Appellant’s claims of prior counsels’
ineffectiveness are without merit. Thus, the PCRA court properly dismissed
Appellant’s PCRA petition and permitted PCRA counsel to withdraw. We
therefore affirm the PCRA court’s order denying Appellant post-conviction
relief.
Order affirmed.
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Judge Ott joins the disposition.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/8/2014
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