Com. v. Melo, A.

J-S73041-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : ALEXANDER MELO, : : Appellant : No. 2161 MDA 2013 Appeal from the PCRA Order entered on October 31, 2013 in the Court of Common Pleas of York County, Criminal Division, No. CP-67-CR-0005500-2009 BEFORE: BOWES, WECHT and MUSMANNO, JJ MEMORANDUM BY MUSMANNO, J.: FILED JANUARY 22, 2015 Alexander Melo (“Melo”), pro se, 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. We affirm. In 2005, Melo raped the thirteen-year-old daughter of his live-in girlfriend (hereinafter “the victim”). Several years later, when the victim was seventeen years old, her father questioned her about the rape, of which he had recently learned upon reading about the incident in the victim’s notebook/diary (hereinafter “the notebook”).1 Upon being questioned by the police, the victim recounted the rape to them and identified Melo as the perpetrator. In August 2009, the police charged Melo with rape, indecent 1 The notebook was not offered into evidence at trial, as the victim and her father stated that it was lost during a move. J-S73041-14 assault, and related offenses (collectively referred to as “the charged offenses”). The matter proceeded to a jury trial, at which Melo was represented by Joseph Kalasnik, Esquire (hereinafter “Attorney Kalasnik” or “trial counsel”). At the close of trial, the jury found Melo guilty of the charged offenses. Following trial, Melo retained new counsel, Matthew R. Gover, Esquire (“Attorney Gover”), and the trial court permitted Attorney Kalasnik to withdraw as counsel. The trial court subsequently sentenced Melo to serve an aggregate term of five to ten years in prison. Attorney Gover timely filed a Notice of Appeal from Melo’s judgment of sentence. On appeal, this Court affirmed the judgment of sentence, after which the Supreme Court of Pennsylvania denied allowance of appeal. See Commonwealth v. Melo, 31 A.3d 747 (Pa. Super. 2011) (unpublished memorandum), appeal denied, 30 A.3d 1192 (Pa. 2011). In June 2012, Melo timely filed a pro se PCRA Petition. Following the filing of the PCRA Petition, the PCRA court appointed Melo counsel, Seamus Dubbs, Esquire (“PCRA counsel”), who filed an Amended PCRA Petition. Following a hearing held on June 27, 2013 (hereinafter referred to as “the PCRA hearing”), the PCRA court entered an Order on October 31, 2013, dismissing Melo’s PCRA Petition. In response, PCRA counsel timely filed a Notice of Appeal and court-ordered Pa.R.A.P. 1925(b) Concise Statement of Errors Complained of on Appeal. -2- J-S73041-14 In April 2014, Melo filed with this Court an Application requesting permission to proceed pro se on appeal, and for a remand for the PCRA court to conduct a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). This Court granted Melo’s Application. After conducting a hearing (hereinafter referred to as “the Grazier hearing”), the PCRA court granted Melo permission to proceed pro se, finding that his decision was made knowingly, intelligently and voluntarily. On appeal, Melo presents the following issues for our review: I. Was [Melo] denied due process of law during collateral review of the judgment of sentence? II. Did the [PCRA] court [] err[] when it found [that] trial counsel [was] not ineffective for failing to request a missing document instruction? III. Did the [PCRA] court [] err[] when it found [that] trial counsel [was] not ineffective [for] failing to object to prejudicial testimony? IV. Did the [PCRA] court [] err[] when it found [that] trial counsel [was] not ineffective [for] failing to request [a jury] instruction on prior inconsistent statements? V. Was [Melo] denied due process when the [trial] court [] held [that Melo’s] claim [concerning the lack of a] prior bad acts instruction [was] waived? Brief for Appellant at 4 (capitalization omitted). All of Melo’s issues raise claims of ineffectiveness of counsel (although he does not identify all of them as such in his Statement of Questions Presented). The applicable standards of review regarding the dismissal of a PCRA petition and ineffectiveness claims are as follows: -3- J-S73041-14 We must examine whether the record supports the PCRA court’s determination, and whether the PCRA court’s determination is free of legal error. The PCRA court’s findings will not be disturbed unless there is no support for the findings in the certified record. *** It is well-established that counsel is presumed to have provided effective representation unless the PCRA petitioner pleads and proves all of the following: (1) the underlying legal claim is of arguable merit; (2) counsel’s action or inaction lacked any objectively reasonable basis designed to effectuate his client’s interest; and (3) prejudice, to the effect that there was a reasonable probability of a different outcome if not for counsel’s error. The PCRA court may deny an ineffectiveness claim if the petitioner’s evidence fails to meet a single one of these prongs. Moreover, a PCRA petitioner bears the burden of demonstrating counsel’s ineffectiveness. Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) (citations omitted). In his first issue, Melo essentially challenges the effectiveness of his PCRA counsel. See Brief for Appellant at 13-15, 27.2 2 In connection with his claim of PCRA counsel’s ineffectiveness, Melo also argues that, after he had received a copy of the record following the Grazier hearing, he discovered additional claims of trial counsel’s ineffectiveness that PCRA counsel should have raised and preserved for appeal. See Brief for Appellant at 15, 17-27. For the reasons discussed below, we will not address these additional claims in this appeal. However, we observe that, at the PCRA hearing, Melo stated that (1) he wished to proceed with PCRA counsel as his attorney and withdraw his request to proceed pro se; (2) he was satisfied with the four allegations of trial counsel’s ineffectiveness that PCRA counsel raised in the Amended PCRA Petition; and (3) there were no additional issues that Melo wanted to pursue at that time. See N.T., 6/27/13, at 4-5, 13-17; see also id. at 13-16 (wherein PCRA counsel colloquied Melo about his additional pro se allegations of trial counsel’s ineffectiveness and why such claims were not viable). -4- J-S73041-14 It is well established that “claims of PCRA counsel’s ineffectiveness may not be raised for the first time on appeal.” Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) (en banc) (collecting cases); Commonwealth v. Ford, 44 A.3d 1190, 1200 (Pa. Super. 2012) (stating that “issues of PCRA counsel effectiveness must be raised in a serial PCRA petition or in response to a notice of dismissal before the PCRA court.”); see also Pa.R.A.P. 302(a) (stating that a claim cannot be raised for the first time on appeal). In the instant case, Melo never raised his claim of PCRA counsel’s ineffectiveness prior to the dismissal of his PCRA Petition and PCRA counsel’s filing of a Notice of Appeal and Rule 1925(b) Concise Statement on Melo’s behalf.3 See Ford, 44 A.3d at 1200 (holding that “absent recognition of a constitutional right to effective collateral review counsel, claims of PCRA counsel ineffectiveness cannot be raised for the first time after a notice of appeal has been taken from the underlying PCRA matter.”). Accordingly, because Melo raised this claim for the first time on appeal, we may not now 3 Though Melo challenged PCRA counsel’s representation at the Grazier hearing, arguing, inter alia, that counsel did not adequately communicate with him and failed to provide him with a copy of the record, same does not adequately preserve his instant claims of PCRA counsel’s ineffectiveness, which he raised for the first time in this appeal. See Henkel, supra; Ford, supra. Additionally, PCRA counsel stated at the Grazier hearing that he was actively working on Melo’s appellate brief. -5- J-S73041-14 address it. See Henkel, supra; Ford, supra.4 Melo next argues that the PCRA court erred by not ruling that trial counsel was ineffective for failing to request a missing evidence jury instruction concerning the notebook. See Brief for Appellant at 28-29. Specifically, Melo asserts as follows: The alleged notebook was central to the [p]rosecutor’s case in this matter. [] [T]he only individuals who seen [sic] the entry [in the notebook] alleging the incident w[ere the victim and her father]. [] [T]his [was] a circumstantial case resting on the credibility of the evidence presented. Not to request a missing document instruction under these circumstances had no reasonable basis to effectuate [Melo’s] best interest. Id. at 28 (citation omitted). According to Melo, there is a reasonable probability that the jury would have rendered a different verdict if the trial court had issued a missing document instruction. See id. at 29. In its Pa.R.A.P. Opinion, the PCRA court addressed this claim and determined that trial counsel was not ineffective in this regard. See PCRA Court Opinion, 10/31/13, at 3-5. We agree with the PCRA court’s sound rationale and determination, and therefore affirm on this basis with regard to this issue. See id. 4 Though we express no opinion as to the merits of Melo’s claim of PCRA counsel’s ineffectiveness, Melo retains the right to raise this claim in a subsequent PCRA Petition. See Commonwealth v. Jette, 23 A.3d 1032, 1044 n.14 (Pa. 2011) (stating that “[w]hile difficult, the filing of a subsequent timely PCRA petition [alleging ineffectiveness of PCRA counsel] is possible, and in situations where an exception pursuant to [42 Pa.C.S.A.] § 9545(b)(1)(i-iii) can be established[,] a second [PCRA] petition filed beyond the one-year time bar may be pursued.”). -6- J-S73041-14 In his third issue, Melo contends that trial counsel was ineffective because he unreasonably failed to object to the testimony of the victim’s mother, Christian F., concerning alleged incidents of physical abuse that Melo had committed against her while they were in a romantic relationship, despite the fact that the trial court had prohibited any prior bad act testimony. See Brief for Appellant at 30, 32; see also id. at 32 (arguing that “[t]o allow this prejudicial evidence to go unchallenged was to allow a bias and ill will to be created in the minds of the jury against [Melo,] and [] result[ed] in his wrongful conviction of crimes he is actually innocent of ….”). The PCRA court addressed this claim in its Opinion and stated its reasons for determining that trial counsel was not ineffective. See PCRA Court Opinion, 10/31/13, at 5-7. We agree with the PCRA court’s rationale and determination, and therefore affirm on this basis concerning Melo’s instant ineffectiveness challenge. See id. Next, Melo contends that the PCRA court erred by failing to find that trial counsel was ineffective for not requesting a jury instruction on the victim’s prior inconsistent statements. See Brief for Appellant at 33-35; see also id. at 33-34 (setting forth the various statements of the victim that, Melo contends, are inconsistent). In its Opinion, the PCRA court addressed this ineffectiveness challenge and stated its reasons for rejecting it. See PCRA Court Opinion, 10/31/13, at 10-12. We agree with the PCRA court’s rationale and determination, -7- J-S73041-14 which is supported by the record, and affirm on this basis concerning Melo’s ineffectiveness challenge. See id. Regarding Melo’s final issue, he essentially raises an ineffectiveness of counsel challenge concerning his direct appeal counsel’s (Attorney Gover), failure to challenge the trial court’s alleged error in failing to issue a jury instruction on prior bad acts under Pa.R.E. 404(b). See Brief for Appellant at 36.5 The PCRA court addressed this claim in its Opinion and properly concluded that Attorney Gover was not ineffective in this regard. See PCRA Court Opinion, 10/31/13, at 7-9.6 Our review confirms that the PCRA court’s persuasive rationale is supported by the law and the record, and we therefore affirm on this basis in rejecting Melo’s final issue on appeal. See id. Accordingly, because we conclude that the PCRA court neither abused its discretion nor committed an error of law by dismissing Melo’s first PCRA Petition, we affirm the Order on appeal. 5 To the extent that Melo argues that “the court below held [that Melo’s] claim [concerning the lack of a] prior bad acts instruction [was] waived[,]” Brief for Appellant at 36 (capitalization omitted), this assertion is factually inaccurate. 6 Attorney Gover did not testify at the PCRA hearing because he passed away prior to the hearing. -8- J-S73041-14 Order affirmed. Wecht, J., joins the memorandum. Bowes, J., concurs in the result. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 1/22/2015 -9- J - :5 7·3 0 !-I ! - ! Lf Circulated 12/18/2014 12:09 PM IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA CRIMINAL DIVISION COMMONWEALTH NO. CP-67-CR-0005500-2009 v. ALEXANDER MELO, Defendant COUNSEL,0F COUNSEL.0F :! RECORD: -"' . .. ~ Stephanie Lombardo, Esquire Seamus Dubbs, Esquire :. "- .1. :~:: ':.1 ';.I ~- ...... t:; ~''U' .-,,- I.Y ~..i J.. f, :::5 .J'-'> • . ,0 Counse! Counsel for the Commonwealth Counsel for the Defendant :; ;:~.:.. .. (.) :::t:u 0.:: '-' SUPPORT OF ORDER OPINION IN SUPPORT , ';':":1--1 _ "._ c':: !"LL ~lt... 00 ::a: ::x:: :a-: "" co::: 0<>: 'ClWJ. Cl "-' peRA Petition. On June 27, 2013, a hearing was held on the Defendant's Amended PCRA - I --I U (.) Having considered the evidence and argument offered on June 27,2013, 27, 2013, and having considered applicable case law, this Court has DENIED Defendant's Amended PCRA Petition. The Court now issues this Opinion in support of that Order. 1. PCRA Discussion As stated in Strickland v. Washington, "the benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced ajust result." 466 U.S. 668, 686 (1984). Pennsylvania codified this principle in the Post-Conviction Relief "[i]neffective assistance of counsel which, in Act, which provides post-conviction relief for "riJneffective Circulated 12/18/2014 12:09 PM I the circumstances the circumstancesofthe of the particular particularcase, case, so so undermined undermined the the truth-determining truth-determining process process that thatno no reliable adjudication reliable adjudicationof ofguilt guilt or or innocence innocence could could have have taken taken place." place." 42 Pa.C.S.A. §§ 42 Pa.C.S.A, 9543(a)(2)(ii). Pennsylvania' 9S43(a)(2)(ii). Pennsylvania's Supreme Court 5 Supreme Court has has interpreted interpreted this this to to mean mean that that to to show show ineffective assistance ineffective assistance of ofcounsel, counsel, aa petitioner petitioner must must show show that: that: -' (1) (1) the the claim claim underlying underlying the the ineffectiveness ineffectiveness claim claim has has arguable arguable merit; merit; (2) (2) counsel's actions counsel's actions lacked lacked any any reasonable reasonable basis; basis; and and (3) (3) counsel's counsel's actions actions resulted in resulted in prejudice prejudice to to petitioner. petitioner. Commonwealth v.v. Cox, Commonwealth Cox, 983 983 A2d A.2d 666, 666, 678 678 (Pa. (Pa. 2009) 2009) (citing Commonwealth v.v. Collins, (citing Commonwealth Collins, 957 957 237,244 A.2d 237, 244 (Pa. 2008)). "A chosen strategy will not be found to have lacked a reasonable basis unless it is proven 'that an alternative not chosen offered a potential for success pursued. '" 983 A2d substantially greater than the course actually pursued.'" A.2d 666, 678 (Pa. 2009) (quoting Commonwealth v. Williams, Willioms, 899 A.2d A2d 1060, 1064 (Pa. 2006) (quoting Commonwealth v. Howard, 719 A.2d 233,237 233, 237 (Pa. 1998))). In Commonwealth v. Pierce, the Pennsylvania Supreme Court wrote that, that, "(p]rejudice "[p]rejudice in the context of the context of ineffective ineffective assistance assistance of of counsel counsel means means demonstrating that that there there is is aa reasonable reasonable probability probability that, that, but but for for counsel's counsel's error, error, the the outcome outcome of ofthe the proceeding proceeding would would have have been been different." different." 786 786 A.2d A,2d 203,213 203, 213 (Pa. (Pa. 2001) (citing Commonwealth 2001) (citing Commonwealth v.v. Kimball, Kimball, 724 724 A.2d A.2d 326, 326, 332 332 (Pa. (Pa. 1999)). 1999». Lastly, Lastly, "the "the law law presumes presumes that that counsel counsel was was effective effective and and the burden of the burden ofproving proving that that this this presumption presumption isis false false rests rests with with the the petitioner." petitioner." 983 983 A.2d 666, 67,8 A,2d 666, 67,8 (Pa. (Pa. 2009) (citing Commonwealth 2009) (citing Commonwealth v,v. Basemore, Basemore, 744 744 A.2d A2d 717, 717, 728 728 (Pa. (Pa. 2000)). 2000». A. A. Missing A1issingDocument DocumentInstruction Instruction 22 Circulated 12/18/2014 12:09 PM The first issue raised by the Defendant is whether Attorney Kalasnik was ineffective \vhen he did not request the missing document instruction for a notebook referenced in when testimony but lost prior to trial. At the June 27, 2013 hearing, the Defendant opined that there was no missing 27,2013 document instruction; however, the Defendant went on to testify that he remembered Attorney Kalasnik crossing witnesses about the notebook and calling the notebook's existence into doubt during closing. In describing thc the notebook, Attorney Kalasnik said that it supposedly claimed relevant information and that, while the notebook was never produced, the victim's father and friends were supposed to have knowledge of the notebook and they testified. Attorney Kalasnik generally recalled inconsistency between witnesses as to what information the notebook contained and he was also satisfied with how he addressed the infonnation notebook on cross. Attorney Kalasnik also testified on direct that he does not believe a missing document instruction would have helped because the defense was unable to produce sufficient reasons for the jury to disbelieve the accuser. However, on cross, Attorney Kalasnik stated that it could have helped if a missing document instruction were to have been glven. given. It seems axiomatic that the claim underlying the ineffectiveness claim has arguable merit as to a missing document instruction because the document and its absence seem to have instigated a lot of questioning and closing remarks. The second prong of the ineffectiveness standard, whether counsel's actions lacked any reasonable basis, is less sure. J3 Circulated 12/18/2014 12:09 PM determine whether "'an We are instructed to detennine '''an alternative not chosen offered a potential for qi3:, A.~d. (,c,c, q£r3 A-~,l G,G,(, success substantially greater than the course actually pursued. pursued.'"", Cox"at 678. Here, would having had the missing document instruction have proven substantially more successful than not having the jury hear such an instruction? Attorney Kalasnik testified that neither he nor' nor the Defendant could produce sufficient evidence to discredit the accuser and that fact, not a .• _ • dQL"",~~f dQL