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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
RICHARD CHARLES MILLER
Appellant No. 3598 EDA 2013
Appeal from the PCRA Order November 12, 2013
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0004344-2010
BEFORE: ALLEN, J., OLSON, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED APRIL 01, 2015
Richard Charles Miller appeals from the order entered November 12,
2013, in the Lehigh County Court of Common Pleas, denying his first petition
filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et
seq. Miller seeks relief from the judgment of sentence of an aggregate 15 to
30 years’ imprisonment, imposed on November 22, 2011, following his jury
conviction of involuntary deviate sexual intercourse (IDSI), aggravated
indecent assault, indecent assault, and corruption of minors,1 for his sexual
assault of a 12-year-old boy. Contemporaneous with this appeal, counsel for
Miller has filed a petition to withdraw, and accompanying Turner/Finley2
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1
18 Pa.C.S. §§ 3123(a)(7), 3125(a)(8), 3126(a)(7) and 6301, respectively.
2
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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“no-merit” letter. For the reasons set forth below, we grant counsel’s
petition to withdraw, and affirm the order on appeal.
The PCRA court aptly summarized the trial testimony as follows:
The victim, [Z.G.], who was thirteen years old at the time
of trial, testified that [Miller] sexually assaulted him around the
time of his birthday. He explained how [Miller] used both his
finger and a “red candlestick thing” along with Vaseline, to touch
the inside of [the victim’s] butt. These actions left [the victim]
feeling “weird”, but [the victim] stated [Miller] “felt good. [The
victim] also testified that [Miller] touched him “in my private
part” with his hand.
[T.G., the victim’s] mother, recounted how she met
[Miller] when she was at a food bank with her boyfriend, Ishmael
Figueroa. Both [T.G.] and Ishmael grew comfortable with
[Miller], who reminded [T.G.] of her grandfather. As their
relationship and trust of [Miller] developed, they began allowing
[the victim] to sleep at [Miller’s] residence. These sleepovers
ended, however, when [the victim] “blurted out … [Miller]
touches me.”
[The victim’s] allegations were corroborated when
Detective Jacqueline Murray, a County Detective assigned to
investigate child physical and sexual abuse, executed a search
warrant at [Miller’s] residence on September 1, 2010. Inside a
Kitty Litter container located near [Miller’s] bed was a “red dildo
candlestick type object … various lubrication bottles and also a
clear larger size tube.”
Dr. [John] Van Brakel, who was working at the time as the
Chairman of the Department of Pediatrics at the Lehigh Valley
Hospital and with the Children’s Advocacy Center, examined
[the victim] on September 3, 2010. Dr. Van Brakel’s “open-
ended” interview and his examination of [the victim] confirmed
the details of the abuse, in spite of the “normal” physical
examination. Despite [the victim’s] background of
developmental delay and a variety of behavioral and mental
health diagnoses, Dr. Van Brakel testified that [the victim] was
cooperative and responsive to questioning. Dr. Van Brakel
explained that he would not expect to see any physical findings
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in ninety-five percent of cases, and when there are physical
findings, they are “rather superficial.”
[Miller] testified and placed the blame on the victim,
inferring that the victim enticed him. He testified that [the
victim] was “always playing with himself and being naked.” On
one occasion, [Miller] dried [the victim] off when he “came out
of the shower and he didn’t dry off.” He admitted that during
this incident, it was “a possibility” that he touched [the victim’s]
penis. On other occasions, [Miller] “had to go ahead and wipe
[the victim’s butt]” because [the victim] “insisted”. He agreed
that he thought these actions were a bad idea, but claimed [the
victim] had contact with him when [the victim] crawled into bed
naked.
PCRA Court Opinion, 1/31/2014, at 3-4 (record citations omitted). On
August 10, 2011, a jury returned a verdict of guilty on all charges. That
same day, the trial court ordered Miller to undergo an assessment by the
Sexual Offenders’ Assessment Board to determine if he was a sexually
violent predator (SVP) under the former Megan’s Law. See 42 PaC.S. §
9795.4.3
Following a hearing on November 22, 2011, the trial court determined
that Miller met the criteria for classification as an SVP. See N.T.,
11/22/2011, at 12. The court proceeded immediately to sentencing,
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3
Pennsylvania’s Megan’s Law expired on December 20, 2012, and was
replaced by the Sexual Offenders Registration and Notification Act (SORNA),
42 Pa.C.S. §§ 9799.10-9799.41. Section 9799.24 replaced Section 9795.4
with regard to an order for an SVP assessment.
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imposing an aggregate term of 15 to 30 years’ imprisonment. 4 No direct
appeal was filed.
On October 29, 2012, Miller filed a pro se PCRA petition raising, inter
alia, numerous allegations of trial counsel’s ineffectiveness. Counsel was
appointed, and filed an amended petition on March 1, 2013, asserting one
issue, trial counsel’s ineffectiveness for failing to file a direct appeal. On July
10, 2013, PCRA counsel filed a second amended petition, raising another
allegation of trial counsel’s ineffectiveness, that is, failing to cross-examine
the Commonwealth’s witness, Dr. Van Brakel, regarding his notation on an
evaluation form which listed the alleged perpetrator of the sexual abuse as
“Is[h]mael” and the address of where the incident occurred as Ishmael’s
residence. The PCRA court conducted an evidentiary hearing on September
17, 2013, which was continued until November 12, 2013. At the conclusion
of the second hearing, the PCRA court entered an order denying Miller relief.
This timely appeal followed.5
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4
Specifically, the court imposed a mandatory minimum sentence, pursuant
to 42 Pa.C.S. § 9718(a)(1), of 10 to 20 years’ imprisonment for Miller’s
conviction of IDSI, a term of 60 to 120 months for aggravated indecent
assault, a term of 12 to 36 months for indecent assault, and a term of 12 to
36 months for corruption of minors. The trial court ordered the sentences
for aggravated indecent assault, indecent assault and corruption of minors to
run concurrently to each other, but consecutively to the IDSI sentence.
5
On December 13, 2013, the PCRA court ordered Miller to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Both PCRA counsel and Miller, himself, complied with the court’s directive,
filing a counseled concise statement on January 2, 2014, and a pro se
(Footnote Continued Next Page)
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Prior to addressing the merits of this appeal, we must first consider
whether counsel has fulfilled the procedural requirements for withdrawal as
outlined in Turner/Finley:
Counsel petitioning to withdraw from PCRA representation must
… review the case zealously. Turner/Finley counsel must then
submit a “no-merit” letter to the trial court, or brief on appeal to
this Court, detailing the nature and extent of counsel’s diligent
review of the case, listing the issues which petitioner wants to
have reviewed, explaining why and how those issues lack merit,
and requesting permission to withdraw. Counsel must also send
to the petitioner: (1) a copy of the “no merit” letter/brief; (2) a
copy of counsel’s petition to withdraw; and (3) a statement
advising petitioner of the right to proceed pro se or by new
counsel.
***
[W]here counsel submits a petition and no-merit letter that …
satisfy the technical demands of Turner/Finley, the court —
trial court or this Court — must then conduct its own review of
the merits of the case. If the court agrees with counsel that the
claims are without merit, the court will permit counsel to
withdraw and deny relief.
Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citation
omitted). See also Commonwealth v. Freeland, 106 A.3d 768, 774-775
(Pa. Super. 2014).
Here, counsel has complied with the procedural aspects of
Turner/Finley by filing a “no-merit” letter, providing Miller with a copy of
_______________________
(Footnote Continued)
concise statement on January 3, 2014. On January 31, 2014, new counsel
was appointed to represent Miller in this appeal.
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that letter and the petition to withdraw, and advising Miller of his right to
proceed pro se or with private counsel. See Motion to Withdraw,
3/28/2014; “No-Merit” Letter, filed 3/28/2014. Miller filed a timely pro se
response to the “no-merit” letter on July 2, 2014.6 Therefore, we proceed to
a consideration of whether the PCRA court erred in dismissing the petition.
See Doty, supra.
When reviewing an order dismissing a PCRA petition, we must
determine whether the PCRA court’s findings of fact are supported by the
record, and whether its legal conclusions are free from error.
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “Great deference
is granted to the findings of the PCRA court, and these findings will not be
disturbed unless they have no support in the certified record.”
Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citation
omitted).
Where, as here, the claims raised on appeal challenge the
effectiveness of counsel, our review is well-settled:
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6
In his “no-merit” letter, counsel advised Miller that he could proceed pro se
or with retained counsel “[i]f the Superior Court grants” the request to
withdraw. “No-Merit” Letter, 3/28/2014, at 4. On April 11, 2014, this Court
issued a per curiam Order, specifically advising Miller that “he may file a pro
se response to counsel’s ‘no-merit’ letter or hire private counsel to do so,
within thirty (30) days of the date” the order was filed. Order, 4/11/2014.
After receiving a 60-day extension on May 20, 2014, Miller filed a timely
response on July 2, 2014.
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We begin our analysis of ineffectiveness claims with the
presumption that counsel is effective. To prevail on his
ineffectiveness claims, Appellant must plead and prove, by a
preponderance of the evidence, three elements: (1) the
underlying legal claim has arguable merit; (2) counsel had no
reasonable basis for his action or inaction; and (3) Appellant
suffered prejudice because of counsel’s action or inaction. With
regard to the second, i.e., the “reasonable basis” prong, we will
conclude that counsel’s chosen strategy lacked a reasonable
basis only if Appellant proves that “an alternative not chosen
offered a potential for success substantially greater than the
course actually pursued.” To establish the third, i.e., the
prejudice prong, Appellant must show that there is a reasonable
probability that the outcome of the proceedings would have been
different but for counsel’s action or inaction.
Commonwealth v. Spotz, 18 A.3d 244, 259-260 (Pa. 2011) (internal
citations omitted). “Failure to establish any prong of the test will defeat an
ineffectiveness claim.” Commonwealth v. Keaton, 45 A.3d 1050, 1061
(Pa. 2012) (citations omitted).
The only issue addressed in the “no-merit” letter asserts trial counsel’s
ineffectiveness for failing to cross-examine Dr. Van Brakel regarding a
notation on his evaluation form. On the form, Dr. Van Brakel listed the
“Name of Alleged Perpetrator” as “Is[h]mael” and the “Address of
Occurrence” as Ishmael’s address. Second Amended Petition for Post
Conviction Relief, 7/10/2013, at Exhibit A (“Child Physical/Sexual Abuse
Evaluation Form, dated 9/3/2010). Miller argues counsel’s failure to cross-
examine Dr. Van Brakel about this blatant inconsistency constituted
ineffective assistance of counsel.
After a review of the certified record, including the transcripts of both
PCRA hearings, the parties’ filings, and the relevant case law, we conclude
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the PCRA court thoroughly addresses and properly disposes of this claim in
its opinion. See PCRA Court Opinion, 1/31/2014, at 5-8 (finding trial
counsel was not ineffective because (1) counsel had a “reasonable strategic
basis for not cross-examining Dr. Van Brakel regarding the clerical error”
since Ishmael was never a suspect, and Miller’s defense was that he was
“enticed” by the victim; and (2) Miller was not prejudiced by counsel’s
actions because Dr. Van Brakel testified (a) the victim “did not provide him
with the information that made its way on the form,” (b) “[h]e did not recall
where he received that information;” (c) “he simply miscopied it from his
own notes;” and (d) he “made a correction in the original chart, but not until
after copies had already been circulated to counsel.”). Accordingly, we rest
upon its well-reasoned basis.
In his response to PCRA counsel’s “no-merit” letter, Miller raises four
additional claims for our review. First, he asserts the November 12, 2013,
PCRA hearing “was meaningless as to aid [him] in developing his claims”
because Dr. Van Brakel was permitted to testify over the telephone.
Appellant’s Response to Counsel[’s] Petition to Withdraw Pursuant to This
Court’s April 14, 2014 Order, 7/2/2014, at unnumbered 1. Miller provides
no explanation, aside from his bald allegation, of how he was prejudiced by
Dr. Van Brakel’s remote testimony. Indeed, PCRA counsel had a full
opportunity to cross-examine Dr. Van Brakel during the hearing. See N.T.,
11/12/2013, at 13-18. Therefore, no relief is warranted on this claim.
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Miller also asserts the ineffectiveness of PCRA counsel for failing to (1)
contact and/or interview a private investigator (PI) Miller had hired after his
trial; (2) obtain “the video tapes” from his apartment complex; and (3)
assert trial counsel’s ineffectiveness for failing to call and/or interview three
witnesses, and for failing to have his personal computer and DVD’s/CD’s
“forensically diagnosed.” Appellant’s Response to Counsel[’s] Petition to
Withdraw Pursuant to This Court’s April 14, 2014 Order, 7/2/2014, at
unnumbered 2-3. Preliminarily, we note Miller does not even attempt to
demonstrate how these allegations meet the three-prong test for
ineffectiveness claims. For this reason alone, these issues may be deemed
waived. See Commonwealth v. Spotz, 896 A.2d 1191, 1250 (2006)
(boilerplate, underdeveloped claims of ineffectiveness waives claims for
review; “Claims of ineffective assistance of counsel are not self-proving[.]”).
Nevertheless, even if we were to consider Miller’s claims, we would conclude
that Miller has failed to demonstrate how he was prejudiced by prior
counsel’s omissions.
First, Miller asserts PCRA counsel’s ineffectiveness for failing to
interview the PI he hired after his trial. Miller claims the PI “would have
given his findings that Is[h]mael had outstanding-warrants in New York
(charges unknown), [and] that the alleged victim was in Kids Peace, a
delinquent child’s home, for victimizing 6-year-olds when the victim was ten
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years old.”7 Appellant’s Response to Counsel[’s] Petition to Withdraw
Pursuant to This Court’s April 14, 2014 Order, 7/2/2014, at unnumbered 2.
However, even if the PI’s findings were correct, the fact that Ishmael may
have had outstanding warrants for unknown charges in another
jurisdiction, or that the victim may have victimized a younger child in the
past would not have been admissible at trial. See Pa.R.E. 404(b)(1)
(“Evidence of a crime, wrong, or other act is not admissible to prove a
person's character in order to show that on a particular occasion the person
acted in accordance with the character.”); Pa.R.E. 608(b)(1) (“[T]he
character of a witness for truthfulness may not be attacked … by cross-
examination or extrinsic evidence concerning specific instances of the
witness’ conduct[.]”); 42 Pa.C.S. § 3104(a) (“Evidence of specific instances
of the alleged victim’s past sexual conduct … shall not be admissible in
prosecutions” for sexual offenses). Accordingly, Miller cannot demonstrate
he was prejudiced by counsel’s omission and no relief is warranted on this
claim.
Miller also contends PCRA counsel should have obtained the “video
tapes from [his] high-rise” because “these tapes would prove that [he is]
innocent beyond any reasonable doubt.” Appellant’s Response to
Counsel[’s] Petition to Withdraw Pursuant to This Court’s April 14, 2014
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7
We note that Ishmael testified for the Commonwealth at Miller’s trial.
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Order, 7/2/2014, at unnumbered 3. However, Miller does not explain what
he expected to see on the videotapes, and how that information would help
prove his innocence.8 Thus, again, no relief is warranted.
With respect to his allegations of trial counsel’s ineffectiveness, Miller
also fails to demonstrate prejudice. While Miller contends three purported
witnesses “accompanied the complainant to the accused (sic) apartment
during one of the alleged incidents[,]”9 he fails to state what their proposed
testimony would be and how it would have supported his defense at trial.
See Commonwealth v. Pander, 100 A.3d 626, 639 (Pa. Super. 2014) (en
banc) (In order to demonstrate ineffectiveness for failing to interview or
present a witness, appellant must show prejudice), appeal denied, 2015 WL
669844 (Pa. February 4, 2015).
Further, with regard to the computer, DVD’s and CD’s seized from his
apartment, Miller ignores the testimony of Detective Murray that the
Commonwealth did conduct “a full examination on the computer and discs,
and there was nothing found.” N.T., 8/10/2011, at 21. Miller does not
explain what exculpatory evidence he believed would be found on the
computer or discs had trial counsel sought to have the items “forensically
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8
We note that the sexual assault occurred inside Miller’s apartment, not
in the hallway or lobby of his “high rise.”
9
Appellant’s Response to Counsel[’s] Petition to Withdraw Pursuant to This
Court’s April 14, 2014 Order, 7/2/2014, at unnumbered 3.
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diagnosed.” Appellant’s Response to Counsel[’s] Petition to Withdraw
Pursuant to This Court’s April 14, 2014 Order, 7/2/2014, at unnumbered 3.
Accordingly, these claims, too, are meritless.
As mandated by law, we have independently reviewed the record and
agree with counsel that the current appeal has no merit.10 See Doty,
supra, 48 A.3d at 457. Therefore, we affirm the order dismissing Miller’s
petition for PCRA relief, and grant counsel’s petition to withdraw.
Order affirmed. Application for leave to withdraw as counsel granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/1/2015
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10
We note the 10-year mandatory minimum sentencing provision in 42
Pa.C.S. § 9718(a)(1), imposed for Miller’s conviction of IDSI, has been found
to be unconstitutional in light of the United States Supreme Court’s decision
in Alleyne v. United States, 133 S.Ct. 2151 (U.S. 2013). See
Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super. 2014). However, an
en banc panel of this Court in Commonwealth v. Newman, 99 A.3d 86
(Pa. Super. 2014) (en banc), determined that the Alleyne decision had only
limited retroactivity, that is, it applied only to criminal cases that were still
pending on direct review at the time it was filed. Id. at 90. In the present
case, Miller’s judgment of sentence became final on December 22, 2011, 30
days after he was sentenced and he failed to file a direct appeal. Because
Alleyne was not decided until June 17, 2013, it does not provide Miller with
the opportunity for relief.
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