Com. v. Zerby, J., III

J-S53017-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA

v.

JAMES WALTER ZERBY, III

Appellant No. 68 MDA 2015

Appeal from the Order Entered September 25, 2013
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0003196-2012

BEFORE: DONOHUE, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.: FILED SEPTEMBER 09, 2015

James Walter Zerby, III, appeals from the judgment of sentence

imposed on September 25, 2013, in the Court of Common Pleas of Luzerne

County, as made final by the order of October 15, 2014, which designated

him a sexually violent predator (SVP). On September 25, 2013, Zerby

entered a no contest plea to one count of unlawful contact with a minor 1

pursuant to a plea agreement, and the trial court immediately sentenced

him to three to ten years’ incarceration in accordance with the plea

agreement.2 An SVP hearing was held on March 10, 2014, and September

____________________________________________

1
18 Pa.C.S. § 6318(a)(1).
2
Zerby waived his right to have the SVP hearing held prior to sentencing.
See N.T., 9/25/2013, at 3–4.
J-S53017-15

22, 2014. By order entered October 15, 2014, the trial court determined

Zerby was an SVP. The sole issue involved in this appeal is a challenge to

the SVP determination. Concomittantly, counsel has filed a petition seeking

leave to withdraw from representation and brief pursuant to Anders v.

California, 386 U.S. 738 (1967). Based upon the following, we affirm on

the sound basis of the trial court opinion, and grant the petition for leave to

withdraw.

Prior to addressing the merits of issues raised on appeal, we must

review counsel’s petition to withdraw. Commonwealth v. Cartrette, 83

A.3d 1030, 1032 (Pa. Super. 2013) (en banc) (“Initially, we note that we

may not address the merits of the issue raised on appeal without first

reviewing the request to withdraw.”). The procedural requirements for

withdrawal require counsel to:

1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the brief to the defendant; and 3) advise the defendant that
he or she has the right to retain private counsel or raise
additional arguments that the defendant deems worthy of the
court's attention.

Id. at 1032.3 Further, in Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009), the Pennsylvania Supreme Court addressed the second requirement

____________________________________________

3
Zerby has not filed a response to counsel’s Anders brief and petition to
withdraw.

-2-
J-S53017-15

of Anders — the contents of the Anders brief — and held that the brief

must:

(1) provide a summary of the procedural history and facts, with
citations to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set forth
counsel’s conclusion that the appeal is frivolous; and (4) state
counsel’s reasons for concluding that the appeal is frivolous.
Counsel should articulate the relevant facts of record, controlling
case law, and/or statutes on point that have led to the
conclusion that the appeal is frivolous.

Cartrette, supra at 1032, citing Santiago, supra at 361.

Our review confirms counsel has complied with the requirements of

Anders and Santiago. Furthermore, counsel has attached to the petition a

copy of the letter she provided to Zerby, advising him of his rights to

proceed pro se or retain a private attorney, and states counsel’s intention to

petition the court to withdraw. See Commonwealth v. Millisock, 873

A.2d 748, 752 (Pa. Super. 2005) (“[T]he prudent course is to require

counsel henceforth to attach to their petition to withdraw a copy of the letter

sent to their client advising him or her of their rights.”). Therefore, we now

proceed “to make a full examination of the proceedings and make an

independent judgment to decide whether the appeal is in fact wholly

frivolous.” Commonwealth v. Flowers, 113 A.3d 1246, 1248 (Pa. Super.

2015). In so doing, we review not only the issues identified by appointed

counsel in the Anders brief, but examine all of the proceedings to “make

certain that appointed counsel has not overlooked the existence of

potentially non-frivolous issues.” Id. at 1249.

-3-
J-S53017-15

The issue discussed in the Anders brief is

[w]hether the trial court erred by finding that Mr. Zerby is a
sexually violent predator where the Commonwealth failed to
present clear and convincing evidence sufficient to demonstrate
that he is likely to engage in predatory sexually violent offenses?

Anders Brief at 2.4 With regard to this issue, we note:

In order to affirm an SVP designation, we, as a reviewing court,
must be able to conclude that the fact-finder found clear and
convincing evidence that the individual is a[n SVP]. As with any
sufficiency of the evidence claim, we view all evidence and
reasonable inferences therefrom in the light most favorable to
the Commonwealth. We will reverse a trial court’s determination
of SVP status only if the Commonwealth has not presented clear
and convincing evidence that each element of the statute has
been satisfied.

Commonwealth v. Hollingshead, 111 A.3d 186, 189 (Pa. Super. 2015)

(citation omitted).

The trial court has authored a thorough, well-reasoned opinion in

which the court sets forth the relevant case law and statute, discusses the
____________________________________________

4
Zerby timely complied with the order of the trial court to file a statement of
errors complained of on appeal, pursuant to Pa. R.A.P. 1925(b), identifying
the following issue:

Whether the trial court erred by finding that Mr. Zerby is a
sexually violent predator where the Commonwealth failed to
present clear and convincing evidence sufficient to demonstrate
that he is likely to engage in predatory sexually violent offenses?
Specifically, the Commonwealth failed to present evidence
sufficient to establish Mr. Zerby’s “likelihood of re-offense” and
“mental abnormality” from which Mr. Zerby suffers.

Zerby’s Concise Statement of Errors Complained of on Appeal Purusant to
Pa.R.A.P. 1925(b).

-4-
J-S53017-15

Commonwealth’s evidence, specifically, the expert testimony presented by

the Commonwealth, recounts the testimony offered by Zerby’s expert, and

concludes Zerby’s claim lacks merit. See Trial Court Opinion, 1/8/2015, at

6–12 (finding, inter alia, (1) Commonwealth’s expert’s opinion that Zerby

met the criteria for a SVP took into consideration statutory factors and

factual context, specifically: that victim was Zerby’s step-daughter, and she

indicated he sexually abused her for three years, beginning at age 7; that

the age of the victim while the offenses occurred, seven through ten, when

she was involved in an incestuous relationship with Zerby, is consistent with

the paraphilic interest of the offender in nonconsenting individuals, and that

condition goes to the risk of reoffending; that Zerby met the diagnostic

criteria of pedophilia; that this condition overrode Zerby’s control, and there

appeared to be a likelihood of re-offense; that Zerby’s relationship enabled

him to be in a caretaking and babysitting activity to eventually groom and

then sexually molest the child over three years; that Zerby’s behavior

escalated over time with regard to different sexual activities; and that Zerby

utilized his relationship with the victim to maintain her secrecy, (2) after

consideration of the parties’ respective experts, within the context of the

record created during the guilty plea proceeding to present, the

Commonwealth established by clear and convincing evidence that Zerby is

an SVP; (3) in assessing the expert testimony, the Commonwealth’s expert

was frank and credible, and his conclusions regarding the relevant criteria

were persuasive and supported by the record; Zerby’s expert was

-5-
J-S53017-15

unpersuasive in his use of a statistical tool in arriving at the conclusion that

Zerby would not be likely to reoffend.) We agree with the sound reasoning

of the trial court.

Based on our review of the record, we conclude that a challenge to the

the SVP determination in this case would be frivolous. Additionally, we

discern no other potentially non-frivolous issues. Accordingly, we affirm and

grant counsel’s petition to withdraw.

Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/9/2015

-6-
 Circulated 08/18/2015 01:42 PM

IN THE COURT OF COMMON PLEAS
OF LUZERNE COUNTY
-----
COMMONWEALTH OF PENNSYLVANIA CRIMINAL DIVISION- LAW

vs.

-JAMES WALTERZERBYIII,

Defendant No. 3196 OF 2012

/)/11 ORDER
AND NOW,.this ~ day of January 2015, it is hereby ORDERED,

ADJUDGED AND DECREED:

1. The Clerk of Courts of Luzerne County is ORDERED AND DIRECTED to

serve a copy of this Order and Opinion on all Counsel of Record

pursuant to Pennsylvania Rule of Criminal Procedure No. 114.

2. The Clerk of Courts of Luzerne County is ORDERED AND DIRECTED to

docket this Order and Opinion and to forthwith transmit same to the

Superior Court of Pennsylvania.

BY THE COURT:

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 Circulated 08/18/2015 01:42 PM

IN THE COURT OF COMMON PLEAS
OF LUZERNE COUNTY ~~~~~~~~~~·

COMMONWEALTH OF PENNSYLVANIA CRIMINAL DIVISION- LAW

vs.

JAMES WALTER ZERBY JII,

Defendant No. 3196 OF 2012

OPINION

Procedural History

On September 2, 2013, James Walter Zerby JII, hereinafter known was

Defendant, pied no contest to unlawful contact with a minor and as a result, this

Court requested the Pennsylvania Sexual Off ender Assessment Board to do an

evaluation and assessment,

After receipt of Pennsylvania Sexual Offender Assessment Board report sent

March 15, 2013, the Commonwealth praeclped this Court to certify the Defendant a

sexually violent predator (SVP).

A hearing was held on March 10, 2011 at which time testimony was taken

from the Commonwealth's expert, David Humphries, a licensed clinical social

worker. Testimony was taken of the Defendant's expert, Dr. Timothy Foley on

September 22, 2014.l

On October 15, 2014, the undersigned entered an Order finding by clear and

convincing evidence the Defendant was a Sexually Violent Predator.

I The Court notes that the Defendant necessarily changed counsel in that his first counsel's license

has been suspended and that necessitated several continuances until the second part o( the hearing
could take place.

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An appeal was filed on November 14, 2011 and an Order issued pursuant to

P.R.A.P. 1925 (b) on November J. 7, 2014. Thereafter, the concise statement was

subsequently received on December 4, 201.'1-, with the Commonwealth's response on

December JS, 2014 .
.,
Appellate counsel's allegation of error posits the following:

Whether the trial court erred by finding that Mr. Zerby is a sexually
violent predator where the Commonwealth failed to present clear and
convincing evidence sufficient to demonstrate that he is likely to
engage in predatory sexually violent offenses. Specifically, the
Commonwealth failed to present evidence sufficient to establish Mr.
Zerby "likelihood of re-offense" and any "mental abnormality" from
which Mr. Zerby suffers.

In Comrnonwes1lth v. Mart7,, 926 A.2d 514 (Pa. Super. 2007) Superior Court

examined appellant's argument that the trial court erred in concluding he was a

sexually violent predator where the determination was predicated upon expert

conclusions based on facts not in the record or blatantly incorrect. The Superior

Court opinion sets forth a template or framework within which sufficiency

arguments in this context must be considered. We have inserted in brackets the

most recent numbering of the applicable statutory provisions for ease of reference.

In reviewing the sufficiency of evidence regarding the determination
of SVP status, we will reverse the trial court only if the
Commonwealth has not presented clear and convincing evidence
sufficient to enable the trial court to determine that each element
required by the Commonwealth has been satisfied. Commonwealth v,
Haughwout, 837 A.2d 480, 484 (Pa. Super. 2003)

We conclude that ample evidence was presented by the
Commonwealth to prove Appellant is an SVP. Under Pennsylvania's
Megan's Law III, 42 Pa. C.S.A [§9799.10-.4-0], an SVP is defined as "a
person who has been convicted of a sexually violent offense[ ... ) and
who is determined to be a sexually violent predator under section
[9799.24] [ ... ] due to mental abnormality or personality disorder that
makes
,, the person likely to engage in predatory sexually violent

3
 Circulated 08/18/2015 01:42 PM

offenses." 42 Pa. C.SA [§9799.12], Definitions. Mental abnormality is
"[a] congenital or acquired condition of a person that affects the
emotional or volitional capacity of the person to the commission of
criminal sexual acts to a degree that makes the person a menace to the
health and safety of other persons." Id. Moreover, predatory is defined
as "[a]n act directed at a stranger or at a person with whom a
relationship has been established or promoted for the primary
purpose of victimization." Id.

The statute specifically details the process by which an individual is
determined to be an SVP. After an individual is convicted of an
enumerated offense under section [9799.14], Registration, the trial
court must order the State Sexual Offenders Assessment Board
("Board") to determine whether the individual qualifies for SVP
classification. See 12 Pa. C.S./t [9799.24], Assessment. An
administrative officer of the Board then assigns one of its members to
conduct an assessment. The determination of whether an individual
should be classified as an SVP is governed by examination of the
following factors:

(l) '· Facts of the current offense, including:

(i) Whether the offense involved multiple victims.

(ii) Whether the individual exceeded the means necessary
to achieve the offense.

(iii) The nature of the sexual con ta cl with the victim.

(iv) Relationship of the individual to the victim.

(v) Age of the victim.

(vi) Whether the offense included a display of unusual
cruelly by the individual during the commission of the crime.

(vii) The mental capacity of the victim.

(2) Prior offense history, including:

(i) The individual's prior criminal record.

(ii) Whether the individual completed any prior sentences.

(iii) Whether the individual participated in available
programs for sexual off enders.

4
 Circulated 08/18/2015 01:42 PM

(3) Characteristics of the individual, including:

(i) Age of the individual.

(ii) Use of illegal drugs by the individual.

(iii) Any mental illness, mental disability, or mental
abnormality,

(iv) Behavioral characteristics that contribute to the
individual's conduct.

(4) Factors that are supported in a sexual offender Assessment
field as criteria reasonably related to the risk of reoffense.

l 42Pa. C.S.A. §9799.24]. Following the submission of a written
assessment report and a praecipe filed by the district attorney, the
trial court must hold a hearing. During the hearing, the
Commonwealth bears the burden of proving the defendant is an SVP
by clear and convincing evidence. (42 Pa. C.S.A. §9799.24 (e)(3)]; see
also Commonwealth v. Charlton, 902 /\.2d 554, 563-65 (Pa.
Super.2006).

In the matter presently considered, Defendant entered a plea of no contest to

the offense of Unlawful Contact with a Minor, an enumerated offense under 42 Pa.

C.S.A. 9795.1 As previously indicated, a portion of the SVP hearing was conducted on

March 10, 2014 at which the Commonwealth presented the expert testimony of

David Humphries, an expert evaluator of the Sexual Off enders Assessment Board,

who holds a masters degree in social work from the University of Pittsburgh and a

bachelor of science in psychology and sociology per his resume. He is also a licensed

clinical social worker in the Commonwealth of Pennsylvania and is also employed

by Community Care Behavioral Health.

Additionally, he has been qualified and admitted as an expert in the

Commonwealth of Pennsylvania.

5
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During his testimony, David Humphries utilized a report he prepared, dated

March 8, 2014.

In reviewing the factual context, David Humphries considered, that according

to the records, the victim indicated she was Defendant's step-daughter and

· -according to the victim, the Defendant began to sexually abuse her between the age

of seven and ending when she was ten or eleven. ( Id. N.T. 9)

In examining the statutory criteria David Humphries stated that although the

offense did not involve multiple victims it did entail multiple types of sexual acts on
.,
repeated occasions over the length of three years.

The witness acknowledged the Defendant did no more than was necessary to

achieve his offense; the Defendant was a step-father and these abusive

circumstances took place while the Defendant was in a caretaker's Tole in the home

(Id. N.T. 9)

David Humphries stated the age of the victim while the offenses were

occurring seven through ten, when she was involved in an incestuous relationship

with the Defendant and is consistent with the paraphillic interest of the offender

since a child that age is a minor unable to consent to any sexual activity with an

adult. This factor goes to the risk of re-offending. David Humphries testified that

individuals with this type of history tend to utilize their position within the family or

in a relationship in order to gain access to sexually molest victims. Individuals who

sexually act out with incestuous behavior toward children often increase these

types and amounts of sexual abuse against the victims over a period of time which is

evident in this case. Individuals with this type of paraphillic condition may develop

6
 Circulated 08/18/2015 01:42 PM

intense paraphillic imagery and fantasies which can lead them to act against non-

consenting individuals. These types of paraphillic conditions tend to be chronic and

lifelong. (Id. N.T. 12,13)

Therefore, David Humphries' conclusion was the Defendant meets the

···diagnostic criteria-of pedophilia. Individuals with this paraphlllic focus often and

involve themselves in sexual activities with prepubescent children usually under the

age of thirteen. The diagnostic impression of these individuals per David Humphries

is that these individuals often act on their urge with children, exposing themselves,

genital touching, as well as other types of fondling activities, evident in this case.

(Jd.N.T. 13,14)

His finding was that in this case, Defendant had a congenital and/or acquired

condition which is the impetuous to sexual offending and that this diagnostic

impression is a lifetime condition and in this case the condition overrode the

Defendant's emotional and volitional control. (Id. N.T. 14, 15)

Further, David Humphries testified there appears to be a likelihood of

potential for sexual reoffending in the future and that in his opinion the Defendant

had a mental abnormality. (Id. N.T. 15)

It appears from the record in examining the next statutory factor the witness

acknowledged the Defendant did not display any unusual cruelty in the commission

of the offense. It doesn't appear the Defendant used any excessive means of force or

cruelty to have the victim comply with his sexual assaults against her. (Jd. N.T. 9-10)

7
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With regard to the mental capacity of the victim the record doesn't contain

any information as to whether the victim suffers from any type of physical, mental

or emotional disability.

The witness indicated the Defendant has a sexually deviant pathway to

.. - ---offending as his objectof.sexual interest is a minor child. Additionally, David

Humphries noted the Defendant clid not have a criminal history of sexual assault.

(Id. N.T. 10)

In examining specific characteristics of the Defendant the witness noted

Defendant was between the ages of thirty-five and thirty-eight to thirty-nine and his

step-daughter age seven to ten. (Id. N.T. 11)

David Humphries further related he possessed no information indicating

whether the Defendant was ever diagnosed with a mental illness.

The second statutory criteria involved predators' behavior per David

Humphries. (Id. N.T. 15) Within Megan's Law predatory behavior is defined as:

"an act directed at a stranger or a person
with whom a relationship has been maintained,
established, promoted, or initiated in whole or part
for purposes of sexual victimization"

Upon David Humphries' review of the records it appears that the Defendant's

relationship to the victim as step-father enabled him to be in a care taking and

babysitting activity to eventually groom and then sexually molest the child over a

three year period of time. The Defendant's behavior did escalate over time with

regard to different types of sexual assault activities that took place. (Id. N.T. 15)

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Defendant was seen by the victim as a trusted individual and the Defendant

utilized his relationship to the victim to maintain her secrecy. (Id. N.T. 15, 16)

Therefore, it was David Humphries' opinion the Defendant's behavior does

constitute a predatory act in that the relationship was initiated, established,

· ···- ·· maintained, promoted in whole or part to promote sexual victimization (rd. N.T.

15,16)

His final conclusion within a reasonable degree of certainty considering all

the statutory factors within the PA Megan's Law Adam Walsh Act is that the

Defendant met the criteria as a SVP based upon a review of the records. (Id. N.T. 16)

The defense offered the testimony of Timothy Foley on September 22, 2014.

Dr. Foley possessed a PhD in psychology since 1998 and has been involved in the

assessment and treatment of sex offenders as a licensed psychologist. Dr. Foley

indicted he has testified twenty times in the Luzerne County with regard to

expressing a sexually violent predator opinion as of September 22, 2014-. (lei. N.T.

11)

This witness additionally indicated he employs an "actuarial tool" in

evaluating the statutory criteria. I-le acknowledged that the Sexual Off enders

Assessment Board is precluded from using this tool, however, he believes it is

appropriate in conducting the evaluation. (Id. N.T. 23, 24). Dr Foley was permitted

to testify as an expert in the field of "sexually violent predator assessments,

evaluations, and treatment." (Id. N.T. 10,11)

This witness prepared a report dated September 8, 2014, admitted as

Defendant's exhibit #1. He also looked at the fourteen factors associated with

9
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evaluations of this sort for SVP in Pennsylvania to determine whether or not there is

sufficient evidence for a mental abnormality or personality disorder that makes a

person likely to perpetuate sexually violent acts in the future as well as whether or

not it meets the statutory criteria for the predatory prong of the statute. (Id. N.T. 14-)

- Essentially-Dr-Foley agreed with-the Commonwealth's expert.regarding.L; _ -·-- ~- ··-·· .

Defendant's diagnosis of pedophilia however, he expressed a further opinion that

the diagnosis had certain modifiers which had certain risk implications. (Id. N.T. 17-

18)

This witness stated that the defendant had a diagnosis of pedophilia with

modifiers and the modifiers are important particularly in terms of understanding

the risk, and the modifiers are nonexclusive. In other words, there was an attraction

to adult females, based on his living with the victim's mother for a number of years.

Dr. Foley also based that on other factors which included his age. There was no non-

sexual violence or prior non-sexual violence or prior sex offenses. The defendant's

offense was limited to females. If it had been limited to males or included males, that

would increase his risk per the witness. /-le testified further that it was an incest

offense. It's an interfamilial offense, probably the most common kind of sexual

offense and typically they go on longer, as seen in this case based on the records, but

the risk following removal from the situations tends to be quite low. lnterfamilial

offenders or incest off enders atypically recidivate. Generally speaking, they have

lower levels of measured sexual deviance. Nonetheless, he scored him for purposes

of the actuarial tool he used for his analysis; as having an unrelated victim since he

didn't know how long he Jived with the victim. (Id. N.T. 24, 25)

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The actuarial or statistical tool Dr. Foley used with Mr. Zerby is the Static-

99R which compared him to a group of about twenty five thousand to thirty

thousand sex offenders who have a known history of convictions and charges and

also have a history in the community after they are released into the community (Jd.

N.T. 21,22) The test Static-. 99R has.a range of minus .three.to.twelve and on.thaL--------·····

scale Mr. Zerby hada minus one. Per Dr. Poley, scores of minus three to one are

considered low risk based on this statistical analysis. (Id. N.T. 24) Dr. Foley agreed

with Mr. Humphrey that he met the predatory prong of the statute but did not agree

that he met the mental abnormality aspect of the statute. (id. N.T. 30)

Dr. Foley concluded that he found no evidence of a mental abnormality for Mr. Zerby

because he clid not find anything to suggest the Defendant is likely to perpetrate

sexually violent offenses in the future. The fact that the misconduct stopped when

the defendant left the home with no other misconduct reported until his arrest is

evidence of his volitional control. (Id. N.T. 33)

Having had an opportunity to preside in this matter and after careful

consideration of the testimony of the respective experts, within the context of the

record created during the guilty plea proceeding to present, we reiterate our

conclusion that the Commonwealth has established by clear and convincing

evidence that the Defendant is, in fact, a sexually violent predator.

In assessing the expert testimony we observe the Commonwealth witness

testified in a frank, credible and revealing manner. His conclusions regarding the

criteria identified and considered were both persuasive and, in our judgment,

supported by the record. While we did not find Dr. Foley testified in an

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unprofessional manner or lacked credibility, we were un-persuaded in his use of a

statistical tool in arriving at the conclusion that this Defendant would not be likely

to reoff end.

. It is beyond cavil that ~very Commonwealth expert who testifies that an.

individual is a sexual violent predator must examine, and render an opinion on,

whether the individual is likely to reoffend. Commonwealth v. Dixon. 907 A.2d 533,

539 (Pa. Super. 2006) It is additionally well settled that pedophilia qualifies as a

"mental abnormality" under the applicable legislation. Common v. Meals. 912 A.2d

213, 223 9Pa. 2006)

To reiterate, we found David Humphries credible, articulate, persuasive and

well reasoned. The criteria examined on the record during the hearing, including the

Commonwealth expert's diagnosis of pedophilia and paraphilia, unequivocally

established by clear and convincing evidence that the Defendant is a sexually violent

predator.

Before concluding, we note the applicable law by design provides no

mathematical formula or calculation regarding the number of criteria present or

absent which then dictate or require a certain conclusion. Indeed such a formulaic

determination is inconsistent and antithetical to the concept of the assessment.

Rather, as Martz instructs, the statutory scheme provides a framework and process

in which an analysis must be conducted.

END OF OPINION

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IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
CRIMINAL TRIAL DIVISION

COMJ'vfONWEALTH OF PENNSYLVANIA CP-51-CR-0208111-2006

FILED
vs. AUG 2 7 2014
Criminal Appeals Unit
First Judicial District of PA
: SUPERJOR COURT OF PENNSYL V ANlA
BOBBY SHOWELL 142 EDA 2014

SUPPLEMENT AL OPD\'ION

BRJGHT, J.

On October 21. 2005 Appellant was arrested and charged with Aggravated Assault,

Possessing an Instrument of Crime, Unlawful Restraint, Endangering the Welfare of Children, and

Criminal Conspiracy, and on November 6, 2006 he entered a plea of nolo contendere and was found

guilty of those crimes. On January 10, 2007 Appellant was sentenced to a lengthy term of

imprisonment. Direct appeal was taken to the Superior Court of Pcnnsy1vania and on November 1,

2007 the appeal was dismissed for counsel's failure to .file a brief. On December 26, 2007

Appellant filed a Petition pursuant to the Post Conviction Relief Act 1 (hereinafter PCRA) and oo

December l, 2008 the Court ordered that Appellant's appeal rights be reinstated nunc pro tune. On

December 4, 2008 Appellant filed Notice of Appeal to the Superior Court of Pennsylvania and on

December 29, 2009 the Judgment of Sentence was affirmed. Appellant filed a Petition for

Allowance of Appeal in the Supreme Court of Pennsylvania and on September 8, 2010 the Petition

was denied

On January 11, 2011 Appellant filed the instant Petition pursuant to the PCRA prose and

PCRA counsel was appointed. On November 14, 2012 Appellant filed an Amended PCRJ\ Petition
 Circulated 09/01/2015 12:31 PM

together with a Memorandum of Law and on May 26, 2013 the Commonwealth fiJed a Motion to

Dismiss. On November 27, 2013 Notice pursuant to Pa.R.Crim.P. 907 was sent to Appellant and

on December 20. 2013 the PCRA Petition was dismissed. This timely appeal followed on January

13, 2014.

Pursuant to Pa.R.A.P. 1925(b) Appellant was instructed to file a Statement of Errors

Complained Of On Appeal. Appellant failed to respond to the Order and the Court issued a

l 925(a) Opinion deeming all issues to be waived. Appellant then filed a Petition to Remand for the

filing of a l 925(b) Statement in the Superior Court of Pennsylvania, and on July 18, 2014 the

Superior Court of Pennsylvania granted Appellant's Petition and remanded the case to permit

Appellant to file a 1925(b) Statement with instructions to the PCRA Court to prepare this

Supplemental Opinion

[obis 1925(b) Statement, Appellant complains that the PCRA Court was in error in denying

the PCRA Petition without an evidentiary hearing and that the PCRA Court was in error in denying

his Amended PCRA Petition which raised multiple claims of ineffectivc assistance of counsel.

FACTS

The facts are summanzed in this Court's Opinion on direct appeal and set out in the Superior

Court of Pennsylvania's Memorandum Opinion as follows.1 After the death of her father, the

Philadelphia Department of Human Services (DHS) determined that the mother of eight year old

Complainant SS was not able to care for her and the minor child was placed in the care of

Appellant, her uncle, and her grandmother, co-defendant Cheryl Showell, who resided at 7426

I
Commonwealth v. Bobby Sho·well, No. 3437 EDA 2007

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Gilbert Street, Philadelphia, PA. N.T.2 11/6/2006@ 11. After numerous reports to OHS,

Appellant and his co-defendant were instructed to take Complainant to St. Christopher" s Hospital

for evaluation. Id.@ 12. When she arnved at the hospital it was discovered that Complainant

was in renal failure and had suffered a skull fracture. SS also had a subdural hematoma that

required surgery to relieve the pressure on her brain Additionally, SS presented with scars on her

face and back, a massive bleeding ulcer which exposed muscle. and multiple other indicia of

physical abuse. ld.@ 12-13. Her extensive injuries required that she be kept in the intensive care

unit of the hospital for more than three weeks. Id.

Appellant admitted that he had caused the Complainant's injuries, explaining that it was

proper 'discipline', and he graphically described the methods he used. Id.@ 14-17. He blamed SS

for the severity of the punishment.

DISCUSSION

Appellant complains that the Court was in error in denying the PCRA Petition without an

evidentiary hearing and in denying his Amended PCRA Petition which raised multiple claims of

ineffective assistance of counsel. These claims are without merit.

The standard of review when presented with a challenge to the ruling by the PCRA Court is

whether the PCRA Court's ruling rs supported by the record and is free of legal error. In

Commonwealth v. Loner, 2003 PA Super, 836 A.2d 125 (Pa. Super. 2003), the Superior Court of

Pennsylvania stated:
I
"Our standard of review for an order granting or denying post-conviction relief is limited
lo examining whether the court's determination is supportedby evidence of record and
I
2N.T.
refers to the Notes of Testimony at bench trial before the Honorable Gwendolyn N. Bright on
November 6, 2006 and the Sentencing on January 10, 2007. The specific date to which reference is
made follows the designation "N.'I .11•

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whether it is free of legal error

1 o obtain relief under the PCRA premised upon 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. This requires the petitioner to demonstrate that: (I) the underlying
claim is of arguable merit: (2) counsel had no reasonable strategic basis for his or her action
or inaction: and (3) petiuoner was prejudiced by counsel's act or omission. The law
presumes that counsel was effective, and it is the petitioner's burden to prove otherwise.
Counsel cannot be deemed ineffective for failing to pursue a rneritless claim.

Trial counsel's strategic choices cannot be the subject of a finding of ineffectiveness 1f the
decision to follow a particular course of action was reasonably based and was not the result
of sloth or ignorance of available alternatives. Counsel's approach must be "so
urueasonable that no competent lawyer would have chosen it. Furthermore, counsel's
effectiveness cannot be evaluated in hindsight but must be examined in light of the
circumstances as they existed at the pertinent time.

Counsel V{1l1 not be deemed ineffective if any reasonable basis exists for his or her actions
Even if counsel had no reasonable basis for the course of conduct pursued, a defendant is not
entitled to relief if he fails to demonstrate "prejudice" as that element is defined under
Pennsylvania's ineffectiveness standard. In assessing a claim of ineffectiveness, when it is
clear that the defendant has failed to meet the prejudice prong, the court may dispose of the
claim on that basis alone without any further determination." Commonwealth v Loner. 836
A.2d@132-133. (Citations and quotations omitted.)

In Commonwealth v. Fitzgerald, 2009 PA Super. 154, 979 A.2d 908, 910 (PA Super 2009), the

Superior Court of Pennsylvania reiterated:

"In order to obtain relief under the PCRA premised upon a claim that counsel was
ineffective, a petitioner must establish beyond 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. This requires the petitioner demonstrate that: (I)
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
It is presumed that counsel is effective, and places upon the appellant the burden of proving
otherwise. Counsel cannot be deemed ineffective for failing to pursue a rneritless claim"
(citing, Commonwea/ch v. Pavne, 2002 PA Super 62, 794 A.2d 902 (PA Super 2002).).

Additionally, it is well settled that an evidentiary hearing on a PCRA Petition is not absolute.

Commonwealth v. Wah, 2012 PA Super 54, 42 A.3d 335 (Pa. Super. 2012) citing, Commonwealth

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v. Jordan. 2001 P '\ Super Ill, 772 A.2d 1011, 1014 (Pa.Super.2001). It is within thePCRA

court's discretion to decline to hold a hearing if the petitioner's claim is paten Uy frivolous and has no

support either in the record or other evidence. If it is clear that an allegation of ineffectiveness of

counsel lacks merit an evidentiary hearing is not warranted. Commonwealth v. Steward, 2001 PA

Super 126, 775 A.2d 819 (Pa. Super. 2001). Commonwealth v. Wah, supra, 42 A.3d @338.

lnllhe case sub judice, Appellant asserts multiple claims of ineffective assistance of counsel

Appellant first complains that trial counsel was ineffective for failing to allow him to read and sign

his own answers on his nolo contendre plea form, and by instructing him to sign only the bottom of

the form. Th.is complaint is without merit.

ln Commonwealth v. Hickman, 2002 PA Super 152, 799 A.2d 136 (Pa. Super 2002), the

Superior Court of Pennsylvania reaffirmed that "allegations of ineffectiveness in connection with

the entry of a guilty plea will serve as a basis for relief only if the ineffectiveness caused the

defendant to enter an involuntary or unknowing plea!' See also, Commomvealch v. Yager, 454 Pa.

Super 428, 685 A.2d 1000 (Pa. Super. 1996). This principal applies equally to pleas of nolo

contendre. Instantly, the record amply demonstrates that Appellant's plea was knowingly,

intelligently, and voluntarily entered.

"(W]here the record clearly demonstrates that a guilty plea colloquy was conducted, during
wbich it became evident that the defendant understood the nature of the charges against him,
the voluntariness of the plea is established. A defendant is bound by the statements he
makes during his plea colloquy, and may ... contradict statements made when he pled "
Commonwealth v McCauley, 797 A.2d 920, 200 l (Pa. Super. 2001).

Prior to accepting Appellant's plea, the Court conducted an extensive colloquy with the Appellant,

making certain that he understood the nature of the plea, the nature of charges to which he pied, and

the various rights that he was waiving by pleading nolo contendere. Id. @ 5-20. The Court

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specifically asked if Appellant had the opportunity to discuss the charges to which he pied with his

attorney and if he was satisfied with his attorney's representation and Appellant responded in the

affirmative. Appellant stated that he understood his rights and that he was voluntarily waiving his

rights and pleading no contest. Id The Court provided Appellant additional time to consult with

his attorney 10 make certain that be understood his plea and inquired if Appellant understood, if he

had signed the written colloquy form, and if he signed the form of his own free will. Id. @4-5.

Appellant again responded in the affirmative. Id.@ 5. Appellant is bound by the statements he

made during his plea colloquy and he cannot now contradict those statements. Commonwealth v.

McCaulevj supra. Error was not committed.

Moreover, it cannot be gainsaid that counsel was ineffective for not seeking 'additional

information' regarding Appellant's mental condition during the colloquy. The Record clearly

demonstrates that Appellant fully understood the purpose for his presence in court, the nature of the

proceedings, and the nature of his plea of nolo contendere. Appellant was fully competent and

offered bis plea knowingly, intelligently, and voluntarily. fd. @ 6-7. PCRA counsel will not be

found ineffective for failure to pursue a rneritless course. Error was not committed.

Appellant also asserts that trial counsel was ineffective for misinforming him that he would

be sentenced to any more than an additional fifteen months of incarceration following his offer to

plead nolo contendre, This claim is without merit.

As previously discussed, where the record clearly demonstrates that a plea colloquy was

conducted during which it became evident that the defendant understood the nature of the charges

against him, the voluntariness of the plea is established. Appellant is bound by the statements he

made during the colloquy and may not now contradict statements made when he pled.

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Commonwealth v. JvfcCaulev. supra. Instantly. the Record demonstrates that Appellant was fully

aware of the crimes to which he was pleading nolo contend ere and that he was fully aware that he

faced a maximum sentence of up to sixty-three ( 63) years of imprisonment Error was not

committed.

Trial counsel did not render ineffective assistance and did not unlawfully induce Appellant

to offer the plea of nolo contendere. Error was not committed.

finally, Appellant complains that trial counsel was ineffective for failing to file a motion for

reconsideration of sentence. This claim is without merit.

In order to obtain relief under the PCRA premised upon a claim that counsel was ineffective

Appellant is required to establish beyond a preponderance of the evidence that, inter alia,

petitioner was prejudiced by counsel's act or omission. Commonwealth v. Fitzgerald, supra. In

the case sub judice, Appellant was not entitled to a reconsideration of his sentence and a motion to

obtain post sentence relief would not have been granted. It is well settled that sentencing is a

matter vested in the sound discretion of the sentencing judge. Commonwealth v. Revnolds, 835

A.2d 720 (Pa. Super. 2003). The sentence imposed in the instant case does not violate any

provision of the Sentencing Code and is within the fundamental norms underlying the sentencing

scheme. Before imposing sentence the Court considered the Sentencing Guidelines, Appellant's

testimony, the Presentence Mental Health Evaluation, and arguments of counsel. N.T. 1110/2006

@4-5, 141 29-36. J\.t no time did Appellant show remorse for his crimes, but rather, he steadfastly

asserted his right as a parent to inflict such 'discipline' and repeatedly attempted to justify his

horrific crimes against this eight year old child. Under the circumstances presented by this case the

sentence of the Court is not excessive and is consistent with the Sentencing Guidelines. The Court

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would not have granted a motion for reconsideration of sentence and trial counsel will not be

deemed ineffective for failing to pursue a meritless motion. Error was not committed.

CONCLCSJON

For the foregoing reasons. error was not commuted and the Order denying PCRA relief

should be affirmed.

BY THE COURT

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