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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
MELVIN R. CLARK, : No. 177 WDA 2014
:
Appellant :
Appeal from the PCRA Order, January 3, 2014,
in the Court of Common Pleas of Washington County
Criminal Division at Nos. CP-63-CR-0000904-2008,
CP-63-CR-0000905-2008, CP-63-CR-0000906-2008
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND STRASSBURGER, J.*
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 13, 2015
Melvin R. Clark appeals from the order entered January 3, 2014,
denying his PCRA1 petition. We affirm.
The trial court summarized the pertinent facts and procedural history
as follows:
[Appellant] was charged with sexually
assaulting three minor victims, his two adopted
daughters and the minor sister of their mother over
a period of several years. [Appellant] married the
victims’ Mother in October of 2001. Thereafter, [he]
began to sexually molest his adopted daughter,
[A.C.], in June of 2002, when she was 11 years old.
It began with [Appellant] sexually touching the
victim and progressed to digital penetration of her
vagina and oral sex. This continued from age 11
* Retired Senior Judge assigned to the Superior Court.
1
Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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until the victim was 18 when she finally disclosed to
her mother. The sexual abuse by [Appellant] of his
youngest adopted daughter was occurring
simultaneously, beginning when R.C. was 14 until
she was 16. As with the other victim, the assault
began with sexual touching of her breasts and
progressed to the victim’s vagina.
[Appellant’s] sister-in-law, [C.S.], testified that
[Appellant] sexually assaulted her beginning at
age 15, including an incident when [Appellant]
sexually assaulted both her and [A.C.] at the same
time, which [A.C.] corroborated. However, the jury
found [Appellant] guilty only of Endangering the
Welfare of a Child and Corruption of Minors.
[Appellant] was acquitted of the sexual charges
regarding [C.S.]
Following a jury trial, [Appellant] was
convicted of the following offenses: Rape by forcible
compulsion, Felony 1; Rape by threat of forcible
compulsion, Felony 1; Rape of a Child, Felony 1;
Sexual Assault (3 counts), Felony 2; Aggravated
Indecent Assault, Felony 2; Aggravated Indecent
Assault by Forcible Compulsion, Felony 2;
Aggravated Indecent Assault of a Child, Felony 1;
Aggravated Indecent Assault, person less than
16 years of age, Felony 2; Indecent [Assault]
without consent (3 counts), Misdemeanor 2;
Indecent Assault-person less than 13 years of age
(3 counts), Misdemeanor 1; Statutory Sexual Assault
(2 counts), Felony 2; Involuntary Deviate Sexual
Intercourse by threat of forcible compulsion
(2 counts), Felony 1; Involuntary Deviate Sexual
Intercourse by forcible compulsion (2 counts),
Felony 1; Involuntary Deviate Sexual Intercourse-
person less than 16 years of age; Felony 1;
Involuntary Deviate Sexual Intercourse with a child
(2 counts), Felony 1; Endangering the welfare of
children (3 counts), Misdemeanor 1; Corruption of
Minors (3 counts) Misdemeanor 1; and Incest,
Felony 1.
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On January 11, 2010, following a presentence
investigation and assessment by the Pennsylvania
Sexual Offenders Assessment Board, [Appellant] was
sentenced to serve an aggregate sentence of
imprisonment of not less than 56 years and not more
than 112 years in a state correctional institution.
Moreover, the Court found [Appellant] to be a
sexually violent predator and subject to a lifetime
reporting requirement upon his release from
incarceration. On January 19, 2010, [Appellant] filed
his [] post-sentence motion, which was denied on
June 16, 2010.
Commonwealth v. Clark, 38 A.3d 919 (Pa.Super. 2011) (unpublished
memorandum at 1-3).
This court affirmed appellant’s judgment of sentence on direct appeal,
and our supreme court denied allocatur on May 23, 2012.
Commonwealth v. Clark, 46 A.3d 715 (Pa. 2012). On March 13, 2013,
appellant filed a timely counseled PCRA petition. On July 12, 2013, the
PCRA court ordered the Commonwealth to file a written response within
60 days, and issued a rule upon the Commonwealth to show cause why the
petition should not be disposed of without an evidentiary hearing.
(Docket #44.) Following the Commonwealth’s answer, the petition was
denied without an evidentiary hearing on January 3, 2014. (Opinion and
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Order, 1/3/14; docket #46.)2 Appellant filed a timely notice of appeal on
January 29, 2014. On March 25, 2014, appellant was ordered to file a
concise statement of errors complained of on appeal within 21 days pursuant
to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A. (Docket #50.) Appellant timely
complied with the PCRA court’s Rule 1925 order on April 14, 2014; and on
January 6, 2015, the PCRA court filed an opinion.
Appellant has raised the following issue for this court’s review:
I. WHETHER THE [PCRA] COURT ERRED IN
DENYING [APPELLANT]’S REQUEST FOR AN
EVIDENTIARY HEARING FOR A
DETERMINATION AS TO WHETHER HIS TRIAL
COUNSEL PROVIDED INEFFECTIVE
ASSISTANCE OF COUNSEL, IN FAILING TO
PROPERLY OBJECT TO A PATENTLY IMPROPER
JURY CHARGE, INSTRUCTING THE JURY TO
CONSIDER [APPELLANT]’S TWENTY-FIVE YEAR
OLD SUMMARY CONVICTION FOR RETAIL
THEFT IN EVALUATING HIS TESTIMONY AT
TRIAL DENYING GUILT[?]
2
A review of the record reveals that the PCRA court
failed to issue notice of its intent to deny the PCRA
petition as is required by Pa.R.Crim.P. 907.
Although the notice requirement set forth in
Rule 907 has been held to be mandatory, see
Commonwealth v. Feighery, 443 Pa.Super. 327,
661 A.2d 437 (1995) (Feighery discussed
Pa.R.Crim.P. 1507, which was renumbered as
Rule 907 as of April 1, 2001), Appellant has not
objected to its omission and thereby has waived the
issue.
Commonwealth v. Boyd, 923 A.2d 513, 514 n.1 (Pa.Super. 2007), appeal
denied, 932 A.2d 74 (Pa. 2007), citing Commonwealth v. Williams, 909
A.2d 383 (Pa.Super. 2006); Commonwealth v. Guthrie, 749 A.2d 502
(Pa.Super. 2000).
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Appellant’s brief at 4.
This Court’s standard of review regarding an order
denying a petition under the PCRA is whether the
determination of the PCRA court is supported by the
evidence of record and is free of legal error.
Commonwealth v. Halley, 582 Pa. 164, 870 A.2d
795, 799 n. 2 (2005). The PCRA court’s findings will
not be disturbed unless there is no support for the
findings in the certified record. Commonwealth v.
Carr, 768 A.2d 1164, 1166 (Pa.Super.2001).
Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007),
appeal denied, 940 A.2d 365 (Pa. 2007).
[T]he right to an evidentiary hearing on a
post-conviction petition is not absolute.
Commonwealth v. Jordan, 772 A.2d 1011, 1014
(Pa.Super.2001). It is within the PCRA court’s
discretion to decline to hold a hearing if the
petitioner’s claim is patently frivolous and has no
support either in the record or other evidence. Id.
It is the responsibility of the reviewing court on
appeal to examine each issue raised in the PCRA
petition in light of the record certified before it in
order to determine if the PCRA court erred in its
determination that there were no genuine issues of
material fact in controversy and in denying relief
without conducting an evidentiary hearing.
Commonwealth v. Hardcastle, 549 Pa. 450, 454,
701 A.2d 541, 542-543 (1997).
Id. at 882, quoting Commonwealth v. Khalifah, 852 A.2d 1238,
1239-1240 (Pa.Super. 2004).
To prevail on a claim alleging counsel’s
ineffectiveness under the PCRA, Appellant must
demonstrate (1) that the underlying claim is of
arguable merit; (2) that counsel’s course of conduct
was without a reasonable basis designed to
effectuate his client’s interest; and (3) that he was
prejudiced by counsel’s ineffectiveness, i.e. there is
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a reasonable probability that but for the act or
omission in question the outcome of the proceeding
would have been different. Commonwealth v.
Kimball, 555 Pa. 299, 724 A.2d 326, 333 (1999);
Commonwealth v. Douglas, 537 Pa. 588, 645
A.2d 226, 230 (1994).
Commonwealth v. Bracey, 795 A.2d 935, 942 (Pa. 2001). “The law
presumes that counsel has rendered effective assistance.” Commonwealth
v. Harris, 852 A.2d 1168, 1173 (Pa. 2004), citing Commonwealth v.
Balodis, 747 A.2d 341, 343 (Pa. 2000). “Trial counsel cannot be deemed
ineffective for failing to raise a meritless claim. In addition, where an
appellant has not met the prejudice prong of the ineffectiveness standard,
the claim may be dismissed on that basis alone.” Id. (citations omitted).
Appellant argues that trial counsel was ineffective for failing to object
to the trial court’s instruction to the jury that they could consider his
1983 conviction for retail theft in assessing his credibility. At trial, appellant
presented the testimony of a character witness, the Reverend
Gary Schneider. On cross-examination, the Commonwealth questioned
Reverend Schneider regarding appellant’s 1983 conviction of the summary
offense of retail theft. On direct appeal, we held such questioning was
proper under Pa.R.E. 405(a), allowing cross-examination of a reputation
witness concerning specific instances of conduct probative of the character
trait in question. Clark, supra at 5. This court also rejected appellant’s
argument that the 1983 conviction was stale, and therefore, any probative
value was outweighed by its prejudicial impact, finding that, at most, it was
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harmless error: “Given the overwhelming evidence of guilt in this case,
including Appellant’s confessions in his various communications to his wife
and the victims, any error in permitting the brief reference to the summary
conviction was harmless.” Id. at 6 (citation omitted).
On direct appeal, appellant also raised the claim that the trial court
erred by instructing the jury that his 25-year-old retail theft conviction could
be used to help determine his credibility and the weight to be assigned his
testimony. Id. We found the matter waived because trial counsel never
objected to the trial court’s jury instructions. Id. at 6-7. We further opined
that, given the overwhelming evidence of guilt including appellant’s
confessions, any error was harmless. Id. at 7. Appellant now brings the
identical issue on collateral review, framed as a trial counsel ineffectiveness
claim.
The trial court’s instruction to the jury was as follows:
There was also evidence offered during
cross-examination of a character witness that tended
to show that the Defendant had a prior conviction.
I’m talking about the questioning of Pastor Schneider
in regard to the prior summary offense of Retail
Theft. The District Attorney asked this question in
cross-examination tending to show that the
Defendant’s reputation for honestly [sic] was not as
good as suggested. This evidence is not evidence of
the Defendant’s guilt. The evidence may be
considered by you for only one purpose and one
purpose only; that is, to help you judge the
credibility and weight of the testimony given by the
Defendant as a witness in this trial. In considering
the prior conviction, you may also consider the type
of crime committed and how long ago it was
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committed and how it may affect the likelihood that
he testified truthfully or not truthfully in this case.
Notes of testimony, 3/9-12/09 at 368-369.
Appellant argues that this instruction was in error because under
Pa.R.E. 609, crimen falsi offenses are generally inadmissible to attack the
credibility of a witness after ten years. In addition, under Pa.R.E. 608, while
the credibility of a witness who testifies as to the reputation of another
witness for truthfulness or untruthfulness may be attacked by
cross-examination concerning specific instances of conduct (not including
arrests) of the other witness, if they are probative of truthfulness or
untruthfulness, that evidence affects the credibility of the character witness
only, not the principal witness. Pa.R.E. 608, Comment; see also
Commonwealth v. Adams, 626 A.2d 1231, 1233 (Pa.Super. 1993) (where
the purpose of the examination is to test the accuracy of the testimony by
showing either that the witness is not familiar with the reputation concerning
which he has testified or that his standard of what constitutes good repute is
unsound, the evidence is admissible provided the actual purpose of the
cross-examination is not to show commission by the defendant of a specific
crime of which he or she is not now accused, but to test only the credibility
of the character witness), appeal denied, 636 A.2d 631 (Pa. 1993).
Appellant argues that trial counsel had no reasonable basis for failing to
object to this clearly improper instruction, and that he was undeniably
prejudiced where his entire defense rested on his testimony.
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First, we observe that this precise issue was raised on direct appeal,
and we determined that to the extent the trial court erred, any such error
was harmless in light of the overwhelming evidence of appellant’s guilt.
Therefore, the issue could be considered previously litigated. 42 Pa.C.S.A.
§ 9544(a)(2). It is true that we initially found the matter waived for trial
counsel’s failure to object to the trial court’s jury instructions; however, the
harmless error analysis could be considered an alternative, but equally valid,
holding supporting the result reached. See Commonwealth v. Markman,
916 A.2d 586, 606 (Pa. 2007) (“Where a decision rests on two or more
grounds equally valid, none may be relegated to the inferior status of obiter
dictum.”), quoting Commonwealth v. Swing, 186 A.2d 24, 26 (Pa. 1962).
See also Markman, supra, 916 A.2d at 606 n.15, citing Reynolds-
Penland Co. v. Hexter & Lobello, 567 S.W.2d 237, 241 (Tex.Civ.App.
1978) (“explaining that an ‘alternative holding’ exists where the appellate
court ‘rests its decision under the facts presented on two separate, but
equally valid, grounds’”). Accord Commonwealth v. Reed, 971 A.2d
1216, 1220 (Pa. 2009) (where this court determined that Reed’s claims were
waived, and even if the claims had not been waived, they were without
merit, and explained the basis for our conclusions, our holding that Reed’s
claim regarding the admission of prior bad acts testimony was meritless was
a valid holding that constituted the law of the case).
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At any rate, while the underlying issue has arguable merit and trial
counsel had no apparent reasonable strategic basis for failing to object to
the trial court’s erroneous jury instruction, appellant cannot meet the third
prong of the ineffectiveness test, i.e., prejudice. As stated above, the
evidence in this case was overwhelming, including appellant’s inculpatory
statements to his wife and the victims. Appellant left several messages on
the home answering machine which were played for the jury, in which he
expressed regret for his actions. In the face of this evidence, as well as the
testimony of the victims which the jury apparently found to be credible, it is
doubtful that a 25-year-old summary conviction for retail theft was the
deciding factor in appellant’s guilt. Appellant could not possibly establish
how the trial court’s instruction changed the outcome of the trial, and the
PCRA court did not err in denying appellant’s petition without an evidentiary
hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/13/2015
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