J-S03032-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSE A. CRESPO
Appellant No. 1308 EDA 2015
Appeal from the PCRA Order April 22, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0702271-2006
BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED MAY 20, 2016
Jose Crespo appeals from an order dismissing his petition for relief
under the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq., without a
hearing. We affirm.
In Crespo’s direct appeal, we summarized the factual history of this
case as follows:
In September of 2005, Crespo, his girlfriend, [J.R.], and her two
daughters [C.V. (hereinafter ‘the victim’)], 6 years old, and
[K.C.], 2 years old, lived at 2820 North Howard Street in
Philadelphia. [The victim] testified that Crespo would pull down
her pants, grasp his penis with his left hand, and rub it against
her ‘private part.’ She described Crespo’s penis as being ‘sticky
and wet’ during these encounters. [The victim] also stated that
Crespo would kiss her on the mouth and told her not to tell
[J.R.] about it.
[J.R.] testified that on the evening of June 12, 2006, she went
into the bathroom to help [the victim] take a shower. As [the
victim] undressed, [J.R.] noticed a white sticky substance on
[the victim’s] underpants and asked her where it came from.
J-S03032-16
[The victim] first told [J.R.] that she had wet her pants.
However, she started to cry and told [J.R.] that Crespo ‘had
touched … [her] in a bad way.’ [J.R.] confronted Crespo,
grabbed two knives, and chased him out of the house. She took
[the victim] to Saint Christopher's Hospital for Children for an
examination. [The victim] was interviewed by the police on June
12, 2006, and June 19, 2006, respectively.
Dr. Laura Brennan, an expert in the field of evaluation and
treatment of children who report abuse, testified that [the
victim’s] medical report stated that there was no injury to her
genitalia or hymen. This finding was consistent with a fondling
or rubbing of the victim’s genitalia. Stained underpants worn by
[the victim] on the evening of June 12, 2006, and two other
pairs of stained underpants that were turned over by [J.R.] to
the police on June 19, 2006, were submitted to the Philadelphia
Police Criminalistics Lab for analysis. Connie Li, a Criminal
Forensic Scientist employed by the Police Criminalistics Lab,
testified that the stained areas of the underpants were tested for
the presence of sperm, protein, and acid phosphatase. Two pairs
of underpants tested negative for sperm and acid phosphatase.
One pair of underpants submitted on June 19, 2006 tested
negative for sperm but gave an inconclusive result for the
presence of acid phosphatase. The inconclusive result for acid
phosphatase could have been caused by the presence of semen,
[the victim’s] own vaginal discharge, or some other biological
material.
Commonwealth v. Crespo, 593 EDA 2008 (Pa.Super., 12/31/09), at 1-2
(citations omitted).
On June 13, 2006, Crespo was charged with various sexual offenses
against the victim. Prior to trial, Crespo moved to admit evidence of an
assault against the victim by a third person, Juan Carrero. The trial court
ruled that this evidence was inadmissible.
-2-
J-S03032-16
A jury found Crespo guilty of indecent assault and corruption of a
minor1 but was unable to reach a verdict on the charge of rape. Crespo was
retried and acquitted on the rape charge. On February 8, 2008, the trial
court sentenced Crespo to an aggregate term of 33-108 months’
imprisonment.
On December 31, 2009, this Court affirmed Crespo’s judgment of
sentence at 593 EDA 2008. On July 7, 2010, our Supreme Court denied
Crespo’s petition for allowance of appeal.
On February 25, 2011, Crespo filed a pro se PCRA petition. Through
counsel, he filed an amended petition on April 14, 2014 raising two claims of
ineffective assistance of counsel. In his first claim, Crespo alleged that while
trial counsel moved to admit evidence of Carrero’s assault, trial counsel
failed to raise the correct reason why this evidence was admissible, viz., to
show how the seven-year-old victim could have vaginal discharge on her
panties. In his second claim, Crespo alleged that trial counsel was
ineffective for allowing the Commonwealth to present evidence that the
substance on the victim’s panties “could be” consistent with vaginal
discharge, because the risk of prejudice caused by this evidence far
outweighed its probative value.
____________________________________________
1
18 Pa.C.S. §§ 3126(a)(2) and 6301(a), respectively.
-3-
J-S03032-16
On March 17, 2015, the PCRA court filed a notice of intent to dismiss
Crespo’s amended PCRA petition without a hearing. On April 22, 2015, the
court dismissed Crespo’s PCRA petition. On April 29, 2015, Crespo filed a
timely notice of appeal. On May 28, 2015, without ordering Crespo to file a
Pa.R.A.P. 1925(b) statement, the court filed a Pa.R.A.P. 1925 opinion.
Crespo raises the following issues in this appeal:
Did the PCRA court err in determining that the issue of
ineffective [assistance] of counsel, relating to the admission of
[Carrero’s] third party sexual assault, raised by [Crespo] in his
PCRA petition[,] was previously litigated[,] when the trial court
previously opined the issue was waived for purposes of appeal
due to the failure to raise it in the initial motion in limine?
Did the PCRA court err in determining that [Carrero’s] third party
sexual assault was irrelevant for purposes of showing the likely
source of physical evidence that was presented at trial, thereby
causing the claim of ineffectiveness of counsel lack merit?
Did the PCRA Court err in failing to prevent the admission of
stains on the [victim’s] underwear when the probative value of
this evidence was outweighed by the prejudice?
Brief For Appellant, at 7.
In reviewing the denial of PCRA relief, we examine whether the PCRA
court’s determination is supported by the record and free of legal error.
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.2014). “The scope of
review is limited to the findings of the PCRA court and the evidence of
record, viewed in the light most favorable to the prevailing party at the trial
level.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa.2014).
-4-
J-S03032-16
All of Crespo’s arguments accuse trial counsel of ineffective assistance.
We presume that trial counsel was effective unless the PCRA petitioner
proves otherwise. Commonwealth v. Williams, 732 A.2d 1167, 1177
(Pa.1999). To succeed on a claim of ineffective assistance, the petitioner
must plead and prove that (1) the underlying claim is of arguable merit; (2)
counsel’s performance lacked a reasonable basis; and (3) counsel’s
ineffectiveness caused the petitioner prejudice. 42 Pa.C.S. § 9543(a)(2)(ii);
Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa.2003). The petitioner
bears the burden of proving each of these elements, and his “failure to
satisfy any prong of the ineffectiveness test requires rejection of the claim of
ineffectiveness.” Commonwealth v. Daniels, 963 A.2d 409, 419
(Pa.2009).
Crespo has waived all arguments he attempts to raise in this appeal.
As the appellant, Crespo has the duty to ensure that the certified record is
complete for purposes of appellate review. See Commonwealth v.
Gonzalez, 109 A.3d 711, 725 (Pa.Super.2015). The record in this case is
woefully incomplete. There are no transcripts from trial or pre-trial
hearings; nor are there any court filings prior to Crespo’s initial PCRA
petition. These many omissions impede effective appellate review of
Crespo’s claims of ineffectiveness, thus resulting in waiver. See
Commonwealth v. Powell, 956 A.2d 406, 422–23 (Pa.2008) (defendant
waived appellate review of claim that trial court erred in admitting autopsy
-5-
J-S03032-16
photograph during capital murder trial; photograph was not contained in
certified record, leaving appellate court unable to assess defendant’s claim
that photograph was gruesome and was likely to inflame jury’s passions);
Gonzalez, 121 A.3d at 724-25 (appellant waived argument that trial court
erred in admitting victim’s audiotaped statement to police into evidence,
which he claimed inflamed the jury against him due to victim’s sobbing
voice, where certified record did not include audiotape).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/20/2016
-6-