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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
WILLIAM H. LEAK
Appellant No. 411 EDA 2015
Appeal from the PCRA Order Entered January 23, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0801371-2006
BEFORE: SHOGAN, LAZARUS, and STABILE, JJ.
MEMORANDUM BY STABILE, J. FILED June 16, 2016
Appellant, William Leak, appeals from the January 23, 2015 order of
the Court of Common Pleas of Philadelphia County (the “PCRA court”)
dismissing his petition pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546. Upon review, we affirm.
Following a jury trial on June 27, 2008, Appellant was found guilty of
rape, involuntary deviate sexual intercourse, aggravated assault, aggravated
indecent assault, unlawful restraint, and possession of an instrument of
crime.1, 2
Following a Megan’s Law hearing, Appellant was found to be a
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1
Respectively, 18 Pa.C.S.A. §§ 3121, 3123(a), 2702(a)(4), 3125, 2902,
907(b).
2
Unless otherwise specified, these facts come from the PCRA court’s March
27, 2015 Pa.R.A.P. 1925(a) opinion.
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sexually violent predator. Appellant was sentenced to an aggregate ten to
twenty years of incarceration to be followed by thirty years of probation.
Appellant filed a post-sentence motion which the trial court denied without a
hearing. Appellant appealed to this Court. This Court remanded to the trial
court to determine whether the videotaped deposition of the Complainant,
Quianna Martin, took place in accordance with Pa.R.Crim.P. 500.
Commonwealth v. Leak, 22 A.3d 1036, 1039 (Pa. Super. 2011). After
hearing, the trial court determined that the requirements of Rule 500 had
been satisfied. This Court affirmed the trial court’s determination, rejecting
Appellant’s arguments as either meritless or waived. Id. at 1050.
On March 16, 2012, trial counsel filed a PCRA petition. Appellant then
filed a pro se PCRA petition on August 28, 2012, alleging trial counsel’s
ineffectiveness. New counsel was appointed and filed an amended PCRA
petition. In counsel’s amended petition, Appellant claimed:
1. Petitioner was denied due process of law by ineffective
assistance of counsel during pre-trial proceedings.
2. Petitioner was denied due process by counsel’s failure to
ensure fair process.
3. Petitioner was denied due process of law by ineffective
assistance by counsel’s failure to prepare.
Appellant’s Amended PCRA Petition at 3. The Commonwealth filed a
response on September 12, 2014. On December 18, 2014, the PCRA court
issued a Pa.R.Crim.P. 907 notice. The PCRA court did not receive a response
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from Appellant, and so it dismissed Appellant’s petition. Appellant then filed
the instant appeal.
In his Pa.R.A.P. 1925(b) statement of errors complained of on appeal,
Appellant asserted that:
1. The [PCRA] court was in error in denying the defendant’s
PCRA [petition] without an evidentiary hearing.
2. The [PCRA] court was in error in denying the amended PCRA
[petition] filed by PCRA counsel on February 6, 2014. The issues
to be raised before the Superior Court in this appeal are fully set
forth and developed in the amended PCRA [petition] filed by
Appellant’s counsel.
Appellant’s Rule 1925(b) Statement. The PCRA court filed a Rule 1925(a)
opinion dismissing all of Appellant’s claims. Appellant now essentially raises
the same issues as those stated in his Rule 1925(b) statement for our
review.
“In PCRA proceedings, an appellate court’s scope of review is limited
by the PCRA’s parameters; since most PCRA appeals involve mixed
questions of fact and law, the standard of review is whether the PCRA court’s
findings are supported by the record and free of legal error.”
Commonwealth v. Pitts, 981 A.2d 875, 878 (Pa. 2009).
In his first issue, Appellant alleges that the PCRA court erred by not
granting an evidentiary hearing on his amended PCRA petition. Appellant
argues that, while the right to an evidentiary hearing is not absolute, when
the facts alleged in a PCRA petition would entitle an appellant to relief if
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proven, the court may not dismiss the petition without an evidentiary
hearing. Appellant’s Brief at 15.
A PCRA court may dismiss a petition without a hearing when the
petition does not present an issue of material fact, when the PCRA court
believes the petitioner is not entitled to relief, and when a hearing would
serve no legitimate purpose. Pa.R.Crim.P. 907(1). “[T]o obtain reversal of
a PCRA court’s decision to dismiss a petition without a hearing, an appellant
must show that he raised a genuine issue of fact which, if resolved in his
favor, would have entitled him to relief, or that the court otherwise abused
its discretion in denying a hearing.” Commonwealth v. Sneed, 45 A.3d
1096, 1105-06 (Pa. 2012).
Appellant does not indicate what genuine issue of fact, if proven,
would entitle him to relief. Rather, he asserts only the general allegation
that “the claims of ineffectiveness raised in Appellant’s amended PCRA
petition are meritorious” and contends “the PCRA [c]ourt should have
granted an evidentiary hearing to provide the forum to demonstrate such
manifest injustice.” Appellant’s Brief at 15-16. Appellant fails to point out
any issue of material fact, and we cannot construct Appellant’s argument for
him. Accordingly, Appellant is not entitled to relief on his first issue.
Appellant’s second issue is that the PCRA court erred in not granting
relief on his claim that trial counsel was ineffective. To establish an
ineffective assistance of counsel (IAC) claim, a PCRA petitioner must plead
and prove: (1) the underlying issue is of arguable merit; (2) counsel lacked
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a strategically reasonable basis for the act or omission; and (3) the
petitioner suffered prejudice in that counsel’s ineffectiveness affected the
result of the proceeding. Commonwealth v. Harris, 852 A.2d 1168, 1173
(Pa. 2004). Failure to prove any prong will defeat an ineffectiveness claim.
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779–80 (Pa. Super.
2015) (en banc), appeal denied, 123 A.3d 331 (Pa. 2015).
Appellant argues that trial counsel was ineffective for four reasons:
(1) counsel failed to properly litigate Appellant’s claims pursuant to
Pa.R.Crim.P. 600, (2) counsel failed to properly litigate Appellant’s claims
pursuant to the Interstate Agreement on Detainers Act (IAD), (3) counsel
failed to object to the Commonwealth’s improper use of videotaped
testimony pursuant to Pa.R.E. 501, and (4) counsel failed to adequately
prepare to represent Appellant. Appellant’s Brief at 19, 22, 24. All four of
these claims fail at least one prong of the IAC test.
On his first claim, that trial counsel was ineffective for failing to litigate
properly Appellant’s claims pursuant to Pa.R.Crim.P. 600, Appellant argues
that trial counsel failed to object to the trial court’s granting of numerous
continuances on behalf of the complaining witness, and that trial counsel
failed to check with local medical facilities or hospitals to determine whether
the Complainant, Ms. Martin, was actually seriously ill and unable to testify.
Appellant’s Brief at 19.
While Appellant couches these arguments as an IAC claim, the
underlying issue is substantively the same as that which Appellant previously
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raised before this Court. See Leak, 22 A.3d at 1039-50. Therein this Court
held:
Leak next argues that the trial court erred in denying
Leak’s motion to dismiss pursuant to Pa.R.Crim.P. 600(G). Rule
600 provides that, where a defendant is at liberty on bail, trial
must commence within 365 days of the date of the criminal
complaint. Pa.R.Crim.P. 600(A)(3). Rule 600(G) provides as
follows:
(G) For defendants on bail after the expiration of 365
days, at any time before trial, the defendant or the
defendant’s attorney may apply to the court for an
order dismissing the charges with prejudice on the
ground that this rule has been violated. A copy of
such motion shall be served upon the attorney for
the Commonwealth, who shall also have the right to
be heard thereon.
If the court, upon hearing, shall determine that the
Commonwealth exercised due diligence and that the
circumstances occasioning the postponement were
beyond the control of the Commonwealth, the
motion to dismiss shall be denied and the case shall
be listed for trial on a date certain. If, on any
successive listing of the case, the Commonwealth is
not prepared to proceed to trial on the date fixed,
the court shall determine whether the
Commonwealth exercised due diligence in attempting
to be prepared to proceed to trial. If, at any time, it
is determined that the Commonwealth did not
exercise due diligence, the court shall dismiss the
charges and discharge the defendant.
Pa.R.Crim.P. 600(G).
....
The record in the instant matter reflects that the
preliminary hearing for the Commonwealth’s first complaint was
continued six times. One of the six continuances was requested
by the defense. N.T. 4/30/07, at 8. Four others were
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necessitated because Martin, the complaining witness, was
believed to be terminally ill with AIDS and could not attend. Id.
at 5–6. Another was continued because Martin returned to her
native Georgia to live with her parents and was incarcerated
there on a probation violation. Id. at 6; N.T., 6/23/08, at 8.5
The district attorney from Chatham County Georgia informed
Commonwealth authorities in late January of 2006 that Georgia
authorities were in the process of determining what sentence
Martin would receive for violating her probation, and that Martin
could not readily be made available for transfer back to
Pennsylvania. N.T., 6/23/08, at 8–9. The Commonwealth
withdrew its first complaint against Leak on February 14, 2006,
because it was evident that Martin would not be transferred back
to Pennsylvania prior to Leak’s “must be tried” date. N.T.,
4/30/07, at 6.
....
In the instant matter, the record reflects that it was
impossible for the Commonwealth to procure Martin’s testimony
prior to the withdrawal of the first complaint. The Rule 600
hearing records establish that Commonwealth was unable to
procure Martin’s transportation from a Georgia prison in time for
Leak’s must be tried date, and Leak did not dispute that Martin’s
illness prevented her from attending four preliminary hearings
prior to her incarceration in Georgia. Under these
circumstances, we conclude that the trial court acted within its
discretion in finding that the withdrawal and re-filing of charges
against Leak was not the result of misconduct or lack of due
diligence on the part of the Commonwealth. Indeed, given
Martin’s grave health condition, the Commonwealth had every
incentive to procure her testimony as soon as possible.
Accordingly, the trial court did not err in rejecting Leak’s
assertion that the original criminal complaint was the triggering
event for the Rule 600 period. Since Leak’s Rule 600 argument
is based entirely on that assertion, the argument fails.
Commonwealth v. Leak, 22 A.3d 1036, 1041-43 (Pa. Super. 2011). In its
Rule 1925(a) opinion, the PCRA court also noted that,
as a matter of equity, that this [c]ourt held two hearings prior to
trial on unavailability. That this [c]ourt spoke to the complaining
witness’s doctor, whereupon this [c]ourt was told that the
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complaining witness was bedridden and terminally ill. That this
[c]ourt even attempted to set up a video hearing in Chatham
County, Georgia, so that the Complainant who was very ill could
testify, and she was not able to. She was bedridden and
couldn’t even be taken to the local courthouse.
PCRA Court Opinion, 3/27/15, at 7 (citation omitted). As this Court’s
disposition of Appellant’s Rule 600 claim in Leak and the PCRA court’s
explanation of Complainant’s circumstances clearly establishes, Appellant’s
instant Rule 600 argument is meritless. Therefore, Appellant’s first IAC
claim fails.
Appellant’s second IAC allegation, that trial counsel failed to properly
litigate his IAD claim, also fails. Appellant does not indicate how this
argument is of arguable merit as applied to the facts of his case, what action
or inaction of trial counsel resulted in counsel’s failure to properly litigate
this claim, or how prejudice, if any, would have affected the outcome of his
proceedings. If Appellant is alluding to this Court’s disposition of his IAD
claim in Leak to support this second IAC allegation, Appellant’s claim again
fails.3 While Appellant generally discusses the structure of the IAD, as
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3
Regarding Appellant’s IAD claim in Leak, we held as follows.
Leak also asserts an argument pursuant to Article III of the IAD.
“Article III of the IAD allows a prisoner against whom a detainer
has been lodged to request that he or she be transferred to the
jurisdiction that filed the detainer and be brought to trial within
180 days of his or her request.” Id. (citing 42 Pa.C.S.A. § 9101,
Article III). Leak, however, failed to include this argument in his
Pa.R.A.P. 1925(b) concise statement of matters complained of
on appeal. Leak’s concise statement addresses his Article IV
argument in detail, but makes no mention of an argument under
(Footnote Continued Next Page)
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stated above, he completely fails to articulate how the facts in his case, as
applied under that statute, demonstrate how trial counsel’s ineffectiveness
affected the result of his proceeding. Appellant fails to satisfy any of the
three prongs of the IAC test. Appellant’s second IAC claim fails.
Appellant’s third IAC claim is that trial counsel failed to object to the
Commonwealth’s improper use of videotaped testimony pursuant to
Pa.R.Crim.P. 501. Appellant’s Brief at 22. Appellant argues that, because
trial counsel failed “to properly prepare and verse himself in the rules of
criminal procedure,” he failed to ensure a fair process as “the
Commonwealth made use of a videotape to preserve the complaining
witness’s testimony.” Appellant’s Brief at 20-21. Appellant alleges that trial
counsel failed to properly object under Rules 500 and 501 even though trial
counsel was “aware through the Appellant’s assertions that the complaining
witness was actually living in Philadelphia and not so seriously ill that she
was prevented from testifying.”4 Appellant’s Brief at 21. Further, Appellant
argues that, “[b]y trial counsel’s own admission, he was not prepared to
_______________________
(Footnote Continued)
Article III. As a result, Leak has waived his Article III argument.
Pa.R.A.P. 1925(b)(4)(vii).
Leak, 22 A.3d at 1040-41.
4
As this Court concluded in Leak, “the instant record makes abundantly
clear that [Complainant] was terminally ill with AIDS at the time of the
preliminary hearing, and that she passed away prior to [Appellant]’s trial.”
Leak, 22 A.3d at 1047. We explain this more fully below.
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cross-examine the complaining witness,” and that trial counsel’s
ineffectiveness denied Appellant the opportunity to adequately cross-
examine the complaining witness. Appellant’s Brief at 21, 22 (citation
omitted).
Contrary to Appellant’s assertion, the record reveals that trial counsel
did object to the videotape at the preliminary hearing. See N.T. Preliminary
Hearing, 8/6/08, at 5 (“We will object to a videotape.”). Additionally,
Appellant’s implication that trial counsel did not adequately cross-examine
Complainant because he did not prepare for the hearing is incorrect. Rather,
the portion of the record that Appellant cites reveals that trial counsel was
concerned that he would not have a “full and fair opportunity to cross-
examine” Complainant under the circumstances stating, “[n]one of us are
able to conduct cross-examinations [at] preliminary hearings that would be
to the extent that we will at trial.” Preliminary Hearing, 8/6/08, at 7. In
Leak, this Court thoroughly addressed the issue underlying Appellant’s IAC
claim regarding the admission of Complainant’s videotaped testimony. See
Leak, 22 A.3d at 1043-49. Briefly, this Court held the following.
We next consider Leak’s argument that the trial court
erred in admitting into evidence the video of [Complainant]’s
preliminary hearing testimony. In light of [Complainant]’s
terminal illness, the Commonwealth sought to preserve her
testimony by videotape so that it could be used at trial if
[Complainant] was unavailable. Rule 500 of the Pennsylvania
Rules of Criminal Procedure, which we will address in more detail
below, permits videotaped preservation of a witness’ testimony
in certain circumstances.
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....
Since Leak was afforded a full and fair opportunity to cross
examine [Complainant], and since the Commonwealth’s
technical noncompliance with Rule 500 did not result in any
prejudice, we conclude that a miscarriage of justice would result
from excluding [Complainant]’s testimony, not from its
admission. The trial court did not abuse its discretion in
admitting [Complainant]’s videotaped testimony into evidence at
trial. Leak’s Rule 500 argument fails.
Leak, 22 A.3d at 1043-49. Accordingly, Appellant’s third IAC claim is
without merit. 42 Pa.C.S.A. § 9543(a)(3).
Appellant’s fourth and final IAC claim is that trial counsel failed to
adequately prepare to represent Appellant. Appellant’s Brief at 24.
Appellant argues that trial counsel failed to investigate the procedure
employed by the arresting officers, claiming this would have led to “valuable
impeachment evidence.” Appellant’s Brief at 23. Appellant argues that trial
counsel failed to investigate the whereabouts of the Complainant throughout
the pre-trial proceedings and to verify that she was seriously ill and unable
to testify. Appellant’s Brief at 23. Appellant also alleges that trial counsel
should have employed an expert witness. Appellant’s Brief at 24.
As the PCRA court notes, Appellant fails to specify how investigation
into the procedures employed by the arresting officers would have produced
exculpatory evidence,
particularly in light of the evidence that the police came onto the
scene to see [Appellant] holding a knife to the [Complainant].
The [Complainant]’s blood was found on [Appellant]’s shirt.
[Appellant]’s DNA, which was recovered from sperm on the
[Complainant]’s shirt, was retested at [Appellant]’s request and
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again confirmed it was [Appellant]’s DNA. The evidence against
this [Appellant] was overwhelming.
PCRA Court Opinion, 3/27/15, at 6-7. Appellant also fails to specify how trial
counsel investigating the whereabouts of Complainant would have produced
exculpatory evidence given that “the instant record makes abundantly clear
that [Complainant] was terminally ill with AIDS at the time of the
preliminary hearing, and that she passed away prior to [Appellant]’s trial.”
Leak, 22 A.3d at 1047, n. 10; see also PCRA Court Opinion, 3/27/15, at 7.
As such, these arguments are meritless. Additionally, Appellant presents no
argument as to what sort of expert was necessary for his defense or how he
suffered prejudice as a result of trial counsel’s failure to hire an expert.
Accordingly, Appellant cannot establish any of the three IAC prongs.
Appellant’s fourth IAC claim fails.
As Appellant is not entitled to relief on any of his issues, we affirm the
January 23, 2015 order of the PCRA court dismissing Appellant’s PCRA
petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/16/2016
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