Com. v. Cox, D.

J-S33010-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.

DAYVON COX

Appellant No. 936 WDA 2015

Appeal from the PCRA Order December 22, 2014
in the Court of Common Pleas of Beaver County Criminal Division
at No(s): CP-04-CR-0000122-2006

BEFORE: GANTMAN, P.J., OLSON, J., and FITZGERALD,* J.

MEMORANDUM BY FITZGERALD, J.: FILED NOVEMBER 14, 2016

This case returns to us after the PCRA1 court permitted former counsel

to withdraw and determined that Appellant, Dayvon Cox, intended to

proceed pro se and knowingly and voluntarily waived his right to counsel in

this appeal. Appellant appeals pro se from the order denying his timely first

PCRA petition without a hearing. He asserts the PCRA court erred in denying

relief on his claims that (1) direct appeal counsel was ineffective for not

challenging the trial court’s decision not to replace a juror who belatedly

revealed his wife was a victim of sexual abuse, (2) the imposition of a

mandatory minimum sentence was illegal under Alleyne v. United States,

133 S. Ct. 2151 (2013), and (3) trial counsel was ineffective for not seeking

the appointment of a rebuttal expert for the sexually violent predator

*
Former Justice specially assigned to the Superior Court.
1
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.
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(“SVP”) proceeding. Additionally, Appellant claims the PCRA court erred in

denying relief on his assertions that prior counsel were ineffective for failing

to (1) challenge the trial court’s decision not to replace two jurors who had

contact with a victim’s relative and a support advocate during deliberations,

(2) challenge the trial court’s decision to sustain the Commonwealth’s use of

a peremptory strike of a prospective juror under Batson v. Kentucky, 476

U.S. 79 (1986), and (3) seek admission of evidence of a victim’s prior sexual

activity as an exception to the Rape Shield, 18 Pa.C.S. § 3104.2 We affirm.

This Court previously summarized the facts and procedures underlying

Appellant’s convictions as follows:

In the prosecution of this case, the Commonwealth
presented testimony from [J.M.], [M.M.] and
Brandon Morgan. They testified to a meeting in East
Rochester between the three (3) of them and
[Appellant] and Brandon Revis. The purpose of this
meeting was for Morgan to take [Appellant] and
Revis to another individual who could supply them
with marijuana. After reaching their destination and
not finding the individual, [Appellant] pulled out a
gun, struck Morgan in the head with it and forced
Morgan back into the vehicle and made him drive.
At this point, [Appellant] was in control of the
vehicle’s passengers. [Appellant] held a gun to
[J.M.]’s head before again pointing the gun at
Morgan. After forcing Morgan to pull into a parking
lot, [Appellant] shot out the driver’s window in
Morgan’s vehicle and asked Morgan if he thought “he
was joking around”. Next, [Appellant] forced Morgan
to drive toward Rochester. Morgan continued driving
into Monaca and [Appellant] forced Morgan, at
gunpoint, out of the driver’s seat and into the back

2
We have reordered the claims presented in Appellant’s brief.

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seat. [Appellant] then began driving the vehicle.
[Appellant] struck Morgan in the head with his gun
once again and demanded any money that Morgan
had with him. At this point, [Appellant] forced [J.M.]
and [M.M.] to remove their clothing. Next,
[Appellant] forced Morgan to withdraw three-
hundred dollars ($300.00) at an ATM, while
accompanied by Revis, and demanded any jewelry
[J.M.] and [M.M.] were wearing. After driving to
another parking lot, [Appellant] told the three (3)
victims to get out of the vehicle and then forced
[J.M.] to return to the vehicle and perform oral sex
on him, as well as, vaginal sex. [Appellant] also
pointed his gun at [M.M.] and forced her to perform
oral sex on Brandon Morgan. After a short time,
[Appellant] left Morgan and [M.M.] and drove [J.M.]
to an alleyway where he forced [J.M.] to engage in
sexual activity with [four men in addition to
Appellant] who had assembled there.

Morgan and [M.M.] were able to stop Aliquippa Police
Officer Donald Lane as he was responding to a possible
burglary call. They explained what had happened and a
police bulletin was issued describing Morgan’s vehicle and
[J.M.]. At approximately 3:45 a.m., Ambridge Police
Officer Michael McQuaide located [J.M.], who was then
transported to Aliquippa Hospital where a medical
examination was conducted. At the hospital, [J.M.] told
the investigating police officers that Appellant forced her to
perform oral sex and engage in vaginal intercourse with
him and four other men, who were later identified as
Brandon Revis, Demarkus Walker, Enrico Jackson and
Carlos Hicks. Walker subsequently stated that he and
Jackson watched Appellant rape [J.M.]. When Appellant
finished with her, all the men took turns raping and
sexually assaulting her. When Appellant was arrested, he
was found to be in possession of jewelry that belonged to
[J.M.].

Appellant was charged with multiple counts of rape,
involuntary deviate sexual intercourse (IDSI), sexual
assault, kidnapping, unlawful restraint, robbery, terroristic
threats, simple assault, aggravated assault, and criminal
conspiracy, and one count each of carrying a firearm

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without a license and robbery of a motor vehicle.[3] On
September 26, 2006, a jury convicted Appellant of three
counts of kidnapping, four counts of robbery, one count of
sexual assault, one count of carrying a firearm without a
license, three counts of terroristic threats, one count of
simple assault and one count of aggravated assault with a
deadly weapon. [18 Pa.C.S. §§ 2901, 3701, 3124.1,
6106, 2706, 2701, and 2702, respectively.] The trial court
ordered a pre-sentence investigation and report. The trial
court also ordered an investigation to be conducted
pursuant to Pennsylvania’s version of Megan’s Law[,
former 42 Pa.C.S. §§ 9791-9799.9].

A Megan’s Law hearing was conducted on February 7,
2007, after which the trial court determined that Appellant
is a sexually violent predator. That same day, the trial
court sentenced Appellant to serve an aggregate term of
twenty-three to fifty-four years of incarceration. Appellant
filed a post-sentence motion with several supplements, all
of which were denied on July 5, 2007.

Commonwealth v. Cox, 1873 WDA 2007 (Pa. Super. Dec. 2, 2008)

(unpublished memorandum at 1-4). Appellant was represented at trial by

Gerald V. Benyo, Esq., and Todd J. Hollis, Esq. (“trial counsel”).

Although Appellant did not take a timely appeal, the trial court

reinstated his direct appeal rights on October 1, 2008. Id. at 4. Appellant,

represented by Patrick K. Nightingale, Esq. (“direct appeal counsel”), took a

direct appeal, and this Court affirmed on December 2, 2008. Id. at 35. The

3
At trial, Appellant testified on his own behalf and acknowledged assaulting
Morgan. See N.T. Trial VI, 9/21/06, at 1114. However, he denied
possessing a firearm and insisted that J.M. consented to all of the sexual
activity. See, e.g., id. at 1116, 1118. Additionally, Appellant conducted
extensive cross-examination of J.M. and his co-defendants on the issue of
J.M.’s alleged consent. See, e.g., N.T. Trial III, 9/18/06, at 70-77; N.T.
Trial V, 9/20/06, at 848-50.

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Pennsylvania Supreme Court denied allowance of appeal on November 5,

2009. Commonwealth v. Cox, 197 WAL 2009 (Pa. Nov. 5, 2009).

Appellant, acting pro se, filed a timely PCRA petition, which the PCRA

court received on October 27, 2010. The court appointed counsel, Mitchell

P. Shahen, Esq., on December 7, 2010. On April 11, 2012, Attorney Shahen

filed an amended PCRA petition claiming prior counsel failed to challenge (1)

the systematic exclusion of blacks from the jury selection process, (2)

references to Appellant’s co-defendants’ guilty pleas and their agreements to

testify truthfully, (3) the Commonwealth’s improper remarks during opening

statements, trial, and closing statements, and (4) contact between the

victim’s family and two jurors in the courthouse’s parking garage.

Additionally, Appellant asserted trial counsel was ineffective for failing to

seek admission of evidence of the victim’s prior sexual conduct, namely, the

presence of seminal fluid that was not matched to the victim’s boyfriend,

Appellant, or Appellant’s co-defendants. Attorney Shahen’s petition also

listed two claims that Appellant raised in his pro se petition, but which

counsel believed lacked merit.

Subsequently, Attorney Shahen filed two motions: (1) a counseled

motion for a Grazier hearing on July 13, 2012,4 and (2) a motion to add

Appellant’s pro se claims to the amended PCRA petition on August 16, 2012.

4
See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). Appellant
previously filed a pro se motion for a Grazier hearing, which the PCRA court
docketed on June 29, 2012.

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The PCRA court, on August 23, 2012, granted leave to add claims to the

amended petition, but directed counsel to address whether those claims

lacked merit. On August 28, 2012, the court denied the amended petition

and added claims without a hearing and denied the motion for a Grazier

hearing as moot. The court’s order and opinion did not address Appellant’s

ineffectiveness claim regarding evidence of J.M.’s prior sexual activity. The

court did not issue a Pa.R.Crim.P. 907 notice in advance of its order.

On September 14, 2012, Attorney Shahen filed a no-merit brief with

respect to the claims raised in Appellant’s initial pro se petition, including

Appellant’s claim that direct appeal counsel should have challenged the

Commonwealth’s grounds for striking a juror under Batson. The PCRA

court, on September 17, 2012, issued a Rule 907 notice of its intent to

dismiss Appellant’s “pro se petitions.” On October 12, 2012, the court

received a pro se response from Appellant.

No further action was taken until October 31, 2013, when the PCRA

court received Appellant’s pro se motion for a Grazier hearing. On

December 23, 2013, the PCRA court scheduled a hearing on the motion.

Following a hearing, the court, on January 13, 2014, granted leave to

Attorney Shahen to withdraw and apprised Appellant of his right to proceed

pro se or with privately retained counsel. The court granted Appellant leave

to file an amended petition within 120 days. Appellant requested, and was

granted, an extension of time.

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On July 14, 2014, Chris R. Eyster, Esq., entered an appearance on

Appellant’s behalf and filed another counseled PCRA petition. Appellant,

through counsel, asserted (1) trial counsel was ineffective for failing to seek

appointment of a defense expert for the SVP proceeding, (2) his sentence

was illegal under Alleyne, and (3) the Commonwealth, at sentencing,

committed prosecutorial misconduct by denying that it had offered a plea

deal to Appellant for ten to thirty years’ imprisonment.

On July 22, 2014, without knowledge of Attorney Eyster’s petition, the

PCRA court entered an order denying Appellant’s first PCRA petition without

a hearing. On July 30, 2014, Appellant filed a motion for reconsideration

and, on August 12, 2014, the PCRA court vacated its order. On October 29,

2014, the court issued a notice of its intent to dismiss. Appellant filed a

counseled response on November 24, 2014. The court denied the petition

without a hearing on December 22, 2014. Appellant timely appealed and

complied with the court’s order to submit a Pa.R.A.P. 1925(b) statement.

Following a remand, the PCRA court permitted Attorney Eyster to withdraw

and found Appellant’s decision to proceed pro se was knowing and

voluntary.5 This appeal followed.

5
After this Court remanded the matter for a determination of Attorney
Eyster status, Attorney Eyster filed an application for relief in this Court
based, in part, on a scheduling conflict with the trial court. We dismiss the
application for relief as moot.

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Appellant’s pro se brief presents six questions for review, which we

have reordered as follows:

Whether the PCRA court erred in finding that direct appeal
counsel did not render ineffective assistance of counsel in
violation of the 6th Amendment under the U.S.
Constitution for counsel’s failure to argue on appeal that
the trial court abused its discretion, therein violating the
appellant’s Due Process rights under the 14th Amendment
of the U.S. Constitution, by allowing a juror to remain on
the jury after finding out that the juror was untruthful on
his questionnaire and whether the inability of [A]ppellant
to have this critical withheld information made
available/known to him at the time of the initial voir dire,
effectively deprived the defense of its opportunity to utilize
one of its peremptory challenges to have the juror
removed, causing [A]ppellant to be prejudiced?

Whether the PCRA Court erred in finding that direct appeal
counsel did not render ineffective assistance under the 6th
Amendment of the U.S. Constitution for counsel’s failure to
argue on appeal that the trial court violated [A]ppellant’s
Due Process rights under the U.S. Constitution, 8th
Amendment right to be free from cruel and unusual
punishment when it abused its discretion in sentencing
[A]ppellant to an illegal sentence pursuant to [Alleyne]?

Whether the PCRA Court erred in finding that direct appeal
counsel did not render ineffective assistance under the 6th
Amendment of the U.S. Constitution when counsel did not
move the Court for appointment of a defense expert,
whose testimony would have rebut the Commonwealth’s
psychiatric expert who condemned [A]ppellant as a
psychopath and SVP?

Whether the PCRA Court erred in finding that direct appeal
counsel did not render ineffective assistance of counsel in
violation of the 6th Amendment under the U.S.
Constitution for counsel’s failure to argue on appeal that
the trial court abused its discretion, for refusing to remove
2 jurors who had ex-parte communication with the mother
and father of one of the alleged victims, causing the

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[A]ppellant to be denied his U.S. Constitutional right to a
fair trial?

Whether the PCRA Court erred in finding that direct appeal
counsel did not render ineffective assistance under the 6th
Amendment of the U.S. Constitution for counsel’s failure to
argue on appeal that the trial court abused its discretion
when it allowed the Commonwealth to use its peremptory
strike to exclude a juror on the basis of race, thereby
violating [A]ppellant’s 14th Amendment right to a fair trial
under the U.S. Constitution, and 8th Amendment right to
Equal Protection of the law and federal law, pursuant to
Batson . . . ?

Whether the PCRA Court erred in finding that direct appeal
counsel did not render ineffective assistance under the 6th
Amendment of the U.S. Constitution when counsel failed to
take steps to seek admission of evidence consisting of the
victim’s sexual activities with a third party, other than her
paramour or one of the other codefendant’s for the
purpose of attacking her credibility?

Appellant’s Brief at 4-5.

This Court has stated:

Our standard and scope of review for the denial of a
PCRA petition is well-settled.

[A]n appellate court reviews the PCRA court’s
findings of fact to determine whether they are
supported by the record, and reviews its conclusions
of law to determine whether they are free from legal
error. 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. Charleston, 94 A.3d 1012, 1018-19 (Pa. Super. 2014)

(citation omitted), appeal denied, 104 A.3d 523 (Pa. 2014).

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Appellant’s first three claims warrant no relief or extensive discussion.

First, Appellant asserts direct appeal counsel was ineffective for failing to

challenge the alleged misconduct of a juror, who belatedly disclosed his

wife’s prior sexual assault. See Appellant’s Brief at 11. However, the

underlying claim was raised in his direct appeal and denied on its merits.

Cox, 1873 WDA 2007 at 19 (“In light of the evidence of record, we can find

no indication that the trial court committed a palpable abuse of discretion in

declining to disqualify Juror No. 3, and we decline to grant relief on this

claim.”). Thus, there is no basis to this claim of ineffectiveness.

Second, as to Appellant’s intended Alleyne challenge, the PCRA court

concluded that this claim was meritless because Alleyne did not apply

retroactively. See Appellant’s Brief at 28; PCRA Ct. Op. II, 10/29/14, at 2

(unpaginated). The Pennsylvania Supreme Court recently held, “Alleyne

does not apply retroactively to cases pending on collateral review.”

Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016). Instantly,

Appellant’s sentence became final on February 3, 2010, after the

Pennsylvania Supreme Court denied allowance of appeal in Appellant’s direct

appeal on November 5, 2009, and the period to petition the United States

Supreme Court for writ of certiorari expired. Cf. 42 Pa.C.S. § 9545(b)(3).

Alleyne was decided on June 17, 2013, more than three years after

Appellant’s sentence became final. Cf. Alleyne, 133 S. Ct. at 2151.

Therefore, there is no merit to Appellant’s argument that Alleyne should

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apply retroactively and render his sentence illegal for the purposes of

collateral review.6 See Washington, 142 A.3d at 820.

Third, although Appellant suggests trial counsel should have obtained

an expert to rebut the Commonwealth’s SVP expert, the PCRA court properly

determined that this Court’s decision in Commonwealth v. Masker, 34

A.3d 841 (Pa. Super. 2011) (en banc), bars consideration of that claim

under the PCRA. See Appellant’s Brief at 39; PCRA Ct. Op. II at 1

(unpaginated). Specifically, the Masker Court held that challenges to the

process by which an SVP determination was reached, including claims that

trial counsel should have obtained a rebuttal expert, were not cognizable

under the PCRA.7 See Masker, 34 A.3d at 842-44. Therefore, we discern

no basis to disturb the PCRA court’s ruling on this claim.

Having reviewed Appellant’s first three claims, we conclude no

appellate relief is due. We now proceed to Appellant’s remaining three

claims, which are framed in terms of ineffective assistance of trial or direct

appeal counsel.

6
Appellant does not develop a separate cruel and unusual punishment
argument.
7
In any event, Appellant has not established that a rebuttal expert would be
available and willing to contradict the Commonwealth’s expert. See
Commonwealth v. Chmiel, 30 A.3d 1111, 1143 (Pa. 2011) (“The mere
failure to obtain an expert rebuttal witness is not ineffectiveness. Appellant
must demonstrate that an expert witness was available who would have
offered testimony designed to advance appellant’s cause.” (citation
omitted)).

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In reviewing these claims, we are mindful that

[c]ounsel is presumed effective, and to rebut that
presumption, the PCRA petitioner must demonstrate that
counsel’s performance was deficient and that such
deficiency prejudiced him. In Pennsylvania, we have
refined the Strickland [v. Washington, 466 U.S. 668
(1984),] performance and prejudice test into a three-part
inquiry. Thus, to prove counsel ineffective, the petitioner
must show that: (1) his underlying claim is of arguable
merit; (2) counsel had no reasonable basis for his action or
inaction; and (3) the petitioner suffered actual prejudice as
a result. . . . To demonstrate prejudice, the petitioner
must show that there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the
proceedings would have been different. A reasonable
probability is a probability that is sufficient to undermine
confidence in the outcome of the proceeding.

Charleston, 94 A.3d at 1019 (some citations omitted); see also

Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014) (noting “[t]o

establish . . . prejudice in the appellate representation context, the

petitioner must show that there is a reasonable probability that the outcome

of the direct appeal proceeding would have been different but for counsel’s

deficient performance.”), cert. denied, 135 S. Ct. 2817 (2015).

Appellant, in his fourth claim, asserts direct appeal counsel was

ineffective for not challenging the trial court’s decision to not replace two

jurors who had contact with J.M.’s victim advocate and J.M.’s stepfather in

the courthouse’s parking garage. Appellant’s Brief at 20-25. Appellant

asserts the issues arising from the contact, which occurred while the jury

was deliberating and was objected to by trial counsel, should have been

raised on direct appeal and warrants a new trial. Id. at 13. Appellant also

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suggests that trial counsel should have insisted on further voir dire of the

parties involved in the contact, as well as the police detective to whom the

victim advocate and J.M.’s stepfather initially reported the contact. Id. at

21. No relief is due.

We review the underlying claim that the trial court erred in denying a

mistrial for an extraneous influence on the jury for an abuse of discretion.

Commonwealth v. Tharp, 830 A.2d 519, 532 (Pa. 2003).

An extraneous influence may compromise the impartiality
and integrity of the jury, raising the specter of prejudice.
The relevant inquiry is whether the extraneous influence
caused “a reasonable likelihood of prejudice.” In making
the “reasonable likelihood of prejudice” determination, the
court must consider: “(1) whether the extraneous
influence relates to a central issue in the case or merely
involves a collateral issue; (2) whether the extraneous
influence provided the jury with information they did not
have before them at trial; and (3) whether the extraneous
influence was emotional or inflammatory in nature.” The
burden is on the party claiming prejudice.

Commonwealth v. Sneed, 45 A.3d 1096, 1115 (Pa. 2012) (citations

omitted).

Instantly, the PCRA court denied relief on this issue for the following

reasons:

[Appellant] asserts that on or about September 25, 2006
in the Beaver County Courthouse Parking Garage, the
stepfather of the victim, who was not a witness in the trial,
and a Beaver County Victim Advocate, who was also not a
witness in the trial, assisted two Jurors with obtaining a
jump for a dead automobile battery around 5:30 p.m., one
(1) hour past the normal close of Courthouse business.
[Appellant] contends that these two particular Jurors, Nos.
5 and 8, could clearly have identified the “allegiance” of

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the two individuals who assisted them that evening
because they were, in fact, White or Caucasian, and the
victim’s family was entirely Caucasian, while the
[Appellant]’s family was entirely Black or African American.
[Appellant] claims this identification based solely on race
of the parties involved, as well as the time and manner of
the contact in the garage makes for a situation where the
Jurors involved would likely be prejudiced against
[Appellant].

Upon questioning by counsel and the Court in
Chambers, it was determined that Juror No. 5 was the
individual with a dead automobile battery and Juror No. 8
was present at the time the interactions took place. Juror
No. 5 stated that she did not know the individuals who
assisted her, had never seen the individuals, nor was
anything about the trial discussed with these two
individuals. Juror No. 5 answered that nothing that
transpired in the garage would affect her ability to view
and decide the case.[ ] Juror No. 8 was questioned
similarly and responded that she did not know these two
individuals to be associated with the trial, nor could she
identify them and that nothing was said relating to this
trial or deliberations.

A defendant has the right to have his or her case heard
by a fair, impartial and unbiased jury and ex parte contact
between jurors and witnesses is viewed with disfavor.
Commonwealth v. Brown, . . . 786 A.2d 961, 972 ([Pa.]
2001). There is, however, no per se rule in this
Commonwealth requiring a mistrial anytime there is
improper or inadvertent contact between a juror and a
witness. See Commonwealth v. Mosley, . . . 637 A.2d
246, 249 ([Pa.] 1993). Whether such contact warrants a
mistrial is a matter addressed primarily to the discretion of
the Trial Court. Brown, 786 A.2d at 972 (citation
omitted). A Trial Court need only grant a mistrial where
the alleged prejudicial event may reasonably be said to
have deprived the moving party of a fair and impartial
trial. Commonwealth v. Fletcher, . . . 750 A.2d 261,
282 ([Pa.] 2000).

In this case, the facts do not present a situation where
an event can reasonably be said to have deprived

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[Appellant] of a fair and impartial trial. The Jurors did not
know the individuals with whom they came in contact, they
could not ascertain any involvement of those individuals
with the trial, no such contact related to the trial, no
conversations were had involving the trial, and both Jurors
stated that nothing that transpired would affect their
ability to continue as members of the Jury. The mere
opportunity to influence a juror does not require a mistrial,
and such determination is within the sound discretion of
the Trial Court. Trial counsel was not ineffective for failure
to pursue this issue on appeal, and [Appellant’s] position
holds no merit.

PCRA Ct. Op. I, 8/28/12, at 7-9 (unpaginated) (some citations omitted).

We have reviewed the record related to Appellant’s underlying claim

and find it supports the PCRA court’s factual findings. Moreover, the

governing law supports the court’s legal conclusions that Appellant’s

underlying appellate issue was meritless and Appellant could not

demonstrate that the result of his appeal would have been different had the

issue been raised. See Blakeney, 108 A.3d at 740; Sneed, 45 A.3d at

1115; Tharp, 830 A.2d at 532. Although Appellant further asserts trial

counsel should have insisted on further examination of all parties involved or

related to the contact, he does not demonstrate that any additional evidence

would have altered the trial court’s determination that Jurors 5 and 8

remained impartial despite the contact. See Blakeney, 108 A.3d at 740;

Charleston, 94 A.3d at 1019. Therefore, we affirm the PCRA court’s denial

of relief of this claim.

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Appellant next claims that direct appeal counsel was ineffective for not

challenging the Commonwealth’s striking of a juror. Appellant’s Brief at 37-

39.8 We disagree.

Appellant’s claim arises out of the striking of a Black female juror

initially designated as SP2-29 and seated as Juror 12.9 When completing the

juror questionnaire, the prospective juror indicated “yes” when asked

whether she would have a problem following the court’s instruction when the

defendant does not testify. N.T. Voir Dire, 9/14/06, at 198. During further

examination, the prospective juror indicated that she would be able to follow

8
Appellant first raised this issue in his pro se PCRA petition. Appellant’s first
PCRA counsel, Attorney Shahen, did not include this claim in his amended
PCRA petition. However, following the initial dismissal of the amended PCRA
petition, Attorney Shahen, with leave from the PCRA court, raised the pro se
claim and pursuant to the court’s directions, addressed it in a no-merit brief.
The PCRA court adopted first PCRA counsel’s conclusion that the claim lacked
merit and did not author a separate opinion. Appellant filed a pro se
response to the dismissal reasserting this claim, but did not raise an
independent claim of Attorney Shahen’s ineffectiveness.

Appellant subsequently filed an amended PCRA petition through his
second PCRA counsel, Attorney Eyster, which the PCRA court agreed to
consider. However, Attorney Eyster took no further action regarding
Appellant’s Batson claim and did not reframe the claim in terms of the PCRA
court’s procedural error or prior PCRA counsel’s ineffectiveness. Therefore,
we will address the underlying merit of Appellant’s Batson claim, but will
not consider whether the PCRA court erred in dismissing this claim based on
its adoption of Attorney Shahen’s no-merit brief or PCRA counsel’s
assessment of the claim. See Commonwealth v. Pitts, 981 A.2d 875, 880
(Pa. 2009).
9
We note that in denying a claim of the systemic exclusion of Blacks from
the Beaver County jury process, the PCRA court noted that there were two
Blacks in the pool, which roughly corresponded with the proffered census
data regarding the racial and ethnic composition of the county’s population.

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the court’s instructions. Id. at 199. The prospective juror also stated that

she did not know Appellant personally, but knew some of his family

members. Id. at 200. Specifically, the prospective juror owned a shop in

Alquippa, and Appellant’s aunt owned the store next door approximately two

years earlier. Id. at 200-01. The prospective juror discovered Appellant’s

aunt and Appellant were related when the juror read the newspaper and

then talked to her mother-in-law. Id. at 206-07. The prospective juror

stated that she saw Appellant’s aunt in court that day and felt “nervous.”

Id. at 207. However, she maintained it would not be uncomfortable for her

to find Appellant guilty and return to the community. Id. The prospective

juror was also a distant relative of one of the co-defendants who testified

against Appellant. Id. at 204.

The Commonwealth moved to strike the juror for cause, which the trial

court denied based on her answer that she was prepared to fairly and

impartially decide the case. Id. at 208-09. The Commonwealth then

indicated it would use its first peremptory strike, and the following exchange

occurred:

[Trial Counsel]: We have gone through 24 jurors, and the
district attorney has not challenged anybody. Now a black
woman, and [she is] being challenged.

[The Commonwealth]: . . . None of the other jurors said
they knew [Appellant’s] family, saw his aunt here, felt
uncomfortable, or were related to any of the other
witnesses. You know, I have already accepted an African-
American person on the jury showing we are not using any
discriminatory reasons.

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Id. at 209.

The trial court sustained Appellant’s objection to the peremptory

challenge, indicating that it did not believe “the Commonwealth has

expressed a satisfactory reason at this point in time, so this Court should not

find that it is not racially motivated.” Id. at 210. The prospective juror was

seated as the twelfth juror, and the parties thereafter selected two

alternates.

The following day, the Commonwealth requested reconsideration of

the trial court’s ruling. The court, over trial counsel’s objections, granted

reconsideration and overruled Appellant’s Batson objection to the

Commonwealth’s peremptory strike. The trial court reaffirmed its ruling to

deny the Commonwealth’s for-cause challenge, but concluded that it erred

by using a for-cause standard when reviewing the Batson objection to the

Commonwealth’s intended use of a peremptory strike. N.T., 9/15/06, at

279. The court determined that the Commonwealth’s explanations were

“clearly not in any way, shape of form, related to race.” The court concluded

the Commonwealth met its burden and therefore directed that the

prospective juror be excused and the first alternate take her place. Id. at

279-80.

When reviewing the PCRA court’s ruling on the underlying Batson

claim, we note an appellate court “may overturn the trial court’s decision [on

a Batson objection] only if it is clearly erroneous.” Commonwealth v.

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Sanchez, 36 A.3d 24, 45 (Pa. 2011) (citation omitted). As the Pennsylvania

Supreme Court noted, “‘There will seldom be much evidence bearing’ on the

‘decisive question’ of ‘whether counsel’s race-neutral explanation for a

peremptory challenge should be believed.’ ‘[T]he best evidence often will be

the demeanor of the attorney who exercises the challenge.’”

Commonwealth v. Cook, 952 A.2d 594, 603 (Pa. 2008) (citations

omitted). Therefore, we accord “great deference” to the trial court’s findings

of fact “because a reviewing court . . . is not as well positioned as the trial

court to make credibility determinations.” Id. (citation omitted).

The principles for considering a Batson challenge are well settled.

The Batson Court recognized that peremptory
challenges “permit [ ] those to discriminate who are of a
mind to discriminate” based on race in jury selection.
“[T]he harm Batson seeks to avoid is not only a trial
where members of the defendant’s own race have been
excluded from the jury on account of their race, but also
the harm to the prospective jurors and the community at
large that results when citizens are denied participation in
jury service based upon their race.” The successful
Batson objector is the third party beneficiary of the venire
person’s equal protection right not to be excluded from a
jury on account of his/her race.

To prove a defense-side Batson claim, the defendant
has to initially establish “a prima facie showing that the
circumstances give rise to an inference that the prosecutor
struck one or more prospective jurors on account of race.”
If the prima facie showing is made, “the burden shifts to
the prosecutor to articulate a race-neutral explanation for
striking the juror(s) at issue.” The trial court ultimately
makes a determination of whether the defense has carried
its burden of proving purposeful discrimination.

Sanchez, 36 A.3d at 44 (citations omitted).

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With respect to the first prong of a Batson claim, if the

Commonwealth concedes the existence of a prima facie case, a reviewing

court may proceed to consider the remaining two Batson prongs. See id.

at 44-45. Under the second Batson prong, the burden shifts to the

Commonwealth. Id. The Commonwealth must proffer a “clear and

reasonably specific explanation of its actions which must consist of

legitimate reasons of exercising the challenges.” Commonwealth v.

Correa, 620 A.2d 497, 501 (Pa. Super. 1993) (citations and quotation

marks omitted). At this stage, the Commonwealth need only “forward a

facially valid race-neutral explanation and . . . there is no demand [for] an

explanation that is persuasive, or even plausible[.]” Sanchez, 36 A.3d at

45 (citation and quotation marks omitted). An explanation is race neutral on

its face unless a discriminatory intent is inherent in the explanation. Id.

If the Commonwealth satisfies the second Batson prong, the third

prong requires the trial court to determine whether the defendant

established purposeful discrimination by the Commonwealth. See id. at 44.

“It is at this stage that the persuasiveness of the facially-neutral

explanation proffered by the Commonwealth is relevant.” Cook, 952 A.2d

at 602-03 (citation omitted). “An explanation which at first blush appears to

be clear, specific and legitimate may be exposed as a pretext for racial

discrimination when considered in the light of the entire voir dire

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proceeding.” Commonwealth v. Garrett, 689 A.2d 912, 917 (Pa. Super.

1997) (citation omitted). However,

[t]here are any number of bases on which a party may
believe, not unreasonably, that a prospective juror may
have some slight bias that would not support a challenge
for cause but that would make excusing him or her
desirable. Such reasons, if they appear to be genuine,
should be accepted by the court, which will bear the
responsibility of assessing the genuineness of the
prosecutor’s response and of being alert to reasons that
are pretextual. If the court determines that the
prosecution’s presentation is inadequate to rebut the
defendant’s proof, the court should declare a mistrial and a
new jury should be selected from a new panel.

Commonwealth v. Lloyd, 545 A.2d 890, 895 (Pa. Super. 1988) (citations

and emphasis omitted). An explanation for striking a prospective juror need

not rise to a level justifying a for-cause challenge. Commonwealth v.

Rico, 711 A.2d 990, 992 (Pa. 1998).

In light of the foregoing precepts, we discern no abuse of discretion in

the trial court’s decision to reconsider and overrule trial counsels’ Batson

objection. As indicated by the court, it employed the standard governing

for-cause challenge when considering the objection. The court subsequently

reconsidered that position and found that the Commonwealth’s explanation

was race-neutral. That determination substantially comports with the law.

See id. at 992. Moreover, in light of the prospective juror’s multiple, albeit

distant, relations to the Appellant’s family and a testifying co-defendant’s

family, there was adequate support in the record for the trial court’s implicit

finding that the Commonwealth’s use of its peremptory strike was not

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pretextual or an act of conscious discrimination.10 In light of the foregoing,

we conclude that Appellant cannot claim prejudice based on direct appeal

counsel’s failure to raise this issue on appeal and decline to disturb the PCRA

court’s denial of relief on this claim. See Blakeney, 108 A.3d at 740.

Appellant lastly claims that trial counsel were ineffective for failing to

seek the admission of evidence that J.M. had sexual relations with someone

other than Appellant, co-defendants, or her boyfriend at the time, Morgan.

Appellant’s Brief at 44-45. This claim was raised in the amended PCRA

petition filed by Attorney Shahen, but was not addressed in the PCRA court’s

opinion and order denying relief without a hearing. However, we decline to

remand for a supplemental opinion on this issue and affirm as our review

reveals that this claim lacks arguable merit.

Section 3104 of the Crimes Code provides:

(a) General rule.—Evidence of specific instances of the
alleged victim’s past sexual conduct . . . shall not be
admissible in prosecutions under this chapter except
evidence of the alleged victim’s past sexual conduct with
the defendant where consent of the alleged victim is at
issue and such evidence is otherwise admissible pursuant
to the rules of evidence.

10
The Commonwealth, in its motion for reconsideration, presented
additional allegations regarding the juror and her husband. Cf.
Commonwealth’s Brief at 13 (indicating the Commonwealth believed the
juror’s husband had been in prison with Appellant and the juror was
untruthful on the jury questionnaire). However, the trial court did not make
findings of fact or conclusions of law based on those allegations. Moreover,
the trial court did not render a finding on the Commonwealth’s assertion that
another Black juror was seated.

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(b) Evidentiary proceedings.—A defendant who
proposes to offer evidence of the alleged victim’s past
sexual conduct pursuant to subsection (a) shall file a
written motion and offer of proof at the time of trial. If, at
the time of trial, the court determines that the motion and
offer of proof are sufficient on their faces, the court shall
order an in camera hearing and shall make findings on the
record as to the relevance and admissibility of the
proposed evidence pursuant to the standards set forth in
subsection (a).

18 Pa.C.S. § 3104. The Rape Shield Law “prevent[s] a trial from shifting its

focus from the culpability of the accused toward the virtue and chastity of

the victim [and] exclude[s] irrelevant and abusive inquiries regarding prior

sexual conduct of sexual assault complainants.” Commonwealth v. Burns,

988 A.2d 684, 689 (Pa. Super. 2009) (en banc) (citations and footnote

omitted).

It is well settled that the Rape Shield Law

cannot be both shield and sword. Here a statute is so
designed to protect the witness’s interest in preventing
prejudicial disclosure of the witness’s past behavior. It
cannot at the same time preclude a defendant from
offering evidence which is so highly probative of the
witness’s credibility that such evidence is necessary to
allow/permit a jury to make a fair determination of the
defendant’s guilt or innocence. The statute must yield to a
defendant’s basic constitutional right.

Commonwealth v. Spiewak, 617 A.2d 696, 702 (Pa. 1992). Similarly,

Evidence that tends to impeach a witness’ credibility is
not necessarily inadmissible because of the Rape Shield
Law. When determining the admissibility of evidence that
the Rape Shield Law may bar, trial courts hold an in
camera hearing and conduct a balancing test consisting of
the following factors: “(1) whether the proposed evidence
is relevant to show bias or motive or to attack credibility;

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(2) whether the probative value of the evidence outweighs
its prejudicial effect; and (3) whether there are alternative
means of proving bias or motive or to challenge
credibility.”

Commonwealth v. K.S.F., 102 A.3d 480, 483–84 (Pa. Super. 2014)

(citations omitted).

Instantly, Appellant’s proffer that J.M. may have had sexual relations

with another person flies against the Rape Shield Law’s purposes of

preventing a shift in focus to the “virtue and chastity of the victim” and

excluding “irrelevant and abusive inquiries” into the victim’s prior sexual

conduct. See Burns, 988 A.2d at 689. The mere fact that J.M. may have

had sex with an unrelated party without her then-boyfriend’s knowledge

provides little insight into the specific events surrounding the sexual offenses

for which Appellant was on trial. Additionally, it would not explain away the

Commonwealth’s theory of the case that J.M. did not consent to the sexual

activity given Appellant’s course of conduct that night.

Moreover, Appellant’s proffer was not “highly probative” of J.M.’s

credibility or her assertion that she did not consent. See Spiewak, 617

A.2d at 702. This was not a strictly “he-said-she-said” case. Two witnesses,

Morgan and M.M., testified to Appellant’s acts of violence preceding the

sexual activity. Indeed, one of the testifying co-defendant’s confirmed that

Appellant shot the window of the car and placed the firearm against the back

of J.M.’s head before the sexual activity occurred.

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Lastly, the defense possessed ample alternatives to challenge the

credibility of J.M. See K.S.F., 102 A.3d at 483–84. This included J.M.’s

testimony on cross-examination that Appellant did not directly threaten her

or her companions before Appellant put his penis in her mouth and that co-

defendants later asked her whether it was okay to engage in sexual acts and

did not threaten or restrain her. The co-defendants, in turn, all testified that

while they pleaded guilty, they believed the victim consented to sexual

intercourse.

Therefore, having reviewed Appellant’s claim, we cannot conclude his

proffer would have been admitted at trial. Accordingly, Appellant cannot

establish arguable merit to his claim of ineffective assistance. See

Charleston, 94 A.3d at 1019. Thus, we affirm the PCRA court’s ruling to

deny relief on this claim.

Having reviewed Appellant’s PCRA claims and arguments on appeal,

we find no basis to disturb the PCRA court’s determination that no relief was

due.

Order affirmed. Application for relief dismissed as moot.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/14/2016

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