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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
:
v. :
:
EVAN SMITH, :
:
Appellant : No. 487 MDA 2016
Appeal from the PCRA Order February 23, 2016
in the Court of Common Pleas of York County,
Criminal Division, No(s): CP-67-CR-0000418-2012
BEFORE: GANTMAN, P.J., DUBOW and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED MARCH 30, 2017
Evan Smith (“Smith”) appeals from the Order denying his first Petition
for relief filed pursuant to the Post Conviction Relief Act (“PCRA”). See 42
Pa.C.S.A. §§ 9541-9546. We affirm.
In its Opinion, the PCRA court thoroughly set forth the factual and
procedural history, which we adopt herein for the purpose of this appeal.
See PCRA Court Opinion, 5/12/16, at 1-9.
As an addendum, we observe that Smith was convicted of numerous
sexual offenses, some of which had applicable statutory mandatory
minimum sentences under 42 Pa.C.S.A. § 9718(a) (governing sentences for
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offenses against minors).1 Smith was represented at trial by William Graff,
Esquire (“Attorney Graff” or “trial counsel”). On direct appeal, Smith was
represented by Heather Reiner, Esquire (“Attorney Reiner”).
In this timely appeal, Smith presents the following issues for our
review:
I. Whether the [PCRA c]ourt erred in denying relief for Attorney
Graff being ineffective for failing to property [sic] contest the
evidence against him, specifically the DNA evidence that was
found on the condom?
II. Whether the [PCRA c]ourt erred in denying relief based on
Attorney Graff’s failure to interview and call witnesses on
[Smith’s] behalf, specifically Robert Fleshman [(hereinafter
“Fleshman”)]?
III. Whether the [PCRA c]ourt erred in denying relief based on
Attorney Graff and Attorney Reiner failing to challenge the
mandatory sentences that were imposed on [his convictions,]
of 15 to 30 years, after the U[.]S[.] Supreme Court decision
in Alleyne v. United States[, 133 S. Ct. 2151 (2013)2]?
1
Section 9718(a) applied to Smith’s following convictions: two counts of
rape of a child less than 13 years of age, 18 Pa.C.S.A. § 3121(c) (mandatory
minimum sentence of 10 years in prison under section 9718(a)(3)); two
counts of involuntary deviate sexual intercourse with a child less than 13
years of age, 18 Pa.C.S.A. § 3123(b) (mandatory minimum sentence of 10
years in prison under section 9718(a)(1)); and one count of aggravated
indecent assault of a child less than 13 years of age, 18 Pa.C.S.A.
§ 3125(a)(7) (mandatory minimum sentence of 10 years in prison under
section 9718(a)(3)). Prior to sentencing, the Commonwealth filed a Notice
of its intent to pursue the above-mentioned mandatory minimum sentences
under section 9718(a). Notably, however, at sentencing, the trial court did
not apply a mandatory minimum sentence on the above-mentioned
convictions, choosing to sentence above the statutory minimums. See N.T.,
2/25/14, at 8-9.
2
Alleyne was decided on June 17, 2013, prior to the imposition of Smith’s
judgment of sentence.
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IV. Whether the [PCRA c]ourt erred in denying [Smith] a new
trial due to the letter that was sent to him by [his ex-wife,]
C[.] S[.] [(hereinafter “Ms. S.” or “C.S.”),] after the trial?
Brief for Appellant at 4 (footnote added).
“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. Montalvo, 114 A.3d 401, 409 (Pa. 2015) (citation and
internal quotation marks omitted). “This Court’s scope of review is limited to
the findings of the PCRA court and the evidence on the record of the PCRA
court’s hearing, viewed in the light most favorable to the prevailing party, in
this case, the Commonwealth.” Commonwealth v. Fahy, 959 A.2d 312,
316 (Pa. 2008).
In his first issue, Smith argues that the PCRA court erred in denying
him collateral relief where Attorney Graff rendered ineffective assistance by
his alleged failure to properly challenge the DNA evidence recovered from
the used condom that Ms. S. had found hidden in the drop ceiling of her
home. Brief for Appellant at 8. Smith asserts as follows:
During the trial[,] a stipulation was entered [] concerning the
condom. That stipulation [] include[d] that the DNA that was
found on the condom could have been the product of cross-
contamination. [Smith] [] assert[s] that decision by Attorney
Graff did not take into account any attempts to investigate the
condition of the condom[, which] would have been allegedly in
the ceiling for months. More importantly[,] it did not include
what type of cells were found on the condom. During the DNA
test[,] no seminal fluid was found on the condom. This
information would have not only aided in the cross-
contamination theory, but also helped raise questions about the
credibility of [Ms.] S[.]
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Id.
Our review of a claim of ineffectiveness of counsel is as follows:
[A] PCRA petitioner will be granted relief only when he proves,
by a preponderance of the evidence, that his conviction or
sentence resulted from the ineffective assistance of counsel
which, in the circumstances of the particular case, so
undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place. 42
Pa.C.S. § 9543(a)(2)(ii). Counsel 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, … 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. If a petitioner fails to prove any of these
prongs, his claim fails. Generally, counsel’s assistance is
deemed constitutionally effective if he chose a particular course
of conduct that had some reasonable basis designed to
effectuate his client’s interests. Where matters of strategy and
tactics are concerned, a finding that a chosen strategy lacked a
reasonable basis is not warranted unless it can be concluded that
an alternative not chosen offered a potential for success
substantially greater than the course actually pursued. 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.
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citations,
quotation marks and brackets omitted); see also Commonwealth v.
Lesko, 15 A.3d 345, 380 (Pa. 2011) (stating that “[w]hen evaluating
ineffectiveness claims, judicial scrutiny of counsel’s performance must be
highly deferential.” (citation and internal quotation marks omitted)).
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In its Opinion, the PCRA court addressed this claim and determined
that Attorney Graff was not ineffective in this regard, as he (1) made a
reasonable strategic decision in agreeing to the stipulation concerning the
DNA evidence; (2) “effectively presented a challenge to [Ms. S.’s] version of
how the condom was found”; and (3) “argu[ed] the contamination theory[.]”
See PCRA Court Opinion, 5/12/16, at 10-11; see also Spotz, supra;
Commonwealth v. Puksar, 951 A.2d 267, 277 (Pa. 2008) (stating that
“[a] claim of ineffectiveness cannot succeed through comparing, in
hindsight, the trial strategy employed [by defense counsel] with alternatives
not pursued.”). We agree with the PCRA court’s cogent rationale and
determination, which is supported by the law and the record. Accordingly,
we affirm on this basis in rejecting Smith’s first issue. See PCRA Court
Opinion, 5/12/16, at 10-11.
In his second issue, Smith contends that Attorney Graff was ineffective
for failing to interview Fleshman and present his testimony at trial. 3 Brief for
Appellant at 9.
Initially, we observe that we could deem this issue waived for Smith’s
failure to adequately develop it in his Argument section, which consists of
merely three sentences, without citation to legal authority or the record.
See Pa.R.A.P. 2119(a) (mandating that an appellant develop an argument
3
Smith fails to explain who Fleshman is or how he has any relevant
knowledge concerning the case. Fleshman died prior to the hearing on
Smith’s PCRA Petition.
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with citation to and analysis of relevant legal authority); Jacobs v.
Chatwani, 922 A.2d 950, 962-63 (Pa. Super. 2007) (finding waiver where
the appellant provided only a vague, undeveloped argument in support of
her claim and did not cite to the record).
Nevertheless, the PCRA court concisely addressed Smith’s
ineffectiveness challenge regarding Fleshman in its Opinion, and properly
determined that it lacks merit. See PCRA Court Opinion, 5/12/16, at 11-12.
We affirm on this basis in rejecting Smith’s second issue. See id.4
In his third issue, Smith asserts that Attorney Graff and Attorney
Reiner were ineffective for failing to challenge his sentence as being illegal,
insofar as it was purportedly imposed under 42 Pa.C.S.A. § 9718(a), which
4
We additionally observe that
[t]here are two requirements for relief on an ineffectiveness
claim for a failure to present witness testimony. The first
requirement is procedural. The PCRA requires that, to be
entitled to an evidentiary hearing, a petitioner must include in
his PCRA petition “a signed certification as to each intended
witness stating the witness’s name, address, date of birth and
substance of testimony.” 42 Pa.C.S.A. § 9545(d)(1);
Pa.R.Crim.P. 902(A)(15). The second requirement is
substantive. Specifically, when raising a claim for the failure to
call a potential witness, to obtain relief, a petitioner must
establish that: (1) the witness existed; (2) the witness was
available; (3) counsel was informed or should have known of the
existence of the witness; (4) the witness was prepared to
cooperate and would have testified on defendant’s behalf; and
(5) the absence of such testimony prejudiced him and denied
him a fair trial.
Commonwealth v. Reid, 99 A.3d 427, 438 (Pa. 2014). In the instant
case, Smith did not meet these requirements.
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was rendered unconstitutional by Alleyne.5 Brief for Appellant at 10. Smith
acknowledges that the sentencing court sentenced him above the section
9718(a) mandatory minimum sentences, but argues that his sentence was
nevertheless illegal because “a certain portion of [Smith’s] sentence is still
subject to the requirements of a mandatory sentence.” Id.6
In Alleyne, the Supreme Court held that any fact that increases the
sentence for a given crime must be submitted to the jury and found beyond
a reasonable doubt. Alleyne, 133 S. Ct. at 2155. The Court reasoned that
a Sixth Amendment violation occurs where these sentence-determinative
facts are not submitted to a jury. Id. at 2156. “[A] challenge to a sentence
premised upon Alleyne … implicates the legality of the sentence and cannot
be waived on appeal.” Commonwealth v. Newman, 99 A.3d 86, 90 (Pa.
Super. 2014) (en banc). “Such a claim may be raised on direct appeal, or in
a timely filed PCRA petition.” Commonwealth v. Ruiz, 131 A.3d 54, 60
(Pa. Super. 2015) (citation and emphasis omitted). Relevant to the instant
appeal, our Pennsylvania Supreme Court has declared that Alleyne
5
Attorney Reiner did not raise an Alleyne challenge in Smith’s direct
appeal.
6
Specifically, Smith contends that his sentence “has an impact on [Smith’s]
availability for any early parole programs, as offered by the state
correctional system, or any alternative housing.” Brief for Appellant at 10.
Smith does not further develop or cite support for this claim aside from his
bald, vague assertion.
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rendered 42 Pa.C.S.A. § 9718 unconstitutional and void in its entirety.
Commonwealth v. Wolfe, 140 A.3d 651, 661-63 (Pa. 2016).7
Here, we agree with the PCRA court that Alleyne and Wolfe are
inapplicable because the sentencing court did not apply the mandatory
minimum sentence provisions of 42 Pa.C.S.A. § 9718(a) or any mandatory
minimum sentencing statute. See PCRA Court Opinion, 5/12/16, at 12.
Rather, the sentencing court, mindful of Smith’s extensive sexual abuse of
his step-daughters over a period of several years, and abuse of his position
of trust via manipulation, imposed a sentence above the section 9718(a)
mandatory minimum provisions, and notwithstanding those provisions. See
id.; N.T. (sentencing), 2/25/14, at 8-9; see also N.T. (PCRA hearing),
2/23/16, at 36-37 (wherein the PCRA court explains that Smith did not
receive mandatory minimum sentences under section 9718(a)). Therefore,
Smith’s argument based on Alleyne fails, and neither Attorney Graff nor
Attorney Reiner was ineffective for failing to raise an Alleyne challenge.
See Commonwealth v. Zeigler, 112 A.3d 656, 662 (Pa. Super. 2015)
(stating that where the sentence imposed exceeds the mandatory minimum,
the sentence does not present a constitutional problem under Alleyne, as
7
Section 9718 specifies that its provisions “shall not be an element of the
crime,” and that the applicability “shall be determined at sentencing,” with
factual matters being resolved by the sentencing court “by a preponderance
of the evidence.” 42 Pa.C.S.A. § 9718(c); see also Wolfe, 140 A.3d at 653
(stating that “[b]oth the directive that a sentencing factor establishing a
mandatory minimum sentence is not an element of a crime and the
allocation of decision-making authority relative to such factor to a judge
contravene Alleyne.”).
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the sentencing court did not apply the unconstitutional mandatory
minimum).
In his fourth and final issue, Smith argues that the PCRA court erred in
failing to grant him a new trial based upon purportedly exculpatory evidence
that he discovered after his convictions (namely, an unsigned, undated letter
that Ms. S. had allegedly mailed to Smith in prison, detailing how Ms. S. had
fabricated the crimes to “set up” Smith). Brief for Appellant at 10-11.
The PCRA court concisely addressed this claim in its Opinion,
summarized the law concerning newly-discovered evidence, and correctly
determined that the claim lacks merit. See PCRA Court Opinion, 5/12/16, at
13-14; see also Commonwealth v. Scott, 470 A.2d 91, 93 (Pa. 1983)
(stating that a claim of newly-discovered evidence will fail where the
proposed new evidence is not admissible); see also Commonwealth v.
Henry, 706 A.2d 313, 321 (Pa. 1997) (noting that recantation evidence is
notoriously unreliable, and where it involves an admission of perjury, it is
the least reliable source of proof; unless the PCRA court is satisfied that the
recantation is true, it should deny a new trial). We affirm based on the
PCRA court’s rationale in rejecting Smith’s final issue. See PCRA Court
Opinion, 5/12/16, at 13-14.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/30/2017
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