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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
MARCUS ANTHONY GAGOT, :
:
APPELLANT :
: No. 1110 WDA 2016
Appeal from the PCRA Order June 15, 2016
In the Court of Common Pleas of Beaver County
Criminal Division at No(s): CP-04-CR-0001892-2011
BEFORE: LAZARUS, J., DUBOW, J., and STRASSBURGER, J.*
MEMORANDUM BY DUBOW, J.: FILED APRIL 07, 2017
Appellant, Marcus Anthony Gagot, appeals pro se from the Order
entered in the Beaver County Court of Common Pleas denying his first
Petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§
9541-9546. After careful review, we affirm.
The PCRA court’s Pa.R.A.P. 1925(a) Opinion includes a thorough and
complete narrative of the facts and procedural history in this case, which we
adopt for purposes of our disposition. See PCRA Ct. Op., 8/22/16, at 1-4.
We summarize the facts and procedural history as follows. On February 14,
2013, the trial court sentenced Appellant to 15 to 30 years’ incarceration
*
Retired Senior Judge assigned to the Superior Court.
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following his jury conviction of four counts each of Aggravated Indecent
Assault and Indecent Assault, two counts of Rape, and one count each of
Statutory Sexual Assault, Sexual Assault, and Corruption of Minors. See 18
Pa.C.S.A. §§ 3125(a)(1), (2), (4), (8); 3126(a)(1), (2), (4), (8);
3121(a)(1), (3); 3122.1; 3124.1; 6301(a)(1). Appellant’s victim was his
then-girlfriend’s 13-year-old daughter.
Appellant appealed his Judgment of Sentence, and this Court affirmed.
Commonwealth v. Gagot, Nos. 943, 959 WDA 2013 (Pa. Super. filed April
25, 2014) (unpublished memorandum). The Pennsylvania Supreme Court
denied Appellant’s Petition for Allowance of Appeal on August 26, 2014.
Commonwealth v. Gagot, 99 A.3d 76 (Pa. filed August 26, 2014).
On July 8, 2015, Appellant filed a pro se Petition under the PCRA
raising claims of ineffective assistance of counsel and violation of his
constitutional rights.1 On July 13, 2015, the PCRA court appointed counsel
to represent Appellant. On April 8, 2016, counsel filed a Turner/Finley2 no-
merit letter and sought to withdraw as Appellant’s counsel.
1
Specifically, in addition to his claims of ineffective assistance of counsel,
Appellant alleged in his pro se Petition that government agents were biased
against him, and that the Commonwealth failed to disclose exculpatory
evidence, engaged in various acts of prosecutorial misconduct, and did not
give Appellant a copy of his arrest warrant or a report prepared by CYS. He
also alleged general violations of the Fifth, Sixth, and Eighth Amendments to
the U.S. Constitution.
2
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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On April 14, 2016, the PCRA court issued a Pa.R.Crim.P. 907 Notice
advising Appellant of its intent to dismiss his Petition without a hearing. In
the Notice, the court concluded that Appellant’s ineffective assistance of
counsel claims lacked merit and that Appellant had previously litigated
and/or waived his other claims, and granted counsel’s request to withdraw.
Appellant filed a pro se Response on May 20, 2016.
On June 15, 2016, the PCRA court dismissed Appellant’s Petition
without a hearing. Appellant filed a timely pro se Notice of Appeal on July
12, 2016. Appellant filed a second Notice of Appeal on July 28, 2016, after
the Clerk of Courts notified him that he had failed to attach the required
Proof of Service to his first Notice of Appeal.3 The PCRA court did not order
Appellant to file a Pa.R.A.P. 1925(b) Statement.
Appellant raises the following seven issues on appeal:
1. Did [c]ounsel render prejudicially ineffective assistance
for failing to notice, make inquiry’s [sic], and obtain a copy
of the arrest warrant being that Appellant was not
provided a copy pursuant to Pa.R.Crim.P 540(D)[?]
2. Did [c]ounsel render prejudicially ineffective assistance
for failing to effectively cross-examine Ms. Valentine on her
conflicting statements contained in Kathy Kloonan’s report
in comparison to her statements to [p]olice and on the
stand, pursuant to Pa.R.E. 613[?]
3. Did counsel render prejudicially ineffective assistance
for accepting a $3,000 retainer and failing to comply with
3
This does not affect the validity of Appellant’s appeal. See Pa.R.A.P. 902
(“Failure of an appellant to take any step other than the timely filing of a
[N]otice of [A]ppeal does not affect the validity of the appeal[.]”).
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Pa.R.Crim.P. 120(A)(1), and thereby placing the Appellant
at a disadvantage, unfairly, at a critical stage pursuant to
United States v. Cronic, 466 U.S. 648[ (1984)?]
4. Did [c]ounsel render prejudicially ineffective assistance
for failing to move the [c]ourt for an in-camera inspection
of otherwise confidential information protected by law or
statute with regard to only the verbatim statements made
pertaining to the allegations pursuant to Commonwealth
v. Ritchie, 509 Pa. 357, 502 A.2d 148 (1985), if not
discoverable or within the possession of the
Commonwealth[?]
5. Did [c]ounsel render prejudicially ineffective assistance
for failing to familiarize himself with the process of DNA
testing sufficiently to move the [c]ourt for the need of an
expert, and to require the prosecution to produce the
“Relative Fluorescence Unit” values report to better and
effectively cross-examine Dr. Hai Sheng Li as his cross-
examination of her was minimal an[d] inadequate[?]
6. Did the [t]rial [c]ourt err in its denial of Appellant’s
[M]otion for Judgment of Acquittal having failed to prove
all the elements of “Forcible Compulsion” as required by
[l]aw pursuant to Commonwealth v. Berkowitz, 537 Pa.
143[,] 641 A.2d 1161 [(Pa. 1994)?]
7. Did [the] Assistant District Attorney commit
[p]rosecutorial [m]isconduct by failing to disclose complete
discovery concerning the “Relative Fluorescence Unit”
values of both DNA samples obtained and tested along
with the report of Jennifer Wright of CYS, who interviewed
Ms. Valentine being as Ms. Wright is a state actor pursuant
to Pa.R.Crim.P. 573[?]
Appellant’s Brief at vi (reordered for ease of disposition).
We review the denial of a PCRA petition to determine whether the
record supports the PCRA court’s findings and whether its order is otherwise
free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.
2014). This Court grants great deference to the findings of the PCRA court if
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they are supported by the record. Commonwealth v. Boyd, 923 A.2d 513,
515 (Pa. Super. 2007). We give no such deference, however, to the court’s
legal conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.
Super. 2012).
To be eligible for relief pursuant to the PCRA, Appellant must establish,
inter alia, that his conviction or sentence resulted from one or more of the
enumerated errors or defects found in 42 Pa.C.S. § 9543(a)(2). Appellant
must also establish that the issues raised in the PCRA petition have not been
previously litigated or waived. 42 Pa.C.S. § 9543(a)(3). An allegation of
error “is waived if the petitioner could have raised it but failed to do so
before trial, at trial, during unitary review, on appeal or in a prior state
postconviction proceeding.” 42 Pa.C.S. § 9544(b).
Appellant’s first five issues challenge the PCRA court’s conclusion that
his trial counsel was not ineffective. Appellant’s Brief at 5-16, 23-28. The
law presumes counsel has rendered effective assistance. Commonwealth
v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). The burden of
demonstrating ineffectiveness rests on Appellant. Id. To satisfy this
burden, Appellant must plead and prove by a preponderance of the evidence
that: (1) his underlying claim is of arguable merit; (2) the particular course
of conduct pursued by counsel did not have some reasonable basis designed
to effectuate his interests; and (3) but for counsel’s ineffectiveness, there is
a reasonable probability that the outcome of the challenged proceedings
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would have been different. Commonwealth v. Fulton, 830 A.2d 567, 572
(Pa. 2003).
The Honorable Kim Tesla, sitting as the PCRA court, has authored a
comprehensive, thorough, and well-reasoned opinion, citing to the record
and relevant case law in addressing Appellant’s claims on appeal. After a
careful review of the parties’ arguments and the record, we affirm on the
basis of the PCRA court’s opinion. See PCRA Ct. Op., 8/22/16, at 7-15
(concluding that each of Appellant’s ineffectiveness claims failed).
In Appellant’s sixth issue, he claims the trial court abused its discretion
in denying his Motion for Judgment of Acquittal. Appellant’s Brief at 17-19.
The PCRA specifically permits challenges asserting (1) constitutional
violations; (2) ineffective assistance of counsel; (3) an unlawful inducement
of a guilty plea; (4) obstruction of a defendant's right to an appeal; (5)
newly discovered exculpatory evidence that was not available at the time of
the trial; (6) an imposition of a sentence greater than the lawful maximum;
and (7) a lack of jurisdiction. See 42 Pa.C.S. § 9543(a)(2). Notably, a
challenge to an order denying a Motion for Judgment of Acquittal is not
included in this exhaustive list.
Because Appellant raises a claim that is not cognizable under the
PCRA, we cannot grant him relief on this issue.4
4
Moreover, Appellant has previously litigated this issue. See 42 Pa.C.S. §
9543(a)(3) (to be eligible for PCRA relief, a petitioner must plead and prove
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In his last issue, Appellant claims the District Attorney committed
prosecutorial misconduct by failing to disclose complete discovery.
Appellant’s Brief at 20-22. This claim is likewise not cognizable by the PCRA.
Moreover, our review of the certified record indicates that Appellant
had the opportunity to litigate this claim at trial and on direct appeal, but
failed to do so. See 42 Pa.C.S. § 9543(a)(3). Appellant is, therefore, not
entitled to relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/7/2017
“[t]hat the allegation of error has not been previously litigated[.]”). The trial
court denied his Motion for Judgment of Acquittal and Post-Sentence Motions
challenging the weight and sufficiency of the Commonwealth’s evidence, and
this Court affirmed Appellant’s Judgment of Sentence.
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