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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DIONNE HENDERSON, :
:
Appellant : No. 1962 EDA 2019
Appeal from the PCRA Order Entered June 14, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008614-2009
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED: JANUARY 29, 2021
Appellant, Dionne Henderson, appeals from the order denying his first
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541-9546. Following our careful review, we affirm.
We previously summarized the facts of this case in Appellant’s appeal
from the judgment of sentence, as follows:
The facts in this matter involve Appellant’s decade long sexual
abuse of his daughter, beginning when she was four years old.
Appellant initially began by inappropriately touching the victim’s
buttocks overtop her clothing. The touching then escalated to
touching the victim’s clitoris, placing his hands between her labia,
and putting his mouth on her breasts during bath time. After the
victim turned eight or nine years of age, the sexually deviant
behavior increased. Appellant kept the victim home from school
on occasion to be alone with the victim. In one incident, Appellant
touched but did not penetrate the victim’s vagina with his fingers
and tried to put his penis between the victim’s breasts, but they
were not fully developed. Appellant also touched the victim’s
rectum and placed his mouth on the victim’s vagina. According to
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the victim, she would complain to Appellant when he would try
and insert his finger into her vagina.
On another occasion, Appellant penetrated the victim’s vagina
with his finger. Appellant also began to force the victim to perform
oral sex and would ejaculate in the victim’s mouth. The victim set
forth that Appellant told her how to perform oral sex without her
teeth touching his penis. The sexual abuse escalated to vaginal
intercourse when the victim was ten or eleven. The victim
indicated that the first time Appellant engaged in vaginal
intercourse, he began by caressing and kissing her before kissing
her vaginal area. He initially penetrated her vagina with his finger
before inserting his penis and having intercourse. The intercourse
caused her to have vaginal bleeding. In addition, the victim
asserted that the Appellant always prefaced subsequent vaginal
intercourse with making the victim perform oral sex. The last
instance of abuse occurred when the victim was fourteen.
Appellant made the victim perform oral sex on him and caused
her to gag by shoving his penis inside her mouth. Afterward,
Appellant forced the victim over a dryer and engaged in vaginal
sex.
The victim first reported these incidents on April 19, 2009, several
days after the last sexual violation transpired. She initially left
home because her father told her that he was going to beat her
for failing to wear the appropriate Muslim garb. The victim went
to her step-grandmother’s home, approximately a three-hour
walk away, and told her step-aunt that Appellant was putting his
hands on her. When her aunt asked her if she was being sexually
abused, she did not respond, and looked down. Believing sexual
abuse may have occurred, the aunt reported the matter to police.
The victim provided police with a statement regarding the sexual
abuse and was taken to a hospital for an examination. She related
the sexual abuse to a nurse and her aunt, and the exam showed
that the victim had a tear at the bottom of the entrance to her
vagina and a swollen red cervix. Testimony at trial revealed that
the tear was consistent with a history of vaginal penetration.
Commonwealth v. Henderson, 125 A.3d 438, 1263 EDA 2014 (Pa. Super.
filed July 7, 2015) (unpublished memorandum at *1).
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The PCRA court summarized the procedural history of the crimes, as
follows:
On June 19, 2013, following a jury trial before this [c]ourt,
[Appellant] was found guilty of rape of a child, involuntary deviate
sexual intercourse [(“IDSI”)] with a child, aggravated indecent
assault of a child, unlawful contact with a minor, corruption of a
minor, endangering the welfare of a child [(“EWOC”)], and
incest.[1] On November 15, 2013, [Appellant] was sentenced to
20-40 years’ imprisonment for his rape of a child conviction, 20-
40 years’ imprisonment for his [IDSI] with a child conviction, 10-
20 years’ imprisonment for his aggravated indecent assault of a
child conviction, and 10-20 years’ imprisonment for his unlawful
contact with a minor conviction, to run consecutively. This [c]ourt
also sentenced [Appellant] to 5-10 years’ imprisonment for his
incest conviction, 2 ½-5 years’ imprisonment for his corruption of
minors conviction, and 3 ½-7 years’ imprisonment for his [EWOC]
conviction, to run concurrently. On July 7, 2015, the Superior
Court affirmed [Appellant’s] judgment of sentence. [Henderson,
1263 EDA 2014 (unpublished memorandum). Appellant] did not
file a petition for allowance of appeal to the Pennsylvania Supreme
Court.
On August 9, 2016, [Appellant] filed his first, and instant,
pro se petition for post –conviction relief pursuant to 42 Pa.C.S.
§ 9543(a)(2)(ii).1 PCRA counsel, Peter A. Levin, Esquire, was
appointed and counsel filed an amended petition on August 14,
2017. In his PCRA petition, [Appellant] argued trial counsel was
ineffective for failing to: object and request a mistrial, prepare
for trial, introduce testimony of complainant’s past sexual
behavior, and raise certain issues.
1 42 Pa.C.S. § 9543(a)(2)(ii) states to be eligible for
relief under the PCRA, a petitioner must plead and
prove by a preponderance of the evidence that the
conviction or sentence resulted from ineffective
assistance of counsel, which in the circumstances of
the particular case, so undermined the truth-
____________________________________________
1 18 Pa.C.S. §§ 3121(c), 3123(b), 3125(b), 6318(a)(1), 6301(a)(1),
4304(a)(1), and 4302, respectively.
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determining process that no reliable adjudication of
guilt or innocence could have taken place.
The Commonwealth filed a motion to dismiss on May 15,
2018. [Appellant] filed a supplemental amended petition, arguing
that his designation as a sexually violent predator was illegal, on
August 20, 2018. The Commonwealth subsequently agreed to
vacate [Appellant’s] designation as a[n] SVP. On April 11, 2019,
this [c]ourt signed an Order by Agreement, vacating [Appellant’s]
designation as a[n] SVP. On May 14, 2019, this [c]ourt sent
[Appellant] a notice pursuant to Pennsylvania Rule of Criminal
Procedure 907, indicating that his petition would be dismissed as
meritless. [Appellant] did not file a response to the 907 Notice.
On June 14, 2019, after conducting a thorough and independent
review of the record, this [c]ourt dismissed [Appellant’s] petition
without a hearing as meritless. [Appellant] filed a timely notice
of appeal to the Superior Court.
PCRA Court Opinion, 12/19/19, at 1–3. The PCRA court did not order
Appellant to file a Pa.R.A.P. 1925(b) statement, and none was filed. The PCRA
court filed an opinion pursuant to Pa.R.A.P. 1925(a).
Appellant raises the following issues in this appeal:
I. Whether the PCRA court was in error in not granting relief on
the issue that counsel was ineffective.
a. Whether trial counsel was ineffective for failing to object
and request a mistrial[.]
b. Whether trial counsel was ineffective for failing to
prepare Appellant’s case for trial[.]
c. Whether trial counsel was ineffective for failing to file a
motion to reconsider sentence[.]
d. Whether appellate counsel was ineffective for failing to
properly represent Appellant[.]
1. Whether appellate counsel was ineffective for
failing to appeal the denial of the pretrial motion to
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introduce testimony of complainant’s sexual
behavior[.]
2. Whether appellate counsel was ineffective for
failing to appeal the denial of counsel’s motion to
withdraw[.]
3. Whether appellate counsel was ineffective for
failing to appeal the denial of the weight of the
evidence motion[.]
III.[2] Whether the PCRA court was in error in failing to grant an
evidentiary hearing on the above issues[.]
Appellant’s Brief at 9 (unnecessary capitalization omitted).
When reviewing the propriety of an order denying PCRA relief, we
consider the record “in the light most favorable to the prevailing party at the
PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.
2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)
(en banc)). This Court is limited to determining whether the evidence of
record supports the conclusions of the PCRA court and whether the ruling is
free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.
Super. 2012). We grant great deference to the PCRA court’s findings that are
supported in the record and will not disturb them unless they have no support
in the certified record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa.
Super. 2014).
____________________________________________
2 Appellant did not include a numbered “II” issue in his Statement of
Questions Involved pursuant to Pa.R.A.P. 2116, nor did the Argument section
of his brief comport with Pa.R.A.P. 2119.
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To be eligible for relief under the PCRA, a defendant must plead and
prove that his conviction and/or sentence resulted from one of the
circumstances delineated by the PCRA. See 42 Pa.C.S. § 9543 (outlining the
eligibility requirements for PCRA relief). Among those requirements are that
the issue must not be previously litigated or waived. 42 Pa.C.S. § 9543(a)(3).
An issue is previously litigated if “the highest appellate court in which the
petitioner could have had review as a matter of right has ruled on the merits
of the issue[.]” 42 Pa.C.S. § 9544(a)(2).
All of Appellant’s issues assail the effectiveness of either trial or
appellate counsel. To plead and prove ineffective assistance of counsel, a
petitioner must establish: (1) that the underlying issue has arguable merit;
(2) counsel’s actions lacked an objective reasonable basis; and (3) actual
prejudice resulted from counsel’s act or failure to act. Commonwealth v.
Treiber, 121 A.3d 435, 445 (Pa. 2015). A claim of ineffectiveness will be
denied if [Appellant’s] evidence fails to meet any one of these prongs.
Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010). Counsel is
presumed to have rendered effective assistance of counsel. Commonwealth
v. Montalvo, 114 A.3d 401, 410 (Pa. 2015). Moreover, we have explained
that trial counsel cannot be deemed ineffective for failing to pursue a meritless
claim. Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en
banc).
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With regard to the second prong, we have reiterated that trial counsel’s
approach must be “so unreasonable that no competent lawyer would have
chosen it.” Commonwealth v. Ervin, 766 A.2d 859, 862-863 (Pa. Super.
2000) (quoting Commonwealth v. Miller, 431 A.2d 233 (Pa. 1981)). “The
test is not whether other alternatives were more reasonable, employing a
hindsight evaluation of the record. . . . The balance tips in favor of a finding
of effective assistance as soon as it is determined that trial counsel’s decision
had any reasonable basis.” Commonwealth v. Pierce, 527 A.2d 973, 975
(Pa. 1987).
As to the third prong, prejudice requires proof that there is a reasonable
probability that but-for counsel’s error, the outcome of the proceeding would
have been different. Pierce, 786 A.2d at 213. “A 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). Thus, when it
is clear that a petitioner has failed to meet the prejudice prong of an
ineffective-assistance-of-counsel claim, the claim may be disposed of on that
basis alone, without a determination of whether the first two prongs have been
met. Commonwealth v. Baker, 880 A.2d 654, 656 (Pa. Super. 2005).
Finally, it is presumed that the petitioner’s counsel was effective unless
the petitioner proves otherwise. Commonwealth v. Williams, 732 A.2d
1167, 1177 (Pa. 1999). Moreover, we are bound by the PCRA court’s
credibility determinations where there is support for them in the record.
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Commonwealth v. Battle, 883 A.2d 641, 648 (Pa. Super. 2005) (citing
Commonwealth v. Abu-Jamal, 720 A.2d 79 (Pa. 1998)).
In his first issue, Appellant asserts that trial counsel rendered ineffective
assistance of counsel by failing to object or move for a mistrial: a) when Juror
Number Ten disregarded the trial court’s instructions by taking notes and
communicating with other jurors concerning the case; b) by asserting that
Commonwealth witnesses Elizabeth Johnson and Shaniyah Shaw provided
hearsay testimony; c) when Ms. Johnson testified that the nurses who
examined the victim “knew she was telling the truth”; d) because
Commonwealth expert witness, Dr. Maris McColgan, did not have first-hand
knowledge of the derivative findings of the examination; and e) based upon
the trial court’s “impermissible” questioning of defense witness, George David,
concerning the meaning of Islamic “Garb.” Appellant’s Brief at 20–21.
This issue is waived. Appellant provides merely conclusory statements
of the alleged ineffectiveness and fails to develop his argument. Appellant’s
Brief at 20–21. While he sets forth case law in his brief explaining the
standards for granting a mistrial, id. at 21, he wholly fails to assert how he
was prejudiced. In addition, Appellant completely fails to cite to the record
where the various alleged instances occurred. “It is not this Court’s
responsibility to comb through the record seeking the factual underpinnings
of an appellant’s claim.” Commonwealth v. Samuel, 102 A.3d 1001, 1005
(Pa. Super. 2014). Appellant has not expressed how he was prejudiced, he
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failed to support his allegations of ineffectiveness by citation to the record,
and he posits he disagreed with the PCRA court’s explanation without stating
how or why. Appellant’s Brief at 21.
Even if not waived, we would agree with the PCRA court’s explanation,
as follows:
In his PCRA petition, [Appellant] claimed trial counsel
rendered ineffective assistance by failing to move for a mistrial
when Juror No. 10 violated this [c]ourt’s instructions by taking
notes during opening statements and communicating with other
jurors about the case prior to deliberations. [Appellant’s] claim is
without merit because he has failed to demonstrate counsel had
no reasonable basis for failing to object and request a mistrial, as
required by the second prong of [Commonwealth v.] Pierce, 527
A.2d 973 (Pa. 1987)). “In determining whether counsel’s action
was reasonable, the Supreme Court of Pennsylvania does not
question whether there were superior courses of action which
counsel could have pursued; rather, we examine whether
counsel’s decisions had any reasonable basis.” Commonwealth v.
Rollins, 558 Pa. 532 (1999). In the instant case, when this [c]ourt
took notice of the juror’s behavior, it took away Juror 10’s
notepad. After questioning the juror regarding her ability to follow
the rules, both parties agreed that the juror should not be
removed. This [c]ourt also independently came to the conclusion
that the juror could follow the provided instructions. Although she
admitted that she spoke to other jurors about her notebook being
taken away by this [c]ourt, the juror did not discuss the merits of
the case. Most importantly, [Appellant] himself expressed that he
did not want a mistrial and his belief that the juror could be fair
and follow directions. (N.T. 6/13/2013, p. 65-66). Thus, it was
reasonable for trial counsel to not object and request a mistrial
because the court and all parties believed that the juror would
follow the [c]ourt’s rules, the jurors had not discussed the merits
of the case, and [Appellant] himself expressed that he did not
want a mistrial. As such, [Appellant’s] claim affords no relief.
[Appellant] also argued that trial counsel was ineffective for
failing to object or move for a mistrial when Commonwealth
witnesses Elizabeth Johnson and Shaniyah Shaw gave testimony
characterized as impermissible hearsay. According to [Appellant],
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because the two witnesses did not qualify as “prompt complaint”
witnesses, they should have been precluded from testifying with
respect to the hearsay statements made by the victim concerning
[Appellant’s] sexual abuse. [Appellant’s] claim fails because he
has failed to demonstrate that the underlying claim has arguable
merit, as required by the first prong of Pierce. Testimony by Ms.
Johnson and Ms. Shaw was not hearsay. Pennsylvania Rule of
Evidence 801(d)(1)(B) provides that a statement is not hearsay if
the declarant testifies and is subject to cross-examination about
the prior statement, the statement is consistent with the
declarant’s testimony, and it is offered to rebut an express or
implied charge that the declarant recently fabricated the
statement or acted from a recent improper influence or motive in
so testifying.
In his PCRA petition, [Appellant] fails to specify which
statements by the two witnesses were hearsay testimony. Thus,
as a matter of law, his claim should be dismissed for lack of
development. However, a close review of the record reveals that
both Johnson and Shaw repeated the victim’s out-of-court
statements, concerning her sexual abuse, multiple times while on
the stand. Nonetheless, testimony by Ms. Johnson and Ms. Shaw
was properly admitted pursuant to Pa.R.E. 801(d)(1)(B) because
the victim testified at trial and was subject to cross examination
concerning her sexual abuse, the testimony rendered by both Ms.
Johnson and Shaw [was] consistent with the victim’s testimony,
and the testimony was offered to rebut defense counsel’s theory
that the victim was lying about [Appellant’s] sexual abuse in order
to get back at her strict father. Thus, testimony by Ms. Johnson
and Ms. Shaw was not hearsay pursuant to Pa.R.E. 801(d)(1)(B),
and [Appellant’s] claim must fail for lack of underlying merit.
Next, [Appellant] argued trial counsel was ineffective for
failing to object when witness Elizabeth Johnson testified that the
nurses examining the victim knew she was not lying. Trial counsel
did object and therefore this claim fails for lack of underlying
merit. At trial, Ms. Johnson testified as follows:
COMMONWEALTH: And tell us about what you saw.
MS. JOHNSON: Okay. We was in the—we were in
the room and the two nurses came in. The two nurses came
in and they started examining [the victim].
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DEFENSE COUNSEL: I’m sorry, Judge. I can’t hear.
MS. JOHNSON: I’m sorry.
COMMONWEALTH: If you could just give her a
moment.
MS. JOHNSON: I have a daughter myself. My
daughter’s 16, so that’s why it’s so touching to me. When
[the victim] laid on the table, she just laid on the table and
she just opened up her legs really wide like it was nothing.
Like being that young, she just laid up there like that and
the nurses already knew that she wasn’t lying.
DEFENSE COUNSEL: Objection.
THE COURT: Sustained.
N.T. 6/14/2013, Page 64. Accordingly, [Appellant’s] claim was
properly dismissed.
[Appellant] also claimed counsel was ineffective for failing
to object or move for mistrial based on the testimony of Dr.
McColgan because Dr. McColgan did not examine the victim
herself. This contention fails because [Appellant] has failed to
demonstrate counsel lacked a reasonable basis for not doing so,
as required by the second prong of Pierce. Pa.R.E. 702 states that
a “witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if the expert’s scientific, technical, or other
specialized knowledge is beyond that possessed by the average
layperson; the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or
to determine a fact in issue; and the expert’s methodology is
generally accepted in the relevant field.” This [c]ourt qualified Dr.
McColgan as an expert in the field of child abuse pediatrics. Dr.
McColgan testified that she had reviewed the victim’s medical
records. Dr. McColgan then rendered testimony in the form of an
opinion as to what the victim’s medical records showed, which
helped the trier of fact to understand what the evidence
demonstrated. Thus, defense counsel had a reasonable basis for
not objecting to Dr. McColgan’s expert testimony: the medical
doctor was a qualified expert who reviewed the victim’s medical
files and rendered testimony in the form of an expert opinion.
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Accordingly, [Appellant’s] claim was properly dismissed for lack of
merit.
[Appellant] next alleged that trial counsel was ineffective for
failing to object or move for mistrial when this Court questioned
witness George Davis about the meaning of his statement that the
victim was “garbed up.” [Appellant] alleged that this was
impermissible because Davis was not an expert on Muslim garb.
This contention is meritless. This [c]ourt simply asked Mr. Davis
to clarify his own statement for the jury and describe what he
meant by the term garbed up. His response, explaining the
different variances in Muslim garb, was his lay opinion and did not
require expert testimony. Thus, this claim was properly dismissed
for lack of merit. [Appellant] further argued that he was
prejudiced by this line of questioning because of negative publicity
concerning Muslims. However, the jury was always aware of the
fact that [Appellant] was Muslim as this was the center of
[Appellant’s] defense: that the victim lied about the sexual abuse
because she did not want to continue to grow up in a strict Muslim
household. Thus, this line of questioning did not prejudice
[Appellant].
PCRA Court Opinion, 12/19/19, at 5–9.
Appellant’s second claim of trial counsel’s ineffectiveness is that trial
counsel failed to prepare Appellant’s case for trial. Appellant’s Brief at 22. In
making this claim, Appellant suggests, “[T]here were many witnesses that
counsel did not investigate, who would have testified that Appellant was not
with complainant on the dates she testified he sexually abused her.”
Appellant’s Brief at 22. Appellant does not identify a single witness. Appellant
continues similarly, “A reasonable investigation would have produced
individuals that would be willing to testify that Appellant was incarcerated at
SCI Albion and not with complainant on dates she testified that she was
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sexually abused.” Id. at 23. Once again, Appellant fails to identify any such
individuals.
To prevail on a claim of trial counsel’s ineffectiveness for failure to call
a witness, an appellant must prove: “(1) the witness existed; (2) the witness
was available; (3) trial counsel was informed of the existence of the witness
or should have known of the witness’s existence; (4) the witness was prepared
to cooperate and would have testified on [the] appellant’s behalf; and (5) the
absence of the testimony prejudiced [the] appellant.” Commonwealth v.
Chmiel, 889 A.2d 501, 545-546 (Pa. 2005) (citations omitted). Trial counsel’s
failure to call a particular witness does not constitute ineffective assistance
without some showing that the absent witness’s testimony would have been
beneficial or helpful in establishing the asserted defense. Id. Appellant must
demonstrate how the testimony of the uncalled witness would have been
beneficial under the circumstances of the case. Id. Appellant has not
identified any witness, let alone complied with the parameters of the level of
proof to prove ineffective assistance of counsel for failure to call a witness.
Thus, the issue lacks merit. See Commonwealth v. Brown, 161 A.3d 960,
967–968 (Pa. Super. 2017) (failure to provide affidavits or certifications from
foregone witness indicating willingness and availability to testify is sufficient
for PCRA court to reject claim without holding evidentiary hearing).
Additionally, we rely upon the trial court’s explanation for its rejection
of this issue, as follows:
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[Appellant] asserted that trial counsel was ineffective for not
investigating his case. According to [Appellant], he was in jail
during the time of the alleged abuse and many alibi witnesses
existed to prove he was not near the victim during the alleged
times of abuse. These are bald assertions. [Appellant] did not
substantiate his clam with any proof, including the dates he was
incarcerated, names of the alleged alibi witnesses, or any
supporting affidavits. The period of abuse took place over the
course of 10 years, therefore, even if [Appellant] could produce
witnesses that assert that they were with [Appellant] on a certain
day, it would still not account for the extensive period of
molestation that occurred over the span of 10 years. At best, it
might have shown that the victim had mistaken one or two dates.
However, in order to succeed on an ineffectiveness claim for
failure to call a witness, [Appellant] must prove that (1) the
witness existed; (2) counsel was aware or should have been aware
of the witness’ existence; (3) the witness was willing and able to
cooperate with the defense; (4) [Appellant] was prejudiced by the
absence of the witness’ testimony. Commonwealth v. Simpson,
66 A.3d 253, 271 (Pa. 2013). [Appellant] did not prove, or even
discuss, either of these prongs. Therefore, his claim must fail.
PCRA Court Opinion, 12/19/19, at 9.
Next, Appellant suggests trial counsel was ineffective for failing to file a
motion to reconsider sentence. Appellant’s Brief at 24. This issue is waived.
In his amended PCRA petition, Appellant asserted that direct-appeal counsel
was ineffective for failing to preserve and present a discretionary sentencing
claim on direct review. Amended PCRA Petition, 8/14/17, at 18–19. Appellant
did not assert trial counsel’s ineffectiveness in this regard; thus, the claim is
waived. Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived
and cannot be raised for the first time on appeal.”); Commonwealth v.
Lincoln, 72 A.3d 606, 610 (Pa. Super. 2013) (“[F]or any claim that was
required to be preserved, this Court cannot review a legal theory in support
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of that claim unless that particular legal theory was presented to the trial
court.”).
Even if the issue were not waived, it would not provide Appellant with
relief. Appellant maintains that if trial counsel had filed a motion to reconsider
Appellant’s sentence, “[A] reasonable judge . . . would have found the
sentence of 60-120 years incarceration excessive and unreasonable.”
Appellant’s Brief at 24. On direct review, this Court determined that Appellant
preserved a challenge to the excessiveness of his sentence. In a thorough
and exhaustive analysis of the sentence imposed, a panel of this Court denied
the claim on the merits, finding that the trial court did not abuse its discretion
in sentencing Appellant. Henderson, 1263 EDA 2014 (unpublished
memorandum at *3–4). All but one of the proposed discretionary-aspects-of-
sentencing claims Appellant highlights, which we discuss infra, were reviewed
and rejected on direct appeal. This Court affirmed that the trial court provided
adequate reasons for the sentence, sentenced Appellant with full awareness
of the relevant sentencing factors, and reasonably elected to impose
consecutive sentences and sentences that exceeded the guidelines’ standard
range. Id.
Pursuant to 42 Pa.C.S. § 9543(a)(3), “[t]o be eligible for relief under
this subchapter, the [PCRA] petitioner must plead and prove by a
preponderance of the evidence,” inter alia, “[t]hat the allegation of error has
not been previously litigated or waived.” A claim is previously litigated under
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the PCRA if, inter alia, “the highest appellate court in which the petitioner
could have had review as a matter of right has ruled on the merits of the
issue.” Commonwealth v. Chambers, 807 A.2d 872, 881 (Pa. 2002). As
noted, we determined on direct appeal that Appellant’s sentence was not
excessive or unreasonable. Thus, this issue was previously litigated.
The only proposed sentencing claim that was not previously addressed
by this Court was the assertion that the trial court allegedly “inappropriately
[sentenced Appellant] based on his religion.” Appellant’s Brief at 24. The
PCRA court was permitted to find that prior counsel could not have been
ineffective for failing to raise that issue because there was no support for it in
the record. See Commonwealth v. Rega, 933 A.2d 997, 1019 (Pa. 2017)
(counsel cannot be ineffective for failing to pursue a meritless claim). The
trial court made no reference to Appellant’s religion at the sentence hearing,
let alone suggest that it considered the practice of Appellant’s religion as a
sentencing factor. PCRA Court Opinion, 12/19/19, at 11 (“Defendant failed to
meaningfully develop his claim that this [c]ourt’s sentence was punishment
for his Muslim beliefs. Evidence of this is not in the record, and [Appellant]
failed to highlight even one instance that this [c]ourt considered [Appellant’s]
religion during sentencing.”). This issue is waived, if not waived, it was
previously litigated, and additionally, the unaddressed aspect of the claim
lacks merit.
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Appellant next asserts that appellate counsel was ineffective for failing
to properly represent Appellant in three instances, the first of which is that
appellate counsel was ineffective “for failing to appeal the denial of the pretrial
motion to introduce testimony of complainant’s sexual behavior.” Appellant’s
Brief at 25. Once again, the claim is waived. As in the preceding issue, the
contention raised actually concerns trial counsel’s representation.
Appellant’s underlying allegation is that trial counsel was ineffective for failing
to introduce testimony concerning the victim’s sexual history. Accordingly,
Appellant’s related claim of trial counsel’s ineffectiveness did not preserve his
instant assertion of direct-appeal counsel’s alleged ineffectiveness. Pa.R.A.P.
302(a) (“Issues not raised in the lower court are waived and cannot be raised
for the first time on appeal.”).
Even if not waived, the contention is meritless. The PCRA court noted
as follows:
In his PCRA petition, [Appellant] claimed trial counsel was
ineffective for failing to file a pretrial motion to inquire about the
victim’s previous sexual behavior. This claim fails for a lack of
underlying merit, as required by the first prong of Pierce, because
defense counsel did, in fact, file a pretrial motion for admission of
the victim’s prior bad acts pursuant to Pa.R.Crim.P. 404(b). See
Motion for Admission of Bad Acts, filed January 9, 2010. In his
motion, defense counsel sought to present evidence showing that
the victim had engaged in a sexual relationship with an older man.
This [c]ourt denied the motion on November 15, 2010[,] pursuant
to the Pennsylvania Rape Shield Statute.[3] Accordingly,
[Appellant’s] claim was properly dismissed for lack of merit.
____________________________________________
3 The general rule of the Rape Shield Law provides as follows:
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PCRA Court Opinion, 12/19/19, at 10. Because trial counsel actually pursued
the action Appellant avers trial counsel did not take, there is no merit to the
ineffectiveness claim. See, e.g., Commonwealth v. Gwynn, 943 A.2d 940,
946 (Pa. 2008) (“claim that appellate counsel was ineffective for failing to
raise trial counsel’s ineffectiveness on direct appeal is meritless since it was,
in fact, raised”).4
Appellant next posits that appellate counsel was ineffective for failing to
appeal the denial of trial counsel’s motion to withdraw representation.
____________________________________________
Evidence of specific instances of the alleged victim’s past sexual
conduct, past sexual victimization, allegations of past sexual
victimization, opinion evidence of the alleged victim’s past sexual
conduct, and reputation evidence of the alleged victim’s past
sexual conduct shall not be admissible in prosecutions of any
offenses listed in subsection (c) 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.
18 Pa.C.S. § 3104(a).
4 We note that the PCRA court properly denied the ineffectiveness claim for
lack of merit because Appellant’s underlying claim violated the Rape Shield
Law, 18 Pa.C.S. § 3104, which protects victims of sexual abuse from the
admission of evidence of their consensual sexual activity. PCRA Court Opinion,
12/19/19, at 10. Appellant’s egregious abuse began when the victim was
merely four years old. Even if the victim subsequently was molested by
another adult male—in addition to Appellant’s ongoing abuse—the existence
of the additional abuser would not exculpate Appellant. See, e.g.,
Commonwealth v. Holder, 815 A.2d 1115, 1120 (Pa. Super. 2003)
(testimony that the victim thought the defendant’s friend might have raped
her one week before the alleged rape by the defendant was irrelevant because
the testimony did not make the victim’s allegation that the defendant raped
her more or less likely).
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Appellant’s Brief at 27. This issue is waived. Appellant refers to counsel’s
motion to withdraw but fails to indicate even one citation to the record.
Indeed, Appellant quotes from the motion, Appellant’s Brief at 27, but fails to
support his bald assertions with citation to the record. As noted supra, this
Court will not comb through the record seeking the factual underpinnings of
an appellant’s claim. Samuel, 102 A.3d at 1005. The PCRA court apparently
held a hearing on the motion, but Appellant fails even to reference the hearing,
let alone present citation to its place in the record.
Even if not waived, we rely upon the PCRA court’s explanation in
rejecting this issue, as follows:
[Appellant] argued appellate counsel was ineffective for
failing to appeal the trial court’s denial of trial counsel’s motion to
withdraw as counsel. [Appellant’s] claim fails because his
underlying claim lacks arguable merit, as required by the first
prong of Pierce. On October 22, 2010, counsel filed a motion to
withdraw as counsel. On November 10, 2010, this [c]ourt held a
hearing on counsel’s motion. [Appellant] argued that the trial
court’s denial of the motion to withdraw was inconsistent with
Commonwealth v. Velasquez, 437 Pa. 262, 263 A.2d 351 (1970),
where the Pennsylvania Supreme Court held trial courts should
substitute counsel where it is demonstrated that good cause is
shown why confidence does not exist. However, unlike [in]
Velasquez, [Appellant] did not state the good cause for his lack of
confidence in trial counsel. This [c]ourt held a hearing on trial
counsel’s motion to withdraw. After discussing the matter with
[Appellant] and trial counsel in open court, it was clear that
[Appellant] was dissatisfied with trial counsel’s responsiveness, so
he threatened to file a disciplinary complaint against trial counsel.
Once trial counsel received a letter from [Appellant], threatening
to file a disciplinary action, counsel thought it was in his best
interest to withdraw from the matter. The [c]ourt explained
[Appellant’s] perspective to trial counsel and trial counsel’s
perspective to [Appellant], in open court while both parties were
present. [Appellant] stated that he would take a “gamble” by
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requesting trial counsel to stay on his case. N.T. 11/10/2010,
page 18. After holding a hearing on the motion, the trial court
found that the temporary breakdown in communication between
[Appellant] and trial counsel was not good cause to substitute
counsel. “The Sixth Amendment right to counsel does not
guarantee a meaningful rapport between an attorney and his
client.” Commonwealth v. Person, 345 Pa. Super. 341, 345, 498
A.2d 432, 434 (1985). Therefore, the trial court’s denial of
counsel’s petition to withdraw was clearly not a manifestly
unreasonable exercise of judgment, and [Appellant’s] underlying
claim lacks merit.
PCRA Court Opinion, 12/19/19, at 11–12.
Appellant’s third allegation of appellate counsel’s ineffectiveness asserts
that counsel “filed a motion that the verdict was against the weight of the
evidence but did not pursue it on [direct] appeal.” Appellant’s Brief at 29.
Our Supreme Court has described the standard applied to a weight-of-
the-evidence claim as follows:
The decision to grant or deny a motion for a new trial based
upon a claim that the verdict is against the weight of the evidence
is within the sound discretion of the trial court. Thus, “the function
of an appellate court on appeal is to review the trial court’s
exercise of discretion based upon a review of the record, rather
than to consider de novo the underlying question of the weight of
the evidence.” An appellate court may not overturn the trial
court’s decision unless the trial court “palpably abused its
discretion in ruling on the weight claim.” Further, in reviewing a
challenge to the weight of the evidence, a verdict will be
overturned only if it is “so contrary to the evidence as to shock
one’s sense of justice.”
Commonwealth v. Williams, 176 A.3d 298, 312 (Pa. Super. 2017) (quoting
Commonwealth v. Cash, 137 A.3d 1262, 1270 (Pa. 2016) (internal citations
omitted)). A trial court’s determination that a verdict was not against the
weight of the evidence is “[o]ne of the least assailable reasons” for denying a
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new trial. Commonwealth v. Colon–Plaza, 136 A.3d 521, 529 (Pa. Super.
2016) (quoting Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013)). A
verdict is against the weight of the evidence where “certain facts are so clearly
of greater weight that to ignore them or to give them equal weight with all the
facts is to deny justice.” Commonwealth v. Lyons, 833 A.2d 245, 258 (Pa.
Super. 2003) (quoting Widmer, 744 A.2d at 751–752). “[W]e do not reach
the underlying question of whether the verdict was, in fact, against the weight
of the evidence . . . . Instead, this Court determines whether the trial court
abused its discretion in reaching whatever decision it made on the motion.”
Williams, 176 A.3d at 312.
Appellant asserts that the victim’s testimony “was lacking in credibility
in that she contradicted herself” and was “not believable.” Appellant’s Brief
at 30. Appellant does not identify any such contradictions or suggest what
testimony was incredible. Id. at 30–31. We rely on the PCRA court’s
explanation in rejecting this issue:
Lastly, [Appellant] claimed appellate counsel rendered
ineffective assistance by failing to appeal the trial court’s denial of
his post-sentence motion for a new trial. According to [Appellant],
he was entitled to a new trial because the verdict was not
supported by the weight of the evidence. This contention is
without merit because [Appellant] has failed to demonstrate he
was prejudiced by appellate counsel’s inaction, as required by the
third prong of the Pierce test. Prejudice is established when
[Appellant] demonstrates that, but for the errors or omissions of
counsel, there is a reasonable probability that the outcome of the
proceeding would have been different. Commonwealth v. Kimball,
724 A.2d 326, 333 (Pa. 1999). There is no reasonable probability
that [Appellant] would have been granted a new trial because
[Appellant’s] verdict was supported by the weight of the evidence.
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“A new trial is warranted in this context only when the verdict is
so contrary to the evidence that it shocks one’s sense of justice
and the award of a new trial is imperative so that right may be
given another opportunity to prevail.” Commonwealth v. Konias,
136 A.3d 1014, 1022 (Pa. Super. 2016) (internal citations
omitted).
Here, [Appellant’s] verdicts for rape of a child, involuntary
deviate sexual intercourse with a child, aggravated indecent
assault of a child, unlawful contact with a minor, corruption of a
minor, endangering the welfare of a child, and incest were not
contrary to the evidence. The evidence supported the verdict.
The victim provided detailed accounts of [Appellant’s] sexual
abuse, which was substantiated by testimony from medical expert
Dr. McColgan and supported by testimony from Commonwealth
witnesses Elizabeth Johnson and Shaniyah Shaw. [Appellant]
based his argument that the verdict was contradicted by the
evidence on his assertion that the victim lacked credibility because
she gave contradictory testimony at times. However, [Appellant]
failed to highlight specific instances in the record where the victim
provided contradicting testimony, and “the determination of the
credibility of a witness is within the exclusive province of the jury.”
Commonwealth v. Crawford, 553 Pa. 195, 718 A.2d 768 (1998).
Here, the jury found the victim’s testimony to be credible,
and the jury’s determination was reasonable considering
the victim provided detailed accounts of [Appellant’s]
sexual abuse and the medical records showed signs of
trauma to the victim that were consistent with sexual
abuse. (N.T. 6/14/13, p. 18-19). Thus, even if a weight of the
evidence challenge had been raised on appeal, there was no
reasonable probability that [Appellant] would have been granted
a new trial. Thus, [Appellant] has failed to demonstrate that he
was prejudiced by appellate counsel’s inaction, and his petition
was properly dismissed as meritless.2
2 [Appellant] filed a supplemental amended petition,
arguing that his designation as a sexually violent
predator was illegal. The Commonwealth
subsequently agreed to vacate [Appellant’s]
designation as a[n] SVP. On April 11, 2019, this
[c]ourt signed an Order by Agreement, vacating
[Appellant’s] designation as a[n] SVP. Accordingly,
this claim is void.
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PCRA Court Opinion, 12/19/19, at 9–14 (emphasis added).
In his final issue, Appellant avers that the PCRA court erred “in failing
to grant an evidentiary hearing on the above issues.” Appellant’s Brief at 31.
“There is no absolute right to an evidentiary hearing on a PCRA petition, and
if the PCRA court can determine from the record that no genuine issues of
material fact exist, then a hearing is not necessary.” Commonwealth v.
Jones, 942 A.2d 903, 906 (Pa. Super. 2008) (quoting Commonwealth v.
Barbosa, 819 A.2d 81 (Pa. Super. 2003)). “[S]uch a decision is within the
discretion of the PCRA court and will not be overturned absent an abuse of
discretion.” Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015).
Because there were no genuine issues of material fact regarding counsel’s
effectiveness, we discern no abuse of the PCRA court’s discretion in denying
Appellant an evidentiary hearing. Id.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/29/21
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