Com. v. Clarke, J.

J-S50002-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHN CLARKE :
:
Appellant : No. 1136 EDA 2020

Appeal from the PCRA Order Entered April 7, 2020
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0003240-2011

BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED: MARCH 1, 2021

Appellant, John Clarke, appeals from the order dismissing his pro se

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. After careful review, we affirm.

The PCRA court summarized the procedural history of this case as

follows:

On April 28, 2011[,] Appellant was charged with approximately
twenty-five counts of various sexual assault offenses, including
rape, aggravated indecent assault[,] and involuntary deviate
sexual intercourse, for the regular and repeated abuse of [three
minor victims]. On January 22, 2013[,] following a lengthy and
protracted jury trial, the jury convicted Appellant on three counts
of endangering the welfare of children and three counts of
corruption of minors[,] and acquitted Appellant on one count of
aggravated indecent assault[.] … [T]he jury remained hung on the
remaining charges and the court declared a mistrial on those
counts. On August 16, 2013[,] following Appellant’s second
lengthy and protracted jury trial, the jury convicted Appellant on
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* Retired Senior Judge assigned to the Superior Court.
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one count of rape by forcible compulsion, one count of involuntary
deviate sexual intercourse of a child under 13 years of age, two
counts of aggravated indecent assault of a child under 16 years of
age, [and] one count of aggravated indecent assault. On
November 26, 2013[,] the court sentenced Appellant to serve [17-
34 years’ incarceration], with the specific condition of Appellant’s
lifetime registration under Megan’s law. Appellant did not file any
post[-]sentence motions, but on December 23, 2013[,] Appellant
filed a notice of appeal. On December 2, 2014[, his] judgment of
sentence was affirmed. Appellant filed a petition for allowance of
appeal, and on June 10, 2015[,] the Supreme Court denied
Appellant’s petition.

On May 30, 2016[,] Appellant timely filed a pro se [PCRA petition],
and on September 22, 2016[, the PCRA court entered] an order
appointing Henry DiBenedetto-Forrest, Esquire[,] to represent
Appellant…. On November 27, 2019, counsel filed a No[-]Merit
letter under … Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988)[, and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988) (en banc)].[1] On December 20, 2019[,] Appellant filed [a
response to the No-Merit Letter,] and on February 25, 2020[,]
counsel sent a letter to this court indicating [that] Appellant’s
opposition did not alter his analysis, evaluation, or conclusion
regarding Appellant’s pro se PCRA petition. On March 3, 2020[,]
a [Pa.R.Crim.P. 907] notice of intent to dismiss the pro se PCRA
petition was sent to Appellant[,] and on April 7, 2020, [the PCRA
court entered] an order denying and dismissing Appellant’s pro se
PCRA petition…. On May 11, 2020, Appellant[ filed a] pro se notice
of appeal….

PCRA Court Opinion (“PCO”), 6/29/20, at 1-3 (footnotes and some citations

omitted).

Appellant now presents the following issue for review:

[The] PCRA court erred as a matter of law in its failure to comply
with the dictates of … Finley … and … Turner[,] in allowing PCRA
counsel to file a deficient No-Merit Letter[,] and in adopting the
same in denying [Appellant]’s PCRA petition absent an evidentiary
hearing, depriving him of his rule-based right to counsel and

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1 Hereinafter, “No-Merit Letter.”

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meaningful review of his claims, in violation of federal due process
and equal protection entitlements under the U.S. Constitution.

Appellant’s Brief at ii (unnecessary capitalization omitted).

In reviewing the propriety of an order granting or denying PCRA
relief, an appellate court is limited to ascertaining whether the
record supports the determination of the PCRA court and whether
the ruling is free of legal error. We pay great deference to the
findings of the PCRA court, but its legal determinations are subject
to our plenary review.

Commonwealth v. Matias, 63 A.3d 807, 810 (Pa. Super. 2013) (cleaned

up).

Instantly, Appellant challenges the PCRA court’s acceptance of Attorney

DiBenedetto-Forrest’s No-Merit Letter, which the court adopted as the basis

for its denial of Appellant’s pro se PCRA petition. The traditional requirements

for proper withdrawal of PCRA counsel, originally set forth in Finley, were

updated by this Court in Commonwealth v. Friend, 896 A.2d 607 (Pa.

Super. 2006), abrogated by Commonwealth v. Pitts, 981 A.2d 875 (Pa.

2009),2 which provides:

1) As part of an application to withdraw as counsel, PCRA counsel
must attach to the application a “no-merit” letter[;]

2) PCRA counsel must, in the “no-merit” letter, list each claim the
petitioner wishes to have reviewed, and detail the nature and
extent of counsel’s review of the merits of each of those claims[;]

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2 In Pitts, our Supreme Court abrogated Friend “[t]o the extent Friend
stands for the proposition that an appellate court may sua sponte review the
sufficiency of a no-merit letter when the defendant has not raised such issue.”
Pitts, 981 A.2d at 879. Here, Appellant preserved his challenge to Attorney
DiBenedetto-Forrest’s No-Merit Letter in the PCRA court, and now challenges
the sufficiency of that letter on appellate review. Accordingly, Pitts is
inapplicable.

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3) PCRA counsel must set forth in the “no-merit” letter an
explanation of why the petitioner’s issues are meritless[;]

4) PCRA counsel must contemporaneously forward to the
petitioner a copy of the application to withdraw, which must
include (i) a copy of both the “no-merit” letter, and (ii) a
statement advising the PCRA petitioner that, in the event the trial
court grants the application of counsel to withdraw, the petitioner
has the right to proceed pro se, or with the assistance of privately
retained counsel;

5) the court must conduct its own independent review of the
record in the light of the PCRA petition and the issues set forth
therein, as well as of the contents of the petition of PCRA counsel
to withdraw; and

6) the court must agree with counsel that the petition is meritless.

Friend, 896 A.2d at 615 (footnote omitted).

Appellant presents numerous sub-claims as to why the PCRA court erred

in accepting the No-Merit Letter. With regard to the Friend standard,

Appellant’s arguments are primarily focused on the fifth and sixth Friend

factors, as he generally asserts that the PCRA court erred in its review of the

No-Merit Letter by agreeing with counsel that each of Appellant’s claims was

meritless. He also argues that PCRA counsel provided ineffective assistance

by failing to investigate adequately his claims of trial and appellate counsels’

ineffectiveness. We will begin our review by addressing, ad seriatim,

Appellant’s arguments that his underlying claims were potentially meritorious,

and conclude by examining his claim of PCRA counsel’s ineffectiveness.

As to all of his ineffective assistance of counsel (“IAC”) claims, Appellant

must demonstrate that “(1) his claims have arguable merit; (2) counsel had

no reasonable basis for his action or inaction; and (3) counsel’s action or

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inaction prejudiced [the] appellant.” Commonwealth v. Hawkins, 894 A.2d

716, 721 (Pa. 2006). Furthermore,

[a] defendant raising a claim of ineffective assistance of counsel
is required to show actual prejudice; that is, that counsel’s
ineffectiveness was of such magnitude that it could have
reasonably had an adverse effect on the outcome of the
proceedings.[3] This standard is different from the harmless error
analysis that is typically applied when determining whether the
trial court erred in taking or failing to take certain action. The
harmless error standard, as set forth by this Court in
Commonwealth v. Story, 383 A.2d 155, 164 (Pa. 1978)
(citations omitted), states that “[w]henever there is a ‘reasonable
possibility’ that an error ‘might have contributed to the conviction,’
the error is not harmless.” This standard, which places the burden
on the Commonwealth to show that the error did not contribute
to the verdict beyond a reasonable doubt, is a lesser standard than
the Pierce prejudice standard, which requires the defendant to
show that counsel’s conduct had an actual adverse effect on the
outcome of the proceedings. This distinction appropriately arises
from the difference between a direct attack on error occurring at
trial and a collateral attack on the stewardship of counsel. In a
collateral attack, we first presume that counsel is effective, and
that not every error by counsel can or will result in a constitutional
violation of a defendant’s Sixth Amendment right to counsel.

Commonwealth v. Gribble, 863 A.2d 455, 472 (Pa. 2004) (cleaned up).

Trial Counsel IAC - Failure to Investigate a Witness

First, Appellant asserts that Attorney DiBenedetto-Forrest’s No-Merit

Letter was deficient for deeming meritless his claim that trial counsel was

ineffective for failing to investigate a potential witness, “Krista.” Appellant

explains, he

was accused of molesting one of his stepdaughters, causing the
victim to imbibe alcoholic beverages and be committed because
____________________________________________

3 We refer to this standard herein as “outcome-determinative” prejudice.

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she allegedly was acting suicidal. Trial counsel’s strategy, based
on the record, was to discredit the accuser, based on the fact that
no forensic evidence was acquired or presented at trial to
substantiate the charges. However, at the crisis center wh[ere]
the accuser was taken, she was examined by one, Krista, who was
an employee and had information surrounding the accuser as
having tested her for possible sexual activity. Trial counsel failed
to investigate this person or seek to inquire exactly the knowledge
she possessed, via her examinations of the [accusers]. No
medical, forensic or physical evidence was presented at trial as to
this accuser’s statements being valid. Also, this person was not
listed by the prosecutor as a witness due to the lack of assisting
his case against [Appellant], evidence-wise. Trial counsel never
sought to inquire or investigate exactly that factual predicate the
witness contained as to her actual examinations of the accused to
determine whether the witness could assist him in his strategy of
challenging the accuser[s’] credibility as to any sexual acts having
been done to [them] by [Appellant]. It is totally impossible,
absent investigation, to determine or even assert that Krista
lacked any relevance to the case, or that she did not possess any
testimony, evidence, facts, etc., by which would have assisted trial
counsel in his defense of challenging the credibility of the
accuser[s].

Appellant’s Brief at 7-8 (citation omitted).

In the No-Merit Letter, PCRA counsel determined this claim was

meritless because:

The defense proceeded on the theory that the complainants
invented the stories of sexual abuse against [Appellant] because
he was a strict disciplinarian and they did not like living under his
house rules. [Appellant] testified and unequivocally denied the
allegations against him. Moreover, Commonwealth conceded that
no physical or medical evidence existed to corroborate the
allegations, [the absence of] which … defense counsel aptly
utilized in the defense. Thus, it was unnecessary to call additional
medical or psychological personnel to confirm the absence of such
evidence.

No-Merit Letter, 11/27/19, at 10. The PCRA court agreed, stating that the

“record itself reveals no forensic evidence existed to corroborate the victims’

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allegations and testimony; this fact renders [Appellant] incapable of

demonstrating the uncalled witnesses would have helped him.” Pa.R.Crim.P.

907 Notice, 3/3/20, at 3-4; accord PCO at 12-13.

We ascertain no basis in the record to conclude that Appellant was

prejudiced by trial counsel’s failure to investigate Krista. According to

Appellant, Krista conducted the physical examination for evidence of the

victims’ sexual activity or trauma. The Commonwealth conceded at trial that

no such evidence existed. Thus, any potential testimony from Krista to that

effect would have been cumulative of the Commonwealth’s concession, and

any other potentially exculpatory testimony from Krista is pure conjecture.

“[A]bsent a proffer of information that trial counsel could have uncovered and

used [that would be beneficial for the defense],” a claim that a defendant “was

prejudiced by a deficiency in [counsel’s] investigation or preparation fails.”

Commonwealth v. Elliott, 80 A.3d 415, 439 (Pa. 2013). Accordingly, we

conclude that the PCRA court did not err in accepting counsel’s conclusion in

the No-Merit Letter that this IAC claim is meritless.

Trial Counsel IAC – Failure to File a Suppression Motion

Next, Appellant asserts that trial counsel was ineffective for failing to

seek suppression of certain recorded statements.

This Court has previously found that “[t]he failure to file a
suppression motion under some circumstances may be evidence
of ineffective assistance of counsel.” Commonwealth v.
Metzger, … 441 A.2d 1225, 1228 ([Pa. Super.] 1981); see also
Commonwealth v. Ransome, 402 A.2d 1379, 1381 ([Pa.]
1979). “However, if the grounds underpinning that motion are
without merit, counsel will not be deemed ineffective for failing to

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so move.” Metzger, 441 A.2d at 1228. “[T]he defendant must
establish that there was no reasonable basis for not pursuing the
suppression claim and that if the evidence had been suppressed,
there is a reasonable probability the verdict would have been more
favorable.” Commonwealth v. Melson, … 556 A.2d 836, 839
([Pa. Super.] 1989).

Commonwealth v. Watley, 153 A.3d 1034, 1044 (Pa. Super. 2016).

Instantly, Appellant contends that, at trial, Detective

Kelly testified and admitted that false and fraudulent statements
were accepted as true in the acquisition of a wiretap[,] which was
used to unlawfully extract statements from [Appellant] on the
wiretap. Trial counsel never, prior to trial, sought to see the
statements suppressed based on the false predicate used by Kelly
… to acquire the wiretap and evidence, which further indicates a
clear failure to investigate the facts of [Appellant]’s case by trial
counsel.

Appellant’s Brief at 9.

As explained by the Commonwealth, Appellant’s claim concerns

evidence

obtained from the victim[’s] making a consensual tape[-]recorded
telephone call to [Appellant] pursuant to the law enforcement
exception of the Wiretapping and Electronic Surveillance Control
Act, 18 Pa.C.S. §5704(2)(ii). [Appellant] bases this claim on an
allegation that the detective involved admitted to “false and
fraudulent statements” in his wiretap paperwork. Detective Kelly
addressed this groundless assertion at trial in explaining that
there was an error in his paperwork and that the error was a
misprint. [N.T., 8/15/13, at 32-33]. This error did nothing to
affect the validity and admissibility of the phone call evidence.
Trial counsel cannot be found ineffective for failing to file a futile
suppression motion.

Commonwealth’s Brief at 16.

We agree with the PCRA court that Appellant is not entitled to relief.

See PCO at 8-9. Appellant fails to provide any legal analysis in his brief as to

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the potential basis for the suppression of the wiretap evidence. He does not

explain how his reference to “false and fraudulent statements” affects the

admissibility of the recordings,4 nor does he explain, in any fashion, how his

statements were “unlawfully extracted.” Appellant’s Brief at 9. Accordingly,

Appellant has failed to meet his burden to convince us that the PCRA court

erred in agreeing with PCRA counsel that this issue is meritless.

Trial Counsel IAC – Failure to Object to Prosecutorial Misconduct

Next, Appellant asserts that trial counsel was ineffective for failing to

object when the prosecutor ostensibly made statements before the jury that

“stripped him of the presumption of innocence by repeatedly referring to

[Appellant’s] attending questioning by police … with a lawyer, asserting and

implying that innocent people do not need lawyers when being questioned by

police.” Id. at 9-10.

The record clearly demonstrates that this claim is meritless. During

cross-examination of Appellant, when the line of inquiry turned to Appellant’s

questioning by police, the following exchange occurred:

Q. At that point did you know you were in trouble?

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4 Our review of the record demonstrates that, in Detective Kelly’s application
for the wiretap, a reference was made to a specific accusation by one of the
victims. Detective Kelly indicated that a mistake had been made, as that
particular accusation had been made by a different victim. See N.T., 8/15/13,
at 32-33. Thus, the misprint was a mistake as to the source of the accusation.
Appellant fails to substantiate in any way his claim that this misattribution was
fraudulent, or how the facial falsity of that individual reference was an error
grave enough to affect the admissibility of his statements on the recording.

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A. No, I did not.

Q. Why bring a lawyer then?

N.T., 8/15/13, at 151.

Trial counsel immediately objected, id., arguing that the prosecutor was

not permitted to use Appellant’s retention of counsel during cross-

examination, id. at 152. However, the trial court overruled the objection. Id.

Thus, there is no arguable merit to this IAC claim, because the record belies

Appellant’s contention that trial counsel failed to object to this line of

questioning. Accordingly, we ascertain no error by the PCRA court in agreeing

with PCRA counsel that this issue was meritless.5

Trial Counsel IAC – Failure to Preserve an Objection to Jury

Instructions for Review on Direct Appeal

Next, Appellant asserts that trial counsel was ineffective for failing to

preserve an objection to a jury instruction. Appellant’s Brief at 11-12. As this

Court explained during Appellant’s direct appeal from his second trial,

Appellant sought

to preclude the Commonwealth from introducing evidence of
Appellant’s actions and conduct toward the victims in this case for
which he was not specifically charged in the second trial. This
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5 Appellant solely claims that trial counsel failed to object and, consequently,
failed to preserve the claim for appellate review, a claim that is not supported
by the record. The claim was preserved. Appellant does not assert in his brief
that the PCRA court erred by accepting the No-Merit Letter on the basis that
direct-appeal counsel was ineffective for failing to seek further review of the
court’s overruling that objection, nor did he preserve such a claim in his
response to the PCRA court’s Rule 907 notice. Thus, any such claim has been
waived.

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included “[f]acts that led to these convictions[, of endangering the
welfare of children and corruption of minors in the first trial,]
where on diverse dates between 2001 and 2009[,] [Appellant]
made comments about the alleged victims’ breasts and buttocks
and engaged in conduct including pulling on the victims’ bra straps
and touching their buttocks.” N.T., 8/12/13, at 4. The
Commonwealth sought admission of the evidence at the second
trial to show, inter alia, “the motive and intent of Appellant.” Id.
at 5.

Commonwealth v. Clarke, No. 148 EDA 2014, unpublished memorandum

at 8 (Pa. Super. filed Dec. 2, 2014).

The trial court permitted the testimony, and Appellant’s trial counsel

presented a proposed standard instruction for the jury after testimony

concluded. Id. at 9. However, the proffered instruction was a boilerplate

form from the Pennsylvania Standard Criminal Jury Instructions, lacking any

specific reference to the facts and circumstances of this case. Nevertheless,

the trial court read the following instruction to the jury:

You have heard evidence tending to prove that the Defendant was
guilty of improper conduct in the household. He is not on trial for
that now. I am speaking about the testimony to the effect that
the Defendant would make remarks, the Defendant might pull on
the bra strap of one of the people, or pull on towels, or any of the
things of that nature that you may have heard in the course of
this case. This evidence is before you for a limited purpose. That
is for the purpose of tending to show that the Defendant
committed the other crimes charged, the other sexual
misbehavior. This evidence must not be considered by you in any
way other than for that purpose that I just stated. You must not
regard this evidence as showing that the Defendant is a person of
bad character or criminal tendencies[, from] which you might be
inclined to infer guilt. On the other hand[,] I did find that the
evidence was relevant[,] and what you have to consider is my
finding that it was relevant, the ultimate criteria for relevance in
a criminal case or any case at law is that the evidence makes it
more likely that the Defendant committed the crime than less
likely. And you can consider it in that fashion.

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Id. (quoting from N.T., 8/16/13, at 120–22) (emphasis omitted).

On appeal, Appellant argued that the charge “invited the jury to consider

Appellant’s bad character….” Id. at 10. This Court initially held that the issue

was waived, because although trial counsel had restated his objection to the

admissibility of the evidence after the instruction was given, he “did not

articulate a specific exception to the trial court’s wording of the charge or

express the view that the charge inadequately reflected the trial court’s

ruling.” Id. Nevertheless, this Court went on to state that, “alternatively[,]”

Appellant’s “contentions are without merit[,]” reasoning that

Appellant’s assertion that the trial court’s charge invited the jury
to consider Appellant’s bad character is belied by the trial court’s
specific instruction to the contrary. “You must not regard this
evidence as showing that the Defendant is a person of bad
character or criminal tendencies which you might be inclined to
infer guilt.” N.T., 8/16/13, at 121.

Id.

Appellant now contends that trial counsel was ineffective for failing to

preserve an objection to the jury instruction. He argues that it is patently

obvious that trial counsel was ineffective, because this Court determined that

trial counsel waived his challenge to the jury instruction for appellate review.

Appellant’s Brief at 11.

However, Appellant simply ignores this Court’s alternative analysis

during his direct appeal. After finding waiver, this Court also determined that

the issue was meritless, because the instructions given by the trial court

plainly belied the argument that the jury had been invited to consider

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Appellant’s bad character. We ascertain no reason (and Appellant fails to

suggest one) as to why this Court would reach a different conclusion on the

merits of the underlying claim through collateral review, and in so doing

contradict the alternative analysis that this Court already provided during

Appellant’s direct appeal. The record clearly demonstrates that trial counsel’s

failure to preserve a challenge to the at-issue jury instruction did not result in

outcome-determinative prejudice as is required under Pierce, supra. The

jury was instructed to consider the prior bad-acts evidence only for a limited

purpose, and it was specifically told not to infer guilt from the evidence’s

propensity to establish bad character. N.T., 8/16/13, at 121. Thus, we

ascertain no error in the PCRA court’s agreeing with PCRA counsel that this

issue is meritless.

Illegal Sentence - Alleyne

Next, Appellant claims that he received an illegal sentence under

Alleyne v. United States, 570 U.S. 99 (2013).6 In Alleyne, the Supreme

Court held that facts that increase a mandatory minimum sentence are an

element of the offense, which must be submitted to the fact-finder and found

beyond a reasonable doubt. Appellant argues that his term of 17-34 years’

incarceration violates Alleyne, but his argument in this regard is
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6 Appellant formulates this as an IAC claim in his brief, as he did in the PCRA
court. However, it is axiomatic that an illegal sentence “is always subject to
review” within a timely PCRA petition. Commonwealth v. Fahy, 737 A.2d
214, 223 (Pa. 1999). Thus, if meritorious, Appellant would be entitled to relief
for an illegal sentence regardless of whether any previous counsel failed to
raise the issue.

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incomprehensible and, nevertheless, wholly unconvincing. See Appellant’s

Brief at 12-13.

The PCRA court addressed this claim as follows:

In the present case[,] Appellant’s sentences fell within the
standard range of the sentencing guidelines and do not exceed
any of the statutory maximums...[. A]t the sentencing hearing[,]
the Honorable Michael F.X. Coll stated specifically [that]
Appellant’s sentence was not a mandatory[-]minimum sentence.
See [N.T., 11/26/13, at 10]. Notwithstanding Appellant’s
assertions to the contrary, the sentencing court did not impose
any mandatory minimum sentences[,] … the sentence does not
exceed the statutory maximums[,] and consequently there is no
Alleyne violation.

PCO at 16.

We ascertain no error in the PCRA court’s agreement with PCRA counsel

that this issue is meritless, as our own review of the record fails to uncover

any evidence that would suggest Appellant’s sentence violates Alleyne in

whole or in part. All the facts necessary to support the imposition of

Appellant’s sentence were presented to the jury under a beyond-a-

reasonable-doubt standard.

Illegal Sentence - Muniz

Appellant also claims his lifetime registration requirements (“LR

requirements”) under Pennsylvania’s Sex Offender Registration and

Notification Act are illegal under Commonwealth v. Muniz, 164 A.3d 1189

(Pa. 2017).7 He contends this is because his LR requirements under SORNA
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7 As with Appellant’s previous issue, he couched this claim in terms of
counsel’s ineffectiveness; however, we need only address the merit of the
underlying illegal sentencing claim. See n.6, supra.

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constitute “a punishment” that “offends the State and Federal Constitutions’

cruel and unusual punishment portions.” Appellant’s Brief at 14. Thus, he

argues the PCRA court erred when it agreed with PCRA counsel that he was

not entitled to relief on this claim. Appellant’s claim is meritless.

Pennsylvania’s General Assembly passed SORNA in 2012 (“SORNA I”),

and the provisions of SORNA I became effective on December 20, 2012.

Appellant’s LR requirements were therefore imposed under SORNA I, as he

was sentenced in 2013. Subsequently, in Muniz, our Supreme Court held the

registration and reporting requirements of SORNA I constitute criminal

punishment, and their retroactive application violated the ex post facto

clauses of the United States and Pennsylvania Constitutions. Muniz, 164 A.3d

at 1223. In response to Muniz, the General Assembly amended SORNA I to

include Acts 10 and 29 of 2018 (“SORNA II”). See 2018, Feb. 21, P.L. 27,

No. 10 (Act 10); see also 2018, June 12, P.L. 140, No. 29, (Act 29).

Subsequently, in Commonwealth v. Lacombe, 234 A.3d 602 (Pa. 2020),

our Supreme Court determined that Subchapter I of SORNA II, which applies

to Appellant,8 is not punitive and, therefore, its retroactive application does

not violate the constitutional prohibition against ex post facto laws.

Accordingly, Appellant’s reliance on Muniz is misplaced, as the constitution-

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8 See 42 Pa.C.S. § 9799.52(1) (providing that Subchapter I is applicable to
an offender who committed an offense prior to December 20, 2012, and whose
registration period has not expired).

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offending provisions of SORNA I no longer apply to him. Appellant is now

subject to the provisions of Subchapter I of SORNA II.

Here, Appellant offers a different argument than that presented in

Lacombe, contending that his LR requirements constitute a violation of his

Eighth Amendment rights, and their corresponding Pennsylvania Constitution

counterparts. However, the Lacombe Court’s conclusion that Subchapter I’s

registration and reporting requirements are non-punitive simultaneously

resolved Appellant’s claim, because the Eighth Amendment does not apply to

non-punitive statutes. See In re J.C., 232 A.3d 886, 894 (Pa. Super. 2020)

(holding that when a statute is not punitive, application of the statute does

not violate constitutional protections against double jeopardy, cruel and

unusual punishment, or ex post facto application of a penal law). Moreover,

the “Pennsylvania prohibition against cruel and unusual punishment is

coextensive with the Eighth and Fourteenth Amendment of the United States

Constitution.” Commonwealth v. Yasipour, 957 A.2d 734, 743 (Pa. Super.

2008). Accordingly, we ascertain no error in the PCRA court’s agreement with

PCRA counsel that this issue is meritless.

Trial Counsel IAC – Failure to Call Witnesses

Next, Appellant claims that there were two witnesses “who lived at his

house during the alleged sexual assaults and who would have elicited

testimony indicating the fact that the accuser was lying and seeking to have

[Appellant] removed from the home because of his strict discipline of her.”

Appellant’s Brief at 15. In his brief, Appellant provides the witnesses’ names,

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(Veronica Zinni and Shuane Slaton), as well as their addresses and phone

numbers. Id.

The Commonwealth argues that the “two witnesses referenced in

[Appellant]’s brief are not identified or even mentioned in [his response] to

PCRA [c]ounsel’s [No-Merit] Letter. This is consistent with PCRA counsel’s

statement in the Turner/Finley letter that ‘[Appellant] does not affirmatively

articulate which witnesses would have been available for presentation of

beneficial evidence.’ [No-Merit] Letter, [11/27/19, at] 10.” Commonwealth’s

Brief at 20. Thus, the Commonwealth contends this claim is waived for our

review. See Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived

and cannot be raised for the first time on appeal.”).

We are constrained to agree with the Commonwealth. Appellant did not

mention either witness in his response to the No-Merit Letter, nor do those

names appear in his pro se PCRA petition. Indeed, Appellant makes no

attempt in his brief to demonstrate where in the record it can be shown that

he informed any of his prior attorneys of these potential witnesses.

Accordingly, we conclude this claim is waived for our review and, in any event,

we cannot ascertain any error in the PCRA court’s acceptance of the No-Merit

Letter on this basis.

***

In sum, we discern no basis to conclude that the PCRA court erred in

accepting PCRA counsel’s No-Merit Letter. To the extent that our reasoning

with respect to individual issues differed from the rationale of the PCRA court,

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and/or with the analysis set forth in PCRA counsel’s No-Merit Letter, we note

that “[t]his Court may affirm a PCRA court’s decision on any grounds if the

record supports it.” Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.

Super. 2012).

PCRA Counsel IAC

Finally, interlaced throughout his brief, Appellant contends that his PCRA

counsel, Attorney DiBenedetto-Forrest, was ineffective for failing to properly

investigate his case and research his claims, which culminated in counsel’s

filing of the No-Merit letter. This claim was preserved, generally, in Appellant’s

response to counsel’s No-Merit Letter.9 However, after determining that there

is no merit to each of Appellant’s trial and appellate counsel IAC claims, and

that his illegal sentencing claims also do not warrant relief, we conclude that

Appellant has not met his burden to demonstrate that any deficiencies in PCRA

counsel’s performance resulted in outcome-determinative prejudice. That is,

Appellant has not adequately demonstrated that the results of the PCRA

proceedings below would have been different but for the inadequacies of PCRA

counsel’s representation.10 Accordingly, his claim that PCRA counsel was
____________________________________________

9 However, as noted above, Appellant waived his claim that trial counsel failed
to investigate Veronica Zinni and Shuane Slaton as potential witnesses.
Likewise, Appellant waived his claim that PCRA counsel was ineffective for
failing to investigate these witnesses for the same reason.

10 We are deeply troubled that Attorney DiBenedetto-Forrest took more than
three years to file the No-Merit Letter after the court appointed him as PCRA
counsel. Although the record contains some explanations for part of that

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ineffective also lacks merit. See Commonwealth v. Fears, 86 A.3d 795,

804 (Pa. 2014) (“Failure to prove any prong … will defeat an ineffectiveness

claim.”).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/1/21

____________________________________________

delay, the full extent of the delay remains inexcusable. Nevertheless,
Appellant has not demonstrated how the outcome of the PC proceedings would
have been different absent that delay and, therefore, he is not entitled to relief
on that basis alone.

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