J-A27045-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JUAN PAGAN :
:
Appellant : No. 322 EDA 2021
Appeal from the PCRA Order Entered January 8, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0010301-2014
BEFORE: PANELLA, P.J., LAZARUS, J., and DUBOW, J.
MEMORANDUM BY DUBOW, J.: FILED JANUARY 5, 2022
Appellant Juan Pagan appeals from the Order denying his first petition
filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-46.
Appellant challenges the stewardship of plea counsel, the imposition of lifetime
sex offender registration requirements, and the PCRA court’s failure to hold
an evidentiary hearing prior to dismissing his petition. After careful review,
we affirm.
On January 13, 2000, Appellant and at least four other men committed
numerous offenses after breaking into an occupied house, including robbery
and Appellant’s rape of a 21-year-old female resident after the men had
blindfolded her and restrained her with duct tape. None of the victims were
able to identify the assailants.
On October 19, 2013, the Special Victims Unit of the Philadelphia police
department received a CODIS report indicating that a DNA profile of Appellant,
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who was by that time a convicted offender in West Virginia, matched the DNA
obtained from the victim’s rape kit. Appellant submitted to another DNA test
which confirmed his identity as the victim’s rapist. The Philadelphia police
department obtained an arrest warrant on May 19, 2014, and after extraditing
Appellant from West Virginia, the Commonwealth filed a criminal information
in September 2014 charging him with 23 crimes arising from the January 2000
incident. The court appointed counsel from the Defender’s Association to
represent Appellant.
On January 6, 2015, at a pre-trial hearing where Appellant appeared
with counsel to discuss the possibility of a plea, Appellant himself asserted
that he believed the statute of limitations had run on prosecuting his case
because “they had the DNA in 2011.” N.T. Pre-trial Hr’g, 1/6/15, at 5. The
court informed Appellant in no uncertain terms that his claim was without
merit. Id. at 7.
Following that hearing, notwithstanding his representation by counsel,
Appellant submitted a series of pro se communications to the court. For
instance, on February 18, 2015, Appellant pro se submitted to the court a
motion to dismiss on the basis of the expiration of the statutes of limitations,
averring that because his DNA was analyzed and entered into CODIS in West
Virginia in 2011, the Commonwealth’s prosecution that was commenced in
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2014 fell outside the one year provided in 42 Pa.C.S. § 5552(c.1).1 On May
26, 2015, Appellant pro se forwarded a letter to the court asking for the
appointment of new counsel. On June 22, 2015, Appellant pro se submitted
a Motion to Quash/Writ of Habeas Corpus again raising the statute of
limitations/DNA issue. Appellant thereafter continued to submit pro se
Motions and other documents.
On November 17, 2015, Appellant, through his counsel, filed a motion
to dismiss alleging that the May 2014 arrest warrant was defective and,
therefore, the statute of limitations for prosecuting his case was not tolled.
The court held a hearing on the motion on March 28, 2016, during which
Appellant’s counsel argued that because the arrest warrant issued May 19,
2014, misidentified Appellant’s race and social security number, it was
defective and, therefore, invalid. In support, Appellant submitted into
evidence a copy of the CODIS report received by the Commonwealth on
October 18, 2013, as evidence that the DNA report correctly identified his
race. Appellant’s counsel argued that because the arrest warrant was
defective, the statute of limitations provided in 42 Pa.C.S. 5552.1.(c)(2) was
not tolled and Appellant should, therefore, be discharged. N.T. Motion,
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1 42 Pa.C.S. § 5552(c.1) provides that, if evidence of an offense is obtained
containing DNA “which is subsequently used to identify an otherwise
unidentified individual as the perpetrator of the offense, the prosecution of the
offense may be commenced within the period of limitations provided for the
offense or one year after the identity of the individual is determined,
whichever is later.”
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3/28/16, at 5. After considering the vigorous arguments of counsel, the court
concluded that the arrest warrant was valid and denied the motion to dismiss.
On May 16, 2016, Appellant entered open guilty pleas to three counts
each of robbery and kidnapping, and one count each of rape, other sexual
offenses, burglary, criminal trespass, and firearms offenses.2 On August 19,
2016, the court sentenced him to an aggregate term of 25 to 80 years’
incarceration and notified Appellant that he was subject to lifetime registration
requirements pursuant to SORNA.3 Appellant filed post-sentence motions,
which the court denied. Appellant did not appeal his judgment of sentence.
On August 11, 2017, Appellant filed the instant PCRA Petition pro se.
The court appointed counsel who filed an amended Petition. Numerous delays
followed as a result of, inter alia, the withdrawal and appointment of PCRA
counsel, twice. The court held an evidentiary hearing on January 7, 2019, to
address whether counsel had failed to file a requested direct appeal. The court
found the issue to be without merit and denied relief.
____________________________________________
2After entering his plea, Appellant filed a Motion to Withdraw the plea. At a
hearing scheduled to address the motion, Appellant’s counsel informed the
court that Appellant desired to withdraw his Motion to Withdraw his plea. N.T.
Hr’g, 6/13/16, at 3. The court noted the motion’s withdrawal on the record.
Id.
3 Sex Offenders Registration and Notification Act, 42 Pa.C.S. §§ 9799.51-
9799.75 (“SORNA”). Because Appellant committed his sexual offenses prior
to December 2012, the registration requirements found in subchapter I apply
to Appellant. 42 Pa.C.S. § 9799.52.
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However, the PCRA court subsequently granted Appellant’s motion for
reconsideration and allowed another amendment of the PCRA Petition.
Appellant’s counsel subsequently obtained several continuances. On October
6, 2020, the court issued a Pa.R.Crim.P. 907 Notice indicating its intent to
dismiss the petition. After the grant of one final continuance, the court
dismissed the petition on January 8, 2021.
Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)
Statement. The PCRA court filed a Rule 1925(a) Opinion.
Appellant raises the following issues for our review, reordered:
1. Whether the PCRA court erred by dismissing the PCRA petition
when clear and convincing evidence was presented to establish
that trial counsel was ineffective for failing to file direct appeal
as requested by appellant.
2. Whether the PCRA court erred by dismissing the PCRA petition
when clear and convincing evidence was presented to establish
that trial counsel was ineffective for failing to advise appellant
of the application of the statute of limitations, specifically that
the statute had expired and that the Commonwealth should
have been precluded from prosecuting him.
3. Whether the PCRA court erred by dismissing the PCRA petition
when clear and convincing evidence was presented to establish
that trial counsel’s ineffectiveness was the causal nexus of
appellant’s unlawfully induced guilty pleas.
4. Whether the PCRA court erred by dismissing the PCRA petition
when clear and convincing evidence was presented to establish
violations of appellant’s constitutional rights under the United
States and Pennsylvania Constitutions.
5. Whether the PCRA court erred by dismissing the PCRA petition
when clear and convincing evidence was presented to establish
that the trial court issued an illegal sentence by imposing a
punitive registration requirement of SORNA in violation of his
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due process rights that extended the length of the sentence
beyond the statutory maximum.
6. Whether the PCRA court erred by failing to grant an evidentiary
hearing.
Appellant’s Br. at 9.4
Standard of Review
We review an order denying a petition for collateral relief to determine
whether the PCRA court’s decision is supported by the evidence of record and
free of legal error. Commonwealth v. Jarosz, 152 A.3d 344, 350 (Pa.
Super. 2016) (citing Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.
2014)). “This Court grants great deference to the findings of the PCRA court
if the record contains any support for those findings.” Commonwealth v.
Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010) (citation omitted).
“Further, the PCRA court’s credibility determinations are binding on this Court,
where there is record support for those determinations.” Id.
To be eligible for relief under the PCRA, a petitioner must establish 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). In addition, a petitioner must
establish that the issues raised in the PCRA petition have not been previously
litigated or waived, and that “the failure to litigate the issue prior to or during
trial, during unitary review or on direct appeal could not have been the result
____________________________________________
4 Appellant’s brief is 23 pages of single-spaced text. We remind counsel that
for the benefit of the parties’ and the Courts’ eyesight, the appellate rules
require briefs to be double-spaced. See Pa.R.A.P. 124(a)(3)(stating that “[a]ll
papers filed in an appellate court . . . must be double spaced[.]”).
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of any rational, strategic or tactical decision by counsel.” Id. at § 9543(a)(3),
(a)(4).
Ineffective Assistance of Counsel
Appellant raises claims asserting ineffective assistance of counsel. We
presume counsel is effective. Commonwealth v. Cox, 983 A.2d 666, 678
(Pa. 2009). To overcome this presumption, a petitioner must establish that:
(1) the underlying claim has arguable merit; (2) counsel lacked a reasonable
basis for his act or omission; and (3) petitioner suffered actual prejudice.
Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015). In order to
establish prejudice, a petitioner must demonstrate “that there is a reasonable
probability that, but for counsel’s error or omission, the result of the
proceeding would have been different.” Commonwealth v. Koehler, 36
A.3d 121, 132 (Pa. 2012) (citation omitted). A claim will be denied if the
petitioner fails to meet any one of these prongs. See Jarosz, 152 A.3d at
350 (citing Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 2009)).
Issue 1 – Failure to file direct appeal
In his first issue, Appellant asserts trial counsel provided ineffective
assistance by failing to file a direct appeal. Appellant did not include this issue
within his Pa.R.A.P. 1925(b) Statement. Accordingly, it is waived. See
Commonwealth v. Hill, 16 A. 3d. 484, 494 (Pa. 2011). (reaffirming bright
line rule that issues raised on appeal that were not presented in a Rule 1925(b)
statement are waived).
Issue 2 – Failure to litigate statute of limitations
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Appellant asserts that trial counsel “failed to file and litigate a motion to
dismiss based on the expiration of the statute of limitations,” “offered no
explanation . . . regarding the failure to file a motion to dismiss,” and “was
not afforded the opportunity to litigate a motion to dismiss based on the
expiration of the statute of limitations.” Appellant’s Br. at 14-15. He further
asserts, without citation to the record or legal authority, that “law enforcement
authorities notified Pennsylvania law enforcement authorities by the end of
July 2011 . . . [which] obligated [the Commonwealth] to commence
prosecution of the offense one year after the identity of the individual was
determined.” Appellant’s Br. at 15. This assertion is waived for lack of
development.
Our Rules of Appellate Procedure unequivocally require that an appellant
support each question he or she raises with discussion and analysis of
pertinent authority. See Commonwealth v. Johnson, 985 A.2d 915, 924
(Pa. 2009). See also Pa.R.A.P. 2111 and Pa.R.A.P. 2119 (listing argument
requirements for appellate briefs). “[W]here an appellate brief fails to provide
any discussion of a claim with citation to relevant authority or fails to develop
the issue in any other meaningful fashion capable of review, that claim is
waived.” Johnson, supra at 924. See Pa.R.A.P. 2101 (explaining that
substantial briefing defects may result in dismissal of appeal).
Pa.R.A.P. 2119 specifically provides that “[w]hen the finding of, or the
refusal to find, a fact is argued, the argument must contain a synopsis of all
the evidence on the point, with a reference to the place in the record where
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the evidence may be found.” Pa.R.A.P. 2119(c), (d). In addition, a party
must provide citation to and discussion of pertinent authorities pertaining to
each issue. Id. at 2119(a). Where a brief fails to include these essential
elements, “[w]e shall not develop an argument for an appellant, nor shall
we scour the record to find evidence to support an argument; instead, we will
deem [the] issue to be waived.” Commonwealth v. Cannavo, 199 A.3d
1282, 1289 (Pa. Super. 2018) (citations omitted).
Here, Appellant has not provided citations to the record to support his
allegations; nor has he provided any reference to statutory or case law to
support a developed argument. Accordingly, this issue is waived.
Issue 3 – Guilty plea
Appellant premises his next argument on a claim that trial counsel failed
to advise him of the one-year time frame for bringing prosecution after the
DNA identification. He contends that but for counsel’s alleged omission, he
would not have entered the guilty plea on May 16, 2016. Appellant’s Br. at
19. This argument is disingenuous, at best.
As reviewed above, before Appellant entered his plea, trial counsel
litigated a pre-trial motion to dismiss the case based on Appellant’s claim that
the one-year time limit for prosecuting him had passed. See N.T. Motion,
3/28/16. Appellant was present at that hearing. See id. at 3. In addition,
Appellant himself attempted numerous times through pro se communications
to convince the court that the statute of limitations had passed. In fact, at
the pre-trial hearing on January 6, 2015, at which Appellant appeared with
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counsel to discuss the possibility of a plea, Appellant himself raised the issue
with the trial judge. Appellant asserted then that the Commonwealth was
aware of his existence well before they filed the criminal information because
“they took the DNA in 2011.” N.T. Hearing, 1/6/15, at 5. The court repeatedly
informed Appellant and his counsel that his claim regarding the running of the
statute of limitations had no merit. See id. at at 4-7. The court concluded
the discussion by specifically informing Appellant that even if he decided to go
to trial, his statute of limitations claim would not go to the jury because it was
a question of law and stated, most pointedly, the claim would fail as a matter
of law. Id. at 7.
Appellant’s assertion here—that his plea was unknowing based on his
alleged ignorance of a claim about which he was clearly aware over a year
prior to entering his plea—is beyond frivolous. It merits no further review.
Issue 4 – Prosecutorial misconduct
In this next issue, Appellant appears to contend that his counsel was
ineffective because of prosecutorial misconduct. Appellant’s Br. at 20.
Without specifically arguing that trial counsel should have raised a claim of
prosecutorial misconduct, Appellant argues that the “prosecutor concealed the
2011 CODIS identification of appellant and then subsequently re-submitted
his genetic information into CODIS in July of 2013.” Id.
Appellant does not cite to the notes of testimony or any other evidence
of record to support this summary claim; nor does he cite to relevant case law
or provide any legal analysis. We will not develop this issue for Appellant.
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The claim is waived. See Pa.R.A.P. 2101, 2111, 2117, 2119 (briefing and
compliance rules); Cannavo, 199 A.3d at 1289.5
Issue 5 – SORNA registration requirements
In a two-paragraph statement, Appellant contends that the imposition
of the Tier 3 registration requirement is a “punitive sanction for life, well in
excess of the combined mandatory sentences for all the crimes for which he
was convicted and sentenced, [therefore,] the sentence imposed must be
deemed illegal.” Appellant’s Br. at 21. Again, Appellant fails to cite to any
statutes or case law to support and develop his claim. Further, Appellant
provides only conclusory statements without any citation to the record. His
failure to develop this issue as required by our rules of appellate procedure is
fatal to his claim.
Moreover, our Supreme Court has held that the application of SORNA
registration requirements imposed on one who commits a sexual offense prior
to December 2012 is not punitive. Commonwealth v. Lacombe, 234 A.3d
602, 626-27 (Pa. 2020). Therefore, a challenge to their application is not
cognizable as a challenge to the legality of sentence.
Issue 6 – PCRA Hearing
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5 We note the PCRA court concluded that this claim, as it was presented in
Appellant’s Rule 1925(b) Statement, was “woefully vague and incapable of
meaningful evaluation.” PCRA Ct. Op, filed 5/11/21, at 10. In addition, the
PCRA court included in its Opinion a copy of the CODIS report that was sent
to the SVU on October 18, 2013, indicating that a preliminary match had been
made on October 18, 2013, not 2011. See id. at 8.
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In his final issue, Appellant contends that the PCRA court erred in
refusing to hold an evidentiary hearing. Appellant’s Br. at 21-22. After citing
three cases to support the proposition that a court must have an evidentiary
hearing unless the court is certain of the total lack of merit of the petition, he
states:
Appellant raised significant claims of trial counsel’s ineffectiveness
and the unlawful inducement of his guilty plea, as well as
violations of his constitutional rights and the imposition of an
illegal sentence. The claims were legitimate, based on fact and
supported by legal precedent. The PCRA court offered no analysis
to indicate that every conceivable legitimate benefit was given to
each claim raised by appellant.
Id. at 22.
This argument fails to garner relief. As the PCRA court observed:
It is well settled that a PCRA petitioner is not entitled to an
evidentiary hearing as a matter of right. See Commonwealth v.
Jordan, 772 A.2 1011, 1014 (Pa. Super. 2001) ([stating] the right
to an evidentiary hearing is not absolute). A PCRA court may
decline to hold a hearing where the defendant’s claims are
patently frivolous, or where there are no disputed issues of
material fact. Commonwealth v. Carpenter, 725 A.2d 154, 170
(Pa. 1999)[ ]; Commonwealth v. Pirela, 726 A.2d 1026 (Pa.
1999) [ ]. Stated differently, “a hearing should only be held on
any issue which the PCRA court is not certain lacks merit.”
Commonwealth v. Blakeney, 193 A.3d 350, 352 n. 15 (Pa.
2018).
Here, as discussed above, Appellant’s claims were, and remain
patently frivolous. Moreover, contrary to Appellant’s assertion, on
January 7, 2019, the Court did in fact grant an evidentiary hearing
on his claim that counsel failed to file a requested direct appeal –
i.e., the only issue that required development in the record. That
his claim was determined to be meritless affords no basis for relief
here.
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Further, the record demonstrates that the court afforded Appellant
every opportunity, through multiple counseled petitions, in this
now-four-year, post-conviction proceeding. Indeed, Appellant has
filed no fewer than four PCRA/amended petitions, in addition to a
motion for reconsideration—which the court granted in an
abundance of caution to ensure that all of Appellant’s claims were
carefully evaluated. In sum, Appellant’s claims are entirely
refuted by the record.
PCRA Ct. Op., 5/11/21, at 12-13 (some citations, parentheticals, and a
footnote omitted).
We agree with the PCRA court’s conclusion. The record alone is more
than adequate to address the claims Appellant raised in his petition. We, thus,
conclude that the PCRA court did not abuse its discretion in refusing to hold
an evidentiary hearing to address each of his claims.
Conclusion
Having found Appellant’s arguments either waived or meritless, we
affirm the PCRA court’s order denying relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/05/2022
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