J-S83033-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CALVIN GADSON :
:
Appellant : No. 1036 EDA 2017
Appeal from the PCRA Order February 21, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001989-2010
BEFORE: GANTMAN, P.J., OLSON, J., and DUBOW, J.
MEMORANDUM BY GANTMAN, P.J.: FILED MARCH 06, 2018
Appellant, Calvin Gadson, appeals pro se from the order entered in the
Philadelphia County Court of Common Pleas, which dismissed his first
petition filed under the Post Conviction Relief Act (“PCRA”).1 We affirm the
order denying PCRA relief on the grounds asserted but vacate and remand
regarding Appellant’s designation as a sexually violent predator (“SVP”).
The PCRA court opinion accurately set forth the relevant facts and
procedural history of this case. Thus, we have no reason to restate them.2
Appellant raises the following issues for our review:
____________________________________________
1 42 Pa.C.S.A. §§ 9541-9546.
2 We add that our Supreme Court denied Appellant’s petition for allowance of
appeal on July 7, 2016. See Commonwealth v. Gadson, 141 A.3d 588
(Pa.Super. 2016), appeal denied, 636 Pa. 646, 141 A.3d 478 (2016).
J-S83033-17
WHETHER THE [PCRA] COURT ERRED AND ABUSED ITS
DISCRETION IN DISMISSING APPELLANT’S PCRA
PETITION WHERE APPELLATE COUNSEL PROVIDED
INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO
COMPEL THE COURT AND COURT REPORTER TO COMPLY
WITH THE RULES OF APPELLATE PROCEDURE IN
PROVIDING THE TRANSCRIPTS OF THE CASE, AND BY
FAILING TO MOVE FOR SUPPRESSION OF ALL
TRANSCRIPTS IN THIS CASE WHERE THESE TRANSCRIPTS
WERE DEFECTIVELY PRODUCED AND FRAUDULENTLY
CERTIFIED RESULTING IN TRANSCRIPTS TO WHICH NO
VERITY CAN BE CLAIMED WHICH PRECLUDED ANY TYPE
OF MEANINGFUL REVIEW OR BASIS FOR APPEAL
VIOLATING APPELLANT’S RIGHTS TO EQUAL PROTECTION,
AND DUE PROCESS [PURSUANT] TO THE FOURTEENTH
AMENDMENT OF THE UNITED STATES CONSITUTION?
WHETHER THE [PCRA] COURT ERRED AND ABUSED ITS
DISCRETION IN DISMISSING APPELLANT’S PCRA
PETITION WHERE [APPELLATE] COUNSEL RENDERED
INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO
CHALLENGE THE SUFFICIENCY OF THE EVIDENCE…TO
SUSTAIN THE CONVICTIONS?
WHETHER THE [PCRA] COURT ERRED AND ABUSED ITS
DISCRETION IN DISMISSING APPELLANT’S PCRA
PETITION, WHERE TRIAL COUNSEL RENDERED
INEFFECTIVE ASSISTANCE OF COUNSEL BY STIPULATING
TO FACTS PRIOR TO TRIAL WITHOUT APPELLANT’S
CONSENT, AND IN DOING SO, DEPRIVED HIM OF HIS
RIGHT TO CONFRONTATION PURSUANT TO THE SIXTH
AMENDMENT AND ILLEGALLY AND UNCONSITUTIONALLY
WAIVED APPELLANT’S GUARANTEED FUNDAMENTAL
RIGHT TO CONFRONTATION?
WHETHER THE [PCRA] COURT ERRED AND ABUSED ITS
DISCRETION IN DISMISSING APPELLANT’S PCRA
PETITION WHERE COUNSEL [RENDERED] INEFFECTIVE
ASSISTANCE OF COUNSEL FOR FAILING TO RAISE AND
LITIGATE ANY ISSUE RELATED TO THE DENIAL OF
APPELLANT’S RIGHT TO DUE PROCESS OF LAW PURSUANT
TO THE FOURTEENTH AMENDMENT OF THE UNITED
STATES CONSTITUTION BY THE POLICE AND/OR [THE]
COMMONWEALTH’S FAILURE TO PRESERVE EXCULPATORY
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EVIDENCE FAVORABLE TO THE DEFENSE?
(Appellant’s Brief at 4-5).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the record evidence supports the court’s determination
and whether the court’s decision is free of legal error. Commonwealth v.
Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959
A.2d 319 (2008). This Court grants great deference to the findings of the
PCRA court if the record contains any support for those findings.
Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied,
593 Pa. 754, 932 A.2d 74 (2007). A petitioner is not entitled to a PCRA
hearing as a matter of right; the PCRA court can decline to hold a hearing if
there is no genuine issue concerning any material fact, the petitioner is not
entitled to PCRA relief, and no purpose would be served by any further
proceedings. Commonwealth v. Hardcastle, 549 Pa. 450, 701 A.2d 541
(1997).
The law presumes counsel has rendered effective assistance.
Commonwealth v. Gonzalez, 858 A.2d 1219, 1222 (Pa.Super. 2004),
appeal denied, 582 Pa. 695, 871 A.2d 189 (2005). To prevail on a claim of
ineffective assistance of counsel, a petitioner must show, by a
preponderance of the evidence, ineffective assistance of counsel which, in
the circumstances of the particular case, so undermined the truth-
determining process that no reliable adjudication of guilt or innocence could
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have taken place. Commonwealth v. Turetsky, 925 A.2d 876 (Pa.Super.
2007), appeal denied, 596 Pa. 707, 940 A.2d 365 (2007). The petitioner
must demonstrate: (1) the underlying claim has arguable merit; (2) counsel
lacked a reasonable strategic basis for his action or inaction; and (3) but for
the errors and omissions of counsel, there is a reasonable probability that
the outcome of the proceedings would have been different. Id. at 880.
“The petitioner bears the burden of proving all three prongs of the test.” Id.
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Giovanni O.
Campbell, we conclude Appellant’s issues merit no relief. The PCRA court
opinion comprehensively discusses and properly disposes of the questions
presented. (See PCRA Court Opinion, filed May 9, 2017, at 4-10) (finding:
(1) appellate counsel ordered notes of testimony and each volume was
lodged with court electronically using court reporting system; court reporter
certified accuracy and completeness of each volume of testimony; Appellant
points to no inaccuracy in transcripts and fails to identify any prejudice he
suffered from alleged technical defects in filing of transcripts; counsel is not
ineffective for failing to raise meritless claim; (2) Appellant alleges that due
to defective transcripts, Superior Court erred by deciding on direct appeal
that Commonwealth presented sufficient evidence to sustain Appellant’s
convictions; because underlying premise regarding defect of transcripts lacks
merit, related sufficiency claim fails; (3) defense theory at trial was that
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Victim consented to sex acts;3 court charged jury on consent defense; at no
time during trial did Appellant ever contest fact that his DNA matched semen
sample recovered from Victim; under these circumstances, it was reasonable
and appropriate for defense counsel to stipulate to evidence regarding DNA
collection and sample;4 trial counsel did not need Appellant’s express
approval to enter stipulations; moreover, collective testimony from Victim,
various officers, and forensic scientist was duplicative of information
contained in stipulations; Appellant cannot demonstrate prejudice based on
counsel’s stipulations; (4) Appellant complains counsel was ineffective for
failing to challenge absence of Victim’s rape examination medical records;
incident occurred on January 31, 1998; DNA match to Appellant did not
occur until 2010; fact that medical records no longer existed was not
____________________________________________
3 Relevant to this issue, the parties entered into three stipulations of fact
regarding: (1) the rape kit procedure performed on Victim; (2) the analysis
of the swabs collected from Victim’s rape kit; and (3) DNA testing of the
swabs from Victim’s rape kit, the results of which were entered into a
national database and matched Appellant’s DNA.
4 We depart only from the PCRA court’s suggestion that Appellant waived
this issue for failing to object to the stipulations when they were entered on
the record at trial. Appellant could not have objected to trial counsel’s
performance during trial. See generally Commonwealth v. Mason, 634
Pa. 359, 473-74, 130 A.3d 601, 671 (2015) (stating: “What our
jurisprudence has consistently prohibited at both trial and appellate levels
when strategic disagreements arise between defendant and counsel is the
option of hybrid representation, where an otherwise represented defendant
acts as de facto co-counsel exercising control over parts of the defense”;
purpose behind rule prohibiting hybrid representation is to promote judicial
efficiency in representation and to avoid conflicting strategies in defense).
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J-S83033-17
discovered until May of 2012; there is no evidence Commonwealth ever
possessed Victim’s medical records or willfully caused records to be
unavailable; there is no evidence or allegation that Victim’s medical
evaluation contained materially exculpatory evidence; mere fact that those
records no longer exist does not warrant relief under these circumstances).
Thus, we affirm as to Appellant’s issues on the basis of the PCRA court’s
opinion.
Nevertheless, we are mindful of recent case law calling into question
the validity of Appellant’s SVP status. Consequently, we elect to review the
legality of Appellant’s sentence sua sponte. See Commonwealth v.
Randal, 837 A.2d 1211 (Pa.Super. 2003) (en banc) (explaining challenges
to illegal sentence cannot be waived and may be raised by this Court sua
sponte, assuming jurisdiction is proper; illegal sentence must be vacated);
Commonwealth v. Butler, 173 A.3d 1212 (Pa.Super. 2017) (addressing
legality of appellant’s SVP status sua sponte).
Recently, the Pennsylvania Supreme Court held that the registration
requirements under the Sexual Offender Registration and Notification Act
(“SORNA”) constitute criminal punishment. Commonwealth v. Muniz, ___
Pa. ___, 164 A.3d 1189 (2017). In light of Muniz, this Court held: “[U]nder
Apprendi and Alleyne, a factual finding, such as whether a defendant has a
mental abnormality or personality disorder that makes him…likely to engage
in predatory sexually violent offenses, that increases the length of
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registration must be found beyond a reasonable doubt by the chosen fact-
finder.”5 Butler, supra at 1217 (internal quotations and citations omitted).
This Court further held: “Section 9799.24(e)(3) of SORNA[6] violates the
federal and state constitutions because it increases the criminal penalty to
which a defendant is exposed without the chosen fact-finder making the
necessary factual findings beyond a reasonable doubt.” Id. at 1218. The
Butler Court concluded that trial courts can no longer designate convicted
defendants as SVPs or hold SVP hearings, “until [the] General Assembly
enacts a constitutional designation mechanism.” Id. (vacating appellant’s
SVP status and remanding to trial court for sole purpose of issuing
appropriate notice under 42 Pa.C.S.A. § 9799.23, governing reporting
requirements for sex offenders, as to appellant’s registration obligation).
Here, following an assessment by the Sexual Offender Assessment
Board, the court imposed SVP status on Appellant on August 15, 2014.
Appellant’s SVP status carried a lifetime registration requirement. See 42
Pa.C.S.A. § 9799.15(a)(6). This Court affirmed Appellant’s judgment of
sentence on February 8, 2016, and our Supreme Court denied allowance of
____________________________________________
5 Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
(2000) and Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186
L.Ed.2d 314 (2013).
6 See 42 Pa.C.S.A. § 9799.24(e)(3) (stating: “At the hearing prior to
sentencing, the court shall determine whether the Commonwealth has
proved by clear and convincing evidence that the individual is a sexually
violent predator”).
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appeal on July 7, 2016. Before Appellant’s judgment of sentence became
final, the United States Supreme Court had decided Alleyne on June 17,
2013. Relying on Alleyne, this Court decided Butler on October 31, 2017,
which deemed unconstitutional the current mechanism for imposition of SVP
status used in the present case and stated trial courts cannot impose SVP
status in that manner. See Butler, supra. In light of Muniz and Butler,
Appellant’s SVP status constitutes an illegal sentence. Because Appellant’s
judgment of sentence was still pending at the time of Alleyne, Appellant is
entitled to correction of his illegal sentence. See Commonwealth v.
DiMatteo, 2018 WL 459340 (Pa. Jan. 18, 2018) (holding appellant was
entitled to sentencing relief under Alleyne on collateral review of his first
timely PCRA petition where appellant’s judgment of sentence was not yet
final when Supreme Court decided Alleyne). Accordingly, we affirm the
order denying PCRA relief as to Appellant’s claims presented, based on the
PCRA court opinion; but we vacate Appellant’s SVP status and remand to the
trial court to issue a revised notice to Appellant pursuant to 42 Pa.C.S.A. §
9799.23. See Butler, supra.
Order affirmed; SVP status vacated; case remanded with instructions.
Jurisdiction is relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/6/18
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Circulated 02/05/2018 10:45 AM
FILED
IN THE COURT OF COMMON PLEAS MAY O 92017
FOR THE FIRST ruDICIAL DISTRICT OF PENNSYLVANIA Office oi Judicial Recor
TRIAL DIVISION - CRIMINAL Appeals/Post Trla
COMMONWEALTII OF PA CP-51-CR-0001989-2010
v. CP-51-CR-0001969-2010 comm. v. Gadson. Calvin
Opinion
H\Hlllllllrnl
CALVIN GADSON
MEMORANDUM OPINION
7944176031
CAMPBELL, J. May 9, 2017
Proceduralllistory
Ap�ellant, Calvin Gadson, was arrested on January 4, 2010, and charged with Rape and
related offenses occurring on or about January 31, 1998.
On February 5, 2014, the case proceeded to trial before this Court, sitting with a jury. On
February 11, 2014, the jury returned its verdicts. Appellant was convicted of Rape, Conspiracy
to commit Rape, Sexual Assault, Unlawful Restraint, and Robbery. He was acquitted of a
violation of the Uniform Firearms Act (18 Pa.C.S. § 6106).
On August 15, 2014, following a hearing, Appellant was classified a Sexually Violent
Predator. He was then sentenced to 10-20 years' incarceration on the Rape, 10-20 years on the
Conspiracy to commit Rape, 2 Y2 - 5 years on the Sexual Assault, 1 Y2 - 3 years on the Unlawful
. .
Restraint and l 0-20 years on the Robbery. The sentences on the Rape, Conspiracy and Robbery
were each consecutive to one another. The sentences on the Sexual Assault and the unlawful
restraint were concurrent with each other, but consecutive to the other sentences, for an
aggregate sentence of 32 Y2 - 65 years' incarceration.
Appellate counsel was appointed on August 26, 2014.
A timely Notice of Appeal was filed on September 12, 2014.
On February 8, 2016, the Superior Court affirmed the judgment of sentence.
On November 7, 2016, Appellant filed a petitioner under the Post-Conviction Relief Act.
42 Pa.C.S. § 9541, et seq.
Counsel was appointed for Appellant.
On January 6, 2017, counsel filed a letter of no-merit, pursuant to Commonwealth v.
Finley. After conducting and independent review, the Court issued a· Notice of Intent to Dismiss
the Petition on January 23, 2017, a copy of which was served on Appellant.
On February 21, 2017, the Court dismissed the Petition and granted counsel leave to_
withdraw. That same date the Order of dismissal and leave to withdraw was served on
Appellant, along with a Notice of Dismissal of PCRA and Petition and Right to Appeal, pursuant
to Pa.R.Crim.P. 907(4).
_ Appellant filed a Notice of Appeal on March 13, 2017.
Factual History
..
The· evidence adduced at trial, viewed in the light most favorable to the Commonwealth
as the verdict winner, established the following:
On January 31, 1998, then 15 year old Complainant was walking home accompanied by
her then boyfriend, now husband. N.T. 2/5/14, pp. 47-48. As they passed a park near Dobbins
High School two men with guns ordered them into the park through bent bars in the fence. NT.
2/5/14, pp. 48, 60-61, 101-102, 104, I 06. One of the men had a .22 and the other had a shotgun
which they pointed at Complainant and her boyfriend. N.T. 2/6/14, pp. 136, 167-169, 171, 191-
192.
One of the men hit the boyfriend in the back of the head with the 22. N.T. 2/6/14, p.
13 7. The men ordered Complainant and her boyfriend to empty their pockets of a beeper and
2
some change. N.T. 2/5/14, pp. 49, 62-63. The boyfriend protested, but was told to shut up or
they would kill Complainant. N.T. 2/5/14, p. 62; N.T. 2/6/14, p. 136.
One of the men took Complainant over by a tree and ordered her to remove her clothes.
N.T. 2/5/14, pp. 50-51, 123. After she removed her clothes, the man ordered her to perform oral
sex on him. N.T. 2/5/14, pp. 51, 125. He then told her to tum around and he touched her vagina
before penetrating her vagina with his penis. N.T. 2/5/14, pp. 51-54, 124. During this time the
man told Complainant that she had better do what he said or he would kill her. N.T. 2/5/14, p.
53.
After the first man finished having intercourse with her, the second man approached
Complainant and attempted to have sex with her. N.T. 2/5/14, p. 55. When he was unable to
penetrate her anally, he ordered her to perform oral sex on him, which she did. N.T. 2/5/14, p.
55-56. This second man then had vaginal intercourse with her. N.T. 2/5/14, p. 56. When he was
done, the second man told Complainant to lie down and not look at him, or he would kill her.
N.T. 2/5/14, p, 56. After a couple of minutes she heard her boyfriend's voice telling her to hurry
and get dressed, after which they left and went to her home. N.T. 2/5/14, p. 56.
After reaching her home, Complainant sent her boyfriend home and then told her
grandmother what had happened. N.T. 2/5/14, p, 64-65; N.T. 2/6/14, p. 139, 151. Complainant
then called the police, who took her to the police station, and then to the hospital where she was
examined and a rape kit was prepared. N.T. 2/5/14, pp. 64-66, 133, 85-86. Although she was
shown photographs in 1998 and again in 2009, she could not identify the perpetrators. N. T.
2/5/14, pp. 69-70.
The samples collected in the rape kit were preserved and ultimately examined for DNA.
3
A DNA profile was obtained and documented July 29, 2002. N.T. 2/6/14, pp. 87-89. Police
Detective Linda Pace obtained a "John Doe" arrest warrant for a person with the DNA profile in
the sample obtained from Complainant. N.T. 2/6/14, pp. 94-96, 111; Exhibits C-13, C-14.
On July 31, 2009, the DNA obtained from the cervix of Complainant was matched to Appellant
Calvin Gadson. N.T. 2/6/14, pp. 89, 98. A search warrant authorizing the taking of a DNA
sample from Calvin Gadson was obtained on October 6, 2009. N.T. 2/6/14, p.103-108; Exhibits
C-15, C� 16. The DNA from Complainant matched the DNA sample taken from Appellant
Calvin Gadson. N'I', 2/7/14, pp. 16-18, 34. Complainant never had consensual sex with
Appellant Calvin Gadson. N.T. 2/5/14, p. 70.
Discussiqn
Appellant raises three issues in his petition: 1) Ineffectiveness of appellate counsel in
failing to seek to have the trial transcripts suppressed on appeal; 1 2) Ineffectiveness of trial
counsel in stipulating to the chain of custody of the DNA evidence retrieved from the
complainant's person and the results of the DNA tests; and 3) Ineffectiveness of trial counsel in
failing to litigate a denial of due process arising from the unavailability of the Complainant's
medical records from the examination after the incident. None of these claims have merit.
As a threshold matter, we note that this matter was dismissed and counsel was relieved
following the filing of a "no-merit" or "Finley" letter. The requirements of the Finley letter, and
thereafter dismissal of the PCRA petition and permitting counsel to withdraw are:
l.Appellant alleges a related error of sufficiency of the evidence, the gravamen of which is that since the transcripts
were defective, there was no evidence that the Superior Court could find sufficient to sustain the conviction.
Because we find the underlying premise - defect of transcripts - to be without merit, there is no basis for relief on
the subsumed claim of sufficiency. Moreover, the sufficiency of the evidence claim was previously litigated and
rejected by the Superior Court in the direct appeal. Such a previously litigated claim is not cognizable under the
PCRA. 42 Pa.C.S. § 9544(b).
4
l) 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,
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.
Commonwealth v. Friend, 896 A.2d 607, 615 (Pa. Super. 2006).
Each of the first four requirements was met. As to the remaining two requirements, the
Court conducted its own independent review and, as set forth below, agreed that the petition is
meritless.
1. The trial transcripts were properly filed and Appellant is unable to aver any
prejudice he suffered from alleged preeedural defects in the filing of the
transcripts.
. .
The transcripts, also referred to as the notes of testimony, were ordered by appellate
counsel. Each volume was then lodged with the court electronically, using the Court Reporting
System. The accuracy and completeness of each volume is certified by the Court Reporter.
Defendant avers. no inaccuracy, significant or otherwise, in the transcripts and fails to identify
any prejudice he claims to have suffered from the claimed technical defects in the filing of the
5
transcripts.
"It is well established that ... counsel cannot be deemed ineffective for failing to raise a
meritless claim." Commonwealth v, Lawrence, 960 A.2d 473, 478 (Pa. Super. 2008), citing
Commonwealth v. Daniels, 941 A.2d 795, 798 (Pa. Super. 2008). In the absence of any
prejudice, we cannot find either error or ineffectiveness of counsel,
2. Counsel was not ineffective in stipulating to the chain of custody of DNA samples
or the results of DNA testing.
The theory of the defense was consent. At no time in the course of the trial did the
defense ever take issue with the fact that Appellant's DNA matched the semen sample recovered
from the complainant's person. Rather, the defense was that there was a consensual sexual
encounter between Appellant and the complainant, which the complainant then attempted to
conceal from her boyfriend at the time and from her grandmother by fabricating an allegation of
rape.2 Indeed, the jury was charged on the defense of consent. N.T. 2/7/14, pp. 95-97; N.T.
2/10/14, pp. 10-11. Under these circumstances it was reasonable and appropriate for defense
counsel to stipulate to evidence regarding the DNA collection and custody.
Further, at no time did Appellant take issue with the stipulation. When the prosecutor
first rose to offer the stipulation before the jury heard the details of the stipulated testimony, the
Court explained the significance to the jury, with Appellant present. N.T. 2/6/14, pp. 83·84.
Appellant did not raise an objection at that point. The stipulations were then presented to the
jury. N.T. 2/6/14, pp. 85-90. Appellant did not interpose any objection at that point, nor did he
take issue when his counsel acknowledged the stipulation. N.T. 2/6/14, p. 91. He also did not
2·N.T. 2/S/14, p. 39; 79-84; 89-90; 121; 137
6
object when the stipulation was re-read to the jury in response to a question during deliberations.
N.T. 2/10/14, p. 24-28.
In Commonwealth v. Brown, 18 A.3d 1147, 1161 (Pa. Super. 2011), the Superior Court
also faced the questions of whether trial counsel was ineffective because he did not adequately
explain to Appellant that the effect of proceeding by stipulation was to relinquish his
constitutional right to confront and cross-examine witnesses. Therein, the Superior Court
quoted the United States Supreme Court's observation that: "Although there are basic rights that
the attorney cannot waive without the fully informed and publicly acknowledged consent of the
client, the lawyer has-and must·have-fu.11 authority to manage the conduct of the trial. The
adversary process could not function effectively if every tactical decision required client
approval." 'Id. at 1162, quoting Taylor v. Illinois, 484 U.S. 400, 417-18 (1988). "Thus," the
Superior Court concluded, "the United. States Supreme Court has held that the decision as to
whether to cross-examine a witness and what agreements to enter about admission of evidence
are rights that a lawyer may relinquish on behalf of a defendant without the defendant's express
consent." Brown, supra., at 1163.
Accordingly, even if the record did not demonstrate that the stipulation was consistent
with the defense and further that despite several opportunities, Appellant never took issue with
the stipulation at time of trial, the decision to enter into these stipulations was well within the
province of counsel and does not form the basis of an ineffectiveness claim.
Finally, we note that the collective testimony of the complainant (N.T. 2/5/14, p. 133,
137), Officer Mychack (N.T. 2/6/14, p. 38), Officer Sanchez (N.T. 2/6/14, p. 46, 51-54),
Detective Pace (N.T. 2/6/14, pp. 94-118), and Forensic Scientist Knox (N.T. 2/7/14, pp 8-20),
7
\
duplicated the information stated in the stipulations of which Appellant contains. Because the
other overwhehning evidence demonstrated Appellant's guilt, including the evidence and
testimony covering the stipulated matters, Appellant suffered no prejudice from the stipulations.
Commonwealth v. Birdsong, 24 A.3d 319, 335 (Pa. 2011).
3. Counsel was not ineffective in regard to the complainant's medical records.
Appellant complains that his counsel was ineffective for failing to challenge the absence
of the complainant's medical records, which absence he claims denied him due process.
Here, as Appellant acknowledged in his Petition (p. 17), the Complainant's medical
records from her examination at Episcopal Hospital after the rape, no longer existed. The
incident occurred on January 31, 1998. Toe DNA match to Appellant did not occur until 2010
and the fact that the medical records no longer existed was not discovered until May of 2012.
PCRA Petition, Exhibit A, p. 14. That the medical records of a rape examination were no longer
available more than 14 years after the event is hardly surprising.
Moreover, there is no evidence that the Commonwealth ever possessed the records or that
they willfully caused the records to be unavailable. "[T]o establish a Brady violation, a
defendant is required to demonstrate that exculpatory or impeaching evidence, favorable to the
defense, was suppressed by the prosecution, to the prejudice of the defendant." Commonwealth v.
Gibson, 951 A.2d 1110, 1126 (Pa. 2008). "[F]avorable evidence is material, and constitutional
error results from its suppression by the government, if there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceeding would have been
different." Kyles v. Whitley, 514 U.S. 419, 433-434, 115 S. Ct. 1555, 131 L. Ed. 2d 490
(1995)(intemal quotation marks omitted).
8
"[S]upport for an allegation that destroyed evidence was exculpatory ... cannot be based
on a 'mere assertion."' Commonwealth v. Snyder, 963 A.2d 396, 405 (Pa. 2009) (citations
omitted); see also Commonwealth v. Free, 902 A.2d 565, 571 (Pa. Super. 2006) ("The allegation
that the evidence at issue was exculpatory cannot be based on a mere assertion.") (citation
omitted). The burden of proof is on the defendant to demonstrate that the Commonwealth
withheld or suppressed evidence. See Commonwealth v. Porter, 728 A.2d 890, 898 (Pa. 1999).
"[Tjhe United States Supreme Court has held that '[t]he mere possibility that an item of
undisclosed information might have helped the defense, or might have affected the outcome of
the trial, does not establish 'materiality' in the constitutional sense."' Commonwealth v, Spotti,
94 A.3d 367, 383 (Pa. Super. 2014), citing Commonwealth v. Ly, 980 A.2d 61, 75-76 (Pa. 2009)
(internal citations omitted).
As to Brady claims advanced under the PCRA, a defendant must demonstrate that the
alleged Brady violation "so undermined the truth-determining process that no reliable
.....
adjadication of guilt or innocence could have taken place. 11 See Commonwealth v. Copenhefer,
719 A.2d 242, 259 (Pa. 1998).
Here, there is no evidence or averment that the records of the rape medical examination
of complainant contained materially exculpatory evidence of any kind. The mere fact that they
no longer exist does not warrant relief where there is no basis for believing there was any
. .
exculpatory information in the records and where there is no basis to believe that either the
police or the prosecution played any role in the unavailability of the complainant's 14 year old
medical records.
Accordingly, Appellant has raised no issues of merit and the PCRA petition was properly
9
dismissed.
By�,
.
Ca�
' -�
10
Commonwealth v. Calvin Gadson Case Number: CP-51-CR-1989-2010
PROOF OF SERVICE
I hereby certify that I am this day serving the foregoing upon the person(s), and in the
manner indicated above, which service satisfies the requirements of Pa.R.Crim.P.114:
District Attorney:
Robin Godfrey, Esquire
Chief of PCRA Unit
Office of the District Attorney
Three South Penn Square
Philadelphia, PA 19107
Type of Service ( ) Personal (X) First Class Mail
Defendant:
Calvin Gadson
LR-3104
SCI Rockview .
Box A
Bellefonte, PA 16823
Type of Service: (X) Other, please specify: CertijiedMail (70132630000158979427)
Dated: May 9, 2017
��-
v anessa A. Montone
Judicial Secretary to
Honorable Giovanni 0. Campbell
Com. v. Gadson, C.
Combined Opinion