J-S45010-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
THOMAS JOSEPH JAVA :
:
Appellant : No. 1967 EDA 2016
Appeal from the PCRA Order May 26, 2016
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0000279-2010
BEFORE: GANTMAN, P.J., PANELLA, J., and STRASSBURGER, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED AUGUST 15, 2017
Appellant, Thomas Joseph Java, appeals from the order entered in the
Delaware County Court of Common Plea, which denied his first petition
brought pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
The relevant facts and procedural history of this case are as follows.
In 2009, Victim filed a police report, which stated Appellant had sexually
abused Victim numerous times over a number of years. Specifically, Victim
informed police that Appellant forced her to engage in vaginal intercourse
and threatened to kill Victim if she told anyone about the abuse. Victim was
approximately six to fifteen years old at the time of the alleged abuse. After
an investigation, police arrested Appellant; and on February 12, 2010, the
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1
42 Pa.C.S.A. §§ 9541-9546.
_____________________________
*Retired Senior Judge assigned to the Superior Court.
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Commonwealth charged Appellant with rape, sexual assault, and related
offenses. Appellant proceeded to a bench trial on October 29, 2010. On
November 5, 2010, the court convicted Appellant of three counts each of
rape, sexual assault, indecent assault of a child, and corruption of minors.
The court sentenced Appellant on February 16, 2011, to an aggregate term
of ten (10) to twenty (20) years’ imprisonment, followed by eight (8) years’
probation. Appellant timely filed a notice of appeal on February 25, 2011;
however, Appellant discontinued the appeal on December 22, 2011.
On December 19, 2012, Appellant timely filed a pro se PCRA petition,
and the PCRA court appointed counsel. On October 8, 2013, PCRA counsel
filed a petition to withdraw at Appellant’s request. The court held a Grazier2
hearing on November 19, 2013. The court granted PCRA counsel’s petition
to withdraw on November 21, 2013, and permitted Appellant to proceed pro
se. On December 10, 2014, the PCRA court ordered the Commonwealth to
file an answer to Appellant’s pro se PCRA petition, and the Commonwealth
complied on April 9, 2015. The court held a PCRA hearing on January 21,
2016, which resulted in an in camera hearing to allow Appellant to view
certain documents in the case file. The PCRA court granted Appellant leave
on February 2, 2016, to supplement the PCRA petition based on the
document revealed in the in camera hearing. Appellant filed a supplement
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2
Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998).
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to his PCRA petition on April 7, 2016, and the PCRA court denied relief on
May 26, 2016. Appellant timely filed a notice of appeal on June 27, 2016.
On June 29, 2016, the court ordered Appellant to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant
filed his Rule 1925(b) statement on August 19, 2016.
Appellant raises the following issue for our review:
[WHETHER TRIAL COUNSEL WAS INEFFECTIVE FOR
ABANDONING COUNSEL’S TRIAL STRATEGY?]
(Appellant’s Brief at 4).
As a preliminary matter, to preserve claims for appellate review,
“appellants must comply whenever the trial court orders them to file a
Statement of [Errors] Complained of on Appeal pursuant to [Rule] 1925.
[As a general rule, a]ny issues not raised in a [Rule] 1925(b) statement will
be deemed waived.” Commonwealth v. Castillo, 585 Pa. 395, 403, 888
A.2d 775, 780 (2005) (quoting Commonwealth v. Lord, 553 Pa. 415, 420,
719 A.2d 306, 309 (1998)). Rule 1925(b) of the Pennsylvania Rules of
Appellate Procedure provides in relevant part:
Rule 1925. Opinions in Support of Order
* * *
(b) Direction to file statement of errors complained
of on appeal; instructions to the appellant and the
trial court.—If the judge entering the order giving rise to
the notice of appeal (“judge”) desires clarification of the
errors complained of on appeal, the judge may enter an
order directing the appellant to file of record in the trial
court and serve on the judge a concise statement of the
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errors complained of on appeal (“Statement”).
(1) Filing and service.−Appellant shall file of record the
Statement and concurrently shall serve the judge. Filing of
record and service on the judge shall be in person or by
mail as provided in Pa.R.A.P. 121(a) and shall be complete
on mailing if appellant obtains a United States Postal
Service Form 3817, Certificate of Mailing, or other similar
United States Postal Service form from which the date of
deposit can be verified in compliance with the
requirements set forth in Pa.R.A.P. 1112(c). Service on
parties shall be concurrent with filing and shall be by any
means of service specified under Pa.R.A.P. 121(c).
(2) Time for filing and service.−The judge shall allow the
appellant at least 21 days from the date of the order’s
entry on the docket for the filing and service of the
Statement. Upon application of the appellant and for good
cause shown, the judge may enlarge the time period
initially specified or permit an amended or supplemental
Statement to be filed. Good cause includes, but is not
limited to, delay in the production of a transcript necessary
to develop the Statement so long as the delay is not
attributable to a lack of diligence in ordering or paying for
such transcript by the party or counsel on appeal. In
extraordinary circumstances, the judge may allow for the
filing of a Statement or amended or supplemental
Statement nunc pro tunc.
(3) Contents of order.—The judge’s order directing the
filing and service of a Statement shall specify:
(i) the number of days after the date of entry of
the judge’s order within which the appellant must file
and serve the Statement;
(ii) that the Statement shall be filed of record;
(iii) that the Statement shall be served on the
judge pursuant to paragraph (b)(1);
(iv) that any issue not properly included in the
Statement timely filed and served pursuant to
subdivision (b) shall be deemed waived.
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Pa.R.A.P. 1925(b)(1)-(3). For many years, full compliance with a court’s
Rule 1925(b) order was strictly mandatory; but later revisions in the rule
now provide certain avenues for relief from waiver in the criminal appeal
context. Pa.R.A.P 1925(c); Commonwealth v. Hopfer, 965 A.2d 270, 273
(Pa.Super. 2009) (enumerating extraordinary circumstances, such as where
counsel fails to file court-ordered Rule 1925(b) statement, which would
warrant remand for filing of statement, based upon per se ineffectiveness of
counsel). Importantly, this Court will not find waiver based on an untimely
Rule 1925(b) statement unless the trial court completes the following steps:
First, the trial court must issue a Rule 1925(b) order
directing an Appellant to file a response within [twenty-
one] days of the order. Second, the Rule 1925(b) order
must be filed with the prothonotary. Third, the
prothonotary must docket the Rule 1925(b) order and
record the date it was made. Fourth, the prothonotary
shall give written notice of the entry of the order to each
[party] of record, and it shall record in the docket the
giving of notice. If any of [these] procedural steps…are
not complied with, Appellant’s failure to act in accordance
with Rule 1925(b) will not result in a waiver of the issues
sought to be reviewed on appeal.
Commonwealth v. Hooks, 921 A.2d 1199, 1202 (Pa.Super. 2007), appeal
denied, 594 Pa. 695, 934 A.2d 1276 (2007) (internal citations omitted). For
an appellant to comply with a Rule 1925(b), he must file a Rule 1925(b)
statement with the ordering court’s prothonotary, and concurrently serve the
Rule 1925(b) statement upon the trial judge. Commonwealth v.
Schofield, 585 Pa. 389, 392, 888 A.2d 771, 774 (2005). Failure to comply
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with Rule 1925(b) by filing a Rule 1925(b) statement with the court and
concurrently serving the statement on the trial judge results in waiver of all
issues. Commonwealth v. Butler, 571 Pa. 441, 446-47, 812 A.2d 631,
634 (2002).
Instantly, Appellant timely filed a pro se notice of appeal on June 27,
2016. On June 29, 2016, the court ordered Appellant to file a Rule 1925(b)
statement within twenty-one days; however, neither the order nor the
docket indicates when the court served the Rule 1925(b) order on Appellant.
See Pa.R.A.P. 1925(b)(2). Appellant filed his Rule 1925(b) statement on
August 19, 2016, which indicated he had received the Rule 1925(b) order on
August 4, 2016. Under these circumstances, we decline to find waiver of
Appellant’s issues based on the timing of Appellant’s Rule 1925(b) statement
filing. See Hooks, supra. Nevertheless, nothing in the record indicates
Appellant concurrently served his Rule 1925(b) statement on the PCRA court
judge. Thus, Appellant’s issues are waived for purposes of our review for
failure to comply with the requirement to serve the Rule 1925(b) statement
on the judge. See Schofield, supra; Butler, supra; Pa.R.A.P. 1925(b)(1).
Moreover, even if Appellant had properly preserved his issue, he would
not obtain relief. Our standard of review of the denial of a PCRA petition is
limited to examining whether the evidence of record supports the court’s
determination and whether its decision is free of legal error.
Commonwealth v. Conway, 14 A.3d 101, 108 (Pa.Super. 2011), appeal
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denied, 612 Pa. 687, 29 A.3d 795 (2011). 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, 515 (Pa.Super. 2007),
appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). We give no such
deference, however, to the court’s legal conclusions. Commonwealth v.
Ford, 44 A.3d 1190, 1194 (Pa.Super. 2012). If the record supports a PCRA
court’s credibility determination, it is binding on the appellate court.
Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.Super. 2014).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable James P.
Bradley, we conclude Appellant issue on appeal merits no relief. The PCRA
court opinion comprehensively discusses and properly disposes of the
question presented. (See PCRA Court Opinion, filed August 17, 2016, at 19-
22) (finding: vast majority of Appellant’s claims of trial counsel’s alleged
ineffectiveness remain bald allegations with no support in record; to extent
Appellant argues trial counsel was ineffective for failure to investigate
correct medical records, Appellant failed to prove alleged medical records
supported his claim of actual innocence; further, trial counsel secured
relevant medical records from Victim’s August 12, 2009 doctor visit after
final instance of abuse; importantly, Victim did not report abuse to her
primary care doctor during August 12, 2009 visit, and trial counsel used this
fact to impeach Victim at trial; additionally, trial counsel’s cross-examination
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of sexual assault nurse revealed that Victim had no signs of severe trauma
despite claim that Appellant had subjected Victim to repeated and
continuous sexual intercourse from age six onward; thus, Appellant’s claim
that trial counsel was ineffective for failure to investigate medical records
lacks merit; to extent Appellant asserts trial counsel was ineffective for
failure to call ob-gyn expert to counter Commonwealth testimony and
explain significance of Victim’s positive test for “gardnerella vaginalis,”
Appellant failed to demonstrate such favorable expert testimony exists;
further, Appellant merely baldly asserts “gardnerella vaginalis” is sexually
transmitted disease, “gardnerella vaginalis” is transmittable during sexual
intercourse, and Appellant does not suffer from “gardnerella vaginalis;” thus,
Appellant’s claim that trial counsel was ineffective for failure to call ob-gyn
expert lacks merit; to extent Appellant avers trial counsel was ineffective for
failure to call numerous impeachment witnesses at trial, Appellant did not
call potential impeachment witnesses listed in his PCRA petition to testify at
PCRA hearing; as such, Appellant failed to present evidence upon which
PCRA court could conclude Appellant was prejudiced by absence of testimony
at trial; further, record demonstrates trial counsel challenged credibility of
Victim through cross-examination of Commonwealth’s witnesses and
presentation of testimony of Victim’s sister, C.S., at trial; thus, presentation
of additional impeachment witnesses would have been cumulative, and
Appellant’s claim that trial counsel was ineffective for failure to call
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impeachment witnesses fails; Appellant’s myriad of additional claims of trial
counsel’s alleged ineffectiveness are vague, speculative, and unsupported by
evidence in record; based on foregoing, PCRA court properly denied relief on
Appellant’s ineffective assistance of trial counsel claims). Accordingly, even
if Appellant had properly preserved his claims, we would affirm on the basis
of the PCRA court’s opinion.
Order affirmed.3
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/15/2017
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3
Due to our disposition, we deny Appellant’s open motion to add exhibit
page to Appellant’s reply brief.
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Circulated 07/21/2017 10:22 AM
Com. v. Java, T.
Combined Opinion