J-S96042-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
FRED AUGUSTA MITCHELL
Appellant No. 1060 WDA 2016
Appeal from the PCRA Order Dated July 13, 2016
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0001539-2013
BEFORE: BENDER, P.J.E., BOWES, J., and SOLANO, J.
MEMORANDUM BY SOLANO, J.: FILED APRIL 05, 2017
Appellant Fred Augusta Mitchell appeals from the order denying his
petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S. §§ 9541-9546. We affirm.
The following facts and procedural history are set forth in the PCRA
court’s opinion.
On January 8, 2014, a three-day jury trial commenced
against Appellant for charges of rape by forcible
compulsion, rape of a child, involuntary deviate sexual
intercourse (IDSI) by forcible compulsion, IDSI with a
complainant who is less than sixteen years of age,
aggravated indecent assault by forcible compulsion,
aggravated indecent assault against a complainant who is
less than thirteen years of age, indecent assault by forcible
compulsion, and indecent assault against a complainant
who is less than thirteen years of age. At trial, the
Commonwealth presented testimony by the minor victim,
her mother, her paternal grandmother, a forensic
interviewer, and an expert in pediatric child abuse. The
Commonwealth also introduced into evidence a video
J-S96042-16
recording of the interview between the minor victim and
the forensic interviewer. After the Commonwealth rested,
two defense witnesses testified.
On January 10, 2014, the jury found Appellant guilty of
all charged offenses. Thereafter, the Commonwealth filed
a notice of intention to seek a mandatory minimum
sentence pursuant to 42 Pa.C.S. § 9718(a). On April 3,
2014, the trial court held a sentencing hearing. The court
imposed an aggregate sentence of forty (40) to eighty (80)
years of imprisonment. Additionally, the court found
Appellant to be a sexually violent predator (SVP) and
required him to register for life pursuant to Pennsylvania’s
Sexual Offender Registration and Notification Act (SORNA).
Appellant filed a timely appeal to the appellate court.
On January 22, 2015, the Superior Court affirmed the
convictions and denied all five of Appellant’s concise
issues. However, the Superior Court addressed Appellant’s
sentence sua sponte. The Superior Court vacated
Appellant’s sentence and remanded to this Court,
instructing that Appellant be resentenced without
considering the mandatory minimum at Section 9718.
This Court resentenced Appellant on March 6, 2015,
pursuant to the Superior Court’s instructions and without
contemplating the mandatory minimum at Section 9718.
Appellant was sentenced to a term of imprisonment of not
less than thirty-nine (39) years nor more than seventy-
eight (78) years. Appellant filed a post-sentence
modification of sentence; it was denied on March 11, 2015.
Appellant again filed a timely appeal to the Superior Court.
Since “Appellant merely reproduce[d] verbatim the
arguments presented in his prior appellate brief[, the
Superior Court did] not consider those arguments a second
time.” Commonwealth v. Mitchell, 438 WDA 2015,
unpublished memorandum at 7.
On December 28, 2015, Appellant filed a pro se Petition
for Post-Conviction Collateral Relief. On January 4, 2016,
this Court appointed James V. Natale, Esquire, who
subsequently filed an amended petition. Appellant
asserted his counsel from the Fayette County Public
Defender’s Office was ineffective for failing to request a
court-appointed psychological expert for his hearing to
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determine whether he was a SVP and ineffective for
waiting until the day of trial to view video evidence of the
minor victim’s interview with the forensic interviewer. A
hearing on the PCRA petition was held on July 12, 2016.
Appellant testified at the PCRA hearing. On the issue of
the determination of his status as a SVP, Appellant
testified that:
(1) He was not aware of the consequences of being
deemed a SVP;
(2) He was not aware of his rights during a SVP
hearing;
(3) He did not know if he requested his attorney to
have his own expert at the SVP hearing;
(4) A SVP hearing was not held; and
(5) He did not stipulate to the conclusions from the
expert’s report on behalf of the Commonwealth that he
was a SVP.
Appellant also testified on the issue of his trial counsel
being ineffective. He testified that he was not aware of the
drawings made by the minor victim and the videotaped
statements of the minor victim until the day of trial.
However, he did not know when his trial counsel became
aware and viewed this evidence.
On the other hand, the Commonwealth presented
testimony from Appellant’s trial counsel, Attorney Deanna
Liptak, Esquire. Attorney Liptak stated that she received
and personally reviewed the file a week before trial,
including drawings attached to the discovery packet. She
also testified that while she viewed the videotape of the
minor victim’s interview the morning of trial, the video was
entirely consistent with the discovery she previously
reviewed and corroborated the other evidence presented
at trial by the Commonwealth.
The Commonwealth also presented testimony from
Appellant’s sentencing counsel, Attorney Charity Grimm
Krupa, Esquire. Attorney Krupa testified that a full SVP
hearing at the time of sentencing did not take place
because Appellant narrowly stipulated, without agreeing to
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the conclusion that Appellant was a SVP, that the
Commonwealth’s expert would testify to the contents of
his report. Attorney Krupa further testified that she would
have told Appellant that he had a right to call an expert
witness on his behalf. After the hearing, this Court denied
Appellant’s Amended PCRA Petition.
PCRA Ct. Op., 9/9/16, at 2-5 (footnotes omitted). The PCRA court denied
Appellant’s petition on July 13, 2016. Appellant filed a timely Notice of
Appeal.
In this appeal, Appellant raises the following issues:
Whether the PCRA court erred in not finding defense
counsel ineffective for failing to inform defendant of his
right to a court-appointed psychological expert?
Whether the PCRA court erred in not finding defense
counsel ineffective for failing to watch the alleged victim’s
videotaped statement until the day of the trial?
Appellant’s Brief at 3.
In reviewing the propriety of an order granting or denying PCRA relief,
this Court is limited to ascertaining whether the evidence supports the
determination of the PCRA court and whether the ruling is free of legal error.
Commonwealth v. Payne, 794 A.2d 902, 905 (Pa. Super.), appeal
denied, 808 A.2d 571 (Pa. 2002). This Court defers to the findings of the
PCRA court, which will not be disturbed unless they have no support in the
certified record. Id. “Further, the PCRA court’s credibility determinations are
binding on this Court, where there is record support for those
determinations.” Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa.
Super.), appeal denied, 9 A.3d 626 (Pa. 2010).
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To obtain relief under the PCRA premised on a claim that counsel was
ineffective, a petitioner must demonstrate that: “(1) the underlying claim is
of arguable merit; (2) counsel had no reasonable strategic basis for his or
her action or inaction; and (3) petitioner was prejudiced by counsel’s act or
omission.” Payne, 794 A.2d at 905-06. A claim of ineffectiveness will be
denied if the petitioner’s evidence fails to meet any of these prongs.
Commonwealth v. Keaton, 45 A.3d 1050, 1061 (Pa. 2012).
After careful review of the record, the parties’ briefs, and the opinion
of the Honorable Joseph M. George, Jr., we affirm on the basis of the PCRA
court’s opinion. See PCRA Ct. Op. at 7-9 (holding (1) Appellant failed to
prove arguable merit of claim that his counsel failed to inform him of his
right to a court-appointed psychological expert, where counsel testified
credibly at PCRA hearing that she informed Appellant of that right and
Appellant was uncertain about their discussion; and (2) Appellant failed to
prove prejudice with respect to claim that counsel did not watch videotaped
interview of victim until the morning of trial, where video was entirely
consistent with other evidence). Having determined that the evidence
supports the PCRA court’s ruling and that the ruling is free of legal error,
see Payne, 794 A.2d at 905, we affirm the PCRA court’s order. The parties
are instructed to attach a copy of the PCRA court’s opinion of September 9,
2016, to all future filings that reference this Court’s decision.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/5/2017
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Circulated 03/10/2017 02:09 PM
IN THE COURT OF COMMON PLEAS OF FAYETTE COUNTY,
PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA, : CRIMINAL ACTION
v.
FRED AUGUSTA MITCBELL, : NO. 1539 OF 2013
Appellant.
------------- : JUDGE JOSEPH M. GEORGE, JR.
ATTORNEYS AND LAW FIRMS.
Meghann E. Mikluscak, Esquire, Assistant District Attorney, For the
Commonwealth
James V. Natale, Esquire, For the Appellant
OPINION
GEORGE, J. September 9, 2016
.,r.
On December 28, 2015, Appellant, Fred Augusta Mitchell, filed a.:Prtition for
y
Post-Conviction Collateral Relief pursuant to the Post-Conviction .Relief Act
(PCRA).I Appellant was appointed counsel and an Amended Petition was filed. A
hearing on the petition was held on July 12, 2016. On July 13, 2016, this Court
denied Appellant's Amended Petition, Appellant filed a direct 'appeal to the
Superior Court of Pennsylvania. This Opinion is in support of this Court's Order
denying Appellant's Amended PORA Petition.
1 42 Pa. C.S. § 9541, et seq.
1
CONCISE ISSUES
Appellant filed the following Statement of Errors Complained of on Appeal:
1. Whether the PCRA Court erred in not finding defense counsel ineffective for
failing to inform Defendant of his right to a court-appointed psychological
expert?
2. Whether the PCRA Court erred in not finding defense counsel ineffective for
failing to watch the alleged victim's videotaped statement until the day of the
trial?
FACTUAL BACKGROUND
On January 8, 2014, a three-day jury trial commenced against Appellant for
charges of rape by forcible compulsion, rape of a child, involuntary deviate sexual
intercourse (IDSI) by forcible compulsion, IDSI with a complainant who is less than
sixteen years of age, aggravated indecent assault by forcible compulsion, aggravated
indecent assault against a complainant who is less than thirteen years of age,
indecent assault by forcible compulsion, and indecent assault against a complainant
who is less than thirteen years of age.2 At trial, the Commonwealth presented
testimony by the minor victim, her mother, her paternal grandmother, a forensic
interviewer, and an expert in pediatric child abuse. The Commonwealth also
introduced into evidence a video recording of the interview between the minor
victim and the forensic interviewer. After the Commonwealth rested, two defense
witnesses testified. 3
218 Pa. C.S. §§ 3121(a)(l), 3121(c), 3123(a)(l), 3123(a)(7), 3125(a)(2), 3125(a)(7), 3126(a)(2),
and 3126(a)(7), respectively.
aFor a more comprehensive summary of the facts of the case, see Commonwealth v.
Mitchell, No. 578 WDA 2014, unpublished memorandum at 2-4.
2
On January 10, 2014, the jury found Appellant guilty of all charged offenses.
Thereafter, the Commonwealth filed a notice of intention to seek a mandatory
minimum sentence pursuant to 42 Pa. C.S. § 9718(a). On April 3, 2014, the trial
court held a sentencing hearing. The court imposed an aggregate sentence of forty
(40) to eighty (80) years of imprisonment. Additionally, the court found Appellant
to be a sexually violent predator (SVP) and required him to register for life
pursuant to Pennsylvania's Sexual Offender Registration and Notification Act
(SORNA).4
Appellant filed a timely appeal to the appellate court. On January 22, 2015,
the Superior Court affirmed the convictions and denied all five of Appellant's
concise issues. However, the Superior Court addressed Appellant's sentence sua
sponte. The Superior Court vacated Appellant's sentence and remanded to this
Court, instructing that Appellant be resentenced without considering the
mandatory minimum at Section 9718.5
This Court resentenced Appellant on March 6, 2015, pursuant to the Superior
Court's instructions and without contemplating the mandatory minimum at Section
9718. Appellant was sentenced to a term of imprisonment of not less than thirty-
nine (39) years nor more than seventy-eight (78) years. Appellant filed a post-
sentence modification of sentence; it was denied on March 11, 2015. Appellant
again filed a timely appeal to the Superior Court. Since "Appellant merely
reproduce[dJ verbatim the arguments presented in his prior appellate brief], the
4 42 Pa. C.S. § 9799.10 et seq.
5 See Mitchell, No. 578 WDA 2014, unpublished memorandum.
3
Superior Court did] not consider those arguments a second time." Commonwealth
v. Mitchell, 438 WDA 2015, unpublished memorandum at 7.
On December 28, 2015, Appellant filed a pro se Petition for Post-Conviction
Collateral Relief. On January 4, 2016, this Court appointed James V. Natale,
Esquire, who subsequently filed an amended petition. Appellant asserted his
counsel from the Fayette County Public Defender's Office was ineffective for failing
to request a court-appointed psychological expert for his hearing to determine
whether he was a SVP and ineffective for waiting until the day of trial to view video
evidence of the minor victim's interview with the forensic interviewer. A hearing on
the PORA petition was held on July 12, 2016.
Appellant testified at the PCRA hearing. On the issue of the determination
of his status as a SVP, Appellant testified that:
(1) He was not aware of the consequences of being deemed a SVP;
(2) He was not aware of his rights during a SVP hearing;
(3) He did not know if he requested his attorney to have his own expert at
the SVP hearing;
(4) A SVP hearing was not held; and
(5) He did not stipulate to the conclusions from the expert's report on
behalf of the Commonwealth that he was a SVP.
Appellant also testified on the issue of his trial counsel being ineffective. He
testified that he was not aware of the drawings made by.the minor victim and the
videotaped statements of the minor victim until the day of trial. However, he did
not know when his trial counsel became aware and viewed this evidence.
4
On the other hand, the Commonwealth presented testimony from Appellant's
trial counsel, Attorney Deanna Liptak, Esquire. Attorney Liptak stated that she
received and personally reviewed the file a week before trial, including drawings
attached to the discovery packet. She also testified that while she viewed the
videotape of the minor victim's interview the morning of trial, the video was entirely
consistent with the discovery she previously reviewed and corroborated the other
evidence presented at trial by the Commonwealth.
The Commonwealth also presented testimony from Appellant's sentencing
counsel, Attorney Charity Grimm Krupa, Esquire. Attorney Krupa testified that a
full SVP hearing at the time of sentencing did not take place because Appellant
narrowly stipulated, without agreeing to the conclusion that Appellant was a SVP,
that the Commonwealth's expert would testify to the contents of his report.6
Attorney Krupa further testified that she would have told Appellant that he had a
right to call an expert witness on his behalf. After the hearing, this Court denied
Appellant's Amended PCRA Petition.
DISCUSSION
Appellant appeals from this Court's Order denying his PCRA petition. The
appellate court standard of review is limited to determining whether the findings of
the PCRA court are supported by the record and free from legal error.
Commonwealth v. Johnson, 600 Pa. 329, 345, 966 A.2d 523, 532 (2009). The
· reviewing court pays great deference to the findings of the PCRA court.
6 A review of the April 3, 2014 sentencing transcript corroborates Attorney Krupa's
testimony on this point.
5
Commonwealth v. G. Y., 63 A.3d 259, 265 (Pa. Super. 2013). Moreover, in
conducting a review of a PCRA matter, the Superior Court considers the record in
light most favorable to the prevailing party at the PCRA level. Commonwealth v.
Stultz, 114 A.3d 865, 872 (Pa. Super. 2015).
Both of Appellant's concise issues relate to counsel ineffectiveness. To be
eligible for relief under the PCRA, a petitioner must plead and prove, by a
preponderance of the evidence, that the challenged conviction or sentence resulted
from ineffective assistance of counsel which so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could have taken place.
42 Pa. C.S. § 9543(a)(2)(ii). To meet this standard, a petitioner must establish: (1)
that the underlying claim is of arguable merit; (2) that counsel's course of conduct
was without a reasonable basis designed to effectuate her client's interest; and (3)
that he was prejudiced by counsel's ineffectiveness, i.e., that there is a reasonable
probability that but for the act or omission in question the outcome of the
proceeding would have been different. Commonwealth v. Bracey, 568 Pa. 264, 276,
795 A.2d 935, 942 (2001). All three prongs must be satisfied and the failure to even
meet one prong of the test would not entitle the petitioner to relief on the basis of
ineffective assistance of counsel. Commonwealth v. Gonzalez, 858 A.2d 1219, 1222
(Pa. Super. 2004).
Finally, counsel is presumed to be effective unless the petitioner proves
otherwise. Commonwealth v. Hanible, 612 Pa. 183, 205, 30 A.3d 426, 439 (2011).
The alleged ineffectiveness must be evaluated in light of the circumstances at the
6
time of counsel's actions rather than in hindsight. Commonwealth v. Hardcastle,
549 Pa. 450, 464, 701 A.2d 541, 547 (1997).
Appellant's first concise issue is whether the PORA court erred in not finding
defense counsel ineffective for failing to inform Appellant of his right to a court·
appointed psychological expert during his SVP hearing. An individual convicted of
sexually violent offenses has certain rights at their required SVP hearing, including
an opportunity to be heard, the right to call witnesses, the
right to call expert witnesses and the right to cross-
examine witnesses. In addition, the individual shall have
the right to counsel and to have an attorney appointed to
represent the individual if the individual cannot afford
one. If the individual requests another expert assessment,
the individual shall provide a copy of the expert
assessment to the district attorney prior to the hearing.
42 Pa. C.S. § 9799.24(e)(2). Additionally, the Superior Court has ruled that an
indigent individual has the right to a court-appointed expert, stating "[w]e do not
believe the legislature intended to give a defendant the right to court-appointed
counsel but then deny counsel the resources he needs to effectively represent his
client at an SVP proceeding. Commonwealth v. Curnutte, 871 A.2d 839, 842 (Pa.
Super. 2005).
We agree with the Commonwealth that the issue here was not whether
Appellant had the right to a court-appointed psychological expert; he most certainly
did under Curnutte. Rather, this issue was whether his counsel informed him of
that right and whether he requested to assert that right.
7
Appellant and his sentencing counsel, Attorney Krupa, testified before this
Court at the PCRA hearing. After review, we found Attorney Krupa to be credible."
She testified that she informed Appellant prior to his sentence of his rights,
including his right to a psychological expert on his behalf. Moreover, Appellant
testified that he did not know if he requested his attorney to have his own expert.
Based on Attorney Krupa's believability along with Appellant's uncertainty,
Appellant was unable to prove that Attorney Krupa's conduct was anything but
effective. Therefore, Appellant's first issue is without merit."
Appellant also contends this Court erred in not finding trial counsel
ineffective for failing to watch the videotaped interview of the minor victim until the
morning of trial. Appellant is correct that Attorney Liptak first viewed the
videotaped interview on the morning of trial. Nevertheless, her conduct of viewing
the video on the morning of trial did not prejudice Appellant.
Everything contained in the video was outlined and entirely consistent with
the discovery that the public defender's office received well before trial. Attorney
Liptak was assigned the case a week before trial and reviewed the discovery at that
7 A PCRA court passes on witness credibility at PCRA hearings, and its credibility
determinations should be provided great deference by reviewing courts. Commonwealth u.
Johnson, 600 Pa. at 356, 966 A.2d at 539.
8 In his Amended Petition, Appellant requests a new trial for Attorney Krupa's alleged
ineffectiveness in failing to inform him of his right to a court-appointed psychological
expert. See Appellant's Amended Post ConvictionRelief Act Petition, Page 3 (unnumbered).
Should the Superior Court find merit in this claim, Appellant would not receive a new trial.
This issue relates solely to Appellant's SVP hearing. Thus, the appropriate relief would be a
new SVP hearing. Nevertheless, as stated above, Appellant failed to meet his burden for
this issue.
8
. ~
time. 9 Since the video did not contain any new information that counsel was
unaware of, Appellant was not prejudiced.!?
Even more, had the video not been shown at trial, the same evidence, via the
Commonwealth's witnesses, would have been presented to the jury.l! Therefore,
Appellant did not meet his burden that there was a reasonable probability but for
counsel's actions, the outcome of the trial would have been different. Accordingly,
Appellant's last concise issue is without merit.
BY THE
ATTEST:
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9 Attorney Liptak testified that drawings made by the minor victim were attached to the
discovery packet that she reviewed a week before trial. Finding her testimony to be
credible, Appellant's contention in his petition that she did not view the drawings until the
day of trial is of no merit.
10 On the morning of trial, Attorney Liptak made an oral motion in limine with this Court to
exclude the video since at that point in time she had not yet viewed the video. This Court
denied the motion but gave the defense time prior to trial to view the video.
11Attorney Liptak's testimony and the jury trial transcript show that the video corroborated
the minor victim's testimony.
9