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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
v. :
:
DANIEL R. WESLING, :
:
Appellant : No. 980 EDA 2016
Appeal from the PCRA Order March 18, 2016
in the Court of Common Pleas of Monroe County,
Criminal Division, No(s): CP-45-CR-0001697-2012
BEFORE: OLSON, STABILE and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED APRIL 27, 2017
Daniel R. Wesling (“Wesling”) appeals, pro se, from the Order denying
his first Petition filed pursuant to the Post Conviction Relief Act (“PCRA”),1
and granting Brian Gaglione, Esquire’s (“Attorney Gaglione”) Petition to
Withdraw as counsel for Wesling. We affirm.
In its Opinion, the PCRA court set forth the relevant factual and
procedural background, which we adopt for the purpose of this appeal. See
PCRA Court Opinion, 5/25/16, at 1-2.2
On appeal, Wesling raises the following issues for our review:
1. Did the [PCRA] court err in allowing the assigned [PCRA]
counsel[, Attorney Gaglione,] to withdraw before amending
[Wesling’s] PCRA [Petition,] both denying [Wesling] a full and
1
See 42 Pa.C.S.A. §§ 9541-9546.
2
Wesling received an aggregate prison sentence of 180 to 360 years.
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fair opportunity to present his claims[,] and violat[ing]
Pa.R.Cr[im].P. 904 and 905 [and] 42 Pa.C.S.A. § 9541?
2. Was not Public Defender[,] Robin Spishock[, Esquire
(“Attorney Spishock”),] ineffective at a critical stage?
3. Was [sic] not Attorney’s [sic] [George Henry] Newman[,
Esquire (“Attorney Newman”)] (local [counsel]), [Michael]
Salnick[, Esquire (“Attorney Salnick”)] (pro hac vice
[counsel])[,] and [Jack] Fuchs[, Esquire (“Attorney Fuchs”)]
(pro hac vice [counsel]) [(collectively “replacement counsel”)]
ineffective?
4. Was [sic] not both groups of attorney’s [sic] ineffective?
5. Was [sic] not [Wesling’s] [c]onstitutional rights violated when
the statute of limitations had completed running in 2007[,]
and [Wesling] was charged in 2009?
Brief for Appellant at 4.
In reviewing the denial of a PCRA Petition, we examine whether the
PCRA court’s determination “is supported by the record and free of legal
error.” Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)
(citations omitted).
In his first issue, Wesling contends that the trial court erred by
permitting assigned PCRA counsel, Attorney Gaglione, to withdraw from
representation. Brief for Appellant at 8. Wesling states that he spoke with
Attorney Gaglione upon his appointment as counsel, but claims that Attorney
Gaglione failed to discuss the case with Wesling after Attorney Gaglione had
reviewed the record. Id. at 8, 9. Wesling asserts that he expected Attorney
Gaglione to file an amended PCRA petition, rather than a “no merit” letter
pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
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Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
Brief for Appellant at 8. Wesling claims that he sent a letter to the PCRA
court, expressing his intention to proceed pro se and amend his Petition,
“but to no avail as [Wesling’s] PCRA [Petition] was denied ….” Id. Wesling
claims that Attorney Gaglione violated Pa.R.Crim.P. 904 by not responding
to the PCRA court’s March 18, 2016 Order,3 or further representing him in
these proceedings. Brief for Appellant at 9. Wesling also claims that,
pursuant to Pa.R.Crim.P. 905(B), the PCRA court should have permitted an
amendment of Wesling’s PCRA Petition if the court determined that the
petition was deficient. Brief for Appellant at 9.
Pursuant to Turner/Finley, independent review of the record by
competent counsel is required before withdrawal on collateral appeal is
permitted. See Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa.
2009). In Pitts, our Supreme Court explained that such independent review
requires proof of
1. A “no-merit” letter by PC[R]A counsel detailing the nature and
extent of his review;
2. The “no-merit” letter by PC[R]A counsel listing each issue the
petitioner wished to have reviewed;
3. The PC[R]A counsel’s “explanation,” in the “no-merit” letter,
of why the petitioner’s issues were meritless;
4. The PC[R]A court conducting its own independent review of
the record; and
3
In its March 18, 2016 Order, the PCRA court denied Wesling’s Petition, and
granted Attorney Gaglione’s Petition to Withdraw.
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5. The PC[R]A court agreeing with counsel that the petition was
meritless.
Id. (citation and brackets omitted). Further, our Court has held that the
Supreme Court in Pitts did not expressly overrule the additional
requirement imposed by this Court in Commonwealth v. Friend, 896 A.2d
607, 615 (Pa. Super. 2006), stating
that PCRA counsel seeking to withdraw contemporaneously
forward to the petitioner a copy of the application to withdraw
that includes (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.
Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011).
Here, the PCRA court determined that, in the Turner/Finley “no
merit” letter, Attorney Gaglione had described the extent of his review,
identified the issues that Wesling sought to raise, and explained why the
issues lacked merit. See PCRA Court Order, 3/18/16, at 1-3. The PCRA
court also confirmed that Attorney Gaglione had provided a copy of the
Turner/Finley “no merit” letter to Wesling. See id. at 3.4 The PCRA court
4
Pursuant to Friend, Attorney Gaglione was also required to provide
Wesling with a statement advising him that, in the event the PCRA court
permitted Attorney Gaglione to withdraw, Wesling had the right to proceed
pro se, or with the assistance of privately retained counsel. See Widgins,
29 A.3d at 818. Although the PCRA court did not address this additional
requirement, our independent review of the record confirms that Attorney
Gaglione provided Wesling with a notice of his intention to seek permission
to withdraw from representation, and advised Wesling of his rights to
proceed pro se, or retain private counsel.
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thereafter reviewed the issues raised in the Turner/Finley “no merit” letter
and, after conducting an independent review, determined that the issues
Wesling sought to raise lacked merit. See id. at 1-3 (wherein the PCRA
court agreed with Attorney Gaglione’s assessment that the issues raised by
Wesling lacked merit, and noted that Wesling had failed to file a response to
the PCRA court’s Pa.R.Crim.P. 907 Notice of its intent to dismiss the Petition
without a hearing). Based on our independent review of the record, we
conclude that the PCRA court’s decision to permit Attorney Gaglione to
withdraw from representation is supported by the record and free of legal
error, and affirm on this basis as to Wesling’s first issue. See id.5
In his second issue, Wesling contends that Attorney Spishock was
ineffective for (1) counseling Wesling to waive his preliminary hearing; and
(2) failing to file pretrial motions. Brief for Appellant at 10. Specifically,
Wesling asserts that Attorney Spishock was ineffective “for not putting in
any time[-]critical motions” requesting the prosecution to fix the dates when
the alleged offenses occurred with reasonable certainty, thereby preventing
Wesling from raising statute of limitations or alibi defenses. Id. at 14.
Wesling also claims that Attorney Spishock failed to communicate with
Wesling’s replacement counsel, Attorney Newman, Attorney Salnick, and
5
To the extent that Wesling attempts to raise, on appeal, an ineffectiveness
claim regarding Attorney Gaglione, he failed to challenge his PCRA counsel’s
representation after receiving Attorney Gaglione’s notice of withdrawal
letter, and the Notice of the PCRA court’s intent to dismiss his Petition
pursuant to Pa.R.Crim.P. 907. Thus, Wesling has waived any claim that his
PCRA counsel was ineffective. See Pitts, 981 A.2d at 880 n.4.
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Attorney Fuchs. Id. at 15. Although Wesling concedes that replacement
counsel were permitted to file supplemental pretrial Motions, and to request
a hearing, he argues that replacement counsel were “unable to recover from
time critical omissions of [Attorney] Spishock[].” Id. at 11, 15, 16.
To succeed on an ineffectiveness claim, Wesling must demonstrate by
the preponderance of the evidence that
(1) [the] underlying claim is of arguable merit; (2) the particular
course of conduct pursued by counsel did not have some
reasonable basis designed to effectuate his interests; and (3) but
for counsel’s ineffectiveness, there is a reasonable probability
that the outcome of the proceedings would have been different.
Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010). A failure to satisfy
any prong of the test for ineffectiveness will require rejection of the claim.
Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010). Counsel is
presumed to be effective and the burden is on the appellant to prove
otherwise. Commonwealth v. Hanible, 30 A.3d 426, 439 (Pa. 2011).
Notably, Wesling has not addressed, or even discussed, the
appropriate legal standard for establishing the ineffectiveness of Attorney
Spishock. Even if we were to conclude that Wesling’s arguments had
satisfied the first two prongs of the ineffectiveness test, we are persuaded
by the PCRA court’s reasoning that Wesling cannot satisfy the third prong of
the test. In its Opinion, the PCRA court addressed Wesling’s ineffectiveness
claim regarding Attorney Spishock’s failure to request a bill of particulars,
and determined that the issue lacked merit because one of Wesling’s
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replacement counsel, “Attorney Salnick[,] adequately raised and argued a
[M]otion for a bill of particulars.” See PCRA Court Opinion, 5/25/16, at 3.
Additionally, in its prior Orders, the PCRA court addressed Wesling’s
additional ineffectiveness claims regarding Attorney Spishock, and
determined that the claims lack merit. See PCRA Court Order, 3/18/16, at
1-3 (addressing Wesling’s claim that Attorney Spishock was ineffective for
counseling Wesling to waive his preliminary hearing); see also PCRA Court
Order, 2/23/16, at 1-2 (same). We agree with the reasoning of the PCRA
court, which is supported by the record and free of legal error, and affirm on
this basis as to Wesling’s second issue. See PCRA Court Opinion, 5/25/16,
at 3; PCRA Court Order, 3/18/16, at 1-3; PCRA Court Order, 2/23/16, at 1-
2.
In his third issue, Wesling claims that replacement counsel were
ineffective for failing to request a bill of particulars from the Commonwealth.
Brief for Appellant at 16-17. Wesling argues that replacement counsel
“failed to raise, litigate or preserve the issue of whether the Commonwealth
proved the dates of the commission of the offenses beyond a reasonable
doubt[,] and did not fix the date of the offenses with reasonable certainty[,]”
thereby causing prejudice to Wesling. Id. at 17-18. Wesling contends that,
if the Commonwealth had presented “the realistic dates” of his alleged
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offenses, then he would have been able to produce evidence of his
innocence, including receipts and bank statements. Id. at 34.6
Once again, Wesling has not addressed, or even discussed, the
appropriate legal standard for establishing the ineffectiveness of his
replacement counsel. Additionally, as noted above, the PCRA court
determined that Wesling’s third issue lacked merit because replacement
counsel did, in fact, raise and argue a Motion for a bill of particulars. See
PCRA Court Opinion, 5/25/16, at 3. We agree with the reasoning of the
PCRA court, which is supported by the record and free of legal error, and
affirm on this basis as to Wesling’s third issue. See id.
In his Statement of Questions Presented, Wesling framed his fourth
issue as follows: “Was [sic] not both groups of attorney’s [sic] ineffective?”
Brief for Appellant at 4. To the extent that Wesling intended to raise
additional ineffectiveness claims regarding his counsel, he has failed to
provide a discussion in his appellate brief in support of his fourth issue. See
6
Wesling also contends that replacement counsel were ineffective, and
violated his Sixth Amendment rights, because they failed to follow
Pa.R.Crim.P. 578, which requires that “all pretrial requests for relief shall be
included in one omnibus motion.” Brief for Appellant at 16 (citing
Pa.R.Crim.P. 578). Wesling further asserts that replacement counsel “failed
to preserve, raise or litigate the issue of [a] statute of limitations defense.”
Brief for Appellant at 34. However, these issues were not raised in Wesling’s
court-ordered Pa.R.A.P. Concise Statement of matters complained of on
appeal. Accordingly, he failed to preserve them for our review. See
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (providing that, if
an appellant is directed to file a concise statement of matters to be raised on
appeal pursuant to Pa.R.A.P. 1925(b), any issues not raised in that
statement are waived.).
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Pa.R.A.P. 2119(a) (stating that the argument section of the parties’ briefs
“shall be divided into as many parts as there are questions to be argued;
and shall have at the head of each part - in distinctive type or in type
distinctly displayed - the particular point treated therein, followed by such
discussion and citation of authorities as are deemed pertinent.”). Moreover,
in its Opinion, the PCRA court deemed this issue as too vague to be
adequately addressed. See PCRA Court Opinion, 5/25/16, at 4; see also
id. (wherein the PCRA court reviewed the transcript pages cited in Wesling’s
Concise Statement, and determined that it had found no ineffectiveness of
counsel therein).7 Accordingly, we determine that Wesling failed to preserve
this issue for our review. See Pa.R.A.P. 2119(a); see also
Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa. Super. 2011) (holding
that this Court may find waiver where a concise statement is too vague).
In his Statement of Questions Presented, Wesling framed his fifth issue
as follows: “Was not [Wesling’s c]onstitutional rights violated when the
statute of limitations had completed running in 2007[,] and [Wesling] was
charged in 2009?” Brief for Appellant at 4. Notably, Wesling has failed to
provide a separate discussion in his appellate brief in support of his fourth
issue. See Pa.R.A.P. 2119(a). However, Wesling raised this issue in his
7
To the extent that Wesling had intended to support this issue with those
arguments raised in support of his third issue that we have deemed waived,
see footnote 4, supra, he failed to raise those arguments before the trial
court. See Lord, supra; Pa.R.A.P. 302(a) (providing that issues not raised
in the lower court are waived and cannot be raised for the first time on
appeal.). Thus, we cannot consider them on appeal.
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Concise Statement and addressed this issue elsewhere in his appellate brief,
albeit in the discussion supporting his third issue on appeal. While Wesling
is in technical violation of our Appellate Rules, we will nevertheless address
his fifth issue on appeal.
Wesling indicates that he was convicted under 42 Pa.C.S.A. § 5552,
which was amended in 1990 to extend the time period in which to
commence prosecution for sexual offenses against minors to five years from
the date the victim turned 18 years old. Brief for Appellant at 34. Wesling
claims that because P.U. was born in 1981, and K.B. was born in 1984, the
Commonwealth would have had until 2004 to commence prosecution for
sexual offenses committed against P.U., and until 2007 to commence
prosecution for sexual offenses committed against K.B. Id. Wesling argues
that the Commonwealth brought charges against him in 2009, which was
beyond the statute of limitations. Id. Wesling acknowledges that section
5552 was amended in 2002 to extend the time period in which to commence
prosecution for sexual offenses against minors to twelve years from the date
the victim turned 18 years old, but claims that the legislature did not intend
the amendment to apply to crimes committed prior to its effective date.
Brief for Appellant at 35, 40; see also id. at 34 (wherein Wesling asserts
that the sexual offenses of which he was convicted occurred from 1990
through 2000).
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Under the PCRA, an issue will be deemed waived if the petitioner could
have raised it but failed to do so before trial, at trial, or on direct appeal.
See 42 Pa.C.S.A. § 9544(b). As Wesling could have raised this issue before
trial, at trial or in his direct appeal, we deem the issue as waived.8
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/27/2017
8
Even if we had not deemed this issue to be waived, we would have
concluded that it lacks merit for the reasons expressed by the PCRA court in
its Orders. See PCRA Court Order, 3/18/16, at 2; see also PCRA Court
Order, 2/23/16, at 1-2.
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Circulated 03/31/2017 09:49 AM
COURT OF COMMON PLEAS OF MONROE COUNTY
FORTY-TIDRD JUDICIAL DISTRICT
COMMONWEAL TH OF PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA No. 1697 CR 2012
v.
DANIEL WESLING, POST-CONVICTION
Defendant RELIEF ACT PETITION
ORDER
AND NOW, this 18th day of March 2016, Defendant's Motion for Post-
Conviction Collateral Relief is DENIED for the following reasons:
1. On October 22, 2015, Brian S. Gaglione, Esq., was court appointed to
represent Defendant in this matter.
2. Attorney Gaglione was given until November 23, 2015 to file an Amended
PCRA Petition to cure any defects in the original pro se petition. This deadline was extended
three times upon request of defense counsel, the last deadline being set at February 10, 2016.
3. On February 9, 2016, Attorney Gaglione filed a Petition to Withdraw as
Counsel, together with a "no merit" letter, in which he details bis review of Defendant's file and
frames the issues raised by Defendant as follows: ''the statute of limitations had TUI). due to the
passage of time between when these crimes were alleged to have occurred and when you were
charged" and "that Attorney Spishock 'rendered deficient performance and her counsel decisions·
had no reasonable basis other than to undermine the truth determining process."' No merit Ietter,
2/8/16, pp. 1, 2 (quoting Defendant's prose PCRA Petition).
4. We issued an Amended Notice of Disposition without Hearing;" on · ·
Defendant's PCRA Petition on February 13, 20 J 6. As of the date of this Order, Defendajit~l{;,t,
not filed a response. ·. . , • ,]'~~~~;~;~,1-~ .
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