Com. v. Turner, C. ( 2021 )

J-S13033-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CURTIS TURNER :
:
Appellant : No. 1017 EDA 2020
Appeal from the PCRA Order Entered February 20, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004240-2012
BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: Filed: May 13, 2021
Curtis Turner (Turner) appeals the order of the Court of Common Pleas
of Philadelphia County (PCRA court) summarily denying his petition for post-
conviction relief. In 2014, following a bench trial, Turner was found guilty of
attempted rape, attempted sexual assault, unlawful restraint, indecent
assault, terroristic threats and simple assault. He was designated as a
sexually violent predator (SVP) and sentenced to a prison term of 4 to 8 years,
followed by 8 years of probation. Turner now argues that he is entitled to
relief under the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546,
because his trial counsel was ineffective, his statutory SVP registration
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* Retired Senior Judge assigned to the Superior Court.
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requirements are invalid,1 and he was denied an evidentiary hearing. We
affirm.
I.
At Turner’s bench trial in the underlying criminal case, the prosecution
introduced evidence that on March 21, 2012, Turner assaulted the victim,
Y.W., as she exited a convenience store. Both Y.W. and her friend, who was
present, Neika Stephenson, testified that Turner forcibly groped Y.W. and held
her against a wall by her neck while verbally threatening to rape her. Y.W.
resisted, causing she and Turner to fall to the ground. Moments later, Y.W.
was able to run away and receive the aid of a passer-by who called the police.
Turner was arrested and charged with the above offenses.
Turner’s identity as the perpetrator was not in dispute. Y.W. testified at
trial in 2013 that she had known Turner for over 10 years. The prosecution
introduced 9 still photographs taken with a camera from a surveillance video
footage of the incident, and both Y.W. and Stephenson confirmed that they
accurately captured what had happened.
The defense received the surveillance photos in advance of trial, but the
full video from which they were obtained was not admitted into evidence or
disclosed to the defense. One of the investigating police officers, Christopher
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1 As a Tier III offender, the version of the Sexual Offenders Registration and
Notification Act (SORNA) then in effect, 42 Pa.C.S. § 9799.15(a)(3), (e)(3),
required Turner to register as an SVP for the rest of his life.
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Brennan, testified that the video of the incident could not be recovered from
the store’s recording equipment. See Trial Transcript, 8/6/2013, at p. 110.
Nothing in the record suggests that the video recording still existed at the time
of Turner’s trial or that the Commonwealth ever possessed it in a recordable
format.
The defense argued that Y.W.’s account was not corroborated because
none of the photos showed her or Turner on the ground. The defense also
claimed that none of the evidence proved that Turner had the requisite intent
to commit any violent or sexual offenses.
Turner was found guilty, and in addition to a prison term of 4 to 8 years
and a probationary term of 8 years, he was ordered to comply with the lifetime
registration requirements of SORNA. As a Tier III offender, Turner was
designated an SVP. Among other requirements, the version of SORNA then
in effect directed Turner to appear four times a year in person to verify his
personal information to the Pennsylvania State Police.
Turner appealed, and the judgment of sentence was affirmed in
Commonwealth v. Turner, 2084 EDA 2016 (Pa. Super. March 29, 2018).
On March 7, 2019, Turner timely filed a counseled PCRA petition which was
denied. He now raises four issues in his brief:
1. Whether the PCRA court erred by dismissing the PCRA petition
when clear and convincing evidence was presented that trial
counsel was ineffective for failing to object to the non-disclosure
of Brady materials, failing to subpoena surveillance video of the
alleged incident, failing to litigate speedy trial and speedy
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sentencing motions, and refusing to allow [Turner] to testify in his
own defense.
2. Whether the PCRA court erred by dismissing the PCRA petition
when clear and convincing evidence was presented to establish a
violation of [Turner’s] constitutional rights to due process based
on the prosecution’s willful or inadvertent withholding of
exculpatory or impeachment evidence, a surveillance video
recording, that was material and favorable to him.
3. Whether the PCRA court erred by dismissing [Turner’s] PCRA
petition because the trial court issued an illegal sentence by
imposing a punitive registration of SORNA which violated
[Turner’s] due process rights and extended the length of the
sentence beyond the statutory maximum.
4. Whether the PCRA court erred by failing to grant an evidentiary
hearing.
Appellant’s Brief, at 8.
II.
A.
Turner first asserts that his trial counsel was ineffective by not seeking
to obtain surveillance video footage of the incident or objecting that its non-
disclosure was in violation of Brady v. Maryland, 373 U.S. 83 (1963). He
also argues that counsel was ineffective by not moving to dismiss the charges
on speedy trial grounds.2 None of these grounds have merit.
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2 “Our standard of review for issues arising from the denial of PCRA relief is
well-settled. We must determine whether the PCRA court’s ruling is supported
by the record and free of legal error.” Commonwealth v. Johnson, 179
A.3d 1153, 1156 (Pa. Super. 2018) (internal quotation marks omitted). The
findings of the PCRA court and the evidence of record are to be viewed in the
(Footnote Continued Next Page)
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To prevail on a claim of ineffective assistance of counsel, a PCRA
petitioner must prove each of the following:
(1) the underlying legal claim was of arguable merit; (2) counsel
had no reasonable strategic basis for his action or inaction; and
(3) the petitioner was prejudiced – that is, but for counsel’s
deficient stewardship, there is a reasonable likelihood the outcome
of the proceedings would have been different.
Commonwealth v. Pier, 182 A.3d 476, 478-79 (Pa. Super. 2018) (citations
omitted). An ineffectiveness claim must be denied if any of those prongs are
not met. See Commonwealth v. Postie, 200 A.3d 1015, 1022 (Pa. Super.
2018). Moreover, counsel cannot be found ineffective for failing to pursue a
baseless or meritless claim. See Commonwealth v. Epps, 240 A.3d 640,
645 (Pa. Super. 2020). Counsel is presumed to be effective and the petitioner
bears the burden of proving otherwise. Id.Turner’s related ineffectiveness claims regarding the surveillance video
footage were properly denied because he never established that the evidence
was ever obtainable by or in possession of the Commonwealth. In short, there
was no exonerating Brady material to disclose, and Turner’s trial counsel
could not have been ineffective in failing to subpoena non-existent evidence.
Turner has provided no factual basis as to why he believes the
Commonwealth withheld or destroyed the surveillance video footage. Nor
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light most favorable to the Commonwealth. Commonwealth v. Colavita,
993 A.2d 874, 886 (Pa. 2010).
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does Turner proffer any evidence that would refute the trial testimony of the
investigating officer that the surveillance video footage could not be copied
from the store that recorded it. Thus, the PCRA court did not err in denying
either of these claims.
B.
Similarly, Turner’s ineffectiveness claim regarding counsel’s failure to
seek dismissal of the case is without merit. He argues that he was entitled to
a trial within one year from the date of his arrest, and that his trial counsel
waived that right by allowing him to be tried over four months after the
deadline had elapsed.
This claim fails in part because Rule 600 does not contemplate strict
deadlines within which a defendant must be tried. Rather, the computation
of the speedy trial period will only include delays attributable to the
Commonwealth’s failure to exercise due diligence in bringing the case to trial.
See Pa.R.Crim.P. 600(c)(1).
When “attempting to demonstrate that counsel was ineffective for failing
to pursue a Rule 600 claim,” he “bears both the burden of demonstrating that
there was arguable merit to his motion, and [that] he was prejudiced by the
failure of counsel to pursue that motion.” Commonwealth v. Maddrey, 205
A.3d 323, 328 (Pa. Super. 2019). “A PCRA petitioner must exhibit a concerted
effort to develop his ineffectiveness claim and may not rely on boilerplate
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allegations of ineffectiveness.” Commonwealth v. Natividad, 938 A.2d 310,
322 (Pa. 2007).
In the present case, Turner went to trial 16 months after his arrest date
but he did not carry his initial burden of proving counsel’s ineffectiveness on
this ground. He has not alleged how the run date of his speedy trial period
was exceeded due to the Commonwealth’s failure to exercise due diligence.
Turner’s states alternatively that he did not consent to his trial counsel’s
continuances, but he does not specify why any of those delays were
unreasonable or unnecessary for the preparation of his case. Thus, the PCRA
court did not err in summarily denying this claim.
C.
The last of Turner’s ineffectiveness claims is that his counsel did not
have him testify at trial on his own behalf. To prevail on a claim that counsel
was ineffective for failing to call a defendant to the stand, it must be shown
“(1) that counsel interfered with the defendant’s right to testify, or (2) that
counsel gave specific advice so unreasonable as to vitiate a knowing and
intelligent decision to testify on his own behalf.” Commonwealth v. Breisch,
719 A.2d 352, 355 (Pa. Super. 1998).
In this case, Turner’s claim is undeveloped and, therefore, without
merit. He has not stated in his PCRA petition or brief what facts he would
have testified to or how his testimony would have possibly affected the
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outcome of the case. Thus, the PCRA court did not err in summarily denying
this bald claim of ineffectiveness.
III.
Turner’s next claim is that the SORNA lifetime registration requirements
imposed at his sentencing are unconstitutional because they exceed the term
of his penal sentence. The only authority he cites in support is
Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), where it was held that
SORNA’s registration requirements could not be imposed retroactively on
offenders whose crimes preceded the enactment of the law.
Recently in Commonwealth v. Elliot, 3066 EDA 2019 (Pa. Super. April
5, 2021), ___ A.3d ___ (Pa. 2021), we held that since SORNA registration
requirements are administrative and non-punitive in nature, constitutional
challenges to the statute fall outside the ambit of the PCRA, which does not
encompass such civil collateral consequences of a criminal conviction.
Regardless, even if it were proper for us to consider the issue on the merits,
no relief would be due because as to offenses committed on Turner’s offense
date (March 21, 2012), SORNA’s registration requirements are constitutional.3
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3 The version of SORNA that applies as to offenses committed on March 21,
2012, is “Subchapter I,” 42 Pa.C.S. § 9799.51-9799.75. In Commonwealth
v. Lacombe, 234 A.3d 602, 615 (Pa. 2020), our Supreme Court explained
that Subchapter I was enacted in 2018 to correct the constitutional
deficiencies at issue in Muniz. To that end, Subchapter I would apply
retroactively “for those sexual offenders whose crimes occurred between April
22, 1996 and December 20, 2012.” Lacombe, 234 A.3d at 615; see also 42
(Footnote Continued Next Page)
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IV.
Finally, Turner argues that he was erroneously denied an evidentiary
hearing. This claim is reviewed under an abuse of discretion standard.
Commonwealth v. Reid, 99 A.3d 470, 485 (Pa. 2014).
The PCRA court has discretion to dismiss a petition without a hearing
when the court is satisfied “that there are no genuine issues concerning any
material fact, the defendant is not entitled to post-conviction collateral relief,
and no legitimate purpose would be served by further proceedings.”
Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011) (quoting
Pa.R.Crim.P. 909(B)(2)).
“To obtain reversal of a PCRA court’s decision to dismiss a petition
without a hearing, [a petitioner] must show that he raised a genuine issue of
fact which, if resolved in his favor, would have entitled him to relief, or that
the court otherwise abused its discretion in denying a hearing.”
Commonwealth v. Roney, 79 A.3d 595, 604-05 (Pa. 2013).
In this case, we have already detailed above why none of Turner’s claims
have merit as a matter of law. He did not raise any genuine issues of fact as
to counsel’s ineffectiveness or the constitutionality of his SORNA registration
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Pa.C.S. § 9799.52(1) (outlining the temporal scope of Subchapter I). The
Lacombe Court held that the retroactive application of Subchapter I is
constitutionally valid. See Lacombe, 234 A.3d at 626-27. (“We hold
Subchapter I does not constitute criminal punishment, and the ex post facto
claims forwarded by appellees necessarily fail.”). Thus, the holding of
Lacombe is fatal to Turner’s claim in this case.
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requirements. No legitimate purpose would have been served by further
proceedings. Accordingly, the PCRA court did not abuse its discretion in
summarily denying Turner’s petition.
Order affirmed.
Judge King joins the memorandum.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/13/21
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