Com. v. Williams, D. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
DOUGLASS WILLIAMS, : No. 367 WDA 2014
:
Appellant :
Appeal from the PCRA Order, February 13, 2014
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0009620-2009
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND WECHT, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 09, 2015
Appellant appeals from the order denying his first petition filed
pursuant to the Post Conviction Relief Act (“PCRA”). We dismiss this appeal.
This court summarized the factual background of this case during
direct appeal:
Appellant, his wife (the victim’s mother), and the
victim were living at 1108 Mella Street in Pittsburgh
along with their son. (Notes of testimony, 2/28/11
at 8.) In the fall of 2009, when the victim was
12 years old, appellant would lift up her shirt, touch
her breasts and pull on them in what he claimed was
an attempt to make them larger. Appellant told the
victim, “[your breasts] are going to get bigger over
time, just wait and see.” (Id. at 10.) The victim
testified that appellant stated that this was
something that people “did in the South.” (Id. at 9.)
Appellant touched her breasts underneath the
victim’s clothing three to five times during this time
period, and also touched her several more times on
the top of her clothes. (Id. at 10.) The victim
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stated that in some instances appellant touched her
over her clothing in the presence of her mother and
brother, but explained that no one was present on
the occasions when he fondled her breasts after
having pulled up her shirt.
The victim explained that she became upset
and insecure when appellant touched her breast.
(Id. at 13, 21.) The victim explained that
appellant’s behavior stopped as a result of her
mother catching him in the act and that it was not
until that point that she realized what appellant had
been doing to her was wrong. (Id. at 13-14, 23.)
The victim was initially afraid to speak to authorities
but eventually told a representative from CYF. (Id.
at 13.)
The victim’s mother corroborated the victim’s
version of events and testified that she had
witnessed appellant touching the victim
inappropriately. (Id. at 46.) “[Appellant] would
start tickling but then he would touch her breasts.”
(Id.) “I physically saw a tickle turn into his hands
on her breasts . . . over her clothing . . . at least
twice.” (Id. at 47.) The victim’s mother instructed
appellant not to touch their daughter, however, she
testified that he “tried to just laugh as if it’s just
playful.” (Id. at 47, 52-53.)
Appellant testified at trial and acknowledged
touching the victim’s breasts at times in the past but
claimed that it only occurred “accidently” during
“horseplay.” (Id. at 82-83, 85-86.) Appellant also
admitted that he made the statement about pulling
on her breasts to make them grow, but averred that
he was just “joking, kidding.” (Id. at 87, 91-92.)
Commonwealth v. Williams, No. 544 WDA 2011, unpublished
memorandum at 1-3 (Pa.Super. filed June 5, 2012).
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On February 28, 2011, appellant was convicted of one count of
indecent assault of a person less than 13 years of age.1 Immediately
thereafter, appellant was sentenced to three years’ probation.2 On June 5,
2012, this court affirmed the judgment of sentence, and on February 14,
2013, our supreme court denied appeal. Commonwealth v. Williams, 53
A.3d 924 (Pa.Super. 2012) (unpublished memorandum), appeal denied, 63
A.3d 777 (Pa. 2013).
On August 19, 2013, appellant filed the instant PCRA petition pro se.
Counsel was appointed, an amended petition was filed, and an evidentiary
hearing was held on January 12, 2014. At issue was the victim’s recantation
of her trial testimony. The victim’s mother also testified, reiterating her trial
testimony. Appellant’s petition was denied by order entered February 13,
2014. This timely appeal followed.
Appellant raises two issues on appeal:
A. The lower court abandoned its role as
“impartial arbiter” and engage[d] in protracted
examination of Williams’s witnesses.
B. The lower court denied post-conviction relief
based upon inadmissible and unsubstantiated
evidence.
Appellant’s brief at i.
In reviewing the denial of PCRA relief, we examine
whether the PCRA court’s determinations are
1
18 Pa.C.S.A. § 3126(a)(7).
2
Appellant was also subject to ten years of reporting under Megan’s Law.
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supported by the record and are free of legal error.
Commonwealth v. Roney, 622 Pa. 1, 79 A.3d 595,
603 (2013). The PCRA court’s credibility
determinations, when supported by the record, are
binding on this Court; however, we apply a de novo
standard of review to the PCRA court’s legal
conclusions. Id.
Commonwealth v. Watkins, 108 A.3d 692, 701 (Pa. 2014).
We find we are no longer able to review appellant’s issues. Even if we
were to find error, we could not remand the case to the PCRA court for
further resolution because appellant is no longer eligible for relief under the
PCRA. The record indicates that appellant has completed serving his
sentence. The sentencing order specifically states that appellant’s
three-year probationary term was to commence on February 28, 2011.
Consequently, that sentence expired on February 28, 2014.
The PCRA requires that a defendant be currently serving or awaiting a
sentence of death, imprisonment, probation, or parole in order to be eligible
for relief. 42 Pa.C.S.A. § 9543(a)(1). Case law has further ruled that not
only must a defendant be serving a sentence when the petition is filed, but
also when the order is entered resolving the petition. Commonwealth v.
Ahlborn, 699 A.2d 718 (Pa. 1997). Finally, this court has held that the
reporting requirements of Megan’s Law are a collateral consequence of
appellant’s conviction and do not qualify as a sentence for purposes of PCRA
eligibility. Commonwealth v. Williams, 977 A.2d 1174, 1176-1177
(Pa.Super. 2009), appeal denied, 990 A.2d 730 (Pa. 2010).
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Accordingly, having found that appellant is no longer eligible for relief
under the PCRA, we will dismiss this appeal.3
Appeal dismissed. Application to stay appeal and remand for an
evidentiary hearing is denied. Motion seeking certificate of transmittal of the
record is quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/9/2015
3
We note that there are two outstanding motions. On October 8, 2014,
counsel for appellant filed an application to stay appeal and remand for an
evidentiary hearing. Since the PCRA hearing, the victim’s mother has also
expressed a desire to recant her trial and PCRA testimony. We will decline
to grant a new evidentiary hearing as this matter likewise can no longer be
addressed. As for the other motion, it is a pro se motion filed on April 13,
2015, seeking a certificate of transmittal of the record. This motion will be
dismissed under the rule prohibiting hybrid representation.
Commonwealth v. Padilla, 80 A.3d 1238, 1259 (Pa. 2013), cert. denied,
Padilla v. Pennsylvania, 134 S. Ct. 2725 (2014).
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