Com. v. Perkins, A. ( 2015 )

J-S48019-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ARTHUR RAY PERKINS, :
:
Appellant : No. 1942 WDA 2014
Appeal from the PCRA Order June 26, 2014,
Court of Common Pleas, Erie County,
Criminal Division at No. CP-25-CR-0001311-2011
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ARTHUR RAY PERKINS, :
:
Appellant : No. 1943 WDA 2014
Appeal from the PCRA Order June 26, 2014,
Court of Common Pleas, Erie County,
Criminal Division at No. CP-25-CR-0000298-2011
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ARTHUR RAY PERKINS, :
:
Appellant : No. 1945 WDA 2014
Appeal from the PCRA Order June 26, 2014,
Court of Common Pleas, Erie County,
Criminal Division at No. CP-25-CR-0000299-2011
J-S48019-15
BEFORE: PANELLA, DONOHUE and WECHT, JJ.
MEMORANDUM BY DONOHUE, J.: FILED AUGUST 11, 2015
Appellant, Arthur Ray Perkins (“Perkins”), appeals from the order
entered on June 26, 2014 by the Court of Common Pleas of Erie County,
Criminal Division, denying his petition filed pursuant to the Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
A prior panel of this Court summarized the facts and procedural history
of this case as follows:
In 2007, H.L.S. (age 11), and twins A.S.B. and
G.S.B. (age 15), lived in the same trailer park as
[Perkins] (age 68). The twins befriended [Perkins]
through their older sister; H.L.S. met [him] through
the twins. The twins performed chores around the
home for [Perkins], initially as part of the community
service they were required to do for underage
drinking, and later in exchange for [Perkins] buying
them food and clothing and driving them to and from
activities such as cheerleading practice.
The three girls often spent time with [Perkins] in his
trailer, playing cards and smoking cigarettes, and,
later in time, drinking alcohol and smoking
marijuana. The card games often involved the girls’
hiding cards in their bras or pants for [Perkins] to
retrieve. The twins flashed their breasts to [Perkins]
in exchange for cigarettes. [Perkins] kept a log of
how much money each of the girls owed to him.
G.S.B. understood that they could pay [Perkins] back
when they turned [seventeen] by having sex with
[him].
A.S.B. testified that once, when she was alone with
him, [Perkins] showed her a pornographic movie,
squeezed her breasts, and touched her genital area
through her clothes. H.L.S. testified that on one
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occasion, [Perkins] pulled down H.L.S.’s pants and
underwear, spanked her bare rear end, and said
“nice butt.”
At age [sixteen], the twins were picked up by the
police for underage stripping at the Velvet Club.
Angry because they believed that [Perkins] had
turned them in, the twins informed the police that
[Perkins] was the one who took them to the club, as
well as of the details of their interactions with [him]
at his trailer.
[Perkins] was arrested and released on bail. Shortly
thereafter, the twins went, with their father, to visit
[Perkins] at his trailer. H.L.S. also went to see
[Perkins] to get a cigarette. At [Perkins’] request,
and in exchange for promises to take them shopping
and to Waldameer amusement park, G.S.B. copied,
and both twins signed, a statement authored by
[Perkins] that indicated that all of the information in
their statements to the police was false. H.L.S.
signed a statement written by [Perkins] which
indicated that the incident involving [Perkins] pulling
H.L.S.’s pants down never happened.
[Perkins] testified at trial. He admitted to providing
the girls with cigarettes, alcohol, and marijuana, and
to reaching into their clothing during card games to
retrieve hidden cards, which he described as
“monkeying around.” He admitted to engaging in
sexual innuendo with the girls and seeing their
breasts when they flashed him. [Perkins] denied
taking down H.L.S.’s pants and denied the incident of
touching A.S.B. when they were alone.
Following a non-jury trial, the trial court found
Appellant not guilty of counts of indecent exposure
and indecent assault as to G.S.B. and A.S.B. The
verdict was guilty as to indecent assault of H.L.S.,
intimidation of H.L.S., and the various corruption of
minors counts as to all three girls. On January 5,
2012, after a presentence investigation, the trial
court sentenced [Perkins] at each count to either
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[twenty-one to sixty months of] incarceration or
[twenty-four to sixty months of] incarceration, with
all sentences running concurrently.
On September 11, 2012, a panel of this Court affirmed Perkins’
judgment of sentence.
On May 15, 2013, [Perkins] filed a pro se [] letter,
which this [c]ourt treated as a PCRA petition. This
[c]ourt appointed PCRA counsel and on August 6,
2013, [Perkins] filed a counseled [s]upplement [t]o
[m]otion [f]or [p]ost [c]onviction [c]ollateral [r]elief.
A PCRA evidentiary hearing was held before this
[c]ourt on November 7, 2013.
PCRA Court Opinion, 6/26/14, at 3. On June 26, 2014, the PCRA court
denied Perkins’ PCRA petition. This appeal followed.1
On appeal, Perkins raises the following issue for our review and
determination:
Whether [Perkins] was afforded ineffective
assistance of trial counsel in failing to introduce
certain written documents in the form of statements
and correspondence from the alleged victims and
their sister Rachel in which the minor girls recanted
or retracted some of their allegations against
[Perkins]?
Perkins’ Brief at 2.2
1
On October 27, 2014, the PCRA court granted Perkins’ petition to reinstate
his right to appeal the denial of his PCRA petition nunc pro tunc.
2
We note that Perkins also attempts to raise the following issue:
Whether the PCRA [c]ourt committed legal error and
abused its discretion in dismissing [Perkins’ PCRA
petition] in that trial counsel was ineffective for
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We begin by acknowledging that “[o]ur standard of review regarding a
PCRA court’s order is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error.”
Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011). “The
PCRA court’s findings will not be disturbed unless there is no support for the
findings in the certified record.” Id.Perkins asserts that trial counsel was ineffective for failing to introduce
written statements and correspondence from two of the alleged victims,
G.S.B. and A.S.B., in which the minor girls recanted or retracted several of
their allegations against Perkins. See Perkins’ Brief at 10-11. In deciding
failing to present [the] trial testimony of Frank
Bruno, Loretta Bruno, Rachel Bruno, Thomas
Younger and Judith Brandt?
Perkins’ Brief at 2. Perkins, however, has waived this issue on appeal for
failure to set forth any argument in support of the issue. See
Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (“[W]here an
appellate brief fails to provide any discussion of a claim with citation to
relevant authority or fails to develop the issue in any other meaningful
fashion capable of review, that claim is waived.”); Bolick v.
Commonwealth, 69 A.3d 1267, 1269 (Pa. Super. 2013) (finding an issue
raised on appeal waived because the appellant failed to present any
argument), appeal denied, 84 A.3d 1061 (Pa. 2014).
Though the PCRA court compelled the introduction of evidence on the issue,
we are perplexed as to why PCRA counsel decided to raise the issue as PCRA
counsel has consistently maintained it is meritless. See Perkins’ Brief at 4-
9; N.T., 11/7/13, at 2-3; Supplement to Motion for Post Conviction Collateral
Relief, 8/5/13, at 5-8. Nevertheless, based upon our review, we agree with
both the PCRA court’s and PCRA counsel’s assessment that it is meritless.
Because PCRA counsel has raised another issue in which he advocates on
Perkins’ behalf, it is clear that PCRA counsel has not abandoned Perkins.
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ineffective assistance of counsel claims, we begin with the presumption that
counsel rendered effective assistance. Commonwealth v. Bomar, 104
A.3d 1179, 1188 (Pa. 2014). To overcome that presumption, the petitioner
must establish: “(1) the underlying claim has arguable merit; (2) no
reasonable basis existed for counsel’s action or failure to act; and (3) the
petitioner suffered prejudice as a result of counsel’s error, with prejudice
measured by whether there is a reasonable probability that the result of the
proceeding would have been different.” Id. (citation omitted). To
demonstrate prejudice in an ineffective assistance of counsel claim, “the
petitioner must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have
been different.” Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012). If
the petitioner fails to prove any of these prongs, the claim is subject to
dismissal. Bomar, 104 A.3d at 1188.
We conclude that this issue is meritless. At trial, trial counsel
extensively cross-examined victims G.S.B. and A.S.B. regarding falsely
bringing these allegations of sexual misconduct against Perkins and how
they later wrote statements recanting those allegations. N.T., 9/19/11, at
73-79, 109-14. Additionally, trial counsel introduced into evidence several
statements reflecting G.S.B.’s and A.S.B.’s recantations. See id.
Accordingly, the additional written statements and correspondence that
Perkins contends trial counsel should have introduced were cumulative of
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other evidence introduced at trial. Our Supreme Court has held that an
ineffective assistance of counsel claim fails for lack of prejudice where a
defendant argues that trial counsel was ineffective for failing to introduce
evidence cumulative of already admitted testimony. See Commonwealth
v. Miller, 987 A.2d 638, 668 (Pa. 2009) (holding claim that trial counsel was
ineffective for failing to obtain and introduce the appellant’s drug records
failed for lack of prejudice because the drug records were cumulative of
evidence already introduced regarding the appellant’s substance abuse
problems). Accordingly, this issue does not entitle Perkins to any relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/11/2015
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