Com. v. Spencer, R. ( 2020 )

J-S22036-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICHARD SPENCER :
:
Appellant : No. 1698 MDA 2019
Appeal from the PCRA Order Entered September 18, 2019
In the Court of Common Pleas of Bradford County Criminal Division at
No(s): CP-08-CR-0000585-2017
BEFORE: OLSON, J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED JUNE 12, 2020
Appellant, Richard Spencer, appeals from the order entered
September 18, 2019, that dismissed his first petition filed under the Post
Conviction Relief Act (“PCRA”)1 without a hearing. We affirm.
[On April 4, 2018,] a jury convicted [Appellant] of indecent assault
of a child (less than 13 years of age), and indecent assault of a
child (less than 16 years of age and the defendant is four or more
years older).1 . . .
1 18 Pa.C.S.A. § 3126(a)(7) and (8).
The trial court sentenced Appellant to an aggregate 12 to 60
months of incarceration on June 28, 2018. Appellant filed [a]
timely appeal[.]
Commonwealth v. Spencer, No. 1238 MDA 2018, unpublished
memorandum at 1 (Pa. Super. filed April 9, 2019). This Court affirmed
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541–9546.
J-S22036-20
Appellant’s judgment of sentence on April 9, 2019. Id. On July 8, 2019,
Appellant filed his first, timely PCRA petition, alleging ineffective assistance of
trial counsel. On August 23, 2019, the PCRA court entered a notice of intent
to dismiss all claims without a hearing pursuant to Pa.R.Crim.P. 907 and an
opinion in support thereof, and, on September 12, 2019, Appellant filed a
response thereto. On September 18, 2019, the PCRA court dismissed
Appellant’s petition. On October 15, 2019, Appellant filed this timely appeal.2
Appellant presents the following issues for our review:
[1.] Whether the [PCRA] court erred by failing to grant
[Appellant] relief due to ineffective assistance of counsel?
[2.] Whether the [PCRA] court erred by summarily dismissing
[Appellant]’s PCRA Petition and Motion for PCRA Hearing pursuant
to Rule of Criminal Procedure 907(1)?
Appellant’s Brief at 5 (issues re-ordered to facilitate disposition) (suggested
answers omitted).
We review the denial of PCRA relief to decide whether the PCRA
court’s factual determinations are supported by the record and are
free of legal error. . . .
Counsel is presumed to be effective.
To overcome this presumption, a PCRA petitioner must plead and
prove that: (1) the underlying legal claim is of arguable merit;
(2) counsel’s action or inaction lacked any objectively reasonable
basis designed to effectuate his client’s interest; and
____________________________________________
2 The PCRA court did not order and Appellant did not file a statement of errors
complained of on appeal. On November 7, 2019, the trial court entered a
statement that its opinion dated August 23, 2019, would serve as its opinion
pursuant to Pa.R.A.P. 1925(a).
-2-
J-S22036-20
(3) prejudice, to the effect that there was a reasonable probability
of a different outcome if not for counsel’s error.
A failure to satisfy any of the three prongs of this test requires
rejection of a claim of ineffective assistance.
Commonwealth v. Medina, 209 A.3d 992, 996, 1000 (Pa. Super. 2019)
(internal brackets, citations, and quotation marks omitted) (some additional
formatting), reargument denied (July 17, 2019).
Appellant alleges “four (4) separate instances of ineffectiveness [of trial
counsel] that arose during trial.” Appellant’s Brief at 16. Specifically,
Appellant contends that trial counsel “failed to properly address” the following
“incidents”:
[1.] At the outset of trial the court referred to the princip[al]
witnesses as “victims” in its comments to the jury.
[2.] Thereafter, during cross examination of a defense character
witness, the Commonwealth asked a highly prejudicial and
unsubstantiated question, “[a]nd you have heard from other
people . . . that [Appellant] has groped young girls”.
[3.] The Commonwealth then attempted to introduce a
document to show that [Appellant] intended to plead guilty.
[4.] Finally, despite an agreement to sequester witnesses, the
Commonwealth called two persons who had been present in the
courtroom to contradict defense witnesses.
Appellant’s Brief at 12 (some formatting); see also id. at 16, 19, 23-24; PCRA
Petition, 7/8/2019, at ¶ 5 (same).
Preliminarily, we note that Appellant raised the above first and fourth
underlying legal claims on direct appeal, and this Court concluded that both
challenges were meritless. Spencer, No. 1238 MDA 2018, at 4, 6, 9.
Accordingly, Appellant cannot establish that “the underlying legal claim[s are]
-3-
J-S22036-20
of arguable merit” and, consequently, cannot overcome the presumption that
counsel was effective. Medina, 209 A.3d 992 at 1000.
Appellant’s second issue focuses on an exchange “during the
Commonwealth’s cross examination of a defense character witness,” where
the Commonwealth asked the witness if he had “heard from other people . . .
that [Appellant] has groped young girls[.]” Appellant’s Brief at 19 (citation to
the record omitted). In his appellate brief, Appellant states: “It is unknown
why this did not draw an objection from defense counsel.” Id. at 20-21.
Appellant has thereby admitted that he does not know whether the lack of an
objection by trial counsel had a “reasonable basis designed to effectuate his
client’s interest[.]” Medina, 209 A.3d at 1000. Appellant has therefore failed
to plead and to prove this prong of the ineffective assistance of counsel test,
and his entire claim based on the Commonwealth’s cross-examination of his
character witness founders. Id.3
Finally, Appellant contends that trial counsel was ineffective for failing
to object to the trial court’s decision to conduct a sidebar discussion about
Appellant’s waiver of his preliminary hearing “in proximity to the jury" and
“thereby prejudicing” Appellant. Appellant’s Brief at 23-24. However, we find
____________________________________________
3 Additionally, “the question about whether the witness had heard about
[Appellant] groping young girls was answered by the witness in the negative.”
PCRA Court Opinion, dated August 23, 2019, at 2. Thus, trial counsel may
have had an objectively reasonable basis for not objecting to the
Commonwealth’s question, because counsel anticipated that the witness
would answer negatively, which would be to Appellant’s benefit.
-4-
J-S22036-20
no reasonable basis for trial counsel to have requested that the trial court
clear the courtroom for a routine objection, and, as noted by the
Commonwealth, a sidebar, by definition, occurs in the “presence of the jury.”
Commonwealth’s Brief at 34 n.11. Also, as the trial court4 stated, the “matter
was quickly resolved in Appellant’s favor at sidebar, and, as a result, the
objectionable line of questioning did not occur. Appellant has nothing of which
to complain.” Trial Court Opinion, dated December 21, 2018, at 4. Appellant
has thus failed to prove that the legal claim underlying Appellant’s third
ineffectiveness has arguable merit or that Appellant was somehow prejudiced
by trial counsel’s action.
As Appellant is not entitled to PCRA relief on any of his challenges, he is
likewise not entitled to an evidentiary hearing on any of his claims, and, ergo,
the PCRA court properly disposed of this action without a hearing pursuant to
Pa.R.Crim.P. 907. See Medina, 209 A.3d at 999-1000 (citing
Commonwealth v. Postie, 200 A.3d 1015, 1022 (Pa. Super. 2018) (en banc)
(“A petitioner is not entitled to a PCRA hearing as a matter of right; the PCRA
court can decline to hold a hearing if there is no genuine issue concerning any
material fact, the petitioner is not entitled to PCRA relief, and no purpose
would be served by any further proceedings.”)); contra Appellant’s Brief at
13-15.
____________________________________________
4 Appellant had raised this underlying legal claim as part of his direct appeal,
but this Court found that challenge waived and did not address the merits of
this claim. See Spencer, No. 1238 MDA 2018, at 7.
-5-
J-S22036-20
Having discerned no error of law, we affirm the order below. See
Medina, 209 A.3d at 996.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/12/2020
-6-