Com. v. Tunsil, B. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
BARRETT TUNSIL :
:
Appellant : No. 942 EDA 2019
Appeal from the PCRA Order Entered February 26, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008448-2013
BEFORE: BOWES, J., McCAFFERY, J., and MUSMANNO, J.
MEMORANDUM BY McCAFFERY, J.: FILED: FEBRUARY 26, 2021
Barrett Tunsil (Appellant) appeals pro se from the order entered in the
Philadelphia County Court of Common Pleas, denying his timely first Post
Conviction Relief Act1 (PCRA) petition. After careful review, we conclude
Appellant’s issues are waived for failure to develop meaningful argument with
citation to or discussion of legal authority. Thus, we affirm the order. We also
remand for the PCRA court to notify Appellant of his registration requirements
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142 Pa.C.S. §§ 9541-9546. Appellant purported to appeal from the “March
15, 2019,” order denying his PCRA petition. However, the underlying order
was filed on February 26, 2019. We have amended the caption accordingly.
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under the Pennsylvania Sex Offender Registration and Notification Act2
(SORNA).
This Court previously summarized the trial evidence in this matter as
follows: when the victim was eight years old, she lived with her mother, sister,
Appellant — whom she referred to as her stepdad — and Appellant’s daughter.
From approximately 2009 to 2010,3 Appellant sexually abused the victim
by pulling her clothes down[,] inserting his finger into her vagina
and sucking on her breast. [Appellant] threatened to sell [the
victim] to drug dealers or feed her to the rats if she told anyone.
[The victim] estimated that she was sexually assaulted more than
five (5) times between the age of eight (8) and nine (9) while
residing in [Appellant’s] home.
[Appellant also] punish[ed] [the victim] by pulling down her
pants and spanking her with his bare hand. He would lock her in
the basement in the dark prompting her to scream and kick on
the door because she was so frightened. It wasn’t until [the
victim] was removed from the home and placed with a foster
family that she was comfortable enough to reveal the depravity
she had endured.
[Appellant] testified and denied ever touching or abusing [the
victim].
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2 42 Pa.C.S. §§ 9799.10 to 9799.75.
3The victim was born in 2001, and the abuse occurred when she was eight to
nine years old. See N.T. Trial, 10/2/14, at 5, 22. See also Criminal
Complaint, 6/19/12, at 1 (alleging date of offense as January 1, 2011).
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Commonwealth v. Tunsil, 1990 EDA 2016 (unpub. memo. at 2) (Pa. Super.
Dec. 8, 2017) (citation omitted) (direct appeal), appeal denied, 8 EAL 2018
(Pa. May 21, 2018).
Following a jury trial, Appellant was found guilty, on October 6, 2014,
of aggravated indecent assault of a child, indecent assault of a person less
than 13, endangering the welfare of a child (EWOC), corruption of minors, and
unlawful contact with a minor.4 On April 25, 2016, the trial court found
Appellant was a sexually violent predator (SVP) under SORNA. See Tunsil,
1990 EDA 2016 (unpub. memo. at 30-31). On that same day, the court also
sentenced Appellant to an aggregate term of 25 to 54 years’ imprisonment.5
Id. at 31.
Appellant took a direct appeal, and, on December 8, 2017, this Court
affirmed his convictions and sentences. However, this Court reversed the trial
court’s finding that Appellant was an SVP, pursuant to the then-recent
Superior Court decision in Commonwealth v. Butler, 173 A.3d 1212 (Pa.
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4 18 Pa.C.S. § 3125(b), 3126(a)(7), 4304(a)(1), 6301(a)(1)(i), 6318(a)(1).
5 Specifically, the trial court imposed: (1) consecutive terms of nine to 20
years’ imprisonment for aggravated indecent assault and unlawful contact
with a minor; (2) a consecutive term of 3.5 to seven years’ imprisonment for
EWOC; (3) a consecutive term of 2.5 to five years’ imprisonment for
corruption of minors; and (4) a consecutive term of one to two years’
imprisonment for indecent assault.
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Super. 2017) (Butler I), rev’d, 226 A.3d 972 (Pa. 2020) (Butler II).6 This
Court thus remanded for the trial court to issue appropriate notice under 42
Pa.C.S. § 9799.23 (“Court notification and classification requirements”) of
Appellant’s SORNA registration requirements. Appellant sought allowance of
appeal with our Supreme Court, which was denied on May 21, 2018.
Meanwhile, on December 21, 2017, the trial court conducted a hearing
and vacated Appellant’s “SVP designation and life registration.” PCRA Ct. Op.,
8/29/19, at 1; N.T., 12/21/17, at 11-12. The parties agreed no further
registration requirements applied to Appellant because of “recent case law”
prohibiting “retroactive application.”7 N.T., 12/21/17, at 10-12. The court
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6 In Butler I, this Court concluded: “[S]ection 9799.24(e)(3) of SORNA
violates the federal and state constitutions because it increases the criminal
penalty to which a defendant is exposed without the chosen fact-finder making
the necessary factual findings beyond a reasonable doubt.” Butler I, 173
A.3d at 1218. See 42 Pa.C.S. § 9799.24(e)(3) (“At [an SVP hearing], the
court shall determine whether the Commonwealth has proved by clear and
convincing evidence that the individual is a sexually violent predator.”).
In a decision issued after Appellant’s PCRA petition in this case was filed,
our Supreme Court reversed this Court’s decision. The Court held the
registration and notification provisions applicable to SVPs “do not constitute
criminal punishment and therefore the procedure for designating individuals
as SVPs under Section 9799.24(e)(3) is not subject to the requirements of
Apprendi and Alleyne and remains constitutionally permissible.” Butler II,
226 A.3d at 976. See Alleyne v. United States, 570 U.S. 99 (2013);
Apprendi v. New Jersey, 530 U.S. 466 (2000).
7Although no particular decisional authority was cited, we surmise the parties
may have been referring to Commonwealth v. Muniz, 164 A.3d 1189 (Pa.
2017) (plurality) (SORNA requirements have punitive effect and retroactive
application constitutes ex post facto violation) (discussed infra).
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thus did not advise Appellant of any further registration requirements. See
id. at 11-12.
On July 23, 2018, Appellant filed a timely, pro se first PCRA petition.8
He raised a litany of broad or vague challenges to trial evidentiary rulings, the
alleged denial of a fair and impartial trial, and the alleged collusion between
the trial court, prosecutor, and his trial defense attorney to “orchestrate [his]
conviction/sentence.” Appellant’s Motion for Post Conviction Collateral Relief,
7/23/18, at 3-4. The petition also averred trial counsel “frequently failed to
adequately represent [Appellant] professionally, legally, morally.” Id. at 5.
The PCRA court appointed counsel to represent Appellant; that attorney,
however, was permitted to withdraw due to his acceptance of a new law
position. James Marsh, Esquire, was subsequently appointed to represent
Appellant. He filed a Turner/Finley9 “no-merit” letter and petition to
withdraw on December 18, 2018. On the same day, the PCRA court gave
Pa.R.Crim.P. 907 notice of intent to dismiss the PCRA petition without a
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8 As stated above, the Pennsylvania Supreme Court denied Appellant’s petition
for allowance of appeal on May 21, 2018. For PCRA purposes, his judgment
of sentence became final 90 days thereafter, on Monday, August 20, 2018,
when the period for seeking certiorari with the United States Supreme Court
expired. See 42 Pa.C.S. § 9545(b)(3); Sup. Ct. R. 13. Appellant then
generally had one year, or until August 20, 2019, to file a PCRA petition. See
42 Pa.C.S. § 9545(b)(1).
9Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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hearing. On February 26, 2019, the court issued the underlying order denying
Appellant’s PCRA petition, and permitting Attorney Marsh to withdraw.
Appellant filed a timely pro se notice of appeal on March 15, 2019. On
May 2, 2019, the PCRA court ordered Appellant to file a Pa.R.A.P. 1925(b)
statement within 21 days. The order properly directed Appellant to both file
a statement of record and serve a copy on the court, and stated “[a]ny issue
not properly included in a timely filed and properly served 1925(b) Statement
shall be deemed waived.” Order, 5/2/19. See Pa.R.A.P. 1925(b)(1), (3)(iv),
(4)(vii); Commonwealth v. Chester, 163 A.3d 470, 472 (Pa. Super. 2017)
(“[A]n appellant’s failure to comply with a trial court’s Rule 1925(b) Order
results in a waiver of all issues on appeal.”). The corresponding docket entry
for the court’s order, however, did not identify on whom the order was served,
nor the manner and date of service, as required by Pa.R.Crim.P. 114. See
Pa.R.Crim.P. 114(C)(2)(c) (“The docket entries shall contain . . . the date of
service of the order or court notice.”).
The PCRA court’s opinion states Appellant “filed” a Rule 1925(b)
statement on May 22, 2019. PCRA Ct. Op. at 2. The trial docket, however,
does not include any entry for such a filing, and upon informal inquiry by this
Court, the trial court clerk confirmed it did not have any Rule 1925(b)
statement from Appellant. Nevertheless, the PCRA court has provided a copy
of the statement that it received; the face of the statement bears the stamp,
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“Received in Chambers, May 22, 2019, Hon. Gwendolyn Bright.” Appellant’s
Concise Statement of the Errors: Cover” (all-capitalization removed).
After careful review of the record before us, we decline to find
Appellant’s issues waived for failure to file a Rule 1925(b) statement with the
trial court clerk of courts. See Chester, 163 A.3d at 472 (declining to find
waiver where the trial docket failed to indicate the date of service of the Rule
1925(b) order, in violation of Pa.R.Crim.P. 114(C)(2)).
Nevertheless, we conclude Appellant’s issues are waived for failure to
develop them or cite the record or any legal authority. See Commonwealth’s
Brief at 7 (arguing same). By way of background, we note that three days
prior to trial, the trial court granted Appellant’s request to proceed pro se, and
directed that trial counsel serve as back-up counsel at trial. N.T., 9/29/14, at
19-20. However, trial counsel conducted the examination of witnesses and
gave the closing argument.10
Appellant’s pro se, handwritten brief spans six pages and, like his PCRA
petition, presents a wide-ranging list of broad or vague claims. For example,
Appellant avers the following: (1) he never received a subpoena nor a trial
date, and instead, on the day of trial, he was simply “suddenly awaken[ed] in
the prison” and told “to ‘fill the bus;’” (2) “to ‘hide and cover up’ the egregious
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10 The opening arguments are not included in the trial transcripts transmitted
to this Court.
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and criminal behaviors/conduct by [the trial court] and other perpetrators in
their attempts to deny [Appellant] a fair trial, [the trial court] ordered . . . the
original trial transcripts to be [voided] and a[n] incorrect/false 2nd transcript
[be] produced;” (3) trial counsel refused his telephone calls for more than 20
months, and “‘refused’ to investigate-interview-check records-subpoena
witnesses;” (4) “in (approxl.) May 2012[, Appellant] was ‘illegally’ declared
‘mentally incompetent’ to stand trial;” and (5) the trial court, prosecutor, trial
counsel, and county jail administrators “produced and manufactured
documents/medical records.” Appellant’s Brief at 1-3. Appellant does not
discuss nor cite any legal authority, and to the extent his brief raises claims
of trial counsel’s ineffectiveness, he does not present any argument his
underlying claim has arguable merit, there was no reasonable basis for trial
counsel’s actions, or he suffered prejudice. See Commonwealth v. Treiber,
121 A.3d 435, 445 (Pa. 2015) (elements of ineffective assistance of counsel
claim).
We conclude Appellant’s failure to develop a meaningful argument with
citation to relevant, legal authority on any claim waives them on appeal. See
Commonwealth v. Martz, 232 A.3d 801, 811 (Pa. Super. 2020). This Court
has stated:
[Pennsylvania Rule of Appellate Procedure 2119] state[s]
unequivocally that each question an appellant raises is to be
supported by discussion and analysis of pertinent authority.
Appellate arguments which fail to adhere to these rules may be
considered waived, and arguments which are not appropriately
developed are waived. Arguments not appropriately developed
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include those where the party has failed to cite any authority in
support of a contention. This Court will not act as counsel and will
not develop arguments on behalf of an appellant. [M]ere issue
spotting without analysis or legal citation to support an assertion
precludes our appellate review of [a] matter.
Id. (citation omitted). Accordingly, we affirm the order denying Appellant’s
PCRA petition.
At this juncture, we sua sponte address Appellant’s SORNA registration
requirements. As stated above, in this Court’s December 8, 2017, direct
appeal memorandum, we reversed Appellant’s SVP designation. Tunsil, 1990
EDA 2016 at 30-31. On remand, the trial court conducted a hearing on
December 21, 2017, at which the parties agreed that pursuant to unspecified
“recent case law,” the retroactive application of “Megan’s Law II” was
unconstitutional. See N.T., 12/21/17, at 10-12. We note that six months
earlier, the Pennsylvania Supreme Court issued a decision in Muniz, holding
the retroactive application of SORNA violated the ex post factor clauses of the
federal and Pennsylvania Constitutions. See Muniz, 164 A.3d at 1193
(plurality).
Since Appellant’s December 21, 2017, SORNA hearing, however, our
legislature has amended SORNA:
In response to Muniz and Butler I, the General Assembly enacted
Act 10 . . . Act 10 split SORNA, which was previously designated
in the Sentencing Code as Subchapter H into two subchapters.
Revised Subchapter H[11] applies to crimes committed on or after
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11 42 Pa.C.S. §§ 9799.10 to 9799.42.
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December 20, 2012, whereas Subchapter I[12] applies to
crimes committed after April 22, 1996, but before
December 20, 2012. In essence, Revised Subchapter H retained
many of the provisions of SORNA, while Subchapter I imposed
arguably less onerous requirements on those who committed
offenses prior to December 20, 2012, in an attempt to address
this Court’s conclusion in Muniz that application of the original
provisions of SORNA to these offenders constituted an ex post
facto violation.
Commonwealth v. Torsilieri, 232 A.3d 567, 580-81 (Pa. 2020) (emphases
added and footnote omitted).
Based on the fact Appellant committed the underlying offenses in
approximately 2009 and 2010 — before December 20, 2012 — he is subject
to Subchapter I. See 42 Pa.C.S. § 9799.54(a) (“The following individuals
shall register . . . .”), (b) (“Neither failure on the part of the Pennsylvania
State Police to send nor failure of an individual to receive notice or information
under this paragraph shall relieve the individual of the requirements of this
subchapter.”); Commonwealth v. Lacombe, 234 A.3d 602, 626-27 (Pa.
2020) (Subchapter I does not constitute criminal punishment and ex post
facto challenges are meritless). Accordingly, upon remand of the record, the
PCRA court shall notify Appellant of his registration requirements.
Order affirmed. Case remanded with instructions. Jurisdiction
relinquished.
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12 42 Pa.C.S. §§ 9799.51 to 9799.75.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/26/21
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