Com. v. Hawchar, R. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
RABIH HAIDAR HAWCHAR :
:
Appellant : No. 673 WDA 2020
Appeal from the PCRA Order Entered July 15, 2020
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0007016-2015
BEFORE: DUBOW, J., MURRAY, J., and STRASSBURGER, J.*
MEMORANDUM BY MURRAY, J.: FILED: MARCH 18, 2021
Rabih Haidar Hawchar (Appellant) appeals from the order dismissing his
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.
§§ 9541-9546. We affirm.
In a prior decision affirming Appellant’s judgment of sentence, we
summarized the underlying facts and procedure:
[T]he evidence presented at Appellant’s jury trial demonstrated
that he sexually assaulted his stepson over the course of several
years, beginning when the child was nine and ending just before
the child turned thirteen. During these years, Appellant would
abuse the victim three to four times a week, including raping the
child and forcing the child to perform oral sex on him. The child
finally admitted the abuse to his mother.
Appellant was arrested and charged with numerous sexual
offenses. Following a jury trial from November 13–17, 2015, the
jury convicted Appellant of two counts each of rape of a child (18
Pa.C.S. § 3121(c)), involuntary deviate sexual intercourse with a
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* Retired Senior Judge assigned to the Superior Court.
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child, (18 Pa.C.S. § 3123(b)), and indecent assault of a child less
than 13 years of age (18 Pa.C.S. § 3126(a)(7)). Appellant was
also convicted of single counts of unlawful contact with a minor
(18 Pa.C.S. § 6318(1)), sexual assault (18 Pa.C.S. § 3124.1), and
endangering the welfare of a child (18 Pa.C.S. § 4304(a)(1)).
On February 3, 2016, Appellant was sentenced to consecutive
terms of 10 to 20 years’ incarceration for his rape convictions, as
well as concurrent terms of 10 to 20 years’ incarceration for each
of the two counts of involuntary deviate sexual intercourse. The
court also directed that Appellant adhere to a lifetime registration
requirement under the Sexual Offender Registration and
Notification Act, 42 Pa.C.S. §§ 9799.10–9799.41. No further
penalty was imposed for Appellant’s remaining convictions.
Commonwealth v. Hawchar, No. 334 WDA 2016, at *1 (Pa. Super. July 6,
2017) (unpublished memorandum).
As noted, this Court affirmed Appellant’s judgment of sentence.
Appellant did not petition the Supreme Court for allowance of appeal. On June
6, 2018, Appellant pro se filed the underlying PCRA petition. The court
appointed counsel, who filed an amended petition on January 7, 2019. The
Commonwealth filed an answer on February 6, 2019. On June 10, 2020, the
PCRA court issued notice of intent to dismiss pursuant to Pa.R.Crim.P. 907,
and on July 15, 2020, the court entered the order dismissing the petition.
Appellant filed this appeal.1 Both the PCRA court and Appellant have complied
with Pa.R.A.P. 1925.
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1 Appellant appears to have filed his July 8, 2020 notice of appeal in response
to the PCRA court’s Rule 907 notice issued on June 10, 2020, rather than the
order dismissing the petition on July 15, 2020. Although the filing was
premature, the appeal is properly before us pursuant to Pa.R.A.P.
905(5)(a)(5) (“a notice of appeal filed after the announcement of the
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Appellant presents three issues for our review:
I. Did the trial court err when it denied the request for a new
trial in Appellant’s amended PCRA petition due to trial
counsel’s ineffectiveness for failing to file a brief in support
of the Motion for Review of Alleged Victim’s Records?
II. Did the trial court err when it denied the request for a new
trial in Appellant’s amended PCRA petition due to appellate
counsel’s ineffectiveness for failing to file post-sentencing
motions?
III. Did the trial court err when it denied the request for a new
trial in Appellant’s amended PCRA petition due to appellate
counsel’s ineffectiveness for failing to appropriately
challenge Appellant’s designation as a Sexually Violent
Predator?
Appellant’s Brief at 4.
Our standard of review of an order denying PCRA relief is whether the
record supports the PCRA court’s determination, and whether the
determination is free of legal error. Commonwealth v. Hernandez, 79 A.3d
649, 651 (Pa. Super. 2013). “The PCRA court’s findings will not be disturbed
unless there is no support for the findings in the certified record.” Id.With regard to a petitioner’s claim of counsel’s ineffectiveness:
It is well-settled that counsel is presumed to have been effective
and that the petitioner bears the burden of proving counsel’s
alleged ineffectiveness. To overcome this presumption, a
petitioner must establish that: (1) the underlying substantive
claim has arguable merit; (2) counsel did not have a reasonable
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determination but before the entry of an appealable order shall be treated as
filed after such entry and on the day thereof”). See also Commonwealth v.
Swartzfager, 59 A.3d 616, 618 (Pa. Super. 2012) (although initially
premature, appeal filed in response to the court’s Rule 907 notice of intent to
dismiss need not be quashed).
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basis for his or her act or omission; and (3) the petitioner suffered
prejudice as a result of counsel’s deficient performance, that is, a
reasonable probability that but for counsel’s act or omission, the
outcome of the proceeding would have been different.
A PCRA petitioner must address each of these prongs on appeal.
A petitioner’s failure to satisfy any prong of this test is fatal to the
claim.
Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018) (citations
omitted).
In his first issue, Appellant argues trial counsel was ineffective for failing
“to file a brief after being instructed to do so” by the trial court. Appellant’s
Brief at 12. Appellant states that he filed a pre-trial “motion for review of
alleged victim’s records,” and broadly asserts that “had counsel filed the brief,
[the motion] would have been granted[.]” Id.This argument lacks merit. First, it is undeveloped. Appellant does not
cite the record or legal authority to support his claim. We have explained:
When an appellant cites no authority supporting an argument, this
Court is inclined to believe there is none. See Pa. R.A.P. 2119(a)
and (b) (requiring an appellant to discuss and cite pertinent
authorities); Commonwealth v. Antidormi, 84 A.3d 736, 754
(Pa.Super.2014) (finding issue waived because the appellant
“cited no legal authorities nor developed any meaningful
analysis”).
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 781 (Pa. Super. 2015)
(en banc).
We could find Appellant’s issue waived. See Commonwealth v. Zewe,
663 A.2d 195, 199 (Pa. Super. 1995) (the argument section of an appellant’s
brief must include relevant discussion of the points raised along with citation
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to pertinent authorities); Commonwealth v. Owens, 750 A.2d 872, 877 (Pa.
Super. 2000) (failure to cite case law or other legal authority in support of an
argument results in waiver). However, in the absence of waiver, the issue
has no merit.
The PCRA court judge, who also presided at Appellant’s jury trial,
explained that Appellant’s motion was argued at a pre-trial hearing, where the
court “explained to counsel for Appellant in order to grant the motion,
Appellant must first show the proposed evidence was relevant.” PCRA Court
Opinion, 8/28/20, at 4 (citations to transcript omitted). The court instructed
Appellant to file a brief after the hearing. Id. When Appellant failed to do so,
the court found the issue waived. However, the court subsequently conducted
its own research, and citing prevailing legal authority as to relevance, the
Rape Shield Act, hearsay, and therapist-client privilege, and concluded
“[s]ince Appellant had no legal basis to obtain the evidence requested in the
Pre-Trial Motion, counsel’s failure to file a brief in support thereof does not
constitute ineffective assistance.” Id. at 4-5.2 Upon review, we find no error
in the PCRA court’s conclusion that “counsel’s failure to brief a meritless issue
does not constitute ineffective assistance.” Id.
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2 In contrast to Appellant’s cursory argument, the Commonwealth has set
forth a comprehensive discussion rebutting the argument, and expanding on
the PCRA court’s discussion of pertinent legal authority and determination that
this issue does not merit relief. See Commonwealth Brief at 11-17.
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In his next issue, Appellant argues that appellate counsel was ineffective
for failing to file post-sentence motions. Appellant’s Brief at 9. Appellant’s
argument is approximately one page in length. See id. at 13-14. He explains
that at the conclusion of sentencing, trial counsel verbally requested to
withdraw from representation, and the court granted the request and verbally
appointed the Public Defender’s Office to represent Appellant. The court
formalized the appointment the next day, by order dated February 4, 2016.
Appellant “submits he wanted to file post-sentencing motions and that he did
not speak with appellate counsel within the time period in which post-sentence
motions needed to be filed.” Id. He contends:
Appellate counsel had no reasonable basis for failing to file
post-sentencing motions. Had appellate counsel filed post-
sentencing motions challenging the weight of the evidence
Appellant contends said motion would have been granted.
Appellant argues the evidence presented at trial was insufficient
and the jury’s verdict against the weight of the evidence for the
following reasons:
a. The alleged victim’s testimony was extremely vague. No
specific dates or times were provided. Victim was
impeached at trial and was so unreliable that the jury
should not have convicted; and
b. Not only was the victim’s testimony contradictory in
regards to his testimony at the preliminary hearing, trial,
and the forensic interview, it was also contradictory with
parts of his mother’s testimony.
Id. at 14.
Again, Appellant has failed to develop his argument beyond conclusory
and baseless assertions. See id. at 13-14. As we stated above, “when an
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appellant cites no authority supporting an argument, this Court is inclined to
believe there is none.” Reyes-Rodriguez, 111 A.3d at 781. Appellant does
not cite to the record or law, nor does he explain how the evidence was vague,
unreliable and contradictory. Appellant’s second issue is waived.
Waiver notwithstanding, we recognize “[t]he weight of the evidence is
exclusively for the finder of fact who is free to believe all, part, or none of the
evidence and to determine the credibility of the witnesses.” Commonwealth
v. Champney, 832 A.2d 403, 408 (Pa. 2003) (citation omitted). “Issues of
witness credibility include questions of inconsistent testimony and improper
motive.” Commonwealth v. Jacoby, 170 A.3d 1065, 1080 (Pa. 2017)
(citation omitted). “A new trial should not be granted because of a mere
conflict in the testimony[.]” Commonwealth v. Clay, 64 A.3d 1049, 1055
(Pa. 2013). In reviewing a challenge to the weight of the evidence, the trial
court will not overturn a verdict unless it is “so contrary to the evidence as to
shock one's sense of justice.” Commonwealth v. Diggs, 949 A.2d 873, 879
(Pa. 2008). A trial court’s decision as to whether a verdict was or was not
against the weight of the evidence is one of the least assailable of its
rulings. Diggs, 949 A.2d at 879-80.
The PCRA court, having presided at Appellant’s jury trial, opined:
The victim testified at trial that Appellant sexually assaulted
him from the time he was nine until he was thirteen. (TT 66-82).
This testimony, if deemed credible by the trier of fact, is sufficient
to support the convictions. Commonwealth v. Trimble, 615
A.2d 48, 50 (Pa. Super. 1992). The jury, by convicting Appellant
on all counts, found the victim credible and this Court concurs. As
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such, any motion based on the weight of the evidence would have
been meritless, and counsel cannot be deemed ineffective for
failing to raise a frivolous motion.
PCRA Court Opinion, 8/28/20, at 6.
For the above reasons, we find no merit to Appellant’s second issue.
Finally, in his third issue, Appellant assails appellate counsel’s failure to
challenge his Sexually Violent Predator (SVP) designation.3 Appellant cites a
single case, Commonwealth v. Meals, 912 A.2d 213, 217 (Pa. 2006), to
support his claim that appellate counsel “had no reasonable basis for failing
to appeal the SVP designation.” Appellant’s Brief at 14-15. Appellant asserts,
“[h]ad appellate counsel properly raised the issue, Appellant would not have
been designated a[n] SVP because:
a. There were not multiple victims;
b. Appellant didn’t exceed the means necessary to achieve the
offense;
c. Victim was not a stranger to Appellant;
d. There was no display of unusual cruelty;
e. There was nothing abnormal about the mental capacity of
victim;
f. Appellant has no prior criminal record of any kind, including of
a sexual nature, therefore, Appellant has not completed any
prior sentences, nor was he required to attend any programs
for sexual offenders;
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3In Commonwealth v. Butler, 226 A.3d 972 (Pa. 2020) (Butler II), the
Pennsylvania Supreme Court held that an SVP determination under SORNA is
not punishment and not unconstitutional. Butler II, 226 A.3d at 993.
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g. There is no reason to think Appellant would be unable to
successfully complete a sexual offender program or a
sentence;
h. There were no allegations of drug use or alcohol abuse;
i. Appellant has no history of mental illness, disability, or
abnormality; and
j. No weapons or violence were used.”
Appellant’s Brief at 15.
Appellant continues:
In Meals, the Court noted its belief that some of the statutory
factors “weighed against” a finding that the defendant was an SVP,
particularly that the offense did not involve multiple victims or
force or cruelty, it was the defendant’s first sexual offense, the
offense did not involve alcohol or illicit drugs, and there was no
evidence in the record of prior mental health problems or deviant
sexual behavior. Taking all of these factors into consideration the
Commonwealth did not prove with clear and convincing evidence
that Appellant should be designated a Sexual Violent Predator.
Appellant’s Brief at 15-16.
The decision in Meals does not support Appellant’s argument, where
the Supreme Court reversed this Court’s reversal of the trial court’s
determination that the defendant was an SVP. In reinstating the defendant’s
designation as an SVP, Justice Castille wrote:
The issue on appeal is the proper role of an appellate court in
reviewing a sentencing court’s classification of a criminal
offender as a sexually violent predator (“SVP”) under Megan’s
Law II. We find that the Superior Court erred in reweighing
the SVP evidence presented to the trial court, rather than
simply assessing the legal sufficiency of the proof
respecting SVP status accepted by the trial court, and
further erred in requiring greater proof than is required by the
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statute. Accordingly, we reverse the order below and reinstate the
trial court’s SVP designation.
Commonwealth v. Meals, 912 A.2d 213, 214 (Pa. 2006) (footnote omitted).
Contrary to Meals, Appellant impermissibly asks us to reweigh the
evidence in his favor. See Appellant’s Brief at 16 (“Taking [the] factors [in
Meals] into consideration the Commonwealth did not prove with clear and
convincing evidence that Appellant should be designated a Sexually Violent
Predator.”). As the Supreme Court emphasized, that is not our role. Meals,
912 A.2d at 214.
Moreover, the record supports the PCRA court’s conclusions. The court
explained:
Appellant alleges that counsel was ineffective for failing to raise
and argue that the SVP classification was not supported by clear
and convincing evidence. Counsel for Appellant did raise the issue
on direct appeal, but dropped the issue at the Superior Court level
after this [c]ourt deemed the issue waived. Appellant failed to file
a separate Notice of Appeal for the July 29, 2016 Order of Court
which designated him as a Sexually Violent Predator.
***
Had this Court reached the merits of the underlying claim,
it would have concluded that the SVP designation was supported
by clear and convincing evidence.
In order to affirm an SVP designation, we, as a
reviewing court, must be able to conclude that the
fact-finder found clear and convincing evidence that
the individual is an SVP. As with any sufficiency of the
evidence claim, we view all evidence and reasonable
inferences therefrom in the light most favorable to the
Commonwealth. We will reverse a trial court’s
determination of SVP status only if the
Commonwealth has not presented clear and
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convincing evidence that each element of the statute
has been satisfied.
Commonwealth v. Baker, 24 A.3d 1006, 1033 (Pa. Super.
2011), aff’d, 78 A.3d 1044 (Pa. 2013).
This [c]ourt notes that its finding of SVP status was
supported by clear and convincing evidence, including the
uncontroverted testimony and report of the Commonwealth’s
expert, Dr. Allen Pass. Dr. Pass concluded that Appellant had the
diagnosis of pedophilic disorder and his criminal misconduct over
a period of four years constituted predatory behavior.
PCRA Court Opinion, 8/28/20, at 6-7 (citation to case law and footnote
omitted). Given the above reasoning, counsel was not ineffective because
Appellant’s issue regarding his SVP designation is meritless. See, e.g.,
Commonwealth v. Jones, 912 A.2d 268, 278 (Pa. 2006) (counsel cannot be
deemed ineffective for failing to raise a meritless claim).
For the reasons stated above, Appellant is not entitled to relief.
Order affirmed.
Judge Dubow joins the memorandum.
Judge Strassburger did not participate.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/18/2021
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