Com. v. Davis, M. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MELVIN DAVIS :
:
Appellant : No. 2406 EDA 2022
Appeal from the PCRA Order Entered August 29, 2022
In the Court of Common Pleas of Philadelphia County
Criminal Division at CP-51-CR-0015706-2013
BEFORE: NICHOLS, J., MURRAY, J., and McCAFFERY, J.
MEMORANDUM BY MURRAY, J.: FILED AUGUST 11, 2023
Melvin Davis (Appellant) appeals from the order dismissing his petition
for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.
§§ 9541-9546. We affirm.
During the summer of 2013, Complainant was 10 years old. She
frequented a playground near her home, where she met another young girl,
A. A. invited Complainant to her house, where Appellant, A.’s uncle, lived.
When A. went upstairs to use the restroom, Appellant approached
Complainant, pulled down her pants, and performed oral sex on her. Appellant
invited Complainant into the house on several other occasions, and he
sometimes gave Complainant money after he performed oral sex on her.
Appellant also penetrated Complainant with his fingers and penis.
Complainant eventually reported the crimes to her mother.
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The Commonwealth charged Appellant with unlawful contact with a
minor - relating to sexual offenses, corruption of minors, indecent assault -
complainant less than 13 years of age, and rape of a child. 1 The case
proceeded to a jury trial in May 2016. Relevant to this appeal, Appellant
requested a mistrial based on questions submitted by the jury during
deliberations.
This Court previously explained:
The record reflects that during deliberations, the jury
submitted the following question: “Are we to consider the
reactions of members of the audience?” The trial court’s answer
to the question was, “No.” The jury later submitted the following:
“It was observed by members of the jury that members of the
audience were coaching [Complainant] during her testimony.
That’s why we want to know if their reactions are to be
considered.” Appellant then moved for a mistrial, which the trial
court denied. The trial court then summoned the foreperson,
Juror No. 6, into chambers because the trial court saw the:
Need to ascertain what they’re referring to. Because
someone could be making a face that has nothing to do with
-- remember, there were people in this audience that had
nothing to do with this case, nothing, that were audience,
and they may have reacted to something because of what
they heard, and that could be perceived that way. So that’s
what I’m saying. We need to see what they’re talking about
before we jump ahead of ourselves and conclude that it’s
coaching when it could be a reaction, something they saw
in the audience from people who have nothing to do with
anything.
[N.T., 5/3/16,] at 97.
When the foreperson arrived in chambers, the following
colloquy took place:
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1 See 18 Pa.C.S.A. §§ 6318(a)(1), 6301(a)(1)(ii), 3126(a)(7), and 3121(c).
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THE COURT: Concerning Question No. 4, it was observed by
members of the jury that members of the audience were
coaching [Complainant] during her testimony, that’s why we
want to know if her reactions are to be considered, now,
what are you referring to?
JURY FOREPERSON: A couple members of the jury said they
saw whoever was sitting in the audience--
THE COURT: Who in the audience, like on what side?
JURY FOREPERSON: Wherever that group was that was
sitting back in the audience while [Complainant] was
testifying, they were, like, nodding to her or trying to coach
her in some kind of way.
….
[The jury foreperson did not personally observe any reactions in
the audience.] The trial court then excused the jury foreperson,
summoned each juror into chamber individually, and asked each
juror whether he or she had observed any behavior from the
audience. …
Commonwealth v. Davis, 209 A.3d 480 (Pa. Super. 2019) (unpublished
memorandum at 6-8) (some internal citations omitted).
During the individual colloquies, four jurors confirmed seeing two or
three people nodding during Complainant’s testimony. Id. (unpublished
memorandum at 8-9). Three of those jurors stated their observations would
not affect their ability to be impartial. Id. (unpublished memorandum at 8-
9). The fourth, Juror No. 12, told the trial court he believed the people in the
audience were coaching Complainant, and it made him “sick to [his] stomach.”
Id. (unpublished memorandum at 9) (citing N.T., 5/3/16, at 109).
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The trial court spoke to an alternate juror, who denied witnessing this
audience behavior and stated that he could proceed as an impartial and
unbiased juror. Id. (unpublished memorandum at 9). The trial court replaced
Juror No. 12 with the alternate juror and instructed the jury to restart
deliberations. Id. (unpublished memorandum at 10). Consequently, the trial
court denied the defense motion for mistrial.
The jury convicted Appellant of unlawful contact with a minor - relating
to sexual offenses, corruption of minors, indecent assault - complainant less
than 13 years of age, and rape of a child. The trial court sentenced Appellant
to an aggregate 25 to 50 years in prison. Appellant filed a post-sentence
motion, which was denied by operation of law.
This Court affirmed Appellant’s judgment of sentence on direct appeal.
Davis, 209 A.3d 480 (unpublished memorandum). The Pennsylvania
Supreme Court denied allowance of appeal. Commonwealth v. Davis, 218
A.3d 401 (Pa. 2019).
On October 6, 2020, Appellant pro se filed a timely PCRA petition. The
PCRA court appointed counsel, who filed an amended PCRA petition on
Appellant’s behalf, and raised ineffective assistance of counsel claims. The
Commonwealth filed a motion to dismiss the petition.
The PCRA court conducted a brief hearing on May 23, 2022. No evidence
was introduced; rather, the PCRA court expressed its conclusion that
Appellant’s claims lack merit. After issuing Pa.R.Crim.P. 907 notice, the PCRA
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court dismissed Appellant’s PCRA petition on August 29, 2022. Appellant filed
this timely appeal. Appellant and the PCRA court have complied with Pa.R.A.P.
1925.
On appeal, Appellant advances the following claims:
I. The PCRA court was in error in not granting relief on the issue
that counsel was ineffective[.]
A. Trial counsel provided ineffective assistance for failing to
preserve key issues for appellate review.
II. Appellate counsel provided ineffective assistance by failing to
raise [a] weight of the evidence claim on appeal[.]
III. The PCRA court was in error in failing to grant an evidentiary
hearing on the above issues[.]
Appellant’s Brief at 8.
“This Court’s standard of review regarding an order [dismissing] a
petition under the PCRA is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error.”
Commonwealth v. Rizvi, 166 A.3d 344, 347 (Pa. Super. 2017). “We defer
to the PCRA court’s factual findings and credibility determinations supported
by the record. In contrast, we review the PCRA court’s legal conclusions de
novo.” Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 789 (Pa.
Super. 2015) (citation omitted)).
A PCRA petitioner does not have an absolute right to an evidentiary
hearing. Commonwealth v. Maddrey, 205 A.3d 323, 328 (Pa. Super.
2019). “[I]f the PCRA court can determine from the record that no genuine
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issues of material fact exist, then a hearing is not necessary.” Id. (citation
and quotation marks omitted). The decision to grant or deny an evidentiary
hearing is within the discretion of the PCRA court. See id.Appellant argues his counsel rendered ineffective assistance for failing
to preserve certain key issues for direct appeal. Preliminarily, we presume
that counsel is effective, and the appellant bears the burden of proving
otherwise. See Commonwealth v. Bennett, 57 A.3d 1185, 1195 (Pa.
2012). The appellant must demonstrate 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 (3) prejudice,
to the effect that there was a reasonable probability of a different outcome if
not for counsel’s error.” Commonwealth v. Franklin, 990 A.2d 795, 797
(Pa. Super. 2010) (citation omitted). Failure to satisfy any prong of the
ineffectiveness test requires rejection of the claim. See Commonwealth v.
Roane, 142 A.3d 79, 88 (Pa. Super. 2016) (citation omitted).
In his first claim, Appellant argues trial counsel was ineffective for failing
to preserve for review four interrelated issues pertaining to the motion for
mistrial made during jury deliberations. See Appellant’s Brief at 16-18.
According to Appellant, the trial court violated the procedures for replacing a
principal juror with an alternate as set forth in Pa.R.Crim.P. 645(C). Id. at
17. Appellant claims the trial court failed to ensure the alternate juror was
not exposed to undue influence. Id. Appellant also asserts the trial court
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failed to inform the jury that Juror No. 12’s removal was not the result of his
views on the case, or properly instruct the reconstituted jury to begin
deliberations anew. Id. Further, Appellant argues the removal of Juror No.
12, “because of his reaction to the witness coaching[,] further compounded
the prejudicial errors created by spectator misconduct and violated the
integrity of the jury function.” Id. at 18. Appellate counsel raised these claims
on direct appeal, but this Court deemed the issues waived.2
Appellant’s argument contains only bald assertions that the trial court
did not satisfy the procedures established in Rule 645(C). Despite his reliance
on Rule 645(C), Appellant fails to set forth the relevant language of the Rule
or meaningfully explain its application to his claim. Appellant’s argument
includes a cursory cite to a single case without further discussion. For this
reason, we deem Appellant’s first claim waived. Pa.R.A.P. 2119(a) (providing
that argument shall include “such discussion and citation of authorities as are
deemed pertinent.”); see also Commonwealth v. McMullen, 745 A.2d 683,
689 (Pa. Super. 2000) (stating, “When the appellant fails to adequately
develop his argument, meaningful appellate review is not possible.” (citation
omitted)).
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2 Appellant also raised a similar issue regarding his inability to combat the
alleged witness coaching through cross-examination. This Court reviewed the
trial court’s colloquy of each juror, as well as its decision to replace Juror No.
12, and concluded Appellant suffered no prejudice. See Davis, 209 A.3d 480(unpublished memorandum at 5-11).
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Further, Appellant’s argument contains no assertion that trial counsel’s
failure to preserve a weight of the evidence challenge lacked any reasonable
basis. See Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018)
(stating that PCRA petition must address each ineffective assistance prong on
appeal). Concerning prejudice, Appellant simply states that this Court “would
have at least heard the issue and likely granted relief.” Appellant’s Brief at
16; see also id. at 17-18. Because of these deficiencies, Appellant’s claim is
waived for this reason as well.3
In his second claim, Appellant contends appellate counsel was
ineffective for failing to challenge the weight of the evidence. See Appellant’s
Brief at 18. Appellant argues Complainant provided inconsistent accounts of
her experience to various individuals during the investigation (including police,
a hospital social worker, and the staff member at the Philadelphia Children’s
Alliance who conducted a forensic interview) and during the preliminary
hearing. See id. at 20-21. Appellant claims the inconsistencies render
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3 Even if we were to address the merits of Appellant’s claim relating to the
trial court’s compliance with Rule 645(C), we would conclude it lacks merit for
the reasons set forth by the PCRA court. See generally Rule 907 Notice,
8/8/22; see also N.T., 5/23/22, at 5-7 (PCRA court stating its conclusion that
Appellant’s claims lack merit); N.T., 5/4/22, at 12-15 (trial court colloquied
alternate juror, determined alternate juror had followed the court’s
admonitions against researching or discussing the case, affirmed the alternate
juror could proceed impartially and unbiased, and instructed the reconstituted
jury to “start all over again fresh” with deliberations).
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Complainant incredible, and Appellant’s testimony “present[ed] a clearer
explanation of what likely occurred.” Id. at 22.4
Initially, Appellant does not assert counsel’s failure to raise a weight
claim on direct appeal lacked any reasonable basis to support his interest.
See Wholaver, supra. For this reason, we could deem the claim waived.
Nonetheless, we consider the merits.
Appellate review of a weight claim is a review of the exercise
of discretion, not of the underlying question of whether the verdict
is against the weight of the evidence. Because the trial judge has
had the opportunity to hear and see the evidence presented an
appellate court will give the gravest consideration to the findings
and reasons advanced by the trial judge when reviewing a trial
court’s determination that the verdict is against the weight of the
evidence. One of the least assailable reasons for granting or
denying a new trial is the lower court’s conviction that the verdict
was or was not against the weight of the evidence and that a new
trial should be granted in the interest of justice.
Commonwealth v. Juray, 275 A.3d 1037, 1047 (Pa. Super. 2022) (citation
omitted).
After reviewing Appellant’s weight claim, the PCRA court found the
verdict did not shock the court’s conscience. See N.T., 5/23/22, at 7-8; see
also Juray, 275 A.3d at 1047 (explaining “to prevail on a challenge to the
weight of the evidence, the evidence must be so tenuous, vague and uncertain
that the verdict shocks the conscience of the trial court.” (citation and brackets
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4 Appellant also argues the evidence presented did not prove his guilt beyond
a reasonable doubt. See Appellant’s Brief at 20. However, this argument
goes to the sufficiency rather than the weight of the evidence.
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omitted)). Appellant essentially requests that this Court reassess
Complainant’s credibility and weigh the evidence in Appellant’s favor.
However, “in instances where there is conflicting testimony, it is for the jury
to determine the weight to be given the testimony. The credibility of a witness
is a question for the fact-finder.” Commonwealth v. Hall, 830 A.2d 537,
542 (Pa. 2003) (citation omitted). Therefore, Appellant’s second claim lacks
arguable merit.
Finally, Appellant claims the PCRA court erred by failing to grant an
evidentiary hearing. Appellant’s Brief at 23-24. We reiterate that a PCRA
petitioner does not have an absolute right to an evidentiary hearing.
Maddrey, 205 A.3d at 328.
To obtain reversal of a PCRA court’s decision to dismiss a petition
without a hearing, an appellant must show that he raised a
genuine issue of fact which, if resolved in his favor, would have
entitled him to relief, or that the court otherwise abused its
discretion in denying a hearing.
Id. (citation omitted).
Appellant does not identify any factual dispute that would warrant an
evidentiary hearing in this case, nor does he point to any acts which, if proven,
would entitle him to relief. See id. We discern no abuse of the PCRA court’s
discretion in dismissing Appellant’s PCRA petition without a hearing. Thus,
Appellant’s final claim does not merit relief.
Order affirmed.
Judge McCaffery joins the memorandum.
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Judge Nichols did not participate in the consideration or decision of this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/11/2023
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