Com. v. Roach, D. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37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. :
:
:
DOMINIC O. ROACH :
:
Appellant : No. 1334 MDA 2022
Appeal from the PCRA Order Entered September 1, 2022
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0004806-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DOMINIC O. ROACH :
:
Appellant : No. 1335 MDA 2022
Appeal from the PCRA Order Entered September 1, 2022
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0006318-2017
BEFORE: BOWES, J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY NICHOLS, J.: FILED: OCTOBER 23, 2023
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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Appellant Dominic O. Roach appeals pro se from the orders1 denying his
first Post Conviction Relief Act2 (PCRA) petition. On appeal, Appellant claims
that trial counsel was ineffective. We affirm.
The underlying factual history of this case is well known to both parties.
See Commonwealth v. Roach, 88 MDA 2019, 89 MDA 2019, 2020 WL
618574, at *1-2 (Pa. Super. filed Feb. 10, 2020) (unpublished mem.).
The PCRA court set forth the following procedural history:
A three-day jury trial commenced on September 10, 2018. The
jury found [Appellant] guilty of [two counts each of involuntary
servitude, trafficking in individuals (recruit/entice/solicit),
trafficking in individuals (financial benefit), promoting prostitution
(controlling prostitution business), [promoting prostitution
(encouraging prostitution),] promoting prostitution (procuring
prostitution), promoting prostitution (transporting), living off
prostitutes, and one count each of criminal conspiracy and witness
intimidation.3] The [trial] court ordered a pre-sentence
investigation (PSI) report. On November 20, 2018, the [trial]
court imposed an aggregate sentence of eighteen to thirty-six
years of incarceration. [Appellant] filed a post-sentence motion,
which the trial court denied.
On January 9, 2019, [Appellant] timely filed a direct appeal to the
Superior Court, in which he challenged an evidentiary ruling and
discretionary aspects of his sentence. On February 10, 2020, the
Superior Court issued a decision affirming [Appellant’s] conviction
and sentence. [See Roach, 2020 WL 618574.]
[Appellant’s] trial counsel, Dennis C. Dougherty, Esquire, did not
initially file for allowance of appeal with the Pennsylvania Supreme
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1 We address the related appeals at 1334 MDA 2022 and 1335 MDA 2022 in a
single memorandum.
2 42 Pa.C.S. §§ 9541-9546.
318 Pa.C.S. §§ 3012(a), 3011(a)(1), 3011(a)(2), 5902(b)(1), 5902(b)(3),
5902(b)(5), 5902(b)(6), 5902(d), 903(c), and 4952(a)(3), respectively.
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Court. However, after [Appellant] filed a pro se motion for post
conviction collateral relief on May 14, 2020, counsel appointed to
represent [Appellant] filed an amended petition, arguing that
Attorney Dougherty provided ineffective assistance by failing to
file for allowance of appeal as requested by [Appellant]. The
amended petition was granted on June 25, 2020, and Attorney
Dougherty was given 30 days to file a petition for allowance of
appeal. On July 20, 2020, Attorney Dougherty filed a petition for
allowance of appeal [nunc pro tunc] with the Pennsylvania
Supreme Court. The petition was denied on [December 29, 2020.
Commonwealth v. Roach, 243 A.3d 725 (Pa. 2020).]
On November 24, 2021, [Appellant] filed a second pro se motion
for post conviction collateral relief.[4] Attorney Daniel Bardo was
appointed to represent [Appellant] on January 11, 2022. On
March 9, 2022, Attorney Bardo filed a petition to withdraw as
counsel pursuant to Commonwealth v. Turner, 544 A.2d 927(Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.
Super. 1988) (en banc).[fn2] On April 29, 2022, [the PCRA court]
issued a notice pursuant to Pennsylvania Rule of Criminal
Procedure 907 alerting [Appellant] that his request for relief would
be denied without further hearing and granting [Appellant] 20
days to file an amended petition.
[fn2] Attorney Bardo’s petition to withdraw was granted on
October 28, 2022, after it was brought to the [PCRA court’s]
attention that his petition was inadvertently unresolved.
[Appellant] timely filed a pro se [amended first PCRA petition] on
May 19, 2022. The Commonwealth filed an answer on June 27,
2022. [The PCRA court] denied the amended petition on
September 1, 2022[.]
PCRA Ct. Op., 11/22/22, at 4-5 (formatting altered).
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4 Despite the PCRA court’s characterization of the instant petition as a second
petition, because Appellant’s first PCRA petition resulted in the reinstatement
of his direct appeal rights nunc pro tunc, the instant petition is treated as a
first petition. Commonwealth v. Callahan, 101 A.3d 118, 122 (Pa. Super.
2014).
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Appellant filed a timely notice of appeal and a court-ordered Pa.R.A.P.
1925(b) statement. The PCRA court issued a Rule 1925(a) opinion addressing
Appellant’s claims.
Appellant raises the following issue for our review:
1. Trial counsel [was] ineffective for failing to challenge validity of
unsigned invalid criminal complaint/affidavit of probable
cause/arrest warrant.
2. [Trial c]ounsel was ineffective for failing to object to admission
of prior bad acts evidence and the court’s denial of cautionary
instructions.
3. Ineffective assistance of counsel for failing to challenge
evidence and issues outside Commonwealth’s bill of
information.
4. Trial court abused its discretion in allowing amendment of
Commonwealth’s bill of information to add additional charges
and dates on the first day of trial, and ineffective assistance of
counsel for agreeing to amendment without objection.
5. Cumulative impact of ineffective assistance of counsel.
Appellant’s Brief at 7-40 (unpaginated, some formatting altered).5
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5 In his statement of questions, Appellant raises one issue challenging the
PCRA court’s denial of his PCRA petition generally. See Appellant’s Brief at 3.
Despite identifying only one question for appellate review, the argument
section of Appellant’s brief is divided into five sections. See Pa.R.A.P. 2119(a)
(stating that “[t]he argument shall be divided into as many parts as there are
questions to be argued”). We do not condone Appellant’s failure to comply
with the Rules of Appellate Procedure, but because the noncompliance does
not impede our review, we decline to find waiver on this basis. See, e.g.,
Commonwealth v. Levy, 83 A.3d 457, 461 n.2 (Pa. Super. 2013) (declining
to find waiver on the basis of the appellant’s failure to comply with the Rules
of Appellate Procedure, where the errors did not impede this Court’s review).
For clarity, we list the issues on appeal as they appear immediately preceding
each claim in the argument section of Appellant’s brief.
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Our review of the denial of PCRA relief is limited to “whether the record
supports the PCRA court’s determination and whether the PCRA court’s
decision is free of legal error.” Commonwealth v. Lawson, 90 A.3d 1, 4
(Pa. Super. 2014) (citations omitted). “The PCRA court’s credibility
determinations, when supported by the record, are binding on this Court;
however, we apply a de novo standard of review to the PCRA court’s legal
conclusions.” Commonwealth v. Mitchell, 105 A.3d 1257, 1265 (Pa. 2014)
(citation omitted); see also Commonwealth v. Davis, 262 A.3d 589, 595
Pa. Super. 2021) (stating that “[t]his Court grants great deference to the
findings of the PCRA court if the record contains any support for those
findings.” (citation omitted)).
[T]o establish a claim of ineffective assistance of counsel, a
defendant must show, by a preponderance of the evidence,
ineffective assistance of counsel which, in the circumstances of
the particular case, so undermined the truth-determining process
that no reliable adjudication of guilt or innocence could have taken
place. The burden is on the defendant to prove all three of the
following prongs: (1) the underlying claim is of arguable merit;
(2) that counsel had no reasonable strategic basis for his or her
action or inaction; and (3) but for the errors and omissions of
counsel, there is a reasonable probability that the outcome of the
proceedings would have been different.
We have explained that a claim has arguable merit where the
factual averments, if accurate, could establish cause for relief.
Whether the facts rise to the level of arguable merit is a legal
determination.
The test for deciding whether counsel had a reasonable basis for
his action or inaction is whether no competent counsel would have
chosen that action or inaction, or, the alternative, not chosen,
offered a significantly greater potential chance of success.
Counsel’s decisions will be considered reasonable if they
effectuated his client’s interests. We do not employ a hindsight
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analysis in comparing trial counsel’s actions with other efforts he
may have taken.
Prejudice is established if there is a reasonable probability that,
but for counsel’s errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.
Boilerplate allegations and bald assertions of no reasonable basis
and/or ensuing prejudice cannot satisfy a petitioner’s burden to
prove that counsel was ineffective. Moreover, a failure to satisfy
any prong of the ineffectiveness test requires rejection of the
claim of ineffectiveness.
Commonwealth v. Sandusky, 203 A.3d 1033, 1043-44 (Pa. Super. 2019)
(citations omitted and formatting altered). Further, it is well settled that
counsel will not be deemed ineffective for failing to raise meritless claims.
Commonwealth v. Midgley, 289 A.3d 1111, 1120 (Pa. Super. 2023).
Validity of Criminal Complaint
In his first issue, Appellant contends that trial counsel was ineffective
for failing to contest the validity of the criminal complaint and accompanying
affidavit of probable cause. Appellant’s Brief at 7. Specifically, Appellant
argues that the charging documents did not include a magistrate district
judge’s (MDJ) signature and, therefore, “there was no recorded determination
that probable cause existed and no written order to that effect.” Id. at 23.
Appellant also argues that Officer Jones6 improperly included a reference to
the September 2017 incident in the affidavit of probable cause. Id. at 27.
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6 Officer Christopher Jones was the affiant on the complaint and supporting
affidavit of probable cause. See Criminal Complaint, 7/27/28.
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The Pennsylvania Rules of Criminal Procedure mandate, inter alia, that
each criminal compliant contain the signature of the affiant. Pa.R.Crim.P.
504(13). “Before accepting a complaint for filing, the issuing authority shall
ascertain and certify on the complaint that the complaint has been properly
completed and executed[.]” Pa.R.Crim.P. 508(A)(1). Here, the PCRA court
noted that the criminal complaint and affidavit of probable cause at issue
under Docket Nos. 6318-2017 and 4806-2017 were signed by a Magisterial
District Judge and that trial counsel “would have had no legitimate basis to
challenge the validity,” of the charging documents. PCRA Ct. Op. at 9.
Further, with respect to Appellant’s claim that the affidavit of probable cause
contained an improper reference to an uncharged offense, the PCRA court
explained: “[t]he affidavit does not aver that any charges were filed relating
to events that took place on September 26, 2017; instead, the incident is
included merely for context about how the investigation into [Appellant]
began.” PCRA Ct. Op. at 9.
Following our review, we conclude the record supports the PCRA’s
court’s factual findings and we find no error in the PCRA court’s legal
conclusions. See Lawson, 90 A.3d at 4. As noted by the PCRA court,
Appellant’s underlying claims regarding the charging documents are meritless.
Accordingly, because counsel cannot be ineffective for failing to raise a
meritless claim, Appellant is not entitled to relief. See Midgley, 289 A.3d at
1120.
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Prior Bad Acts
We address Appellant’s next two issues together. First, Appellant
argues that trial counsel was ineffective for failing to object to the admission
of prior bad acts evidence and failing to request a cautionary instruction with
respect to that evidence. Appellant’s Brief at 13-17. Appellant also claims
that trial counsel was ineffective for allowing the Commonwealth to base its
case on “evidence and issues outside the Commonwealth’s bills of
information.” Id. at 21.
Initially, it is well settled that appellate briefs must conform to the
requirements set forth in the appellate rules. In re Ullman, 995 A.2d 1207,
1211 (Pa. Super. 2010); see also Pa.R.A.P. 2111(a) (setting forth the rules
for the content of an appellate brief). Specifically, Rule 2119(c) provides that
“[i]f reference is made to the pleadings, evidence, charge, opinion or order,
or any other matter appearing in the record, the argument must set forth, in
immediate connection therewith, or in a footnote thereto, a reference to the
place in the record where the matter referred to appears.” Pa.R.A.P. 2119(c).
“Although this Court is willing to liberally construe materials filed by a
pro se litigant, pro se status confers no special benefit upon the appellant.”
Ullman, 995 A.2d at 1211-12 (citation omitted). “This Court will not act as
counsel and will not develop arguments on behalf of an appellant.”
Commonwealth v. Westlake, 295 A.3d 1281, 1286 n.8 (Pa. Super. 2023)
(citation omitted and formatting altered). Indeed, we will “not develop an
argument for an appellant, nor shall we scour the record to find evidence to
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support an argument; instead, we will deem the issue to be waived.”
Commonwealth v. Pi Delta Psi, Inc., 211 A.3d 875, 884-85 (Pa. Super.
2019) (citations omitted).
Here, Appellant fails to identify any specific trial testimony to which trial
counsel should have objected. Although Appellant makes broad references to
prior bad acts testimony that was improperly elicited by the Commonwealth
in his brief, see Appellant’s Brief at 13-21, Appellant does not specifically cite
any testimony from the record. Because Appellant has failed to adequately
develop this argument with citations to the record, this claim is waived. See
Pi Delta Psi, Inc., 211 A.3d at 884-85; Pa.R.A.P. 2119(c).
Amendments to Bills of Information
Appellant next argues that trial counsel was ineffective for failing to
object to the Commonwealth’s amendments to the bills of information on the
day of trial. Appellant’s Brief at 34.
Before addressing this claim, we must determine whether Appellant has
adequately preserved the issue for our review. This Court has explained that
“PCRA claims are generally considered to be waived unless a petitioner first
asserts them in a PCRA petition within one year from the date the judgment
of sentence became final.” Commonwealth v. Crumbley, 270 A.3d 1171,
1181 (Pa. Super. 2022) (citation omitted), appeal denied, 284 A.3d 884 (Pa.
2022); see also Pa.R.A.P. 302(a) (stating that “[i]ssues not raised in the trial
court are waived and cannot be raised for the first time on appeal”).
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Here, the record reflects that Appellant did not raise this issue in his
PCRA petition. See Appellant’s Amended PCRA Pet., 5/19/22. Therefore,
Appellant has failed to preserve this issue for appellate review. See
Crumbley, 270 A.3d at 1181; Pa.R.A.P. 302(a). Accordingly, he is not
entitled to relief.
Cumulative Prejudicial Impact
In his final issue, Appellant claims that “the cumulative impact of
[counsel’s] deficiencies [] resulted in the absence of adequate and effective
assistance of counsel, thereby prejudicing [Appellant] and causing conviction
of crimes [of which] he is actually innocent[.]” Appellant’s Brief at 40.
It is well settled that issues not included in an appellant’s Rule 1925(b)
statement are waived on appeal. Commonwealth v. Becher, 293 A.3d
1226, 1237 n.7 (Pa. Super. 2023); see also Pa.R.A.P. 1925(b)(4)(vii) (stating
that “[i]ssues not included in the [Rule 1925(b)] Statement and/or not raised
in accordance with the provisions of this paragraph (b)(4) are waived”).
In the instant case, Appellant failed to include a cumulative prejudice
claim in his Rule 1925(b) statement. Therefore, this issue is waived. Becher,
293 A.3d at 1237 n.7; Pa.R.A.P. 1925(b)(4)(vii).7
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7 Even if Appellant had preserved this issue for appeal, Appellant would
nonetheless not be entitled to relief. Our Supreme Court has explained that
while “no number of claims which fail on their merits may collectively warrant
relief[,] . . . [w]hen the failure of individual claims is grounded in lack of
prejudice, then the cumulative prejudice from those individual claims may
properly be assessed.” Commonwealth v. Wholaver, 177 A.3d 136, 180
(Footnote Continued Next Page)
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For these reasons we affirm the PCRA court’s orders denying relief.
Orders affirmed. Jurisdiction relinquished.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 10/23/2023
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(Pa. 2018) (citations omitted). We found that Appellant was not entitled to
relief in his previous four ineffective assistance of counsel claims because
either he failed to establish arguable merit or the issues were waived on
appeal. See Crumbley, 270 A.3d at 1181; Pi Delta Psi, Inc., 211 A.3d at
884-85; Sandusky, 203 A.3d at 1043.
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