Com. v. J.H.F. ( 2021 )

J-A24041-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
J.H.F. :
:
Appellant : No. 538 EDA 2020
Appeal from the PCRA Order Entered January 8, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0010425-2015
BEFORE: LAZARUS, J., DUBOW, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED OCTOBER 26, 2021
J.H.F.1 appeals from the order denying his first petition filed pursuant to
the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, in the Court
of Common Pleas of Philadelphia County (PCRA court). He claims ineffective
assistance of counsel and constitutional violations. We affirm.
We take the following factual background and procedural history from
our independent review of the record and the PCRA Court’s April 21, 2021
opinion.
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* Retired Senior Judge assigned to the Superior Court.
1 The names of the parties and other individuals involved in this case have
been changed to initials to protect the privacy interests of I.Z. See I.O.P.
424(A).
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I.
On September 3, 2015, J.H.F. was arrested and charged with unlawful
contact with a minor, corruption of minors and indecent assault-person less
than fourteen years of age.2 The charges related to a June 21, 2015 incident
in which J.H.F. assaulted I.Z., his stepdaughter’s fourteen-year-old-friend, in
his car.
A jury trial commenced on December 13, 2016, which resulted in a
hopelessly deadlocked jury. The trial court granted a mistrial and the case
was reassigned for a retrial.3
At the retrial, the Commonwealth presented the testimony of
complainant, I.Z.; V.Z. (I.Z.’s maternal aunt); G.R. (I.Z.’s father);
Philadelphia Police Detective Linda Blowes; Philadelphia Children’s Alliance
Forensic Interview Specialist, Caroline Castano; and L.Z. (I.Z.’s mother),
whose December 2016 trial testimony was read into the record due to her
unavailability for the second trial due to medical issues. J.H.F. presented the
testimony of Z.M. (I.Z.’s friend and paternal half-sister) and A.F. (Z.M.’s
mother). J.H.F. testified on his own behalf.
In its opinion, the trial court explains:
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2 18 Pa.C.S. §§ 6318(a)(1), 6301(a)(1) and 3126(a)(8).
3 The December 13, 2016 trial was before Judge Donna Woelpper. It was
reassigned to Judge Charles A. Ehrlich for the retrial.
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Complainant, I.Z., testified that on June 21, 2015, [J.H.F.]
and she drove in [J.H.F.]’s car to a Boston Market Restaurant to
eat and afterwards they drove to and sat in his car in Fairmount
Park to “observe the stars.” Once parked, [J.H.F.] opened the
car’s sunroof and reclined I.Z.’s passenger seat. [J.H.F.] then
placed his arm around I.Z. and began to rub her arm and abdomen
area. [J.H.F.] then kissed I.Z.’s neck and jaw while he continued
rubbing her abdomen. After approximately five (5) minutes, I.Z.
told [J.H.F.] that it was time to go and [he] asked her “I didn’t
make you feel uncomfortable, right?” I.Z. was too frightened to
speak and was only able to shake her head “no.” (N.T. Trial,
11/29/17, at 22-52).
[J.H.F.] and I.Z then left the park and began to drive home.
On the way, [J.H.F.] told I.Z., “You smell so good that [I] could
eat [you] up now.” (Id. at 53). During his ride home, I.Z.,
because of her uncomfortableness with [J.H.F.], asked him to let
her out of the car. However, [J.H.F.] refused, saying that he
would not be able to live with himself if something happened to
her. Upon reaching I.Z.’s house, but prior to letting I.Z. exit his
car, [J.H.F.] looked at I.Z. and said, “I hope I didn’t make you feel
uncomfortable?” I.Z. shook her head “no” and [J.H.F.] then
grabbed her face with his hands and kissed her on the lips. (Id.
at [53-58]).
I.Z. told her parents what happened with [J.H.F.] and her
mother called the police. Text messages that were subsequently
sent from [J.H.F.] to I.Z. were shown to the police. These text
messages from [J.H.F.] included, “Did u have a good time? I hope
so. I also hope u are not upset with me.” (Id. at 69-70, 75-76).
At trial, [J.H.F.] testified in his own behalf. Prior to his
arrest, [he] was interviewed by the police about the incident and
he acknowledged that he hugged her that night. [J.H.F.] stated
that he only touched her arms while hugging her and that he didn’t
touch her anywhere else, adding, “but no boobs, none of that.”
(N.T. Trial, 11/30/17, 165-67; Commonwealth’s Exhibit 9).
* * *
During direct examination, [J.H.F.] acknowledged he had
taken the complainant, I.Z., to a Boston Market prior to driving to
the park behind the Mann Music Center. [He] testified that he and
I.Z. were originally going to his family’s barbecue in Fairmount
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Park when he received a text from his nephew advising that the
barbecue was now taking place at another location on “Lancaster
[Avenue].” [J.H.F.] testified that he was unable to find the new
location for the barbecue. [He] asked I.Z. if she was hungry and
when she said yes, he took her to eat at a Boston Market
Restaurant. After leaving the Boston Market Restaurant, he began
driving with I.Z. back towards their neighborhood, but when I.Z.
told him that she liked to look at the stars, he decided to drive to
Fairmount Park where he himself would sometimes go to “sit[and
meditate, pray].” (N.T. Trial, 11/30/17, at 137).
During this direct examination, trial counsel showed [J.H.F.]
a map to assist him in explaining where on Lancaster Avenue he
was driving when trying to find the barbecue location and how he
arrived at the park (Fairmount Park) from the Boston Market
Restaurant location. (See id. at 134-37).
… [J.H.F.’s] counsel … asked [J.H.F.] “Did you take the most
direct route, or did you go another way?” to which [J.H.F.]
responded “To be honest, I don’t remember” and I’m not good at
that.” (Id. at 136).
(PCRA Court Opinion, 4/21/21, at 2-3, 10-11) (record citation formatting
provided). On cross-examination, the Commonwealth used the map in an
attempt to show that J.H.F. had not taken the best route from the Boston
Market Restaurant to Fairmount Park. (See id. at 151).
On December 4, 2017, the jury convicted J.H.F. of unlawful contact with
a minor and corruption of the morals of a minor. When the jury could not
reach a unanimous decision on indecent assault, the court granted the
Commonwealth’s motion to nolle prosse the charge.
A sentencing hearing occurred on March 19, 2018. The defense
renewed its motion for judgment of acquittal and moved for extraordinary
relief, which the court denied. The court imposed an aggregate sentence of
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not less than three and one-half nor more than seven years’ incarceration. It
denied J.H.F.’s timely post-sentence motions challenging the sufficiency and
weight of the evidence on the basis of I.Z.’s uncorroborated testimony without
a hearing on June 29, 2018. J.H.F. filed a direct appeal, which he
discontinued.
On October 10, 2018, J.H.F. filed a timely pro se PCRA petition.
Appointed counsel filed an amended petition and a supplemental amended
petition. The amended petitions raised claims of trial counsel’s ineffectiveness
for: (1) failing to cross-examine two Commonwealth witnesses thoroughly,
(2) failing to file a motion to suppress the Affidavit of Probable Cause, (3)
failing to interview or present proposed witness Jiberl Cooper, (4) questioning
him about a map on direct examination, and (5) improperly conducting jury
selection. It also made constitutional claims: (1) prosecutorial misconduct
for suborning perjury, (2) the Commonwealth’s failure to prove the charges
beyond a reasonable doubt, and (3) a Rule 600 speedy trial violation. (See
Memorandum in Support of Amended Petition, 6/26/19). After the
Commonwealth filed a motion to dismiss the petition, the court issued a Rule
907 notice of its intention to dismiss the petition without a hearing on
November 13, 2019. See Pa.R.Crim.P. 907(1). On January 8, 2020, the court
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dismissed the petition and J.H.F. filed a timely notice of appeal. He and the
court have complied with Rule 1925. See Pa.R.A.P. 1925.4
II.
A.
In his first issue, J.H.F. alleges the ineffective assistance of trial counsel
on several bases. (See id. at 14-15). He maintains that counsel refused to
present the testimony of Jiberl Cooper, presented a map that J.H.F. did not
agree to use at trial, failed to seek suppression of the Affidavit of Probable
Cause, failed to adhere to J.H.F.’s directions during jury selection and did not
properly cross-examine “both of the Commonwealth witnesses.” (Id.).5
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4 In reviewing a denial of PCRA relief, our standard of review is limited to
whether the record supports the PCRA court’s determination and whether its
decision is free of legal error. See Commonwealth v. Lopez, 249 A.3d 993,
998 (Pa. 2021). “In reviewing credibility determinations, we are bound by the
PCRA court’s findings so long as they are supported by the record.” Id.(citation omitted). “The PCRA court’s findings and the evidence of record are
viewed in the light most favorable to the Commonwealth as the winner before
the PCRA court.” Id. (citation omitted).
5 At the outset, we note that “It is an appellant’s duty to present arguments
that are sufficiently developed for our review. The brief must support the
claims with pertinent discussion, with references to the record and citations
to legal authority.” Commonwealth v. Kane, 10 A.3d 327, 331 (Pa. Super.
2010). J.H.F. fails to provide any citation to the record or pertinent legal
citation and discussion thereof for each of his claims. (See J.H.F.’s Brief, at
14-15). Instead, he provides boilerplate law on the three prongs of the
ineffectiveness test, but then addresses each distinct claim in approximately
three sentences, stating in a conclusory fashion that each allegation satisfies
the three ineffectiveness prongs. (See id.). Therefore, the claims are waived.
Commonwealth v. Perez, 93 A.3d 89, 838 (Pa. 2014) (Failure to present
developed arguments or cite to supporting authorities and/or the record
(Footnote Continued Next Page)
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In considering an ineffective assistance of counsel claim, we observe
first that counsel is presumed effective and that a petitioner bears the burden
to prove otherwise. See Commonwealth v. Fears, 86 A.3d 795, 804 (Pa.
Super. 2014). To establish an ineffectiveness claim, a defendant must prove:
(1) The underlying claim has arguable merit; (2) no reasonable
basis existed for counsel’s actions or failure to act; and (3)
[appellant] suffered prejudice as a result of counsel’s error such
that there is a reasonable probability that the result of the
proceeding would have been different absent such error.
Id. (citation omitted). “Failure to prove any prong of this test will defeat an
ineffectiveness claim. … When an appellant fails to meaningfully discuss each
of the three ineffectiveness prongs, he is not entitled to relief, and we are
constrained to find such claims waived for lack of development.” Id. (citations
and internal quotation marks omitted). Prejudice in the context of ineffective
assistance of counsel means demonstrating that there is a reasonable
probability that, but for counsel’s error, the outcome of the proceeding would
have been different. Commonwealth v. Bond, 819 A.2d 33, 42 (Pa. 2002)
(citation omitted). “Counsel will not be deemed ineffective for failing to raise
a meritless claim.” Commonwealth v. Spotz, 896 A.2d 1191, 1210 (Pa.
Super. 2006) (citation omitted).
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results in waiver of the claim.); see also Fears, supra at 804 (“When an
appellant fails to meaningfully discuss each of the three ineffectiveness
prongs, he is not entitled to relief, and we are constrained to find such claims
waived for lack of development.”) (citation omitted). Moreover, they would
not merit relief.
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1.
J.H.F. first alleges that trial counsel was ineffective in refusing “to
present the testimony of witness Jiberl Cooper … [which] tended to establish
a valid defense.” (J.H.F.’s Brief, at 14). Because that testimony presented a
valid defense, J.H.F. contends counsel’s decision “was not reasonably
designed to advance [his] interests” and “adversely affected the outcome of
trial.” (Id. at 14, 16).
To prevail on a claim of ineffectiveness for the failure to interview a
witness or call him at trial, the petitioner must prove:
(1) that the witness existed; (2) that the witness was available;
(3) that counsel was informed of the existence of the witness or
should have known of the witness’s existence; (4) that the witness
was prepared to cooperate and would have testified on appellant’s
behalf; and (5) that the absence of the testimony prejudiced
appellant.
Commonwealth v. Brown, 767 A.2d 576, 581 (Pa. Super. 2001) (citation
omitted). “Thus, trial counsel will not be found ineffective for failing to
investigate or call a witness unless there is some showing by the appellant
that the witness’s testimony would have been helpful to the defense.”
Commonwealth v. Auker, 681 A.2d 1305, 1319 (Pa. 1996). “A failure to call
a witness is not per se ineffective assistance of counsel for such decision
usually involves matters of trial strategy.” Id.Although J.H.F. maintains that the testimony of Jiberl Cooper was
admissible and tended to establish a valid defense, he fails to provide the
PCRA court or this court with any information about who this witness is or to
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what information he would have testified that would have “tended to establish
a valid defense.” (See J.H.F.’s Brief, at 14, 16); (see also Memorandum of
Law in Support of Amended PCRA Petition, 6/26/19, at 3) (pagination
provided). Because he cannot establish what defense the witness was going
to advance, he cannot claim counsel lacked a reasonable basis for not
introducing the proposed witness or that he was prejudiced by this decision.
See Fears, supra at 804.
Further, as noted by the PCRA court, J.H.F. failed to attach a signed
certificate to his PCRA petition pursuant to Section 9545(d)(1) that included
the witness’s name, address, date of birth and the substance of his proposed
testimony. (See PCRA Ct. Op., at 9). As a result, the trial court clearly did
not abuse its discretion by failing to conduct an evidentiary hearing where
J.H.F. failed to present any witness to the court who could give admissible
testimony on this issue. See Brown, supra at 583 (PCRA court properly
denied ineffective assistance of counsel claim of failure to call a witness
without a hearing where no certifications attached to PCRA petitions). This
issue lacks merit.
2.
J.H.F. argues next that trial counsel was ineffective because he
introduced a map that he did not agree to use because he had told him he did
not remember the exact route he took when driving I.Z. and, therefore, he
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had advised that using the map would be detrimental to his defense. (See
J.H.F.’s Brief, at 14).
This issue challenges counsel’s trial strategy. “Generally, where matters
of strategy and tactics are concerned, counsel’s assistance is deemed
constitutionally effective if he chose a particular course that had some
reasonable basis designed to effectuate his client’s interests.”
Commonwealth v. Lesko, 15 A.3d 345, 380 (Pa. 2011). “We will conclude
that counsel’s chosen strategy lacked a reasonable basis only if Appellant
proves that an alternative not chosen offered a potential for success
substantially greater than the course actually pursued.” Commonwealth v.
Hanible, 30 A.3d 426, 439 (Pa. 2011), cert. denied, 568 U.S. 1091 (2013)
(citation omitted).
In this case, in his three-sentence paragraph addressing this issue,
J.H.F. characterizes the use of the map as a “surprise,” but concedes that he
was aware of counsel’s intention to use it since he had told counsel he did not
remember the route he took and, therefore, believed use of the map would
be detrimental. (J.H.F.’s Brief, at 14). J.H.F. concludes that because counsel
used the map even though he said he did not remember what route he took,
the first two prongs of the ineffectiveness test are satisfied. (See J.H.F.’s
Brief, at 14).
However, the record reflects that counsel utilized the map to assist him
in explaining where on Lancaster Avenue J.H.F. was driving while looking for
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his family’s barbecue and to explain the route he took from the Boston Market
Restaurant. Although the Commonwealth then attempted to use the same
map to show that J.H.F. did not take the best route from the restaurant to the
park, it appears from the line of questioning that J.H.F.’s counsel used the
map to show on direct that J.H.F. was not good with driving directions. (See
N.T. Trial, 11/30/17, at 136); (see also PCRA Ct. Op., at 10-11). J.H.F.
provides no argument or alternative strategy that would have offered a
substantially better chance of success. See Hanible, supra at 439; Lesko,
supra at 380. He has failed to plead, let alone prove, that counsel lacked a
reasonable basis for his trial strategy.
Additionally, J.H.F. has failed to plead and prove that he was prejudiced
by the introduction of the map, i.e., that but for its introduction, the outcome
of the proceeding would have been different. See Bond, supra at 42. J.H.F.
is due no relief on his second ineffectiveness claim.
3.
In his third allegation of trial counsel’s ineffectiveness, J.H.F. maintains
that counsel failed to seek suppression of the Affidavit of Probable Cause
supporting his arrest warrant and a Franks hearing to determine if a
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materially false statement in the affidavit would invalidate the warrant, thus
violating his constitutional rights. (See J.H.F.’s Brief, at 8, 15).6
In Franks, the United States Supreme Court held:
[W]here the defendant makes a substantial preliminary showing
that a false statement knowingly and intentionally, or with
reckless disregard for the truth, was included by the affiant in the
warrant affidavit, and if the allegedly false statement is necessary
to the finding of probable cause, the Fourth Amendment requires
that a hearing be held at the defendant’s request. In the event
that at that hearing the allegation of perjury or reckless disregard
is established by the defendant by a preponderance of the
evidence, and, with the affidavit’s false material set to one side,
the affidavit’s remaining content is insufficient to establish
probable cause, the search warrant must be voided and the fruits
of the search excluded to the same extent as if probable cause
was lacking on the face of the affidavit.
Franks, supra at 155-56. Further, “[t]o mandate an evidentiary hearing, the
challenger’s attack must be more than conclusory and must be supported by
more than a mere desire to cross-examine. There must be allegations of
deliberate falsehood or of reckless disregard for the truth[.]” Id. at 171.
In his memorandum in support of his amended PCRA petition, J.H.F.
stated that the Affidavit of Probable Cause “contained information that was
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6 J.H.F. also maintains, for the first time, that counsel failed to explain his trial
tactics to him pursuant to Commonwealth v. Polster, 616 A.2d 669 (Pa.
Super. 1992). (See J.H.F.’s Brief, at 14-15). This issue is waived. See
Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived and cannot
be raised for the first time on appeal.”). Moreover, he would be due no relief
where he provides no discussion of this one-sentence claim, thereby failing to
plead and prove the three ineffectiveness of counsel prongs. See Fears,
supra at 804.
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material to the finding of probable cause that was proven by [I.Z.] to be
patently false.” (Memorandum of Law in Support of Amended PCRA Petition,
6/26/19, at 3) (pagination provided); (see also Memorandum of Law in
Support of Pro Se PCRA Petition, 6/18/19, at 2) (affidavit stated that I.Z.
agreed to get into J.H.F.’s vehicle but this was contradicted by I.Z.’s
testimony) (pagination provided). However, it is difficult to see how this
amounted to a “false statement that was knowingly and intentionally, or with
reckless disregard for the truth, [] included by the affiant in the warrant
affidavit,” or that this “allegedly false statement [was] necessary to the finding
of probable cause[.]” Franks, supra at 155-56.
The PCRA court properly found that this argument does not merit relief
because J.H.F. has failed to plead and prove that there was any underlying
merit to his claim that counsel was ineffective for failing to challenge the
Affidavit of Probable Cause and demand a Franks hearing, and counsel will
not be found ineffective for failing to raise such a meritless claim. See Spotz,
supra at 1210; Fears, supra at 802.
4.
In his fourth ineffective allegation, J.H.F. maintains that trial counsel’s
“failure to adhere to [his] directions during jury selection, denied [him] the
opportunity to assist in the jury selection process[,]” thus violating “his Sixth
Amendment rights.” (J.H.F.’s Brief, at 15). Specifically, in his Memorandum
of Law, J.H.F. claimed that he was denied the opportunity to strike jurors for
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cause where he advised counsel that several jurors had a “preconceived bias
against him based on the factual allegations in the case.” (Memorandum of
Law in Support of PCRA Petition, 6/26/19, at 3) (pagination provided). He
claims that this claim (absent more) establishes arguable merit and that
“counsel’s action was not reasonably designed to advance [his] interests.”
(See J.H.F.’s Brief, at 15).
However, the PCRA court found that because J.H.F. failed to identify any
juror he claims was biased against him or that he advised counsel not to
select, he failed to meet his burden of establishing arguable merit or prejudice
to support his claim of ineffective assistance. (See PCRA Ct. Op., at 12). We
agree.
In both his petition and brief to this Court, J.H.F. does not provide any
evidence supporting the vague claim of juror bias. As a result, this claim does
not merit relief because he is unable to effectively claim that this bias
somehow prejudiced him by affecting the outcome of the case. See
Commonwealth v. Sandusky, 203 A.3d 1033, 1083 (Pa. Super. 2019),
appeal denied, 216 A.3d 1029 (Pa. 2019) (concluding petitioner failed to
establish ineffective assistance of counsel for impaneling allegedly biased
jurors where he cannot identify specific instances of juror bias that affected
the outcome of the case).
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5.
In his fifth and final allegation of trial counsel’s ineffectiveness, J.H.F.
complains that “counsel’s failure to properly cross-examine both
Commonwealth witnesses violates his constitutional right to confront
witnesses against him.” (J.H.F.’s Brief, at 15). He maintains that counsel
failed to challenge the witnesses’ credibility or to recall them during the
defense’s case-in-chief, without explanation, despite J.H.F.’s request that he
do so. (See id.); (see also Memorandum in Support of Amended PCRA
Petition, 6/26/19, at 2) (“Proper cross-examination of [G.R. and I.R.] would
have revealed their corrupt motive to present perjured testimony, revealing
possible biases, prejudices, or ulterior motives that relate directly to the issues
in the case at hand.”) (pagination provided).
It is well-settled that “trial decisions, especially those pertaining to the
nature and extent of cross-examination, are matters of style and tactics
involving subtle stratagems which ordinarily are within the exclusive province
of the trial counsel.” Commonwealth v. Smolko, 666 A.2d 672, 680 (Pa.
Super. 1995) (citation omitted). “Absent any showing that appellant was
harmed by counsel’s decision not to cross-examine [witnesses] more
extensively, we cannot say that trial counsel was ineffective based upon
appellant’s bald assertion that counsel should have chosen a different
strategy.” Id. This is so because, to constitute ineffective assistance,
“[c]ounsel’s approach must be so unreasonable that no competent lawyer
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would have chosen it.” Commonwealth v. Loner, 836 A.2d 125, 133 (Pa.
Super. 2003), appeal denied, 852 A.2d 311 (Pa. 2004) (internal quotation
marks and citation omitted).
In this case, J.H.F. fails to specifically identify what the complained-of
testimony was or to explain the witnesses’ “possible biases, prejudices or
ulterior motives” that would have been revealed by further cross-examination.
(See J.H.F.’s Brief, at 15; Memorandum in Support of Amended PCRA Petition,
6/26/19, at 2) (pagination provided). These boilerplate, vague allegations of
bias are insufficient to establish the underlying merit of his claim. See
Commonwealth v. Jones, 815 A.2d 598, 612 (Pa. 2002) (mere boilerplate
allegations are inadequate to meet the affirmative burden to rebut the
presumption that counsel was competent and effective).
Further, J.H.F. has failed to establish how a more thorough cross-
examination or recall of the witnesses for his case-in-chief would have
impacted the outcome of the case. Therefore, he has also failed to establish
that he was prejudiced by counsel’s actions and his claim does not merit relief.
See Bond, supra at 42; Fears, supra at 804.7
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7 Moreover, because he has failed to plead and prove that any of his
ineffectiveness of counsel claims have merit, we are not persuaded by J.H.F.’s
argument that he was prejudiced by the cumulative effect of counsel’s
performance. (See J.H.F.’s Brief, at 15-16); see also Commonwealth v.
Bardo, 105 A.3d 678, 717 (Pa. 2014) (“[N]o number of claims that have been
denied because of lack of merit can collectively warrant relief.”) (citation
omitted).
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B.
J.H.F. next claims that he is entitled to relief pursuant to Section
9543(a)(2)(i) because his constitutional rights to due process were violated
when the Commonwealth introduced perjured testimony, failed to prove each
element of the crimes with which he was charged beyond a reasonable doubt
and violated his speedy trial rights. (See J.H.F.’s Brief, at 17).
Section 9543(a)(1)(i) of the PCRA provides that:
To be eligible for relief under this subchapter, the petitioner must
plead and prove by a preponderance of the evidence … [t]hat the
conviction or sentence resulted from … [a] violation of the
Constitution of this Commonwealth or the Constitution or laws of
the United States 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.
42 Pa.C.S. § 9543(a)(2).
1.
In J.H.F.’s first constitutional claim, he alleges prosecutorial misconduct
for the Commonwealth’s alleged reliance on perjured testimony. (See J.H.F.’s
Brief, at 17-18). However, J.H.F. is not eligible for relief on this claim because
it is waived where he failed to raise it in his post-sentence motions or in a
direct appeal. See 42 Pa.C.S. §§ 9543(a)(3); 9544(b).
Additionally, although J.H.F. states that he is entitled to relief for the
Commonwealth’s reliance on G.R. and I.Z.’s allegedly perjured testimony
because “the prosecution’s failure to correct false testimony violates due
process even when the prosecution was unaware that the testimony was
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false,” he fails to identify what testimony allegedly was perjured or even claim,
let alone prove, that it “so undermined the truth determining process that no
adjudication of guilt or innocence could have taken place.” (J.H.F.’s Brief, at
17) (citing Giglio v. United States, 405 U.S. 150 (1972)); 42 Pa.C.S.
§ 9542(a)(2)(i). In fact, he provides absolutely no argument or references to
the record from which we can conduct any review. See Pa.R.A.P. 2119(a),
(c). Accordingly, this issue is waived.8
2.
Next, J.H.F. claims that the Commonwealth violated his due process
rights because it failed to prove all elements of the crimes with which he was
charged. (See J.H.F.’s Brief, at 18).
Although J.H.F. attempts to frame this as a constitutional challenge to
bring it within the purview of the PCRA, a claim that the Commonwealth failed
to prove all elements of a crime is a challenge to the sufficiency of the
evidence, which is not a cognizable PCRA claim.9 See Commonwealth v.
Bell, 706 A.2d 855, 861 (Pa. Super. 1998).
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8 Similarly, J.H.F. failed to develop this claim in any way before the PCRA
court.
9 J.H.F. claims thatI.Z.’s testimony was uncorroborated, which goes to the
weight of the evidence, not its sufficiency. (See J.H.F.’s Brief, at 18).
Challenges to the weight of the evidence are not cognizable under the PCRA.
See Commonwealth v. Price, 876 A.2d 988, 995 (Pa. Super. 2005).
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Moreover, even if it were cognizable, the record reveals that in his post-
sentence motion, J.H.F. argued that the evidence was insufficient to prove
unlawful contact with a minor because I.Z.’s testimony was inconsistent and
uncorroborated. He then filed a supplemental post-trial motion challenging
the weight of the evidence on the same basis. (See J.H.F.’s Post Sentence
Motion, 3/29/18, at 4-5); (Supplemental Post Sentence Motion, 6/03/18, at
2). The court denied both motions and J.H.F. discontinued his direct appeal.
Therefore, even if this were a cognizable PCRA claim, it was waived. 10 See
42 Pa.C.S. §§ 9543(a)(3), 9544(b).
3.
In his final constitutional argument, J.H.F. argues that his constitutional
right to a speedy trial was violated. (See J.H.F.’s Brief, at 18). Specifically,
he maintains that he was arrested and the criminal complaint was filed on
September 4, 2015, but his retrial did not begin until November 28, 2017,
thus violating his right to a speedy trial pursuant to Rule 600, and the
Commonwealth failed to prove that it exercised due diligence. (See id.).
____________________________________________
10 Moreover, the PCRA court observes that, contrary to J.H.F.’s claim that I.Z.’s
testimony was uncorroborated, the Commonwealth presented multiple
witnesses who testified in support of I.Z.’s allegations against J.H.F. The court
also notes J.H.F.’s failure to identify exactly what about her testimony was
uncorroborated and how this impacted the verdict. It was for the trier of fact
to believe all, some or none of the evidence in determining the weight to be
afforded to it, and the court did not find that the verdict shocked its sense of
justice. (See PCRA Ct. Op., at 14). Hence, this claim would fail, even if
cognizable under the PCRA.
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We first observe that this is not a cognizable PCRA claim because it is
not couched in terms of the ineffective assistance of counsel claim and is
waived because it could have been raised at trial, in a post-sentence motion
or on direct appeal. See Commonwealth v. Prout, 814 A.2d 693, 696 (Pa.
Super. 2002); 42 Pa.C.S. §§ 9543(a)(3); 9544(b). Moreover, even if it were
properly brought as an ineffectiveness claim for counsel’s failure to raise the
issue, J.H.F. would not be due any relief.
Rule 600 of the Pennsylvania Rules of Criminal Procedure “serves two
equally important functions: (1) the protection of the accused’s speedy trial
rights, and (2) the protection of society.” Commonwealth v. Watson, 140
A.3d 696, 698 (Pa. Super. 2016) (citation omitted). It directs that a
prosecution “shall commence within 365 days from the date on which the
complaint was filed.” Pa.R.Crim.P. 600(A)(2)(a). In computing the time for
Rule 600 purposes, the court shall consider only “periods of delay at any stage
of the proceedings caused by the Commonwealth when the Commonwealth
has failed to exercise due diligence.” Pa.R.Crim.P. 600(C)(1). “Any other
periods of delay shall be excluded from the computation.” Id. Dismissal of
charges is “an extreme sanction” that punishes not only the prosecutor, but
the public at large, and “should be imposed sparingly.” Commonwealth v.
Goldman, 70 A.3d 874, 881 (Pa. Super. 2013) (citations omitted). A court
“should consider dismissal of charges only where the actions of the
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Commonwealth are egregious and where the demonstrable prejudice will be
suffered by the defendant if the charges are not dismissed.” Id.J.H.F. fails to provide the calculations required to demonstrate that a
Rule 600 motion would have been successful due to the Commonwealth’s
failure to exercise due diligence; nor has he pleaded and proved any prejudice.
Hence, we conclude that the PCRA court properly found that his underlying
claim would lack merit where he fails to provide any evidence that the
Commonwealth did not exercise due diligence, and any ineffectiveness
allegation on this basis would fail. See Fears, supra at 804; Spotz, supra
at 1210. This argument does not merit relief.
C.
Finally, J.H.F. claims that the PCRA court abused its discretion by
declining to hold an evidentiary hearing on his allegations. (See J.H.F.’s Brief,
at 18-19).
“The right to an evidentiary hearing on a post-conviction petition is not
absolute.” Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa. Super.
2011). The decision to deny a request for an evidentiary hearing is within the
discretion of the PCRA court. See Commonwealth v. Mason, 130 A.3d 601,
617 (Pa. 2015).
The PCRA court declined to hold a hearing where J.H.F.’s petition
contained only “baseless and unmeritorious claims of ineffectiveness and
constitutional violations without any support contained in his petition or in the
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record[.]” (PCRA Ct. Op., at 19). We discern no abuse of discretion and J.H.F.
is due no relief on this claim.
Based on the foregoing, we conclude that the record supports the PCRA
court’s decision and we discern no legal error. See Lopez, supra at 998.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/26/2021
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