Com. v. Divalentino, A.

J-S38039-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTHONY J. DIVALENTINO :
:
: No. 1007 EDA 2022
Appeal from the PCRA Order Entered March 4, 2022,
in the Court of Common Pleas of Monroe County,
Criminal Division at No(s): CP-45-CR-0000792-2010,
CP-45-CR-0000840-2010.
BEFORE: KUNSELMAN, J., MURRAY, J., and SULLIVAN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED JANUARY 24, 2023
Anthony J. DiValentino appeals from the order granting in part and
denying in part his first petition filed under the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541–9546. DiValentino, through PCRA counsel,
argues that his trial counsel was ineffective for failing to object to the jury
having certain photographs during deliberations. Additionally, DiValentino has
filed with this Court a pro se motion to remand to appoint alternate PCRA
counsel. We affirm the PCRA court’s order and deny DiValentino’s motion.
On March 21, 2010, DiValentino struck the victim with a shoe and his
fists. Police arrested him and charged him with simple assault and harassment
at Case 792-2010. He posted bail. On April 22, 2010, the morning of the
preliminary hearing, DiValentino held the victim at gunpoint to try to keep her
from testifying against him. Police again arrested DiValentino and charged
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him with kidnapping, intimidation of a witness, recklessly endangering another
person, and other offenses at Case 840-2010. On June 10, 2010, DiValentino
was again released on bail, with the condition that he not contact the victim.
Four days after DiValentino’s release, on June 14, 2010, he ran the
victim off Interstate 84 in New York, causing her to crash. New York State
police arrested DiValentino and charged him in connection with that incident.
Later, New York charged DiValentino for soliciting another inmate to kill the
victim. New York kept DiValentino in its custody while prosecuting him.
Meanwhile, the Commonwealth repeatedly attempted to secure DiValentino’s
presence in Pennsylvania by means of a governor’s warrant and the Interstate
Agreement on Detainers (IAD), 42 Pa.C.S.A. §§ 9101–9108.
DiValentino’s Pennsylvania cases went to trial from June 21 to 23, 2016,
after his New York proceedings were completed. During the Commonwealth’s
case, it presented evidence about the New York incidents, including
photographs of the victim’s vehicle. Without objection, the photographs went
out with the jury during deliberations. The jury acquitted DiValentino of
possessing an instrument of crime and of recklessly endangering another
person and convicted him of the remaining offenses. The court imposed an
aggregate sentence of 156 to 312 months plus 90 days of incarceration
consecutive to DiValentino’s New York sentences.
This Court affirmed DiValentino’s judgment of sentence on direct appeal.
Commonwealth v. DiValentino, 2018 WL 3827259 (Pa. Super. Aug. 13,
2018) (non-precedential memorandum), allocatur denied, 202 A.3d 39 (Pa.
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Feb. 13, 2019).1 Notably, the panel addressed DiValentino’s claim that the
trial court erred by allowing the jury to hear evidence about the subsequent
events in New York, concluding that the trial court did not abuse its discretion.
Id. at *4 (finding that the New York events were res gestae evidence).
DiValentino filed his first timely pro se PCRA petition on November 25,
2019, raising fifteen claims. DiValentino and his first appointed PCRA counsel
disagreed about which issues counsel would argue from DiValentino’s pro se
petition. The PCRA court heard and granted counsel’s motion to withdraw on
July 23, 2020, appointing present PCRA counsel. DiValentino and his present
PCRA counsel had a similar disagreement, leading DiValentino to file a motion
to proceed pro se. The court held hearings on DiValentino’s petition on
January 22 and March 30, 2021. At the hearings, DiValentino elected to
maintain his representation with present counsel rather than proceed pro se.
Counsel briefed three issues before the PCRA court: (1) the harassment
sentences were illegal, (2) DiValentino was entitled to additional credit for
time served, and (3) trial counsel should have objected to the jury having the
New York photographs during deliberations. The PCRA court granted
DiValentino’s petition to change his harassment sentences from flat terms of
90 days to indefinite terms of 45 to 90 days, and it provided the requested
time credit. It denied his motion for a new trial, based on the photographs.
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1This Court directed that the parties attach a copy of Judge Mark’s opinion on
direct appeal “in the event of further proceedings in the matter.”
DiValentino, 2018 WL 3827259, at *6. This directive has not been followed.
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DiValentino timely appealed.2 DiValentino filed a concise statement of
matters complained of on appeal on May 9, 2022. The PCRA court entered
opinions on April 28 and May 19, 2022, referencing its prior opinion issued on
DiValentino’s PCRA petition. On May 20, 2022, DiValentino submitted a pro
se motion to this Court, seeking to remand for appointment of alternate PCRA
counsel. We deferred disposition of DiValentino’s motion.
In his brief, DiValentino raises one issue for our review:
Whether the PCRA court erred and abused its discretion by failing
to find that trial counsel was ineffective for failing to object to the
trial court sending to the jury photos which could be considered
to be inflammatory in nature and which had the effect of being
overly prejudicial.
DiValentino’s Brief at 6 (capitalization omitted).3
This Court’s standard of review for a PCRA ruling calls for us to
“determine whether the ruling of the PCRA court is supported by the evidence
and free of legal error. The PCRA court’s factual findings will not be disturbed
unless there is no support for the findings in the certified record.”
Commonwealth v. Webb, 236 A.3d 1170, 1176 (Pa. Super. 2020) (citing
Commonwealth v. Barndt, 74 A.3d 185, 191–92 (Pa. Super. 2013)).
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2 DiValentino’s single notice of appeal with two docket numbers violates
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). To the extent that
Walker remains viable, see Commonwealth v. Young, 265 A.3d 462 (Pa.
2021), we excuse this defect because the PCRA order referred to “an” appeal,
which constitutes a breakdown in the court system, and allows us to overlook
the waiver violation. See Commonwealth v. Stansbury, 219 A.3d 157, 160
(Pa. Super. 2019).
3 The Commonwealth did not file a brief in this appeal.
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To be entitled to PCRA relief, a petitioner must plead and prove
by a preponderance of the evidence that the conviction or
sentence under review was the result of one or more specifically
enumerated bases, the claims have not been previously litigated
or waived, and the failure to litigate the issue was not “the result
of any rational, strategic or tactical decision by counsel.” See 42
Pa.C.S. § 9543(2)–(4). An issue is previously litigated if “the
highest appellate court in which the petitioner could have had
review as a matter of right has ruled on the merits of the issue;
or it has been raised and decided in a proceeding collaterally
attacking the conviction or sentence.” 42 Pa.C.S. § 9544(a)(2),
(3). “[A]n issue is waived if the petitioner could have raised it but
failed to do so before trial, at trial, during unitary review, on
appeal or in a prior state postconviction proceeding.” 42 Pa.C.S.
§ 9544(b).
Commonwealth v. Flor, 259 A.3d 891, 902 (Pa. 2021).
Regarding a claim that counsel was ineffective:
It is well-established that to succeed on a claim asserting
the of ineffective assistance of counsel, the petitioner must plead
and prove, by a preponderance of the evidence, three elements:
(1) the underlying claim has arguable merit; (2) counsel had no
reasonable basis for his or her action or inaction; and (3) the
petitioner suffered prejudice as a result of counsel’s action or
inaction. Commonwealth v. Pierce, 527 A.2d 973, 975–76 (Pa.
1987). If a petitioner fails to satisfy any of the three prongs of
the ineffectiveness inquiry, his claim fails. Commonwealth v.
Brown, 196 A.3d 130, 150–51 (Pa. 2018).
Commonwealth v. Parrish (Parrish II), 273 A.3d 989, 1003 n.11 (Pa.
2022) (citation formatting altered).
DiValentino argues that trial counsel was ineffective for failing to object
to the jury having photographs of the victim’s crashed car from the New York
incident during its deliberations. DiValentino’s Brief at 12. He reasons that
these photographs reminded the jury not of the crimes charged in
Pennsylvania, but that DiValentino was a bad person. Id. Because trial
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counsel never objected, the court was not presented with the opportunity to
exercise its discretion to determine whether the jury would have this evidence.
Id. at 13. DiValentino indicates that trial counsel did not provide a strategic
basis for this failure, and none appears. Id. at 14. He therefore requests that
this Court grant his PCRA petition and remand for a new trial. Id. at 15.
The PCRA court first concluded that DiValentino’s claim was an attempt
to relitigate the issue that this Court had decided during DiValentino’s direct
appeal under Pennsylvania Rule of Evidence 404(b). PCRA Court Opinion,
3/2/22, at 13–14. On the merits, the PCRA court concluded that DiValentino
did not meet his burden to prove that trial counsel was ineffective:
[D]espite [DiValentino’s] assertions to the contrary, the
photographs were not “inflammatory.” There is no question that
[DiValentino’s] actions in Pennsylvania and New York, especially
when viewed as part of a continuum, were shocking. However,
the photographs do not depict a bloody or gory scene or other
images of the type that might be considered unduly prejudicial.
This assessment is borne out by the fact that [DiValentino] in his
brief [to the PCRA court] innocuously describes the exhibits as
“photos of damage to a motor vehicle allegedly caused by [his]
assault on the same victim as the Monroe County case.” Simply,
the photographs were not by themselves evidence that would
inflame the minds and passion of the jury. This is especially true
when the photographs are viewed in context and in light and as
part of the history of these cases - a history written by
[DiValentino] himself.
Relatedly, neither the admission of the photographs nor
allowing them to go out with the jury constituted an error or an
abuse of discretion.
The admission or exclusion of evidence is a matter within
the discretion of the trial court. Commonwealth v. Dillon, 863
A.2d 597[, 600] (Pa. Super. 2004) (en banc), aff’d, 925 A.2d 131(Pa. 2007). The jury may consider all evidence that is admitted
in reaching its verdict. However[,] there are rule-based and
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discretionary limits on the evidence and other materials that may
be sent out with the jury. In this regard, Pa.R.Crim.P. 646,
entitled “Material Permitted in Possession of the Jury,” provides
that:
(A) Upon retiring, the jury may take with it such exhibits as
the trial judge deems proper, except as provided in
paragraph (C).
***
(C) During deliberations, the jury shall not be permitted to
have:
(1) a transcript of any trial testimony;
(2) a copy of any written or otherwise recorded
confession by the defendant;
(3) a copy of the information or indictment; and
(4) except as provided in paragraph (B), written jury
instructions.
As Rule 646(A) suggests, the determination of what exhibits
may go out with the jury during deliberations, like the
determination of what evidence is admissible during the
evidentiary portion of trial, is a matter within the discretion of the
trial court. Commonwealth v. Haney, 131 A.3d 24[, 38–39]
(Pa. 2015). Such [a] discretionary determination may be
reversed only upon a showing of a clear abuse of discretion. “An
abuse of discretion ‘is not merely an error of judgment, but if in
reaching a conclusion the law is overridden or misapplied, or the
judgment exercised is manifestly unreasonable, or the result of
partiality, prejudice, bias or ill will, as shown by the evidence of
record, discretion is abused.’ ” Id. at 39 (quoting
[Commonwealth v. Rucci, 670 A.2d 1129, 1141 (Pa. 1996)]).
In this case, for the reasons articulated in the [trial court’s
opinion on direct appeal], the photographs were admissible under
multiple Rule 404(b) exceptions and on several other evidentiary
bases. Additionally, as discussed in this Opinion, the photographs
were not unduly prejudicial or inflammatory. Finally, the
photographs did not contain any of the material precluded from
going out with the jury under Rule 646(C). Thus, the photographs
were properly sent out with the jury.
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Simply, the referenced photographs were admissible and it
was proper to send them out with the jury. There is no merit to
[DiValentino’s] claim that the jury should not have been permitted
to review the photographs during deliberations. Since counsel
cannot be ineffective for failing to raise a meritless claim,
[DiValentino’s] ineffectiveness claim fails.
Id. at 14–16 (record citation omitted).
First, we note that DiValentino’s issue in this PCRA appeal has not been
previously litigated. On direct appeal, the relevant issue was the admission
at trial of all “the New York events.” DiValentino, 2018 WL 3827259, at *4.
Appellate counsel explained that she referred to “all of the evidence from
anything that happened outside of” Pennsylvania. N.T., 3/30/21, at 26.
Although this includes the admissibility at trial of the photographs of the
victim’s car, it does not address whether those photographs should have gone
out with the jury during deliberations. Because this Court did not address this
issue, it was not previously litigated under 42 Pa.C.S.A. §§ 9543(a)(3) and
9544(a). Further, this claim is not waived because DiValentino appropriately
waited until collateral review to raise his ineffectiveness claim. 42 Pa.C.S.A.
§ 9544(b); see Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002),
supplanted in part by Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021)
(holding generally that a defendant should wait to raise ineffectiveness claims
until collateral review, even if he has different appellate counsel).
On the merits, the PCRA court’s substantive ruling is supported by the
evidence and free of legal error. We agree that DiValentino has not shown
arguable merit to his claim that the photographic evidence of the victim’s car
should not have gone out with the jury during deliberations. Furthermore,
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DiValentino has not proven that trial counsel’s failure to object prejudiced him.
See Commonwealth v. Barnett, 50 A.3d 176, 196 (Pa. Super. 2012)
(finding no prejudice where evidence that went out with the jury was not the
only piece of evidence in the jury’s possession, was not similar to evidence
prohibited under Rule 646, and was not so inflammatory to keep the jury from
rationally evaluating the evidence and reaching a reasoned verdict).
Therefore, we affirm the PCRA court’s denial of this claim from DiValentino’s
PCRA petition.
We next address DiValentino’s motion before this Court to remand for
appointment of alternate PCRA counsel.4 DiValentino cites Commonwealth
v. Parrish (Parrish I), 224 A.3d 682 (Pa. 2020), which held Parrish’s PCRA
counsel to be ineffective per se for filing a vague Rule 1925(b) that waived all
issues for appellate review. DiValentino complains that PCRA counsel did not
maintain communication with him and abandoned issues without submitting
a letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),
and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
Instead, DiValentino states that PCRA counsel filed the instant appeal without
consulting with him and without seeking the PCRA court’s review of all his
desired issues. He concludes that he has been deprived of the right to
effective assistance of PCRA counsel, which is enforceable as announced in
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4 In his motion, DiValentino cites Pennsylvania Rule of Appellate Procedure
121(g), which allows a represented party to file “a request to change or
remove counsel” pro se. Pro se Application to Remand, 5/20/22, at 1.
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Bradley, 261 A.3d 381. DiValentino therefore requests a new attorney to
either present his desired issues in court or file a Turner/Finley letter.
In his advocate’s brief, PCRA counsel explains that he had “prepared a
modified Petition, incorporating [DiValentino’s] PCRA averments to the extent
that they had not been previously vetted through [DiValentino’s] previous
appellate actions.” DiValentino’s Brief at 8. At the PCRA hearings, “[w]hile
[DiValentino] did not agree with all of counsel’s determinations of which issues
remained unextinguished, he opted to have counsel move forward with
representation through the remainder of the PCRA process rather than return
to pro se representation.” DiValentino’s Brief at 8.
A PCRA petitioner has a rule-based right to the effective assistance of
counsel on his first PCRA petition. Pa.R.Crim.P. 904(C) (“Except [for death
penalty cases], when an unrepresented defendant satisfies the judge that the
defendant is unable to afford or otherwise procure counsel, the judge shall
appoint counsel to represent the defendant on the defendant’s first petition
for post-conviction collateral relief.”); see Bradley, 261 A.3d at 391–92
(explaining that the procedural rule provides for an enforceable right to
effective assistance of PCRA counsel). This right lasts through the appellate
process. Commonwealth v. Robinson, 970 A.2d 455, 457 (Pa. Super.
2009) (en banc).
A defendant who is represented by appointed counsel is not entitled to
counsel of his choice. Commonwealth v. Moore, 633 A.2d 1119, 1125 (Pa.
1993) (citing Commonwealth v. Johnson, 236 A.2d 805 (Pa. 1968)). For a
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defendant who is represented by appointed counsel, a court cannot grant a
motion for change of counsel “except for substantial reasons.” Pa.R.Crim.P.
122(C); see also Commonwealth v. Keaton, 45 A.3d 1050, 1070 (Pa.
2012) (providing that the decision of whether to appoint new counsel is a
discretionary determination).
Our Supreme Court held in Bradley that a criminal defendant may
“raise claims of ineffective assistance of [PCRA] counsel at the first opportunity
to do so, even when on appeal.” Bradley, 261 A.3d at 401. That is, “a PCRA
petitioner may, after a PCRA court denies relief, and after obtaining new
counsel or acting pro se, raise claims of PCRA counsel’s ineffectiveness at the
first opportunity to do so, even if on appeal.” Id.
When a court appoints counsel to represent a PCRA petitioner, appointed
counsel generally has a duty “to either (1) amend the petitioner’s pro se
Petition and present the petitioner’s claims in acceptable legal terms, or (2)
certify that the claims lack merit by complying with the mandates of
Turner/Finley.” Commonwealth v. Cherry, 155 A.3d 1080, 1083 (Pa.
Super. 2017) (citing Commonwealth v. Powell, 787 A.2d 1017 (Pa. Super.
2001)). In a case where counsel pursued certain claims and rejected others,
we evaluate a challenge to this choice by evaluating the rejected claims to see
whether counsel was ineffective for rejecting them. Commonwealth v.
Albrecht, 720 A.2d 693, 701 (Pa. 1998) (citing Commonwealth v.
Travaglia, 661 A.2d 352, 367–68 (Pa. 1995)).
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Here, DiValentino raised his claim that PCRA counsel was ineffective at
the first opportunity, by submitting a pro se letter to this Court.5 Bradley,
261 A.3d at 401. Based on the thoroughly developed record, we will review
this matter immediately rather than remand for further development in the
PCRA court. Id. at 402. We will address all fifteen claims that DiValentino
presented in his pro se petition and supplemental list to determine whether
PCRA counsel was ineffective for failing to argue them before the PCRA court
and this Court. Albrecht, 720 A.2d at 701.6 Where appropriate, the claims
summarized below include layered claims of trial and appellate counsel’s
ineffectiveness.
1. The trial court lacked jurisdiction over Case 792-2010 because
the district attorney waived prosecution by not seeking
DiValentino’s extradition at this docket number. Pro se
petition, 11/25/19, at 8–11.
2. The trial court lacked jurisdiction for the harassment charge at
Case 840-2010 because the district attorney waived
prosecution by not seeking DiValentino’s extradition for this
charge. Pro se petition, 11/25/19, at 12–14.
DiValentino’s first two claims rely on a theory that the Commonwealth’s
failure to secure a detainer at both docket numbers and for both offenses
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5DiValentino also alleged to the PCRA court that his appointed PCRA attorneys
were ineffective. Motion to Enforce the Right to Counsel on PCRA, 6/12/20;
Addendum, 6/22/20 (former counsel); Pro se Motion to Waive Counsel and
Proceed pro se on PCRA, 12/14/20; Petition to Apply an Administrative Hold
on the Resolution of the Pending PCRA, 4/22/22 (current counsel).
6 We reject DiValentino’s suggestion in his petition that counsel’s
ineffectiveness per se in a different case implies anything about counsel’s
stewardship in this case.
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deprived the trial court of jurisdiction to prosecute him. However, a violation
of the IAD does not deprive the trial court of jurisdiction. See McCandless
v. Vaughn, 172 F.3d 255, 263–64 (3d Cir. 1999) (citing Cooney v.
Fulcomer, 886 F.2d 41 (3d Cir. 1989)) (holding that the Court of Common
Pleas had personal and subject matter jurisdiction over a defendant despite
his prosecution on an offense not related to the detainer over him).
Furthermore, a defendant is not entitled to reversal for such a violation except
in cases of actual prejudice. Commonwealth v. Boyd, 679 A.2d 1284, 1289
(Pa. Super. 1996) (citing Kotteakos v. United States, 328 U.S. 750 (1946))
(finding no prejudice because the Commonwealth could have obtained the
defendant’s presence on the other charges through another detainer).
Here, the trial court’s jurisdiction did not depend on the
Commonwealth’s detainer; rather, the trial court had jurisdiction over all
charges stemming from DiValentino’s Pennsylvania crimes. 42 Pa.C.S.A.
§ 931(a); 18 Pa.C.S.A. § 102(a). Because the Commonwealth’s detainer
actions did not deprive the trial court of jurisdiction, these claims lack arguable
merit. PCRA counsel was not ineffective for forgoing these meritless claims.
Commonwealth v. Philistin, 53 A.3d 1, 10 (Pa. 2012) (citing
Commonwealth v. Jones (Jones II), 912 A.2d 278 (Pa. 2006)) (“Counsel
cannot be deemed ineffective for failing to raise a meritless claim.”).
3. Prosecuting DiValentino after the statute of limitations had
passed violated his due process and speedy trial rights. Pro se
petition, 11/25/19, at 15–20.
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DiValentino’s third claim was previously litigated. DiValentino, 2018
WL 3827259, at *2–3. Therefore, PCRA counsel was not ineffective for failing
to present it to the PCRA court. See Commonwealth v. Bridges, 886 A.2d
1127, 1132 (Pa. 2005) (rejecting as meritless a claim of ineffectiveness
premised on a previously litigated claim).
4. Because the jury acquitted DiValentino of possessing an
instrument of crime (and reckless endangerment), the
evidence was insufficient to establish that he was guilty of eight
other offenses. Pro se petition, 11/25/19, at 21–25.
DiValentino’s fourth claim is premised on his acquittal for possessing an
instrument of crime, where the Commonwealth had claimed that DiValentino
used a firearm to threaten the victim. However, none of the remaining
offenses have the possession or use of a firearm as an element. Even if they
did, an inconsistent verdict is not a basis for reversal. Commonwealth v.
Barnes, 167 A.3d 110, 120 (Pa. Super. 2017) (en banc) (citing
Commonwealth v. States, 938 A.2d 1016, 1025 (Pa. 2007), and
Commonwealth v. Petteway, 847 A.2d 713, 718 (Pa. Super. 2004)). PCRA
counsel was therefore not ineffective for failing to present this meritless claim
to the PCRA court. Philistin, supra.
5. The evidence was insufficient to prove that the victim suffered
a specific and identifiable harm, as needed for the retaliation
charge, and the jury instruction omitted this definition of harm.
Pro se petition, 11/25/19, at 26–28.
DiValentino’s fifth claim concerns his conviction for retaliation, which a
person commits “if he harms another by any unlawful act or engages in a
course of conduct or repeatedly commits acts which threaten another in
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retaliation for anything lawfully done in the capacity of witness, victim, or
party in a civil matter.” 18 Pa.C.S.A. § 4953(a). Under the first portion of
this statute, the Commonwealth must prove both harm and an unlawful act.
Commonwealth v. Ostrosky, 909 A.2d 1224, 1231–33 (Pa. 2006). “Harm”
means “some objective type of harm” beyond mere “feelings of concern and
intimidation” from a threat. Id. at 1233.
Here, the trial court’s jury instruction comported with the plain language
of Section 4953(a). We decline to graft an additional requirement to further
instruct the jury on the holding of Ostrosky, which simply relied on the
statutory text. Id. at 1231–32. Furthermore, the jury was also instructed as
to the second portion of the statute, under which the Commonwealth must
prove a course of conduct or repeated acts that threaten the victim. Id. at
1232–33 (holding that “multiple threats are necessary” to secure a conviction
under this portion). The trial evidence included DiValentino’s month-long
campaign of threatening the victim to tell her not to testify in addition to
holding her at gunpoint for an hour. This constitutes a course of conduct
consisting of multiple threats, which is sufficient under this portion of the
statute. Because DiValentino’s claim is meritless, PCRA counsel was not
ineffective for failing to litigate it. Philistin, supra.
6. The trial court violated DiValentino’s right to a fair trial by
allowing the Commonwealth to reference the New York
evidence in its opening statement. Pro se petition, 11/25/19,
at 29.
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DiValentino’s sixth claim challenges the references to the New York
evidence in the prosecutor’s opening statement. A prosecutor’s opening
statement is limited to “fair deductions from the evidence which he in good
faith plans to introduce and not mere assertions designed to inflame the
passions of the jury.” Commonwealth v. Jones (Jones I), 610 A.2d 931,
938 (Pa. 1992) (citing Commonwealth v. Hughes, 383 A.2d 882, 886 (Pa.
1978)). Because the opening statement here referenced evidence that the
prosecutor intended to introduce, which was later properly introduced, it did
not violate DiValentino’s right to a fair trial, and PCRA counsel was not
ineffective for forgoing this claim. Philistin, supra.
7. Because DiValentino was not prosecuted within the 120 days
required by the IAD, his Pennsylvania cases should be vacated
and dismissed. Pro se petition, 11/25/19, at 51–54.
DiValentino’s seventh claim implicates the rule under the IAD that “trial
shall be commenced within 120 days of the arrival of the prisoner in the
receiving state.” 42 Pa.C.S.A. § 9101, Art. IV(c). “[F]or good cause shown
in open court, the prisoner or his counsel being present, the court having
jurisdiction of the matter may grant any necessary or reasonable
continuance.” Id.; see Commonwealth v. Montione, 673 A.2d 923, 924–
26 (Pa. Super. 1996) (holding that the 120-day time limit is tolled while the
defendant’s pre-trial motions are pending, regardless of how long the trial
court takes to resolve them).
Here, DiValentino recites that he arrived in Pennsylvania “on or about
October 7, 2015,” and therefore should have been tried before February 5,
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2016. Pro se petition, 11/25/19, at 52. He faults trial counsel for having
“tried feebly to litigate this issue” before trial commenced on June 21, 2016,
258 days after his arrival. Id. at 54. A review of the record reveals that
DiValentino had motions pending during most of this time. See Motion to Bar
Commonwealth’s Use of 404(b) Evidence, filed 6/22/15, resolved 2/25/16;
Motion in Limine to Preclude Use of Illegally Obtained Voice Recordings, filed
3/28/16, resolved 5/31/16; Motion for Habeas Corpus Relief, filed 4/15/16,
resolved 5/31/16. Therefore, the 120-day limit was tolled, regardless of the
Commonwealth’s motion to extend it. Montione, supra. Because this claim
is meritless, PCRA counsel was not ineffective for failing to litigate it.
Philistin, supra.
8. The sentencing court imposed an illegal flat 9-month sentence.
Pro se petition, 11/25/19, at 55–56.
9. DiValentino sought an accounting of time credit. Pro se
petition, 11/25/19, at 57–58.
PCRA counsel presented DiValentino’s eighth and ninth claims to the
PCRA court, and the court resentenced DiValentino based on these claims.
PCRA counsel cannot be ineffective for obtaining relief on these bases.
10. The sentencing court applied a weapon enhancement despite
the acquittal for possessing an instrument of crime. Pro se
petition, 11/25/19, at 59–62.
DiValentino’s tenth claim was previously litigated on direct appeal.
DiValentino, 2018 WL 3827259, at *6–7. Therefore, PCRA counsel was not
ineffective for failing to present it to the PCRA court. Bridges, supra.
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11. Allowing the jury to have the photographs of the car in New
York violated DiValentino’s right to a fair trial. Pro se petition,
11/25/19, at 63–65.
PCRA counsel fully litigated DiValentino’s eleventh claim before the
PCRA court and this Court as described above. We do not find PCRA counsel
to be ineffective for this advocacy.
12. The evidence was insufficient to establish kidnapping, or the
statute is unconstitutionally vague, because there was no
evidence that the victim was confined “in a place of isolation.”
Pro se petition, 11/25/19, at 66–68.
DiValentino’s twelfth claim was previously litigated. DiValentino, 2018
WL 3827259, at *5–6. Therefore, PCRA counsel was not ineffective for failing
to present it to the PCRA court. Bridges, supra.
13. DiValentino’s consecutive sentences for crimes based on a
single act violate the Double Jeopardy clauses. Pro se petition,
11/25/19, at 69–71.
DiValentino’s thirteenth claim challenges his consecutive sentences
stemming from a single act. He asserts that, removing any offenses
predicated on his gun, the remaining evidence is “a single act of intemperate
speech,” which he states is constitutionally protected. Pro se petition,
11/25/19, at 70. However, as in DiValentino’s fourth claim, the convictions
are valid despite the acquittal for possessing an instrument of crime. Barnes,
supra. Further, imposing consecutive sentences for offenses with distinct
statutory elements is not a double jeopardy violation. Commonwealth v.
Baldwin, 985 A.2d 830, 835–36 (Pa. 2009). Because DiValentino’s thirteenth
claim is meritless, PCRA counsel was not ineffective for failing to pursue it.
Philistin, supra.
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14. The trial court should have declared a mistrial because the New
York evidence “violated ex post facto prohibitions.” Pro se
petition, 11/25/19, at 72–74.
DiValentino’s fourteenth claim challenges the effect of the New York
evidence at his trial. On direct appeal, we affirmed the trial court’s exercise
of discretion in allowing this res gestae evidence under Rule 404(b)(2).
DiValentino, 2018 WL 3827259, at *4. Such evidence is not limited to other
acts that occurred before the crimes being tried. See, e.g., Commonwealth
v. Kinard, 95 A.3d 279, 285 & n.3 (Pa. Super. 2014) (affirming admission of
prison phone calls made after the crime, which showed the chain of events
and course of criminal conduct). It is not an ex post facto violation to admit
evidence pursuant to an evidentiary rule, even if the rule at the time of the
offense would not have allowed for the admission of such evidence.
Commonwealth v. Allshouse, 36 A.3d 163, 186–87 (Pa. 2012) (citing
Thompson v. Missouri, 171 U.S. 380, 386–88 (1898)). Because the New
York evidence was properly admitted at DiValentino’s trial and did not violate
the United States or Pennsylvania ex post facto clauses, PCRA counsel was
not ineffective for failing to advance this meritless claim. Philistin, supra.
15. The trial court lacked jurisdiction over the kidnapping charges
because the Commonwealth improperly reinstated them after
agreeing to remove them in exchange for DiValentino waiving
his preliminary hearing. Pro se motion to amend/supplement
the PCRA filed, 8/17/20, at 2–3.
DiValentino moved to add his final claim after counsel was appointed.
He states that he agreed to waive his preliminary hearing in exchange for the
Commonwealth removing his kidnapping charges, only for those charges to
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be reinstated. DiValentino contends that the trial court lacked jurisdiction
over those charges because the Commonwealth failed to follow Pennsylvania
Rule of Criminal Procedure 544 when it reinstated them. However, the
Commonwealth’s failure to follow the provisions of Rule 544 does not deprive
the trial court of subject matter jurisdiction. Commonwealth v. Jones, 929
A.2d 205, 211–12 (Pa. 2007). Therefore, this claim is meritless, and PCRA
counsel was not ineffective for failing to argue it. Philistin, supra.
DiValentino’s PCRA counsel ultimately presented three issues before the
PCRA court. Counsel obtained relief on two of these issues and has fully
litigated the third issue before this Court in this appeal. The remaining claims
that DiValentino faults PCRA counsel for not raising have been previously
litigated, are meritless, or would not otherwise entitle DiValentino to relief.
Therefore, PCRA counsel was not ineffective for failing to pursue these claims
before the PCRA court or in this appeal. Accordingly, we find no substantial
reason to remand for the appointment of alternate PCRA counsel.
Pa.R.Crim.P. 122(C).
Order affirmed. Motion to remand for appointment of alternate PCRA
counsel denied. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/24/2023
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