Com. v. Welsh, D.

J-S51041-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DOUGLAS DEAN WELSH, :
:
Appellant : No. 1850 MDA 2018
Appeal from the PCRA Order Entered February 21, 2017
in the Court of Common Pleas of Columbia County
Criminal Division at No(s): CP-19-CR-0000829-2007
BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED: NOVEMBER 21, 2019
Douglas Dean Welsh (“Welsh”), pro se, appeals from the Order denying
his first Petition filed pursuant to the Post Conviction Relief Act (“PCRA”). See
42 Pa.C.S.A. §§ 9541-9546. We affirm in part, vacate the underlying
judgment of sentence to the extent that it designates Welsh as a sexually
violent predator (“SVP”) under Pennsylvania’s Sex Offender Registration and
Notification Act (“SORNA”), 42 Pa.C.S.A. §§ 9799.10-9799.41, and remand
with instructions.
In September 2010, a jury convicted Welsh of aggravated indecent
assault, corruption of minors, indecent assault and criminal conspiracy, arising
out of his myriad sexual offenses committed against a minor female and her
younger brother, over several years. Prior to sentencing, the Commonwealth
provided Welsh Notice of its intent to seek imposition of a mandatory minimum
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sentence of life in prison, pursuant to 42 Pa.C.S.A. § 9718.2(a)(2).1 Moreover,
due to the nature of the charges, the trial court ordered Welsh to undergo an
assessment by the Sexual Offenders Assessment Board to determine whether
he should be classified as an SVP under the version of Megan’s Law then in
effect, Megan’s Law III, 42 Pa.C.S.A. § 9795.1 et seq. (expired). At the
conclusion of the February 22, 2011 sentencing/SVP hearing, the trial court
imposed an aggregate sentence of life in prison.2 Additionally, the court
determined that Welsh met the definition of an SVP, and informed him that
he was required to register and report as a Tier III sexual offender for his
lifetime.
On direct appeal, this Court affirmed Welsh’s judgment of sentence,
after which our Supreme Court denied allowance of appeal. See
Commonwealth v. Welsh, 60 A.3d 562 (Pa. Super. 2012) (unpublished
memorandum), appeal denied, 76 A.3d 540 (Pa. 2013).
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1 Because Welsh was a “third strike” sexual offender due to his prior criminal
record, a mandatory minimum sentencing statute applied: 42 Pa.C.S.A.
§ 9718.2(a)(2) (providing that “[w]here the person had[,] at the time of the
commission of the current offense[,] previously been convicted of two or more
offenses arising from separate criminal transactions set forth in section
9799.14 [(governing sexual offenses and tier system),] or equivalent crimes
under the laws of this Commonwealth in effect at the time of the commission
of the offense …, the person shall be sentenced to a term of life
imprisonment….”).
2 The court imposed two separate terms of life in prison, one as to each of the
victims.
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On August 15, 2014, Welsh filed the instant, timely, pro se PCRA
Petition, his first. In response, the PCRA court appointed Welsh counsel, who
filed a Supplement to the PCRA Petition. Following a procedural history not
relevant to this appeal, the PCRA court conducted a hearing on December 9,
2016. By an Opinion and Order entered on February 21, 2017, the PCRA court
denied Welsh’s PCRA Petition.
Welsh timely filed a pro se Notice of Appeal, nunc pro tunc.3 The PCRA
court ordered Welsh to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal, and Welsh timely complied.
On appeal, Welsh raises the following questions for our review:
I. Whether the PCRA court erred and abused it[]s discretion in
illegally sentencing [Welsh] to two life sentences pursuant to
42 Pa.C.S.A. § 9718, and/or failing to correct [Welsh’s] two
illegal life sentences pursuant to [section] 9718, when raised
in a timely PCRA Petition?
II. Whether the PCRA court erred and abused it[]s discretion in
dismissing [Welsh’s] PCRA Petition[,] where all prior
counsel(s) rendered ineffective assistance of counsel[,] in
violation of the Sixth Amendment of the United States
Constitution?
III. Whether the retroactive application of [SORNA] to [Welsh] is
illegal and violates both the state and federal Constitutions[’]
ex post facto clauses and/or[,] in the alternative[,] whether
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3 In response to a per curiam Order that this Court issued to the PCRA court,
the court explained that Welsh had requested to represent himself. The court
further stated that it had conducted a hearing pursuant to Commonwealth
v. Grazier, 713 A.2d 81 (Pa. 1998), and determined that Welsh was waiving
his right to counsel knowingly, intelligently, and voluntarily. Cf.
Commonwealth v. Padden, 783 A.2d 299, 308 (Pa. Super. 2001) (stating
that, absent a waiver pursuant to Grazier, a first-time pro se PCRA petitioner
is entitled to the benefit of the assistance of counsel on appeal).
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the SORNA statute’s requirement that [Welsh] register under
a formal sexual offender registration law of this
Commonwealth (Megan’s Law III) violates [Welsh’s] right to
due process and constitutes an illegal sentence?
Brief for Appellant at 3 (issues renumbered, some capitalization omitted).
In reviewing an order denying a PCRA petition, this Court’s standard of
review is limited to “whether the [PCRA] court’s legal conclusions are correct
and whether its factual findings are clearly erroneous.” Commonwealth v.
Edwards, 177 A.3d 963, 971 (Pa. Super. 2018).
In his first issue, Welsh argues that the trial court’s imposition of a
mandatory minimum sentence of life in prison, pursuant to 42 Pa.C.S.A.
§ 9718.2(a)(2),4 was unconstitutional pursuant to Alleyne v. United States,
570 U.S. 99 (2013), and the Pennsylvania Supreme Court’s subsequent
decision in Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016). See Brief
for Appellant at 14-18. We disagree.
This Court has explained the holding in Alleyne as follows:
According to the Alleyne Court, a fact that increases the
sentencing floor is an element of the crime. Thus, it ruled that
facts that mandatorily increase the range of penalties for a
defendant must be submitted to a fact-finder and proven beyond
a reasonable doubt. The Alleyne decision, therefore, renders
those Pennsylvania mandatory minimum sentencing statutes that
do not pertain to prior convictions constitutionally infirm
insofar as they permit a judge to automatically increase a
defendant’s sentence based on a preponderance of the evidence
standard.
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4 Welsh does not dispute that he was previously convicted of qualifying
offenses under subsection 9718.2(a)(2), including involuntary deviate sexual
intercourse and indecent assault.
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Commonwealth v. Watley, 81 A.3d 108, 117 (Pa. Super. 2013) (en banc)
(emphasis added; footnotes omitted); see also Alleyne, 570 U.S. at 111 n.1
(upholding the Supreme Court’s prior holding in Almendarez-Torres v. U.S.,
523 U.S. 224 (1998), that the fact of a prior conviction does not need to be
submitted to the jury and found beyond a reasonable doubt); see
also Commonwealth v. Golson, 189 A.3d 994, 1001-02 (Pa. Super. 2018)
(upholding imposition of a 25-year mandatory minimum sentence pursuant
to 42 Pa.C.S.A. § 9718.2, based upon a prior conviction).
In the instant case, the sentencing court applied mandatory minimum
sentences under subsection 9718.2(a)(2), based upon Welsh’s prior
convictions of qualifying offenses under that statute. Therefore, Welsh’s
sentence is not illegal and does not run afoul of Alleyne.5 See Watley,
supra. Moreover, the Pennsylvania Supreme Court has held that Alleyne is
not applicable retroactively to cases on PCRA review. Commonwealth v.
Washington, 142 A.3d 810, 820 (Pa. 2016). Accordingly, Welsh’s first issue
entitles him to no relief.
In his second issue, Welsh avers that all prior counsel rendered
ineffective assistance, in numerous respects, as follows:
 Trial counsel was ineffective for failing to amend the Petition
for Allowance of Appeal Welsh filed in the Pennsylvania
Supreme Court in 2012, to include a challenge to the legality
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5 Further, Welsh’s reliance on Wolfe, supra, is misplaced because that case
did not involve the imposition of a mandatory minimum based on a prior
conviction, but rather, the age of the victim.
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of Welsh’s life sentence pursuant to Alleyne and its progeny.
See Brief for Appellant at 24-30; see also id. at 30 (wherein
Welsh raises a “layered” ineffectiveness claim against PCRA
counsel for failing to assert trial counsel’s ineffectiveness in this
regard before the PCRA court).
 Trial counsel was ineffective for failing to request dismissal of
all of the charges against Welsh. See id. at 31-37 (hereinafter
referred to as the “warrant ineffectiveness claim”).
Specifically, the allegations contained in the search warrant
concerning Welsh’s residence were stale, as being asserted
over three years after the last alleged criminal conduct in 2007,
and thus, the warrant was not supported by probable cause.
See id. at 32. Moreover, the Commonwealth purportedly did
not allege a continuing course of criminal conduct, and this
case did not involve the possession of child pornography. See
id. at 33.
 Trial counsel was ineffective for failing to move for severance
of Welsh’s jury trial from that of his codefendant, where Welsh
was ready to proceed to trial, but his codefendant’s case was
“stalled” due to a pre-trial appeal, which resulted in a violation
of Welsh’s right to a speedy trial. See id. at 38-41 (hereinafter
referred to as the “severance ineffectiveness claim”).
 PCRA counsel was ineffective for failing to conduct an
investigation into purported new evidence that the prosecuting
attorney had engaged in misconduct by coaching and
permitting the female victim to lie in her testimony, and by
failing to request a court-appointed private investigator to
locate and interview this victim’s foster father, who also
sexually abused the victim. See id. at 41-47 (hereinafter
referred to as the “prosecutorial misconduct ineffectiveness
claim”).
 Trial counsel was ineffective for failing to object to the
admission of prior bad act evidence that Welsh had
inappropriately touched the female victim during a trip to
Florida, where the victim’s trial testimony belied this evidence.
See id. at 47-51 (hereinafter referred to as the “prior bad act
ineffectiveness claim”).
 Trial counsel was ineffective for failing to request a jury
instruction pursuant to 18 Pa.C.S.A. § 301 (requirement of
voluntary act), and argue to the jury that Welsh’s act at the
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time that he touched the female victim’s genitals was not a
voluntary act, where the victim’s testimony purportedly
established that this touching had occurred while Welsh was
sleeping. See id. at 51-56 (hereinafter referred to as the
“involuntary act ineffectiveness claim”).
To be entitled to relief for ineffective assistance of counsel, a PCRA
petitioner must establish that (1) the underlying claim is of arguable merit;
(2) there was no reasonable basis for counsel’s action or failure to act; and
(3) but for counsel’s error, there is a “reasonable probability the result of the
proceeding would have been different.” Commonwealth v. Treiber, 121
A.3d 435, 444 (Pa. 2015); see also id. at 445 (stating that “counsel cannot
be deemed ineffective for failing to raise a meritless claim.” (citation
omitted)). Failure to satisfy any of the three prongs is fatal to a claim of
ineffective assistance of counsel. Commonwealth v. Spotz, 84 A.3d 294,
311 (Pa. 2014). Counsel is presumed to provide effective assistance, and it
is solely the petitioner’s burden to prove ineffectiveness. See id.
Initially, concerning Welsh’s claim that trial counsel was ineffective for
failing to amend Welsh’s Petition for Allowance of Appeal to include an Alleyne
sentencing challenge, the underlying claim lacks merit for the reasons we
discussed above, in connection with Welsh’s first issue. Thus, trial counsel
cannot be deemed ineffective for failing to raise this claim. See Treiber,
supra.
Next, concerning the warrant ineffectiveness claim, in its Opinion and
Order, the PCRA court addressed this claim, and set forth the applicable law,
as follows:
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“Settled Pennsylvania law establishes that stale information
cannot provide probable cause in support of a warrant.”
Commonwealth v. Janda, 14 A.3d 147, 158 (Pa. Super. 2011)
(citation omitted). In particular:
[A]ge of the information supporting a warrant application
is a factor in determining probable cause. If too old, the
information is stale, [] and probable [cause] may no
longer exist. Age alone, however, does not determine
staleness. The determination of probable cause is not
merely an exercise in counting the days or even months
between the facts relied on and the issuance of the
warrant. Rather, we must also examine the nature of the
crime and the type of evidence.
Id. at 158-[]59 [(citation omitted)]. Corroborative information
need not be current for it to be properly considered by the
magistrate[,] so long as it relates to prior conduct sufficiently
similar to the acts in question. Commonwealth v.
Weidenmoyer, 539 A.2d 1291, 1295 (Pa. Super. 1988).
Additionally, “a showing that criminal activity is likely to have
continued up to the time of the issuance of a warrant renders
otherwise stale information viable.” Commonwealth v. Jones,
668 A.2d 114, 118 (Pa. 1995).
In the case at bar, the victims reported the alleged abuse to
authorities on June 11, 2007. Both victims alleged the abuse
occurred over a course of years, and the August 29, 2007 search
warrant application and affidavit of probable cause reflect this
allegation. One of the victims alleged [that] the abuse would
occur when she stayed over at [Welsh’s] house, which was at least
once a week. The description of the alleged abuse[,] within the
search warrant application and affidavit of probable cause[,]
sufficiently establishes an alleged course of criminal conduct by
[Welsh]. The fact that some of the alleged abuse occurred years
before the search warrant was issued is of no moment due to the
establishment of an alleged course of criminal conduct. After
receiving the allegations of abuse from the victims, the authorities
moved expeditiously to secure a search warrant. The [c]ourt finds
[that] the information underlying the issuance of the search
warrant was not stale, and thus[,] the issue is not of arguable
merit. Therefore, [Welsh’s] trial counsel was not ineffective for
failing to f[u]rther develop the staleness issue during [Welsh’s]
case.
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PCRA Court Opinion and Order, 2/21/17, at 3-4; see also id. at 1 (finding
that “trial counsel raised the search warrant staleness issue several times
during Welsh’s case.”). As the PCRA court’s cogent rationale is amply
supported by the law and record, we affirm on this basis in rejecting Welsh’s
instant ineffectiveness claim. See id. at 3-4.
Concerning Welsh’s remaining claims of ineffectiveness of counsel (i.e.,
the severance ineffectiveness claim, prosecutorial misconduct ineffectiveness
claim, prior bad act ineffectiveness claim, and involuntary act ineffectiveness
claim), Welsh waived these claims for his failure to raise them in his pro se
PCRA Petition, or in PCRA counsel’s Supplement to the Petition. See
Commonwealth v. Washington, 927 A.2d 586, 601 (Pa. 2007) (stating that
“[a]ny claim not raised in the PCRA petition is waived and not cognizable on
appeal.” (citing Pa.R.A.P. 302(a) (providing that “issues not raised in the lower
court are waived and cannot be raised for the first time on appeal.”)).6
Nevertheless, even if these claims were not waived, our review discloses that
they would not entitle Welsh to relief, as they lack arguable merit. See Spotz,
supra.
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6 Furthermore, the fact that Welsh raised these claims in his Rule 1925(b)
Concise Statement does not preserve them on appeal. See Commonwealth
v. Melendez-Rodriguez, 856 A.2d 1278, 1288 (Pa. Super. 2004) (en banc)
(holding that “[a] party cannot rectify the failure to preserve an issue by
proffering it in response to a Rule 1925(b) order.”) (citation omitted).
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In his third and final issue, Welsh contends that his SVP designation is
unlawful and in violation of our State and Federal Constitutions’ ex post facto
clauses. See Brief for Appellant at 19-23.7 We agree, in accordance with this
Court’s decision in Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super.
2017), which in turn applied Alleyne and our Supreme Court’s decision in
Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017).
The Muniz Court held that the registration requirements under SORNA
constitute criminal punishment, as opposed to a civil penalty; therefore, their
retroactive application violates the ex post facto clauses of the United States
and Pennsylvania Constitutions. Muniz, 164 A.3d at 1193. Subsequently,
this Court in Butler held that “section 9799.24(e)(3) of SORNA [(regarding
SVP designation)8] violates the federal and state constitutions[,] because it
increases the criminal penalty to which a defendant is exposed without the
chosen fact-finder making the necessary factual findings beyond a reasonable
doubt.” Butler, 173 A.3d at 1218 (footnote added).
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7 Though Welsh raised this challenge to the legality of his sentence for the
first time in his Rule 1925(b) Concise Statement, we may nevertheless review
it. See Commonwealth v. Adams-Smith, 209 A.3d 1011, 1022 (Pa. Super.
2019) (reiterating the general rule that the legality of sentence can be raised
by this Court sua sponte, in the context of a timely PCRA petition).
8 Specifically, 42 Pa.C.S.A. § 9799.24(e)(3) provides that “[a]t the hearing
prior to sentencing, the court shall determine whether the Commonwealth has
proved by clear and convincing evidence that the individual is a [SVP].”
(emphasis added).
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Here, the trial court conducted an SVP hearing and found Welsh to be
an SVP under the now-unconstitutional SVP mechanism. Accordingly, we
conclude that the trial court’s Order deeming Welsh to be an SVP is
unconstitutional, which renders the sentence illegal. See Muniz, supra;
Butler, supra.9 We thus affirm in part, vacate the judgment of sentence (to
the extent that it requires registration and reporting requirements under
SORNA), vacate Welsh’s SVP designation, and remand this matter for the sole
purpose of having the trial court issue Welsh appropriate notice of his
registration obligations. See Butler, 173 A.3d at 1218; Adams-Smith, 209
A.3d at 1024.
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9 We acknowledge the Commonwealth’s argument that, prior to Welsh’s
instant convictions (for which he will be incarcerated for his lifetime), Welsh
was already reporting as a sexual offender for his lifetime under Megan’s Law
III. Panel decisions of this Court appear to be split on this issue. Compare
Commonwealth v. Haughwout, 198 A.3d 403, 405 (Pa. Super. 2018)
(holding that there was no Muniz violation where the defendant was already
subject to lifetime registration under Megan’s Law I), appeal denied, 207 A.3d
905 (Pa. 2019), with Commonwealth v. Horning, 193 A.3d 411, 416-17
(Pa. Super. 2018) (holding that SVP registration under SORNA violated Muniz
even though the defendant would have been required to register for his
lifetime under Megan’s Law II. Specifically, though the defendant’s
registration period remained the same, SORNA “augment[ed] the registration
requirements …, which included quarterly in-person reporting and the posting
of [] personal information on the Pennsylvania State Police website.”), appeal
denied, 204 A.3d 370 (Pa. 2019), and Adams-Smith, 209 A.3d at 1022-23
(holding that although the defendant’s sexual assault convictions carried
lifetime registration under both Megan’s Law III and SORNA, the imposition of
SORNA violated the ex post facto clause because of increased reporting
requirements).
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Order affirmed in part; SORNA requirements and SVP status vacated;
judgment of sentence affirmed in all other respects; case remanded with
instructions; jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/21/2019
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