Com. v. Myrick, S.

J-S48025-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAUN MYRICK :
:
Appellant : No. 1574 EDA 2018
Appeal from the PCRA Order May 11, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004215-2012
BEFORE: BOWES, J., SHOGAN, J., and STRASSBURGER, J.*
MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 12, 2019
Appellant, Shaun Myrick, appeals pro se from the May 11, 2018 order
denying his petition filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S. §§ 9541–9546. We affirm the PCRA order but remand to the PCRA
court for proceedings consistent with this Memorandum.
Appellant was convicted of repeatedly raping D.B. and committing
involuntary deviate sexual intercourse and other crimes beginning when the
child was ten years old. The PCRA court detailed the facts of the crimes in its
Pa.R.A.P. 1925(a) opinion, and we will not repeat them here except to the
extent it is necessary to our analysis of this case. The procedural history is
as follows:
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* Retired Senior Judge assigned to the Superior Court.
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On March 19, 2013, a jury found [Appellant] guilty of rape
(18 Pa.C.S. § 3121(a)(1);involuntary deviate sexual intercourse
(“IDSI”) (18 Pa.C.S. § 3123(a)(1); unlawful contact with a minor
(18 Pa.C.S. § 6318(a)(1); aggravated indecent assault (18
Pa.C.S. § 3125(a)(1);endangering the welfare of children
[(“EWOC”)] (18 Pa.C.S. § 4304(a)(1); and corruption of minors
(18 Pa.C.S. § 6301(a)(1). On August 7, 2013, the trial court
sentenced Appellant to an aggregate term of twenty to forty years’
incarceration.[1]
[Appellant’s] first appeal was filed on August 22, 2013. On
April 20, 2015, the Superior Court of Pennsylvania affirmed
[Appellant’s] judgment of sentence. See Commonwealth v.
Myrick, 121 A.3d 1136[, 2367 EDA 2013] (Pa. Super. [filed April
20,] 2015) (unpublished memorandum).
[Appellant] filed a pro se [PCRA] petition on April 20, 2016[,
and counsel was appointed on August 8, 2016]. On July 26, 2017,
[Appellant’s] court-appointed counsel filed an amended petition.
On March 2, 2018, the PCRA Court issued a dismissal notice under
Rule 907. On May 11, 2018, the PCRA Court dismissed the
Petition.
PCRA Court Opinion, 10/1/18, at 1–2.
Appellant filed a timely notice of appeal on May 18, 2018. Both
Appellant and the PCRA court complied with Pa.R.A.P. 1925. In the interim,
on August 28, 2018, Appellant filed a motion to proceed pro se. The PCRA
court held a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81
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1 After a hearing, the trial court determined that Appellant was a sexually
violent predator (“SVP”) pursuant to the Sexual Offender Registration and
Notification Act (“SORNA”). Commonwealth v. Myrick, 121 A.3d 1136,
2367 EDA 2013 (Pa. Super. filed April 20, 2015) (unpublished memorandum
at *1).
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(Pa. 1998), on October 26, 2018,2 and granted Appellant’s motion. Order,
10/26/18.
Appellant raises the following issues on appeal:
1. Whether PCRA counsel was ineffective for failing to raise
Appellant’s original pro-se PCRA petition claim regarding, trial
counsel was ineffective for failing to object to hearsay evidence
under the confrontation clause[?]
2. Whether trial counsel was ineffective for failing to object to
hearsay evidence, that resulted in a constitutional violation
against Appellant under the Confrontation Clause[?]
3. Whether trial counsel was ineffective for failing to call witnesses
who were willing and available to testify on behalf of Appellant[?]
4. Whether trial counsel was ineffective for entering into a
stipulation[?]
5. Whether the PCRA court errored [sic] in dismissing Appellant’s
first PCRA, after Appellant established his PCRA counsel was
ineffective for failing to raise his original claims[?]
Appellant’s Brief at 6 (unnecessary capitalization omitted).
When reviewing the propriety of an order denying PCRA relief, this Court
is limited to determining whether the evidence of record supports the
conclusions of the PCRA court and whether the ruling is free of legal error.
Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016). The PCRA
court’s findings will not be disturbed unless there is no support for them in the
certified record. Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa. Super.
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2 A representative of the Superior Court’s Prothonotary sought a transcript
from this hearing but was informed that the notes of testimony were never
transcribed, and the court reporter is no longer available to do so.
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2014). Moreover, we consider the record in the light most favorable to the
prevailing party at the PCRA level. Commonwealth v. Mason, 130 A.3d
601, 617 (Pa. 2015); Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.
2014) (en banc). Where there are allegations of ineffectiveness of counsel,
as here, the claims alleged must have “so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could have taken
place.” Commonwealth v. Cousar, 154 A.3d 287, 296 (Pa. 2017); 42
Pa.C.S. § 9543(a)(2). In addition, a PCRA petitioner must show that the
claims of error have not been previously litigated or waived. 42 Pa.C.S. §
9543(a)(3). Commonwealth v. Blakeney, 108 A.3d 739, 749 (Pa. 2014).
“An issue has been waived ‘if the petitioner could have raised it but failed to
do so before trial, at trial, on appeal or in a prior state post conviction
proceeding.’” 42 Pa.C.S. § 9544(b); Blakeney, 108 A.3d at 749. The PCRA
court’s findings will not be disturbed unless there is no support for them in the
certified record. Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa. Super.
2014).
Appellant’s issues one, two, four, and five allege ineffective assistance
of counsel relating to the admission of Department of Human Services (“DHS”)
records.3 Appellant’s Brief at 9, 10–11, 19–20. Appellant contends trial
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3 We note that due to Appellant’s presentation of the issues in his brief, it is
difficult to ascertain with precision and clarity the claims Appellant seeks to
raise. We have stated:
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counsel should have objected to the records as hearsay rather than stipulating
to them. Appellant posits an undeveloped argument that PCRA counsel was
ineffective for failing to raise Appellant’s “original pro-se p.c.r.a. petition
claim” that trial counsel was ineffective for failing to object to the admission
of the DHS records as hearsay, thereby violating his right of confrontation.
Appellant’s Brief at 9. He subsequently expands this claim by asserting the
PCRA court should have allowed him to file a supplemental petition challenging
PCRA counsel’s representation in this regard. Id. at 21.4 Appellant suggests
that trial counsel was ineffective “for failing to insure that an on-the-record
colloquy was held by the [trial] court before acceptance of the
stipulation . . . .” Appellant’s Brief at 19. None of these claims are a basis for
relief.
The PCRA court explained:
The DHS reports contained, among other things, biological
information, safety descriptions, dangers, and threats to
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Although this Court is willing to construe liberally materials filed
by a pro se litigant, a pro se appellant enjoys no special benefit.
Accordingly, pro se litigants must comply with the procedural rules
set forth in the Pennsylvania Rules of the Court. Commonwealth
v. Lyons, 833 A.2d 245, 251–52 (Pa. Super. 2003). “This Court
will not act as counsel and will not develop arguments on behalf
of an appellant. Coulter v. Ramsden, 94 A.3d 1080, 1088 (Pa.
Super. 2014).”
Commonwealth v. Tchirkow, 160 A.3d 798, 804 (Pa. Super. 2017).
4 As PCRA counsel did raise the claim, Amended PCRA Petition, 7/26/17, at
13–17, there is no merit to Appellant’s contention.
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[Appellant’s] children within 72 hours, conclusions regarding the
extent of the abuse, a statement by the victim describing the
abuse, and a letter to [Appellant] informing him that they had
found substantial evidence of abuse. N.T. 3/18/13, 48-54.
It was reasonable for trial counsel to stipulate to this
evidence. If trial counsel had refused to stipulate, the
Commonwealth could have called the DHS social workers to testify
as to exactly what was written in the reports. The testimony
would have expanded upon the evidence. The stipulation lessened
the impact of the evidence on the jury. See Commonwealth v.
Birdsong, 24 A.3d 319, 335 (Pa. 2011) (where counsel “agreed to
the facts contained in the police report, which would have been
admitted in a manner far more prejudicial to the defense had he
not done so . . . we cannot say such decision was without
reasonable basis”); Commonwealth v. Cheatham, 615 A.2d 802,
807 (Pa. Super. 1992) (“stipulating...was clearly a trial strategy
designed to lessen the emotional impact of testimony, a
reasonable strategy under the facts of this case and one which we
will not second guess”).
The information from the DHS reports was contained in the
Complainant’s testimony describing her years of abuse. (N.T.
3/15/13, 40-70). The Complainant’s testimony alone was
sufficient to support the convictions. See Commonwealth v. Jette,
818 A.2d 533, 534 (Pa. Super. 2003) (“In the case of sexual
offenses, the testimony of the victim alone is sufficient to convict,
and medical evidence is not required if the fact finder believes the
victim”).
[Appellant] has “failed to establish that had trial counsel not
stipulated to the report...the outcome of the case would have been
different....” Commonwealth v. Fletcher, 986 A.2d 759, 789 (Pa.
2009). Since counsel had a reasonable basis to stipulate, and
[Appellant] was not prejudiced by the stipulations, his claim fails.
[Appellant] also claims he also should have been colloquied
regarding the stipulations. However, a colloquy is required only
when a defendant stipulates to evidence that virtually assures his
conviction. See Commonwealth v. Davis, 322 A.2d 103, 105 (Pa.
1974). “In Davis, our Supreme Court recognized that testimony
entered by counsel’s stipulation may be so damaging that
admission of the stipulation at trial must be, surrounded by
safeguards similar to those attending the entry of a guilty plea.”
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Commonwealth v. Bridell, 384 A.2d 942, 944 (Pa. Super. 1978).
“Davis, however, does not require a trial court to conduct an on-
record colloquy whenever defense counsel stipulates to evidence
which is potentially damaging to his client.... The Davis decision
relates only to a particular situation in which the stipulation
involved is so damaging that it constitutes an admission of guilt.”
Id. (quoting Commonwealth v. Overton, 352 A.2d 106 (1975)).
Essentially, the test is whether the stipulation in question makes
“the outcome of the trial a foregone conclusion.” Id. (quoting
Davis, 322 A.2d at 105).
The only information in the DHS reports that directly
inculpated [Appellant] came from the victim, who testified at trial
and was subject to cross-examination. The stipulation did not
assure [Appellant’s] convictions and trial counsel’s stipulation was
simply a matter of trial strategy. No colloquy was required.
PCRA Court Opinion, 10/1/18, at 5–7. We agree with the PCRA court’s
analysis. DHS records were introduced merely to show the steps taken in the
investigation of the case and to explain how Appellant’s abuse of the victim,
some of which occurred years earlier, had come to police attention.
Accordingly, the PCRA court did not err in concluding that Appellant’s
ineffectiveness claim lacked arguable merit.
In his remaining issue, Appellant argues trial counsel was ineffective for
failing to present testimony of two witnesses: the victim’s brother, Hafiz
Myrick, who was an adult when the abuse of D.B. began, and Appellant’s
friend, Lamont Walker. Appellant’s Brief at 15–17.5 According to Hafiz Myrick,
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5 While he makes no mention of it in his appellate brief, Appellant also
attached an affidavit of Gail Myrick, Appellant’s mother, to his amended PCRA
petition. Amended PCRA Petition, 7/26/17, at Exhibit B. In that affidavit,
Appellant’s mother stated she observed Hafiz Myrick and Lamont Walker
approach counsel at trial. Id.
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during Appellant’s trial, he told Appellant’s counsel that he was ready and
willing to testify on Appellant’s behalf. Id. at Exhibit A. Hafiz Myrick
contended that he “never witnessed any improper contact between
[Appellant] and [D.B.],” and he knew D.B. so well that he “would have known
if she was upset or depressed.” Id.
According to Lamont Walker, who also attended Appellant’s trial, he was
introduced to Appellant’s counsel at that time. Amended PCRA Petition,
7/26/17, at Exhibit A. Walker asserts that he told counsel he was ready and
willing to testify on Appellant’s behalf, that Appellant had a “very strong and
positive reputation for truthfulness and [for] being a loving and supportive
father to his children.” Id.
The PCRA court addressed this ineffectiveness claim as follows:
[Appellant] alleges that Hafiz Myrick would have testified
that he lived in the same house as [Appellant] and the victim and
“never witnessed any improper contact,” that he “never saw the
victim depressed, afraid, or uncomfortable,” that he was close
with [D.B.] and “would have known if she was upset or
depressed,” that there “was no reason she would not have told
me she was being abused,” that he “never heard anything about
these allegations until she ran away,” and that their home was
“loving and supportive.” Appendix A of the Amended Petition,
Affidavit of Hafiz Myrick; also see Commonwealth’s Motion to
Dismiss at 11.
Hafiz Myrick’s testimony would not have rebutted the
Complainant’s testimony about [Appellant’s] sexual abuse. All of
the abuse happened outside of Hafiz’s presence, so his potential
testimony that he would have known about any abuse and that
the Complainant would have told him is irrelevant. The
Complainant testified that she did not tell Hafiz Myrick about the
abuse because “he was still [Appellant’s] son. That’s not a person
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I would go to for that. I didn’t think he would probably believe
me anyway.” (N.T. 3/15/13, 105).
[Appellant] also alleges that Lamont Walker would have
testified that he knew [Appellant] for thirty years and that he lived
with the family in 2011, that he had “never witnessed or known
[sic] [Appellant] to ever participate in any violent acts or be a
violent person,” and that [Appellant] “has a very strong and
positive reputation for truthfulness and being a loving and
supportive father to his children.” Appendix A of the Amended
Petition, Affidavit of Lamont Walker; also see Commonwealth’s
Motion to Dismiss at 11-12.
Lamont Walker’s testimony would not have altered the
outcome of the trial or undermined the verdict in any way. See
Commonwealth v. Johnson, 139 A.3d at 1284-85. Lamont
Walker’s potential [testimony] would not be able to speak to the
specific instances of abuse and only concerned [Appellant’s]
reputation. See Commonwealth v. Sneed, 45 A.3d 1096, 1109
(Pa. 2012) (“Since the statements do not exculpate [Appellant]...
[he] has not demonstrated prejudice. As such, counsel cannot be
deemed ineffective, and the PCRA court did not err in denying this
claim without a hearing”).
PCRA Court Opinion, 10/1/18, at 8–9.
At trial, D.B. never testified that Hafiz Myrick or Lamont Walker or any
other adult ever witnessed Appellant’s sexual abuse of her. Indeed, her
testimony indicated that the abuse occurred when she was alone with
Appellant. See, e.g., N.T., 3/15/13, at 74, 79–82). The only exceptions were
an incident that occurred when Appellant’s four-year old son, I.M., was asleep
in the same bed and another incident when Appellant looked at D.B.’s and her
younger sister’s vaginas. Id. at 58–59, 92. As noted by the PCRA court, D.B.
testified that she never told Hafiz Myrick about the abuse. Moreover, the
prosecutor specifically explained in her opening statement that Appellant’s
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family appeared to be a happy, normal family; that Appellant did not act
violently toward D.B.; and that D.B. loved Appellant. Id. at 18, 24. Thus,
the fact that neither Hafiz Myrick nor Lamont Walker saw or knew of the abuse,
would not have contradicted D.B.’s testimony or the Commonwealth’s theory
of the case.
To prevail on a claim of counsel’s ineffectiveness for failure to call a
witness, an appellant must prove: “(1) the witness existed; (2) the witness
was available; (3) trial counsel was informed of the existence of the witness
or should have known of the witness’s existence; (4) the witness was prepared
to cooperate and would have testified on appellant’s behalf; and (5) the
absence of the testimony prejudiced appellant.” Commonwealth v. Chmiel,
889 A.2d 501, 545–546 (Pa. 2005) (citations omitted). Counsel’s failure to
call a particular witness does not constitute ineffective assistance without
some showing that the absent witness’s testimony would have been beneficial
or helpful in establishing the asserted defense. Id.
Generally, evidence of a person’s character may not be admitted to
show the person acted in conformity with such character on a particular
occasion. Pa.R.E. 404(a). In a criminal case, however, a defendant may offer
evidence of his character traits that are pertinent to the crimes charged, and
the Commonwealth may offer evidence to rebut the trait. Pa.R.E. 404(a)(2).
Testimony must be about the defendant’s reputation, not the witness’s opinion
of the character or character trait of the defendant. Pa.R.E. 405(a). “Such
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evidence must relate to a period at or about the time the offense was
committed, and must be established by testimony of witnesses as to the
community opinion of the individual in question, not through specific acts or
mere rumor.” Commonwealth v. Goodmond, 190 A.3d 1197, 1201–1202
(Pa. Super. 2018).
Furthermore, with respect to character testimony in a case where there
are only two direct witnesses involved:
credibility of the witnesses is of paramount importance, and
character evidence is critical to the jury’s determination of
credibility. Evidence of good character is substantive, not mere
makeweight evidence, and may, in and of itself, create a
reasonable doubt of guilt and, thus, require a verdict of not guilty.
Commonwealth v. Hull, 982 A.2d 1020, 1025–1026 (Pa. Super. 2009)
(quoting Commonwealth v. Weiss, 606 A.2d at 442, 443 (Pa. 1992)).
“Along these lines, we note that character testimony alone can be grounds for
acquittal. Indeed, a defendant who presents character evidence is entitled to
a jury instruction telling the jurors that evidence of good character may create
a reasonable doubt, thus requiring a verdict of not guilty.” Commonwealth
v. Hoover, 16 A.3d 1148, 1151 (Pa. Super. 2011) (internal citation omitted).
With respect to the testimony of Hafiz Myrick, it is clear that he did not
set forth admissible testimony in his affidavit. Hafiz Myrick offered to testify
that Appellant would not have committed the crimes with which he was
charged. Such testimony is not proper testimony for a character witness. See
Goodmond. However, the testimony that Walker may have offered is not as
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clear cut. Walker claimed that Appellant had a reputation in the community
for truthfulness6 and for being a loving and supportive father. Testimony
about Appellant’s reputation for being a loving father may have been
admissible in this case. See Commonwealth v. Reyes-Rodriguez, 111
A.3d 775, 782 n.6 (Pa. Super. 2015) (when a defendant is charged with
EWOC, “a person’s reputation as a good father may be pertinent to rebut a
charge that the person abused children under his care”). Here, Appellant was
charged and convicted of EWOC; thus, this testimony may have been
admissible as substantive evidence.
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6 Appellant’s reputation for truthfulness was not admissible in this case.
It has long been the law in Pennsylvania that a defendant in a
criminal case may introduce evidence of his reputation for
truthfulness in but two circumstances. First, the accused may
introduce evidence of his truthful character if the trait of
truthfulness is relevant to the crime with which he has been
charged . . . . Second, the accused may introduce evidence of his
truthful character if his reputation for truthfulness has first been
attacked by the prosecution.
Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). Appellant was
not charged with any crimes of dishonesty nor did the Commonwealth present
evidence showing Appellant lacked a reputation for truthfulness. See N.T.,
3/18/13, at 80–92. Thus, Lamont Walker’s affidavit statement that Appellant
had a “positive reputation for truthfulness,” would have been inadmissible.
See Commonwealth v. Minich, 4 A.3d 1063, 1070 (Pa. Super. 2010)
(“Character evidence of the defendant’s truthfulness is admissible only if: (1)
the character trait of truthfulness is implicated by the elements of the charged
offenses; or (2) the defendant’s character for truthfulness was attacked by
evidence of bad reputation”).
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Nevertheless, Walker’s affidavit reveals an obvious flaw. He admits he
presented himself to Appellant’s counsel for the first time during trial.
Amended PCRA Petition, 7/26/17, at Exhibit A. Trial counsel could only be
ineffective if he knew about Walker’s availability in a timely fashion. It is
unreasonable to expect defense counsel to present a witness that he did not
have the opportunity to vet. Accordingly, this claim fails on this basis.7 Thus,
Appellant failed to meet his burden to prove that trial counsel was ineffective
in failing to investigate and call the proffered witnesses, and the
ineffectiveness claim lacked arguable merit. Therefore, we affirm Appellant’s
issues.
Due to recent case law, however, we elect to review the legality of
Appellant’s sentence as it relates to his SVP status. In Commonwealth v.
Butler, 173 A.3d 1212 (Pa. Super. 2017), petition for allowance of appeal
granted, 190 A.3d 581, 47 WAL 2018 (Pa. filed 7/31/18), this Court concluded
that because our Supreme Court held in Commonwealth v. Muniz, 164 A.3d
1189 (Pa. 2017), that the registration requirements of SORNA are punitive,
and an SVP designation may increase the registration period, trial courts
cannot apply SORNA’s increased registration requirement for SVPs because
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7 In his appellate brief, Appellant also cursorily asserts that trial counsel was
ineffective for failing to investigate witnesses. Appellant’s Brief at 18.
However, because Appellant did not present the claim in his PCRA petition, it
is waived. Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived
and cannot be raised for the first time on appeal.”).
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SORNA does not require a fact-finder to determine beyond a reasonable doubt
that the defendant is an SVP. Butler, 173 A.3d at 1217–1218 (citing Alleyne
v. United States, 570 U.S. 99 (2013)). Therefore, Butler determined that
the portion of SORNA that required a court to find a defendant to be an SVP
by clear and convincing evidence, 42 Pa.C.S. § 9799.24(e)(3), was
unconstitutional. Commonwealth v. Golson, 189 A.3d 994, 1003 (Pa.
Super. 2018), (citing Butler, 173 A.3d at 1217–1218)8.
Here, following an assessment by the Sexual Offender Assessment
Board, the trial court imposed SVP status on Appellant on August 7, 2013.
Appellant’s SVP status carried a lifetime registration requirement. See 42
Pa.C.S. § 9799.15(a)(6). We affirmed Appellant’s judgment of sentence on
April 20, 2015, and Appellant did not seek further review. The United States
Supreme Court had decided Alleyne on June 17, 2013, two months before
Appellant’s sentencing and designation as an SVP. Therefore, Appellant is
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8 In response to our Supreme Court’s decision in Muniz and this Court’s
decision in Butler, the Pennsylvania General Assembly passed Acts 10 and 29
of 2018. The express purpose of both legislative enactments was to cure
SORNA’s constitutional defects. See 42 Pa.C.S. § 9799.51(b)(4) (“[I]t is the
intention of the General Assembly to address [Muniz and Butler].”)
Specifically, our General Assembly modified Subchapter H’s registration
requirements for those offenders convicted of committing offenses occurring
on or after SORNA’s effective date, i.e., December 20, 2012. Our General
Assembly also added Subchapter I to Title 42, Part VII, Chapter 97.
Subchapter I sets forth the registration requirements that apply to all
offenders convicted of committing offenses on or after the effective date of
Megan’s Law I (April 22, 1996), but prior to SORNA’s effective date.
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entitled to vacation of his SVP designation because it resulted from an
unconstitutional process. Butler, 173 A.3d at 1217–1218.
Accordingly, we affirm the order denying PCRA relief as to Appellant’s
claims presented, but we vacate Appellant’s SVP status and remand to the
common pleas court for the sole purpose of issuing the appropriate notice
under 42 Pa.C.S. § 9799.23 as to Appellant’s registration obligation. Butler,
173 A.3d 1218.
Order affirmed. SVP status vacated. Case remanded for the sole
purpose of issuing appropriate notice under 42 Pa.C.S. § 9799.23 regarding
Appellant’s registration obligation. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/12/19
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