Com. v. Wilcox, C.

J-A28024-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHAD MARSHALL WILCOX :
:
Appellant : No. 1282 MDA 2020
Appeal from the PCRA Order Entered September 3, 2020
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0001056-2012
BEFORE: LAZARUS, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JANUARY 06, 2022
Appellant appeals from the order entered in the Court of Common Pleas
of Lycoming County denying his first petition filed pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Also, appointed
counsel for Appellant has petitioned to withdraw from representation. We
grant counsel's petition and dismiss the appeal.
On March 16, 2012, Appellant was charged with Statutory Sexual
Assault, Aggravated Indecent Assault, Involuntary Deviate Sexual Intercourse
with a Child, Indecent Assault (under 13 years of age); Corruption of Minors
(sexual offenses); Rape of a Child; Indecent Exposure; and Unlawful Contact
____________________________________________
* Former Justice specially assigned to the Superior Court.
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with a Minor1 in connection with the sexual abuse of his six-year-old step-
daughter, I.F. A jury trial on January 21, 2016, resulted in guilty verdicts on
all counts.
The trial court imposed an aggregate sentence of 21 to 70 years and
ran it consecutively to Appellant’s recently imposed 40 to 80 year sentence
for a Montgomery County, Pennsylvania murder conviction. Post-sentence
motions were filed and denied, and Appellant filed a timely direct appeal.
In Commonwealth v. Wilcox, 1032 MDA 2016, unpublished
memorandum (Pa.Super. filed July 18, 2017), this Court affirmed judgment
of sentence after deeming meritless Appellant’s seven issues raised in his
counseled appeal. On January 31, 2018, the Pennsylvania Supreme Court
denied Appellant’s petition for allowance of appeal.
Appellant filed this timely PCRA petition, his first, and the PCRA court
appointed counsel who, on October 24, 2019, filed a second amended petition,
which was denied on September 3, 2020. This timely appeal followed.
On March 22, 2021, present counsel was appointed to represent
Appellant. On July 28, 2021, counsel filed with this court a petition to
withdraw simultaneously with an Anders2 brief. This brief, however, did not
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118 Pa.C.S. §§ 3122.1, 3125, 3123(B), 3126(A)7), 6301(a)(1)(ii), 3121(c),
3127(A), and 6318(a)(1), respectively.
2 Anders v. California, 386 U.S. 738 (1967).
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satisfy the requirements set forth in Commonwealth v. Turner, 544 A.2d
927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.
1988). Specifically, counsel did not detail the nature and extent of counsel’s
review, nor did counsel explain why Appellant’s issues are meritless.
Accordingly, this Court entered an order on August 2, 2021, striking the
Anders brief and directing counsel to file an advocate’s brief or an application
to withdraw as counsel and an accompanying Turner/Finley no-merit letter
that complies with all the procedural and substantive requirements.
On August 25, 2021, counsel filed a second application to withdraw and
Anders brief, the latter of which included an appendix containing a letter
advising Appellant of his rights pursuant to Commonwealth v. Millisock,
873 A.2d 748 (Pa.Super. 2005). The Millisock letter indicates Appellant was
served a copy of all documents. Counsel has also substantially complied with
the requirements set forth in Commonwealth Santiago, 978 A.2d 349 (Pa.
2009).
We note that the procedure set forth in Anders is not the appropriate
vehicle for withdrawing from PCRA representation, see Commonwealth v.
Karanicolas, 836 A.2d 940, 947 (Pa. Super. 2003), as counsel seeking to
withdraw on collateral appeal must follow the procedure outlined in
Turner/Finley, which includes:
Turner/Finley counsel must review the case zealously.
Turner/Finley counsel must then submit a “no-merit” letter to
the trial court, or brief on appeal to this Court, detailing the nature
and extent of counsel's diligent review of the case, listing the
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issues which the petitioner wants to have reviewed, explaining
why and how those issues lack merit, and requesting permission
to withdraw.
Counsel must also send to the petitioner: (1) a copy of the “no-
merit” letter/brief; (2) a copy of counsel's petition to withdraw;
and (3) a statement advising petitioner of the right to proceed pro
se or by new counsel.
If counsel fails to satisfy the foregoing technical prerequisites of
Turner/Finley, the court will not reach the merits of the
underlying claims but, rather, will merely deny counsel's request
to withdraw. Upon doing so, the court will then take appropriate
steps, such as directing counsel to file a proper Turner/Finley
request or an advocate's brief.
However, where counsel submits a petition and no-merit letter
that do satisfy the technical demands of Turner/Finley, the
court—trial court or this Court—must then conduct its own review
of the merits of the case. If the court agrees with counsel that
the claims are without merit, the court will permit counsel to
withdraw and deny relief. By contrast, if the claims appear to
have merit, the court will deny counsel's request and grant relief,
or at least instruct counsel to file an advocate's brief.
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (citations
omitted).
However, because an Anders brief provides greater protection to a
defendant, this Court may accept it in lieu of a Turner/Finley letter.
Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011);
Commonwealth v. Daniels, 947 A.2d 795, 798 (Pa. Super. 2008).
Our review of the record discloses that counsel now has satisfied the
requirements of Turner/Finley. In his Anders Brief, he (1) set forth the
issues Appellant wished to have reviewed; (2) stated he conducted a thorough
review of the record and applicable law; (3) determined there are no non-
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frivolous claims Appellant can raise; and (4) explained why Appellant's claims
are meritless. See, generally, Anders Brief. Moreover, as noted above,
counsel mailed Appellant a letter informing him of his intention to seek
permission to withdraw from representation, as well as Appellant's rights in
lieu of representation. See Widgins, 29 A.3d at 818. Since counsel has
complied with Turner/Finley, we may proceed to an independent review of
the appeal.
Counsel’s Anders Brief raises the following issues on Appellant’s behalf:
I. Whether an application to withdraw as counsel should be
granted where counsel has investigated the possible
grounds for appeal and finds the appeal frivolous.
II. Whether the PCRA court erred in denying Appellant’s
Amended Petition for Post-Conviction Relief on the basis
that trial counsel was ineffective for failing to present school
records disproving the existence of a quid pro quo
relationship between Appellant and the victim when
evidence was not presented at trial to establish a quid pro
quo relationship.
III. Whether appellate counsel was ineffective for failure to raise
the issue of the Commonwealth’s disregard of Judge
Lovecchio’s pretrial order barring Kyle Mowery’s testimony
regarding the victim’s hearsay statements by failing to
appeal the mistrial issue even though the substantive issue
of improper hearsay testimony was litigated on appeal.
IV. Whether appellate counsel was ineffective for failing to
appeal the trial court’s restriction upon defense cross
examination following the Commonwealth’s disregard of
Judge Lovecchio’s pretrial order when the Superior Court
determined that the improper hearsay testimony was
harmless error.
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V. Whether appellate counsel was ineffective for failing to
appeal the admissibility of the victim’s forensic interview as
a violation of his Confrontation Clause rights even though
appellate counsel did litigate the issue on appeal.
Anders Brief, at 8-9.
“Our standard of review for issues arising from the denial of PCRA relief
is well-settled. We must determine whether the PCRA court's ruling is
supported by the record and free of legal error.” Commonwealth v. Hand,
252 A.3d 1159, 1165 (Pa. Super. 2021) (citation omitted).
We presume counsel was effective, and the petitioner bears the burden
of proving otherwise. See Commonwealth v. Brown, 161 A.3d 960, 965
(Pa.Super. 2017). A petitioner may overcome the presumption by pleading
and proving all of the following: “(1) the underlying legal claim has arguable
merit; (2) counsel had no reasonable basis for his or her action or inaction;
and (3) [the petitioner] suffered prejudice because of counsel's action or
inaction.” Id. (quoting Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa.
2011)). A petitioner's failure to prove any one of these factors defeats the
ineffectiveness claim. Commonwealth v. Dennis, 950 A.2d 945, 954 (Pa.
2008).
As only issues two through five present substantive issues for this
Court’s review, we first address the PCRA court’s denial of Appellant’s second
enumerated claim that trial counsel was ineffective for failing to present school
records disproving that he created a sexually exploitative quid pro quo
relationship between himself and Child based on Child’s apparently poor
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comportment at school. According to Appellant’s pro se PCRA petition, the
admission of school records establishing that he never signed any of Child’s
returnable daily school behavior reports would have refuted the suggestion
that he promised to conceal Child’s bad reports from his mother in exchange
for sex with Child.
The record reveals, however, that witnesses for both the Commonwealth
and the defense testified that Appellant never signed a behavior slip. Most
notably, Commonwealth witness Kyle Mowery, a special education teacher at
Child’s school, testified that Mother signed all of Child’s school records, see
N.T. 1/21/16 at 23, and defense counsel specifically elicited testimony from
Appellant that Mother signed all behavior slips. N.T. at 120. 3 Therefore, we
discern no error with the PCRA court’s determination that there is neither
arguable merit to nor the reasonable probability of prejudice demonstrated by
Appellant’s claim that counsel ineffectively failed to admit all Child’s school
records into evidence. See Commonwealth v. Johnson, 139 A.3d 1257,
1284 (Pa. 2016) (holding absence of merely cumulative evidence causes no
prejudice to a defendant).
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3 Also persuasive on this issue is Appellate Counsel’s observation in the
Anders Brief that the Commonwealth’s quid pro quo theory alleged not
Appellant’s concealment of behavior slips but, instead, his surreptitiously
permitting Child to play video games in violation of Mother’s punishment for
his bad behavior.
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Appellant claims next that appellate counsel on direct appeal
ineffectively failed to challenge the court’s denial of a mistrial for the
Commonwealth’s disregard of a pretrial order barring Mr. Mowery from
offering hearsay testimony about Child’s statement that she had “a secret with
her father.” During trial, the Commonwealth elicited this statement from Mr.
Mowery, and the court initially granted a defense motion for mistrial with
prejudice before reversing its decision on grounds the testimony was
harmlessly cumulative to that offered by other witnesses, including the Child,
permitted to testify to the statement.
While appellate counsel did not challenge the court’s ultimately adverse
ruling on mistrial, she did raise for this Court’s consideration the evidentiary
issue that served as the basis for the mistrial motion at trial, namely, that the
admission of Mr. Mowery’s hearsay statement was reversible error and
grounds for a new trial. In denying this claim, this Court found that any
inadmissible hearsay in Mr. Mowery’s testimony was harmless, as the jury
heard from others’ admissible testimonies that Child had informed Sherry
Moroz and Mr. Mowery that she had a “secret” with Appellant.
Specifically, this Court reasoned:
We reiterate that the admissibility of evidence is left to the
discretion of the trial court. Woodard, 129 A.3d at 494.
Moreover, we also point out that not every error at trial requires
a mistrial, and the harmless error doctrine reflects that the
accused is entitled to a fair trial, not a perfect one.
Commonwealth v. West, 834 A.2d 625, 634 (Pa. Super. 2003).
An error is harmless if the evidence of guilt is so overwhelming,
that by comparison the error is insignificant. Commonwealth v.
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Mitchell, 576 Pa. 258, 839 A.2d 202, 214 (Pa. 2003). “An error
will be deemed harmless where the appellate court concludes
beyond a reasonable doubt that the error could not have
contributed to the verdict.” Id.As noted above, the trial court ruled that the tender years
exception would not permit Mr. Mowery to testify regarding
statements I.F. made to him. However, at trial, Mr. Mowery, a
teacher at I.F.'s school, testified that I.F. told him that “she had a
secret with her stepfather.” N.T., 1/21/16, at 24. Appellant
objected and moved for a mistrial, and the trial court overruled
the objection. Id. at 24, 46.
In its opinion, the trial court explained its decision as follows:
This Court overruled [Appellant's] objection to the
testimony of Mowery because what he testified to was
duplicative of what the jury would hear when the
video of the interview at the Child Advocacy Center
was played to the jury. The Commonwealth's error in
calling Mowery to the stand was harmless. The
statement “But I just told Mr. Mowery we had a
secret” was made in the video that was played for the
jury. [N.T., 1/21/16,] pg. 40, lines 22–23. It is very
unlikely that had Mowery not testified that the
outcome in the trial would have been different.
Stating victim told me she had a secret does not
establish any of the elements of the crimes for which
[Appellant] was convicted and as victim referred to
the secret repeatedly in the video that was admissible
into evidence by Judge Lovecchio's order the
[Appellant] was not harmed by its improper
admission. ...
Pa.R.A.P. 1925(a) Opinion, 8/22/16, at 7.
We agree with the trial court that any error in Mr. Mowery's
testimony was harmless. The jury heard that I.F. informed Sherry
Moroz and Mr. Mowery that she had a “secret” with Appellant.
N.T., 1/21/16, at 40. Accordingly, we conclude that Appellant is
not entitled to relief on this issue.
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Wilcox, supra at No. 1032 MDA 2016, 2017 WL 3037517, at **5–6 (Pa.
Super. Ct. July 18, 2017).
Accordingly, as this Court previously held that the underlying admission
of Mr. Mowery’s testimony in question was, at worst, harmless error, Appellant
may not prevail on his derivative ineffective assistance claim assailing
appellate counsel’s failure to challenge the denial of his mistrial motion.
In Appellant’s fourth enumerated issue, he maintains appellate counsel
ineffectively failed to claim that his constitutional right to confrontation under
the sixth amendment and Article I, Section 9 of the Pennsylvania Constitution
was violated by the trial court’s ruling restricting defense counsel’s cross-
examination of Mr. Mowery on his inadmissible hearsay testimony. “One way
in which the Confrontation Clause can be violated is by the admission of
hearsay statements against the defendant as substantive evidence. In those
instances, the court must consider the unavailability of the declarant and the
reliability of the statements.” Commonwealth v. Collins, 888 A.2d 564, 575
(Pa. 2005).
For the reasons already discussed regarding Mr. Mowery’s de minimis
hearsay testimony, no violation of Appellant’s confrontation rights resulted
from the trial court’s ruling restricting all further direct and cross examination
of Mr. Mowery on the subject. The Child’s statement regarding the “secret”
was properly introduced through other witnesses who were available for
thorough cross examination by the defense. Under this record, we discern no
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arguable merit to Appellant’s claim that counsel ineffectively failed to raise a
confrontation clause claim on direct appeal.
Finally, Appellant argues that appellate counsel ineffectively failed to
raise on appeal a challenge to the trial court’s pre-trial ruling that the forensic
interview of Child was admissible under the Tender Years Hearsay Act. 4 Our
review of the record belies Appellant’s assertion, as appellate counsel raised
and litigated the issue on appeal, albeit unsuccessfully. See Wilcox, supra
at **2-4.
The PCRA court properly found that all of Appellant's claims of ineffective
assistance of trial counsel lack merit. Moreover, after conducting our
independent review of the certified record, we are in agreement with counsel
that there is no merit to the present case. See Wrecks, supra at 721.
Order affirmed. Counsel's petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/06/2022
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4 42 Pa.C.S. § 5985.1(a.1) and (a.2).
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