Com. v. J., R.

J. S31038/20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
R.L.J., JR., : No. 2003 MDA 2019
:
Appellant :
Appeal from the PCRA Order Entered November 12, 2019,
in the Court of Common Pleas of Lancaster County
Criminal Division at No. CP-36-CR-0000848-2015
BEFORE: BOWES, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 02, 2020
R.L.J., Jr. (hereinafter, “appellant”), appeals from the November 12,
2019 order denying, in part, and granting, in part,1 his amended petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546. After careful review, we affirm.
The factual history of this case is not pertinent to our disposition and
need not be reiterated here. On January 27, 2016, a jury found appellant
guilty of rape of a child, two counts of involuntary deviate sexual intercourse
with a child, unlawful contact with a minor, corruption of minors, incest, and
1 The PCRA court granted appellant relief with respect to his claim that the
lifetime registration requirements under SORNA were illegal. (See PCRA court
order, 11/13/19 at ¶ 2; PCRA court opinion, 11/12/19 at 22-37.) The
registration requirements are not a subject of the instant appeal.
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indecent assault of a child less than 13 years of age.2 These convictions
stemmed from appellant’s repeated sexual assault of his minor daughter, who
was under the age of 13 at the time. Following a Sexual Offender Assessment
Board Evaluation, the trial court determined that appellant did not meet the
criteria to be classified a sexually violent predator. On May 10, 2016, the trial
court sentenced appellant to an aggregate term of 31 to 70 years’
imprisonment. In addition to his term of incarceration, appellant was required
to become a lifetime registrant under the Sexual Registration and Notification
Act (“SORNA”), 42 Pa.C.S.A. § 9799.10 et. seq. Appellant filed post-sentence
motions for reconsideration of his sentence, which were granted by the trial
court on August 5, 2016. That same day, the trial court resentenced appellant
to an aggregate judgment of sentence of 22 to 50 years’ imprisonment. The
registration requirements imposed by SORNA remained in place. On April 12,
2017, a panel of this court affirmed appellant’s judgment of sentence, and our
supreme court denied appellant’s petition for allowance of appeal on
September 19, 2017. See Commonwealth v. Jusino, 169 A.3d 1159
(Pa.Super. 2017), appeal denied, 170 A.3d 1058 (Pa. 2017).
The remaining procedural history of this case, as gleaned from the PCRA
court opinion, is as follows:
On October 30, 2017, [appellant] filed a pro se
Motion for Reconsideration of Sentence, which the
court deemed as a timely, initial petition seeking relief
218 Pa.C.S.A. §§ 3121(c), 3125(b), 6318(a)(1), 6301(a)(1)(ii), 4302(b)(1),
and 3126(a)(7), respectively.
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under the [PCRA]. Additionally, by order of the same
date, the court granted [appellant] leave to proceed
in forma pauperis; appointed Dennis C. Dougherty,
Esquire, as counsel for [appellant]; granted counsel
sixty days to file either an amended post-conviction
motion or provide notice that no such amended
motion would be filed; and, directed the attorney for
the Commonwealth to file an answer within thirty days
thereafter. On December 28, 2017, counsel for
[appellant] filed a Motion for Extension of Time to file
an amended [PCRA] petition, which was granted by
order of the same date. Thereafter, on March 2, 2018,
counsel filed an Amended PCRA Petition alleging that
[appellant’s] trial counsel was ineffective when he
failed, at trial, to prevent the introduction of evidence
regarding [appellant’s] prior police contacts and
opinion evidence offered by Detective Gareth Lowe as
to [appellant’s] veracity in his denial of the
allegations. The Amended PCRA petition also alleges
that [appellant] should not be required to register as
a sex offender under SORNA as the crimes for which
he was convicted occurred prior to December 20,
2012.
....
By order dated April 25, 2018, the court scheduled an
evidentiary hearing relative to [appellant’s] Amended
PCRA Petition. Following a change in date, the hearing
was conducted before the court on August 3, 2018.
On the same date, by agreement of the parties, the
court scheduled a supplemental PCRA hearing for
October 18, 2018. Subsequently, by agreement of
the parties, the supplemental hearing was canceled,
and the court established a briefing schedule by an
order dated October 16, 2018.
....
Thereafter, on June 19, 2019, the [PCRA c]ourt
ordered counsel for the parties to submit
supplemental written memoranda regarding the
applicability of . . . Commonwealth v. Alston, 212
A.3d 526 (Pa.Super. 2019) (holding the defendant’s
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SVP designation by clear and convincing evidence
violated the state and federal constitutions and that
the defendant was entitled to the lowest punishment
under SORNA where his offenses straddled the
operative dates between statutes governing sexual
offender registration and continued registration of
sexual offenders, and the jury did not specifically find
dates of the offenses). The Commonwealth filed its
memorandum on July 22, 2019, acknowledging that
the present case is analogous to Alston, and
contending that the court should, therefore, impose
the lesser sex offender registration and notification
requirements under subchapter I of Act 29 of 2018.
PCRA court opinion, 11/12/19 at 3-5 (footnotes omitted).
On November 12, 2019, the PCRA court entered an opinion and order
denying appellant relief with respect to his ineffective assistance of counsel
claims but granted him relief with respect to his claim under the registration
requirements.3 As noted, the registration requirements are not a subject of
the instant appeal. This timely appeal followed on December 12, 2019. On
December 13, 2019, the PCRA court ordered appellant to file a concise
statement of errors complained of on appeal, in accordance with
Pa.R.A.P. 1925(b). Appellant filed a timely Rule 1925(b) statement on
January 2, 2020. On January 3, 2020, the PCRA court entered an order
indicating that it was relying on the reasoning set forth in its November 12,
2019 opinion and that no further Rule 1925(a) opinion would be forthcoming.
Appellant raises the following issues for our review:
3 The PCRA court concluded that appellant is subject to Megan’s Law II and
required to register for his lifetime based on the underlying offenses.
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I. [Whether] the PCRA court err[ed] when it found
trial counsel[4] was not ineffective when [trial]
counsel sought and did not object to the
introduction of [appellant’s] prior arrests[?]
II. [Whether] the PCRA court erred when it found
trial counsel was not ineffective when counsel
sought [Lancaster City Police Detective Gareth
Lowe’s] opinion testimony as to whether
[appellant] was lying when he denied the
accusations against him[?]
Appellant’s brief at 9, 15 (full capitalization omitted).
Proper appellate review of a PCRA court’s dismissal of a PCRA petition
is limited to the examination of “whether the PCRA court’s determination is
supported by the record and free of legal error.” Commonwealth v. Miller,
102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s
findings will not be disturbed unless there is no support for the findings in the
certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super. 2014)
(citations omitted). In order to be eligible for PCRA relief, a petitioner must
plead and prove by a preponderance of the evidence that her conviction or
sentence arose from one or more of the errors listed at 42 Pa.C.S.A.
§ 9543(a)(2). Further, these issues must be neither previously litigated nor
waived. 42 Pa.C.S.A. § 9543(a)(3).
Both of appellant’s claims concern the ineffectiveness of his trial
counsel. To prevail on a claim of ineffective assistance of counsel under the
4 Appellant was represented during his trial by Ronald Gross, Esq. (“trial
counsel”).
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PCRA, a petitioner must plead and prove by a preponderance of the evidence
that counsel’s ineffectiveness “so undermined the truth-determining process
that no reliable adjudication of guilt or innocence could have taken place.”
42 Pa.C.S.A. § 9543(a)(2)(ii). We apply a three-pronged test for determining
whether trial counsel was ineffective, derived from the test articulated by the
Supreme Court of the United States in Strickland v. Washington, 466 U.S.
668, 687 (1984), and as applied in Commonwealth v. Pierce, 527 A.2d 973
(Pa. 1987). Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013).
The Pierce test requires a PCRA petitioner to prove:
(1) the underlying legal claim was of arguable merit;
(2) counsel had no reasonable strategic basis for his
action or inaction; and (3) the petitioner was
prejudiced—that is, but for counsel’s deficient
stewardship, there is a reasonable likelihood the
outcome of the proceedings would have been
different.
Id., citing Pierce, 527 A.2d at 975.
This court has explained that a petitioner “must meet all three prongs
of the test for ineffectiveness[.]” Commonwealth v. Charleston, 94 A.3d
1012, 1020 (Pa.Super. 2014) (citation and internal quotation marks omitted),
appeal denied, 104 A.3d 523 (Pa. 2014). “[C]ounsel is presumed to be
effective and the burden of demonstrating ineffectiveness rests on appellant.”
Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011) (citation
omitted), appeal denied, 30 A.3d 487 (Pa. 2011). Additionally, we note that
counsel cannot be found ineffective for failing to raise a claim that is devoid
of merit. See Commonwealth v. Ligons, 971 A.2d 1125, 1146 (Pa. 2009).
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Following a thorough review of the record, including the briefs of the
parties, the applicable law, and the well-reasoned opinion of the PCRA court,
it is our determination that appellant’s claims warrant no relief. The PCRA
court authored a comprehensive, 39-page opinion wherein it devoted
14 pages to discussing both of appellant’s ineffectiveness claims and
concluding that they are without arguable merit. We find that the PCRA court’s
conclusions are supported by competent evidence and are clearly free of legal
error. Specifically, we agree with the PCRA court that trial counsel was not
ineffective in failing to object to references to the fact that appellant had
previously been arrested, which were on the nearly 10-hour video recording
of appellant’s interrogation that the Commonwealth played for the jury.
(PCRA court opinion, 11/12/19 at 9.) As the PCRA court found, trial counsel
“credibly testified” that his chosen defense strategy was to demonstrate to the
jury that appellant was subject to an unfair and biased interrogation that
resulted in an involuntary and unreliable videotaped confession, and objecting
would have undercut his argument. (Id. at 10-12.) Moreover, we agree with
the PCRA court that any prejudice appellant suffered from reference to his
prior arrests was cured by the trial court’s cautionary instruction to the jury.
(Id. at 14-15.)
Likewise, we agree with the PCRA court that trial counsel was not
ineffective for questioning Detective Lowe on his opinion of appellant’s
veracity during the recorded statement. (Id. at 16.) As explained by the
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PCRA court, although this testimony was prejudicial in nature, trial counsel’s
testimony at the evidentiary hearing revealed that the solicitation of this
opinion testimony from Detective Lowe “was consistent with his chosen
defense strategy.” (Id. at 17.) The PCRA court explained:
[Trial] counsel diligently strived to convince the jury
that [appellant’s] statement was given involuntarily,
and his goal was to demonstrate that
[Detective Lowe] had prematurely and unfairly
formed an opinion as to [appellant’s] guilt before
questioning him. As such, [Detective Lowe] became
biased and fixated on [appellant] to the exclusion of
all others. Such bias controlled the manner of the
interrogation and led to [Detective Lowe’s]
browbeating [appellant] into the damaging
admissions[,] which were offered near the end of the
extensive interview. [Trial c]ounsel took the position
that [Detective Lowe] was unwilling to terminate the
interrogation until he heard what he wanted to hear.
Again, counsel repeatedly introduced evidence and
offered such argument throughout the entire trial.
The fact that such strategy was ultimately
unsuccessful is of no import absent any indication that
another strategy offered a significantly greater chance
of success.
Id. at 17 (citation to notes of testimony omitted).
Based on the foregoing, we adopt the relevant portions of the PCRA
court’s comprehensive opinion as our own for purposes of this appellate
review, and affirm its November 12, 2019 order denying, in part, appellant’s
amended PCRA petition.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/2/2020
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