Com. v. Spady, N.

J-A07012-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NATHANIEL A. SPADY :
:
Appellant : No. 1522 EDA 2022
Appeal from the PCRA Order Entered May 10, 2022
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0001950-2010,
CP-23-CR-0007802-2012
BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY DUBOW, J.: FILED APRIL 13, 2023
Appellant, Nathaniel A. Spady, appeals from the order entered on May
10, 2022, dismissing his petition filed pursuant to the Post Conviction Relief
Act (“PCRA”), 42 Pa.C.S. § 9541-46. After careful review, we affirm.
We derive the following factual and procedural history from the PCRA
court opinion and certified record. In mid-2009, during an investigation into
suspected child pornography, Delaware County Criminal Investigation Division
(“CID”) Lieutenant David Peifer seized several computers used by Appellant.1
A forensic evaluation of the computers, performed by Agent David Buckwash,
revealed numerous images of child pornography. Several of the pornographic
images featured Appellant’s minor cousin (“Victim”).
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1 Appellant’s grandfather owned the computers.
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As a result of these findings, in December 2009, CID Detective Robin
Clark conducted two recorded interviews of Victim. Victim disclosed that from
2007 through 2009, Appellant raped and sexually abused her on multiple
occasions, and took pornographic pictures of her using his cellphone.
In a series of interviews conducted by Lieutenant Peifer and Detective
Clark, Appellant admitted that he raped and sexually abused Victim, had taken
pornographic pictures of Victim using his cellphone, and had downloaded
pornographic pictures of other children from the internet.
The Commonwealth charged Appellant with five counts of Sexual Abuse
of Children—Child Pornography (“Possession of Child Pornography”), four
counts of Sexual Abuse of Children—Photographing or Depicting on Computer
or Filming Sexual Act, two counts each of Rape of a Child, Statutory Sexual
Assault, Involuntary Deviate Sexual Intercourse With a Child (“IDSI”), and
Indecent Assault, and one count each of Corruption of Minors and Criminal
Use of Communication Facility.2
Beginning November 30, 2012, the Commonwealth tried Appellant at a
jury trial for the above charges. The Commonwealth introduced evidence
establishing the above facts, including testimony from Victim, Victim’s mother,
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2 Appellant turned 18 years old in mid-November 2009. As a result, the
Commonwealth initially charged Appellant separately (1) in juvenile court for
the acts of sexual misconduct Appellant committed before his 18th birthday,
and (2) in the Court of Common Pleas for the acts of sexual misconduct he
committed after his 18th birthday. In February 2012, the adult charges
resulted in a hung-jury mistrial. Before Appellant’s November 2012 retrial, the
juvenile court transferred all charges to the Court of Common Pleas, and the
trial court granted the Commonwealth’s motion to consolidate all charges.
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Lieutenant Peifer, Detective Clark, and Agent Buckwash. The Commonwealth
also played for the jury and introduced into evidence recordings of the police
interviews with Victim and Appellant.
Appellant testified at trial and denied wrongdoing. He also presented
testimony from his fiancé, grandfather, grandmother, and mother. Appellant’s
fiancé testified, inter alia, that Appellant had a “very good” reputation in the
community for being “a law abiding and non-violent person.”3
On December 6, 2012, at the conclusion of trial, the jury convicted
Appellant of the above charges. On October 1, 2013, the trial court sentenced
Appellant to 12-24 years’ incarceration.4
On August 25, 2015, this Court affirmed Appellant’s convictions but
remanded for resentencing. Commonwealth v. Spady, No. 3090 EDA 2013
(Pa. Super. filed Aug. 25, 2015). In doing so, we concluded, inter alia, that
the Commonwealth presented sufficient evidence to convict Appellant of each
charge. Id. On May 17, 2017, our Supreme Court denied the Commonwealth’s
petition for allowance of appeal. Commonwealth v. Spady, 169 A.3d 533(Pa. filed May 17, 2017). On November 2, 2017, the trial court resentenced
Appellant to 10 to 20 years’ incarceration.
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3 N.T. Trial, 12/5/12, Vol. I at page 61.
4 The trial court had initially sentenced Appellant on May 8, 2013, to 14-28
years’ incarceration. On October 1, 2013, the court granted Appellant’s
request for resentencing and imposed the 12-24-year sentence.
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On July 10, 2018, Appellant pro se filed the instant PCRA Petition, his
first. The PCRA court appointed counsel who, on February 10, 2021, filed an
amended petition.5
The PCRA court held a hearing on December 9, 2021. On May 9, 2022,
the court issued an order dismissing Appellant’s petition as meritless.
Appellant timely filed a Notice of Appeal. On June 20, 2022, after conducting
a Grazier6 hearing, the court permitted Appellant to proceed pro se on appeal.
Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.
Appellant raises the following issues for our review, which we have
reordered and organized for ease of analysis:
1. Did PCRA counsel render ineffective assistance?
2. Was trial counsel ineffective for failing to “request severance of
the [Child Pornography] charges[?]”
3.Was trial counsel ineffective for failing to “contact, interview and
present Mr. Mar[k] Medley, the victims father, as a character
witness at trial to introduce evidence of appellant's peaceful
character, and also to support the only other character evidence
at trial?”
Appellant’s Br. at 6.
A.
When reviewing an order dismissing a PCRA Petition, we must determine
if the record supports the order and whether the order is free of legal error.
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5 In the several years between Appellant’s initial filing and counsel’s amended
filing, the PCRA court granted a series of motions for extension of time filed
by Appellant’s counsel.
6 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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Commonwealth v. Barndt, 74 A.3d 185, 191-92 (Pa. Super. 2013). We will
not disturb the PCRA court’s findings unless the findings lack support in the
record. Id. at 192.
Appellant raises multiple claims of trial and PCRA counsel
ineffectiveness. To obtain relief under the PCRA premised on a claim that
counsel was ineffective, the petitioner must establish that counsel's
ineffectiveness so undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place. Commonwealth v.
Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally, counsel's performance
is presumed to be constitutionally adequate, and counsel will only be deemed
ineffective upon a sufficient showing by the petitioner.” Id. The petitioner
must demonstrate that: (1) the underlying claim is of arguable merit; (2)
counsel had no reasonable strategic basis for his or her action or inaction; and
(3) counsel's act or omission prejudiced the petitioner. Id. at 533.
To establish the prejudice prong, the petitioner must prove a reasonable
probability that the outcome of the relevant proceedings would have been
different but-for counsel's action or inaction. Commonwealth v. Busanet,
54 A.3d 35, 46 (Pa. 2012). Importantly, the “[f]ailure to raise a meritless
issue is not ineffective assistance of counsel.” Commonwealth v. McBee,
520 A.2d 10, 14 (Pa. 1986).
B.
In his first issue, Appellant alleges the ineffective assistance of PCRA
counsel for the first time on appeal pursuant to Commonwealth v. Bradley,
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261 A.3d 381 (Pa. 2021). Before considering the merits of Appellant’s claim,
we must address the Commonwealth's assertion that Appellant waived the
issue because he did not challenge PCRA counsel's effectiveness in his pro se
Rule 1925(b) statement. See Commonwealth's Br. at 16-18. After careful
review, we are constrained to agree with the Commonwealth that this issue is
waived.
In Bradley, our Supreme Court held that “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.” 261 A.3d at 401 (emphasis added). Our Supreme Court
subsequently emphasized the importance of raising a claim of PCRA counsel’s
ineffectiveness in the Rule 1925(b) statement if that filing is the petitioner’s
first opportunity to do so. See Commonwealth v. Parrish, 273 A.3d 989,
1002 (Pa. 2022) (“Parrish adequately raised and preserved his layered claim
of the ineffective assistance of trial and initial PCRA counsel by raising it at
the first opportunity to do so, specifically in his Corrected 1925(b) Statement
and in his brief filed with this Court in this appeal.”).
This Court has, in several subsequent decisions, found waiver where the
appellant failed to raise a claim of PCRA counsel ineffectiveness in the Rule
1925(b) statement when the statement was the first opportunity to do so.
See, e.g., Commonwealth v. Womack, Nos. 2090, 2091, 2092 EDA 2020,
2022 WL 17099016 at *2-3 (Pa. Super. filed Nov. 22, 2022) (non-precedential
decision) (finding waiver where appellant failed to raise PCRA counsel
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ineffectiveness at first opportunity in Rule 1925(b) statement);
Commonwealth v. Alston, No. 1171 MDA 2021, 2022 WL 1658068 at *7
(Pa. Super. filed May 25, 2022) (non-precedential decision) (same).
Here, our review of the record confirms that Appellant did not raise PCRA
counsel’s ineffectiveness at the first opportunity to do so, in his pro se Rule
1925(b) Statement. As a result, he has waived his claim of PCRA counsel
ineffectiveness on appeal.
C.
In his second issue, Appellant claims that his trial counsel was ineffective
for failing to request pretrial severance of the child pornography charges
related to children other than Victim.7 Appellant’s Br. at 11-38. After careful
review, we conclude that because a request to sever the charges would have
been meritless, this claim fails.
Where, as here, the Commonwealth has charged multiple offenses in
the same information,8 “[t]he court may order separate trials of offenses . . .
if it appears that any party may be prejudiced by offenses . . . being tried
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7 Appellant also alleges that his trial counsel was ineffective for failing to object
to the pretrial consolidation of his two underlying dockets. Appellant’s Br. at
25-38. His argument, however, is simply a reiteration of the argument that
counsel was ineffective for failing to seek severance. See, e.g., id. at 25
(arguing that “in this case, the correct procedure was severing the [Child
Pornography] of other children from the sexual assault offenses”).
8At Docket 7802-2012, the Commonwealth charged Appellant with, inter alia,
Possession of Child Pornography of Victim and Possession of Child
Pornography of other minors. See Information, filed 11/29/12. The
Commonwealth appropriately charged these offenses in the same information
pursuant to Pa.R.Crim.P. 563(A)(2).
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together.” Pa.R.Crim.P. 583. Prejudice, in the context of severance, is “that
which would occur if the evidence tended to convict the appellant only by
showing his propensity to commit crimes, or because the jury was incapable
of separating the evidence or could not avoid cumulating the evidence.”
Commonwealth v. Ferguson, 107 A.3d 206, 210 (Pa. Super. 2015)
(citations omitted).
The PCRA court denied Appellant’s claim as meritless. It reasoned that
“[t]he matters were not complex and could easily be separated by the jury”
and, thus, “it would have been futile for trial counsel to seek severance[.]”
PCRA Ct. Op., 8/2/22, at 7.
After careful review, we agree. Evidence that Appellant possessed
pornographic images of other children was easily separable from evidence that
he raped, sexually abused, and possessed pornographic images of Victim.
Moreover, the Commonwealth adduced sufficient and overwhelming evidence
to convict Appellant of each charge. Spady, No. 3090 EDA 2013. That
evidence included Appellant’s admission to police that he raped and sexually
abused Victim, took pornographic pictures of Victim using his cellphone, and
downloaded pornographic pictures of other children from the internet. See
N.T. Trial, 12/4/12, at 59, 73. There is, thus, no indication in the record that
the jury convicted Appellant based on his propensity to commit crimes.
As a result of the above, we agree with the PCRA court that a request
to sever the charges of Possession of Child Pornography related to children
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other than Victim would have been meritless. Since counsel cannot be found
ineffective for failing to raise a meritless issue, this claim fails.
D.
In his final issue, Appellant argues that his trial counsel was ineffective
for failing to present character testimony from Mark Medley, Victim’s father,
at trial. Appellant’s Br. at 39-52. Medley testified at Appellant’s PCRA hearing
that he was available and would have testified to Appellant’s “good reputation”
among his family for being peaceful and law-abiding. N.T. Hr’g, 7/11/13, at
207, 209.9, 10 Appellant alleges that trial counsel had no reasonable basis for
failing to present Medley’s testimony, and that the failure caused him to suffer
prejudice. Appellant’s Br. at 39-52.
To establish counsel ineffectiveness for the failure to call a character
witness, the petitioner must prove, inter alia, that “the absence of the
testimony of the witness was so prejudicial as to have denied the defendant a
fair trial.” Commonwealth v. Treiber, 121 A.3d 435, 463-64 (Pa. 2015).
In the instant case, the PCRA court found that counsel’s failure to call
Medley to testify at trial did not cause Appellant to suffer sufficient prejudice
to warrant relief. PCRA Ct. Op. at 10. It explained that Medley’s proposed
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9 At the December 9, 2021 PCRA hearing, the PCRA court accepted the notes
of testimony of the July 11, 2013 hearing as evidence.
10Medley testified as a character witness on Appellant’s behalf at the February
2012 mistrial. N.T. Trial, 2/2/12, at 236-247. When asked to choose whether
Appellant had a “bad reputation, a good reputation or an excellent reputation”
among his family members for being peaceful and law-abiding, Medley
testified: “He had a good reputation.” Id. at 243.
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testimony was “short” and “merely . . . that Appellant had a ‘good’ reputation
in the community.” Id. The community was “limited to Appellant’s own family
members” and, thus, the testimony was “not so strong that it could have made
a major difference in [the jury’s] decision.” Id.
The record supports the PCRA court’s determination. While we are
mindful that Medley is the father of Victim, his testimony that Appellant had a
“good” reputation within his family for being peaceful and law-abiding would
not have overcome the Commonwealth’s significant evidence of Appellant’s
guilt. Moreover, Appellant’s fiancé testified at trial that he had a “very good”
reputation in the community for being “a law abiding and non-violent person.”
N.T. Trial, 12/5/12, Vol. I at page 61. Therefore, Medley’s testimony would
have been cumulative of the character evidence already presented. The
absence of Medley’s testimony was, thus, not so prejudicial as to have denied
Appellant a fair trial. As a result, this claim fails.
E.
In summation, we conclude that Appellant waived his allegations of
ineffective assistance of PCRA counsel, and his claims of trial counsel
ineffectiveness are meritless. As a result, we affirm the PCRA court’s order
dismissing Appellant’s petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/13/2023
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