Com. v. Carter. S.

J-A04029-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SEAN CARTER :
:
Appellant : No. 902 EDA 2021
Appeal from the PCRA Order Entered April 21, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004485-2013
BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY NICHOLS, J.: FILED MARCH 15, 2022
Appellant Sean Carter appeals from the order denying his timely first
Post Conviction Relief Act1 (PCRA) petition without a hearing. Appellant
contends that his trial and appellate counsel were ineffective in their
representation. We affirm.
A prior panel of this Court adopted the following factual history:
The . . . charges arose out of incidents that occurred in the late
summer of 2012, during which [A]ppellant injured I.H., a two-year
old child in his care,[FN2] causing her to suffer a knife wound to her
head as well as an injury to her left hand and other parts of her
that required her to be hospitalized and undergo surgery for a
fractured skull.
Appellant agreed to care for I.H. while her mother was
[FN2]
enrolled in a drug rehabilitation program.
On September 19, 2012, [when Appellant was serving as I.H.’s
guardian], she was transported by an ambulance to St.
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1 42 Pa.C.S. § 9541-9546.
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Christopher’s Hospital in Philadelphia. Upon examination, I.H.
was deemed to have a five[-] to six[-]centimeter[-]long laceration
to her skull and an injury to her left hand as well as bruising to
various parts of her body. [Appellant] stated that the injury to
her skull was caused by a large chopping knife that accidentally
fell a couple of feet off of the top of a counter as he was washing
dishes and the injury to her hand was self-inflicted by I.H. herself
when she began flailing about in a bathtub as [Appellant]
attempted to clean the wound to her head. He further stated that
as he was calling for an ambulance, I.H. fell down some steps. He
added that the bruises on I.H.’s buttocks resulted from her having
to wear diapers and a bruise on her leg was from a bug bite.
An examination of I.H.’s skull revealed that it had been fractured
and a membrane around her skull had been penetrated by the
knife. I.H. also had bleeding under her skull caused by an injury
to another part of her skull, which damaged part of her brain and
which was not caused by having been stuck with the knife. Due
to the severity of the knife wound, I.H. had to undergo surgery to
repair the fracture and the damage to her scalp and the
membrane around her skull.
In addition to the laceration, skull fracture, and bruising to her
brain, I.H. also had bruises on various parts of her body, including
her left thigh, buttocks, chin, ankle, top of the knee and on both
sides of her left hand.
Dr. Maria DiGiorgio McColgan, who specialized in ascertaining
whether children who have suffered physical injuries were victims
of abuse, examined I.H. a day after she was admitted to the
hospital and reviewed I.H.’s medical records. Based on that
review, the doctor opined that some of the bruises were caused
by an implement of some sort such as a hair brush that some of
them were not a day old, the bruise on her leg was not caused by
a bug bite, and the ones on her buttocks did not result from
wearing a diaper. She added that it was also her opinion that the
knife wound was not caused in the manner in which [Appellant]
said it was given the length of the laceration, the fact that it
fractured the victim’s skull. She added that because the knife was
light in weight it would not have been able to inflict the laceration
and fractured skull if the incident had occurred as [Appellant] said
it did because the blade of the knife would have had to have
contacted I.H’s skull perpendicular to it at a faster rate of speed
than would have been generated had the knife simply fell off the
counter. Finally, the doctor stated that the injuries to I.H’s body
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were not caused by another young child or by having ridden a
tricycle and that I.H. could not have caused the injury to her left
hand by flailing about while being treated by [Appellant] because
it would have required a larger of amount of force to cause the
observed injuries to it.
In addition to reviewing records and examining I.H, Dr. McColgan
spoke to I.H. a couple of days after her surgery. I.H. related that
“Daddy” had caused her bruises by hitting her with something and
also spontaneously said in the presence of a medical student that,
“Daddy hit me with a knife.” Dr. McColgan noted that the bruising
to I.H.’s buttocks caused a high creatine phosphokinase (CPK)
level, which the doctor explained could have been caused by the
breakdown of muscle tissue as a result of the bruising caused by
[strikes] to her body. Finally, she stated that I.H. suffered from
developmental difficulties, which could have resulted from being
born to a drug [dependent] mother and the abuse she suffered.
Ms. Karen Darelene Montgomery, an employee of the Philadelphia
Department of Human Services (hereinafter DHS), interviewed
[Appellant] on September 20, 2012, inside the residence where
the incident occurred. During the interview, [Appellant] stated
that I.H.’s mother permitted him and his paramour to watch I.H.
while her mother received drug treatment, that I.H. called him
“Daddy” and his paramour “Mommy,” and that he was alone with
I.H. when she suffered the laceration. [Appellant] further stated
that he was doing the dishes and when he placed a pot down on
the tip of the knife, the knife flipped into the air and down onto
I.H., causing the laceration to her head as she was sitting on the
counter. He further stated that he wrapped the injury in a towel,
called 911, and took I.H. upstairs to wash the wound. He further
stated that while in the tub, I.H. was flailing about and hit her
hand on the faucet[,] injuring it. Finally, with regard to a bruise
on I.H.’s forehead, [Appellant] surmised that it occurred when I.H.
tripped on steps getting out of the bathtub and hit her face, and
that other injuries looked like bug bites, not bruises.
After relating the foregoing, [Appellant] took Ms. Montgomery into
the kitchen and attempted to replicate what occurred to cause the
laceration on I.H.’s head. Using a knife smaller than the one that
caused the laceration to I.H. (the actual knife had been
confiscated by police), he could not duplicate how I.H. was
injured. He also stated that he did not know how I.H.’s buttocks
were bruised and said that they could have resulted from her
having tried to ride a tricycle at a cookout. Finally, Ms.
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Montgomery indicated that when the knife flipped off of the
counter, I.H. was sitting on the floor near the corner of the counter
and not on top of the counter as he previously stated.
Christine Smolinski, I.H.’s mother, indicated that in August of
2012, she agreed to let [Appellant] take care of I.H. while she
received drug treatment. [Appellant] brought I.H. to see her
every Sunday. During one of those visits in early September of
2012, as she was leaving, I.H. became anxious and said that she
did not want to go back with “Daddy Sean.” She also said the
same thing to Ms. Smolinski’s sister and began crying during that
conversation.
Ms. Smolinski visited I.H. in the hospital and I.H. told her that,
“Daddy Sean did it[ ]” and that he also caused a bruise that Ms.
Smolinski saw when she changed I.H.[’s] diaper. She further
testified that she noticed a change in I.H., and that when she
visited I.H. in the hospital, I.H had injuries that were not present
a couple of days before I.H. was taken to the hospital.
Philadelphia Police Officer Tyrone Green of the Special
Investigations Unit was assigned to investigate the incident. In
the course of doing so, he spoke to [Appellant] at his residence
and [Appellant] explained that the cut to I.H.’s head occurred
when a knife accidentally fell off of a kitchen counter onto I.H.,
who was standing or sitting next to [Appellant] as he stood in the
kitchen. When Officer Green asked [Appellant] about other
bruises on I.H.’s body, [Appellant] said that he thought that some
of them may have been caused by spider bites she incurred in her
crib and others from him having “popped” her on her hand and
twice on her thigh. Officer Green confiscated a knife that
[Appellant] said was the one that caused the laceration, which was
over eleven inches long, light in weight, and had seven holes
above its blade.
Commonwealth v. Carter, 2938 EDA 2017, 2018 WL 3122072, at *1-3 (Pa.
Super. filed June 26, 2018) (unpublished memorandum), appeal denied, 198
A.3d 1054 (Pa. 2018).
Following Appellant’s bench trial on October 7, 2016, the trial court
convicted Appellant of aggravated assault, endangering the welfare of children
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(EWOC), simple assault, possessing instruments of crime (PIC), and recklessly
endangering another person (REAP).2 On March 23, 2017, the court imposed
an aggregate sentence of ten to twenty years of incarceration followed by
seven years of probation. Appellant timely filed a post-sentence motion and,
following its denial, a timely notice of appeal. This Court affirmed his
judgment of sentence.
On November 20, 2019, Appellant filed a timely pro se PCRA petition.3
The PCRA court appointed counsel, who filed an amended petition raising
ineffectiveness claims against both trial counsel and appellate counsel. On
February 16, 2021, the PCRA court issued a Pa.R.Crim.P. 907 notice of intent
to dismiss Appellant’s petition without a hearing. Appellant filed a response
raising an additional claim, namely, that the trial court had shown racial bias
at sentencing.4 See Pro Se Correspondence, 3/11/21, at 1-2. On April 21,
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2 18 Pa.C.S. §§ 2702(a), 4304(a)(1), 907(a), 2701(a), and 2705, respectively.
3 Appellant’s judgment of sentence became final on March 11, 2019, ninety
days after Appellant failed to petition the United States Supreme Court for
allocatur. See Commonwealth v. Reed, 107 A.3d 137, 141 (Pa. Super.
2014); see also 42 Pa.C.S. § 9545(b)(3) (stating that “[f]or purposes of this
subchapter, a judgment becomes final at the conclusion of direct review,
including discretionary review in the Supreme Court of the United States and
the Supreme Court of Pennsylvania, or at the expiration of time for seeking
the review”).
4 We recognize that PCRA counsel did not address the claim raised in
Appellant’s pro se response to the court’s Rule 907 notice. However, Appellant
was not permitted to litigate issues in his pro se response because he was
already represented by counsel. See, e.g., Commonwealth v. Pursell, 724
A.2d 293, 302 (Pa. 1993) (prohibiting hybrid representation in PCRA
(Footnote Continued Next Page)
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2021, the court issued an order formally dismissing Appellant’s petition
without a hearing.
Appellant filed a timely notice of appeal and a timely court-ordered
Pa.R.A.P. 1925(b) statement.
On appeal, Appellant raises several issues for our review, which we set
forth as follows:
1. Whether the PCRA court erred in finding that appellate counsel
was not ineffective for failing to argue that Appellant lacked the
requisite mens rea?
2. Whether the PCRA court erred in finding that appellate counsel
was not ineffective for failing to preserve Appellant’s
discretionary sentencing claim?
3. Whether the PCRA court erred in finding that trial counsel was
not ineffective for failing to object to hearsay testimony?
4. Whether the PCRA court erred in finding that trial counsel was
not ineffective for failing to call witnesses to the stand?
5. Whether the PCRA court erred in finding that trial counsel was
not ineffective for failing to cross-examine the victim’s mother
regarding her length criminal record?
Appellant’s Brief at 9 (formatting altered).
This Court has explained that
our standard of review from the denial of a PCRA petition is limited
to examining whether the PCRA court’s determination is supported
by the evidence of record and whether it is free of legal error. The
PCRA court’s credibility determinations, when supported by the
record, are binding on this Court; however, we apply a de novo
standard of review to the PCRA court’s legal conclusions.
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proceedings). Accordingly, while we cannot reach the merits of Appellant’s
claim, as noted below, it would have been meritless even if properly raised.
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Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa. Super. 2019)
(citations omitted and formatting altered).
Furthermore, to establish a claim of ineffective assistance of
counsel, a defendant must show, by a preponderance of the
evidence, ineffective assistance of counsel which, in the
circumstances of the particular case, so undermined the truth-
determining process that no reliable adjudication of guilt or
innocence could have taken place. The burden is on the defendant
to prove all three of the following prongs: (1) the underlying claim
is of arguable merit; (2) that counsel had no reasonable strategic
basis for his or her action or inaction; and (3) but for the errors
and omissions of counsel, there is a reasonable probability that
the outcome of the proceedings would have been different.
We have explained that a claim has arguable merit where the
factual averments, if accurate, could establish cause for relief.
Whether the facts rise to the level of arguable merit is a legal
determination.
The test for deciding whether counsel had a reasonable basis for
his action or inaction is whether no competent counsel would have
chosen that action or inaction, or, the alternative, not chosen,
offered a significantly greater potential chance of success.
Counsel’s decisions will be considered reasonable if they
effectuated his client’s interests. We do not employ a hindsight
analysis in comparing trial counsel’s actions with other efforts he
may have taken.
Prejudice is established if there is a reasonable probability that,
but for counsel’s errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.
Boilerplate allegations and bald assertions of no reasonable basis
and/or ensuing prejudice cannot satisfy a petitioner’s burden to
prove that counsel was ineffective. Moreover, a failure to satisfy
any prong of the ineffectiveness test requires rejection of the
claim of ineffectiveness.
Id. at 1043-44 (citations omitted and formatting altered).
Further, it is well settled that
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[t]here is no absolute right to an evidentiary hearing on a PCRA
petition, and if the PCRA court can determine from the record that
no genuine issues of material fact exist, then a hearing is not
necessary. To obtain reversal of a PCRA court’s decision to
dismiss a petition without a hearing, an appellant must show that
he raised a genuine issue of fact which, if resolved in his favor,
would have entitled him to relief, or that the court otherwise
abused its discretion in denying a hearing.
Commonwealth v. Maddrey, 205 A.3d 323, 328 (Pa. Super. 2019) (citations
and quotation marks omitted). Lastly, this Court “may affirm the decision of
the [PCRA] court if there is any basis on the record to support the [PCRA]
court’s action; this is so even if we rely on a different basis in our decision to
affirm.” Commonwealth v. Wiley, 966 A.2d 1153, 1157 (Pa. Super. 2009)
(citation omitted).
Layered Ineffectiveness Claims
Appellant argues that appellate counsel was ineffective for failing to
properly craft arguments regarding his mens rea and failing to preserve his
discretionary sentencing claim. See Appellant’s Brief at 19-24. Appellant also
claims that trial counsel was ineffective for failing to object to alleged hearsay.
Id. at 24. Finally, Appellant attempted to raise a single claim of PCRA counsel
ineffectiveness. See Pro Se Correspondence, 3/11/21, at 1-2. Appellant is
alleging layered ineffectiveness claims because he contends that both his trial
counsel and appellate counsel were ineffective.
Generally, with regard to layered claims of ineffectiveness,
for a petitioner to properly raise and prevail on a layered
ineffectiveness claim, sufficient to warrant relief if meritorious, he
must plead, present, and prove the ineffectiveness of Counsel 2
(appellate counsel), which as we have seen, necessarily reaches
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back to the actions of Counsel 1 (trial counsel). To preserve
(plead and present) a claim that Counsel 2 was ineffective in our
hypothetical situation, the petitioner must: (1) plead, in his PCRA
petition, that Counsel 2 was ineffective for failing to allege that
Counsel 1 was ineffective [for not raising the claim]; and (2)
present argument on, i.e., develop, each prong of the Pierce test
as to Counsel 2’s representation, in his briefs or other court
memoranda. Then, and only then, has the petitioner preserved a
layered claim of ineffectiveness for the court to review; then, and
only then, can the court proceed to determine whether the
petitioner has proved his layered claim.
Commonwealth v. McGill, 832 A.2d 1014, 1022 (Pa. 2003).
However, we note that Appellant’s first two issues are “stand-alone”
claims of ineffective assistance of appellate counsel, i.e., a claim that the
underlying issue has been previously litigated by appellate counsel, but in an
allegedly ineffective manner. See, e.g., Commonwealth v. Paddy, 15 A.3d
431, 443 (Pa. 2011). To succeed on such claims,
a PCRA petitioner must demonstrate that appellate counsel was
ineffective in the manner by which he litigated the claim on
appeal. Paddy, 15 A.3d at 443; see also id. at 476, (C.J.
Castille, Concurring) (asserting that “[t]o prevail [on a stand-
alone claim of appellate counsel ineffectiveness], the PCRA
petitioner must show exactly how appellate counsel was
ineffective, by offering additional evidence or controlling
authority, missed by direct appeal counsel, that would have
changed the appeal outcome; or by specifically alleging the
winning claim or distinct legal theory that appellate counsel failed
to recognize; and then by showing how the appeal, as pursued,
was incompetent by comparison”).
Commonwealth v. Koehler, 36 A.3d 121, 142 (Pa. 2012). If appellate
counsel’s representation resulted in a waived claim, the appellant must
demonstrate that appellate counsel was ineffective for failing to raise the claim
on direct appeal. Commonwealth v. Tedford, 960 A.2d 1, 16 (Pa. 2008).
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Finally, for claims of appellate counsel ineffectiveness, a petitioner must still
prove each of the three underlying elements of the Strickland test.
Commonwealth v. D’Amato, 856 A.2d 806, 812 (Pa. 2004). Appellant must
still prove: (1) the underlying claim is of arguable merit; (2) that counsel had
no reasonable strategic basis for his or her action or inaction; and (3) but for
the errors and omissions of counsel, there is a reasonable probability that the
outcome of the proceedings would have been different. Sandusky, 203 A.3d
at 1043; D’Amato, 856 A.2d at 812.
Appellant’s remaining issues are layered claims of ineffectiveness
against trial counsel and appellate counsel, which he appropriately raised for
the first time in his PCRA petition and in a pro se response to the PCRA court’s
Rule 907 notice. To the extent that we may consider this issue despite hybrid
representation, it was appropriately raised before the PCRA court pursuant to
Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021), which acknowledged
the difficulty in litigating a claim of PCRA counsel ineffectiveness and held:
We reject the current Rule 907 procedure by which a petitioner
may raise claims of ineffective assistance of PCRA counsel as
unworkable, and offer a modified and flexible . . . approach
allowing a petitioner to raise claims of ineffective PCRA counsel at
the first opportunity, even if on appeal. We conclude this approach
best recognizes a petitioner’s right to effective PCRA counsel while
advancing equally legitimate concerns that criminal matters be
efficiently and timely concluded.
Id. at 405.
Appellate Counsel’s Ineffectiveness
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Appellant’s first two counseled issues concern the ineffectiveness of
appellate counsel. First, he contends that appellate counsel failed to craft an
argument analyzing each crime and the required mens rea for the crime; and
second, that counsel failed to preserve and properly argue Appellant’s
discretionary sentencing claim. See Appellant’s Brief at 19-24.
Our Supreme Court has held that when this Court finds an issue waived
on direct appeal but then determines that the issue is meritless, the ruling on
the merits is a valid holding that constitutes the law of the case as to the
ruled-upon issue. See Commonwealth v. Reed, 971 A.2d 1216, 1220 (Pa.
2009). Further, because the ruling on the merits of the issue is the law of the
case, it constrains this Court’s review of the same issue in subsequent
collateral proceedings, even if it is nested in a claim of ineffective assistance
of counsel. See id.; see also Commonwealth v. Gwynn, 943 A.2d 940,
946 (Pa. 2008) (concluding that the petitioner’s “claim that appellate counsel
was ineffective for failing to raise trial counsel’s ineffectiveness on direct
appeal is meritless since it was, in fact, raised”).
As noted above, Appellant argues that appellate counsel failed to craft
an argument that fully analyzed each element of each crime in relation to the
mens rea required. Appellant’s Brief at 19-22. However, on direct appeal, a
panel of this Court concluded that while Appellant’s counsel had failed to
develop an argument with the appropriate citation to authority and had,
accordingly, waived the claim, this Court would have affirmed based on the
trial court’s analysis. Carter, 2018 WL 3122072, at *3. An examination of
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the record shows that the trial court thoroughly analyzed the elements of each
crime and the mens rea required for each crime and determined that the
Commonwealth had proven beyond a reasonable doubt all required elements
of each crime. Trial Ct. Op., 10/25/17, at 7-11. Because a previous panel of
this Court has ruled on the merits of this issue, appellate counsel cannot be
ineffective for failing to raise an issue that was in fact raised, and we cannot
conclude at this juncture that the claim has arguable merit. Gwynn, 943 A.2d
at 946; Reed, 971 A.2d at 1220; Koehler, 36 A.3d at 142; Sandusky, 203
A.3d at 1043-44.
In his second claim of appellate counsel ineffectiveness, Appellant
argues that counsel had no reasonable basis for failing to include a Pa.R.A.P.
2119(f) statement in his appellate brief, which resulted in the waiver of his
discretionary sentencing claim.5 Appellant’s Brief at 22-24. Appellant
contends that “[a]lthough we cannot predict with certainty how the reviewing
court would have ruled [had] it been presented with the issue, it is certain
that the Appellant suffered actual prejudice.” Id. at 24.
To succeed on an ineffectiveness claim for failure to preserve a challenge
to the discretionary aspects of sentencing, the petitioner must demonstrate a
reasonable probability that the underlying sentencing claim entitles the
petitioner to relief. Commonwealth v. Jones, 942 A.2d 903 (Pa. Super.
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5 In his Rule 1925(b) statement, Appellant asserted that the court abused its
discretion by imposing an aggregate sentence in the aggravated range and
failing to put specific reasons on the record supporting the imposition of an
aggravated sentence. Rule 1925(b) Statement, 9/28/17, at ¶ 5.
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2008); see also Commonwealth v. Reaves, 923 A.2d 1119 (Pa. 2007)
(providing that a claim of ineffectiveness for failure to preserve discretionary
sentencing issue requires showing of reasonable probability that sentencing
court would have imposed a lesser sentence).
Prior to reaching the merits of a challenge to the discretionary aspects
of sentencing, we must determine
(1) whether the appeal is timely; (2) whether [a]ppellant
preserved his issue; (3) whether [a]ppellant’s brief includes a
concise statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspects of sentence; and
(4) whether the concise statement raises a substantial question
that the sentence is appropriate under the [S]entencing [C]ode.
Commonwealth v. Rush, 162 A.3d 530, 543 (Pa. Super. 2017) (citation
omitted). The determination of whether there is a substantial question is
made on a case-by-case basis. Id. “A substantial question exists where a
defendant raises a plausible argument that the sentence violates a provision
of the sentencing code or is contrary to the fundamental norms of the
sentencing process.” Id. (citation and quotation marks omitted). A claim that
the trial court departed from the Sentencing Guidelines without appropriate
explanation for its sentence may raise a substantial question. Id. at 190-92.
However, in the instant case, the court stated the reasons for imposing
Appellant’s sentence, which was within the standard guideline range. In
addressing this issue, the trial court explained:
[Appellant] should be denied relief on this issue because the
sentence imposed was not above the guidelines and thus, there is
no basis for [Appellant’s] claim. The applicable sentencing
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guidelines range for the aggravated assault charge was 90-108
month; plus/minus 12 months, and thus, the sentence was within
the guidelines, albeit in the aggravated range. With respect to the
charges on which the [c]ourt imposed probation, the guidelines
called for terms of incarceration, not probation[,] so those
sentences were below the range of sentences recommended by
the sentencing guidelines.
. . . . [Appellant] cannot establish that the sentence was
unreasonable given the injuries suffered by the two-year[-]old
victim, injuries which evidenced that [Appellant] intentionally
abused her on several occasions. As this [c]ourt stated just prior
to imposing sentence, it was a horrible case, with no explanation
and no excuse for the infliction of those injuries.
Trial Ct. Op., 10/25/17, at 16-17 (internal citations to the record omitted).
Accordingly, even if appellate counsel had preserved this claim, it would not
present a substantial question. Rush, 162 A.3d at 543 (stating that a
defendant must raise a plausible argument that the sentence violates a
provision of the sentencing code or is contrary to the fundamental norms of
the sentencing process). Moreover, even if we were to conclude that Appellant
presented a substantial question, there is no merit to the claim and Appellant
would be entitled to no relief because his sentence was within the guidelines
and was not unreasonable. Koehler, 36 A.3d at 142; Sandusky, 203 A.3d
at 1043-44.
Trial Counsel’s Infectiveness
Appellant next contends that the PCRA court erred in rejecting his claim
that trial counsel failed to object to hearsay testimony. Appellant’s Brief at
24. Specifically, Appellant contends that counsel should have made a timely
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hearsay objection when I.H.’s mother testified that I.H. told her, “I don’t want
to go back to Daddy Sean.” Id.
Appellant attempted to litigate this hearsay claim on direct appeal, and,
in affirming his judgment of sentence, this Court found that he had waived
the claim for failure to make a timely objection. See Carter, 2018 WL
3122072, at 4. This Court further determined that even if the issue had not
been waived, it would have affirmed based on the trial court’s opinion. Id.,see also Trial Ct. Op., 10/25/17, at 14-16 (holding that evidence was properly
admitted under Pa.R.E. 803(3) as a present sense impression, and that it was
relevant evidence because it demonstrated that I.H. was afraid to return to
Appellant and supported the theory he was abusing her). As noted previously,
where this Court initially finds an issue waived and determines the issue is
meritless, the ruling on the merits constitutes the law of the case. Reed, 971
A.2d at 1220. Consequently, this issue does not have arguable merit.
Sandusky, 203 A.3d at 1043-44.
Appellant also argues that trial counsel was ineffective for failing to call
his wife, aunt, and grandmother to testify at trial. Appellant’s Brief at 25.
Appellant claims that the testimony of these witnesses would have
contradicted the Commonwealth’s version of events, in that certain witnesses
would have stated that they saw bruises on I.H. before the stabbing incident
and that other bruises could have been caused by I.H.’s clothes or bug bites,
and therefore, changed the outcome of the trial. Id.
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It is axiomatic that when a PCRA petitioner claims counsel was
ineffective for failing to call a witness, he or she must establish
(1) the witness existed; (2) the witness was available to testify
for the defense; (3) counsel knew of, or should have known of,
the existence of the witness; (4) the witness was willing to testify
for the defense; and (5) the absence of the testimony of the
witness was so prejudicial as to have denied the defendant a fair
trial.
Commonwealth v. Goodmond, 190 A.3d 1197, 1202 (Pa. Super. 2018)
(formatting altered).
Arguably, based upon the unnotarized affidavits attached as Appendix
A to Appellant’s amended PCRA petition, the witnesses existed, were available
and willing to testify for Appellant, and were known to counsel. See Amended
PCRA Pet., 8/11/20, at Appendix A. However, as noted by the PCRA court,
[A]ppellant did not establish that the testimony of the purported
witnesses would have been helpful to his case and that he suffered
prejudice. The testimony of the witnesses allegedly would have
presented would not have countered the wealth of evidence
presented by the Commonwealth that proved beyond a
reasonable doubt that [A]ppellant caused the very serious injuries
the victim had when she arrived at the hospital.
PCRA Ct. Op., 4/30/21, at 11.6
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6 An examination of the affidavits does not contradict the Commonwealth’s
evidence. Kimberly Carter, Appellant’s wife, averred that Ms. Smolinski was
unable to care for I.H.; that Appellant was a good father to Ms. Carter’s
children; and that she had noticed bruises on the child’s body in other
instances. Id. Ms. Carter stated “in my heart and gut there is NO way possible
[Appellant] could have done this on purpose.” Id. Frances Benjamin,
Appellant’s grandmother, would have served as a character witness to
Appellant’s good character and that Ms. Smolinski did not take proper care of
I.H. Id. However, nothing in her affidavit would contradict any of the
evidence introduced by the Commonwealth. Sanita Carter, Appellant’s aunt,
(Footnote Continued Next Page)
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This testimony included the expert testimony of Dr. McColgan, who
testified at length to the severity of I.H.’s injuries and the fact that they could
not have been caused by accident, diaper rash, or bug bites. 7 N.T. Trial,
10/7/16, 22, 49. An examination of the record reveals no error in these
conclusions and, accordingly, this claim is not of arguable merit. Sandusky,
203 A.3d at 1043-44.
In his final claim, Appellant contends that the PCRA court erred in
rejecting his claim that trial counsel was ineffective for failing to cross-
examine the victim’s mother, Ms. Smolinski, concerning her lengthy criminal
record, which included more than ten crimen falsi offenses over the last ten
years. Appellant’s Brief at 26. Although Appellant acknowledges that the
Commonwealth questioned Ms. Smolinski about her criminal record on direct
examination, he contends that the “two questions and answers do not
sufficiently detail Ms. Smolinski’s criminal record and bad acts.” Id. at 27.
Appellant claims that had counsel questioned Ms. Smolinski about her record,
“her credibility would have been destroyed” and the outcome of the trial would
likely have been different. Id.
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would have testified regarding I.H.’s “dirty” appearance and clothing when she
came into Appellant’s care, and that Ms. Smolinski constantly asked Ms. Carter
for money. Id. Further, Ms. Carter claimed that I.H.’s clothes were tight and
left marks on her thighs and around her stomach. Id.
7Dr. McColgan did concede there were some marks on I.H.’s ankles that could
have been bug bites, but those ankle marks were not as severe as the majority
of her injuries. N.T. Trial, 10/7/16, 45-52, 62.
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Evidence of a witness’s conviction for a crime involving dishonesty or a
false statement is generally admissible. Pa.R.E. 609(a). “A failure to so
impeach a key witness is considered ineffectiveness in the absence of a
reasonable strategic basis for not impeaching.” Commonwealth v. Treiber,
121 A.3d 435, 456 (Pa. 2015). However, the failure to impeach witnesses
with crimen falsi convictions will not deprive the defendant of a fair trial where
his conviction did not solely rest on the testimony of those witnesses and
where some of the witnesses’ criminal history was known to the factfinder.
See, e.g., Commonwealth v. Solano, 129 A.3d 1156, 1175-76 (Pa. 2015).
Here, Appellant’s amended PCRA petition included an email from trial
counsel, who stated that he did not cross-examine Ms. Smolinski about her
criminal record because there were already numerous instances in the record
detailing Ms. Smolinski issues with addiction and inability to properly care for
I.H. See Amended PCRA Pet., 8/11/20, at Appendix B.
In addressing this issue, the PCRA court explained:
This [c]ourt denied relief with regard to this claim because the
Commonwealth had Ms. Smolinski detail her criminal record and
bad acts during its direct examination of her. Moreover, even had
trial counsel done so, the outcome of the trial would not have been
different because the other evidence the Commonwealth
presented was itself sufficient to sustain the verdicts. Thus,
[A]ppellant suffered no prejudice as a result of trial counsel’s
decision not to again elicit that testimony during his cross-
examination and the denial of relief on this claim should be
affirmed.
PCRA Ct. Op. at 11-12.
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The record supports the trial court’s conclusion. A portion of Ms.
Smolinski’s criminal record, including crimes of crimen falsi, were introduced
at trial, such that the court was aware of her criminal history. Solano, 129
A.3d at 1175-76. Accordingly, this claim is not of arguable merit. Sandusky,
203 A.3d at 1043-44.
Trial Court’s Alleged Racial Bias
Finally, in pro se correspondence to the PCRA court following his receipt
of the Pa.Crim.P. 907 notice of intent to dismiss, Appellant raised an additional
claim that the trial court had exhibited racial bias against him. See Pro Se
Correspondence, 3/11/21, at 1. Appellant claimed that the court’s statement
“I get the flavor of who is behind him” was racist innuendo because Appellant’s
supporters at sentencing were men and women of color.8 Id. at 1-2; see
also N.T. Sentencing Hr’g, 3/23/17, at 6. Appellant claimed that all prior
counsel, including PCRA counsel, were ineffective for failing to raise this claim.
Pro Se Correspondence, 3/11/21, at 1-2. As noted above, we may not
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8 The full context of this remark is as follows:
[DEFENSE COUNSEL]: Your Honor, one thing before I really get
started. There’s been a lot of family members here, sentencing
has been continued for a variety of different reasons. I know that
Kimberly, his wife, is in South Carolina. She’s been texting with
me. Originally, this was scheduled for Friday and got moved. She
wasn’t able to make it up here.
THE COURT: Right. I know, I had a letter from his wife. I have
a number of letters. So, I get the flavor of who is behind him.
N.T. Sentencing Hr’g, 3/23/17, at 6.
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consider hybrid representation in PCRA proceedings. See Pursell, 724 A.2d
at 302. However, even assuming arguendo the claim was properly raised, we
would find it without merit.
Pa.R.Crim.P. 907 provides that a defendant may respond to a proposed
dismissal notice within twenty days of the date of the notice. Pa.R.Crim.P.
907(1). “[T]he prisoner mailbox rule provides that a pro se prisoner’s
document is deemed filed on the date he delivers it to prison authorities for
mailing.”9 Commonwealth v. Chambers, 35 A.3d 34, 38 (Pa. Super. 2011).
Where the certified record does not indicate when an appellant delivers the
document to prison authorities for mailing, but the envelope is postmarked,
we will use the postmarked envelope for purposes of the filing date.
Commonwealth v. DiClaudio, 210 A.3d 1070, 1074 (Pa. Super. 2019).
Here, twenty days from the date of the 907 notice would have been Monday,
March 8, 2021. Accordingly, Appellant’s pro se response was not timely filed
and he was represented by counsel such that his filing would be impermissible
hybrid representation. See, e.g., Pursell, 724 A.2d at 302 (prohibiting hybrid
representation in PCRA proceedings).
Regardless, we would decline to find that this issue had merit. It is
unclear from Appellant’s response to the 907 notice exactly what Appellant
contends counsel should have done. Appellant does not claim that he asked
counsel to request recusal and was refused. Nor does he claim that he
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9 Appellant had legal representation at this time such that he was acting pro
se in this challenge.
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requested that counsel object to this statement and was refused. Even if he
had, he would not be entitled to relief. “A party seeking recusal bears the
burden of producing evidence to establish bias, prejudice, or unfairness which
raises a substantial doubt as to the jurist’s ability to preside impartially.”
Commonwealth v. Watkins, 108 A.3d 692, 734 (Pa. 2014). Appellant’s
claim does not meet this standard, and no relief is due.
The PCRA court noted that
No relief is due on this claim because [A]ppellant did not and
cannot establish that the verdict rendered by this [c]ourt was the
product of racial animus or bias or that the alleged comment
[A]ppellant claims was racist was in fact so. The verdict rendered
by this [c]ourt was solely the product of a careful, considered, and
objective assessment of the evidence.
PCRA Ct. Op. at 12.
Accordingly, based on our review of the record, we agree with the PCRA
court that Appellant’s claim has no arguable merit. He is not entitled to relief.
Sandusky, 203 A.3d at 1043-44.
For these reasons, and because Appellant failed to establish that his trial
counsel and appellate counsel were ineffective, we affirm the PCRA court’s
order denying relief. See Sandusky, 203 A.3d at 1043-44.
Order affirmed.
Judge Lazarus joins the memorandum.
Judge McLaughlin concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/15/2022
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