Opinion
J. S73011/16 No. 1947 WDA 2015 No. 1948 WDA 2015 No. 1949 WDA 2015
12-09-2016
COMMONWEALTH OF PENNSYLVANIA v. BRYAN JOHN MOYER, Appellant COMMONWEALTH OF PENNSYLVANIA v. BRYAN MOYER, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order, November 13, 2015, in the Court of Common Pleas of Potter County
Criminal Division at Nos. CP-53-CR-0000058-2005, CP-53-CR-0000138-2005 Appeal from the PCRA Order, November 13, 2015, in the Court of Common Pleas of Potter County
Criminal Division at Nos. CP-53-CR-0000057-2005, CP-53-CR-0000058-2005, CP-53-CR-0000138-2005 BEFORE: FORD ELLIOTT, P.J.E., LAZARUS AND JENKINS, JJ. MEMORANDUM BY FORD ELLIOTT, P.J.E.:
Bryan Moyer appeals pro se from the November 13, 2015 order denying his second amended petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.
A prior panel of this court summarized the relevant factual background of this case as follows:
Appellant repeatedly molested five boys, T.O., B.B., J.G., C.L., and M.K., who attended the same daycare center as [a]ppellant's son. Most of the abuse occurred at [a]ppellant's home while the victims were visiting his son. All of the boys, who were between three and six years old when they were assaulted, averred that [a]ppellant fondled their genitals; one victim, B.B., also claimed that [a]ppellant sucked his penis and inserted a finger into B.B.'s rectum. Appellant was charged in three separate informations [at Nos. CP-53-CR-0000057-2005, CP-53-CR-000058-2005, and CP-53-CR-0000138-2005] because police were unaware of the full extent of the abuse until the media reported that [a]ppellant had been charged with sexually assaulting a minor, and additional victims reluctantly admitted that they too had been molested.Commonwealth v. Moyer , 947 A.2d 829 (Pa.Super. 2008), appeal denied , 960 A.2d 838 (Pa. 2008) (unpublished memorandum at 1-2).
The remaining procedural history of this case was summarized by the PCRA court as follows.
Prior to [appellant's] preliminary hearing, sometime in February of 2005, [appellant], his counsel, James Rague and District Attorney Jeff Leber met and discussed the possibility of a plea agreement. At [appellant's] preliminary hearing on March 24, 2005 [appellant] did not mention any plea agreement and [appellant's] cases were bound over for trial. [Appellant] filed a pretrial motion seeking to dismiss the case on Pa.R.Crim.P. 600 grounds; however, the motion was dismissed by memorandum opinion on February 3, 2006. Following a jury trial which occurred from April 4th through April 7th, 2006, [appellant] was convicted of [10 counts of endangering the welfare of children, 19 counts of indecent assault, 9 counts of corruption of minors, 4 counts of rape, and 5 counts of involuntary deviate sexual intercourse ("IDSI").] [F]ollowing a sentencing reduction, [appellant] was sentenced to a period of incarceration of 19 years and 3 months to 46 years.
[Appellant] filed post sentence motions, including a motion relating to Pa.R.Crim.P. 704, which was denied. [Appellant] appealed to the Pennsylvania Superior Court[,] which affirmed the trial court on January 3, 2008. [Appellant] sought an allowance of appeal with the Pennsylvania Supreme Court[,] which was denied on November 17, 2008. [Appellant] filed a timely pro se PCRA Petition on October 21, 2009 and counsel was appointed by Judge John Leete (now Senior Judge) on October 28, 2009. After the appointment, the defense counsel accepted a law clerk position and failed to take action on behalf of the Petitioner. No amended petition was filed and it is unclear whether defense counsel was aware of the appointment as he was in the middle of transition to his new position. Thereafter, Judge Stephen Minor was elected President Judge of Potter County and took the bench in January 2010. No amended Petition was filed and neither defense counsel, nor [appellant] communicated with the [PCRA c]ourt.
Thereafter on September 12, 2014[,] Judge Minor became aware of the matter when [appellant] filed a pro se Amended PCRA Petition. New defense counsel was appointed and, with the assistance of counsel, [appellant] filed a Second Amended PCRA Petition on February 5, 2015. Following multiple continuances a hearing was held on [appellant's] Second Amended PCRA Petition on July 10, 2015.PCRA court opinion, 11/13/15 at 1-2.
18 Pa.C.S.A. §§ 4304, 3126(a)(7), 6301, 3121, and 3123, respectively.
Following the hearing, the PCRA court dismissed appellant's second amended PCRA petition on November 13, 2015. The PCRA court authored a comprehensive, 19-page opinion in support of its November 13, 2015 order denying appellant's petition. ( See id.) This timely appeal followed on November 30, 2015. On December 3, 2015, the PCRA court ordered appellant to file a concise statement of errors raised on appeal in accordance with Pa.R.A.P. 1925(b). On December 18, 2015, appellant complied with the PCRA court's directive and filed his Rule 1925(b) statement.
The record reflects that on December 21, 2015, appellant indicated to the PCRA court and his then-counsel, Richard W. McCoy, Esq., that he wished to proceed pro se. Following a hearing in accordance with Commonwealth v. Grazier , 713 A.2d 81 (Pa. 1998), the PCRA court determined that appellant intelligently, knowingly, and voluntarily waived his right to representation and granted his request to proceed pro se on February 1, 2016.
Appellant raises the following issues for our review:
1. Whether [the] PCRA Court committed an abuse of discretion or an error of Law by not granting PCRA relief where Trial Counsel failed to reduce a negotiated plea to writing, failed to properly raise Rule 600 issues, referenced other alleged victims, failed to effectively argue Rule 704 issues, failed to object to altered and shortened video interviews, failed to
appropriately challenge the replacement of a juror, failed to present and challenge mandatory minimum sentencing, failed to object to expert witness, failed to call available expert and lay witnesses, and, failed to object to hearsay and other inadmissible testimony?Appellant's brief at 4-6. For the ease of our discussion, we have elected to address appellant's claims in a slightly different order than presented in his brief.
2. Whether the PCRA Court committed an abuse of discretion or committed an error of Law by not granting PCRA relief where prosecutorial misconduct rendered the trial fundamentally unfair and the verdict unworthy of confidence by purchasing food and drinks for witnesses and lunch for the jury, by concealed, altered or shortened video interviews, by violating Rule 600, by violating Rule 704, and by concealing evidence favorable and exculpatory to [appellant]?
3. Whether the PCRA Court abused its discretion or committed an error of Law by denying PCRA relief where the PCRA proceedings were rendered fundamentally unfair by sequestering defense witnesses and not Commonwealth [] witnesses, by permitting the [Commonwealth witnesses] to use and enter a partial Rule 600 transcript without disclosure or availability of the complete Rule 600 transcript, and by accepting testimony contrary to authenticated demonstrable evidence?
4. Whether the PCRA Court abused its discretion or committed an error of Law by denying PCRA relief where [appellant] pled and presented unconstitutional mandatory minimum sentencing and due process issues?
5. Whether the PCRA hearing was rendered fundamentally unfair by the ineffectiveness of PCRA Counsel that failed to properly communicate with [appellant], failed to subpoena and present expert witnesses, and affidavits, regarding Rule 600 and negotiated plea agreement issues?
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). "This Court grants great deference to the findings of the PCRA court, and we will not disturb those findings merely because the record could support a contrary holding." Commonwealth v. Hickman , 799 A.2d 136, 140 (Pa.Super. 2002) (citation omitted). In order to be eligible for PCRA relief, a defendant must plead and prove by a preponderance of the evidence that his 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).
We begin by addressing appellant's multiple claims of trial counsels' purported ineffectiveness. We note that although "Issue 1" in appellant's "Statement of Questions Involved" raises 10 distinct claims of ineffectiveness, appellant has briefed only 5 of these ineffectiveness claims in the "Argument" portion of his pro se brief. Accordingly, we will limit our appellate review to those claims.
The record reflects that appellant was represented at various points during trial by both James Rague, Esq. and George Lepley, Esq. (collectively, "trial counsel").
Specifically, appellant contends that his trial counsel were ineffective for: (i) failing to properly raise a Pa.R.Crim.P. 600 issue with respect to Nos. CP-53-CR-0000057-2005 and CP-53-CR-000058-2005; (ii) failing to argue that the trial court's delay in sentencing him resulted in prejudice, pursuant to Pa.R.Crim.P. 704; (iii) failing to reduce his negotiated guilty plea to writing; (iv) failing to object to the fact that members of the jury were released for lunch at the same time as the Commonwealth's witnesses; and (v) failing to call an expert witness to discuss how false memory syndrome could affect his accusers' memories. (Appellant's brief at 13, 19, 22, 24, 26, and 27.)
To prevail on a claim of ineffective assistance of counsel under the 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). Specifically, a petitioner must establish that "the underlying claim has arguable merit; second, that counsel had no reasonable basis for his action or inaction; and third, that Appellant was prejudiced." Commonwealth v. Charleston , 94 A.3d 1012, 1020 (Pa.Super. 2014), appeal denied , 104 A.3d 523 (Pa. 2014) (citation omitted). "A petitioner establishes prejudice when he demonstrates that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Commonwealth v. Johnson , 966 A.2d 523, 533 (Pa. 2009) (citations and internal quotation marks omitted).
"[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), appeal denied , 30 A.3d 487 (Pa. 2011) (citation omitted). Additionally, we note that "counsel cannot be held ineffective for failing to pursue a meritless claim[.]" Commonwealth v. Hall , 867 A.2d 619, 632 (Pa.Super. 2005), appeal denied , 895 A.2d 549 (Pa. 2006).
After 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 ineffectiveness claims warrant no relief. The PCRA court comprehensively discussed the five ineffectiveness claims briefed by appellant and concluded that they were either meritless and/or his trial counsel had a reasonable strategic basis for his decisions. ( See PCRA court opinion, 11/13/15 at 3-12, 16-18.) We have reviewed the record in its entirety and have considered the merit of appellant's arguments. Following our careful consideration, we find that the PCRA court's conclusions are supported by competent evidence and are clearly free of legal error. Accordingly, we adopt the PCRA court's November 13, 2015 opinion as our own with regard to appellant's ineffectiveness of trial counsel claims.
Appellant next argues that the PCRA court erred in failing to conclude that the Commonwealth committed prosecutorial misconduct "by purchasing food and drinks for witnesses and lunch for the jury, by conceal[ing], alter[ing] or shorten[ing] video interviews, by violating Rule 600, by violating Rule 704, and by concealing evidence favorable and exculpatory to [appellant]." (Appellant's brief at 25-28.)
This court has long recognized that, "to be entitled to PCRA relief, a petitioner must plead and prove, inter alia , that the allegation of error has not been previously litigated or waived. An issue is waived if it could have been raised prior to the filing of the PCRA petition, but was not." Commonwealth v. Turetsky , 925 A.2d 876, 879 (Pa.Super. 2007), appeal denied , 940 A.2d 365 (Pa. 2007) (citation omitted); see also 42 Pa.C.S.A. § 9544(b) (stating, "an issue is waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state post conviction proceeding.").
Instantly, the record reflects that appellant could have pursued claims of alleged prosecutorial misconduct on direct appeal, but failed to do so. Accordingly, we find these claims waived.
Appellant next argues, albeit briefly, that the PCRA court abused its discretion "by sequestering defense witnesses and not Commonwealth []witnesses, by permitting the [Commonwealth] to use and enter a partial Rule 600 transcript without disclosure or availability of the complete Rule 600 transcript, and by accepting testimony contrary to authenticated demonstrable evidence." (Appellant's brief at 29.) Upon review, we find that appellant's argument on this issue is comprised primarily of boilerplate allegations and fails to include any citation to the certified record where this error allegedly occurred. Accordingly, we deem this claim waived. See Commonwealth v. Einhorn , 911 A.2d 960, 970 (Pa.Super. 2006), appeal denied , 920 A.2d 831 (Pa. 2007) (concluding that arguments which are undeveloped and lack citation to factual background or the certified record are waived); see also Pa.R.A.P. 2119(c), (d).
Appellant also raises multiple claims wherein he references appellate and PCRA counsel's purported ineffectiveness in failing "to properly communicate with [him] regarding PCRA issues and exhibits" and "subpoena and present expert witnesses[] and affidavits[] regarding [his] Rule 600 and negotiated plea agreement issues." (Appellant's brief at 34-37.) Appellant further opines that counsel was ineffective "by failing to plead, present and prove the illegal sentence issues." ( Id. at 39.)
The record reflects that Ronald Travis, Esq. represented appellant on direct appeal, and Richard W. McCoy, Esq. represented appellant during the early stages of his PCRA.
Our supreme court has set forth the proper framework for alleging a layered ineffective assistance of counsel claim in the context of the PCRA:
Succinctly stated, a petitioner must plead in his PCRA petition that his prior counsel, whose alleged ineffectiveness is at issue, was ineffective for failing to raise the claim that the counsel who preceded him was ineffective in taking or omitting some action. In addition, a petitioner must present argument, in briefs or other court memoranda, on the three prongs of the [ineffectiveness] test as to each relevant layer of representation. . . . [T]his means that the arguable merit prong of the [ineffectiveness] test as to the claim that appellate counsel was ineffective in not raising trial counsel's ineffectiveness consists of the application of the three-prong [ineffectiveness] test to the underlying claim of trial counsel's ineffectiveness. If any one of the prongs as to trial counsel's ineffectiveness is not established, then necessarily the claim of appellate counsel's ineffectiveness fails. Only if all three prongs as to the claim of trial counsel's ineffectiveness are established, do prongs 2 and 3 of the [ineffectiveness] test as to the claim of appellate counsel's ineffectiveness have relevance, requiring a determination as to whether appellate counsel had a reasonable basis for his course of conduct in failing to raise a meritorious claim of trial counsel's ineffectiveness (prong 2) and whether petitioner was prejudiced by appellate counsel's course of conduct in not raising the meritorious claim of trial counsel's ineffectiveness (prong 3).Commonwealth v. Reid , 99 A.3d 470, 482 (Pa. 2014), quoting Commonwealth v. McGill , 832 A.2d 1014, 1023 (Pa. 2003).
Our review of the record reveals that appellant has failed to brief his layered ineffectiveness claims by applying the three-prong ineffectiveness test to each level of representation. Moreover, as appellant has failed to adequately demonstrate that the underlying claims of trial counsel's purported ineffectiveness were of arguable merit , his PCRA counsel cannot be deemed to be ineffective in failing to pursue these meritless claims. A determination that trial counsel rendered ineffective assistance is a prerequisite to finding that any subsequent counsel was himself ineffective, and as discussed, no such findings were demonstrated in this case. See , e.g., Commonwealth v. Burkett , 5 A.3d 1260, 1270 (Pa.Super. 2010); see also Hall , 867 A.2d at 632 (holding that counsel cannot be found ineffective for failing to raise a claim that is devoid of merit). Accordingly, appellant's claim that his PCRA counsel rendered ineffective assistance must also fail.
Lastly, appellant argues that the PCRA court erred in failing to conclude that his mandatory minimum sentence, imposed pursuant to 42 Pa.C.S.A. § 9718, was illegal under Alleyne v. United States , ___ U.S. ___, 133 S.Ct. 2151 (2013), and this court's subsequent decision in Commonwealth v. Wolfe , 106 A.3d 800 (Pa.Super. 2014), affirmed , 140 A.3d 651 (Pa. 2016). (Appellant's brief at 30-33.)
Section 9718, Sentences for offenses against infant persons, provided in relevant part, as follows:
(a) Mandatory sentence.--
(1) A person convicted of the following offenses when the victim is less than 16 years of age shall be sentenced to a mandatory term of imprisonment as follows:
18 Pa.C.S. § 2702(a)(1) and (4) (relating to aggravated assault)--not less than two years.
18 Pa.C.S. § 3121(a)(1), (2), (3), (4) and (5) (relating to rape)--not less than ten years.
18 Pa.C.S. § 3123 (relating to involuntary deviate sexual intercourse)--not less than ten years.
18 Pa.C.S. § 3125(a)(1) through (6) (relating to aggravated indecent assault)--not less than five years.
In Alleyne , the United States Supreme Court held that the Sixth Amendment requires that "[a]ny fact that, by law, increases the penalty for a crime is an 'element' that must be submitted to the jury and found beyond a reasonable doubt." Alleyne , 133 S.Ct. at 2155 (citation omitted). Thereafter, in Wolfe , a panel of this court held that the version of Section 9718 that was in effect from January 1, 2007 until August 17, 2014, was unconstitutional in its entirety, in light of Alleyne and subsequent decisions by this court. Wolfe , 106 A.3d at 806, citing, inter alia , Commonwealth v. Newman , 99 A.3d 86 (Pa.Super. 2014), appeal denied , 121 A.3d 496 (Pa. 2015) ( en banc ) (as "stand[ing] for the proposition that mandatory minimum sentencing statutes in Pennsylvania of this format are void in their entirety"). Appellant maintains that because Section 9718 was invalidated by Alleyne , he is entitled to be resentenced without the application of any mandatory minimum sentencing provisions. (Appellant's brief at 32-33.) We disagree.
Instantly, we recognize that appellant was sentenced in 2006, and Alleyne was decided on June 17, 2013. Contrary to appellant's contention, this court has expressly rejected the notion that Alleyne applies retroactively to cases on collateral review. See Commonwealth v. Washington , 142 A.3d 810, 814-815 (Pa. 2016) (holding that the Alleyne decision does not apply retroactively to collateral attacks upon mandatory minimum sentences advanced in PCRA proceedings); see also Commonwealth v. Riggle , 119 A.3d 1058, 1064 (Pa.Super. 2015) (stating that, "while this Court has held that Alleyne applies retroactively on direct appeal, we have declined to construe that decision as applying retroactively to cases during PCRA review"). Accordingly, we agree with the PCRA court that Alleyne and its progeny do not apply retroactively to the instant matter, which was already at the PCRA review stage at the time Alleyne was decided.
To the extent that appellant further contends that his trial counsel were ineffective for failing to challenge the illegality of his sentence on the basis of Alleyne , we find that he is not entitled to relief. ( See appellant's brief at 24.) As discussed, this underlying sentencing claim is meritless, and "counsel cannot be held ineffective for failing to pursue a meritless claim[.]" Hall , 867 A.2d at 632. --------
Based on the foregoing, we find no error on the part of the PCRA court in dismissing appellant's second amended petition.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/9/2016
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