Opinion
J-S42003-16 No. 298 WDA 2015
06-22-2016
COMMONWEALTH OF PENNSYLVANIA, Appellee v. ROBERT POLZER, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order December 15, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0013546-2008 BEFORE: SHOGAN, OTT, and FITZGERALD, JJ. MEMORANDUM BY SHOGAN, J.:
Former Justice specially assigned to the Superior Court.
Appellant, Robert Polzer, appeals pro se from the order entered on December 15, 2014, that denied his petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. We affirm.
In an opinion filed in response to Appellant's direct appeal, the trial court provided the following factual background:
This matter arises out of an assault on the victim which occurred at Defendant's apartment on the Northside of Pittsburgh on August 20, 2008. The victim, who was 23 years old at the time of trial, first met Defendant in March 2008. (T., p. 33) She testified that she was friends with Defendant and had been to Defendant's apartment on prior occasions. On the afternoon of August 19, 2008 she began watching a movie with Defendant at his apartment but they did not finish the movie and, therefore, the following day she called Defendant and asked
if she could return to his apartment to finish watching the movie. (T., p. 35) The victim testified that she and Defendant went into Defendant's bedroom to watch the movie while they were lying on Defendant's bed. (T., p. 36) As she was watching the movie she fell asleep, however, she later awakened to the sensation of a pulling on her right arm. (T., p. 37) When she opened her eyes she realized that Defendant was handcuffing her right hand to the bedpost. She asked Defendant what he was doing and asked him to stop. As she struggled with Defendant he then began taping her with duct tape around her mouth and head while straddling her. (T., p. 39) She testified that as Defendant straddled her that she bit him on his leg. The victim further testified that before Defendant was able to handcuff her left hand she reached into her pocket and dialed 911 on her cell phone. (T., p. 39) After she was handcuffed, Defendant took her pants and underwear off and told her he was going to get her pregnant. (T., p. 40-41) After she was restrained and her mouth was taped the victim testified:
"He put his mouth on my vagina. He touched my breasts, he touched my whole body. He was just forcing himself on me." (T., p. 42)
She also testified that he then, "put his penis in my vagina and he began to have sex." (T., p. 43)
The victim also testified that Defendant hit her in the face. (T., p. 43) After completing the assault, Defendant took the tape off of the victim's mouth, removed the handcuffs and allowed the victim to leave the apartment. The victim told Defendant she would not tell anyone what happened but immediately upon leaving Defendant's apartment she called the police from her cell phone and was taken to Magee Hospital. (T., p. 48) The victim denied that she consented to being restrained or that the sexual relations with Defendant were consensual. (T., p. 49)
On cross examination the victim admitted that she had met Defendant months before the incident and that she had gone to various restaurants or bars with Defendant and had been to his apartment three or four times before the incident. (T., pp. 55-57) The victim, however, denied that they were boyfriend and girlfriend but acknowledged that at one time before the incident she had slept over [at] his apartment, even
sleeping in the same bed. (T., p. 60) She testified, however, that she had never had sex with Defendant and that the intercourse and her restraint on the night of the incident were not consensual.
The Commonwealth presented the testimony of Detective Aprill-Noelle Campbell. Detective Campbell testified that she responded to the dispatch of the assault and located the victim on Terman Avenue, near Defendant's apartment. (T., p. 128) She indicated the victim appeared confused and scared and Detective Campbell noted red marks on both of her wrists and residue of the duct tape on her face which was red and inflamed. (T., pp. 129-130)
The Commonwealth called Deborah Ann Shane, a sexual assault nurse examiner with the Sexual Assault Response Team for Allegheny County, who examined the victim on August 20, 2008 at Magee Women's Hospital. (T., p. 156) She noted that the victim appeared to be very upset. She found duct tape residue in the victim's hair and on the back of her head and around her mouth. The victim's lips were red and swollen. (T., p. 159) She also noted and photographed abrasions and broken skin on the victim's wrists, arms, legs, buttocks and thighs, as well as ligature marks on her wrist. (T., p. 160-167) She did not note any injuries to the vagina or cervix. (T., p. 167) The victim's medical records were also entered into evidence. (T., p. 151)
The Commonwealth called Detective Gregory Boss. Detective Boss testified that he went to Defendant's residence on August 20, 2008 at 8:14 p.m. at which time Defendant was present and consented to a search of his apartment and an interview, which was conducted at police headquarters. (T., pp. 180-183) Defendant admitted that while the victim was sleeping in his apartment he began taking her pants off and she initially made a comment "not now", but then they had consensual sex. (T., 191) Defendant ultimately admitted using a belt to restrain the victim and using tape, but denied using handcuffs on the victim. (T., 195) Defendant also denied being bitten on the leg by the victim, however, when asked to show his legs Detective Boss noted the bite mark on Defendant's leg, near his knee. (T., pp. 196-197) Defendant's taped interview was offered into evidence. (T., p. 199) The Commonwealth also entered into evidence the recording of the 911 call that was initiated by the
victim during the assault as well as her call to 911 after the assault. (T., pp. 113, 117)
The Commonwealth also called Detective Daniel Honan who read a letter sent by Defendant to the victim on or about December 9, 2008. (T, pp. 221-230) The long letter included Defendant's statement that:
"There is really no excuse for what I did to you. The whole entire situation feels like a nightmare to me. I cannot believe I forced myself on to you. I feel so ashamed of myself." (T., p. 227)
In the letter, Defendant repeatedly expressed regret for the "awful" things he did to the victim, but also asked the victim to testify that the sexual intercourse and bondage was consensual. (T., p. 227)
In his defense, Defendant testified that he met the victim in February 2008. He testified they were friends and that he wanted a more involved relationship, but also acknowledged they never had sexual relations during that time. (T., p. 249, 257) Defendant claimed that on the night before the assault, the victim called him and informed him she wanted to have sex. (T., p. 263) Defendant admitted restraining the victim and having intercourse with her, asserting:
"I told her, you know, I wanted to, you know, do like S&M type of bondage stuff with her, sex play, and she was kind of cool with it." (T., p. 278)
Trial Court Opinion, 4/23/13 at 3-7.
He denied that any of the conduct was non-consensual or that the victim ever asked him to stop. (T., p. 279) He testified that after having sex that they spoke for approximately a half hour before she left. (T., p. 235) He acknowledged that he did put the handcuffs in a trash bag. (T., p. 289) Finally, he acknowledged writing the letter, essentially stating that although at the time the sex was consensual that he now "wanted her to know that I sympathize and empathize with her." (T., 293)
Appellant was convicted of rape and false imprisonment, and the trial court sentenced Appellant to an aggregate term of ten and one-half to twenty-one years of incarceration. On direct appeal, this Court affirmed Appellant's judgment of sentence. Commonwealth v. Polzer , 575 WDA 2011, 87 A.3d 386 (Pa. Super. filed September 18, 2013) (unpublished memorandum). Appellant did not file a petition for allowance of appeal in the Pennsylvania Supreme Court. Accordingly, his judgment of sentence became final thirty days later on October 18, 2013.
42 Pa.C.S. § 9545(b)(1) and (3).
Appellant filed a timely pro se PCRA petition on August 13, 2014, and the PCRA court appointed counsel in an order dated September 3, 2014. On October 24, 2014, PCRA counsel filed a Turner/Finley no-merit letter and motion to withdraw as counsel. On November 18, 2014, the PCRA court granted counsel's motion to withdraw and notified Appellant of its intention to dismiss his PCRA petition. The PCRA court denied Appellant's PCRA petition in an order filed on December 15, 2014.
Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) (en banc) (setting forth the requirements for counsel to withdraw from representation in a collateral proceeding under the PCRA).
As a prefatory matter, we must address the timeliness of Appellant's pro se appeal as it implicates this Court's jurisdiction. Commonwealth v. Green , 862 A.2d 613, 615 (Pa. Super. 2004). An appeal must be filed within thirty days after the entry of the order from which the appeal is taken. Pa.R.A.P. 903(a). While the docket reflects that Appellant's appeal was not filed in the PCRA court until January 20, 2015, which is more than thirty days after the December 15, 2014 order, under the prisoner mailbox rule, an incarcerated appellant's appeal is deemed filed on the date the appellant presents it to prison authorities for mailing. Commonwealth v. Patterson , 931 A.2d 710, 714 (Pa. Super. 2007). Here, Appellant's notice of appeal is dated January 12, 2015. It appears that it was first erroneously mailed to this Court as opposed to the PCRA court, date-stamped received in Superior Court on January 16, 2015, and then forwarded to the PCRA court and marked filed on January 20, 2015. From these indicators, we are satisfied that Appellant placed his notice of appeal in the prison mail on or before January 14, 2015. Thus, we deem the notice of appeal timely.
On appeal, Appellant raises the following issues which we reproduce verbatim below:
A. Did the PCRA Court err in its decision dismissing Appellant's PCRA petition without a hearing where:
I. The trial court erred in excluding statements of an unavailable declarant as an exception to the hearsay rule?; and on
II. Whether the trial court erred on its defense motion sequestration order that allowed the lead case detective to conform her testimony to that of the complainant?;
III. Whether trial counsel was ineffective in failing to cross-examine Detective Campbell concerning her prior inconsistent statements?;
IV. Whether trial counsel was ineffective in failing to secure an available witness who was willing to testify on Appellant's behalf?;
V. Whether the sentencing court imposed an illegal sentence in violation of the Ex Post Facto Clause by invoking the "two strikes" mandatory minimum sentencing provision of 42 Pa.C.S.A. § 9714(a)(1), where the repeal of subsections (b) and (c) made the statute more harsh and punitive, subjecting Appellant to a greater punishment that took away the discretionary aspects of sentencing contrary to legislatures intent of Section 9714?;
VI. Whether the sentencing court imposed an illegal sentence, as to whether the mandatory minimum sentence provisions under Section 9714 (a)(1) constitute an illegal sentence pursuant to the United States Supreme Court's decision in Alleyne?;
VII. Whether the sentencing court imposed an illegal sentence in violation of the Sixth Amendment to the U.S. Const. by invoking the mandatory minimum sentencing provision of Section 9714, where such determination was not found by a jury and proved beyond a reasonable doubt ?;
VIII. Whether Section 9714 imposes new legal burdens of past transaction or occurrence and changes the punishment for the predicate offense in violation of the Fourteenth and Sixth Amendments?;
IX. Whether SORNA's registration and verification requirements under 42 Pa.C.S.A. § 9799.15(e)(3) violate the due process clause of the Fourteenth Amendment, and the
Appellant's Brief at 8-9.prohibition of the Ex Post Facto Clause to the U.S. Constitution, where Appellant has not been designated a sexually violent predator to warrant quarterly verification?
Our standard of review for an order denying PCRA relief is limited to determining whether the record supports the PCRA court's determination and whether that decision is free of legal error. Commonwealth v. Allen , 48 A.3d 1283, 1285 (Pa. Super. 2012) (citation omitted). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Id.
At the outset, we note that Appellant's first two issues concern allegations of trial court error and are not cognizable under the PCRA because they could have been raised on direct appeal. Commonwealth v. Spotz , 18 A.3d 244, 270, (Pa. 2011) (citing 42 Pa.C.S. §§ 9543(a)(3) and 9544(b)). Issues three through eight present challenges to the legality of Appellant's sentence or raise claims of ineffective assistance of counsel, and are, therefore, cognizable under the PCRA. See Commonwealth v. Hockenberry , 689 A.2d 283, 288 (Pa. Super. 1997) (stating that issues relating to the legality of sentence cannot be waived and are cognizable under the PCRA); see also 42 Pa.C.S. § 9543(a)(2)(ii) (specifically providing that claims of ineffective assistance of counsel are cognizable under the PCRA). However, Appellant's ninth issue is waived. In his ninth issue, which appears as issue number seven in the argument portion of Appellant's brief, Appellant baldly alleges that certain requirements of the Sex Offender Registration and Notification Act, 42 Pa.C.S. § 9799 et seq. ("SORNA") are unconstitutional and violate the ex post facto clause of the United States Constitution. Appellant's Brief at 37-39. Yet Appellant's argument on this issue in his brief consists of nothing more than quotations from various statutes and cases without any relevant application to the case at bar. Furthermore, although Appellant attempts to develop an argument in his reply brief, he has failed to illustrate how this Court can grant relief under the PCRA where his ex post facto argument was specifically rejected in Commonwealth v. Perez , 97 A.3d 747 (Pa. Super. 2014).
After our review of the briefs of the parties and the record certified to this Court on appeal, we conclude that the PCRA court's thorough opinion comprehensively addressed the aforementioned claims of error. Accordingly, we affirm the order denying Appellant's PCRA petition, and we do so based on the PCRA court's July 15, 2015 opinion. We do, however, supplement the PCRA court's opinion in one respect.
The parties are directed to attach a copy of the July 15, 2015 opinion in the event of future proceedings in this matter.
It does not appear from the record that the PCRA court directed Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Nevertheless, in his notice of appeal, Appellant raised numerous issues upon which he sought relief. These issues are the same challenges the PCRA court addressed in its opinion and which Appellant presented in his brief on appeal except for one. Appellant now asserts that the trial court imposed a mandatory minimum sentence in violation of Alleyne v. United States , ___ U.S. ___, 133 S.Ct. 2151 (2013). Appellant's Brief at 9.
Additionally, we point out that in the issues presented in his notice of appeal, Appellant raised a claim of ineffective assistance of counsel for failure to preserve a challenge to the weight of the evidence. However, Appellant has abandoned that issue on appeal.
In Alleyne , the United States Supreme Court held, inter alia, that the constitutional right to a jury trial requires any fact, other than a prior conviction, that prompts a mandatory minimum sentence to be proven beyond a reasonable doubt. Id. at 2160. Because Appellant's challenge pursuant to Alleyne implicates the legality of his sentence, we conclude that the issue is properly before this Court. See Commonwealth v. Newman , 99 A.3d 86, 90 (Pa. Super. 2014) (stating that challenges to a sentence based on the holding from Alleyne implicate the legality of the sentence and cannot be waived on appeal).
In the case at bar, Appellant received a ten-year mandatory minimum sentence on his rape conviction pursuant to 42 Pa.C.S. § 9714(a) due to a prior conviction for involuntary deviate sexual intercourse ("IDSI") which is an enumerated crime of violence under 42 Pa.C.S. § 9714(g). While Alleyne has curtailed the imposition of mandatory minimum sentences in many instances, as noted above, an exception to Alleyne is where a mandatory sentence is imposed because of a prior conviction. Alleyne , 133 S.Ct. at 2160 n.1 (citing Almendarez-Torres v. United States , 523 U.S. 224, 243-44 (1998)). Moreover, this Court has previously addressed this discrete issue and ruled that a mandatory minimum sentence imposed pursuant to Section 9714 based on a prior conviction does not violate Alleyne. Commonwealth v. Reid , 117 A.3d 777, 785 (Pa. Super. 2015). Thus, Appellant's challenge to the legality of his sentence based on the holding from Alleyne is meritless.
For the reasons set for above, we conclude that Appellant is entitled to no relief. Accordingly, we affirm the order denying Appellant's PCRA petition.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 6/22/2016
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