Com. v. Moyer, B. ( 2016 )

J. S73011/16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
BRYAN JOHN MOYER, : No. 1947 WDA 2015
:
Appellant :
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
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
BRYAN MOYER, : No. 1948 WDA 2015
:
Appellant :
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
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
BRYAN MOYER, : No. 1949 WDA 2015
:
Appellant :
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
J. S73011/16
BEFORE: FORD ELLIOTT, P.J.E., LAZARUS AND JENKINS, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 09, 2016
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denied, 960 A.2d 838 (Pa. 2008) (unpublished memorandum at 1-2).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.
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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”).1] [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.
1
18 Pa.C.S.A. §§ 4304, 3126(a)(7), 6301, 3121, and 3123, respectively.
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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.
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.2
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
2
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.
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J. S73011/16
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?
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?
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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.
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).
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We begin by addressing appellant’s multiple claims of trial counsels’
purported ineffectiveness.3 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.
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.”
3
The record reflects that appellant was represented at various points during
trial by both James Rague, Esq. and George Lepley, Esq. (collectively, “trial
counsel”).
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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
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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
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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
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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.)4
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).
4
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.
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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
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42 Pa.C.S.A. § 9718,5 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.)
In Alleyne, the United States Supreme Court held that the Sixth
Amendment requires that “[a]ny fact that, by law, increases the penalty for
5
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.
42 Pa.C.S.A. § 9718(a)(1).
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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
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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.6
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.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/9/2016
6
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.
- 15 -
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PROCEDURAL HISTORY, DISCUSSION, AND ORDER ON THE PETITIONER'S ~
SECOND AMENDED PCRA PETITION
PROCEDURAL HISTORY
In late 2004 and early 2005 the Petitioner was charged at the three above-captioned
case numbers with several counts relating to sexual incidents involving multiple children. Prior
., to the Petitioner's preliminary hearing, sometime in February of 2005, the Petitioner, his
counsel, James Rague and District Attorney Jeff Leber met and discussed the possibility of a
plea agreement. At the Petitioner's preliminary hearing on March 24, 2005 the Petitioner did
not mention any plea agreement and the Petitioner's cases were bound over for trial. The
Petitioner 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 th, 2006, the Petitioner was convicted of
numerous offenses and, following a sentencing reduction. was sentenced to_ a pgriQ.d_.Qf--=--=
incarceration of 19 years and 3 months to 46 years.
The Petitioner filed post sentence motions, including a motion relating to Pa.R.Crim.P.
704, which was denied. The Petitioner appealed to the Pennsylvania Superior Court which
affirmed the trial court on January 3, 2008. The Petitioner sought an allowance of appeal with
the Pennsylvania Supreme Court which was denied on November 17, 2008. The Petition filed a
1
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 the Defendant communicated with the
Court. Thereafter on September 12, 2014 Judge Minor became aware of the matter when the
Petitioner filed a pro se Amended PCRA Petition. New defense counsel was appointed and,
with the assistance of counsel, the Petitioner filed a Second Amended PCRA Petition on
, February 5, 2015. Following multiple continuances a hearing was held on the Petitioner's
Second Amended PCRA Petition on July 10, 2015. Accordingly, that Petition is ripe for decision.
DISCUSSION
The Petitioner has raised twelve issues in his Second Amended PCRA Petition. The
Petitioner indicated at the July 10, 2015 hearing that all of the issues he wished to raise are
included in his SecondAmended Petition.
3"everal-of the Petitions claims are oasea- on ineffective ass1sfance ofnis various
counsel. Counsel is deemed ineffective when the issue underlying the ineffectiveness claim is
of arguable merit, the course of action chosen by counsel had no reasonable basis, and the
ineffectiveness so prejudiced the petitioner's defense that he did not receive a fair trial. See
Com. v. Milligan, 693 A.2d 1313, 1319 (Pa. Super. 1997}; Com. v. Pierce, 498 A.2d 423, 425
2
(Pa. Super. 1985) aff'd 527 A.2d 973 (Pa. 1987).
1. Ineffective Assistance of counsel - Failure to Reduce a Plea to Writing
The Petitioner argues that his counsel was ineffective for not reducing a plea offer he
accepted to writing. He testified that District Attorney Jeff Leber made a plea offer to him on or
about February 18, 2005 at an office in Coudersport in the presence of his wife and his
attorney James Rague.When questioned on cross-examination the Petitioner testified that his
wife was not present to testify at the July 10, 2015 hearing because she has a difficult time
remembering details.
The Petitioner testified that the plea proposal was that he would plead guilty to one
count each of rape and endangering the welfare of a child, the remaining charges would be
786 A.2d 191, 194 (Pa. 2001) (citations omitted). See also Com. v. Collins, 888 A.2d
564, 572 (Pa. 2005). Thus, this issue being previously litigated, it appears the Petitioner is not
eligible for relief even though he qualified this as being an ineffective assistance of counsel
claim. Insofar as that issue may stand separately from the previously litigated issue above, the
Court finds the Petitioner is not entitled to relief.
Under Pa.R.Crim.P. Rule 704(a)(l) "sentence in a court case shall ordinarily be imposed
within 90 days of conviction[.]" "When the date for sentencing in a court case must be delayed,
for good cause shown, beyond the time limits set forth in this rule, the judge shall include in the
record the specific time period for the extension." Rule 704(a)(2). "[A] defendant who is
sentenced in violation of [Rule 704] is entitled to a discharge only where the defendant can
demonstrate that the delay in sentencing prejudiced him or her." Com. v. Anders, 725 A.2d
170, 173 (Pa. 1999) ( emphasis added).
11
Here, the Petitioner was convicted ori April 7, 2006 and was sentenced on September 8,
2006. Judge Leete explained that the Petitioner was not sentenced within ninety days because of
a delay caused by the necessity of a report from the Pennsylvania Sexual Offenders Assessment
Board prior to sentencing. Such a delay is "good cause" for sentencing the Petitioner beyond the
ninety-day limit. Additionally, the Petitioner has never shown at any proceeding that the delay in
sentencingprejudiced him and, accordingly, he is not entitled to relief. See Anders, Supra. As the
issue is without arguable merit counsel was not ineffective with regard to this issue. See
Milligan, Supra.
7. Ineffective Assistance of Counsel - Failure to Object to the Altered/Shortened Video
interview & Prosecutorial Misconduct - Alteration/Shorteningof Video Interview
Prior to the time of trial a video was created of the children involved in this case being
interviewed. The Petitioner believes that his trial counsel was ineffective for not showing the
video to the jury and additionally that the Commonwealth may have altered the video. The
Petitioner claims that Mr. Travis told him that 15 minutes of the video were missing. The
Petitioner stated that the 15 minutes of footage may have been broken up and that he wasn't sure
what had happened, but he was concerned about video tampering.
Mr. Rague testified that he had considered showing the video to the jury, but decided it
-------~tJ).~ beneficial tO-the Petitioner.:s defense.-.MI: Rague explained that there were mm
disclosures in the video, several of which would not be helpful to the defense. He also indicated
that he fully explained that fact to the Petitioner. Mr. Lepley testified that he was not aware of
any tampering with the footage. He further indicated the video was not helpful to the defense as
the children made numerous allegations against the Petitioner in the video. Mr. Travis testified
12
that he did not recall any tampering issues with the video and had no recollection of discussing
the issue with the Petitioner.
The Court finds that Mr. Rague and Mr. Lepley had a reasonable basis for not showing
the video to the jury as it contained disclosures from the children which they felt would harm the
Petitioners defense and thus counsel was not ineffective with regard to this issue. See Milligan,
SuprEh, Additionally, the Court finds that there is no credible evidence that anyone tampered with
the aforementioned video.
8. Ineffective Assistance of Counsel - Failure to Appropriately Challenge the Replacement
of a Juror
The Petitioner believes that a juror was improperly replaced during the trial and that his
counsel was ineffective in challenging that replacement. During the trial juror Mrs. Crossin was
replaced after she made the Court aware that through her work at Charles Cole Hospital she
knew the Petitioner's wife, Sandy Moyer. Pages 328-336 of the trial transcript detail the
disclosure. Mrs. Crossin stated several times that she believed she would be biased in favor of
Mrs. Moyer's testimony based on her knowing Mrs. Moyer. Though defense counsel objected to
the removal of the Mrs. Crossin as a juror, based on her numerous statements that she was biased
the removal was appropriate.
-====-=-TheP.eti.tion~r also a~ that he believes deliberations had begun prior to this removal
and that Mrs. Crossin was bullied by other jurors seeking her removal. The Trial Court
conducted a thorough colloquy with Mrs. Crossin prior to removing her as a juror and there was
no mention of premature deliberation or bullying. Furthermore, the Defendant has not presented
any evidence to substantiate his claim that the jury was already deliberating and that anyone
bullied Mrs. Crossin seeking her removal. The trial transcript indicates otherwise.
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The Court finds the removal of Mrs. Crossin was appropriate and thus the Petitioner's
claim regarding the same is not of arguable merit. Additionally, the Court finds the replacement
of Mrs. Crossin by Ms. Mueller did not prejudice the Petitioner's defense. For both of those
reasons counsel was not ineffective with regard to this issue. See Milligan, Supra
9. Ineffective Assistance of Counsel - Failure to Sufficiently Object to Expert Witness
The Petitioner claims that his trial counsel was ineffective for failing to object to the
Commonwealth calling William Allenbaugh at the time of trial. The Petitioner recalls his counsel
objecting, but does not believe it was done at the appropriate time. He further believes that Mr.
Allenbaugh was not appropriately qualified as an expert witness and that his attorney did not
object t? that failure to qualify. The Court notes that Mr. Allenbaugh was not called as an expert
witness, but was permitted to testify as to hearsay statements disclosed to him when he
interviewed the children-accusers in this case. Furthermore, the Petitioner takes issue with the
fact that his counsel did not object to parents being present with their children when Mr.
Allenbaugh interviewed the children.
The trial transcript shows numerous instances of Mr. Rague objecting to Mr.
Allenbaugh's testimony. Mr. Rague initially made a request for an offer of proof regarding Mr.
Allenbaugh's testimony. Transcript pages 202-203. Mr. Rague then made substantial argument to
the Court regarding which areas Mr Allenhaugp could discuss I JJtiroateJy, the Commonwealth
elected to not call Mr. Allenbaugh as an expert to avoid some of the potential issues raised by
Mr. Rague. Additionally, when Mr. Allenbaugh was permitted to testify about the children-
accuser's hearsay statements Mr. Rague noted an ongoing objection. Transcript page 217. Later,
Mr. Rague requested a sidebar, and he and Mr. Lepley participated in the same, at which time
they further challenged the areas Mr. Allenbaugh could discuss. Transcript pages 228-229.
14
Twice again Mr. Rague objected to references to Mr. Allenbaugh's experiences with other
children victims and the same were sustained. Transcript pages 232, 234. Then, Mr. Rague
objected to Mr. Allenbaugh discussing a conclusion, which was effectively sustained. Transcript
page 235. Next, Mr. Rague objected to Mr. Allenbaugh discussing expert-type testimony.
Transcript page 236. The Court effectively sustained the objection and cautioned both the jury
and the Commonwealth that Mr. Allenbaugh was not being offered as an expert. Again, Mr.
Rague objected to Mr. Allenbaugh's testimony based on relevancy, and the Commonwealth was
warned at sidebar to stay within the constraints previously outlined by the Court. Transcript page
237. Mr. Rague raised the same objection a moment later and after the Commonwealth rephrased
the question the objection was overruled. Transcript page 239. Finally, Mr. Rague objected to
Mr, A}~baugh's !cstimony twice more. Transcript page 252. The first time the Court
constrained Mr. Allenbaugh to only testify to direct observations. The second time the Court
sustained the objection and directed the jury to disregard Mr. Allenbaugh's conclusions.
Based on the objections clearly stated on the record, many of which were sustained, the
Court finds that the Petitioner's contention that his attorney was ineffective for failing to
appropriately object to Mr. Allenbaugh's testimony is without arguable merit as Mr. Rague did
appropriately object to the same. Accordingly, counsel was not ineffective with regard to this
issue. See Milligan, Supra.
Regarding the Petitioners argument that his counsel should have objected to the
children's parents being present for interviews· with Mr. Allenbaugh, the Court is unaware of any
meritorious objection in this regard. The fact that the parents may have been present during the
children's interviewed may have been considered by the jury in addressing the weight of the
testimony or credibility of the children, but is not objectionable. The Commonwealth argued that
15
the parents were present simply for the purpose of establishing rapport. The Petitioner was not
able to address the Commonwealth's argument. Under the circumstances present in this matter
the Court reasons it was wholly appropriate for the children's parents to be present and,
accordingly, the Petitioner's claim to the contrary is without arguable merit. Thus, counsel was
not ineffective with regard to this issue. See Milligan, Supra.
10. Ineffective Assistance of Counsel - General Failure to Object to Hearsay and Other
Inadmissible Testimony
The Petitioner argues, in his Petition, that his counsel generally failed to raise appropriate
objections to hearsay and other inadmissible testimony. Though this issue was present in the
Petition the Petitioner failed to present this issue at his PCRA hearing. The Court has reviewed
the trialtranscript and notes that the Petitioner's trial counsel made numerous objections at trial.
Accordingly, the Court finds the Petitioner's claim regarding a general failure of his trial counsel
to object to inadmissible testimony is without arguable merit and counsel was not ineffective
with regard to this issue. See Milligan, Supra.
11. Ineffective Assistance of Counsel - Failure to Call Available Character Witnesses and
an Available Expert Witness
The Petitioner claims that he had various appropriate character witnesses available to
-==-====,!,i;te~s~ti~fY.1,.,.,~bl-Uu1.1-tthat.his trial counsel failed to call such witnesses. He claims such witnesses included
Ronald Moyer, Phyllis Moyer, Susan Culver, and Kathi Cain. Additionally, the Defendant
believes he retained an expert witness to discuss how false memory syndrome could be affecting
his accuser's memories. The Petitioner testified that his trial counsel refused to call this expert.
The Court initially notes that the Defendant was able to call several character witnesses
not named above. Additionally, Judge Leete ruled on an objection and disallowed Dana
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Reynolds, Tony Reynolds, and Jeffrey Myers from testifying as character witnesses as they had
not been in the area of the Petitioner for approximately seven years. See Com. v. Fisher, 764
A.2d 82, 87 (Pa. Super. 2000) ("Character means one's general reputation in the community.")
(citations omitted). The Petitioner testified that in 2006 Ronald Moyer and Phyllis Moyer lived
in Berks County, Susan Culver had moved to Las Vegas, Nevada, and Kathi Cain lived in
Royersburg, Pennsylvania, near Philadelphia. Thus, the Court finds the four above-referenced
individuals would not have had knowledge of the Petitioner's reputation within the community
and their testimony on the Petitioner's character would have been inadmissible if they had been
called. See Fisher, Supra.
Thus, the Petitioner's trial counsel had a reasonable basis for not calling them and thus
counsel, was not ineffective with regard to this issue. See Milligan, Supra. Additionally, Mr.
Lepley.and Mr. Rague testified that they called every witness that the Petitioner had insisted
upon and that the Petitioner was very actively involved in his case. The Court finds the former
counsels' testimony to be credible and the Petitioner's testimony to the contrary to not be
credible. Accordingly, the Court finds the Petitioner's trial counsel was not ineffective as the
Petitioner's claim is without arguable merit. See Milligan, Supra.
Regarding calling a defense expert witness Mr. Lepley testified that he determined that
the testimony of the defense expert would not have been helpful to the defense. Furthermore,
again Mr. Lepley and Mr. Rague testified that they called every witness that the Petitioner had
insisted upon and that the Petitioner was closely involved in all trial strategy. The Court finds
that trial counsel had a reasonable basis for not calling the defense expert as they reasoned he
would not be helpful to the defense. Additionally, the Court finds the Petitioner's claim is
without arguable merit as both of his trial attorneys indicated the called every witness insisted
17
upon by the Petitioner. The Court finds former counsels' testimony to be credible and the
Petitioner's testimony to the contrary to not be credible. For those reasons counsel was not
ineffective with regard to this issue. See Milligan, Supra.
12. Unlawful Sentence - Alleyne
On December 24, 2014 the Pennsylvania Superior Court issued a decision in Com. v.
Wolfu, 106 A.3d 800 (Pa. Super. 2014) appeal granted, 63 MAL 2015, 2015 WL 4755651 (Pa.
Aug. 12, 2015) which invalidated 42 Pa.C.S. § 9718, which had previously provided for
mandatory minimum sentences for certain crimes against infant persons. The Wolfe decision was
based upon the decisions in United States Supreme Court case Alleyne v. U.S., 133 S. Ct. 2151
(2013) and the Pennsylvania Supreme Court case Commonwealth v. Newman, 99 A.3d 86 (Pa.
Super.1!'.?.014). The Petitioner was sentenced based upon the mandatory minimum sentencing
provisions of 42 Pa.C.S. § 9718. As that mandatory minimum sentencing provisions was
invalidated, the Petitioner argues that he is entitled to be resentenced without the application of
any mandatory minimum sentences.
However, as discussed in Riggle:
In Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (relying upon
_c.9rnmonwealth v. Watley, 81 A.3d 108, 118 (Pa. Super. 2013) (en bane)), we
noted that Alleyne will be applied to cases pending on direct appeal when Alleyne
was issued. Appellant seeks to apply Newman's ruling in this PCRA context and
to afford Alleyne full retroactive effect based upon Watl.e.1. and Newman, both of
---wrucli were a1rect appeals.
Importantly, in Watley, this Court distinguished between applying Alleyne on
direct appeal and on collateral review. We noted that a case may be retroactive on
direct appeal, but not during collateral proceedings. Watley, supra at 117 n. 5.
Thus, 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.
Com. v. Riggle, 119 A.3d 1058 (Pa. Super. 2015) (emphasis added).
18
Here, the Petitioner's case was not pending on direct review when the Alleyne decision
was issued. The Petitioner originally appealed to the Pennsylvania Superior Court, which
affirmed the decision on December 12, 2008. The Petitioner sought an allowance of appeal to the
Pennsylvania Supreme Court, which was denied on November 17, 2008. Accordingly, the
Alleyne decision, and its progeny, does not apply retroactively to the Petitioner's case, which
was already at the PCRA review stage when Alleyne was decided on June 17, 2013.
Ultimately, none of the issue raised by the Petitioner in Second Amended PCRA Petition
warrants any relief and the same shall be denied.
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