Com. v. Anzalone, J.

• Court: Superior Court of Pennsylvania
• Decided: February 23, 2026
• Docket: 2436 EDA 2024
• Status: Unpublished
• Author: McLaughlin

Opinion

J-S38003-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOHN ANZALONE : : Appellant : No. 2436 EDA 2024

Appeal from the PCRA Order Entered July 11, 2024 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0003506-2018

BEFORE: McLAUGHLIN, J., KING, J., and BENDER, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.: FILED FEBRUARY 23, 2026

John Anzalone appeals pro se from the order dismissing his Post

Conviction Relief Act (“PCRA”) petition. See 42 Pa.C.S.A. §§ 9541-9546.

Anzalone maintains that PCRA and trial counsel were ineffective and his

sentence was illegal. We affirm.

A jury convicted Anzalone of more than 30 counts of sexual offenses.

The convictions included rape of a child, rape by forcible compulsion, indecent

assault without consent of other, involuntary deviate sexual intercourse with

a child, indecent assault by forcible compulsion, indecent assault of a person

less than 13 years of age, corruption of minors, unlawful contact or

communication with a minor, and indecent assault of a person less than 16 J-S38003-25

years of age.1 The charges stemmed from multiple instances of sexual abuse

against his girlfriend’s daughters.

The court imposed an aggregate sentence of 40 to 80 years’

incarceration. Following sentencing, Anzalone filed a motion for

reconsideration, alleging that the court had abused its discretion in imposing

an excessive sentence. The trial court denied the motion. Anzalone appealed

from the judgment of sentence, and this Court affirmed. See

Commonwealth v. Anzalone, 281 A.3d 1066, 2022 WL 2126753, at *1

(Pa.Super. filed June 14, 2022) (unpublished mem.). The Supreme Court of

Pennsylvania denied Anzalone’s petition for allowance of appeal on September

27, 2022. He did not seek certiorari.

In September 2023, Anzalone filed the instant, timely pro se PCRA

petition. He alleged that trial counsel was ineffective for waiving a challenge

to the discretionary aspects of his sentence by failing to file a post-sentence

motion; appellate counsel was ineffective in failing to raise trial counsel’s

ineffectiveness for failing to file a post-sentence motion; and the court abused

its discretion in sentencing him to a de facto life sentence without properly

weighing the length of the sentence against the need to protect the public.

See PCRA Petition, filed 9/11/23, at ¶ 6. The PCRA court appointed counsel,

who filed an amended PCRA petition raising a single claim that trial counsel

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1 18 Pa.C.S.A. §§ 3121(c), 3121(a)(1), 3126(a)(1), 3123(b), 3126(a)(2), 3126(a)(7), 6301(a)(1)(iii), 6318(a)(1), and 3126(a)(8), respectively.

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was ineffective for failing to call character witnesses at Anzalone’s trial. See

Amended PCRA Petition, filed 10/27/23, at ¶ 10.

The PCRA court issued an order directing PCRA counsel to identify all

potential witnesses in accordance with 42 Pa.C.S.A. § 9545(d)(1). In

response, counsel filed a Turner/Finley2 letter and a motion to withdraw.

The PCRA court issued notice of its intent to dismiss the PCRA petition

pursuant to Pa.R.Crim.P. 907 (“Rule 907”) and granted counsel leave to

withdraw. Anzalone filed a pro se response to the Rule 907 notice alleging that

PCRA counsel failed to raise trial counsel’s ineffectiveness for: (1) failure to

request a taint hearing to test the validity of the minor victims’ testimony and

(2) failure to raise a challenge to the imposition of mandatory minimum

sentences pursuant to Alleyne v. United States, 570 U.S. 99 (2013). See

Objection to Intention to Dismiss PCRA, filed 2/26/24, at ¶ 3.

The PCRA court reappointed PCRA counsel and directed him to review

the two claims Anzalone set forth in his pro se response to the Rule 907 notice.

Order, 4/4/24. After determining that those claims were without merit, PCRA

counsel filed a supplemental Turner/Finley letter and a motion to withdraw.

The PCRA court re-issued notice of its intent to dismiss the PCRA petition

pursuant to Rule 907 and granted counsel leave to withdraw. Anzalone filed a

2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.

Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

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pro se response to the Rule 907 notice. The court dismissed Anzalone’s PCRA

petition without a hearing, on July 11, 2024. This appeal followed. 3

Anzalone raises the following issues:

I. Did P.C.R.A. Counsel, John F. McCaul, Esq. render ineffective assistance of counsel, by failure to raise claims of legal merit of ineffective assistance of counsel against prior counsel, Geoffry David Hood, Esq. and William McElroy, Esq. raised within the initially filed P.C.R.A. Petition specifically:

a. Challenging the failing to file post sentence motions;

b. Improper waiver of discretionary aspects of the sentence challenge;

c. Improper waiver of challenging the de facto life sentence.

II. Did the P.C.R.A. Court err when denying Mr. Anzalone’s timely filed P.C.R.A. Petition when he raised valid claims of illegality of sentence under the auspice of Alleyne v. United States, 570 U.S. 99 (2013); Commonwealth v. Resto, 179 A.3d 18 (Pa. 2018) to his case, when the matter was a plurality opinion and deemed [not] precedential law?

III. Did the P.C.R.A. Court err when denying Mr. Anzalone’s timely filed P.C.R.A. Petition when he raised valid claims of witness tai[n]ting that were never addressed when the factor of “taint” ____________________________________________

3 Anzalone’s pro se notice of appeal was docketed on September 6, 2024 and

thus was facially untimely. See Pa.R.A.P. 903(a) (notice of appeal “shall be filed within 30 days after the entry of the order from which the appeal is taken”). However, there is no indication on the docket that the July 11, 2024 order dismissing Anzalone’s PCRA petition was served on him. See Pa.R.Crim.P. 114(B)(1) (“A copy of any order or court notice promptly shall be served on each party’s attorney, or the party if unrepresented”); Pa.R.Crim.P. 114(C)(2)(c) (trial court docket entries “shall contain . . . the date of service of the order or court notice”). “Where the trial court docket in a criminal case does not indicate service on a party or the date of service, we will not quash the appeal or require further proceedings.” Commonwealth v. Midgley, 289 A.3d 1111, 1117 (Pa.Super. 2023). “Rather, we will treat the time in which to take an appeal as never having started to run and treat the appeal as timely.” Id. We therefore treat Anzalone’s appeal as timely.

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was raised under the standards within Commonwealth v. Delbridge, 855 A.2d 27 (Pa. 2003) (Delbridge I)?

Anzalone’s Br. at 3.

On appeal from the denial or grant of relief under the PCRA, our review

is limited to determining “whether the PCRA court’s ruling is supported by the

record and free of legal error.” Commonwealth v. Presley, 193 A.3d 436,

442 (Pa.Super. 2018) (citation omitted). The appellant must show “the

allegation of error has not been previously litigated or waived.” 42 Pa.C.S.A.

§ 9543(a)(3). An issue is previously litigated if “the highest appellate court in

which [appellant] could have had review as a matter of right has ruled on the

merits of the issue[.]” 42 Pa.C.S.A. § 9544(a)(2).

Anzalone’s first issue raises claims of counsel’s ineffectiveness.

“[C]ounsel is presumed to be effective and the burden of demonstrating

ineffectiveness rests on appellant.” Commonwealth v. Rivera, 10 A.3d

1276, 1279 (Pa.Super. 2010). To obtain relief based on a claim of

ineffectiveness, a petitioner must establish: “(1) his underlying claim is of

arguable merit; (2) counsel had no reasonable basis for his action or inaction;

and (3) the petitioner suffered actual prejudice as a result.” Commonwealth

v. Spotz, 84 A.3d 294, 311 (Pa. 2014). Prejudice in this context means that,

“absent counsel’s conduct, there is a reasonable probability the outcome of

the proceedings would have been different.” Commonwealth v. Velazquez,

216 A.3d 1146, 1149 (Pa.Super. 2019) (citation omitted). A failure to meet

any of these prongs bars a petitioner from obtaining relief. Commonwealth

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v. Sneed, 45 A.3d 1096, 1106 (Pa. 2012). “[C]ounsel cannot be held to be

ineffective for failing to take futile actions or to raise a meritless claim.”

Commonwealth v. Howard, 645 A.2d 1300, 1304 (Pa. 1994).

In subpart “a.” of his first issue, Anzalone claims that PCRA counsel was

ineffective for failing to raise prior counsel’s ineffectiveness for not filing a

post-sentence motion.

A review of the record indicates that prior counsel did, in fact, file a

timely post-sentence motion. Because Anzalone’s underlying argument that

prior counsel was ineffective lacks merit, his layered claim that PCRA counsel

was ineffective for failing to pursue the issue must also fail. See

Commonwealth v. Chmiel, 30 A.3d 1111, 1128 (Pa. 2011) (concluding that

if a petitioner cannot prove the underlying claim of trial counsel’s

ineffectiveness, then petitioner’s derivative claim of subsequent counsel’s

ineffectiveness fails).

Anzalone next argues in subpart “b.” that PCRA counsel was ineffective

for failing to raise prior counsel’s ineffectiveness for “[i]mproper waiver of the

discretionary aspects of the sentence challenge.” Anzalone’s Br. at 9. Anzalone

states that he “concedes that he did have a discretionary aspects review

through his direct appeal, during this review, however, [his] challenge to the

discretionary aspects of his sentence were deemed waived by [c]ounsel’s

systemic failures to provide [him] with his right to file post-sentence motions.”

Id.

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On direct appeal, Anzalone raised a single issue: “Did the sentencing

court abuse [its] discretion when it imposed an excessive aggregate sentence

involving the imposition of consecutive mandatory sentences; failed to

consider certain mitigating factors; and considered impermissible factors[?]”

Anzalone, 2022 WL 2126753, at *2. This Court observed that Anzalone’s

claim went to the discretionary aspects of his sentence, for which there is no

automatic right to appellate review.4 Id. We found that Anzalone’s appeal was

timely, his claim that his aggregate sentence was excessive due to the court’s

imposition of consecutive terms of confinement was preserved in a post-

sentence motion, and he included a Pa.R.A.P. 2119(f) statement in his brief. 5

Id. at *3. However, we found that Anzalone failed to raise a substantial

question. Id. We explained:

Anzalone fails to set forth a contention that the consecutive nature of the sentences renders the aggregate sentence excessive in view of the nature of the crimes, and the aggregate sentence is not excessive on its face, given the

4 A defendant may obtain appellate review of discretionary aspects of sentence

only if: (1) the appeal is timely; (2) the defendant preserved the issues below; (3) the defendant has included Pa.R.A.P. 2119(f) statement in the brief to this Court; and (4) the Rule 2119(f) statement raises a substantial question that the sentence is not appropriate under the Sentencing Code or is contrary to fundamental sentencing norms. Commonwealth v. Banks, 198 A.3d 391, 401 (Pa.Super. 2018); Pa.R.A.P. 2119(f).

5 We found that Anzalone’s other claims that the court failed to consider mitigating factors or that it considered impermissible sentencing factors were waived for failure to preserve them at his sentencing hearing or in his post- sentence motion. Anzalone, 2022 WL 2126753, at *2.

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number of crimes and the lifelong impact of his crimes on the victims.

The record thus indicates that prior counsel preserved a challenge to the

discretionary aspects of Anzalone’s sentence. This Court found that claim

failed to raise a substantial question. Since prior counsel properly preserved

the issue, Anzalone’s claim that counsel waived the issue lacks arguable merit.

Accordingly, his layered claim regarding PCRA counsel’s ineffectiveness also

fails. See Chmiel, 30 A.3d at 1128.

In subpart “c.” of his first issue, Anzalone claims that PCRA counsel was

ineffective for failing to raise prior counsel’s ineffectiveness for “[i]mproper

waiver of challenging the de facto sentence.” Anzalone’s Br. at 3. He argues

that the sentence imposed upon him was an unduly punitive de facto life

sentence that disproportionately emphasizes the gravity of these ugly but not

atypical crimes.” Id. at 11. In Anzalone’s view, his sentence of 40 to 80 years’

confinement “was an unreasonable excessive aggregate sentence involving

the imposition of consecutive mandatory sentences which created an illegal

de facto life sentence.” Id. at 13.

Counsel raised a challenge that Anzalone’s aggregate sentence was

excessive due to the consecutive nature of the terms of sentence on direct

appeal. Although the phrase “de facto sentence” was not used in his direct

appeal, the same exact issue was preserved by counsel. As such, counsel did

not waive the issue and Anzalone’s claim lacks merit. Accordingly, Anzalone’s

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ineffectiveness claim against PCRA counsel similarly fails. See Chmiel, 30

A.3d at 1128.

Anzalone next argues that the imposition of mandatory minimum

sentences under 42 Pa.C.S.A. § 9718 violated the principles set forth in

Alleyne. He argues that “because the challenged statute, (42 Pa.C.S.A.

§ 9718), plainly required judicial fact-finding of the crime victim’s age be

determined at the time of sentencing by a preponderance of the evidence, the

provision violated Alleyne.” Anzalone’s Br. at 16. He thus maintains that his

mandatory minimum sentence is illegal. He further argues that this Court is

not bound by our Supreme Court’s decision in Commonwealth v. Resto, 179

A.3d 18 (Pa. 2018) because it is a plurality decision. Id. at 15.

Section 9718 of the Judicial Code provides the following mandatory

minimum sentences for crimes against infant persons:

(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.

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(2) A person convicted of the following offenses when the victim is less than 13 years of age shall be sentenced to a mandatory term of imprisonment as follows:

18 Pa.C.S. § 2502(c) (relating to murder)--not less than 15 years.

18 Pa.C.S. § 2702(a)(1)--not less than five years.

(3) A person convicted of the following offenses shall be sentenced to a mandatory term of imprisonment as follows:

18 Pa.C.S. § 3121(c) and (d)--not less than ten years.

18 Pa.C.S. § 3125(a)(7)--not less than five years.

18 Pa.C.S. § 3125(b)--not less than ten years.

***

(c) Application of mandatory minimum penalty.--With the exception of prior convictions, any provision of this section that requires imposition of a mandatory minimum sentence shall constitute an element enhancing the underlying offense. Any enhancing element must be proven beyond a reasonable doubt at trial on the underlying offense and must be submitted to the fact- finder for deliberation together with the underlying offense. If the fact-finder finds the defendant guilty of the underlying offense, the fact-finder shall also decide whether any enhancing element has been proven.

42 Pa.C.S.A. § 9718(a),(c).

In Alleyne, the Supreme Court of the United States held that any fact

that imposes a mandatory minimum sentence beyond the prescribed statutory

minimum sentence must be submitted to a jury and proven beyond a

reasonable doubt. See Alleyne, 570 U.S. at 103.

In Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016), the

Pennsylvania Supreme Court reviewed Section 9718(a)(1) of the Judicial

Code. Relying on Alleyne, the Court held that “Section 9718 is irremediably

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unconstitutional on its face, non-severable, and void” because judicial fact-

finding of the victim’s age was required. Wolfe, 140 A.3d at 663.

In Commonwealth v. Resto, 179 A.3d 18 (Pa. 2018) (plurality), the

Pennsylvania Supreme Court reviewed a different subsection of Section 9718

than was at issue in Wolfe, Section 9718(a)(3). There, a jury convicted the

defendant of numerous sexual offenses, including rape of a child under 18

Pa.C.S.A. § 3121(c). The court imposed a mandatory minimum sentence of

10 years’ imprisonment pursuant to Section 9718(a)(3). In an Opinion

Announcing the Judgment of the Court (“OAJC”), Chief Justice Saylor

determined that “Section 9718(a)(3) of the Judicial Code is unlike the

preceding subsection that was deemed unconstitutional in Wolfe, because

subsection (a)(3) requires no proof of any predicate or aggravating facts.”

Resto, 179 A.3d at 20. It explained that “the concern of Alleyne is with

sentencing enhancements tied to facts to be determined by a judge at

sentencing” and “a conviction returned by a jury to which a mandatory

minimum sentence directly attaches is not the same as an aggravating fact

that increases a mandatory minimum sentence.” Id. at 21. The OAJC thus

concluded that mandatory minimum sentences under Section 9718(a)(3) did

not run afoul of Alleyne because it imposes mandatory minimum sentences

based on the conviction itself. Id.6 ____________________________________________

6 Then-Justice Todd, now the Chief Justice, issued a separate concurrence that

Justice Dougherty joined, and Justice Dougherty filed a concurrence in which Justice Todd joined. Justices Baer and Mundy each filed dissents, and Justices Donohue and Wecht did not participate.

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More recently, in Commonwealth v. Widger, 237 A.3d 1151

(Pa.Super. 2020), this Court confirmed that Section 9718(a)(3) is

constitutional. There, the trial court imposed a mandatory minimum sentence

of ten years of imprisonment pursuant to Section 9718(a)(3). Widger, 237

A.3d at 1163. Relying on the OAJC in Resto, we held that the trial court had

the authority to impose a mandatory minimum sentence pursuant to Section

9718(a)(3) without violating Widger’s constitutional rights. Id. We reasoned

that “[t]he fact that triggered the mandatory minimum sentence was

[Widger’s] conviction under Section 3125(b) and no additional aggravating

fact needed to be determined by the trial court prior to imposing the judgment

of sentence.” Id. We further addressed the precedential value of Resto:

The plurality’s OAJC in Resto, although binding on the parties in that case, has limited precedential value on its own because it did not command the joinder of a majority of the justices participating in the case. Commonwealth v. Brown, 23 A.3d 544, 556 (Pa.Super. 2011) (citation omitted). Where concurring opinions enumerate the portions of the plurality’s opinion in which the author joins, however, those portions in agreement gain precedential value. Id. (citation omitted). As the plurality’s OAJC and the concurring opinions in Resto agree, Section 9718(a)(3) is severable from the remainder of the subsections of the statute and the mandatory minimum sentence imposed pursuant to Section 9718(a)(3), upon the jury’s finding beyond a reasonable doubt that all of the elements of the crime charged have been established, does not violate [an a]ppellant’s constitutional rights pursuant to Alleyne.

Id. at 1163 n.8.

Here, Anzalone was sentenced to mandatory minimum sentences for

rape of a child under 18 Pa.C.S.A. § 3121(c). That crime is specifically

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enumerated under 42 Pa.C.S.A. § 9718(a)(3), which has been found

constitutional. There was no need for additional fact-finding at sentencing

about the victim’s age because the conviction itself attached mandatory

minimum sentences. Thus, the court’s imposition of mandatory minimum

sentences did not violate the principles set forth in Alleyne. See Resto, 179

A.3d at 21; Widger, 237 A.3d at 1163; see also Commonwealth v.

Daniels, 245 A.3d 1118 (Table), 2020 WL 7861241, at *5 (Pa.Super. filed

Dec. 31, 2020) (unpublished mem.) (finding that appellant’s mandatory

minimum sentences for rape of a child and aggravated indecent assault

imposed under Section 9718(a)(3) were legal because Section 9718(a)(3)

requires no proof of any predicate or aggravating facts and, thus, did not

implicate the protections afforded by Alleyne). Accordingly, Anzalone’s claim

is without merit.

Anzalone’s final claim is that counsel was ineffective for failing to request

a taint hearing as to the child witnesses. He alleges that he was entitled to a

hearing under procedural due process to determine if the witnesses were

tainted. He argues that he “[d]id not have a hearing to determine the

competency of the witnesses, even after informing multiple [c]ounsel that

there was ‘taint’ in the matt[er].” Anzalone’s Br. at 19-20.

Every witness is presumed competent. Pa.R.E. 601(a). However, “[t]he

capacity of young children to testify has always been a concern as their

immaturity can impact their ability to meet the minimal legal requirements of

competency.” Commonwealth v. Delbridge, 855 A.2d 27, 39 (Pa. 2003).

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“A party who challenges the competency of a minor witness must prove by

clear and convincing evidence that the witness lacks the minimal capacity (1)

to communicate, (2) to observe an event and accurately recall that

observation, and (3) to understand the necessity to speak the truth.”

Commonwealth v. Pena, 31 A.3d 704, 707 (Pa.Super. 2011) (cleaned up).

“Taint is the implantation of false memories or the distortion of real

memories caused by interview techniques of law enforcement, social service

personnel, and other interested adults, that are so unduly suggestive and

coercive as to infect the memory of the child, rendering that child incompetent

to testify.” Delbridge, 855 A.2d at 35. “[T]aint is a legitimate question for

examination in cases involving complaints of sexual abuse made by young

children.” Id. at 39. “An allegation that the witness’s memory of the event

has been tainted raises a red flag regarding competency, not credibility.” Id.

at 40. However, “[w]hen a witness is at least fourteen years old, he or she is

entitled to the same presumption of competence as an adult witness.” Pena,

31 A.3d at 707. Indeed,

the concerns underlying the three-part test for evaluating the testimonial competency of minors become less relevant as the witness’s age increases, ultimately being rendered totally irrelevant as a matter of law by age fourteen. In Commonwealth v. Moore, 980 A.2d 647 (Pa.Super. 2009), this Court reiterated that the critical age for purposes of conducting a taint hearing is not the age at the time of the crime but the age at the time of trial.

Id. (some alterations, emphasis in original).

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Here, both victims were over the age of 14 at the time of trial. The first

victim was 14 years old and the second victim was 16 years old when they

testified at trial. See N.T. Trial, 4/15/19, at 47, 112. Thus, the witnesses were

presumptively competent to testify and Anzalone was not entitled to a

competency hearing or taint inquiry. Pena, 31 A.3d at 707. Since counsel

cannot be deemed ineffective for failing to raise a meritless claim, Anzalone is

entitled to no relief.

Order affirmed.

Date: 2/23/2026

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