Com. v. Graham, P.

• Court: Superior Court of Pennsylvania
• Decided: October 12, 2017
• Docket: 1194 WDA 2016
• Status: Unpublished

Opinion

J-A21023-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

PAUL R. GRAHAM, JR.,

Appellant No. 1194 WDA 2016

Appeal from the PCRA Order July 21, 2016 In the Court of Common Pleas of Washington County Criminal Division at No(s): CP-63-CR-0001468-2012

BEFORE: BENDER, P.J.E., OLSON, J., and STABILE, J.

MEMORANDUM BY OLSON, J.: FILED OCTOBER 12, 2017

Appellant, Paul R. Graham, Jr., appeals pro se from the order entered

on July 21, 2016, dismissing Appellant’s petition filed pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

In a prior memorandum, this Court summarized the underlying facts of

this case, as well as some of the procedural posture. We explained:

Appellant was charged with, inter alia, rape, four counts of involuntary deviate sexual intercourse, two counts of aggravated indecent assault, three counts of statutory sexual assault, three counts of indecent assault, and two counts of corruption of the morals of minors. The charges arose from allegations he molested his then nine-year-old niece (“the victim”) between 2003 and 2005.

The trial court summarized the trial evidence as follows:

A two-day jury trial began on September 16, 2013. . . . At trial, the Commonwealth offered the testimony of the victim, her mother, and the arresting officer. J-A21023-17

At the time of trial, the victim was [19] years old. [Appellant] married the victim’s aunt when the victim was approximately nine years old. The victim’s and Appellant’s families were close, and [Appellant] acted as the victim’s babysitter while her parents worked. [Appellant] babysat the victim and her brother “pretty much every day.” Sometimes she would stay the night at [Appellant’s] residence and he would assist her with getting ready for school the next morning. The victim enjoyed spending time with her uncle, because he would play games with her and “pretty much did whatever [the victim] wanted to do all the time.”

However, in February [] 2003, when the victim was nine years old, [Appellant] began to sexually abuse the child. While wrestling, the victim stuck her tongue out at [Appellant], and he warned her not to do it again. When she did, [Appellant] licked the inside of the victim’s mouth and her tongue. In another episode, [Appellant] stuck his fingers in the victim’s mouth and made her suck on them. He also made the victim lift up her shirt while he touched and licked her nipples. Similar events happened multiple times.

[Appellant’s] family eventually moved into the victim’s prior home, while the victim and her family resided three blocks away. The victim was close to ten years old at the time. The two residences were in walking distance to each other, and [Appellant] continued to babysit the victim.

The two often spent time in [Appellant’s] bedroom. The victim testified that Appellant once removed two vibrators from a dresser drawer. He placed them on the victim’s legs and explained that it was supposed to make her feel good. He then removed the victim’s pants and rubbed the objects between her vagina and pushed them on her clitoris. When asked if the objects penetrated her vagina, the victim responded, “they went in between the lips.”

[Appellant] would regularly remove the victim’s pants. In one episode he made the victim sit on top of his face and then placed his tongue in her vagina. Once,

-2- J-A21023-17

[Appellant] made the victim bend over on all fours while he removed her pants. He then placed his finger into the victim’s anus. The act was extremely painful for the victim, who pulled away and ran to the bathroom. The victim was frightened when the event caused a “mucousy” discharge. [Appellant] laughed and told the victim that it would be “okay.”

[Appellant] also forced the victim to perform oral sex on him. The victim recalled gagging and pulling away. These sexual assaults occurred almost every time the victim was at [Appellant’s] residence. On another occasion, [Appellant] made the victim [lie] down on the bed, while he put his penis in between her thighs and then ejaculated. [Appellant’s] semen contacted the victim’s pants and thighs. Once, while sitting by the pool, [Appellant] placed his fingers in the victim’s vagina. The victim recalled occasions where [she] and Appellant would be sitting on the couch while he would touch her vagina above her clothes or pinch her nipples.

The victim also testified that on one occasion [Appellant] removed the victim’s pants, forced her to lie on the bed, and placed his penis between the lips of her vagina. [Appellant] ejaculated on the victim’s legs and vagina. [Appellant] once inserted his penis into the victim’s anus. The victim was subjected to extreme pain and stated that it “felt like I had been ripped.” She ran to the bathroom and observed spots of blood on the toilet paper used to wipe the area.

Because of the continuous systemic abuse, the victim testified that the acts were “kind of like a normal thing, like I was kind of used to it by then. [Appellant] always told me if I would ever tell anybody, he would go to jail for a long time. He was like my best friend, so I didn’t really want him to leave.”

The victim also explained that [Appellant] would tell her stories of his previous sexual encounters. She recalled that he once took her to a video rental business and rented a pornographic video tape. The victim waited in the vehicle, while [Appellant] “ran” into the store, acquired the tape, and then ran back to the vehicle. At

-3- J-A21023-17

his residence, he and the victim watched the video. He provided wine to the victim and encouraged her to drink it, which she did on one occasion. He also provided cigarettes to the victim and encouraged her to smoke them.

After a family dispute in 2005, [Appellant] and his family moved out of the residence when the victim was around [12] years old. Because the two families no longer interacted, the abuse ceased. The victim did not come forward at that time, because she did not want to cause more problems or fighting.

However, the victim ultimately came forward with her abuse in the summer of 2012. She had spoken with a close friend who encouraged her to disclose the abuse. The victim was concerned, because her cousin had two young children, which she believed resided in the same home as [Appellant]. With the encouragement from her friends, the victim told her mother. She later went to the Charleroi Police Department to report her abuse.

The victim’s mother corroborated that between the years of 2003 and 2005 [she] and her husband had busy employment schedules and relied on [Appellant] and his wife to babysit their children. The victim had explained to her mother that she had been sexually assaulted for a period of time between the ages of nine and [12] years old. During that time, the victim’s temper tantrums prompted mother and child to visit a medical doctor. Near the end of the two families’ relationship, the victim told her mother that she no longer wanted to go to [Appellant’s] home, but she did not expand on her reasons.

The final witness was Detective Lieutenant Eric Porter. [Lieutenant] Porter had been a member of the Charleroi Police Department for over [15] years. The victim was interviewed by [Lieutenant] Porter and a criminal complaint was prepared. Due to the length of time between the abuse and its reporting, there was no attempt to collect any physical evidence by means of a rape kit or other physical medical examination. He

-4- J-A21023-17

testified that it was common for minor children to not come forward for a long period of time.

[Trial Court Opinion, 6/6/14, at 2-5].

Appellant did not testify or present any exhibits or witnesses on his behalf. On September 17, 2013, the jury found Appellant guilty on all counts.

Commonwealth v. Graham, 122 A.3d 1134 (Pa. Super. 2015)

(unpublished memorandum) at 1-5 (internal footnotes omitted) (some

internal quotations, citations, and corrections omitted).

The trial court sentenced Appellant in December 2013. However, on

June 16, 2015, this Court vacated Appellant’s judgment of sentence and

remanded for resentencing. Id. at 16.

The trial court resentenced Appellant on July 28, 2015; it ordered that

Appellant serve an aggregate term of 46 to 92 years in prison for his

convictions and register, for 15 years, in accordance with the Sexual

Offender Registration and Notification Act (“SORNA”), 42 Pa.C.S.A.

§§ 9799.10-9799.41.

Appellant did not file a direct appeal from his judgment of sentence.

Instead, Appellant filed the current PCRA petition on September 24, 2015.

Appellant raised numerous claims in his pro se PCRA petition, including:

trial counsel was ineffective for failing to object to prosecutorial misconduct

during the Commonwealth’s opening statement, where the Commonwealth

made “improper remarks regarding the credibility of the complaining

witness” and declared that Appellant “was a laborer” and had been “laid off

-5- J-A21023-17

quite a bit;” trial counsel was ineffective for failing to object to prosecutorial

misconduct during the Commonwealth’s closing argument, where the

Commonwealth made remarks that were not supported by the evidence;

trial counsel was ineffective for failing to investigate and prepare a defense;

trial counsel was ineffective for failing to impeach the credibility of the

complaining witness; and, prior counsel were ineffective for failing to

challenge the sufficiency of Appellant’s rape conviction. Appellant’s Pro Se

PCRA Petition, 9/24/15, at 1-18.

The PCRA court appointed counsel to represent Appellant during the

post-conviction proceedings. See Trial Court Order, 10/21/15, at 1.

However, on January 21, 2016, appointed counsel filed a no-merit letter and

a request to withdraw as counsel, pursuant to Commonwealth v. Turner,

544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.

Super. 1988) (en banc).

After reviewing counsel’s Turner/Finley letter, and an objection filed

by Appellant, the PCRA court entered an order that granted counsel’s

petition to withdraw and notified Appellant that it intended to dismiss the

PCRA petition in 20 days, without holding a hearing. See PCRA Court Order,

6/1/16, at 1; Pa.R.Crim.P. 907(1). The PCRA court finally dismissed

Appellant’s PCRA petition on July 21, 2016. PCRA Court Order, 7/21/16, at

1-2.

Appellant filed a timely notice of appeal and now raises two claims to

this Court:

-6- J-A21023-17

[1.] Failure of trial counsel [to] investigate and prepare a defense.

[2.] Failure of trial counsel to object to the prosecutor’s argument, remarks and alleged expert opinion during her opening statement and closing argument.

Appellant’s Brief at 4 (some internal capitalization omitted).

We have reviewed Appellant’s brief,1 the relevant law, the certified

record, the notes of testimony, and the opinion of the able PCRA court

judge, President Judge Katherine B. Emery. We conclude that President

Judge Emery’s opinion, entered on December 27, 2016, meticulously and

accurately disposes of Appellant’s meritless claims on appeal. Therefore, we

affirm on the basis of President Judge Emery’s thorough opinion and adopt it

as our own. In any future filing with this or any other court addressing this

ruling, the filing party shall attach a copy of President Judge Emery’s opinion

with the name of the victim redacted.2

____________________________________________

1 The Commonwealth did not file a brief in this case. 2 On August 14, 2017, Appellant filed, in this Court, a “Motion for Relief Pursuant to Pa.R.A.P. 123 Request to Expand the Record Due to Newly Announced Rule of Law” (hereinafter “Appellant’s Motion for Relief”). Within Appellant’s Motion for Relief, Appellant cited the Pennsylvania Supreme Court’s recent opinion in Commonwealth v. Muniz, ___ A.3d ___, 2017 WL 3173066 (Pa. 2017), where the Supreme Court held that the registration requirements of SORNA constitute punishment for purposes of the federal and state constitutions. In accordance with Muniz, Appellant requested that this Court “vacate all portions of the sentence issued in this matter pertaining to SORNA registration and notification.” Appellant’s Motion for Relief, 8/14/17, at 1 (some internal capitalization omitted).

(Footnote Continued Next Page)

-7- J-A21023-17

Appellant’s “Motion for Relief Pursuant to Pa.R.A.P. 123 Request to

Expand the Record Due to Newly Announced Rule of Law” denied. Order

affirmed. Jurisdiction relinquished.

_______________________ (Footnote Continued)

Since Muniz was not filed until July 19, 2017, Appellant (obviously) did not include the claim in his PCRA petition. Therefore, Appellant is not entitled to relief on his claim. See 42 Pa.C.S.A. § 9543(a) (“[t]o be eligible for relief under th[e PCRA], the petitioner must plead and prove by a preponderance of the evidence all of the following. . .”) (emphasis added); Pa.R.A.P 302(a) (“[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal”). Further, to the extent Appellant views his current motion as a subsequent PCRA petition, we note:

when an appellant's PCRA appeal is pending before a court, a subsequent PCRA petition cannot be filed until the resolution of review of the pending PCRA petition by the highest state court in which review is sought, or upon the expiration of the time for seeking such review. If the subsequent petition is not filed within one year of the date when the judgment became final, then the petitioner must plead and prove that one of the three exceptions to the time bar under 42 Pa.C.S. § 9545(b)(1) applies. The subsequent petition must also be filed within sixty days of the date of the order which finally resolves the previous PCRA petition, because this is the first “date the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).

Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000) (internal footnote omitted).

-8- J-A21023-17

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/12/2017

-9- Circulated 09/14/2017 12:14 PM

~~~·

To: District Attorney; Paul Graham by Certified Mail; File ,.. -, .,.,.,.(··" ~~;: ~ ,.,.,--1, J, .~ : ·r: 'r':",. r'""'' .' IN THE COURT . OF COMMON PLEAS OF . ·WASHINGTON . . . ... COUNTY, PENN''.SYLVANIA . ....." , •. ~:,.. :,·· ) CRIMINAL DIVlSION . .. '....'.... . '..,; •' ' \ ;I ·,

.···' ..' .

COMMONWEALTH OF PENN$YLV ANIA, ) .,~ ) vs, ) No. 1468 of 2012 ) PAUL R. GRAHAM, JR,, ) ) Defendant. }

OPINION PURSUANT TO Pa. R.A.P. 1925(a)

Paul Graham appeals this Court's July 21, 2016 order denying relief under the Post-

Conviction Relief Act (PCRA). This opinion is written pursuant to Rule l925(a) of the

Pennsy 1vania Rules of Appellate Procedure ..

BACKGROUND

The: relevant procedural and factual background can be summarizedas follows: On June

12, 2012 a criminal complaint was filed charging Graham with various offenses related to

alleged sexual abuse of his niece, ..... __ . . .. ·-.-· .... ·- i:hr a period between Januaryl , 2003

and June 30, 2005. {Record No .. 6) At trial; the prosecution proceeded on rape', four counts of

involuntary deviate sexual intercourse/, two counts of aggravated indecent', three counts of

statutory sexual assault", three counts of indecent assault', and two counts bf corruption of the

morals of minors." (Record No. 15) Attorney Sally Frick (Frick) entered her appearance on behalf of Graham on.January 17, 2013 and represented Graham at hisjury trial, (Record No. 20)

1 18 P.a,C.:S, § 3 l2 l.(a)(6) (subsequently amended and renumbered 18 Pa.CS. § 3 l.2'1(c); effcctlve Feb. 7, 2003), 218 Pa.C.S. § 3l23(a)(6) (subsequently amended arid renumbered 18 Pa.C.S. § 3.12J(c), effective Feb, 7, 200.3} a 18 Pa.C.s. § 3i25(a).(7). s c s· ~· 1 ... p,a,.·: . s1; 3·17.., --·: 1 . · 5 18 Pa;CS. § 3t26(a)P} " 18 Pa:C:S, ~ 630J (a)( l).

1 - '

Graham was found guilty oh all counts on September 17, 2013 following a two-day jury trial and

was sentenced on December 16, 2013. (Record No. 36).

The Washington County Public Defender's was appointed to represent Graham for post-

sentence motions and any appeal. (Record No. 37) .. The post-sentence motions were denied. but

a motion to reconsider sentence was granted and the Court resentenced Graham on March 13;

2014. (Record No. 49). Graham appealed his conviction for sufficiency and weight of the

evidence and error in sentencing on.April 3, 2014. OnJune 16, 2015, the Pennsylvania Superior

Court affirmed Graham's conviction but remanded for a. resentencing. finding that the Court's

sentence exceeded the sentences authorized by the statute in effect when Graham committed. the

crimes. (Record No. 61 ). After .remand, Graham was resentenced again on July 28, 2015 ..

(Record No. 62). Graham filed a 'PCRA on September 24, 2015 and this Court appointed

Attorney John Egers ('•Attorney Egers") to.review the PCRA and either file an Amended PCRA.

or a "no merit" Jetter within 60 days of the October 21,2015 appointment Order. (Record Nos.

63 & 64). Attorney Egers was granted ari extension of time until January 2 I , 2016 when he filed

a "no merit" letter finding each of Graham's PCRA claims meritless and motioned for

withdrawal as counsel. (Record No. 65).

Graham filed an objection to Attorney Egers' "no merit" letter on February· 11., 2016 and

a Motion to Amend PCRApetition on April I I, 2016; (Record No. 67 & 68); This Court filed a

Notice of Intent to Dismiss PCRA Petition and granted Attorney Egers' Motion to Withdrawal

on May 3 l, 2016. {Record No. 6,9). Graham filed a Response to PCRA Counsel's Motion to

Withdraw on June 20, 2016.(Record No. 70), This Court reviewed Graham's Response and a:11

other relevant portions of' the record before denying the PORA Petition on July 21, 2016.

Graham appealed the denial of his PCRA on August 22, 2016. (Record Nos. 71 & 72).

2 ISSUES QN APPEAL

Graham W~S. not instructed to. file a Concise Statement of Matters Complained of on

Appeal but described the issues to be raised on appeal in his docketing statement as "Petitoned

[sic] Appellant was denied due process oflaw guaranteed by the 5tli~ 61'\and 141h Amendments of

the United States Constitution." Graham's PCRA reveals that these alleged constitutional

violations .all stem from ineffective assistance of counsel as defined by 42 Pa.C.S. §

9543(a)(2)(ii). Graham's claims in the PCRA can be summarized and categorized-as follows:

I) failure of Trial Counsel to object to.the prosecutor's argument, remarks, and alleged expert opinion during her opening statement and closing argument; .

2) Failure of Trial Counsel to Investigate and Prepare a Defense: 3) Failure of 'rrial Counsel to Impeach ...... ~ _ . with Prior lnconsistent Statements;

4) Failure of Trial and Appellate Counsel to raise an insufficiency of the evidence argument; and

5) Failure of Appellate Counsel to challenge the Jntroduction of the lone trial exhibit 'over the objection of Trial Counsel. ·

Graham filed an Amended PCRA which raised the above issues but also claimed

ineffective assistance of counsel on the part of his appointed PCRA counsel for+taking the easy

way out" and filing a "no merit" letter.7 Graham fleshed out the claims of ineffective: assistance

oCPCRA counsel in his Response to PCR.A Counsel's Motion to Withdrawal as Counsel with

Consolidated Memorandum of Law. Graham should have captioned this document "Response to

Notice of Intention to Dismiss PCRA Petition" as. his. PCRA counsel's Motion 'to Withdrawal

had already been granted. Regardless, thisfiling shou]d be viewed as arr "objection to dismissal"

raising claims of ineffective .. PCRA counsel as discussed in Commonwealth: v.. Rykard,55 A.3d

l 177, 1184 (Pa. Super. 2012). This Court's July 21, 2016 Order denying Graham's PCRA did

7 Graham did not add any new categories of allegations against counsel for ineffective assistance but did provide more examples of prior inconsistent statements in his "objection to dismissal." .,. .) not address the. merits concerning ineffective assistance of' PCRA Counsel and did not

specifically address all. of the claims in the underlying PCRA,. which this Court will now. do

below.

L. Ineffective Assistance of Trial and Appellate Counsel

The standard applicable to ineffective assistance of counsel claims is well established in

Pennsylvania jurisprudence: to succeed on such· a claim, Graham must plead and. p.rov:e by a

preponderance . of the evidence that (I) . . the .underlying . claim has. arguable merit, (2) counsel did

not .have a reasonable basis for his. action .or inaction, and (3) he suffered prejudice, or in other·

words - a reasonable probability that the outcome of the proceedings would have been different.

as a result of this action or inaction. Com. :v. Steele, 961 A:2d 786. 797 (Pa. 2008). Counsel is

presumed to he effective and Graham bears the. burden ofproving otherwise. Com. v. Harris,

972 A.2d 1196, 1203 (Pa. Super. 2009). Where it is clear that he has failed to meet any one of

.the three prongs, his claim play be disposed of.on that basis alone - without determination of

whether the othertwo prongs have been met. Steele, at 797.

1. Trial Counsel jailed to. object to prosecutor 's argument; remarks, and. alleged expert opinion. during lier opening statement and closing argument.

Graham argues Frick was ineffective based upon he!' failure to object to several different

statements made by the Assistant District Attorney Kristen Klingerman (Klingerman) during her

remarks to the jury in opening statements and closing arguments, These statements would need

to amount to prosecutorial .misoonduct to meet the arguable merit prong under Steele.

Prosecutorial misconduct occurs when the unavoidable effect of the comments by aprosecutor to,

the.jury was to prejudice. the jury, forming in their minds fixed bias and hostility towards the

accused so as to hinder an objective weighing,of the evidence. Com, v. Chester, 587 A.2d 1.367,

1377 (Pa. 1991 ).

4 Graham first takes issue with Klingerman. statements. to the jury that they "will believe

this victim" and that;~---······"·······- .is to be believed." N.T. p. 21. Statements made: by a prosecutor

must be placed .in context with the rest of an opening statement or closing argument. Com. v.

Correa, 664 A.2.d 607 (Pa. Super. 1995). Klingerman later.said in the· same opening:

You will be .given tools to evaluate the credibility of witnesses. The Judge just mentioned a few. You will use your common sense. You can watch .. . You can watch her demeanor, watch.herbehavior, evaluate what she says. {N.T, p. 28.) Klingerman made similar remarks .. in her dosing argument:

The testimony of ,, .. . was believable and it was believable because .it was true. It.was upsetting, its horrifying, its appalling, but it is all true .. And you know that ifs true. You know ifs true because it has been consistent.

(N.T: p .. 148.)

Klingerman did not simply tell the jury they must blindly believe the victim as .Graham frames the comments in his PCRA. Thejury was told they would have certain tools to judge the

credibility -of ... and that had. believable testimony because it was consistent. In

coil text, the comments made by Klingerman do not arise to prosecutorial misconduct and Frick

thus had a reasonable basis. for not objecting.

Klingerman stated in her opening that .Graham Was "a laborer" who was "laid off quite a

bit." (N:T. P: 23.) The prosecution presented no evidence on this topic. Graham argues that

Frick Was ineffective. because she should have objected to the prosecution raising the allegation

of Graham being laid off but not presenting evidence to support the. allegation. This is not a

meritorious .ineffecti ve assistance of co tinsel claim, Klingerman' s failure to bring in evidence to

support a claim. she made in her opening actually helps Graham because it can affect Klingerman's credibility with the jury, Furthermore, this issue .ofwhejher .or not. Graham was

laid off frequently is of little consequence to the key allegationsIn the case.

Graham alleges Ft.{ck was ineffective for failing to object to Klingermarr's remarks that

the alleged criminal acts happened "almost every s.higJe day": and .later that "it happened every

single day" because the evidence did not support the frequency of sexual events. (N. T. p, 151.)

'the jury charge. made by this 'Court instructed .the jury to judge the case on the facts presented ..

(f'J.T. p. L68.) was unable to recall the exact dates the crimes occurred on but sald

something of .a sexual nature happened ·'·almost every time" when questioned by Frick about the

frequency of such 'acts. {N.T pp. 90-91..) Thus, testimorty was presented at trial to support.

Klingerman'srernarks and Frick was not ineffectivefor failing to object.

Klingerman made .rernarks in her closing argument regarding cbildrcn's ability to -recall

memorable.events and that victims of abuse do not report · the abuse rm mediately such ,rs· the:

victims of the Roman Catholic, Church andJerry Sandusky scandals. (N.T. pp. 1..50, 157~158.)

Graham alleges these comments amounted to expert testimony and Frick was ineffective for

foiling to object. . Looking .at "the comments in context, Klingerman made- these. remarks in

response 10 Frick's argument .that was less credible because there was a detar in

reporting the crimes: (N.T: ·p·p: 137"-l'.38:. 142~l43-, _'158). The comments were n9t·framed-to the

Jury as expert testimony but instead as. an appeal to the j.ury' s common sense and personal

experiencewhich a prosecutor is _perm·irted to do- .

.2·. Trial Counselfailed to investigate and preparea.defense . .

Graham first. argues that Frick was ineffective for failure to. introducehis union records of

hours worked iii response to Klingermari's comments that Graham W.E~S "laid off quite a bit."

These reniarks by Klingerman were made. during her opening statement which is not evidence to

• .,,._ •• •• ·-· •• • •• ••• •-- •• ••• ··-• •• • ••• •• ·--··- •- """"' ••·"'--••• ·--••-•••••••••··--··• ·--o- ,.,., ......,.... ,...-..,~-·- .....~---•- the jury and Klingerman never produced concerning Graham's workhours, Therefore, these

comments could not have prejudiced Graham.

Graham alleges that Frick was ineffective for failure to introduce his "sexual offenders

address worksheet" and : 's grandfather's obituary to impeach _ on the beginning

date ·of the sexual abuse and at which locations it. occurred, the "sexual offenders address

worksheet" confirms that Graham is a registered sex offender already with the Commonwealth

of Pennsylvania and Frick certainly has a reasonable basis to not introduce it as the document

confirms the defendant has a past conviction for a sexual crime requiring registration. Evidence

of that nature would be destructive to Graham's defense in a sexual abuse case.

testified at the trial that the abuse started in 2003. when her grandfather was still

alive. (N.T. p. 44) .. Her grandfather died in 2002 and Graham alleges Frick was ineffective for

not introducing the obituary to higlrlightthis inconsistency. While an inconsistency does appear

to exist, this Court finds it to be oflittle weight in disproving the criminal acts at issue mid thus

sees no prejudice to Graham.

In'Graham's "objection to dismissal," he also alleged counsel was. ineffective for foiling

to ask Graham's co-workers about his work schedule and investigate his wife's work schedule.

Graham docs not explain how these facts would have helped his defense and this Court does not

find counsel to be ineffective for.not investigating these issues further.

Graham finds fault with his .counsel for failing to "call an expert medical witness and

forensic psychologist" As the commonwealth presented no medical or expert testimony,

witnesses of this nature would. have been of little value to Graham's defense. Graham does. not

allege any medical or expert theories of defense that his counsel failed topresentthus this claim

is meritless ..

7 . ...--.:, \

. Graham ·-alleges there was a confrontation between himself and the victim in April 2012

in Dee's video: store and the criminal complaint was ·filed two weeks later, Graham alleges this

shows ·evidence· of.a prejudicial and hostile motive to fabricate the allegation. Graham provides

no other information concerning the alleged confrontation anddoes not argue that he asked trial

-counsel to investigate the events and was refused. Even it' true; a confrontation in a store. does

not provide strong evidence of motive 'for a victim to fabricate· two years of constant forced

sexual :abuse.

3. TrialCounselfailed to impeach"·'' ... , ..... '' With priiu: inconsistentstatements ..

.Graham alleges· a number of .inconsistences exist in testimony between the: incident

investigation report, preliminary hearing, and trial. the inconsistences center .on the following

'areas ·of testimony;

a) WherherL, --·-··~ went with Graham to wash semen off'ofclothing; b) Whether oral sex was reciprocated; c) Details concerning oral sex and "face sitting"; d), The pornography Graham .showed her; e) The use and description of twodifferent vibrators; f) The severity.ofanal bleeding following forced anal penetration; g) Graham 's use. of his tongue and finger sucking; · · ·h) When the molestation began in.regards to , "s.ageandgrandfather dying; i) Graham 's work schedule 'and living address; ·· ·· · j) Existence of a "dice game;" and k) Details about a family gathering. Alleged inconsistencies (a-g) all involve explicit sexual acts between Graham and

Frick'-.$ decision to not question·"'·--... .about these items was .certainly reasonable. Extended

questioning woulddraw more attention: to the aets allegedly ·comniitte.d; reinforcing· them.in the

juror's minds. Items (h) and (i) were discussed above and are meritless claims, Graham argues

there. is an inconsistency with the "dice game" because it.was never mentioned at. the preliminary

hearing but was. brought up during trial. This isnot aclearinconsistency andis oflittle weightto

.......................................... ···········-"········ ························--······· ..······-- ·-----.,

the.material issue ofthe acts alleged by ~--····_ .", . ·-· ... ·-·- "s alleged inconsistency regarding the-

family gather is also .minor and· only concerns who. was present. Graham is thus unable to meet

the high bar, required to show ineffective assistance-of counsel absent clear inconsistencies to the

material issues of the case;

4:. Trial and Appellate Counsel failed to raise an insufficiency -, o_f theevidence argument. Graham alleges that Frick was ineffective for her failureto argue the insufficiency of the

evidence against Graham . for the Commonwealths inability to. produce evidence of. sexual .

intercourse between the dates ·of l/Ii20b3 and 611/2_0.05 to prove .the .ohargc of'.rape. Graham

supports. this contention with .cites to Com. v. Devlin; 333 A ..2q. 888 (P~. 1975) and 'Com. i1• Jette,

8i:8 A.2:d s:n (Pa. Super, 20.0.3')"as cases showing -that due-process requires the 'commonwealth

·provide a specific date, Devlin concerned a rape case where-the victim claimed a single instance

.p-r forced sexual intercourse. The Devlin Court found that· the defendant was. precluded from

preparing a, defense to the charges against him because. the Commonwealth' s proof at trial

provided only that the -. crime occurred at 'some unspecified time during a fourteen month period ..

Howeverr the Court.said due I?roc.ess. does. not require a fixed date but the date should be "fixed

With reasonable certainty" and "be subject to variations based upon the crimes charged mid the

victim 's age and condition-balanced.againstthe, rights ofthe-accused." Devlin, at -89.2.

Graham argues that because a specific date .as to when ~--- ... , . was forced to submit to.

sexual intercourse was not provided 'between the. dates of l /1 i2003 to '611 !2005 then thejury most

conclude that .._.__ ..... was raped every single day between those two dates - otherwise there was

insufficient 'evidence. presented to 'sustain the verdict. Thisis incorrect. The testimony -of" the

victim alone; absent. medical evidence, is sufficient to convict if the. fact finder believes the

victim. Coin. v. Jene, s:18 A:2.d 533, ~34 (P&.. Super. 2003). Furthermore, the Superior Court

'g

...... .,, ..-·· .. "'"--···-········--··· , .. ····-----···-··--· .. ··-·--- .. ····---- ·-····- ·-·· _,, __ ···-···· - , found that a range of dates provides sufficient due. process ·in matters of continuous abuse' of children .. Com. v. Brooks, 7 A.3d 852 (Pfi.. Super, 20i O);

On . one occasion, Graham wentto rent a pornographic movieto watch ·\A.Ii th 'from

.a store called Dee's; _ .... __ ,, t.estifi~d at trial thatshe did not go into Dee's with Graham torent

the movie but was able to recall details about the layout of the .store. .(N:T, p. 5:&-60). Gtaha:ni

argues that Frick w_a_s ineffective for not raising an insufficiency of the evidence claim

concerning- this inconsistency. However, __ ... .. . did not testify that she· never ·we11t into Dee 's,

justthat . she did.not accompany. Graham into that store that day.>: ·.v. . ·--·· ·~ . could have been inside

of Dee's any number oftimes withother family. members on other occasions and. therefor . this is

not an· inconsistency,

Graham argues that his .appellate counsel was also .incffective for foiling to bring the

insufficiency of evidence as to date· or" the offenses argument in an appeal to the Supreme Ceurt

-of Pennsylvania. Ineffective assistance of appellate. counsel is judged by the same three prong

test as that of trial counsel. Corn. v, Grose-Ila, 902 A.2d 1290., ·i 294 (Pa. Super, 2006), SinG.e this

Court concluded that this ch(im was meritless -for trial counsel to raise above, it mus.t similarly

conclude that itwould be a meritless claim for.appellate counsel to raise.

5. Appellate 'Counselfatted to challenge. the. introduction of thephotograpb trial exhibit,

Klingerman introduced -a: photograph of -.. _ when she was. nine years old as. the

Commonwealth's only· exhibit. Frick objected 'tc the photo's introduction · hut this Court

overruled the objection. Graham argues that appellate counsel was ineffective for not following

through with an.appeal on this. issue; Appellate counsel wouldhave had t9 prove that trial. court"

abused. it.S. discretion in admitting the photo. Com. v. Travagila, 28 A.3d_:S68 (Pa, 20 I I). The

record reveals 110 partiality, prejudice, bias, ill-will, or lack of support .that would necessitate a

finding of an abuse of discretion bythe this. Court thus rendering the claim rneritless. 10

_ , .. -··--··-···-··--···-·-···_..- ,,, ,., ,_ ·~-.._ , __ . "~.

II. Ineffective.Assistance of.PCRA Counsel

Graham avers that Attorney Bgers provided 'ineffective assistance of counsel by (I)

"erroneously concluding. that it was not necessary to interview Mr. Graham prior to filing his

request to withdraw as Counsel ofRecord" and (2) "erroneously authoring a No Merit Letter that

amounted to a usurpation of the prosecutorial function," Graham argues .that .Attorney Egers

committed "critical counsel: error" and violated standards set out by the American Bar

Association Project on· Minimum Standards for .Criminal Justice." This Court notes that its

review .is guided by· Pennsylvaniajurisprudence. and applicable federal case law, not the .ABA

standards cited 'by Graham, The standard for ineffective assistance of PCRA counsel is the same

for trial and appellate counsel as 'described above under 'Steele. Rykard, at 1J 89. 1. M1;. Egers committed critical counsel errer by erroneously concluding that ii i1!as not necessary ta interview Afr.. Graham prior -Io filing his. request to withdraw as counsel of record ' ·

To prevail here, Graham. must show that Attorney Egers bad no reasonable basis for

fai !ins. to conduct an interview .prior to the· filing.of the "no merif" letter, Attorney Egers .spoke

to this- very issue in his 1'119 merit" letter where he stated ,·,1 have: ·not personally interviewed Mr.

Graham, but an interview ·Of the client js not necessary in order to. understand. the merits of

claims presented .and to seek withdraw! as .counsel." Attorney Egers .supported · the statement

with a citationto Com. \!. Torres~.630 A.2d l250,. 1252{Pa. Super: 1993.:).

·Graham argues . . . to his case because "facts that persuaded 'the that Torres is nor applicable .

Honorable Court in 'Torres are N.OT PRES.l::NT in· this· matter." Specifically ... "Torres Counsel

8 Graham- points to standard 3 .2 on provlding.appeals and standard 5 .3· on defense services which are· incorrect designations. This Court believes.Graham is pointing.to Standard 2.1-3.2 Counsel 6n Appeal and Standard 4-5.3 Obligations ofStand-By Counsel. Regardless. the standards cited by Graham must be secondary to established law, For example; while. Standard.Z L J.2(l:!}'states thar''c.oun~el 'fo_r a defendant-appellant should not seekto withdraw 0

from a case because of counsel's determination.that the appeal 'lacks.merit" .,.,·this· standard is obviously not applicable to appointed PC:RA counsel who find. the claims of Hie appeal to he meritless under Coin. v, · Finley; ~50 A.2.d 2 13 (Pa. Super, 1988). .

. »-·-~---- . · . --.... . . . .,._, , . _, ,.. . , ..,. . ·---··---·--·· ---·---·------............. ........ was familiar with his client's claims since he previously represented him beth in filing his P'.C.R.A. Petition and during re-sentencing:" Graham further posits that the Torres Court "set

forth counsel's responsibility to·]N.TEiiVIEW a defendant during his representation."

WhHe Graham .is correct. that the facts of" his case -are distinct from 'Torres, Graham is incorrect in what the. Torres opinion stood for. Tories specifically examined whether pr not an

interview ofthe Defendant was necessary before counsel .could withdrawal -representation under·

Anders v California; 386 U.S.: 738, 87 S'.Ct. 1396~ 18 L.Ed.2d 493 ( l 9(57). Torres held that the

.key determination .PCRA counsel must make is whether. the .appcal -is frivclous which -an

interview may aid iry but "an interview is unnecessary 'in most. instances, and we find np

j11~·1{fica1ion.in making, om} an.addi:iio11i.1/A11dersre.quirel'nei1t.'' 'Torres, at 287 (Emphasis .added).

°The Court .w.ent on to explicitly state='we do not propose any per sc requirements-of interviewing

or communication with appellant bi counsel." Id, .at ·290. Ftuthemrore; "counsel is presumed to act. professionally and ethically in this process and will engage in such communication as

requited by each case .. ,,,. Id. Attorney Egers indicated that be reviewed the entirety of Graham's file with· the

Washington CountyClerk of Court's Office including transcripts of every hearing as; well as

every opinion.issued .by this Court and the Superior Court pertainingto Graham. Basedon 'that

review, Attorney Egers determined that Graham was ineligible for relief under the PCRA

because the claims were without merit, There is- nothing in the record, and. no arguments put

forth by Graham, to· overcome the presumption that Attorney Egers' chose not-to conduct an

'interview because it was unnecessary. Thus, Graham fails· to meet his burden necessary to ·prove

ineffective assistance of PCRA. Counsel.

..... . ,,, _, ,.,., __ ,, ..__ ,.,.,, __ .... "'\.

?, Mr. Ege rs committed critical counsel error by erroneously authoring 'a no merit letter that amounted to (1 usurpation of f he. prosecutorial .function · that included a gratuitous explanation.ofthe-absenceof merit of Mr. Graham's claims,

Graham.argues thatAttorneyEgerswas required to "support .Mr .. Grahama;s [skjAp.peal

to the best' of his ability" and that Attorney Egers abandoned his. role as Graham 's advocate by

.authoring a "no merit" letter. Graham cites to Anders to illustrate ·this and states the Court

imposed 3: requirement on PCRA counsel to advocate-for their clients. However, Anders and its.

progeny do not require counsel to blindly support PCRA claims that lack merit. Anders lays out

a dear process.for appointed Pt:aA to examine claims put forth by theirclients and to ju~_gc the·

merit.of said claims. If the claims lack merit, counsel is permitredto withdrawal from the case as

long as the attorney authors a brief" explaining why each claim .lacked merit under Com. v.

Graham is correct that Attorney Egers. is not allowed to act as his adversary hut cites to

1_10 specific sections of the "no merit" letter to support this contention. Graham does .cite to· the

case .• ~'uggs v, United States, 39·1 F:2ct 97 i; 974 ro.c. Cir. 196.8) and claims thc1t "irnportanf facts

that persuaded the United :~ta_tes. Supreme Court" 'in Sugg.~' .are, presentin this case. Sugg« was

decided by the United States Court of Appeals for the District of Columbia Circuit, not the . . United State -Supreme Court, Furthermore, the only fact Graham cites to. from the 'Suggs

-d~d~ion revolves around the government in that case adopting the brief of thedefendant' s PPRA.

counsel which clearly did not happen in the present case. Graham is thus unable to, meet the

'burden placed upon him to prove ineffective assistance of PCRA counsel,

' ._Attorney Egers authored a 15 page .leUer in this case that takes- the same form as briefs.required by the court in Santiago, ·

' -·--- .._ .. .. ,....,., ... _. ........._, ,,...._._,,,,_, .... .... __... ,.,_._ ......... .. .. ,.,._,, ,_, .. , ,,, ... ,,--···-·-· .. --,..,.. ,,,, CONCLUSION

The.JulyZl , 2016 Order by this Court finding that Graham's claims for ineffective

assistance of counsel were meritless should be affirmed.

:BY THECOVRT:

KATHERINE B. EMERY, .PRESIDENT JUDGE