J-S25036-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : ROBERT LELLOCK : : Appellant : No. 657 WDA 2021
Appeal from the PCRA Order Entered May 7, 2021 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0013778-2012
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : ROBERT LELLOCK : : Appellant : No. 659 WDA 2021
Appeal from the PCRA Order Entered May 7, 2021 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0003936-2013
BEFORE: BENDER, P.J.E., DUBOW, J., and KING, J.
MEMORANDUM BY KING, J.: FILED: NOVEMBER 14, 2022
Appellant, Robert Lellock, appeals from the order entered in the
Allegheny County Court of Common Pleas, which dismissed in part his petition
filed under the Post Conviction Relief Act (“PCRA”).1 We affirm.
____________________________________________
1 42 Pa.C.S.A. §§ 9541-9546. J-S25036-22
Appellant worked as a school police officer in Pittsburgh. During the
course of his employment, he sexually abused multiple boys. The PCRA court
opinion set forth the remaining procedural history of this appeal as follows:
On July 29, 2013, a jury found [Appellant] guilty [of involuntary deviate sexual intercourse (“IDSI”) and multiple counts of endangering the welfare of a child (“EWOC”), corruption of minors, and indecent assault at two different docket numbers]. The [court] sentenced Appellant to an aggregate term of incarceration of 32-64 years and found him to be a sexually violent predator. Judgment of sentence was affirmed on appeal, but the Superior Court of Pennsylvania remanded the case for resentencing, finding that the imposition of a mandatory sentence was illegal. [The trial court] resentenced [Appellant] to the same sentence, without the mandatory sentence, on July 21, 2016. This sentence was affirmed on August 16, 2017.
In 2017, appointed counsel filed an amended PCRA petition and in 2018 the Commonwealth conceded a sentencing issue on two counts of [EWOC]. On January 2[8], 2019, just before retiring, [the trial jurist] granted a resentencing hearing on the EWOC [convictions] and denied the rest of the PCRA. The case was reassigned to [the current jurist].
Next, counsel for Appellant filed a motion to reconsider, and Appellant filed a pro se motion for a Grazier[2] hearing. [The PCRA court] granted both motions and ordered Appellant to refile a PCRA [petition] and raise all issues therein. Appellant complied and the Commonwealth answered. [The PCRA court] reviewed the record, issued a notice of intent to dismiss the non-sentencing related issues, and scheduled a resentence[ing] hearing. Appellant filed motions to amend and to stay, which [the PCRA court] granted. On [August 26], 2020, Appellant filed an amended PCRA [petition]. The Commonwealth responded that claims of ineffective assistance of counsel at claims 1-8 and 10-12 were without merit, and claim 13 of cumulative prejudice was also meritless. Claim 9 is a time credit issue wherein ____________________________________________
2 Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998).
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the Commonwealth believes [Appellant] is entitled to three additional days. Appellant had been given credit from 9/12/12-12/18/12, but had not been released from custody until 12/21/12.
[On May 4, 2021, the court resentenced Appellant on some of the counts pursuant to the original trial jurist’s 2019 order.] On May 7, 2021, [the PCRA court] dismissed claims 1-8 and 10-13 [and] granted the three-day time credit….
(PCRA Court Opinion, filed 7/28/21, at 2-3) (some capitalization omitted).
On June 1, 2021, Appellant timely filed a pro se notice of appeal from
the order denying PCRA relief.3 Appellant voluntarily filed a pro se Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal on June 28,
2021.
Appellant now raises seven issues for our review:
The PCRA court abused its discretion when it dismissed without a hearing on Appellant’s claim that trial counsel gave ineffective assistance of counsel when he failed to fully develop and argue that the amendments that extended the criminal statute of limitations were illegal and the holding that allowed them [was] erroneously decided.
The PCRA court abused its discretion when it dismissed without a hearing on Appellant’s claim that trial counsel and appellate [counsel] gave ineffective assistance of counsel when they failed to properly raise, argue, and brief that the prosecution on twelve of the counts that Appellant was facing at trial [was] time-barred by the criminal statute of ____________________________________________
3 More specifically, Appellant filed separate pro se notices of appeal at each underlying docket number from the order denying PCRA relief. Appellant also filed separate pro se notices of appeal at each underlying docket number from the new judgment of sentence imposed following the resentencing hearing. This Court docketed the appeals related to the resentencing hearing at 658 and 660 WDA 2021. This Court subsequently consolidated each set of appeals sua sponte.
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limitations.
The PCRA court abused its discretion when it dismissed without a hearing on Appellant’s claim that trial counsel gave ineffective assistance of counsel when he failed to raise, argue, and brief this claim of pre-arrest delay.
The PCRA court abused its discretion when it dismissed without a hearing on Appellant’s claim that trial counsel gave ineffective assistance of counsel when he failed to properly object, raise, argue, and litigate that several jury instructions were legally deficient when charged to the jury.
The PCRA court abused its discretion when it dismissed without a hearing on Appellant’s claim that trial counsel and appellate counsel #2 gave ineffective assistance of counsel when they failed to properly object, raise, argue, litigate, and brief that Appellant was illegally labeled as a sexually violent predator.
The PCRA court abused its discretion when it dismissed without a hearing on Appellant’s claim that appellate counsel #3 gave ineffective assistance of counsel when she failed to raise that Appellant being sentenced under [the Sex Offender Registration and Notification Act (“SORNA”)] was illegal and that SORNA II cannot apply to Appellant’s case.
The PCRA court abused its discretion when it dismissed without a hearing on Appellant’s claim that all [counsel] gave ineffective assistance of counsel throughout all phases of Appellant’s case.
(Appellant’s Brief at 4-5).
“Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s determination
and whether its decision is free of legal error.” Commonwealth v. Beatty,
207 A.3d 957, 960-61 (Pa.Super. 2019), appeal denied, 655 Pa. 482, 218
A.3d 850 (2019). “[W]e review the court’s legal conclusions de novo.”
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Commonwealth v. Prater, 256 A.3d 1274, 1282 (Pa.Super. 2021), appeal
denied, ___ Pa. ___, 268 A.3d 386 (2021).
Appellant’s first two issues are related, and we address them together.
Appellant argues that a two-year statute of limitations applied for twelve of
the offenses at issue, the statute of limitations had expired by the time that
the Commonwealth brought the charges, and that the trial court should have
dismissed the relevant counts. Appellant acknowledges that trial counsel
raised the statute of limitations issue in a pretrial motion. Appellant insists,
however, that the pretrial motion was inadequate. Additionally, Appellant
notes that our legislature amended the relevant statutes of limitations after
Appellant’s offenses but before the Commonwealth brought the charges.
Appellant asserts that the amended version of the statutes should not have
applied to his case.
Appellant acknowledges Commonwealth v. Johnson, 520 Pa. 165,
553 A.2d 897 (1989) and Commonwealth v. Harvey, 542 A.2d 1027
(Pa.Super. 1988), holding that when a new limitations period is enacted and
the prior period has not yet expired, the longer statute will apply to an action.
Nevertheless, Appellant maintains these cases were erroneously decided and
“his argument proves that his Fourteenth Amendment and Article 1, Section
9 constitutional rights were violated by the government’s arbitrary actions
against him and others like him.” (Appellant’s Brief at 19). Appellant
concludes trial counsel was ineffective for filing an inadequate pretrial motion
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and failing to challenge the amendment of the statute of limitations. We
disagree.
“Counsel is presumed to have rendered effective assistance.”
Commonwealth v. Hopkins, 231 A.3d 855, 871 (Pa.Super. 2020), appeal
denied, ___ Pa. ___, 242 A.3d 908 (2020).
[T]o establish a claim of ineffective assistance of counsel, a defendant must show, by a preponderance of the evidence, ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. The burden is on the defendant to prove all three of the following prongs: (1) the underlying claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; and (3) but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different.
Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa.Super. 2019),
appeal denied, 654 Pa. 568, 216 A.3d 1029 (2019) (internal citations and
quotation marks omitted). The failure to satisfy any prong of the test for
ineffectiveness will cause the claim to fail. Commonwealth v. Chmiel, 612
Pa. 333, 30 A.3d 1111 (2011).
“The threshold inquiry in ineffectiveness claims is whether the
issue/argument/tactic which counsel has foregone and which forms the basis
for the assertion of ineffectiveness is of arguable merit[.]” Commonwealth
v. Smith, 167 A.3d 782, 788 (Pa.Super. 2017), appeal denied, 645 Pa. 175,
179 A.3d 6 (2018) (quoting Commonwealth v. Pierce, 537 Pa. 514, 524,
645 A.2d 189, 194 (1994)). “Counsel cannot be found ineffective for failing
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to pursue a baseless or meritless claim.” Commonwealth v. Poplawski,
852 A.2d 323, 327 (Pa.Super. 2004) (quoting Commonwealth v. Geathers,
847 A.2d 730, 733 (Pa.Super. 2004)).
“Once this threshold is met we apply the ‘reasonable basis’ test to
determine whether counsel’s chosen course was designed to effectuate his
client’s interests.” Commonwealth v. Kelley, 136 A.3d 1007, 1012
(Pa.Super. 2016) (quoting Pierce, supra at 524, 645 A.2d at 194-95).
The test for deciding whether counsel had a reasonable basis for his action or inaction is whether no competent counsel would have chosen that action or inaction, or, the alternative, not chosen, offered a significantly greater potential chance of success. Counsel’s decisions will be considered reasonable if they effectuated his client’s interests. We do not employ a hindsight analysis in comparing trial counsel’s actions with other efforts he may have taken.
Commonwealth v. King, 259 A.3d 511, 520 (Pa.Super. 2021) (quoting
Sandusky, supra at 1043-44).
“To demonstrate prejudice, the petitioner must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceedings would have been different. [A] reasonable probability is a
probability that is sufficient to undermine confidence in the outcome of the
proceeding.” Commonwealth v. Spotz, 624 Pa. 4, 33-34, 84 A.3d 294, 312
(2014) (internal citations and quotation marks omitted). “[A] criminal
defendant alleging prejudice must show that counsel’s errors were so serious
as to deprive the defendant of a fair trial, a trial whose result is reliable.”
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Hopkins, supra at 876 (quoting Commonwealth v. Chambers, 570 Pa. 3,
22, 807 A.2d 872, 883 (2002)).
Regarding the effect of amendments on statutes of limitations,
Pennsylvania law states:
§ 1975. Effect of repeal on limitations
Whenever a limitation or period of time, prescribed in any statute for acquiring a right or barring a remedy, or for any other purpose, has begun to run before a statute repealing such statute takes effect, and the same or any other limitation is prescribed in any other statute passed by the same General Assembly, the time which has already run shall be deemed part of the time prescribed as such limitation in such statute passed by the General Assembly.
1 Pa.C.S.A. § 1975.
In interpreting this statute, this Court noted that, “when a new period
of limitations is enacted, and the prior period of limitations has not yet expired,
in the absence of language in the statute to the contrary, the period of time
accruing under the prior statute of limitations shall be applied to calculation
of the new period of limitations.” Harvey, supra at 1029-30. Our Supreme
Court has also explained that “[t]here is nothing retroactive about the
application of an extension of a statute of limitations, so long as the original
statutory period has not yet expired.” Johnson, supra at 170, 553 A.2d at
900 (internal citation and quotation marks omitted).
Instantly, trial counsel raised the statute of limitations issue in omnibus
pretrial motions. At docket No. 3936 of 2012, trial counsel argued that three
of the criminal counts expired in 2008 and four counts expired in 2011. (See
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Omnibus Pretrial Motion, filed 5/1/13, at ¶¶15, 18, 23). At docket No. 13778
of 2012, trial counsel argued that six of the criminal counts expired in 2008
and ten counts expired in 2011. (See Omnibus Pretrial Motion, filed 1/3/13,
at ¶¶15, 18, 23). The court evaluated the pretrial motions and denied relief.
On direct appeal, this Court also considered Appellant’s statute of limitations
claims and determined that the Commonwealth timely filed the charges. See
Commonwealth v. Lellock, No. 2021 WDA 2013, unpublished memorandum
at 4, n. 2 (Pa.Super. filed Apr. 23, 2015).
Considering this procedural history, the PCRA court found that Appellant
could not satisfy the arguable merit prong of the test for ineffectiveness
because trial counsel raised the issue in a pretrial motion, argued it at a
hearing, and the trial court did not grant relief. (See PCRA Court Opinion at
5). We discern no legal error in the PCRA court’s conclusion, and we reiterate
that it would be improper to relitigate this issue in hindsight where the record
supports the conclusion that trial counsel adequately raised a statute of
limitations defense. See Beatty, supra; King, supra. Moreover, Appellant
offers no relevant authority to support his own self-serving conclusion that
Harvey and Johnson were erroneously decided. In light of this relevant case
law, the amendment of the statutes of limitations at issue did not prevent the
Commonwealth from bringing the charges in this case. Based upon the
foregoing, Appellant is not entitled to relief on his first two claims.
In his third issue, Appellant argues that there was an impermissible
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period of pre-arrest delay after the commission of the offenses. Appellant
claims that the pre-arrest delay left him unable to obtain critical evidence that
would have helped him to establish an alibi. Although the PCRA court
determined that this claim lacked arguable merit, Appellant maintains that the
PCRA court improperly relied on a plurality decision of the Pennsylvania
Supreme Court. To the extent that the court also found that the pre-arrest
delay was due to delayed reporting by the victims, Appellant contends that
the record does not support this finding. Appellant concludes that trial counsel
was ineffective for failing to challenge the pre-arrest delay. We disagree.
“The constitutional right to due process … protects defendants from
having to defend stale charges, and criminal charges should be dismissed if
improper pre-arrest delay causes prejudice to the defendant’s right to a fair
trial.” Commonwealth v. Snyder, 552 Pa. 44, 51-52, 713 A.2d 596, 599-
600 (1998). In Snyder, our Supreme Court determined that “our due process
inquiry must consider the reasons for the delay and whether it resulted in
actual prejudice to the accused.” Id. at 60, 713 A.2d at 604. The Court also
noted:
This Court recognizes that murder prosecutions often come to fruition after many years of investigation. We do not intend to limit the power of the Commonwealth to prosecute a murderer if and when an investigation yields new evidence after many years of inactivity. However, if no additional evidence appears, the delay results in actual prejudice to the defendant, and there are no proper reasons for postponing the defendant’s arrest, the due process clauses of the Constitutions of the United States and Pennsylvania require that the charges be dismissed.
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Id. at 62, 713 A.2d at 605.
The Court later attempted to elaborate on this standard in a plurality
opinion.4 See Commonwealth v. Scher, 569 Pa. 284, 803 A.2d 1204 (2002)
(plurality). In Scher, the lead opinion stated:
“[T]he defendant must first show that the delay caused him actual prejudice, that is, substantially impaired his or her ability to defend against the charges. The court must then examine all of the circumstances to determine the validity of the Commonwealth’s reasons for the delay. Only in situations where the evidence shows that the delay was the product of intentional, bad faith, or reckless conduct by the prosecution, however, will we find a violation of due process.”
Id. at 313, 803 A.2d at 1221 (emphasis added) (internal footnote omitted).
Nevertheless, the concurring opinions presented divergent views on the
standard applicable to the Commonwealth’s actions.
This Court subsequently evaluated the divergent views set forth in
Scher. See Commonwealth v. Wright, 865 A.2d 894, 900-01 (Pa.Super.
2004). Consequently, we utilized the standard set forth in Snyder, supra,
which established that a pre-arrest delay constitutes a due process violation
“where there has occurred ‘actual prejudice to the defendant’ and there
4 “In cases where a concurring opinion enumerates the portions of the plurality’s opinion in which the author joins or disagrees, those portions of the agreement gain precedential value.” Commonwealth v. Brown, 23 A.3d 544, 556 (Pa.Super. 2011). “Where, … however, the concurrence does not explicitly state its agreement or disagreement with the plurality, we must look to the substance of the concurrence to determine the extent to which it provides precedential value to points of agreement.” Id.
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existed ‘no proper reasons for postponing the defendant’s arrest.’” Wright,
supra at 901 (quoting Snyder, supra at 62, 713 A.2d at 605).
Instantly, Appellant’s PCRA petition included an exhibit to demonstrate
that the Commonwealth could have brought its charges against Appellant
sooner. Specifically, Appellant submitted a supplemental police report from
the City of Pittsburgh Bureau of Police, dated August 28, 2012. (See Amended
PCRA Petition, filed 8/26/20, at Ex. C-11).5 The report stated that law
enforcement received an email from a counselor at a youth development
center, which indicated that one victim, S.L., made a disclosure about
Appellant’s sexual abuse in 2005. The supplemental police report quoted a
portion of the youth counselor’s intake report summarizing the victim’s
disclosure. The report also stated that the counselor contacted the state police
in 2005, and a trooper subsequently took a statement from the victim.
Here, the supplemental report does not provide any information about
the victim’s statement to the trooper, and it does not indicate whether the
trooper ever contacted Pittsburgh police about the disclosure. The
supplemental report also fails to mention the other victims at issue in this case
and the respective dates of their disclosures. On this record, we cannot accept
Appellant’s conclusion that the Commonwealth lacked any proper reason for
the pre-arrest delay. Instead, we note that the PCRA court properly evaluated
5Although the report stated that it is four pages long, Appellant included only one page with his petition.
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the record and determined that the victims’ delay in pursuing their disclosures
excused the pre-arrest delay. See Snyder, supra; Wright, supra. This
analysis is free of legal error, and it supports the court’s determination that
Appellant’s claim lacked arguable merit. See Beatty, supra. Therefore,
Appellant is not entitled to relief on his third claim.
In his fourth issue, Appellant raises various challenges to the trial court’s
jury instructions. Specifically, Appellant questions the accuracy of the
instructions regarding: 1) reasonable doubt; 2) evaluation of a defendant’s
character; 3) proof of date of the crimes; and 4) impeachment of witnesses
with prior convictions. Appellant complains that the court provided legally
deficient jury instructions that did not adequately present the law to the jury.
With respect to the reasonable doubt instruction, Appellant asserts that
the court incorrectly stated, “[t]o summarize, you find the defendant guilty on
mere suspicion.” (Appellant’s Brief at 31). Appellant indicates that the court
should have stated, “you may not find the defendant guilty on mere
suspicion.” (Id.) For these reasons, Appellant maintains that the court
provided the jury with the incorrect standard of proof.
For the jury instruction regarding evaluation of a defendant’s character,
Appellant asserts that the court failed to provide the correct standard of proof
and omitted an unspecified portion of the jury instruction. Appellant also
believes that the instruction should have stated that Appellant is a nonviolent
individual. For the date of crime instruction, Appellant again asserts that the
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court failed to provide the correct standard of proof. Regarding the instruction
on the impeachment of a witness with a prior conviction, Appellant claims that
the jury did not have information regarding which witnesses had prior
convictions, when the convictions occurred, and the offenses at issue.
Appellant maintains that trial counsel had no reasonable basis for failing
to object to these instructions. Appellant also argues that counsel’s inaction
caused him to suffer prejudice because he was “convicted on all counts and
the record does not show that [the convictions were] beyond a reasonable
doubt as required by the constitution.” (Id. at 34). Based upon the foregoing,
Appellant concludes that trial counsel was ineffective for failing to object to
the jury instructions at issue. We disagree.
This Court has set forth the relevant standard for jury instructions as
follows:
A trial court has wide discretion in phrasing jury instructions. When reviewing an allegation of an incorrect jury instruction, the appellate court must view the entire charge to determine whether the trial court clearly and accurately presented the concepts of the legal issue to the jury and should not reverse, as a result of the instruction, unless the trial court committed an abuse of its discretion. We will not examine a phrase or sentence of an instruction in a vacuum. Rather, when we evaluate a challenge to a charge, we must consider how each part fits together to convey a complete legal principle.
Geathers, supra at 733 (quoting Commonwealth v. Ragan, 560 Pa. 106,
743 A.2d 390, 397-98 (1999)). See also Commonwealth v. Lesko, 609
Pa. 128, 216, 15 A.3d 345, 397 (2008) (reiterating that charge, “as a whole,”
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must be considered; court has broad discretion in phrasing instructions, so
long as directions given “clearly, adequately, and accurately” reflect law).
Regarding reasonable doubt, Pennsylvania’s Suggested Standard
Criminal Jury Instructions provide as follows:
A fundamental principle of our system of criminal law is that the defendant is presumed to be innocent. The mere fact that [he] [she] was arrested and is accused of a crime is not any evidence against [him] [her]. Furthermore, the defendant is presumed innocent throughout the trial and unless and until you conclude, based on careful and impartial consideration of the evidence, that the Commonwealth has proven [him] [her] guilty beyond a reasonable doubt.
It is not the defendant’s burden to prove that [he] [she] is not guilty. Instead, it is the Commonwealth that always has the burden of proving each and every element of the crime charged and that the defendant is guilty of that crime beyond a reasonable doubt. The person accused of a crime is not required to present evidence or prove anything in his or her own defense [except with respect to the defense of [type of defense], which I will discuss later]. If the Commonwealth’s evidence fails to meet its burden, then your verdict must be not guilty. On the other hand, if the Commonwealth’s evidence does prove beyond a reasonable doubt that the defendant is guilty, then your verdict should be guilty.
Although the Commonwealth has the burden of proving that the defendant is guilty, this does not mean that the Commonwealth must prove its case beyond all doubt and to a mathematical certainty, nor must it demonstrate the complete impossibility of innocence. A reasonable doubt is a doubt that would cause a reasonably careful and sensible person to hesitate before acting upon a matter of importance in his or her own affairs. A reasonable doubt must fairly arise out of the evidence that was presented or out of the lack of evidence presented with respect to some element of the crime. A reasonable doubt must be a real doubt; it may not be an imagined one, nor may it be a doubt
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manufactured to avoid carrying out an unpleasant duty.
So, to summarize, you may not find the defendant guilty based on a mere suspicion of guilt. The Commonwealth has the burden of proving the defendant guilty beyond a reasonable doubt. If it meets that burden, then the defendant is no longer presumed innocent and you should find [him] [her] guilty. On the other hand, if the Commonwealth does not meet its burden, then you must find [him] [her] not guilty.
Pa.SSJI (Crim) 7.01 (internal numbering omitted).
In Commonwealth v. Reid, ___ Pa. ___, 259 A.3d 395 (2021), our
Supreme Court addressed a similar issue regarding a reasonable doubt
instruction. Specifically, the appellant complained that the trial court
inaccurately informed the jury that “the Commonwealth is not bound to prove
the case beyond a reasonable doubt, a shadow of a doubt or to a mathematical
certainty.” Id. at ___, 259 A.3d at 430. The Court subsequently evaluated
the reasonable doubt instruction in its entirety and concluded that the trial
court provided an accurate description of the law prior to the complained-of
statement. The remainder of the instruction “included multiple references to
the Commonwealth’s duty to prove [the a]ppellant guilty beyond a reasonable
doubt.” Id. at 434.
“[O]ther than the [trial] court’s passing and obviously inadvertent,
misstatement regarding the Commonwealth’s burden of proof, the court
clearly, adequately, and accurately instructed the jury regarding the
Commonwealth’s duty to prove Appellant guilty beyond a reasonable doubt.”
Id. Thus, the Supreme Court held “that the trial court’s instruction did not
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lessen the Commonwealth’s burden of proof below the standard of beyond a
reasonable doubt,” and “the PCRA court did not err in finding a lack of arguable
merit in [the a]ppellant’s claim that trial counsel were ineffective for failing to
object to the trial court’s jury instruction[.]” Id. Compare Commonwealth
v. Montalvo, ___ Pa. ___, 244 A.3d 359 (2021) (holding appellant
established ineffective assistance of counsel for failing to object to erroneous
jury instruction; contrary to Commonwealth’s argument, court did more than
make one inaccurate statement; shortly after court gave erroneous instruction
to which counsel failed to object, court gave second erroneous instruction;
trial judge’s purported correction of misstatement could only have served to
prejudice appellant further).
Pennsylvania’s Suggested Standard Criminal Jury Instruction as to the
defendant’s character in a criminal matter is as follows:
The defense offered evidence tending to prove that the defendant is a person of good character. I am speaking of the defense witnesses who testified [that the defendant has a good reputation for being a law-abiding, peaceable, nonviolent individual] [that [proof of good character]].
[The district attorney called witnesses who in effect denied that the defendant has a good reputation for [character trait]. You may use the Commonwealth’s testimony for one purpose only. That is to help you judge whether the defense’s character witnesses are really familiar with the defendant’s reputation and whether in their testimony they gave you an accurate description of [his] [her] reputation.]
The law recognizes that a person of good character is not likely to commit a crime that is contrary to that person’s nature. Evidence of good character may by itself raise a reasonable doubt of guilt and require a verdict of not guilty.
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You must weigh and consider the evidence of good character along with the other evidence in the case. If, on all the evidence, you have a reasonable doubt of the defendant’s guilt, you must find [him] [her] not guilty. However, if, on all the evidence, you are satisfied beyond a reasonable doubt that the defendant is guilty, you should find [him] [her] guilty.
Pa.SSJI (Crim) 3.06 (internal numbering omitted).
Pennsylvania’s Suggested Standard Criminal Jury Instructions for “date
of crime: proof of date alleged not essential” is as follows:
[The indictment alleges that the crime was committed on [date].]
You are not bound by the date alleged in the [indictment] [information]. It is not an essential element of the crime charged. You may find the defendant guilty if you are satisfied beyond a reasonable doubt that [he] [she] committed the crime charged [in and around] [on or about] the date charged in the [indictment] [information] even though you are not satisfied that [he] [she] committed it on the particular date alleged in the [indictment] [information].
Pa.SSJI (Crim) 3.19.
The suggested jury instruction for impeachment with prior conviction of
a witness is as follows:
You have heard evidence that one of the witnesses, [name of witness], has been convicted of the crime of [crime].
The only purpose for which you may consider this evidence of prior conviction is in deciding whether or not to believe all or part of [name of witness]’s testimony. In doing so, you may consider the type of crime committed, how long ago it was committed, and how it may affect the likelihood that [name of witness] has testified truthfully in this case.
Pa.SSJI (Crim) 4.08D (internal numbering omitted).
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Instantly, the court instructed the jury on the concept of reasonable
doubt as follows:
The fundamental principle of our criminal justice system is that a person accused of a crime, the Defendant, is presumed to be innocent. The mere fact that he was arrested and accused of a crime is not any evidence against him. In addition, there is no inference of guilt created by the fact that there is an information or even a trial. Furthermore, the Defendant is presumed innocent throughout the trial unless and until you conclude, based on careful and impartial consideration of the evidence, that the Commonwealth has proved him guilty beyond a reasonable doubt.
It is not the Defendant’s burden of proof to prove that he is not guilty. Instead, it is the Commonwealth that always has the burden to prove each and every one of the crimes charged. A person accused of a crime is not required to present evidence or to prove anything in his own defense. If the Commonwealth fails to meet his burden, then your verdict must be “not guilty.” On the other hand, if the Commonwealth does not prove beyond a reasonable doubt that the Defendant is guilty, then your verdict—I’m sorry; if the Commonwealth does prove beyond a reasonable doubt that the Defendant is guilty, then your verdict should be “guilty.”
Although the Commonwealth has the burden of proving the Defendant guilty beyond a reasonable doubt, this does not mean that the Commonwealth must prove its case beyond all doubt or to a mathematical certainty, nor must it demonstrate the complete impossibility of innocence. A reasonable doubt is a doubt that would cause a reasonably carefully and sensible person to pause or hesitate before acting in a matter of importance in his or her own affairs. A reasonable doubt must fairly arise out of the evidence that was presented or the lack of evidence presented with respect to some element of the crime charged.
A reasonable doubt must be a real doubt. It may not be an imagined one, nor may it be a doubt merely manufactured to avoid carrying out an unpleasant duty. To summarize,
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you may find the Defendant guilty based on the mere suspicion of guilt. The Commonwealth has the burden of proving the Defendant guilty beyond a reasonable doubt. If it meets that burden, the Defendant is no longer presumed to be innocent, and you should find him guilty. On the other hand, if the Commonwealth does not meet its burden, then you must find him not guilty.
(N.T. Trial, 7/29/13—Volume 5, at 425-27) (emphasis added).
The record confirms Appellant’s assertion that the court stated, “you
may find the Defendant guilty based on the mere suspicion of guilt.” (Id. at
427). Although the court deviated from the suggested instruction by omitting
the word “not,” the instruction as given must be considered as a whole to
determine whether it fairly conveyed the legal principles at issue. See Reid,
supra. Despite the omission of “not,” the court accurately described the
concept of reasonable doubt prior to the complained-of statement. (See N.T.
Trial at 425-27). The court described reasonable doubt as something that
“would cause a … sensible person to pause or hesitate before acting in a matter
of importance in his or her own affairs.” (Id. at 427). The court elaborated
by explaining that a reasonable doubt is a “real doubt,” and that it cannot be
“imagined” or “manufactured.” (Id.)
The court ended the reasonable doubt instruction by succinctly stating,
“[o]n the other hand, if the Commonwealth does not meet its burden, then
you must find him not guilty.” (Id.) Considering the court’s accurate
descriptions of the law both before and after the omission of the word “not,”
the court “accurately instructed the jury regarding the Commonwealth’s duty
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to prove Appellant guilty beyond a reasonable doubt” despite the “obviously
inadvertent, misstatement.” See Reid, supra at 434.
Regarding the jury instruction as to a defendant’s character, the court
instructed the jury as follows:
The defense offered evidence tending to prove that the Defendant is a person of good character. I am speaking of the Defense witnesses who testified that the Defendant has a good reputation for being law-abiding. The law recognizes that a person of good character is not likely to commit a crime which is contrary to that person’s nature. Evidence of good character may by itself raise a reasonable doubt of guilt and require a verdict of not guilty. You must weigh and consider the evidence of good character along with all of the other evidence in the case.
(N.T. Trial, 7/29/13—Volume 5, at 430-31).
Contrary to Appellant’s assertion, the court provided the correct
standard of proof when it said that evidence of good character may raise a
reasonable doubt as to guilt. See Pa.SSJI (Crim) 3.06. Additionally, the
transcript does not reveal that the instruction deviated from the suggested
standard instruction. Finally, the court echoed the suggested instruction when
it stated, “I am speaking of the Defense witnesses who testified that the
Defendant has a good reputation for being law-abiding.” (Id. at 430). Thus,
this instruction clearly, adequately, and accurately reflected the law. See
Lesko, supra. See also Smith, supra.
Regarding the instruction for the date of the crime, the court stated, in
relevant part, “[y]ou may find that the Defendant is guilty if you are satisfied
that he committed the crimes charged in the indictment even though you are
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not satisfied that he committed them on the particular date alleged in the
indictment.” (N.T. Trial, 7/29/13—Volume 5, at 431-32). Although the court
used its own wording, the instruction accurately conveyed that a defendant
may be found guilty of the crimes charged even if the jury is uncertain about
whether the crimes were committed on the date alleged in the charging
instrument. See Pa.SSJI (Crim) 3.19.
Contrary to Appellant’s final assertion regarding a lack of information
about the witnesses’ prior convictions, one of the victims, S.L., testified that
he had a four-year-old prior conviction for felony burglary. (See N.T. Trial,
7/23/13—Volume 2, at 79). Another victim, D.J., testified that he had multiple
prior convictions, including criminal trespass in 2004, theft in 2006, and bad
checks in 2011. (See N.T. Trial, 7/24/13—Volume 3, at 186). Additionally,
the subsequent instruction for impeachment with prior convictions was nearly
verbatim to the suggested standard instruction. See Pa.SSJI (Crim) 4.08D.
Based upon the foregoing, we agree with the PCRA court’s conclusion
that the entire charge clearly and accurately represented the relevant legal
concepts to the jury. See Geathers, supra. Consequently, there is no
arguable merit to Appellant’s challenge to the jury instructions, and he is not
entitled to relief on his fourth claim. See Smith, supra.
In the fifth claim, Appellant argues that he was illegally designated as a
sexually violent predator (“SVP”). Appellant asserts that the record lacks clear
and convincing evidence that Appellant is likely to reoffend. Appellant insists
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that he has not had any accusations of sexual abuse or criminal activity lodged
against him since the original sentencing hearing in this case, which indicates
that he is not likely to reoffend. Appellant concludes that prior counsel were
ineffective for failing to litigate or object to Appellant’s SVP designation. We
Challenges to the sufficiency of the evidence supporting a trial court’s
SVP designation are governed by the following principles:
In order to affirm an SVP designation, we, as a reviewing court, must be able to conclude that the fact-finder found clear and convincing evidence that the individual is a[n SVP]. As with any sufficiency of the evidence claim, we view all evidence and reasonable inferences therefrom in the light most favorable to the Commonwealth. We will reverse a trial court’s determination of SVP status only if the Commonwealth has not presented clear and convincing evidence that each element of the statute has been satisfied.
Commonwealth v. Hollingshead, 111 A.3d 186, 189 (Pa.Super. 2015),
appeal denied, 633 Pa. 763, 125 A.3d 1199 (2015) (quoting Commonwealth
v. Baker, 24 A.3d 1006, 1033 (Pa.Super. 2011)). “SVP” is defined as:
A person who has been convicted of a sexually violent offense … and who is determined to be a sexually violent predator … due to a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses. In order to show that the offender suffers from a mental abnormality or personality disorder, the evidence must show that the defendant suffers from congenital or acquired condition … that affects the emotional or volitional capacity of the person in a manner that predisposes that person to the commission of criminal sexual acts to a degree that makes the person a menace to the health and safety of other persons. Moreover, there must be a showing that the defendant’s conduct was
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predatory. Predatory conduct is defined as an act directed at a stranger or at a person with whom a relationship has been instituted, established, maintained, or promoted, in whole or in part, in order to facilitate or support victimization. Furthermore, in reaching a determination, we must examine the driving force behind the commission of these acts, as well as looking at the offender’s propensity to re-offend, an opinion about which the Commonwealth’s expert is required to opine. However, the risk of re- offending is but one factor to be considered when making an assessment; it is not an “independent element.”
Commonwealth v. Leatherby, 116 A.3d 73, 84-85 (Pa.Super. 2015)
(quoting Commonwealth v. Stephens, 74 A.3d 1034, 1038-39 (Pa.Super.
2013)).
Pennsylvania’s Sexual Offenders Assessment Board (“SOAB”) evaluators
must consider the following factors when performing SVP assessments:
(1) Facts of the current offense, including:
(i) Whether the offense involved multiple victims.
(ii) Whether the individual exceeded the means necessary to achieve the offense.
(iii) The nature of the sexual contact with the victim.
(iv) Relationship of the individual to the victim.
(v) Age of the victim.
(vi) Whether the offense included a display of unusual cruelty by the individual during the commission of the crime.
(vii) The mental capacity of the victim.
(2) Prior offense history, including:
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(i) The individual’s prior criminal record.
(ii) Whether the individual completed any prior sentences.
(iii) Whether the individual participated in available programs for sexual offenders.
(3) Characteristics of the individual, including:
(i) Age of the individual.
(ii) Use of illegal drugs by the individual.
(iii) A mental illness, mental disability or mental abnormality.
(iv) Behavioral characteristics that contribute to the individual’s conduct.
(4) Factors that are supported in sexual offender assessment field as criteria reasonably related to the risk of reoffense.
42 Pa.C.S.A. § 9799.58(b).
Instantly, Appellant was found guilty of IDSI, which is a sexually violent
offense. See 42 Pa.C.S.A. §§ 9799.12, 9799.14. In his testimony during the
SVP hearing, Dr. Allan Pass, a SOAB examiner, addressed the factors set forth
in Section 9799.58(b). (See N.T. SVP Hearing, 10/22/13, at 5-12).
Regarding Appellant’s mental abnormality, Dr. Pass testified that Appellant’s
“behavior in the commission of these offenses, the presence of mental
abnormality or personality disorder as defined by the statute specifically
identified as paraphilia not otherwise specified.” (Id. at 9). Dr. Pass noted
that this diagnosis means that an individual engaged in “sexual misconduct
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behavior over a period of time of at least six months which has created
concerns and conflict, social conflict, personal conflict, for himself.” (Id. at
10). Specific to Appellant, Dr. Pass stated that “we have an adult who is
engaged in sexual misconduct with juvenile males over the course of
approximately one year and six months.” (Id.)
Dr. Pass observed that paraphilia is “chronic in nature, so, as a result,
the likelihood of re-offending would be high.” (Id.) Dr. Pass elaborated on
Appellant’s case as follows: “[Appellant] utilized his position of authority as a
police officer over children at school to intimidate, control and sexually exploit
them for his own personal sexually deviant gratification.” (Id. at 11).
Appellant “did engage in acts with the victims with whom a relationship has
been initiated … in order to support or facilitate the victimization.” (Id.) Dr.
Pass opined that “[Appellant] met the classification criteria as outlined within
the statute for predatory conduct,” and he reached this opinion to a reasonable
degree of certainty within the accepted values in his field. (Id. at 11-12).
Relying on Dr. Pass’s opinion, the trial court found that Appellant met the
statutory definition of sexually violent predator. (Id. at 23).
Here, Dr. Pass’s testimony confirmed that Appellant suffers from a
mental abnormality that makes him likely to re-offend. See Leatherby,
supra. Viewing this evidence in the light most favorable to the
Commonwealth, the record reveals that there was clear and convincing
evidence to support Appellant’s classification as an SVP. See Hollingshead,
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supra. Therefore, the PCRA court correctly concluded that this issue was
without arguable merit, and Appellant is not entitled to relief on this claim.
See Smith, supra.
In Appellant’s sixth claim, Appellant argues he was illegally sentenced
under SORNA II. Appellant asserts that his sentencing resulted in a violation
of his due process rights and an ex post facto violation. Appellant insists that
SORNA II was applied retroactively and that it increased the authorized
punitive measures, thereby creating an ex post facto violation. For these
reasons, Appellant concludes all prior counsel were ineffective for failing to
challenge the legality of the sentence under SORNA II.6 We disagree.
In Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189 (2017)
(plurality), cert. denied, ___ U.S. ___, 138 S.Ct. 925, 200 L.Ed.2d 313 (2018),
our Supreme Court held that the registration provisions of SORNA I were
punitive, such that application of those provisions to offenders who committed
their crimes prior to SORNA I’s effective date violated ex post facto principles.
Following Muniz and Commonwealth v. Butler, 173 A.3d 1212 (Pa.Super.
6 Appellant baldly asserts a separate claim when he states, “Section 9799.63 violates his constitutional right to reputation protected under Article I, Section 11 of the Pennsylvania Constitution.” (Appellant’s Brief at 40). This single sentence, however, does not adequately develop an argument advancing Appellant’s “right to reputation” claim.
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2017) (“Butler I”), rev’d, ___ Pa. ___, 226 A.3d 972 (2020) (“Butler II”),7
the Pennsylvania General Assembly enacted legislation to amend SORNA I.
See Act of Feb. 21, 2018, P.L. 27, No. 10 (“Act 10”). Act 10 amended several
provisions of SORNA I and added several new sections found at 42 Pa.C.S.A.
§§ 9799.42, 9799.51-9799.75. In addition, the Governor of Pennsylvania
signed new legislation striking the Act 10 amendments and reenacting several
SORNA I provisions, effective June 12, 2018. See Act of June 12, 2018, P.L.
1952, No. 29 (“Act 29”). Through Act 10, as amended in Act 29 (collectively,
“SORNA II”), the General Assembly split SORNA I’s former Subchapter H into
a Revised Subchapter H and Subchapter I.
Subchapter I addresses sexual offenders who committed an offense on
7 In Butler I, this Court held that the provision of SORNA I requiring a court to designate a defendant a SVP by clear and convincing evidence violates the federal and state constitutions because it increases a defendant’s criminal penalty without the factfinder making necessary factual findings beyond a reasonable doubt. See Butler I, supra. However, the Pennsylvania Supreme Court reversed Butler I. See Butler II, supra (holding SVPs are different from non-SVP SORNA registrants at issue in Muniz due to heightened public safety concerns based on determination that SVPs have mental abnormality or personality disorder that makes individual likely to engage in predatory sexual violent offenses; procedure for designating individuals as SVPs is not subject to requirements of Apprendi and Alleyne and remains constitutionally permissible). See also Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (holding any facts, other than fact of prior conviction, that subject defendant to additional penalty beyond statutory maximum must be submitted to jury and proven beyond reasonable doubt) and Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) (holding any fact that increases mandatory minimum sentence for crime is fact that must be submitted to jury and found beyond reasonable doubt).
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or after April 22, 1996, but before December 20, 2012; or those who were
required to register under a former sexual offender registration law of this
Commonwealth on or after April 22, 1996, but before December 20, 2012,
whose period of registration has not expired. See 42 Pa.C.S.A. § 9799.52.
Subchapter I contains less stringent reporting requirements than Revised
Subchapter H, which applies to offenders who committed an offense on or
after December 20, 2012. See 42 Pa.C.S.A. §§ 9799.10-9799.42.
In Commonwealth v. Lacombe, 660 Pa. 568, 234 A.3d 602 (2020),
the Pennsylvania Supreme Court held that Subchapter I of SORNA II is
nonpunitive and does not violate the constitutional prohibition against ex post
facto laws. See id. at 609, 234 A.3d at 626-27. See also Commonwealth
v. Elliott, 249 A.3d 1190, 1194 (Pa.Super. 2021), appeal denied, ___ Pa.
___, 263 A.3d 241 (2021) (rejecting ex post facto challenge to lifetime
registration for rape conviction where appellant was subject to Subchapter I
reporting requirements).
Instantly, Appellant committed his sex offenses between 1998 and
1999, and he is subject to registration and reporting requirements under
Subchapter I. See 42 Pa.C.S.A. § 9799.52. Subchapter I requires Appellant
to report for life based on his IDSI conviction. See 42 Pa.C.S.A. §
9799.55(b)(2)(i)(A). Under Lacombe and its progeny, Appellant’s ex post
facto challenge fails. See Lacombe, supra; Elliott, supra. Based upon the
foregoing, this claim is without arguable merit, and the PCRA court properly
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denied relief. See Smith, supra.
In his final issue, Appellant references his previous arguments and
insists that the PCRA court should have granted relief under a theory of
“cumulative ineffective assistance.” Appellant also raises several “sub-
claims,” ostensibly to support his argument that all prior counsel were
ineffective on multiple bases, thereby permitting this Court to assess the
cumulative impact. Based upon this cumulative impact, Appellant concludes
that this Court must vacate all of his sentences and order a new trial. We
Preliminarily, matters that are not raised in the Rule 1925(b) concise
statement of errors complained of are waived on appeal. Commonwealth v.
Dowling, 778 A.2d 683, 686 (Pa.Super. 2001). Moreover, “[t]he failure to
develop an adequate argument in an appellate brief may result in waiver of
the claim under Pa.R.A.P. 2119.” Commonwealth v. Freeman, 128 A.3d
1231, 1249 (Pa.Super. 2015). Finally, “no number of failed ineffectiveness
claims may collectively warrant relief if they fail to do so individually. When
the failure of individual claims is based upon a lack of prejudice, however,
then the cumulative prejudice from those claims may properly be assessed.”
Commonwealth v. Elliott, 622 Pa. 236, 294, 80 A.3d 415, 450 (2013), cert.
denied, 574 U.S. 828, 135 S.Ct. 50, 190 L.Ed.2d 54 (2014) (internal citations
omitted).
Here, Appellant failed to raise his “sub-claims” in his Rule 1925(b)
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statement, and those arguments can be waived on this basis alone. See
Dowling, supra. Further, with respect to these “sub-claims,” the argument
section of Appellant’s brief focuses on the arguable merit prong of the test for
ineffective assistance while providing mere cursory analysis of the rational
basis and prejudice prongs. Thus, the failure of the “sub-claims” to develop
a meaningful argument for all three parts of the test for ineffectiveness
provides an additional basis for waiver. See Freeman, supra. To the extent
Appellant also seeks to assert a claim of cumulative prejudice, here, we have
not rejected the aforementioned claims of ineffectiveness based upon the
prejudice prong of the test for ineffectiveness. Thus, there can be no
aggregation of prejudice from multiple ineffectiveness claims, and Appellant’s
claim fails. See Elliott, supra. Accordingly, we affirm the PCRA court’s
decision.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 11/14/2022
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