J-S21003-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TERRENCE MCALEER : : Appellant : No. 333 EDA 2021
Appeal from the PCRA Order Entered October 20, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006283-2007
BEFORE: BOWES, J., OLSON, J., and COLINS, J.*
MEMORANDUM BY BOWES, J.: Filed: August 12, 2021
Terrence McAleer appeals from the October 30, 2017 order dismissing
his petition for relief pursuant to the Post-Conviction Relief Act (“PCRA”).
Stephen T. O’Hanlon, Esquire, has filed a Turner/Finley1 no-merit brief and
an application to withdraw. After careful review, we grant counsel’s
application to withdraw and affirm the court’s denial of PCRA relief.
This case concerns Appellant’s “sexual molestation of a fifteen-year-old
girl, R.B., on or about November 11 and 12, 2006.” Commonwealth v.
McAleer, 108 A.3d 99 (Pa.Super. 2014) (“McAleer I”) (unpublished
memorandum at 1). On August 7, 2008, a jury found Appellant guilty of
involuntary deviate sexual intercourse (“IDSI”), unlawful contact with a minor,
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* Retired Senior Judge assigned to the Superior Court.
1 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). J-S21003-21
aggravated indecent assault, corruption of a minor, and endangering the
welfare of a child. Appellant was sentenced to seven to fourteen years of
incarceration in connection with the IDSI conviction and received an aggregate
term of fifteen years of probation on the remaining charges.
On direct appeal following the reinstatement of Appellant’s rights nunc
pro tunc, this Court affirmed his judgment of sentence. See McAleer I,
supra at 5. Thereafter, Appellant petitioned the Pennsylvania Supreme Court
for allowance of appeal, which denied his request. See Commonwealth v.
McAleer, 113 A.3d 279 (Pa. 2015) (“McAleer II”). Appellant did not petition
for a writ of certiorari in the United States Supreme Court. Thus, his judgment
of sentence became final for the purposes of the PCRA on July 7, 2015.2
On June 28, 2016, Appellant filed a timely pro se PCRA petition. Counsel
was appointed to represent Appellant. In lieu of an amended PCRA petition,
counsel requested to withdraw his representation by submitting a
Turner/Finley “no merit” letter. By order dated October 20, 2017, the PCRA
court dismissed Appellant’s petition without a hearing pursuant to
Pa.R.Crim.P. 907 after concluding that his claims were meritless. “Besides
not addressing PCRA counsel’s request to withdraw, the court’s order did not
include any information about [Appellant’s] right to appeal or the time limits
for doing so. Further, the court’s order included no indication that it was
served on [Appellant] as required by Pa.R.Crim.P. 907(4)[.]”
2 See 42 Pa.C.S. § 9545(b)(3); U.S. Sup. Ct. R. 13(1).
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Commonwealth v. McAleer, 241 A.3d 445 (Pa.Super. 2020) (“McAleer
III”) (unpublished memorandum at 1). At some point, Appellant’s PCRA
counsel was granted leave to withdraw. Id. at 2 n.5.
On February 18, 2018, Appellant filed a pro se application to reinstate
his appeal rights nunc pro tunc, “claiming that he was not timely notified of
the dismissal of his PCRA petition.” Id. at 2. Ultimately, this Court reinstated
Appellant’s right to appeal from the dismissal of his PCRA petition after
concluding that “there was a breakdown in the operations of the court that
prevented [Appellant] from timely pursuing an appeal from the order
dismissing his first PCRA petition.” Id. at 3.
On remand, Appellant filed a nunc pro tunc notice of appeal with the
assistance of newly appointed PCRA counsel. The PCRA court ordered that a
concise statement of errors be filed pursuant to Pa.R.A.P. 1925(b). In
response, Appellant’s second PCRA counsel provided timely notice of his intent
to file a Turner/Finley “no merit” brief while simultaneously filing a Rule
1925(b) statement. The PCRA court filed a Rule 1925(a) opinion expressing
its concomitant belief that the issues Appellant sought to raise were meritless.
In this Court, Appellant filed three pro se responses raising duplicative
allegations and tangential legal issues.
In his “no merit” brief, counsel has identified the following three issues
that Appellant wishes us to review:
1. The trial court erred in permitting the voir dire to continue after an overwhelming majority of the venire was chosen to be female thereby festering the splinter of bias toward sex offenses in clear
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violation of the Supreme Court’s ruling in Batson v. Kentucky, 476 U.S. 79 (1986).
....
2. The trial court erred in applying the principles found within 18 Pa.C.S. § 3106 when the statute not only unconstitutionally shifts the burden of proof to the defendant but also violates the Confrontation Clause of the United States Constitution when the statutory construction forces the defendant to present witnesses or evidence to prove by a preponderance of the evidence that he is innocent rather than the Commonwealth proving beyond a reasonable doubt that the defendant is guilty.
3. Trial counsel was ineffective for failing to object to both judicial bias and prosecutorial misconduct allowing the trial court to strike exculpatory testimony and the prosecution to prejudice the jury by calling the witness a liar.
Turner/Finley letter brief at 4, 7-8 (cleaned up).
Before we may consider the merits of the issues raised on appeal, we
must determine whether counsel has complied with the procedural
requirements of Turner/Finley, which this Court has discussed as follows:
When presented with a brief pursuant to Turner/Finley, we first determine whether the brief meets the procedural requirements of Turner/Finley. A Turner/Finley brief must: (1) detail the nature and extent of counsel’s review of the case; (2) list each issue the petitioner wishes to have reviewed; and (3) explain counsel’s reasoning for concluding that the petitioner’s issues are meritless. Counsel must also send a copy of the brief to the petitioner, along with a copy of the petition to withdraw, and inform the petitioner of the right to proceed pro se or to retain new counsel. If the brief meets these requirements, we then conduct an independent review of the petitioner’s issues.
Commonwealth v. Knecht, 219 A.3d 689, 691 (Pa.Super. 2019) (cleaned
up).
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After reviewing counsel’s petition to withdraw and “no merit” letter, we
are satisfied that he has substantially complied with the technical
requirements of Turner/Finley. Counsel has detailed his review of the case
and the issues raised by Appellant while explaining why these claims are
meritless. Counsel has also stated that his independent review of the record
has uncovered no other meritorious issues that might favor his client.
Furthermore, counsel also sent of a copy of his Turner/Finley filings to
Appellant in a letter advising his client of his immediate right to respond to
these submissions and to proceed pro se or with a privately retained attorney.
Thus, we will review the merits of the issues identified by counsel.
We begin our independent evaluation by noting the applicable standard
of review: “This Court’s standard of review regarding an order denying a
petition under the PCRA is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error.”
Commonwealth v. Rizvi, 166 A.3d 344, 347 (Pa.Super. 2017).
Appellant’s first issue is styled as a constitutional claim challenging the
validity of the jury composition in his case. See PCRA Petition, 6/28/16, at 5-
6 (citing U.S. CONST. Amend. VI; PA. CONST. Art. I, § 9). He asserts that the
trial court erred by permitting the empaneling of a jury in his case that was
composed primarily of women. Although Appellant has styled this issue as
arising under Batson and its progeny, his claim for relief is not predicated
upon the Commonwealth’s improper use of peremptory challenges. Rather,
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he asserts that the trial court should have excluded women from the jury,
outright, based solely upon the subject matter of the charges. See PCRA
Petition, 6/28/16, at 6 (“[T]he overwhelming majority of the empaneled jury
being female, force an impartiality [sic] toward [Appellant] as the alleged
victim was a female under the age of eighteen. Ergo, [Appellant] had a jury
of [the] alleged victim’s peers instead of the [c]onstitutionallty required
impartial jury of [Appellant’s] peers.”).
For the purposes of a PCRA, “an issue is waived if the petitioner could
have raised it but failed to do so before trial, at trial, during unitary review,
on appeal, or in a prior state postconviction proceeding.” 42 Pa.C.S. §
9544(b). Here, Appellant could have challenged the constitutionality of the
composition of the jury at several earlier junctures, whether during voir dire
itself or on direct appeal to this Court. To the extent that Appellant challenges
the constitutionality of the jury composition pursuant to 42 Pa.C.S.
§ 9543(2)(i), this claim has been waived.3 See Commonwealth v. Ford,
3 Although Appellant purports to raise a straightforward claim of constitutional error, at the end of his discussion he mentions in passing that Appellant’s voir dire counsel “failed to utilize the strikes available to him to ensure the diverse jury of ‘[Appellant’s] peers’ as required by the Sixth Amendment of the United States Constitution and Article 1, § 9 of the Pennsylvania Constitution.” PCRA Petition, 6/28/16, at 6. To the extent that Appellant intends to raise an allegation of ineffective assistance of counsel, such a claim would not be waived pursuant to 42 Pa.C.S. § 9544(b).
Nonetheless, any claim of ineffectiveness concerning gender discrimination in voir dire in this case is meritless. As discussed in the body of this writing, (Footnote Continued Next Page)
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809 A.2d 325, 330 (Pa. 2002) (holding that a claim of constitutional error was
waived under the PCRA where petitioner could have raised it on direct appeal).
Even assuming, arguendo, that this claim was not waived by Appellant’s
failure to raise it on direct appeal, his contention is preposterous. The United
States Supreme Court has enumerated the legal objectionability of a gender-
focused approach to jury selection as follows:
Because these stereotypes have wreaked injustice in so many other spheres of our country’s public life, active discrimination by litigants on the basis of gender during jury selection invites cynicism respecting the jury’s neutrality and its obligation to adhere to the law. The potential for cynicism is particularly acute in cases where gender-related issues are prominent, such as cases involving rape, sexual harassment, or paternity.
J.E.B. v. Alabama, 511 U.S. 127, 140 (1994). Appellant was not entitled to
a jury composed solely, or even primarily, of men. See Commonwealth v.
Rivera, 199 A.3d 365, 387 (Pa. 2018) (“Proof is required of an actual
discriminatory practice in the jury selection process, not merely under-
representation of one particular group.”). Furthermore, Appellant has not
provided the information necessary to establish a prima facie case of gender
Appellant is not entitled to a jury composed of his preferred gender composition. Any attempt by voir dire counsel to strike women from the jury solely on the basis of their gender would have been a fruitless endeavor. See Commonwealth v. Rivera, 816 A.2d 282, 292 (Pa.Super. 2003) (“It is axiomatic that trial counsel will not be considered ineffective for failing to pursue meritless claims.”).
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discrimination in jury selection.4 Accordingly, we agree with counsel’s
conclusion that this issue is frivolous.
The second claim identified by counsel challenges the constitutionality
of 18 Pa.C.S. § 3106, which governs the credibility of complainants under
Chapter 31 (“Sexual Offenses”) of the Pennsylvania Crimes Code:
The credibility of a complainant of an offense under this chapter shall be determined by the same standard as is the credibility of a complainant of any other crime. The testimony of a complainant need not be corroborated in prosecutions under this chapter. No instructions shall be given cautioning the jury to view the complainant’s testimony in any other way than that in which all complainants’ testimony is viewed.
18 Pa.C.S. § 3106. Appellant asserts that this statute “does not allow for the
elements of the crime to be proven beyond a reasonable doubt due to the fact
that it allows for the distinct possibility that ‘hearsay’ or other testimony could
be used solely to convict the defendant.”5 PCRA Petition, 6/28/16, at 7-8
4 A defendant asserting gender discrimination in jury selection must identify: (1) the gender of all the venirepersons in the jury pool; (2) the gender of all venirepersons remaining after challenges for cause; (3) the gender of those removed by the prosecution; (4) the gender of the jurors who served; and (5) the gender of jurors acceptable to the Commonwealth who were stricken by the defense. Commonwealth v. Mason, 130 A.3d 601, 639 n.48 (Pa. 2015).
5 This Court previously upheld the sufficiency of the evidence underlying Appellant’s convictions on direct appeal. See McAleer I, supra at 3 (“Here, the jury was free to believe R.B.’s uncorroborated testimony, and it was also free to disbelieve any testimony contradicting her account of events.”). To the extent that Appellant seeks to re-raise a collateral assault on the sufficiency of the evidence, such a claim would be ineligible for relief under the PCRA as previously litigated. See 42 Pa.C.S. §§ 9543(a)(3), 9544(a)(2). Furthermore, the PCRA is an inappropriate vehicle for such arguments. See (Footnote Continued Next Page)
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(citing U.S. CONST. Amend. VI; PA. CONST. Art. I, § 9). He also claims that the
statute unconstitutionally shifts “the burden to the defendant to prove that
the testimony given is a falsity.” Id.
As above, Appellant could have advanced this claim in the trial court or
on direct appeal to this Court. Accordingly, this constitutional claim is also
waived under § 9544(b). See Ford, supra at 330. Furthermore, Section
3106 does not shift the burden of proof from the Commonwealth. It merely
ensures that the testimony of Chapter 31 complainants is afforded equal
credibility. Indeed, it is well-established in Pennsylvania that the
uncorroborated testimony of the victim of a sexual crime is sufficient, on its
own, to support a conviction. See Commonwealth v. Cramer, 195 A.3d
594, 602 (Pa.Super. 2018) (“[T]he uncorroborated testimony of the
complaining witness is sufficient to convict a defendant of sexual offenses.”).
This basic principle is applicable to all crimes charged in Pennsylvania. See
Commonwealth v. Johnson, 180 A.3d 474, 481 (Pa.Super. 2018) (“[T]he
uncorroborated testimony of a single witness is sufficient to sustain a
conviction for a criminal offense, so long as that testimony can address and,
in fact, addresses, every element of the charged crime.”). We concur with
counsel’s conclusion that this claim is meritless.
Commonwealth v. Price, 876 A.2d 988, 995 (Pa.Super. 2005); Commonwealth v. Bell, 706 A.2d 855, 861 (Pa.Super. 1998).
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The final claim addressed by counsel concerns multiple allegations of
trial counsel ineffectiveness. See 42 Pa.C.S. § 9543(a)(2)(ii). In order to
obtain relief, Appellant must “plead and prove by a preponderance of the
evidence” that his “conviction or sentence” was the result of “[i]neffective
assistance of counsel which, in the circumstances of the particular case, so
undermined the truth-determining process that no reliable adjudication of
guilty or innocence could have taken place.” Id. “Counsel is presumed
effective, and to rebut that presumption, the PCRA petitioner must
demonstrate that counsel’s performance was deficient and that such
deficiency prejudiced him.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa.
2014) citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
Our Supreme Court has interpreted this inquiry as a three-part test:
In Pennsylvania, we have applied the Strickland test by requiring a petitioner to establish that: (1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel’s action or failure to act; and (3) the petitioner suffered prejudice as a result of counsel’s error, with prejudice measured by whether there is a reasonable probability that the result of the proceeding would have been different. . . . [I]f a claim fails under any required element of the Strickland test, the court may dismiss the claim on that basis.
Commonwealth v. Housman, 226 A.3d 1249, 1260-61 (Pa. 2020) (cleaned
up; emphasis added).
Appellant has raised two separate claims of ineffectiveness, asserting
that trial counsel erred by: (1) failing to object to alleged “judicial bias;” and
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(2) failing to object to a statement made during the Commonwealth’s closing
statement to the jury. Neither claim is of arguable merit.
Appellant’s first claim of ineffectiveness references a brief discussion
amongst the trial court and the parties regarding the jury’s request for
clarification of certain aspects of the trial court’s charge. See N.T. Trial,
8/7/08, at 68-70. After agreeing that an instruction on corroborated
testimony should be repeated to the jury, the parties debated whether a
separate charge re-explaining reasonable doubt would be appropriate. At this
point, the trial court stated: “Well, the lead charge, this does have reasonable
doubt in it.” Id. at 70. Appellant characterizes this language as an admission
by the trial court that the Commonwealth had not satisfied its burden of proof
with respect to the “lead” charge against Appellant. PCRA Petition, 6/28/16,
at 14. He asserts trial counsel was ineffective for not seeking dismissal.
We do not view this excerpt in the same light as Appellant. Plainly read,
the trial court’s statement was a straightforward expression of its belief that
an instruction regarding “reasonable doubt” appeared in a portion of its charge
to the jury. N.T. Trial, 8/7/08, at 68-70. We agree with counsel’s conclusion
that this claim lacks arguable merit. See Commonwealth v. Rivera, 816
A.2d 282, 292 (Pa.Super. 2003) (“It is axiomatic that trial counsel will not be
considered ineffective for failing to pursue meritless claims.”).
Appellant’s second allegation of ineffectiveness relates to statements
made by the Commonwealth’s attorney during closing remarks. Appellant’s
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daughter testified on his behalf and sought to cast doubt on the testimony of
R.B. During his closing argument, the prosecutor raised issues concerning
Appellant’s daughter’s credibility:
That’s what we ask people to do, to tell the truth about what they do and do not remember. But the corroboration in this case also comes from two other people that were there, [Appellant’s daughter] and [Appellant’s] statement. And there is no doubt that [Appellant’s daughter] loves her father. I don’t have to ask that question to know the answer. And there is no doubt that she wants to protect him. But there should also be no doubt at this point that she was not in the living room for long periods of time that evening. Because if she was, she wouldn’t have told the detective that she was on the computer and she came down a couple times to get drinks and to check on them.
N.T. Trial, 8/7/08, at 35-36. Based upon this passage, Appellant argued that
“the jury was essentially told that [Appellant’s daughter] would lie to protect
her father,” and he claims that trial counsel was ineffective for failing to object.
PCRA Petition, 6/28/16, at 14. We disagree.
“It is settled that it is improper for a prosecutor to express a personal
belief as the credibility of the defendant or other witnesses.”
Commonwealth v. Chmiel, 889 A.2d 501, 544 (Pa. 2005) (emphasis
added). “However, the prosecutor may comment on the credibility of
witnesses.” Id. “Further, a prosecutor is allowed to respond to defense
arguments with logical force and vigor.” Commonwealth v. Judy, 978 A.2d
1015, 1020 (Pa.Super. 2009).
As with his first claim of ineffectiveness, Appellant has taken factual
liberty. Contrary to his allegations, the prosecutor did not offer an
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inappropriate personal opinion regarding the testimony of the witness, but
properly drew the jury’s attention to the evidence presented at trial.6 Overall,
we find no merit in Appellant’s allegations and trial counsel cannot be deemed
ineffective for failing to pursue them. See Rivera, supra at 292.
Consequently, we agree with counsel’s conclusion that this claim lacks merit.
Having addressed the issues discussed in counsel’s Turner/Finley
filings, we now turn to the issues raised in Appellant’s pro se filings.
Appellant’s three pro se responses were filed, respectively, on April 20, June
8, and June 11, 2021. These submissions are disorganized and often
incomprehensible. In his April 20 response, Appellant sets forth a list of
issues, which include unexplained references to: (1) the “two witness rule”
concerning perjury allegations; (2) prosecutorial misconduct / double
jeopardy; (3) taint; (4) violations of Brady v. Maryland, 373 U.S. 83 (1963);
(5) judicial impropriety; (6) surmise and conjecture; and (7) layered
ineffective assistance of counsel. See Pro Se Response, 4/20/21, at 1. The
only substantive arguments offered by Appellant are handwritten notations in
the margins of additional photocopied pages. From the limited discussion
available, we discern that all of these claims are duplicative of those addressed
in counsel’s Turner/Finley filing save the “two witness rule” and “layered
ineffective assistance of counsel” claims.
6 See McAleer I, supra at 2 (“Appellant’s daughter also testified, indicating that she had not witnesses any of the events described by R.B.”).
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Appellant’s June 8 response does not address any claims concerning this
case, but includes documents pertaining to an administrative hearing over a
jailhouse altercation between Appellant and another inmate. See Pro Se
Response, 6/8/21, at 1-12. Appellant’s June 11 submission is a list of
Pennsylvania and federal cases that are individually categorized by issue. See
Pro Se Response, 6/11/21, at 2. From the limited discussion offered in this
document, the claims and citations are duplicative of those addressed above.
Accordingly, we discern that the only two “new” issues raised by
Appellant in these pro se filings implicate the two witness rule and an
undescribed layered ineffective assistance of counsel claim. See Pro Se
Response, 4/20/21, at 1. The “two witness rule” only pertains to prosecutions
for perjury, which is not at issue herein. See Commonwealth v. Johnson,
626 A.2d 514, 515 (Pa. 1993) (“The ‘two-witness rule,’ . . . required at
common law that the falsity element of a perjury conviction be supported
either by the direct testimony of two witnesses or by the direct testimony of
one witness and corroborating evidence.”) (citing 18 Pa.C.S § 4902(f)).
Furthermore, any claim concerning a violation of this rule could have been
raised by Appellant on direct appeal and is, therefore, waived. See 42 Pa.C.S.
9544(b). We find no merit in Appellant’s invocation of this legal principle.
Appellant’s assertion of layered ineffective assistance of counsel claim
contains no substantive discussion or citation to any alleged error by his
attorneys that would constitute ineffectiveness. Indeed, we are unable to
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determine which of Appellant’s prior or current attorneys are implicated by
this bare claim of error. See Pro Se Response, 4/20/21, at 1. Appellant’s
failure to articulate the precise nature of his claim for relief is fatal, as our
separate review of the certified record and transcripts has not uncovered any
layered ineffectiveness by prior counsel of record.
Based upon the foregoing, our independent review of the record
confirms counsel’s assessment that there is no merit in Appellant’s request for
PCRA relief. Therefore, we discern no error of law or abuse of discretion in
the PCRA court’s denial of his petition.
Petition of Stephen T. O’Hanlon, Esquire, to withdraw is granted. Order
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 8/12/21
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