Com. v. Tunsil, B.

• Court: Superior Court of Pennsylvania
• Decided: February 26, 2021
• Docket: 942 EDA 2019
• Status: Unpublished

Opinion

J-S19028-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BARRETT TUNSIL : : Appellant : No. 942 EDA 2019

Appeal from the PCRA Order Entered February 26, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008448-2013

BEFORE: BOWES, J., McCAFFERY, J., and MUSMANNO, J.

MEMORANDUM BY McCAFFERY, J.: FILED: FEBRUARY 26, 2021

Barrett Tunsil (Appellant) appeals pro se from the order entered in the

Philadelphia County Court of Common Pleas, denying his timely first Post

Conviction Relief Act1 (PCRA) petition. After careful review, we conclude

Appellant’s issues are waived for failure to develop meaningful argument with

citation to or discussion of legal authority. Thus, we affirm the order. We also

remand for the PCRA court to notify Appellant of his registration requirements

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142 Pa.C.S. §§ 9541-9546. Appellant purported to appeal from the “March 15, 2019,” order denying his PCRA petition. However, the underlying order was filed on February 26, 2019. We have amended the caption accordingly. J-S19028-20

under the Pennsylvania Sex Offender Registration and Notification Act2

(SORNA).

This Court previously summarized the trial evidence in this matter as

follows: when the victim was eight years old, she lived with her mother, sister,

Appellant — whom she referred to as her stepdad — and Appellant’s daughter.

From approximately 2009 to 2010,3 Appellant sexually abused the victim

by pulling her clothes down[,] inserting his finger into her vagina and sucking on her breast. [Appellant] threatened to sell [the victim] to drug dealers or feed her to the rats if she told anyone. [The victim] estimated that she was sexually assaulted more than five (5) times between the age of eight (8) and nine (9) while residing in [Appellant’s] home.

[Appellant also] punish[ed] [the victim] by pulling down her pants and spanking her with his bare hand. He would lock her in the basement in the dark prompting her to scream and kick on the door because she was so frightened. It wasn’t until [the victim] was removed from the home and placed with a foster family that she was comfortable enough to reveal the depravity she had endured.

[Appellant] testified and denied ever touching or abusing [the victim].

2 42 Pa.C.S. §§ 9799.10 to 9799.75.

3The victim was born in 2001, and the abuse occurred when she was eight to nine years old. See N.T. Trial, 10/2/14, at 5, 22. See also Criminal Complaint, 6/19/12, at 1 (alleging date of offense as January 1, 2011).

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Commonwealth v. Tunsil, 1990 EDA 2016 (unpub. memo. at 2) (Pa. Super.

Dec. 8, 2017) (citation omitted) (direct appeal), appeal denied, 8 EAL 2018

(Pa. May 21, 2018).

Following a jury trial, Appellant was found guilty, on October 6, 2014,

of aggravated indecent assault of a child, indecent assault of a person less

than 13, endangering the welfare of a child (EWOC), corruption of minors, and

unlawful contact with a minor.4 On April 25, 2016, the trial court found

Appellant was a sexually violent predator (SVP) under SORNA. See Tunsil,

1990 EDA 2016 (unpub. memo. at 30-31). On that same day, the court also

sentenced Appellant to an aggregate term of 25 to 54 years’ imprisonment.5

Id. at 31.

Appellant took a direct appeal, and, on December 8, 2017, this Court

affirmed his convictions and sentences. However, this Court reversed the trial

court’s finding that Appellant was an SVP, pursuant to the then-recent

Superior Court decision in Commonwealth v. Butler, 173 A.3d 1212 (Pa.

4 18 Pa.C.S. § 3125(b), 3126(a)(7), 4304(a)(1), 6301(a)(1)(i), 6318(a)(1).

5 Specifically, the trial court imposed: (1) consecutive terms of nine to 20 years’ imprisonment for aggravated indecent assault and unlawful contact with a minor; (2) a consecutive term of 3.5 to seven years’ imprisonment for EWOC; (3) a consecutive term of 2.5 to five years’ imprisonment for corruption of minors; and (4) a consecutive term of one to two years’ imprisonment for indecent assault.

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Super. 2017) (Butler I), rev’d, 226 A.3d 972 (Pa. 2020) (Butler II).6 This

Court thus remanded for the trial court to issue appropriate notice under 42

Pa.C.S. § 9799.23 (“Court notification and classification requirements”) of

Appellant’s SORNA registration requirements. Appellant sought allowance of

appeal with our Supreme Court, which was denied on May 21, 2018.

Meanwhile, on December 21, 2017, the trial court conducted a hearing

and vacated Appellant’s “SVP designation and life registration.” PCRA Ct. Op.,

8/29/19, at 1; N.T., 12/21/17, at 11-12. The parties agreed no further

registration requirements applied to Appellant because of “recent case law”

prohibiting “retroactive application.”7 N.T., 12/21/17, at 10-12. The court

6 In Butler I, this Court concluded: “[S]ection 9799.24(e)(3) of SORNA violates the federal and state constitutions because it increases the criminal penalty to which a defendant is exposed without the chosen fact-finder making the necessary factual findings beyond a reasonable doubt.” Butler I, 173 A.3d at 1218. See 42 Pa.C.S. § 9799.24(e)(3) (“At [an SVP hearing], the court shall determine whether the Commonwealth has proved by clear and convincing evidence that the individual is a sexually violent predator.”).

In a decision issued after Appellant’s PCRA petition in this case was filed, our Supreme Court reversed this Court’s decision. The Court held the registration and notification provisions applicable to SVPs “do not constitute criminal punishment and therefore the procedure for designating individuals as SVPs under Section 9799.24(e)(3) is not subject to the requirements of Apprendi and Alleyne and remains constitutionally permissible.” Butler II, 226 A.3d at 976. See Alleyne v. United States, 570 U.S. 99 (2013); Apprendi v. New Jersey, 530 U.S. 466 (2000).

7Although no particular decisional authority was cited, we surmise the parties may have been referring to Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) (plurality) (SORNA requirements have punitive effect and retroactive application constitutes ex post facto violation) (discussed infra).

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thus did not advise Appellant of any further registration requirements. See

id. at 11-12.

On July 23, 2018, Appellant filed a timely, pro se first PCRA petition.8

He raised a litany of broad or vague challenges to trial evidentiary rulings, the

alleged denial of a fair and impartial trial, and the alleged collusion between

the trial court, prosecutor, and his trial defense attorney to “orchestrate [his]

conviction/sentence.” Appellant’s Motion for Post Conviction Collateral Relief,

7/23/18, at 3-4. The petition also averred trial counsel “frequently failed to

adequately represent [Appellant] professionally, legally, morally.” Id. at 5.

The PCRA court appointed counsel to represent Appellant; that attorney,

however, was permitted to withdraw due to his acceptance of a new law

position. James Marsh, Esquire, was subsequently appointed to represent

Appellant. He filed a Turner/Finley9 “no-merit” letter and petition to

withdraw on December 18, 2018. On the same day, the PCRA court gave

Pa.R.Crim.P. 907 notice of intent to dismiss the PCRA petition without a

8 As stated above, the Pennsylvania Supreme Court denied Appellant’s petition for allowance of appeal on May 21, 2018. For PCRA purposes, his judgment of sentence became final 90 days thereafter, on Monday, August 20, 2018, when the period for seeking certiorari with the United States Supreme Court expired. See 42 Pa.C.S. § 9545(b)(3); Sup. Ct. R. 13. Appellant then generally had one year, or until August 20, 2019, to file a PCRA petition. See 42 Pa.C.S. § 9545(b)(1).

9Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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hearing. On February 26, 2019, the court issued the underlying order denying

Appellant’s PCRA petition, and permitting Attorney Marsh to withdraw.

Appellant filed a timely pro se notice of appeal on March 15, 2019. On

May 2, 2019, the PCRA court ordered Appellant to file a Pa.R.A.P. 1925(b)

statement within 21 days. The order properly directed Appellant to both file

a statement of record and serve a copy on the court, and stated “[a]ny issue

not properly included in a timely filed and properly served 1925(b) Statement

shall be deemed waived.” Order, 5/2/19. See Pa.R.A.P. 1925(b)(1), (3)(iv),

(4)(vii); Commonwealth v. Chester, 163 A.3d 470, 472 (Pa. Super. 2017)

(“[A]n appellant’s failure to comply with a trial court’s Rule 1925(b) Order

results in a waiver of all issues on appeal.”). The corresponding docket entry

for the court’s order, however, did not identify on whom the order was served,

nor the manner and date of service, as required by Pa.R.Crim.P. 114. See

Pa.R.Crim.P. 114(C)(2)(c) (“The docket entries shall contain . . . the date of

service of the order or court notice.”).

The PCRA court’s opinion states Appellant “filed” a Rule 1925(b)

statement on May 22, 2019. PCRA Ct. Op. at 2. The trial docket, however,

does not include any entry for such a filing, and upon informal inquiry by this

Court, the trial court clerk confirmed it did not have any Rule 1925(b)

statement from Appellant. Nevertheless, the PCRA court has provided a copy

of the statement that it received; the face of the statement bears the stamp,

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“Received in Chambers, May 22, 2019, Hon. Gwendolyn Bright.” Appellant’s

Concise Statement of the Errors: Cover” (all-capitalization removed).

After careful review of the record before us, we decline to find

Appellant’s issues waived for failure to file a Rule 1925(b) statement with the

trial court clerk of courts. See Chester, 163 A.3d at 472 (declining to find

waiver where the trial docket failed to indicate the date of service of the Rule

1925(b) order, in violation of Pa.R.Crim.P. 114(C)(2)).

Nevertheless, we conclude Appellant’s issues are waived for failure to

develop them or cite the record or any legal authority. See Commonwealth’s

Brief at 7 (arguing same). By way of background, we note that three days

prior to trial, the trial court granted Appellant’s request to proceed pro se, and

directed that trial counsel serve as back-up counsel at trial. N.T., 9/29/14, at

19-20. However, trial counsel conducted the examination of witnesses and

gave the closing argument.10

Appellant’s pro se, handwritten brief spans six pages and, like his PCRA

petition, presents a wide-ranging list of broad or vague claims. For example,

Appellant avers the following: (1) he never received a subpoena nor a trial

date, and instead, on the day of trial, he was simply “suddenly awaken[ed] in

the prison” and told “to ‘fill the bus;’” (2) “to ‘hide and cover up’ the egregious

10 The opening arguments are not included in the trial transcripts transmitted to this Court.

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and criminal behaviors/conduct by [the trial court] and other perpetrators in

their attempts to deny [Appellant] a fair trial, [the trial court] ordered . . . the

original trial transcripts to be [voided] and a[n] incorrect/false 2nd transcript

[be] produced;” (3) trial counsel refused his telephone calls for more than 20

months, and “‘refused’ to investigate-interview-check records-subpoena

witnesses;” (4) “in (approxl.) May 2012[, Appellant] was ‘illegally’ declared

‘mentally incompetent’ to stand trial;” and (5) the trial court, prosecutor, trial

counsel, and county jail administrators “produced and manufactured

documents/medical records.” Appellant’s Brief at 1-3. Appellant does not

discuss nor cite any legal authority, and to the extent his brief raises claims

of trial counsel’s ineffectiveness, he does not present any argument his

underlying claim has arguable merit, there was no reasonable basis for trial

counsel’s actions, or he suffered prejudice. See Commonwealth v. Treiber,

121 A.3d 435, 445 (Pa. 2015) (elements of ineffective assistance of counsel

claim).

We conclude Appellant’s failure to develop a meaningful argument with

citation to relevant, legal authority on any claim waives them on appeal. See

Commonwealth v. Martz, 232 A.3d 801, 811 (Pa. Super. 2020). This Court

has stated:

[Pennsylvania Rule of Appellate Procedure 2119] state[s] unequivocally that each question an appellant raises is to be supported by discussion and analysis of pertinent authority. Appellate arguments which fail to adhere to these rules may be considered waived, and arguments which are not appropriately developed are waived. Arguments not appropriately developed

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include those where the party has failed to cite any authority in support of a contention. This Court will not act as counsel and will not develop arguments on behalf of an appellant. [M]ere issue spotting without analysis or legal citation to support an assertion precludes our appellate review of [a] matter.

Id. (citation omitted). Accordingly, we affirm the order denying Appellant’s

PCRA petition.

At this juncture, we sua sponte address Appellant’s SORNA registration

requirements. As stated above, in this Court’s December 8, 2017, direct

appeal memorandum, we reversed Appellant’s SVP designation. Tunsil, 1990

EDA 2016 at 30-31. On remand, the trial court conducted a hearing on

December 21, 2017, at which the parties agreed that pursuant to unspecified

“recent case law,” the retroactive application of “Megan’s Law II” was

unconstitutional. See N.T., 12/21/17, at 10-12. We note that six months

earlier, the Pennsylvania Supreme Court issued a decision in Muniz, holding

the retroactive application of SORNA violated the ex post factor clauses of the

federal and Pennsylvania Constitutions. See Muniz, 164 A.3d at 1193

(plurality).

Since Appellant’s December 21, 2017, SORNA hearing, however, our

legislature has amended SORNA:

In response to Muniz and Butler I, the General Assembly enacted Act 10 . . . Act 10 split SORNA, which was previously designated in the Sentencing Code as Subchapter H into two subchapters. Revised Subchapter H[11] applies to crimes committed on or after ____________________________________________

11 42 Pa.C.S. §§ 9799.10 to 9799.42.

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December 20, 2012, whereas Subchapter I[12] applies to crimes committed after April 22, 1996, but before December 20, 2012. In essence, Revised Subchapter H retained many of the provisions of SORNA, while Subchapter I imposed arguably less onerous requirements on those who committed offenses prior to December 20, 2012, in an attempt to address this Court’s conclusion in Muniz that application of the original provisions of SORNA to these offenders constituted an ex post facto violation.

Commonwealth v. Torsilieri, 232 A.3d 567, 580-81 (Pa. 2020) (emphases

added and footnote omitted).

Based on the fact Appellant committed the underlying offenses in

approximately 2009 and 2010 — before December 20, 2012 — he is subject

to Subchapter I. See 42 Pa.C.S. § 9799.54(a) (“The following individuals

shall register . . . .”), (b) (“Neither failure on the part of the Pennsylvania

State Police to send nor failure of an individual to receive notice or information

under this paragraph shall relieve the individual of the requirements of this

subchapter.”); Commonwealth v. Lacombe, 234 A.3d 602, 626-27 (Pa.

2020) (Subchapter I does not constitute criminal punishment and ex post

facto challenges are meritless). Accordingly, upon remand of the record, the

PCRA court shall notify Appellant of his registration requirements.

Order affirmed. Case remanded with instructions. Jurisdiction

relinquished.

12 42 Pa.C.S. §§ 9799.51 to 9799.75.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/26/21

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