J-S09005-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                        :     IN THE SUPERIOR COURT OF
 PENNSYLVANIA,                          :          PENNSYLVANIA
                                        :
                     Appellee           :
                                        :
              v.                        :
                                        :
 ALIX BENJAMIN,                         :
                                        :        No. 722 MDA 2017
                     Appellant          :

                 Appeal from the PCRA Order March 27, 2017
            in the Court of Common Pleas of Lackawanna County
             Criminal Division at No.: CP-35-CR-0000656-2012


BEFORE:    GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                             FILED APRIL 27, 2018

      Appellant, Alix Benjamin, appeals from the PCRA court’s denial of his

first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. Specifically, he claims that he is entitled to relief

because of trial counsel’s ineffectiveness. We affirm the order denying relief

on the ground asserted, but vacate and remand regarding Appellant’s

designation as a sexually violent predator.

      We take the factual and procedural history in this matter from our

review of the certified record and the PCRA court’s June 22, 2017 and March

27, 2017 opinions.

            [Appellant] was charged with and convicted of involuntary
      deviate sexual intercourse, statutory sexual assault, aggravated
      indecent assault, indecent assault on a person less than [sixteen]
      years of age, unlawful contact with a minor and corruption of
      minors. These charges arose between 2007 and July of 2010[,]


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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      when [Appellant] sexually assaulted the victim over a period of
      time beginning when she was approximately [eleven] years old.

            A jury trial was held on September 5 and 6, 2012, and the
      jury found [Appellant] guilty of all charges. On December 18,
      2012, [Appellant] was found to be a sexually violent predator
      [(SVP)] and was sentenced to an aggregate sentence of [not less
      than thirteen nor more than twenty-seven] years [of
      incarceration].

(PCRA Court Opinion, 3/27/17, at 1-2).          Appellant’s SVP status carried a

lifetime registration requirement.

      Appellant filed post-sentence motions, which the court denied on April

5, 2013.     He timely appealed, and this Court affirmed the judgment of

sentence on November 7, 2013; our Supreme Court denied Appellant’s

petition   for   allowance   of   appeal   on   December    10,   2014.        (See

Commonwealth v. Benjamin, 91 A.3d 1276 (Pa. Super. 2013) (unpublished

memorandum), appeal denied, 104 A.3d 523 (Pa. 2014)).

      Appellant, counseled, filed his first PCRA petition on December 21, 2015,

asserting that he was entitled to relief because trial counsel was ineffective

for failing to object to the testimony of the Commonwealth’s expert, Sandra

Federo. The court conducted a hearing on Appellant’s petition on November

14, 2016. At the hearing,

             [Appellant’s] trial counsel, Donald Jensen, Esq., testified . .
      . that he believed that Ms. Federo’s testimony[,] that she could
      not confirm from her physical examination of the victim that
      sexual abuse took place[,] lent itself to the defense strategy that
      the victim fabricated these accusations. (See N.T. Hearing,
      11/14/16, at 57). He testified that he cross-examined Ms. Federo
      concerning the normal findings from the physical exam and that
      it advanced [Appellant’s] interests. (See id. at 57-58). He
      testified that although her testimony was that she could neither


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       confirm nor deny any assault with respect to the physical exam,
       he could not say that Ms. Federo’s opinion was based solely on
       what the victim told her. (See id. at 66). He testified that he did
       not object to her testimony because this testimony was within the
       witness’s ability to testify. (See id. at 67). He testified that he
       was familiar with the case law that says that it is impermissible
       for expert testimony to bolster a victim’s testimony, but that he
       did not think it was applicable here. (See id. at 67-68). He
       testified that in light of the fact that Ms. Federo was a
       Commonwealth witness, and that she was not able to confirm that
       there was an assault by [Appellant], that her testimony bolstered
       the defense’s position. (See id. at 68-69).

(PCRA Ct. Op., at 5) (record citation formatting provided).

       On March 27, 2017, the PCRA court denied Appellant’s petition. This

timely appeal followed.1

       Appellant raises one question on appeal: “[Whether] the PCRA court

err[ed] when it denied [Appellant’s] Amended PCRA petition that alleged trial

counsel’s ineffectiveness for failing to object to expert testimony that

improperly bolstered the complainant’s testimony?” (Appellant’s Brief, at 2).

       Our well-settled standard and scope of review for the denial of a PCRA

petition is as follows:

       We review the denial of PCRA relief for a determination of whether
       the PCRA court’s findings are supported by the record and free of
       legal error. A petitioner is eligible for PCRA relief only when he
       proves by a preponderance of the evidence that his conviction or
       sentence resulted from one or more of the circumstances
       delineated in 42 Pa.C.S.[A.] § 9543(a)(2).



____________________________________________


1 Pursuant to the PCRA court’s order, Appellant filed a concise statement of
errors complained of on appeal on June 8, 2017. The PCRA court entered its
opinion on June 22, 2017, in which it relied in part on its March 27, 2017
opinion. See Pa.R.A.P. 1925.

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Commonwealth v. Natividad, 938 A.2d 310, 320 (Pa. 2007) (citation

omitted).

      To be eligible for relief under the PCRA, an appellant must prove that

his conviction resulted from one of several enumerated events, including the

ineffective assistance of counsel. See 42 Pa.C.S.A. § 9543(a)(2).

             It is well-established that counsel is presumed to have
      provided effective representation unless the PCRA petitioner
      pleads and proves all of the following: (1) the underlying legal
      claim is of arguable merit; (2) counsel’s action or inaction lacked
      any objectively reasonable basis designed to effectuate his client’s
      interest; and (3) prejudice, to the effect that there was a
      reasonable probability of a different outcome if not for counsel’s
      error. See Commonwealth v. Pierce, 527 A.2d 973, 975–76
      (Pa. 1987); Strickland v. Washington, 466 U.S. 668 (1984).
      The PCRA court may deny an ineffectiveness claim if “the
      petitioner’s evidence fails to meet a single one of these prongs.”
      Commonwealth v. Basemore, 744 A.2d 717, 738 n.23 (Pa.
      2000). . . . Because courts must presume that counsel was
      effective, it is the petitioner’s burden to prove otherwise. See
      Pierce, supra; Commonwealth v. Holloway, 739 A.2d 1039,
      1044 (Pa. 1999). . . .

Natividad,    supra    at   321   (citation   formatting   provided);   see   also

Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 2009) (“[An appellant’s]

failure to satisfy any prong of the ineffectiveness test requires rejection of the

claim of ineffectiveness.”) (citation omitted).

      In the instant case, Appellant claims that trial counsel was ineffective

for failing to object to the testimony of the Commonwealth’s expert witness,

Ms. Federo. (See Appellant’s Brief, at 7-13). He argues that the expert, Ms.

Federo, improperly vouched for the victim-witness when she opined that the

victim was sexually assaulted by an adult male. Appellant claims that counsel


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was ineffective for failing to object to this testimony, and that he was

prejudiced by this testimony, which bolstered the victim’s testimony. (See

id. at 12-13). We disagree.

     Here, the PCRA court concluded that

            Ms. Federo testified at trial that the physical examination of
     the victim here was normal, but that based on the history provided
     by the victim, the physical exam and her training, education and
     experience, she concluded that the victim was sexually assaulted
     over a period of time by an adult male. She testified that it [] is
     normal to not see physical evidence of vaginal penetration in a
     physical exam. She was not asked whether she believed the
     victim and did not testify as to the victim’s truthfulness.
     Moreover, [the PCRA] court instructed the jury that[,] although
     Ms. Federo was qualified as an expert, this does not mean that
     they have to accept her testimony and that they had to evaluate
     it just as they would any other witness and consider whether or
     not they find the testimony to be credible. Thus, contrary to
     [Appellant’s] assertions, Ms. Federo’s testimony was not
     objectionable and trial counsel was not ineffective in failing to
     object to it. [Appellant’s] assertion that the jury must have
     concluded that Ms. Federo believed the victim, and that she thus
     unlawfully bolstered the victim’s testimony and that counsel was
     ineffective for not objecting to her testimony on this basis is not a
     valid claim and not what the law requires. Counsel will not be
     deemed ineffective for failing to raise a baseless claim. [See]
     Commonwealth v. Reyes, 870 A.2d 888 (Pa. 2005).

(PCRA Ct. Op., at 6) (record citations omitted; emphasis added).

     Upon review, we conclude that the PCRA court’s decision is supported

by the record and free of legal error. See Natividad, supra at 320. Trial

counsel’s decision not to object to Ms. Federo’s testimony had an objectively

reasonable basis. Counsel testified that he did not believe that Ms. Federo’s

testimony bolstered the victim’s credibility, but rather thought that her

testimony aided his overall strategy because she conceded that the physical


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exam did not confirm an assault. (See N.T. Hearing, at 57-58).       Therefore,

Appellant has not met his burden to prove that trial counsel was ineffective

for failing to object to Ms. Federo’s testimony.2 Accordingly, Appellant’s claim

does not merit relief.

       However, based on recent case law, we are constrained to review sua

sponte the legality of Appellant’s sentence, with respect his SVP status and

registration requirements. See Commonwealth v. Butler, 173 A.3d 1212

(Pa. Super. 2017) (addressing legality of SVP status sua sponte).

       In Butler, this Court applied our Supreme Court’s decision in

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), and, in light of

Apprendi and Alleyne,3 found that 42 Pa.C.S.A. § 9799.24(e)(3) is

unconstitutional.4     See Butler, supra at 1218. On February 21, 2018, the

Pennsylvania General Assembly enacted HB631, addressing several issues

raised by Muniz. See Act. No. 2018–10, H.B. No. 631. In doing so, the

legislature added section 9799.55, which states:

____________________________________________


2 Appellant argues that based on Commonwealth v. Maconeghy, 171 A.3d
707, 712 (Pa. 2017), the testimony was improper and trial counsel did not
have a reasonable basis for not objecting to it. However, the Maconeghy
decision was rendered on October 18, 2017, nearly five years after the trial in
this matter. Thus, counsel was not ineffective for failing to raise an objection
based on a case that had not yet been decided.

3Apprendi v. New Jersey, 530 U.S. 466 (2000); Alleyne v. United States,
570 U.S. 99 (2013).

4Section 9799.24(e)(3) stated that at a hearing, prior to sentencing, the trial
court should determine, based on clear and convincing evidence, whether the
defendant was an SVP. See 42 Pa.C.S.A. § 9799.24(e)(3).

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      (b) Lifetime registration.—The following individuals shall be
      subject to lifetime registration:

                                  *    *    *

         (2) Individuals convicted:

            (i)(A) in this Commonwealth of the following offenses,
            if committed on or after April 22, 1996, but before
            December 20, 2012:

            18 Pa.C.S. § 3121 (relating to rape);

            18 Pa.C.S. § 3123 (relating to involuntary deviate
            sexual intercourse);

            18 Pa.C.S. § 3124.1 (relating to sexual assault);

            18 Pa.C.S. § 3125 (relating to aggravated indecent
            assault); or

            18 Pa.C.S. § 4302 (relating to incest) when the victim
            is under 12 years of age; . . .

                                  *    *    *

42 Pa.C.S.A. § 9799.55(b)(2)(i)(A).

      In the instant case, on December 18, 2012, the sentencing court

determined by clear and convincing evidence that, pursuant to 42 Pa.C.S.A. §

9799.24(e), Appellant was a SVP and designated him as such.           The court

issued notice to Appellant that he is required to register as a sex offender with

the Pennsylvania State Police for life. See Pa.C.S.A. § 9799.23. Because the

Butler Court deemed section 9799.24(e) unconstitutional, the portion of

Appellant’s sentence designating him a SVP constitutes is illegal, and we are

constrained to vacate it. See Butler, supra at 1218.

      However, pursuant to § 9799.55(b)(2)(i)(A), Appellant is nevertheless

subject to lifetime registration because a jury convicted him of committing the


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following offenses on or after April 22, 1996, but before December 20, 20125:

involuntary deviate sexual intercourse (IDSI)—person less than sixteen years

of age; statutory sexual assault; aggravated indecent sexual assault—

complainant less than sixteen years of age; indecent assault—person less than

sixteen years of age; unlawful conduct with a minor—sexual offenses; and

corruption of minors.6         Appellant’s convictions of IDSI and aggravated

indecent assault both subject him to lifetime registration. See 42 Pa.C.S.A. §

9799.55(b)(2)(i)(A).

        Accordingly, we affirm the order denying PCRA relief as to Appellant’s

ineffective assistance of counsel claim. However, we vacate Appellant’s SVP

designation, and remand to the trial court to make a finding beyond a

reasonable doubt that Appellant is an SVP and issue notice to him regarding

his lifetime registration requirement pursuant to 42 Pa.C.S.A. § 9799.55.

        Order affirmed.       SVP designation vacated.   Case remanded with

instructions, jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 04/27/18
____________________________________________


5   Appellant committed the instant offenses between July 2007 and July 2010.

6 See 18 Pa.C.S.A. §§ 3123(a)(7), 3122.1, 3125(a)(8), 3126(a)(8),
6318(a)(1), and 6301(a)(1), respectively.

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