J-S09028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                             Appellee

                       v.

RICARDO A. WHITING

                             Appellant                      No. 1568 EDA 2016


               Appeal from the PCRA Order entered April 20, 2016
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0009287-2009


BEFORE: SHOGAN, STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                                   FILED JUNE 30, 2017

        Appellant, Ricardo A. Whiting, appeals from the April 20, 2016 order

entered in the Court of Common Pleas of Philadelphia County, denying his

petition for collateral relief pursuant to the Post Conviction Relief Act

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

        Following   trial,   a   jury    convicted   Appellant   of   sexual   assault.1

Appellant, who had been designated a sexual violent predator previously,

was sentenced on September 14, 2012, to a term of 25 to 50 years in

prison.      On direct appeal, we affirmed his judgment of sentence.


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 3124.1.
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Commonwealth           v.    Whiting,      No.   2717   EDA   2012,   unpublished

memorandum (Pa. Super. filed August 8, 2013).2

       Appellant filed a pro se PCRA petition on November 4, 2013. Counsel

was appointed and filed an amended petition on August 5, 2014.                The

Commonwealth filed a motion to dismiss the petition on January 5, 2016.

On March 7, 2016, the PCRA court issued a notice in accordance with

Pa.R.Crim.P. 907, indicating its intent to dismiss the petition without a

hearing.    Appellant did not file a response.      On April 20, 2016, the PCRA

judge, who was also the trial judge, dismissed Appellant’s amended petition.

This timely appeal followed.         Both Appellant and the PCRA court complied

with Pa.R.A.P. 1925.

       Appellant asks us to consider three issues in this appeal:

       1. Did the lower court err in failing to grant PCRA relief where
          appellate counsel had failed to raise the issue of whether the
          Appellant had been denied his constitutional right to a speedy
          trial on direct appeal?

       2. Did the lower court err in failing to grant PCRA relief where
          trial counsel had failed to move for a mistrial where after (sic)
          one of the complaining witnesses had an outburst in the
          courtroom?

       3. Did the lower court err in failing to hold an evidentiary
          hearing prior to deciding the PCRA petition?
____________________________________________


2
 The three issues raised in Appellant’s direct appeal included weight of the
evidence, prosecutorial misconduct, and trial court error for permitting an
expert report to go out with the jury.




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Appellant’s Brief at 9 (some capitalization omitted).

       In Commonwealth v. Medina, 92 A.3d 1210 (Pa. Super. 2014) (en

banc), this Court reiterated:

       “On appeal from the denial of PCRA relief, our standard and
       scope of review is limited to determining whether the PCRA
       court’s findings are supported by the record and without legal
       error.” Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa.
       2013) (citation omitted). “[Our] scope of review is limited to the
       findings of the PCRA court and the evidence of record, viewed in
       the light most favorable to the prevailing party at the PCRA court
       level.” Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d 121,
       131 (2012) (citation omitted). “The PCRA court’s credibility
       determinations, when supported by the record, are binding on
       this Court.” Commonwealth v. Spotz, 610 Pa. 17, 18 A.3d
       244, 259 (2011) (citation omitted). “However, this Court applies
       a de novo standard of review to the PCRA court’s legal
       conclusions.” Id.

Id. at 1214-15. Further,

       “Counsel is presumed effective, and appellant bears the burden
       of proving otherwise.” Commonwealth v. Steele, 599 Pa. 341,
       961 A.2d 786, 796 (2008). The Pierce[3] test requires appellant
       to prove, with respect to counsel’s performance, that: “(1) the
       underlying claim has arguable merit; (2) no reasonable basis
       existed for counsel’s actions or failure to act; and (3) petitioner
       suffered prejudice as a result of counsel’s error such that there is
       a reasonable probability that the result of the proceeding would
       have been different absent such error.” [Commonwealth v.
       Lesko, 15 A.3d 345, 373–74 (Pa. 2011)] (citing Pierce, at
       975). Failure to prove any prong of this test will defeat an
       ineffectiveness claim. Commonwealth v. Basemore, 560 Pa.
       258, 744 A.2d 717, 738 n. 23 (2000). Counsel cannot be
       deemed ineffective for failing to raise a meritless claim.
       Commonwealth v. Jones, 590 Pa. 202, 912 A.2d 268, 278
       (2006).
____________________________________________


3
    Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).



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Commonwealth v. Philistin, 53 A.3d 1, 10 (Pa. 2012) (footnote, brackets,

and additional citation omitted).

      In his first issue as framed, Appellant complains that the PCRA court

erred by rejecting his claim of direct appeal counsel ineffectiveness for failing

to raise a violation of Pa.R.Crim.P. 600, relating to prompt trials. Appellant’s

Brief at 9.    However, he begins the argument portion of his brief by

contending the PCRA court erred in denying relief because trial counsel was

ineffective for failing to request dismissal of the case under Rule 600.

Appellant’s Brief at 12. We note that Appellant asserted in his Rule 1925(b)

statement that both appellate and trial counsel were ineffective with respect

to Rule 600. In light of that fact, we will address the issue in the context of

a layered ineffectiveness claim.

      In Commonwealth v. Pitts, 884 A.2d 251 (Pa. Super. 2005), this

Court explained:

      On more than one occasion, our Supreme Court has instructed
      that to establish [ineffective assistance] of appellate counsel
      based on the antecedent ineffectiveness of trial counsel, the
      petitioner must demonstrate: “(1) the underlying claim of trial
      counsel’s ineffectiveness has arguable merit; (2) appellate
      counsel had no reasonable basis for failing to pursue the claim;
      and (3) but for appellate counsel’s ineffectiveness, the result on
      direct appeal would have differed.” Commonwealth v. Moore,
      580 Pa. 279, 860 A.2d 88, 94 (2004); see also
      [Commonwealth v. Lopez, 854 A.2d 465, 468-69 (Pa. Super.
      2004), 854 A.2d at 468-69]; Commonwealth v. McGill, 574
      Pa. 574, 832 A.2d 1014, 1020-21 (2003); Commonwealth v.
      duPont, 860 A.2d 525, 531-32 (Pa. Super. 2004).

Id. at 253-54.

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     In Pitts, we quoted from duPont where we looked to our Supreme

Court’s decision in Lopez, which “explained that all three prongs of the

Pierce test must be pleaded and proved as to trial counsel by a PCRA

petitioner simply to establish that the layered ineffectiveness allegation

regarding trial counsel satisfies the arguable merit prong of Pierce as to

appellate counsel.” Id. at 254 (quoting DuPont, 860 A.2d at 532, in turn

citing Lopez, 854 A.2d at 468). “Assuming the PCRA petitioner carries this

burden, he then must plead and argue the second and third Pierce prongs

as to appellate counsel.” Id.

     With respect to the Rule 600 issue, Appellant’s amended PCRA petition

includes the following averments:

     [Appellant] was arrested on May 28, 2009 but the case was not
     commenced until September 13, 2011. Three separate motions
     to dismiss pursuant to Rule 600 were filed but the court never
     granted one. Trial counsel failed to raise the issue prior to trial
     and appellate counsel failed to raised the issue on appeal.

     [Appellant] was denied his rights to due process and effective
     counsel, under the laws and Constitutions of the United States
     and Pennsylvania, as [Appellant’s] trial counsel was ineffective
     for failing to request dismissal pursuant to Rule 600 and
     appellate counsel was ineffective for failing to raise the issue on
     appeal.

Appellant’s Amended PCRA Petition, 8/5/14, at ¶ 7(3)-(4).              In his

Memorandum of Law filed in support of his petition, Appellant repeats the

dates of arrest and commencement of trial, contends the only request for

continuance by Appellant accounted for approximately four months, and


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indicates that the record is devoid of any extension of the Rule 600 run date.

Memorandum of Law, 8/5/14, at 4-5 (unnumbered). Appellant then asserts

that his right to a speedy trial was violated under constitutional provisions

and the mandates of Rule 600. Id. at 5 (unnumbered). He contends that

appellate counsel’s failure to raise the issue on direct appeal constitutes

ineffective assistance of counsel. Id. Nowhere in the memorandum does he

argue that trial counsel was ineffective with respect to Rule 600.

      Addressing and rejecting Appellant’s Rule 600 claims, the PCRA court

explained:

      The defendant filed numerous pro se pretrial motions to dismiss
      based on various incongruous theories of why the
      Commonwealth had insufficient evidence to proceed and how he
      was being subjected to gross injustice. In three of them he cited
      then Rule 600(g), simply noted the number of days he had been
      held without bail, that the Commonwealth failed to exercise due
      diligence in bringing him to trial, and he was prejudiced because
      he had to stay in jail. Since none of them contained any
      indication of having merit, and the defendant was represented
      by counsel, they were ignored with one apparent exception
      [involving a Rule 600G motion that was noted to be withdrawn
      as “moot”].

      ....

      In the amended PCRA petition and the 1925(b) Statement,
      counsel merely cited Rule 600, without mentioning which of its
      provisions applied, the time periods involved, or any other
      applicable criteria, and claimed the defendant’s state and federal
      rights were violated because counsel was ineffective for failing to
      assert it. In none of the submissions did the defendant nor
      counsel attempt to demonstrate how the Commonwealth failed
      to exercise due diligence, the reasons for any delays and
      whether they were caused by it, the court or himself, or how he
      suffered and prejudice to his defense, and the court was not
      required to make an effort to discover any such bases for those

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       claims on his behalf. Nor did either mention the reason why the
       defendant was not released on bail prior to his trial.4

PCRA Court Opinion, 7/28/16, at 21-22.

       We conclude the PCRA court’s findings are supported by the record

and we find no error in its determination that Appellant’s Rule 600

ineffectiveness claim lacked merit. As the record reflects, Appellant failed to

meet his initial burden of pleading and proving trial counsel was ineffective

with regard to Rule 600. Having failed to meet that initial burden, Appellant

cannot succeed in a claim of layered ineffectiveness of counsel. Appellant’s

Rule 600 claim fails.

       In his second issue, Appellant complains that the PCRA court erred in

denying relief based on trial counsel’s failure to request a mistrial after one



____________________________________________


4
  The PCRA court later explained that the reason Appellant was not released
prior to trial was “evident from his history of sexual and other offenses as
summarized by the Sexual Offenders Assessment Board [“SOAB”]. It listed
his record in Philadelphia as nine previous arrests, under various aliases, for
sex related offenses for two of which there was no disposition available [and
one that] resulted in a guilty verdict.” PCRA Court Opinion, 7/28/16 at 27.
In addition he had a “significant history” of nonsexual crimes in several
jurisdictions resulting in thirty-two arrests and twelve convictions for, inter
alia, simple assault, DUI (drug related), and a Megan’s Law registration
violation. “Not surprisingly, [SOAB] concluded that his history represented a
very high risk for sex offense recidivism, thus rendering him eminently
qualified to the art. I, § 14 ‘no condition or combination of conditions can
ensure the safety of any person and the community. . .’ exception to Rule
600’s provisions.” Id. (citing Commonwealth v. Jones, 899 A.2d 353 (Pa.
Super. 2006)).




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of the complaining witnesses had an “outburst” in the courtroom.5                  In its

review of the issue, the PCRA court focused on Appellant’s failure to satisfy

the third prong of the Pierce test, i.e., that Appellant was prejudiced by the

outburst or the failure to request a mistrial. Again, the failure to prove any

prong of the Pierce test will defeat an ineffectiveness claim. Philistin, 53

A.3d at 10 (citing Basemore, 744 A.2d at 738 n. 23).

       Regarding     the    complaining        witness’   outburst,   the   PCRA   court

recognized that:

       Nowhere in the amended petition did counsel explain how that
       incident could have done the defendant’s case any harm, nor
       why it would not be more likely to have been interpreted to be
       exactly what it was, the result of [the witness] being justifiably
____________________________________________


5
  In the course of cross-examination, the complaining witness stated, while
leaving the witness stand, “Do you know what? I’m done . . . I don’t care.
Let him off then. Let him rape everybody else. I don’t care--” and also
commented, “I’m tired of you fucking niggers.” N.T., Trial, 9/15/11, at 91-
93. When the trial court learned of the latter remark, and noting that the
jury was comprised of eight African-Americans, the trial court elected to “poll
the jury about what they heard and whether they can still be fair.” Id. at
93. We agree with the PCRA court and the Commonwealth that Appellant
has mischaracterized both the jurors’ responses and the witness’ testimony
when asked if she could continue cross-examination. When asked if their
ability to be fair and impartial would be affected by what they heard, the
jurors and alternates all stated they would not be affected. The closest any
answers came to being affirmative responses were one juror’s and one
alternate’s responses of “I don’t think so,” which the PCRA court equated to
a “no” answer.        With regard to the trial court’s questioning of the
complaining witness to assess whether she was able to resume cross-
examination, the witness said she would “try” to answer defense counsel’s
questions, indicating she was willing to answer but simply did not have the
ability to answer some of the questions and was becoming frustrated. When
the trial court told her she should say, “I don’t remember or I can’t answer
that question,” the witness replied, “Okay.” Id. at 114-15.



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        frustrated at being an innocent rape victim have to stand being
        harassed by insignificant irrelevant and insidiously petty details
        for having the nerve to have reported a crime. Trial counsel did
        not move for a mistrial because the court would have certainly
        denied it, and would have been fully justified in doing so, since it
        was defense [counsel] that caused it.

PCRA Court Opinion, 7/28/16 at 7. The PCRA court also explained that the

jurors were asked individually about the outburst and whether it would affect

their ability to be fair and impartial and noted that none of the jurors

responded affirmatively. At the conclusion of the voir dire, which spanned

17 pages of the trial transcript, the court stated, “[b]ased on the comments

from all the jurors, I don’t see any legal grounds that would justify the

[c]ourt aborting the trial.” Id. at 11 (quoting N.T., Trial, 9/15/11, at 112-

13).6

        Here, the trial court determined a mistrial was not warranted and

acknowledged in its PCRA opinion that a mistrial request would have been

denied. Id. at 7. Clearly, Appellant cannot demonstrate he was prejudiced

by trial counsel’s failure to request a mistrial.     We find the PCRA court’s

findings in this regard are supported by the record and are without legal

error. Appellant’s second issue fails.

____________________________________________


6
  As our Supreme Court recognized, “whether and to what extent relief is
due from an incident such as an emotional outburst in the courtroom is
within the discretion of the trial court, and unless the unavoidable effect of
the incident is to deny the defendant a fair trial, there is no error.”
Commonwealth v. Philistin, 774 A.2d 741, 743 (Pa. 2001) (citations
omitted).



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      In his third issue, Appellant argues that the PCRA court erred in

dismissing his amended petition without an evidentiary hearing.            We

disagree. As the PCRA court noted, Appellant initially identified one of the

complaining witnesses as a prospective witness but did not provide any

information concerning the substance of her testimony as required by 42

Pa.C.S.A. § 9545(d)(1).      PCRA Court Opinion, 7/28/16, at 27.        In his

amended petition, Appellant listed only trial counsel and direct appeal

counsel as witnesses, noting he expected trial counsel would explain his

failure to seek a Rule 600 dismissal and his failure to seek a mistrial for the

witness outburst, while direct appeal counsel would explain his failure to

raise the Rule 600 issue.     See Amended PCRA Petition, 8/5/14, at 4-5

(unnumbered). Quoting this Court’s opinion in Commonwealth v. Jones,

942 A.2d 903 (Pa. Super. 2008), the PCRA court stated:

      There is no absolute right to an evidentiary hearing on a PCRA
      petition, and if the PCRA court can determine from the record
      that no genuine issues of material fact exist, then a hearing is
      not necessary.     All of appellant’s PCRA claims pertained to
      ineffective assistance of counsel. Since such a claim must meet
      all three prongs of the test for ineffectiveness, if the court can
      determine without an evidentiary hearing that one of the prongs
      cannot be met, then no purpose would be advanced by holding
      an evidentiary hearing.

Id. at 28 (quoting Jones, 942 A.2d at 906 (citation omitted)). The PCRA

court then explained:

      Here it is clear that [Appellant] has not met any of the Pierce
      test’s prongs: he completely failed to demonstrate that a motion
      for a mistrial or dismissal would have had arguable merit, and
      that, therefore, his counsel would have had some reasonable

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      basis to bring such motions, or that counsel’s alleged failure
      prejudiced him, not by his having to remain incarcerated, but by
      causing adverse effects on his ability to defend himself.

Id. We find no error in the PCRA court’s dismissal of Appellant’s amended

petition without first conducting an evidentiary hearing.   Appellant’s third

issue fails.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/30/2017




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