J-S01032-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

  COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                      Appellee             :
                                           :
                v.                         :
                                           :
  THOMAS EARL BECKER                       :
                                           :
                      Appellant            :      No. 1051 MDA 2018


               Appeal from the PCRA Order Entered April 30, 2018
               In the Court of Common Pleas of Lancaster County
               Criminal Division at No.: CP-36-CR-0002306-2012


BEFORE:      PANELLA, P.J., MURRAY, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.:              FILED: JANUARY 29, 2019

         Thomas Earl Becker (Becker) appeals from an order of the Court of

Common Pleas of Lancaster County (PCRA court) dismissing his petition filed

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.

We affirm.

         We take the following relevant facts and procedural history from this

Court’s opinion filed on May 12, 2017, on direct appeal as well as our

independent review of the certified record. On May 15, 2013, a jury convicted

Becker of three counts each of indecent assault and corruption of minors, two

counts of aggravated indecent assault of a child, and one count of rape of a

child.      The conviction stemmed from Becker’s sexual abuse of his

granddaughter and two step-granddaughters at his home over an extended


*Retired Senior Judge assigned to the Superior Court.
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period of time. Becker was sentenced to an aggregate term of not less than

thirty-two    years    and    nine   months      nor   more   than   sixty-six   years’

imprisonment.      However, Becker’s sentence included mandatory minimum

terms for his convictions of rape of a child and aggravated indecent assault of

a child. We affirmed the judgment of sentence. (See Commonwealth v.

Becker, 108 A.3d 105 (Pa. Super. 2014) (unpublished memorandum)).

       Becker then filed a pro se PCRA petition, later amended by appointed

counsel, claiming that trial counsel was ineffective for failing to properly advise

him of his constitutional right to testify, as well as contending that the

mandatory minimum sentences were illegal in light of this Court’s decision in

Wolfe, infra.1 (See PCRA petition, 7/27/15, at 3; Amended PCRA petition,

10/23/15, at 2-5).       The trial court stayed the PCRA petition pending our

Supreme Court’s review of Wolfe.

       After Wolfe was affirmed by our Supreme Court, the Commonwealth

filed a response to the PCRA petition agreeing that Becker was entitled to

resentencing. However, the Commonwealth disputed that Becker was entitled

to relief on his ineffective assistance of counsel claim because an evidentiary

hearing was necessary to make out that claim. The Commonwealth went on

to state that Becker could immediately to proceed to re-sentencing by

foregoing his ineffective assistance of counsel claim. (See id.). Taking the
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1 See Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super. 2014), affirmed,
140 A.3d 651 (Pa. 2016) (holding mandatory minimum sentencing statute
relating to offenses against children unconstitutional).


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Commonwealth up on its suggestion, Becker proceeded to re-sentencing

which resulted in an aggregate term of not less than twenty-eight years and

six months nor more than fifty-eight years and eight months’ incarceration.

This Court affirmed the amended judgment of sentence on May 12, 2017, and

our Supreme Court denied further review on October 12, 2017.                  (See

Commonwealth v.            Becker,      2017   WL   2113399   (Pa.   Super.   2017)

(unpublished memorandum), appeal denied, 172 A.3d 1111 (Pa. 2017)).

       On November 27, 2017, Becker, acting pro se, filed the instant PCRA

petition, later amended by appointed counsel, asserting that trial counsel

provided ineffective assistance in connection with his right to testify at trial.

Following a hearing, the PCRA court dismissed his PCRA petition2 and this

appeal followed.3

____________________________________________


2Becker filed a timely, counseled concise statement of errors complained of
on appeal on June 25, 2018. See Pa.R.A.P. 1925(b). The trial court entered
a statement in lieu of a memorandum opinion on August 6, 2018. See
Pa.R.A.P. 1925(a).

3  The notice of appeal was docketed on June 4, 2018, while the deadline for
filing a timely notice of appeal was May 30, 2018, thirty days after the PCRA
court entered its order. See Pa.R.A.P. 903(a). However, it is well-settled
that, “in the interest of fairness, the prisoner mailbox rule provides that a pro
se prisoner’s document is deemed filed on the date he delivers it to prison
authorities for mailing.” Commonwealth v. Chambers, 35 A.3d 34, 38 (Pa.
Super. 2011), appeal denied, 46 A.3d 715 (Pa. 2012) (citation omitted).

      Here, Becker’s notice of appeal and proof of service are dated May 26,
2018, and the associated postage slip indicates that he placed the document
in the prison mailbox on May 30, 2018, which supports a conclusion that he
timely filed this appeal under the prisoner mailbox rule. Under these



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       Becker raises the following issue for our review: “Whether the [PCRA

court] erred in denying post-conviction relief where trial counsel failed to

appraise Becker of his absolute right to testify or otherwise interfered in his

client’s free exercise of his Constitutional right to testify on his own behalf at

trial?” (Becker’s Brief, at 4).4

       We cannot address the merits of that issue because “[t]he PCRA requires

that, in order for a petitioner to be eligible for relief, his or her claim cannot

have been ‘previously litigated or waived.’         42 Pa.C.S. § 9543(a)(3).”

Commonwealth v. Roane, 142 A.3d 79, 87 (Pa. Super. 2016). The PCRA

provides that an issue is previously litigated if “the highest appellate court in

____________________________________________


circumstances, we give Appellant the benefit of the doubt, and treat his appeal
as timely filed pursuant to the prisoner mailbox rule.

       We further note that, although Becker filed his notice of appeal pro se
while represented by counsel, that does not deprive us of jurisdiction to review
his claims. See Commonwealth v. Williams, 151 A.3d 621, 624 (Pa. Super.
2016) (holding that this Court is required to docket and honor pro se notices
of appeal filed by represented criminal defendants, despite prohibition on
hybrid representation).
       4 “On appeal from the denial of PCRA relief, our standard of review calls
for us to determine whether the ruling of the PCRA court is supported by the
record and free of legal error. The PCRA court’s credibility determinations,
when supported by the record, are binding on this Court; however, we apply
a de novo standard of review to the PCRA court’s legal conclusions. To be
eligible for relief under the PCRA, a defendant must plead and prove that his
conviction and/or sentence resulted from one of the circumstances delineated
by the PCRA. See 42 Pa.C.S. § 9543(a)(2) ([including the ineffective
assistance of counsel]). . . . Appellant has the burden to persuade this Court
that the PCRA court erred and that such error requires relief. [Also, i]t is well
settled that this Court may affirm a valid judgment or order for any reason
appearing as of record. . . .” Commonwealth v. Williams, 196 A.3d 1021,
1026-27 (Pa. 2018) (case citations and some quotation marks omitted).

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which the petitioner could have had review as a matter of right has ruled on

the merits of the issue;” or if “it has been raised and decided in a proceeding

collaterally attacking the conviction or sentence.” 42 Pa.C.S. § 9544(a)(2)-

(3). 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

post conviction proceeding.” Id. at § 9544(b) (emphasis added).

      Here, Becker argues the ineffective assistance of trial counsel based on

counsel’s alleged interference with his constitutional right to testify.   (See

Becker’s Brief, at 4, 9-12). However, as noted above, Becker raised the same

ineffectiveness claim in his previous PCRA petition, but waived the issue when

he proceeded with re-sentencing in accordance with Wolfe instead of further

pursuing his ineffectiveness claim. Accordingly, because Becker waived his

ineffectiveness claim, see also Roane, supra, at 87, we affirm the PCRA

court’s order denying his request for PCRA relief on this basis. See 42 Pa.C.S.

§ 9544(b).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 01/29/2019




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