J. S67033/14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,                :    IN THE SUPERIOR COURT OF
                                             :         PENNSYLVANIA
                          Appellee           :
                                             :
                    v.                       :
                                             :
                                             :
DAVID CLAPPER,                               :
                                             :
                          Appellant          :    No. 716 WDA 2014


                  Appeal from the PCRA Order March 27, 2014
               In the Court of Common Pleas of Allegheny County
               Criminal Division No(s).: CP-02-CR-0013172-2009

BEFORE: DONOHUE, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED DECEMBER 18, 2014

        Pro se Appellant, David Clapper, appeals from the order entered in the

Allegheny County Court of Common Pleas dismissing his first Post Conviction

Relief Act1 (“PCRA”) petition.       He challenges the sufficiency of his PCRA

counsel’s “no-merit letter,” claims trial counsel should have introduced an

exculpatory videotape into evidence, maintains trial counsel erred by not

objecting to the absence of a guilty plea colloquy, and asserts his

constitutional rights were violated because the victim perjured herself. We




*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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vacate and remand for a hearing on whether trial counsel was ineffective

with respect to the absence of a guilty plea colloquy.2

      We state the facts as set forth by a prior panel of this Court:

         On August 9, 2009, Appellant was arrested in connection
         with a sexual assault that occurred the previous evening.
         The victim reported that, at approximately [9] p.m.[3] on
         the evening of August 8, 2009, Appellant approached her
         in an alleyway, engaged her in conversation, and then
         grabbed her. Appellant placed his hands down her pants
         and penetrated her vagina with his fingers before she was
         able to break his embrace and run away.

Commonwealth v. Clapper, 849 WDA 2012, at 1-2 (Pa. Super. Nov. 27,

2012) (memorandum slip op.) (“Clapper I”).

      During the assault, the victim pressed the “redial” button on her phone

at 9:07 p.m., 9:08 p.m., 9:09 p.m., 9:10 p.m., 9:11 p.m., and 9:12 p.m.

N.T. Trial, 11/4/11, at 16-17; Ex. C. to Appellant’s PCRA Pet., 8/2/13.

Meanwhile, the victim noticed a black sports car drive up to the alley and a

male driver exit the vehicle and enter a nearby store while the female

passenger stayed in the vehicle.     N.T. Trial at 18.    After the male driver

returned, the female passenger observed the assault and exited the vehicle,



2
  On remand, Appellant is entitled to appointed counsel.          See
Commonwealth v. Torres, 101 A.3d 781 (Pa. 2014) (order) (per curiam).
3
  The Clapper I Court stated the assault occurred at 10:00 p.m. We note
that the victim’s trial testimony, police criminal complaint, and police
investigation report state that the assault occurred shortly after 9:00 p.m.
See N.T. Trial, 11/4/11, at 15; Police Crim. Compl., 8/9/09, at 1; Ex. C. to
Appellant’s PCRA Pet., 8/2/13.




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at which time the victim escaped.4        Id.   The victim then found a police

officer at 9:15 p.m. Ex. C. to Appellant’s PCRA Pet., 8/2/13. Appellant was

eventually apprehended and charged.

        Prior to trial, Appellant moved to have the Commonwealth produce a

surveillance video.     The video is not a part of the certified record, but

attached to Appellant’s PCRA petition was an exhibit purporting to be a

photocopy of a police report describing the video:

           On 08/14/09, [police] obtained the surveillance video that
           was recorded from [the bar near the alleyway in question.]
           The video was recorded on a VHS tape and shows the view
           of the alley . . . . The date stamped on the video is
           09/08/09 [sic5] and the video shows the time period
           between 21:01:26 hours and 21:35:43 hours. The quality
           of the video is poor and it appears as if something white
           and stringy, such as spider webs, is covering the camera’s
           view. The following can be seen on the tape:

           21:04:05- Two dark colored vehicles drive one after the
           other down the alley . . . .

           21:11:55- A dark colored vehicle drives down the alley . .
           . and parks in the alleyway on the side closest to [the] bar.
           A person of unknown gender, wearing all light colored
           clothing and a light colored hat exits the passenger side of
           the vehicle. As the person exits the vehicle, another
           person of unknown gender walks fast down the alley . . . .

           21:24:08- A dark colored vehicle drives down the alley . .
           ..




4
    The driver and passenger were never identified.
5
    We presume this was intended to state “08/08/09.”




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         21:26:25- Two people of unknown gender walk down the
         alley . . . .

         The video will be retained by detectives as evidence.

Ex. C. to Appellant’s PCRA Pet., 8/2/13.6 As set forth below, the PCRA court

stated that it had previously ruled the videotape was not exculpatory

evidence. PCRA Ct. Op., 7/28/14, at 3. The docket and record, however, do

not reflect a ruling on Appellant’s discovery motion.7

         On November 4, 2011, Appellant waived his right to a jury
         trial and proceeded to a bench trial before the Honorable
         Joseph K. Williams, III.      Prior to the presentation of
         witnesses, Appellant stipulated that he was guilty of
         indecent assault and simple assault.[8]         Thereafter,
         Appellant proceeded to trial on the remaining charges of
         aggravated indecent assault and unlawful restraint. At the
         close of trial, on November 4, 2011, the trial court found
         Appellant guilty of aggravated indecent assault, but not
         guilty of unlawful restraint.

           On January 12, 2012, the trial court sentenced
         Appellant to an aggregate sentence of two to four years’
         imprisonment, to be followed by seven years’ probation.




6
  We reproduced the typewritten portion of the document only.          The
handwritten markings and notations do not appear to be part of the original
document.
7
  The court may or may not have rendered an oral ruling on Appellant’s
motion at a pretrial status conference, but the conference was not
transcribed. Order, 8/17/11 (scheduling status conference for September 7,
2011).
8
  Appellant did not stipulate to the facts underlying his guilty pleas. Cf.
Commonwealth v. Tate, 410 A.2d 751 (Pa. 1980) (resolving case in which
defendant stipulated to facts but entered plea of not guilty).




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Clapper I, at 2. At trial, there was no reference to a videotape. The court

did not conduct an oral colloquy of Appellant with respect to the stipulated

guilty pleas and the record does not include a written colloquy.

      On direct appeal, Appellant challenged solely the weight of the

evidence. Id. at 3. The Clapper I Court affirmed, and our Supreme Court

denied Appellant’s petition for allowance of appeal on May 29, 2013.

      Appellant timely filed the instant PCRA petition on August 9, 2013,

which raised five issues. He first alleged that the court gave an erroneous

jury waiver colloquy. Second, Appellant claimed counsel was ineffective for

not calling an author of a nurse’s report, which would have purportedly

established the victim’s perjury. Third, he suggested the court erred by not

conducting a pre-sentence investigation. Fourth, Appellant maintained the

judge was racially biased against him.     Lastly, he opined trial counsel was

ineffective by not introducing an exculpatory videotape.

      The PCRA court appointed counsel, who filed a petition to withdraw

pursuant to Turner/Finley9 on February 4, 2014. PCRA counsel described

the video as follows:

         Undersigned [PCRA counsel] had an opportunity to review
         the tape and finds it to contain no helpful information. The
         tape is of poor quality and undersigned was unable to
         identify any actors in the video. There does not appear to
         be any footage of the victim or [Appellant] on the tape.

9
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1998); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).




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            [Appellant] argues that this should exonerate him or prove
            the victim a perjurer. The supplemental report attached to
            [Appellant’s PCRA] petition as Exhibit “C” notes that 2
            people of unknown gender walk down the alley at 21:26 on
            the video. According to Initial Investigative Report also
            attached at Exhibit “C” to [Appellant’s PCRA] petition, the
            victim approached [the police] at 21:15, 9 minutes before
            the actors are seen walking down the alley.           Since
            [Appellant] has taken responsibility for a simple assault
            and an indecent assault, there is no doubt that an
            altercation took place. The video does not show this
            altercation. It is impossible to identify any actors in the
            video. Since the trial strategy employed was based on the
            theory that an altercation took place but that no
            penetration occurred, the video does not help [Appellant]
            in his defense. This issue has no merit.

Turner/Finley Letter, 2/4/14, at 9-10.

      The PCRA court issued a Pa.R.Crim.P. 907 notice of intent to dismiss.

Appellant filed a timely response in opposition, which withdrew the nursing

report issue and raised two new issues: the victim willfully perjured herself

and the court failed to colloquy Appellant regarding his guilty pleas.

Accordingly, Appellant asserted his counsel’s Turner/Finley letter was

deficient.    Appellant did not seek leave of court to file an amended PCRA

petition.    On March 27, 2014, the PCRA court dismissed Appellant’s PCRA

petition and granted permission for Appellant’s PCRA counsel to withdraw.

      Appellant filed a pro se timely appeal on April 22, 2014, and timely

filed a court-ordered Pa.R.A.P. 1925(b) statement, which included, inter alia,

the guilty plea colloquy issue first raised in his Rule 907 response. On July

28, 2014, the court issued its Pa.R.A.P. 1925(a) decision, which although

purporting to address the issues raised in Appellant’s Rule 1925(b)


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statement, did not address his guilty plea colloquy claim. The PCRA court

also held, inter alia, that it “previously ruled that this tape is not exculpatory

evidence. As such, this claim lacked merit.” PCRA Ct. Op. at 3. As noted

above, the docket and record do not include a written or oral ruling.

      Appellant raises the following issues in his appellate brief:

         Whether trial counsel was constitutionally ineffective for
         failing to present exculpatory video evidence.

         Whether [Appellant’s] constitutional rights were violated
         by the perjured testimony of [the victim].

         Whether the trial court erred in that it failed to conduct a
         plea colloquy which would have revealed that [Appellant’s]
         guilty plea were [sic] the product of unlawful inducement
         by trial counsel[’]s promises.

         Whether PCRA counsel’s “no merit letter” was legally
         insufficiency for failing to research and properly address
         [Appellant’s] claim of errors[.]

         Whether the PCRA court erred in failing to independently
         address [Appellant’s] claims by wholesale adoption of
         counsel[’]s “no merit letter”.

Appellant’s Brief at 1 (reordered to facilitate disposition).

      We summarize Appellant’s arguments for all of his issues, as they are

interrelated.   Appellant contends that trial counsel was ineffective by not

introducing a videotape “that would have impeached the credibility of the

victim” because the video did not show “the assault or the victim or”

Appellant.   Id. at 11, 14.    He thus maintains the victim perjured herself.

Appellant also contends PCRA counsel was ineffective by not reviewing the

record and ascertaining the court failed to conduct a guilty plea colloquy.


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Id. at 8. He asserts the court erred by adopting counsel’s no-merit letter in

its opinion. We hold Appellant is due limited relief, as set forth below.

      “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. Abu-

Jamal, 941 A.2d 1263, 1267 (Pa. 2008).

      To properly preserve a challenge to PCRA counsel’s ineffectiveness,

the defendant must raise the claim in response to a Pa.R.Crim.P. 907 notice

of intent to dismiss. Commonwealth v. Rykard, 55 A.3d 1177, 1189 (Pa.

Super. 2012). Rule 907 “does not treat a response to its notice of dismissal

as either an amended petition or a serial petition.” Id. at 1187.

            A response to a notice of dismissal and petitions have
         traditionally, and in practice, been viewed as distinct. See
         Pa.R.Crim.P. 907(1) (utilizing both phrases separately);
         Commonwealth v. Williams, 557 Pa. 207, 732 A.2d
         1167 (1999) (Batson claim proposed for first time in a
         response to pre-dismissal notice did not require PCRA
         court to address the issue and weighed in favor of
         disallowing an amended petition); Commonwealth v.
         D’Amato, 579 Pa. 490, 856 A.2d 806, 825 n. 19 (2004);
         [Commonwealth v.] Paddy, [15 A.3d 431,] 471 (Pa.
         2011) (treating response to a notice of dismissal as
         objections and not a new amended petition or serial
         petition); Commonwealth v. Derrickson, 923 A.2d 466,
         469 (Pa. Super. 2007).

Id.

      In Rykard, the defendant alleged on appeal that “PCRA counsel was

ineffective in failing to assert trial counsel’s ineffectiveness for neglecting to

raise and preserve an alleged Brady v. Maryland, 373 U.S. 83, 83 S. Ct.


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1194, 10 L. Ed. 2d 215 (1963) violation.” Id. at 1190. The Commonwealth

countered that the defendant waived the issue because it was not raised in

the initial pro se petition.   Id. at 1191.    The Rykard Court rejected that

position, as the defendant timely raised the issue of PCRA counsel’s

ineffectiveness in his Rule 907 opposition.      Id. at 1186.      The defendant,

however, also raised two claims of trial counsel’s ineffectiveness in his

response to the Rule 907 notice. Id. at 1192. The Rykard Court did not

address the issues, reasoning “that in order to properly aver a new non-

PCRA counsel ineffectiveness claim, the petitioner must seek leave to amend

his petition.” Id.; accord id. at 1187.

      With respect to claims of counsel’s ineffectiveness, we state the

following as background:

         [C]ounsel is presumed to have provided effective
         representation unless the PCRA petitioner pleads and
         proves that: (1) the underlying claim is of arguable merit;
         (2) counsel had no reasonable basis for his or her conduct;
         and (3) Appellant was prejudiced by counsel’s action or
         omission. To demonstrate prejudice, an appellant must
         prove that a reasonable probability of acquittal existed but
         for the action or omission of trial counsel. A claim of
         ineffective assistance of counsel will fail if the petitioner
         does not meet any of the three prongs. Further, a PCRA
         petitioner must exhibit a concerted effort to develop his
         ineffectiveness claim and may not rely on boilerplate
         allegations of ineffectiveness.

Commonwealth        v.   Perry,   959   A.2d   932,   936   (Pa.   Super.   2008)

(punctuation marks and citations omitted).       Our Supreme Court has made

“clear this Court’s strong preference that counsel be heard from before being



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found ineffective.”    Commonwealth v. Colavita, 993 A.2d 874, 895 (Pa.

2010).

      In determining whether counsel’s action was reasonable, the court

does not consider “whether there were other more logical courses of action”

counsel could have pursued, but simply examines whether counsel’s decision

had any reasonable basis. Commonwealth v. Washington, 927 A.2d 586,

594 (Pa. 2007). Conversely, to merit relief, counsel’s action, given all the

other available alternatives, must be “so unreasonable that no competent

lawyer would have chosen it.”     Commonwealth v. Miller, 431 A.2d 233,

234 (Pa. 1981) (citation omitted).

      A failure to satisfy any prong of the test for ineffectiveness requires

rejection of the claim. Washington, 927 A.2d at 594. “In the context of a

PCRA proceeding, [the defendant] must establish that the ineffective

assistance of counsel was of the type ‘which, in the circumstances of the

particular case, so undermined the truth-determining process that no

reliable adjudication of guilt or innocence could have taken place.’”    Id.

(citations omitted).     The defendant must establish actual prejudice, or

demonstrate that the alleged act of ineffectiveness falls within a narrow

range of circumstances in which there is a presumption of prejudice.

Commonwealth v. Reed, 971 A.2d 1216, 1224-25 (Pa. 2009).

      This Court set forth the applicable law regarding counsel’s stewardship

during guilty plea colloquies:



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           A criminal defendant has the right to effective counsel
       during a plea process as well as during trial. The law does
       not require that appellant be pleased with the outcome of
       his decision to enter a plea of guilty.        Instead, the
       defendant must show that counsel’s deficient stewardship
       resulted in a manifest injustice, for example, by facilitating
       entry of an unknowing, involuntary, or unintelligent plea.
       The voluntariness of the plea depends on whether
       counsel’s advice was within the range of competence
       demanded of attorneys in criminal cases.          Therefore,
       allegations of ineffectiveness in connection with the entry
       of a guilty plea will serve as a basis for relief only if the
       ineffectiveness caused appellant to enter an involuntary or
       unknowing plea.

          Our law is clear that, to be valid, a guilty plea must be
       knowingly, voluntarily and intelligently entered. There is
       no absolute right to withdraw a guilty plea, and the
       decision as to whether to allow a defendant to do so is a
       matter within the sound discretion of the trial court. To
       withdraw a plea after sentencing, a defendant must make
       a showing of prejudice amounting to manifest injustice. A
       plea rises to the level of manifest injustice when it was
       entered into involuntarily, unknowingly, or unintelligently.
       A defendant’s disappointment in the sentence imposed
       does not constitute manifest injustice.

          In order to ensure a voluntary, knowing, and intelligent
       plea, trial courts are required to ask the following
       questions in the guilty plea colloquy:

       1) Does the defendant understand the nature of the
       charges to which he or she is pleading guilty or nolo
       contendere?

       2) Is there a factual basis for the plea?

       3) Does the defendant understand that he or she has the
       right to a trial by jury?

       4) Does the defendant understand that he or she is
       presumed innocent until found guilty?




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         5) Is the defendant aware of the permissible ranges of
         sentences and/or fines for the offenses charged?

         6) Is the defendant aware that the judge is not bound by
         the terms of any plea agreement tendered unless the
         judge accepts such agreement?

             The guilty plea colloquy must affirmatively demonstrate
         that the defendant understood what the plea connoted and
         its consequences. Once a defendant has entered a plea of
         guilty, it is presumed that he was aware of what he was
         doing, and the burden of proving involuntariness is upon
         him. . . . Furthermore, nothing in the rule precludes the
         supplementation of the oral colloquy by a written colloquy
         that is read, completed, and signed by the defendant and
         made a part of the plea proceedings.

Commonwealth v. Bedell, 954 A.2d 1209, 1212-13 (Pa. Super. 2008)

(punctuation and citations omitted).

      Instantly, with respect to Appellant’s first and second issues, the PCRA

court opined that it had watched the video and “previously ruled [it was] not

exculpatory evidence.” PCRA Ct. Op. at 3. The record, however, does not

reflect any such ruling, let alone a ruling on Appellant’s motion to compel the

Commonwealth to produce the surveillance video in question. Nonetheless,

we agree with the PCRA court’s implicit determination that Appellant’s claim

lacked arguable merit. See Perry, 959 A.2d at 936. According to the police

report and PCRA counsel, the videotape is of poor quality and does not

depict any identifiable person or the underlying criminal activity. Ex. C. to

Appellant’s PCRA Pet.; Turner/Finley Letter at 9-10.        Further, Appellant

pleaded guilty to simple assault and indecent assault. See Clapper I, at 2.

Thus, because Appellant conceded he was present with the victim, and


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because the videotape does not depict the assault, he cannot contend the

video exculpated him of aggravated indecent assault or the victim perjured

herself. See Perry, 959 A.2d at 936.

        For his third issue, Appellant contends PCRA counsel was ineffective by

not discovering that the trial court failed to conduct a guilty plea colloquy.

See Appellant’s Brief at 8; see generally Bedell, 954 A.2d at 1212-13.

Appellant has timely raised the issue of PCRA counsel’s ineffectiveness in his

Rule 907 opposition.     See Rykard, 55 A.3d at 1189.       Appellant was not

required to seek leave of court to amend his PCRA petition.        See id. at

1192.    The record does not reflect any guilty plea colloquy and the PCRA

court did not address the issue, although Appellant raised it in his Rule

1925(b) statement.     Because an evidentiary hearing was not held and our

Supreme Court has evinced a preference for an evidentiary hearing, see

Colavita, 993 A.2d at 895, out of an abundance of caution, we remand for

an evidentiary hearing on Appellant’s third issue.    See also Washington,

927 A.2d at 594; Miller, 431 A.2d at 234.

        We lastly address Appellant’s claim that the PCRA court erred by

adopting counsel’s Turner/Finley letter in its Rule 1925(a) decision.

Instantly, the PCRA court authored an independent Rule 1925(a) decision

and did not adopt PCRA counsel’s Turner/Finley letter.         See generally

PCRA Ct. Op. at 1-3. Accordingly, we vacate the order below, remand for an




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evidentiary hearing on Appellant’s third issue, and direct the PCRA court to

appoint counsel per Torres, supra, if Appellant wishes counsel.

      Order vacated. Case remanded for an evidentiary hearing on whether

PCRA counsel was ineffective for failing to investigate the absence of a guilty

plea colloquy. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/18/2014




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