J-S74012-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

S.W.,

                            Appellant                No. 2922 EDA 2013


              Appeal from the PCRA Order Entered August 9, 2013
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0002904-2003


BEFORE: BENDER, P.J.E., DONOHUE, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                    FILED DECEMBER 08, 2014

        Appellant, S.W.,1 appeals from the August 9, 2013 order denying his

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

Pa.C.S. §§ 9541-9546. Appellant solely argues that his PCRA counsel, Scott

Galloway, Esq., acted ineffectively by not calling the victim of Appellant’s

underlying crimes, C.W., to the stand during the PCRA hearing. After careful

review, we affirm.

        On September 5, 2005, Appellant was convicted by a jury of two

counts of rape, two counts of involuntary deviate sexual intercourse with a

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Because Appellant’s underlying convictions involve the sexual assault of his
biological daughter, who shares Appellant’s last name, we have changed
Appellant’s and the victim’s names to initials to protect the victim’s privacy.
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child, and two counts of indecent assault. His convictions stemmed from his

abuse of his three-year-old daughter, C.W.      Appellant was sentenced on

January 4, 2006, to an aggregate term of 11 to 22 years’ incarceration. He

filed a timely appeal and this Court affirmed his judgment of sentence on

December 31, 2007. Commonwealth v. [S.W.], 945 A.2d 773 (Pa. Super.

2007) (unpublished memorandum).         Appellant did not file a petition for

allowance of appeal with our Supreme Court; however, he subsequently filed

a timely PCRA petition seeking restoration of his right to do so. That PCRA

petition was granted and Appellant filed a nunc pro tunc petition for

allowance of appeal to our Supreme Court, which was denied on April 20,

2010. Commonwealth v. [S.W.], 992 A.2d 889 (Pa. 2010).

     On May 10, 2010, Appellant filed a timely pro se PCRA petition and

Attorney Galloway was appointed. On February 3, 2012, Attorney Galloway

filed an amended PCRA petition on Appellant’s behalf. Attached thereto was

a handwritten affidavit by C.W., indicating that her trial testimony against

Appellant was untrue and was the result of coaching by other family

members. See Amended PCRA Petition, 2/3/12, at Exhibit “B.” Appellant

requested that the court conduct an evidentiary hearing, at which he could

present C.W.’s recantation testimony.

     On August 2, 2014, a PCRA hearing was held, yet C.W. was not

present to testify. At the close of that hearing, the Commonwealth moved

to dismiss Appellant’s petition and the PCRA court granted that motion. The

court issued a formal order denying Appellant PCRA relief on August 9, 2013.

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Despite still being represented by Attorney Galloway, Appellant filed a timely

pro se notice of appeal, as well as a timely pro se Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal.2            In his Rule 1925(b)

statement, Appellant set forth various claims, including the following issue

pertinent to the instant appeal:

       (a) [Appellant] was denied the effective assistance of PCRA
       counsel where his PCRA counsel, [Attorney] Galloway:

          (i) failed to take such necessary steps to secure and
          present the testimony of [C.W.] in support of [Appellant’s]
          request for PCRA relief in the form of a new trial, as
          predicated upon [C.W.’s] recantation of the testimony,
          which she offered during the course of [Appellant’s] trial[.]

Rule 1925(b) Statement, 10/9/13, at 1-2.

       On November 12, 2013, Attorney Galloway filed a petition to withdraw.

The PCRA court granted that petition and issued an order appointing new

counsel to represent Appellant on appeal.        The court then issued a Rule
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2
  Our review of the record indicates that Appellant’s Rule 1925(b) statement
was due on October 4, 2013. While Appellant hand-dated his statement
October 1, 2013, it was not time-stamped by the Office of Judicial Support of
Delaware County (OJS) until October 9, 2013. The OJS did not include in
the certified record the envelope in which Appellant’s Rule 1925(b)
statement was sent, despite that the OJS did so for other pro se filings by
Appellant. We also point out that the PCRA court’s order directing Appellant
to file the Rule 1925(b) statement appears only to have been served to the
prosecutor and Appellant, not to Attorney Galloway, who was still Appellant’s
counsel of record.     Additionally, the PCRA court did not mention the
apparent untimeliness of Appellant’s pro se Rule 1925(b) statement in its
Rule 1925(a) opinion. The Commonwealth has also not filed an appellate
brief in this case, thus lodging no objection to Appellant’s Rule 1925(b)
statement. Under these circumstances, we will consider Appellant’s concise
statement as being timely filed.



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1925(a) opinion. Therein, the PCRA court acknowledged Appellant’s claim of

Attorney Galloway’s ineffectiveness, yet did not address the merits of that

issue, reasoning that,

      [t]he scope of this appeal is limited to the issues presented in
      [Appellant’s] amended PCRA petition. The only issue raised in
      [Appellant’s] petition was whether there was a material
      recantation of the facts for the matters which [Appellant] was
      previously convicted.

PCRA Court Opinion (PCO), 5/29/14, at 1. The PCRA court then explained

why it found the issue raised in Appellant’s amended petition to be meritless,

citing, inter alia, Appellant’s failure to “produce [C.W.] as a witness at the

PCRA hearing.” Id. at 2.

      Now, on appeal, Appellant presents the following issue for our review:

“Whether the PCRA [c]ourt erred in denying Appellant’s PCRA petition where

the record clearly showed that Appellant was denied effective assistance of

counsel, as guaranteed by the Pennsylvania and United States Constitutions,

when PCRA counsel failed to secure and present the testimony of CW?”

Appellant’s Brief at 4.

      Initially, it is clear from the record that Appellant first raised PCRA

counsel’s ineffectiveness in his Rule 1925(b) statement, which was filed after

his notice of appeal.     This Court has held that “absent recognition of a

constitutional right to effective collateral review counsel, claims of PCRA

counsel ineffectiveness cannot be raised for the first time after a notice of




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appeal     has     been     taken     from     the   underlying   PCRA   matter.”3

Commonwealth v. Ford, 44 A.3d 1190, 1201 (Pa. Super. 2012); see also

Commonwealth v. Henkel, 90 A.3d 16, 30 (Pa. Super. 2014) (en banc)

(finding waived the appellant’s claims of PCRA counsel’s ineffectiveness,

which were raised for the first time in his Rule 1925(b) statement filed after

his notice of appeal).      Consequently, we are constrained to conclude that

Appellant’s claim of PCRA counsel’s ineffectiveness, raised for the first time

after the filing of his notice of appeal, is unreviewable under Ford and

Henkel.

       Nevertheless, we note that even if Appellant’s ineffectiveness claim

had been preserved below, we would conclude that it is meritless.            “This

Court’s standard of review from the grant or denial of post-conviction relief

is limited to examining whether the lower court’s determination is supported

by the evidence of record and whether it is free of legal error.”

Commonwealth v. Morales, 701 A.2d 516, 520 (Pa. 1997) (citing

Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa. 1995)). Where,

as here, a petitioner claims that he received ineffective assistance of

counsel, our Supreme Court has stated that:

       [A] PCRA petitioner will be granted relief only when he proves,
       by a preponderance of the evidence, that his conviction or
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3
  While Appellant indicates in his statement of his appellate issue that he has
a constitutional right to effective PCRA counsel, he provides no argument or
legal authority to support that claim.



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     sentence resulted from the “[i]neffective assistance of counsel
     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.”
     Generally, counsel’s performance is presumed to be
     constitutionally adequate, and counsel will only be deemed
     ineffective upon a sufficient showing by the petitioner. To obtain
     relief, a petitioner must demonstrate that counsel’s performance
     was deficient and that the deficiency prejudiced the petitioner. A
     petitioner establishes prejudice when he demonstrates “that
     there is a reasonable probability that, but for counsel’s
     unprofessional errors, the result of the proceeding would have
     been different.” … [A] properly pled claim of ineffectiveness
     posits that: (1) the underlying legal issue has arguable merit;
     (2) counsel’s actions lacked an objective reasonable basis; and
     (3) actual prejudice befell the petitioner from counsel’s act or
     omission.

Commonwealth v. Johnson, 966 A.2d 523, 532-33 (Pa. 2009) (citations

omitted).

     Appellant maintains that Attorney Galloway acted ineffectively by

failing to “take[] action to secure the attendance of CW at the [PCRA]

hearing.”   Appellant’s Brief at 10.    We disagree.   At the PCRA hearing,

Attorney Galloway explained C.W.’s absence, and his efforts to present her

testimony, as follows:

     [Attorney Galloway]: After filing my amended Petition and
     reviewing the Affidavit signed by [C.W.], who by the way is my
     client’s daughter, I attempted to … find out where she was, and
     discovered that she was a resident of the State of Delaware. I
     also discovered that a Cynthia Pruitt, Esquire, who is an attorney
     licensed in the State of Delaware, who was appointed Guardian
     Ad Litem by the Family Court of New Castle County, in the State
     of Delaware, on behalf of [C.W.]. And after several discussions
     and letters back and forth between myself and Ms. Pruitt,
     wherein I advised her that in my opinion a hearing was going to
     be scheduled before the Court, … wherein I intended to put
     [C.W.] on the stand in reference to the Affidavit she signed
     recanting her testimony during [Appellant’s] trial. Ms. Pruitt

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       indicated that even with a [s]ubpoena, she was going to object
       and basically not allow her client, [C.W.], to appear … absent a
       Court Order from that state, the State of Delaware. After further
       discussions with Ms. Pruitt – and [the Commonwealth] was
       involved in at least some of those discussions, via conference
       call, we attempted to set up a conference in Ms. Pruitt’s office in
       the State of Delaware, where [C.W.] would be present, and [the
       Commonwealth] and I would both have the opportunity to speak
       to [C.W.] directly in reference to the issue involved. Ms. Pruitt
       initially indicated that she would be amenable to that, but then
       changed her mind and indicated that she did not think that
       would be in the best interest of her client either. As a third
       alternative, I asked Ms. Pruitt if she would at least have [C.W.]
       submit an Affidavit in that Ms. Pruitt was consistently telling me
       that as to the initial recantation by [C.W.], she was in the
       presence, and in fact, at that time in the custody of her paternal
       grandmother and other family members, and that she was
       pressured to – pressured into writing the Affidavit, which
       recanted her testimony during the course of trial. I did receive,
       in early July of this year, July of 2013, an Affidavit purportedly
       signed by [C.W.], and notarized by Cynthia Pruitt, the attorney
       we’ve been talking about. And with the Court’s permission, I
       would ask that this be marked as D-I, Your Honor.

       [The Court]: All right. I guess we’ll call it PCRA D-1.

       [Attorney Galloway]: PCRA D-1. And [I] ask that it be admitted
       into evidence for purposes of this hearing. …

       [The Court]: Okay.[4]

       …

       [Attorney Galloway]: Your Honor, after receiving this Affidavit, I
       did go out to the Delaware County Prison, where [Appellant] is
       being temporarily housed, to discuss this with him. And I did
       indicate to [Appellant] that if, in fact, he wanted to pursue this
____________________________________________


4
   There is no copy in the certified record of this exhibit, i.e., the second
affidavit written by C.W. However, Appellant indicates in his brief to this
Court that in the affidavit, C.W. “stated that her previous statements [made
in the first affidavit] were not accurate and that she testified truthfully at
trial.” Appellant’s Brief at 6.



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     further, that he … or his family [should] retain the services of an
     attorney [licensed] in the State of Delaware, in an attempt to
     either have that attorney speak to [C.W.] directly, or in the
     alternative[,] perhaps even have a hearing in that state where
     the attorney could question [C.W.] about both of the Affidavits in
     issue. I did speak to [Appellant’s] mother by telephone, and
     indicated the same. … I did write a letter to [Appellant’s]
     mother … dated July 8th, 2013, bringing her up to date with the
     status of what was going on, and also suggesting that if they
     wish, they could hire an attorney in the State of Delaware to
     proceed as I’ve just indicated. Unfortunately, I don’t believe the
     family had the resources to pursue that. So as we stand now, I
     have no further evidence to present on behalf of [Appellant]. I
     understand at this point it’s [Appellant’s] burden to move
     forward with the issue of the initial Affidavit. I believe that I
     have proceeded as far as I can in this matter, in reference to the
     issue at hand. I’ve advised [Appellant] of that.

PCRA Hearing, 8/2/13, at 4-9.

     It is apparent from Attorney Galloway’s statements at the PCRA

hearing that he reasonably and diligently attempted to secure C.W.’s

attendance and testimony at the PCRA hearing.           Appellant contends,

however, that Attorney Galloway could have secured C.W.’s testimony by

using “the Pennsylvania Uniform Act to Secure the Attendance of Witnesses

from Within or Without a State in Criminal Proceeding [(UASAW)], 42

Pa.C.S.A. §§ 5961, et seq., which provides a speedy and effective

procedure, through the use of a certificate issued under seal of court, to

summon witnesses living in another state.” Appellant’s Brief at 10.

     However, Appellant has failed to prove that the UASAW may be used

to secure the testimony of out-of-state witnesses at a PCRA hearing.

Instead, the relevant provision of the UASAW states that a court may issue a

certificate to secure the attendance of an out-of-state witness where that


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person “is a material witness in a prosecution pending in a court of record in

this Commonwealth or in a grand jury investigation which has commenced

or is about to commence….”       42 Pa.C.S. § 5946(a) (emphasis added).        A

post-conviction hearing does not constitute part of a ‘pending prosecution’ or

‘grand jury investigation.’ Accordingly, Appellant has not demonstrated that

Attorney Galloway acted ineffectively by not attempting to utilize the UASAW

to secure C.W.’s testimony at the PCRA hearing. Moreover, after Attorney

Galloway obtained C.W.’s second affidavit denying that she had testified

untruthfully at Appellant’s trial, it was reasonable for him to cease his efforts

to obtain her PCRA hearing testimony.

      In sum, we are compelled to conclude that Appellant waived his

challenge to Attorney Galloway’s representation.          However, even had

Appellant preserved this claim, we would conclude that Attorney Galloway

did not act ineffectively, as he reasonably attempted to secure C.W.’s

testimony at the PCRA hearing.       Accordingly, we affirm the PCRA court’s

order denying Appellant post-conviction relief.

      Order affirmed.

      Judge Donohue joins the memorandum.

      Judge Strassburger files a concurring statement in which P.J.E. Bender

and Judge Donohue join.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/8/2014




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