J.S52004/14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,                :     IN THE SUPERIOR COURT OF
                                             :          PENNSYLVANIA
                          Appellee           :
                                             :
                    v.                       :
                                             :
                                             :
DARYL LOCKE,                                 :
                                             :
                          Appellant          :     No. 20 EDA 2013


                Appeal from the PCRA Order November 16, 2012
              In the Court of Common Pleas of Philadelphia County
               Criminal Division No(s).: CP-51-CR-0801831-2003
                                         CP-51-CR-0801841-2003

BEFORE: GANTMAN, P.J., ALLEN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                       FILED OCTOBER 14, 2014

        Pro se Appellant, Daryl Locke, appeals from the order entered in the

Philadelphia County Court of Common Pleas dismissing his timely first Post

Conviction Relief Act1 (“PCRA”) petition.        He raises numerous claims of

constitutional error, trial court error, and ineffective assistance of counsel.

We affirm.

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

           The two victims in this case are the minor son and
           daughter of Appellant’s girlfriend, Y.K. Appellant resided
           with the victims and Y.K., and during this time, Appellant

*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9545.
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       sexually abused the victims with oral, vaginal, and anal
       penetration.     The eleven year old female victim, S.I.,
       testified that when she was seven years old Appellant
       began to sexually abuse her. This occurred more than
       twenty times. S.I.’s thirteen year old brother, K.F., also
       testified to being sexually abused numerous times by
       Appellant. K.F. testified to witnessing a naked Appellant
       on top of his sister with his penis in her anus. Both
       children testified that Appellant would use vegetable oil as
       a lubricant while sexually abusing them and that Appellant
       also ordered them not to tell anyone about these acts.

          After Appellant ended his relationship with Y.K. and
       moved out of her house, the victims informed their cousin
       of the sexual abuse. The cousin informed her mother, who
       in turn informed Y.K. of the abuse. Y.K. questioned the
       victims about the sexual abuse and K.F. informed Y.K.
       about the sexual abuse and told her that Appellant
       threatened to kill Y.K. if K.F. spoke about the sexual
       abuse.

          Several months after Y.K. learned of the abuse, she
       took the victims to the hospital and reported the sexual
       abuse to the Department of Human Services (DHS). Prior
       to Appellant’s trial, the Commonwealth moved for
       admission of evidence of prior bad acts consisting of
       testimony from J.H. She claimed that Appellant raped her
       about five times in 1995 when she was approximately ten
       years old.    This sexual abuse occurred in a manner
       consistent with the sexual abuse of S.I. and K.F. The court
       ruled the evidence could be presented on rebuttal.

          During Appellant’s trial, Doctor Phillip Spandorfer
       testified that, although the victims’ medical examinations
       were normal, that finding was not inconsistent with child
       sexual abuse. He testified this finding was due in part to
       the age of the children, the lubricant used during the
       abuse, and the time of the examination in relation to the
       relatively short period it takes for cuts, scars, and fissures
       to heal.

          During cross-examination of the victims and Y.K.,
       defense counsel chipped away at their credibility by use of
       a defense theory asserted in defense counsel’s opening


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       argument which alleged that Y.K. had manipulated her
       children into creating a story of abuse so that Y.K. might
       get the social security check of Appellant’s youngest
       biological daughter. In light of this cross-examination and
       citing fairness as the reason, the trial court ruled that the
       Commonwealth could present its prior bad act evidence of
       J.H. as part of its case-in-chief and did not have to reserve
       it for rebuttal.      The trial court gave a cautionary
       instruction. Appellant did not object to the cautionary
       instruction given to the jury explaining the nature of J.H.’s
       proposed testimony. Robert Moultrie of DHS then testified
       that in 1995 J.H. reported that Appellant raped her;
       however, the police were never notified of the report.

           Appellant was convicted of the offenses supra, and the
       trial court sentenced Appellant on August 22, 2005 to
       concurrent terms of incarceration of seven to fourteen
       years for rape and involuntary deviate sexual intercourse,
       and a consecutive sentence of incarceration of four and
       one half to nine years for aggravated indecent assault.
       Post-sentence motions were dismissed by operation of law
       on December 19, 2005, and Notice of Appeal was filed by
       Appellant on January 17, 2006. Pursuant to the Trial
       Court’s Order dated June 1, 2006, a timely Statement of
       Matters Complained of on Appeal pursuant to Pa.R.A.P.
       1925(b) was filed on June 14, 2006. The trial court filed a
       responsive opinion.

          Appellant first claims prosecutorial misconduct during
       both the Commonwealth’s questioning of a witness and the
       Commonwealth’s closing argument. Specifically, Appellant
       challenges the following seven comments which were
       made by the Commonwealth: 1) alluding to defense
       counsel as a “public defender” while questioning a witness;
       2) “DHS failed the child witnesses and the jury should step
       up and not fail them”; 3) “that the bad act evidence
       against defendant was founded and that DHS screwed up
       by not making a referral of the J.H. claims to the police”;
       4) “that defendant was an experienced sexual predator”;
       5) “that defendant’s demeanor showed he was guilty”; 6)
       “that children cannot be consistent with a fabricated
       story”; and 7) “that K.F. must be telling the truth because
       no male would admit to homosexual rape unless the act
       had actually occurred.”


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                                *    *    *

           The final issue before this Court is whether the trial
        court erred in admitting testimony of Doctor Phillip
        Spandorfer.     Appellant contends that the witness’s
        testimony was irrelevant and contained hearsay and,
        therefore, a new trial is required. We find this issue to be
        waived.

Commonwealth v. Locke, 190 EDA 2006, slip op. at 1-4, 13 (Pa. Super.

Dec. 18, 2007) (unpublished memorandum).       The Superior Court affirmed

Appellant’s judgment of sentence on December 18, 2007, and he did not file

a petition for allowance of appeal with our Supreme Court.

     On October 27, 2008, the court docketed Appellant’s pro se, timely

first PCRA petition and docketed Appellant’s pro se amended PCRA petition

on December 12, 2008.      The court appointed counsel, who entered her

appearance on March 4, 2009. Appellant filed a pro se petition to withdraw

court-appointed counsel on May 13, 2009. The court docketed Appellant’s

pro se second amended PCRA petition on May 22, 2009.

     According to the docket, on February 22, 2010, Appellant’s appointed

PCRA counsel was permitted to withdraw. The next day, the court appointed

new PCRA counsel, who entered his appearance. On March 26, 2010, the

court docketed Appellant’s pro se petition to withdraw this new counsel. On




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September 9, 2010, the court held a Grazier2 hearing, at which the court

ruled Appellant could represent himself pro se.

       On November 15, 2010, the court docketed Appellant’s pro se third

amended PCRA petition, and on January 12, 2011, the court docketed

Appellant’s fourth pro se amended PCRA petition. On January 20, 2011, the

court docketed Appellant’s fifth and sixth pro se amended PCRA petitions.

       On July 30, 2012, the Commonwealth moved to dismiss Appellant’s

PCRA petition.    On August 14, 2012, the court issued a Pa.R.Crim.P. 907

notice. On September 4, 2012, the court docketed Appellant’s response to

the Rule 907 notice, and on October 12, 2012, the court docketed

Appellant’s answer to the Commonwealth’s July 30, 2012 motion to dismiss.

       Also on October 12, 2012, the court signed an order dismissing

Appellant’s PCRA petition; the order, however, was not docketed and served

on the parties until November 16, 2012.3          Appellant timely appealed on

December 13, 2012.       The court did not order Appellant to file a Pa.R.A.P.

1925(b) statement, but filed a Rule 1925(a) opinion.

       Appellant raises the following issues in his brief:4



2
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
3
 Meanwhile, also on November 16, 2012, the court docketed Appellant’s pro
se petition for vacation of judgment. The PCRA court did not rule on
Appellant’s petition prior to Appellant filing his notice of appeal.
4
  Because Appellant’s statement of issues presented does not correspond
with the issues raised in the argument section of his brief, we reproduce the



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        1. The lower court erred in not holding [a] hearing on
        [Appellant’s] claim of lack of [in] personam jurisdiction.

        2. The lower court erred in not holding [a] hearing on
        claim of defective complaints.

        3. The lower court erred in not holding [a] hearing of [sic]
        ineffectiveness of trial counsel in relation to denial of
        [Appellant’s Pa.R.Crim.P.] 600 motion.

        4. The lower court erred in not holding [a] hearing on
        ineffectiveness claim of trial counsel in relation to
        investigation of prior bad acts.

        5. The trial court erred in not holding [a] hearing on
        [Appellant’s] challenge to the constitutionality of the prior
        bad acts itself.

        6. The lower court erred in not holding [a] hearing on
        [Appellant’s] two additional claims [of admission of prior
        bad acts evidence and] Commonwealth’s failure to
        sufficiently advise [A]ppellant of the charges against him.

        7. The lower court erred in not holding [a] hearing on
        ineffectiveness claim of counsel, failing [sic] to ask for
        mistrial.

        8. The lower court erred in not holding [a] hearing on
        ineffectiveness regarding failure to object to improper
        expert testimony [by Dr. Spandorfer].

        9. The lower court erred in not holding [a] hearing on
        ineffectiveness of appellate counsel’s failure to sufficiently
        or adequately develop claims of [prosecutorial] misconduct
        for appellate review.




latter. See Commonwealth v. Rivera, 685 A.2d 1011, 1013 (Pa. Super.
1996) (noting courts are generally “willing to liberally construe materials
filed by a pro se litigant”).




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Appellant’s Brief at 6, 11, 14, 18, 20, 24-26, 37, 41 (reordered to facilitate

disposition).

      We summarize the arguments for all of his issues. Appellant contends

that the Commonwealth lacked the authority to prosecute him because a

grand jury did not indict him.    He claims Section 10 of Article I of the

Pennsylvania Constitution is inconsistent because it mandates indictment but

also permits trial courts to initiate criminal proceedings by information.

Appellant thus opines that because he was not indicted by a grand jury and

was charged by information, his due process rights were violated.          He

maintains the complaints were defective for lack of a seal.

      Appellant also argues that trial counsel was ineffective by not

appealing the denial of his pretrial motion to be released on bail pursuant to

Pa.R.Crim.P. 600(B).   He insists trial counsel was ineffective for failing to

investigate the prior bad acts. Appellant challenges the constitutionality of

the prior bad acts evidence. He asserts the PCRA court should have held a

hearing on whether the trial court erred by admitting the prior bad acts into

evidence and not advising him of the charges.        Appellant suggests trial

counsel was ineffective by not explicitly moving for a mistrial and not

objecting to the expert testimony of Dr. Spandorfer.     He states his direct

appeal counsel was ineffective by inadequately developing arguments

supporting his claims on direct appeal.     Those claims, Appellant argues,

include alleged improper remarks during the Commonwealth’s closing



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arguments, vouching for witnesses’ credibility, and mischaracterization of

Appellant as an experienced sexual assaulter of children. We hold Appellant

is due no relief.

      “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).

         [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).

      After careful review of the record, the parties’ briefs, and the well-

reasoned decision by the Honorable Denis P. Cohen, we affirm on the basis

of the PCRA court’s opinion. See PCRA Ct. Op., 12/26/13, at 4-15 (holding:

Appellant failed to establish court lacked jurisdiction over him and invalidity




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of complaints;5 no relief could be granted for denial of Appellant’s pretrial

Rule 600 motion to be released on bail; Appellant did not establish prejudice

by trial counsel’s alleged ineffectiveness by not interviewing J.H.’s relatives;

trial counsel asked for a mistrial; Dr. Spandorfer was accepted as an expert

witness;   and   allegations   of   prosecutorial   misconduct    during   closing

arguments were meritless).      By extension, Appellant’s derivative claims of

appellate counsel’s alleged ineffectiveness also fail as trial counsel is not

ineffective.   We also note that to the extent Appellant challenges the

introduction of the prior bad acts into evidence, his arguments were raised

or could have been raised on direct appeal and thus are not cognizable

under the PCRA. See 42 Pa.C.S. § 9543(a)(3). Finally, even if trial counsel

did not ask for a mistrial, Appellant did not establish that but for counsel’s

omission, the outcome would have been different.           Accordingly, having

discerned no basis for relief, we affirm the order below.        See Abu-Jamal,

941 A.2d at 1267.

      Order affirmed.




5
  We note that although constitutional issues are subject to waiver, a lack of
jurisdiction is a basis for PCRA relief. See 42 Pa.C.S. § 9543(a)(2)(viii).
Because the Commonwealth did not contend Appellant’s jurisdictional issue
is waived, we resolve it on the merits. Cf. Commonwealth v. Butler, 566
A.2d 1209, 1211 (Pa. Super. 1989) (holding defendant’s trial counsel was
ineffective by failing to object to trial court’s jurisdiction).




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/14/2014




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