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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 CHRISTIAN GAGNON                      :
                                       :
                   Appellant           :   No. 1887 EDA 2017

                 Appeal from the PCRA Order May 19, 2017
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0008819-2008,
           CP-51-CR-0011482-2008, CP-51-CR-0011483-2008,
          MC-51-CR-0015719-2009, MC-51-CR-0016540-2008,
                         MC-51-CR-0033936-2009

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 CHRISTIAN GAGNON                      :
                                       :
                   Appellant           :   No. 117 EDA 2018

             Appeal from the PCRA Order December 21, 2017
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                    No(s): MC-51-CR-0015719-2009,
          MC-51-CR-0016539-2008, MC-51-CR-0016540-2008,
                        MC-51-CR-0033936-2009

BEFORE: PANELLA, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY NICHOLS, J.:                        FILED APRIL 15, 2019
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        Appellant Christian Gagnon appeals pro se from the orders denying,

after an evidentiary hearing, his timely first Post Conviction Relief Act1 (PCRA)

petition.2    On appeal, he raises six issues, including several claims of

ineffective assistance of counsel. We affirm.

        We adopt the facts and procedural history set forth on direct appeal in

this Court’s decision of Commonwealth v. Gagnon, 2013 WL 11271206 (Pa.

Super. Apr. 2, 2013) (unpublished mem.).3 See also Commonwealth v.

Gagnon, 358 EDA 2012, 2013 WL 11299445 (Pa. Super. Jan. 23, 2013)

(unpublished mem.) (affirming Appellant’s sentence for contempt for violating

a protection from abuse (PFA) order). We add that for Appellant’s terroristic

threats conviction, the victim was Donna Ferraro and not Appellant’s spouse,

Jeanette Gagnon.4 N.T. Sentencing Hr’g, 7/31/09, at 19. Ms. Gagnon was

the victim in Appellant’s convictions for arson, causing catastrophe,

possession of an instrument of crime, failure to prevent catastrophe, and



____________________________________________


1   42 Pa.C.S. §§ 9541-9546.
2   We resolve Appellant’s appeals together.
3We add that the consolidated docket reflects a preliminary arraignment on
April 15, 2008, and the record establishes a preliminary hearing on September
11, 2008. See N.T. Prelim. Hr’g, 9/11/08, at 1-64.
4 We acknowledge, however, that Ms. Gagnon testified at trial that Appellant
threatened to kill her unless she gave him their son. See, e.g., N.T. Trial,
4/22/09, at 54.




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animal cruelty. Id. Appellant filed a petition for allowance of appeal with the

Pennsylvania Supreme Court, which denied it on September 25, 2013.

       On March 20, 2014, the PCRA court docketed Appellant’s first pro se

PCRA petition. J. Matthew Wolfe, Esq., entered his appearance for Appellant

on August 25, 2014,5 and filed an amended PCRA petition on February 24,

2015, raising three issues.         See Am. Pet. Under PCRA, 2/24/15, at 2-3

(unpaginated). First, trial counsel was ineffective for not calling Linda Delanty

as an alibi witness. Second, Appellant obtained newly discovered evidence,

specifically a letter from Ms. Gagnon recanting her trial testimony that

implicated Appellant in the arson. Third, trial counsel was ineffective by not

objecting to Ms. Gagnon’s testimony about confidential communications

subject to the marital privilege.

       On September 26, 2016, the PCRA court held an evidentiary hearing on

only Appellant’s claim that Ms. Gagnon recanted her testimony.            At the

hearing, Appellant claimed that in September 2013, his wife mailed an

undated, unsigned letter, which admitted she lied about the arson. PCRA Ct.

Op., 5/2/18, at 10. According to the PCRA court, the “letter stated in part

that Ms. Gagnon apologizes to Appellant for ‘everything,’ that she ‘messed




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5 The record does not establish whether Attorney Wolfe was appointed or
privately-retained.


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up,’ that she knows Appellant ‘didn’t set that fire,’ and that she begs Appellant

not to ‘put [her] in jail.’” Id.

        Ms. Gagnon testified at the hearing and unequivocally denied
        sending Appellant the letter. Ms. Gagnon testified that she
        harbored none of the sentiments expressed in the letter, and that
        she never did, and never would, send Appellant any such letter or
        express such sentiments to him. Moreover, Ms. Gagnon testified
        that she sought to retract none of her trial testimony.

        Although Ms. Gagnon testified that the envelope sent to the prison
        was hers, she explained the letter was not. Ms. Gagnon explained
        that she sent Appellant only one letter following the 2008 arson,
        but that the unsigned, undated, typed letter presented by
        Appellant was not it.

Id. at 10-11 (citation omitted).6 The court did not rule on Appellant’s petition.

        On November 21, 2016, Allan J. Sagot, Esq., entered his appearance for

Appellant.7 On January 27, 2017, Benjamin Cooper, Esq., who was associated

with Attorney Sagot’s firm, filed a second amended PCRA petition reiterating

the four issues raised in Appellant’s first amended PCRA petition and

identifying one new issue.8 Specifically, the new issue was trial counsel was



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6 In its Rule 1925(a) opinion, the PCRA court stated that it found Ms. Gagnon’s
testimony more credible. PCRA Ct. Op. at 11 (stating, “Upon considering their
conflicting testimony in the overall context of this case, this Court deemed Ms.
Gagnon’s testimony that she never sent Appellant the ‘recantation’ letter, and
never contemplated recanting any of her trial testimony, was credible.”).
7The record does not indicate whether or when Attorney Wolfe was granted
permission to withdraw.
8   Attorney Cooper did not file a formal entry of appearance.




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ineffective by not investigating the crime scene and other eyewitnesses, as

well as by not presenting character evidence. On April 3, 2017, the PCRA

court issued a Pa.R.Crim.P. 907 notice of intent to dismiss, which stated that

the issues raised lacked merit.9 Appellant and Appellant’s counsel did not file

a response to the Rule 907 notice.             The PCRA court dismissed Appellant’s

petition on May 19, 2017, and sua sponte granted Attorney Cooper permission

to withdraw.10

        The PCRA court docketed Appellant’s pro se notice of appeal on June 8,

2017. The PCRA court appointed John Belli, Esq., as Appellant’s appellate

counsel. At Attorney Belli’s request, this Court remanded to have the PCRA

court conduct a Grazier11 hearing, which occurred on December 21, 2017.

Order, 12/21/17.12 On January 16, 2018, the PCRA court granted Attorney


____________________________________________


9The Rule 907 notice did not reference the September 26, 2016 evidentiary
hearing.
10Attorney Cooper did not file a petition to withdraw under Commonwealth
v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550
A.2d 213 (Pa. Super. 1988). We add that the court’s order did not provide for
Attorney Sagot’s withdrawal.
11   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
12 Appellant represented in his appellate brief that he requested the PCRA
court to amend its May 19, 2017 order to include the four municipal court
docket numbers associated with his previously raised PCRA claims.
Appellant’s Brief at 5; Order, 12/21/17. The PCRA court agreed and amended
its May 19, 2017 order accordingly. Given the procedural complexity of this
matter, we deem it appropriate to construe Appellant’s June 8, 2017 notice of
appeal as premature, but timely filed. See Pa.R.A.P. 905(a)(5) (“A notice of



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Belli permission to withdraw and permitted Appellant to represent himself pro

se. Order, 1/16/18. Appellant timely filed a court-ordered Pa.R.A.P. 1925(b)

statement.13

       Appellant raises three issues:

       [1.] Whether trial courts [sic] erred by not meeting the three
       elements of arson to establish guilt beyond reasonable doubt, and
       counsel being ineffective for not raising the issues at trial as
       [Appellant]   provided    counsel     for  these   issues   from
       Commonwealth v. Scott.

       [2.] Whether counsel was ineffective for not bringing forth the
       connection between the assault and arson cases when [A]ppellant
       was without a doubt the victim of assault, especially when counsel
       knew [A]ppellant had witnesses he wanted called in his favor,
       evidence to present and whether [the trial court] erred in
       justifying Mr. Massott and Mr. Rosario initiating the assault rather
       than calling 911 and allowing police to do their job.

       [3.] Whether PCRA court failed to acknowledge evidence &
       circumstances and examine the validity of the letter Mrs. Gagnon
       wrote [A]ppellant and how Mrs. Gagnon’s testimony is not credible
       due to inconsistencies.

Appellant’s Brief, No. 1887 EDA 2017, at 2.

____________________________________________


appeal filed after the announcement of a determination but before the entry
of an appealable order shall be treated as filed after such entry and on the
day thereof.”). Appellant, however, is not entitled to PCRA relief for any of
the crimes associated with the municipal court docket numbers because he is
not currently serving sentences of imprisonment, probation, or parole for
those crimes. See 42 Pa.C. § 9543(a)(1) (stating petitioner, in order to be
eligible for PCRA relief, must be currently serving a sentence). According to
the municipal court dockets, Appellant has completed serving his sentences.
13Due to the complex appellate procedural history, which we do not reproduce
here, Appellant filed two appellate briefs, with each brief raising three issues.
On April 17, 2018, this Court ordered that Appellant’s two appeals be resolved
together. Order, 4/17/18.


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      [4.] Whether trial court erred in making a verbal P.F.A. order,
      failing to understand the nature of contempt proceedings,
      violating [A]ppellant in 2011 for cases that lacked jurisdiction,
      attaching the sentence to the assault case, the prosecution acting
      out of malice, and counsel being ineffective.

      [5.] Whether counsel was ineffective for not objecting to the
      Commonwealth building a case with conjecture, speculation and
      hearsay against the [A]ppellant after his arrest and not objecting
      to the Commonwealth using [A]ppellant[’]s wife against the
      [A]ppellant.

      [6.] Whether [A]ppellant was wrongfully and maliciously arrested
      by Detective Dewey for arson when an Arrest Warrant Affidavit of
      Probable Cause was not established or signed by a magistrate,
      violating the [A]ppellant[’]s 4th Amendment to [sic] illegal search
      and seizure, the 5th and 14th Amendment[’]s “Due Process”, the
      8th Amendment to [sic] being subjected to Cruel and Unusual
      Punishment, and 6th Amendment for Ineffective Assistance of
      Counsel because counsel overlooked these issues.

Appellant’s Brief, No. 117 EDA 2018, at 2.

      Initially, Appellant waived issues one and two at docket no. 1887 EDA

2017 and issue four at docket no. 117 EDA 2018 because they were not raised

in his amended petitions, and therefore cannot be litigated for the first time

on appeal. See Commonwealth v. Lambert, 797 A.2d 232, 240-41 (Pa.

2001).

      Before addressing Appellant’s remaining arguments, we summarize the

applicable standard of review.

      [O]ur standard of review from the denial of a PCRA petition is
      limited to examining whether the PCRA court’s determination is
      supported by the evidence of record and whether it is 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.

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      Furthermore, to establish a claim of ineffective assistance of
      counsel, a defendant must show, by a preponderance of the
      evidence, ineffective 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. The burden is on the defendant
      to prove all three of the following prongs: (1) the underlying claim
      is of arguable merit; (2) that counsel had no reasonable strategic
      basis for his or her action or inaction; and (3) but for the errors
      and omissions of counsel, there is a reasonable probability that
      the outcome of the proceedings would have been different.

Commonwealth v. Sandusky, ___ A.3d ___, ___, 2019 WL 440996, *2 (Pa.

Super. 2019) (citations and internal quotation marks omitted).

      For his third issue at docket no. 1887 EDA 2017, Appellant contends the

PCRA court erred by finding Ms. Gagnon’s testimony regarding the recantation

letter more credible than his testimony. Appellant’s Brief, 1887 EDA 2017, at

24.   Appellant discusses facts that, in his view, undermine Ms. Gagnon’s

credibility.   Id. at 24-26.   The PCRA court’s credibility determinations,

however, bind this Court. See Sandusky, ___ A.3d at ___, 2019 WL 440996

at *2. Here, the PCRA court found credible Ms. Gagnon’s testimony that she

did not write the unsigned typewritten letter allegedly recanting her trial

testimony.     See id.    Accordingly, we cannot conclude Appellant has

established error.




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        Turning to Appellant’s fifth issue at docket no. 117 EDA 2018,14

Appellant argues that trial counsel was ineffective by failing to object when

Ms. Gagnon testified against him. Appellant’s Brief, No. 117 EDA 2018, at 17.

Appellant argues that because Ms. Gagnon did not personally see him set the

fire, she is not competent to testify against him. Id. at 17-18. He also claims

that Ms. Gagnon should not have been permitted to testify about confidential

communications between them.              Id. at 18.   Relatedly, he accuses the

Commonwealth of misrepresenting Appellant’s letters, which it introduced at

his trial.15 Id. at 20-21.16 Trial counsel, Appellant maintains, was therefore

ineffective by not objecting. Id.

        The standard of review for a trial court’s decision regarding the

admission of evidence is well settled:

        Questions regarding the admission of evidence are left to the
        sound discretion of the trial court, and we, as an appellate court,
        will not disturb the trial court’s rulings regarding the admissibility
        of evidence absent an abuse of that discretion. An abuse of
        discretion is not merely an error of judgment; rather, discretion is
        abused when the law is overridden or misapplied, or the judgment

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14   We held Appellant waived his fourth issue above.
15 According to the Commonwealth, Appellant wrote these letters to Ms.
Gagnon, but mailed the letters from prison to Ms. Gagnon’s brother-in-law.
Commonwealth’s Brief, No. 117 EDA 2018, at 11. The Commonwealth argues
that Appellant’s letters were not confidential. Id.
16Appellant also claims counsel was ineffective by not objecting to a witness
testifying about confidential letters written by Appellant. Appellant’s Brief, No.
117 EDA 2018, at 18. Appellant waived that issue by not raising it in his PCRA
petition.


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      exercised is manifestly unreasonable, or the result of partiality,
      prejudice, bias, or ill-will, as shown by the evidence or the record.

Commonwealth v. Trinidad, 96 A.3d 1031, 1036 (Pa. Super. 2014)

(internal quotation marks and citations omitted).

      Section 5913 sets forth the provision with respect to a spouse acting as

a witness against the other spouse:

      Except as otherwise provided in this subchapter, in a criminal
      proceeding a person shall have the privilege, which he or she may
      waive, not to testify against his or her then lawful spouse except
      that there shall be no such privilege:

         (1) in proceedings for desertion and maintenance;

         (2) in any criminal proceeding against either for bodily injury
      or violence attempted, done or threatened upon the other, or upon
      the minor children of said husband and wife, or the minor children
      of either of them, or any minor child in their care or custody, or in
      the care or custody of either of them;

         (3) applicable to proof of the fact of marriage, in support of a
      criminal charge of bigamy alleged to have been committed by or
      with the other; or

        (4) in any criminal proceeding in which one of the charges
      pending against the defendant includes murder, involuntary
      deviate sexual intercourse or rape.

42 Pa.C.S. § 5913.

      As the Pennsylvania Supreme Court explained in Commonwealth v.

Mattison, 82 A.3d 386 (Pa. 2013), Section 5913 “affords the testifying spouse

a waivable privilege to refuse to give adverse testimony against his or her

spouse in a criminal trial, except [in] cases where one spouse is charged with

threatening, attempting or committing an act of bodily injury or violence on


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the spouse.” Id. at 394 n.4 (citation omitted). More precisely, the testifying

spouse has “no privilege to refuse to testify against [the other] spouse” in

cases involving threats of violence. Commonwealth v. Newman, 633 A.2d

1069, 1072 (Pa. 1993); see 42 Pa.C.S. § 5913.

      Section 5914, which addresses confidential communications between

spouses, states, “[e]xcept as otherwise provided in this subchapter, in a

criminal proceeding neither husband nor wife shall be competent or permitted

to testify to confidential communications made by one to the other, unless

this privilege is waived upon the trial.” Id. § 5914. In other words, “[e]ven

if a husband or wife may be called to give testimony adverse to his or her

spouse, however, he or she is not competent [under Section 5914] to testify

to confidential communications.” Mattison, 82 A.3d at 394 n.4 (brackets in

original and citation omitted).

      In Commonwealth v. McBurrows, 779 A.2d 509 (Pa. Super. 2001),

this Court explained Section 5914 as follows:

      This privilege prevents a husband or wife from testifying against
      their spouse as to any communications which were made during
      the marital relationship. The privilege remains in effect through
      death or divorce. The confidential communication cannot be
      divulged without the consent of the other spouse. The public
      policy sought to be enhanced by this privilege is the preservation
      of marital harmony and the resultant benefits to society from that
      harmony. Communications between spouses are presumed to be
      confidential, and the party opposing application of the rule
      disqualifying such testimony bears the burden of overcoming this
      presumption. In order for a confidential communication between
      spouses to be protected, knowledge must be gained through the
      marital relationship and in the confidence which that relationship
      inspires. In order to be protected under § 5914, it is essential

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      that the communication be made in confidence and with the
      intention it not be divulged. Therefore, whether a particular
      communication is privileged depends upon its nature and
      character of the circumstances under which it was said.

McBurrows, 779 A.2d at 514 (internal quotation marks and citations

omitted).   For example, communications from one spouse to another

regarding past, ongoing, and future or intended crimes against that spouse

are not privileged communications. Commonwealth v. Spetzer, 813 A.2d

707, 720-21 (Pa. 2002). Any communications tending to create or promote

marital disharmony are not privileged communications. Id. & 721 n.6.

      Initially, the waivable privilege exists for Ms. Gagnon because

Appellant’s case did not involve any of the four excludable categories of

offenses in Section 5913. See 42 Pa.C.S. § 5913(1)-(4); Mattison, 82 A.3d

at 394 n.4. Although, for the dockets at issue, Appellant was charged with

multiple offenses involving bodily injury or threats of violence, none directly

involved Ms. Gagnon as the victim.      See N.T. Sentencing Hr’g at 19; 42

Pa.C.S. § 5913(2).     Indeed, as noted above, the victim for Appellant’s

terroristic threats conviction was not Ms. Gagnon. See N.T. Sentencing Hr’g

at 19. Therefore, Ms. Gagnon could waive the privilege when she testified

against Appellant, and Appellant’s assertion to the contrary lacks merit. See

42 Pa.C.S. § 5913.

      With respect to Appellant’s argument about the Section 5914 privilege,

Appellant has not explained how or why the communications at issue are

privileged. See Spetzer, 813 A.2d at 720-21. He does not address whether

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the communications at issue created or furthered marital harmony. See id.

He also does not argue why the communications did not concern his past

crimes, e.g., arson. See id. at 721 & n.6. Finally, as the Commonwealth

observed, Appellant has not demonstrated that the letters mailed to Ms.

Gagnon’s brother-in-law should be considered confidential. See McBurrows,

779 A.2d at 514. For these reasons, Appellant has not established arguable

merit to his ineffective assistance of counsel claim.

      Appellant’s sixth issue is that the police illegally arrested him because

the arrest warrant was not signed by the magisterial district judge until after

his arrest. Appellant’s Brief, 117 EDA 2018, at 22. He claims that he was

arrested on April 14, 2008, around 1:00 p.m.—although he acknowledges that

the police report states he was arrested at 1:58 p.m. Id. at 23. Appellant

asserts, however, that the affidavit of probable cause was created four hours

later, at 5:13 p.m. Id. Counsel, Appellant argues, was generally ineffective

for failing to challenge the legality of his arrest for the arson and related

charges at docket no. 11482-2008. Id. at 27.

      Pennsylvania Rule of Criminal Procedure 109 addresses defects in the

warrant:

      A defendant shall not be discharged nor shall a case be dismissed
      because of a defect in the form or content of a complaint, citation,
      summons, or warrant, or a defect in the procedures of these rules,
      unless the defendant raises the defect before the conclusion of the
      trial in a summary case or before the conclusion of the preliminary
      hearing in a court case, and the defect is prejudicial to the rights
      of the defendant.


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Pa.R.Crim.P. 109.

       In Commonwealth v. Abdul-Salaam, 678 A.2d 342 (Pa. 1996), the

Pennsylvania Supreme Court addressed a similar situation on direct appeal in

which the defendant contended that “the affidavit for the issuance of the arrest

warrant, which was filed after [the defendant’s] arrest, failed to set forth

probable cause.”       Abdul-Salaam, 678 A.2d at 347 (footnote omitted).

According to the Abdul-Salaam Court, the trial court “found that the probable

cause issue was moot in light of the preliminary hearing in which [the

magisterial district judge] found that a prima facie case existed.” Id. at 348.

       The trial court reasoned that at the preliminary hearing, the
       Commonwealth was required to establish probable cause to
       warrant a belief that [the defendant] committed the charged
       offenses. Thus, because probable cause was established at the
       preliminary hearing, the issue became moot.

Id.   The Supreme Court agreed, holding, “we agree with the trial court’s

determination that upon the district justice’s finding at the preliminary hearing

that a prima facie case had been established, any issue concerning a defect in

the affidavit became moot . . .” Id. at 349.

       Moreover, as the Commonwealth points out, Pa.R.Crim.P. No.
       [10917] provides that a defendant shall not be discharged nor shall
       charges be dismissed because of any defect in the form or content
       of a complaint, summons, or warrant, unless the defendant raises
       the defect before the termination of the preliminary hearing and
       the defect is prejudicial to the rights of the defendant.
       Additionally, the comment to Pa.R.Crim.P. No. [109] notes that

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17The relevant rule was renumbered to 109 in 2001, five years after the
Abdul-Salaam decision.


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      the Commonwealth may amend a complaint, summons, or
      warrant or file a new complaint against the defendant upon the
      finding of a defect. Thus, even if [the defendant’s] motion
      concerning the defective affidavit had prevailed at the opening of
      the preliminary hearing and the complaint was dismissed, the
      Commonwealth could have, and almost certainly would have,
      immediately amended or filed a new complaint. Therefore, we
      find that [the defendant] was not prejudiced by the trial court’s
      refusal to dismiss the complaint against [the defendant], and thus,
      was not entitled to relief.

Id.

      Here, even assuming there was a material defect in Appellant’s affidavit

of probable cause for an arrest, Appellant—like the defendant in Abdul-

Salaam—had a preliminary hearing, at which a judge held there was probable

cause.   Cf. id. at 348.     Appellant, therefore, cannot establish prejudice

because, like the Abdul-Salaam Court, any defect became moot after a judge

held the Commonwealth established a prima facie case. Cf. id. at 349. It

follows that Appellant cannot establish counsel’s ineffectiveness assistance.

See Sandusky, ___ A.3d at ___, 2019 WL 440996 at *2. For these reasons,

we affirm the order below.

      Order   affirmed.      Appellant’s     applications   to   object   to   the

Commonwealth’s request for extension of time to file brief are denied.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/15/19




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