J-S01034-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :      IN THE SUPERIOR COURT OF
                                         :
           v.                            :
                                         :
EVAN SMITH,                              :
                                         :
                  Appellant              :           No. 487 MDA 2016

                Appeal from the PCRA Order February 23, 2016
                 in the Court of Common Pleas of York County,
              Criminal Division, No(s): CP-67-CR-0000418-2012

BEFORE: GANTMAN, P.J., DUBOW and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                       FILED MARCH 30, 2017

     Evan Smith (“Smith”) appeals from the Order denying his first Petition

for relief filed pursuant to the Post Conviction Relief Act (“PCRA”). See 42

Pa.C.S.A. §§ 9541-9546. We affirm.

     In its Opinion, the PCRA court thoroughly set forth the factual and

procedural history, which we adopt herein for the purpose of this appeal.

See PCRA Court Opinion, 5/12/16, at 1-9.

     As an addendum, we observe that Smith was convicted of numerous

sexual offenses, some of which had applicable statutory mandatory

minimum sentences under 42 Pa.C.S.A. § 9718(a) (governing sentences for
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offenses against minors).1 Smith was represented at trial by William Graff,

Esquire (“Attorney Graff” or “trial counsel”).   On direct appeal, Smith was

represented by Heather Reiner, Esquire (“Attorney Reiner”).

     In this timely appeal, Smith presents the following issues for our

review:

      I. Whether the [PCRA c]ourt erred in denying relief for Attorney
         Graff being ineffective for failing to property [sic] contest the
         evidence against him, specifically the DNA evidence that was
         found on the condom?

     II. Whether the [PCRA c]ourt erred in denying relief based on
         Attorney Graff’s failure to interview and call witnesses on
         [Smith’s] behalf, specifically Robert Fleshman [(hereinafter
         “Fleshman”)]?

    III. Whether the [PCRA c]ourt erred in denying relief based on
         Attorney Graff and Attorney Reiner failing to challenge the
         mandatory sentences that were imposed on [his convictions,]
         of 15 to 30 years, after the U[.]S[.] Supreme Court decision
         in Alleyne v. United States[, 133 S. Ct. 2151 (2013)2]?


1
  Section 9718(a) applied to Smith’s following convictions: two counts of
rape of a child less than 13 years of age, 18 Pa.C.S.A. § 3121(c) (mandatory
minimum sentence of 10 years in prison under section 9718(a)(3)); two
counts of involuntary deviate sexual intercourse with a child less than 13
years of age, 18 Pa.C.S.A. § 3123(b) (mandatory minimum sentence of 10
years in prison under section 9718(a)(1)); and one count of aggravated
indecent assault of a child less than 13 years of age, 18 Pa.C.S.A.
§ 3125(a)(7) (mandatory minimum sentence of 10 years in prison under
section 9718(a)(3)). Prior to sentencing, the Commonwealth filed a Notice
of its intent to pursue the above-mentioned mandatory minimum sentences
under section 9718(a). Notably, however, at sentencing, the trial court did
not apply a mandatory minimum sentence on the above-mentioned
convictions, choosing to sentence above the statutory minimums. See N.T.,
2/25/14, at 8-9.
2
  Alleyne was decided on June 17, 2013, prior to the imposition of Smith’s
judgment of sentence.


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     IV. Whether the [PCRA c]ourt erred in denying [Smith] a new
         trial due to the letter that was sent to him by [his ex-wife,]
         C[.] S[.] [(hereinafter “Ms. S.” or “C.S.”),] after the trial?

Brief for Appellant at 4 (footnote added).

      “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Montalvo, 114 A.3d 401, 409 (Pa. 2015) (citation and

internal quotation marks omitted). “This Court’s scope of review is limited to

the findings of the PCRA court and the evidence on the record of the PCRA

court’s hearing, viewed in the light most favorable to the prevailing party, in

this case, the Commonwealth.”     Commonwealth v. Fahy, 959 A.2d 312,

316 (Pa. 2008).

      In his first issue, Smith argues that the PCRA court erred in denying

him collateral relief where Attorney Graff rendered ineffective assistance by

his alleged failure to properly challenge the DNA evidence recovered from

the used condom that Ms. S. had found hidden in the drop ceiling of her

home. Brief for Appellant at 8. Smith asserts as follows:

      During the trial[,] a stipulation was entered [] concerning the
      condom. That stipulation [] include[d] that the DNA that was
      found on the condom could have been the product of cross-
      contamination. [Smith] [] assert[s] that decision by Attorney
      Graff did not take into account any attempts to investigate the
      condition of the condom[, which] would have been allegedly in
      the ceiling for months. More importantly[,] it did not include
      what type of cells were found on the condom. During the DNA
      test[,] no seminal fluid was found on the condom.          This
      information would have not only aided in the cross-
      contamination theory, but also helped raise questions about the
      credibility of [Ms.] S[.]


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Id.

      Our review of a claim of ineffectiveness of counsel is as follows:

      [A] PCRA petitioner will be granted relief only when he proves,
      by a preponderance of the evidence, that his conviction or
      sentence resulted from the 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. 42
      Pa.C.S. § 9543(a)(2)(ii). Counsel is presumed effective, and to
      rebut that presumption, the PCRA petitioner must demonstrate
      that counsel’s performance was deficient and that such
      deficiency prejudiced him. In Pennsylvania, … to prove counsel
      ineffective, the petitioner must show that: (1) his underlying
      claim is of arguable merit; (2) counsel had no reasonable basis
      for his action or inaction; and (3) the petitioner suffered actual
      prejudice as a result. If a petitioner fails to prove any of these
      prongs, his claim fails.       Generally, counsel’s assistance is
      deemed constitutionally effective if he chose a particular course
      of conduct that had some reasonable basis designed to
      effectuate his client’s interests. Where matters of strategy and
      tactics are concerned, a finding that a chosen strategy lacked a
      reasonable basis is not warranted unless it can be concluded that
      an alternative not chosen offered a potential for success
      substantially greater than the course actually pursued.         To
      demonstrate prejudice, the petitioner must show that there is a
      reasonable probability that, but for counsel’s unprofessional
      errors, the result of the proceedings would have been different.
      A reasonable probability is a probability that is sufficient to
      undermine confidence in the outcome of the proceeding.

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citations,

quotation marks and brackets omitted); see also Commonwealth v.

Lesko, 15 A.3d 345, 380 (Pa. 2011) (stating that “[w]hen evaluating

ineffectiveness claims, judicial scrutiny of counsel’s performance must be

highly deferential.” (citation and internal quotation marks omitted)).




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       In its Opinion, the PCRA court addressed this claim and determined

that Attorney Graff was not ineffective in this regard, as he (1) made a

reasonable strategic decision in agreeing to the stipulation concerning the

DNA evidence; (2) “effectively presented a challenge to [Ms. S.’s] version of

how the condom was found”; and (3) “argu[ed] the contamination theory[.]”

See PCRA Court Opinion, 5/12/16, at 10-11; see also Spotz, supra;

Commonwealth v. Puksar, 951 A.2d 267, 277 (Pa. 2008) (stating that

“[a]   claim   of   ineffectiveness   cannot   succeed   through   comparing,   in

hindsight, the trial strategy employed [by defense counsel] with alternatives

not pursued.”).      We agree with the PCRA court’s cogent rationale and

determination, which is supported by the law and the record. Accordingly,

we affirm on this basis in rejecting Smith’s first issue.      See PCRA Court

Opinion, 5/12/16, at 10-11.

       In his second issue, Smith contends that Attorney Graff was ineffective

for failing to interview Fleshman and present his testimony at trial. 3 Brief for

Appellant at 9.

       Initially, we observe that we could deem this issue waived for Smith’s

failure to adequately develop it in his Argument section, which consists of

merely three sentences, without citation to legal authority or the record.

See Pa.R.A.P. 2119(a) (mandating that an appellant develop an argument


3
  Smith fails to explain who Fleshman is or how he has any relevant
knowledge concerning the case. Fleshman died prior to the hearing on
Smith’s PCRA Petition.


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with citation to and analysis of relevant legal authority); Jacobs v.

Chatwani, 922 A.2d 950, 962-63 (Pa. Super. 2007) (finding waiver where

the appellant provided only a vague, undeveloped argument in support of

her claim and did not cite to the record).

        Nevertheless,   the   PCRA     court   concisely   addressed    Smith’s

ineffectiveness challenge regarding Fleshman in its Opinion, and properly

determined that it lacks merit. See PCRA Court Opinion, 5/12/16, at 11-12.

We affirm on this basis in rejecting Smith’s second issue. See id.4

        In his third issue, Smith asserts that Attorney Graff and Attorney

Reiner were ineffective for failing to challenge his sentence as being illegal,

insofar as it was purportedly imposed under 42 Pa.C.S.A. § 9718(a), which


4
    We additionally observe that

        [t]here are two requirements for relief on an ineffectiveness
        claim for a failure to present witness testimony. The first
        requirement is procedural.      The PCRA requires that, to be
        entitled to an evidentiary hearing, a petitioner must include in
        his PCRA petition “a signed certification as to each intended
        witness stating the witness’s name, address, date of birth and
        substance of testimony.”         42 Pa.C.S.A. § 9545(d)(1);
        Pa.R.Crim.P. 902(A)(15).         The second requirement is
        substantive. Specifically, when raising a claim for the failure to
        call a potential witness, to obtain relief, a petitioner must
        establish that: (1) the witness existed; (2) the witness was
        available; (3) counsel was informed or should have known of the
        existence of the witness; (4) the witness was prepared to
        cooperate and would have testified on defendant’s behalf; and
        (5) the absence of such testimony prejudiced him and denied
        him a fair trial.

Commonwealth v. Reid, 99 A.3d 427, 438 (Pa. 2014).               In the instant
case, Smith did not meet these requirements.


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was rendered unconstitutional by Alleyne.5 Brief for Appellant at 10. Smith

acknowledges that the sentencing court sentenced him above the section

9718(a) mandatory minimum sentences, but argues that his sentence was

nevertheless illegal because “a certain portion of [Smith’s] sentence is still

subject to the requirements of a mandatory sentence.” Id.6

      In Alleyne, the Supreme Court held that any fact that increases the

sentence for a given crime must be submitted to the jury and found beyond

a reasonable doubt. Alleyne, 133 S. Ct. at 2155. The Court reasoned that

a Sixth Amendment violation occurs where these sentence-determinative

facts are not submitted to a jury. Id. at 2156. “[A] challenge to a sentence

premised upon Alleyne … implicates the legality of the sentence and cannot

be waived on appeal.” Commonwealth v. Newman, 99 A.3d 86, 90 (Pa.

Super. 2014) (en banc). “Such a claim may be raised on direct appeal, or in

a timely filed PCRA petition.”   Commonwealth v. Ruiz, 131 A.3d 54, 60

(Pa. Super. 2015) (citation and emphasis omitted). Relevant to the instant

appeal, our Pennsylvania Supreme Court has declared that Alleyne




5
  Attorney Reiner did not raise an Alleyne challenge in Smith’s direct
appeal.
6
  Specifically, Smith contends that his sentence “has an impact on [Smith’s]
availability for any early parole programs, as offered by the state
correctional system, or any alternative housing.” Brief for Appellant at 10.
Smith does not further develop or cite support for this claim aside from his
bald, vague assertion.


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rendered 42 Pa.C.S.A. § 9718 unconstitutional and void in its entirety.

Commonwealth v. Wolfe, 140 A.3d 651, 661-63 (Pa. 2016).7

     Here, we agree with the PCRA court that Alleyne and Wolfe are

inapplicable because the sentencing court did not apply the mandatory

minimum sentence provisions of 42 Pa.C.S.A. § 9718(a) or any mandatory

minimum sentencing statute.     See PCRA Court Opinion, 5/12/16, at 12.

Rather, the sentencing court, mindful of Smith’s extensive sexual abuse of

his step-daughters over a period of several years, and abuse of his position

of trust via manipulation, imposed a sentence above the section 9718(a)

mandatory minimum provisions, and notwithstanding those provisions. See

id.; N.T. (sentencing), 2/25/14, at 8-9; see also N.T. (PCRA hearing),

2/23/16, at 36-37 (wherein the PCRA court explains that Smith did not

receive mandatory minimum sentences under section 9718(a)). Therefore,

Smith’s argument based on Alleyne fails, and neither Attorney Graff nor

Attorney Reiner was ineffective for failing to raise an Alleyne challenge.

See Commonwealth v. Zeigler, 112 A.3d 656, 662 (Pa. Super. 2015)

(stating that where the sentence imposed exceeds the mandatory minimum,

the sentence does not present a constitutional problem under Alleyne, as

7
  Section 9718 specifies that its provisions “shall not be an element of the
crime,” and that the applicability “shall be determined at sentencing,” with
factual matters being resolved by the sentencing court “by a preponderance
of the evidence.” 42 Pa.C.S.A. § 9718(c); see also Wolfe, 140 A.3d at 653
(stating that “[b]oth the directive that a sentencing factor establishing a
mandatory minimum sentence is not an element of a crime and the
allocation of decision-making authority relative to such factor to a judge
contravene Alleyne.”).


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the   sentencing   court   did   not   apply   the   unconstitutional   mandatory

minimum).

      In his fourth and final issue, Smith argues that the PCRA court erred in

failing to grant him a new trial based upon purportedly exculpatory evidence

that he discovered after his convictions (namely, an unsigned, undated letter

that Ms. S. had allegedly mailed to Smith in prison, detailing how Ms. S. had

fabricated the crimes to “set up” Smith). Brief for Appellant at 10-11.

      The PCRA court concisely addressed this claim in its Opinion,

summarized the law concerning newly-discovered evidence, and correctly

determined that the claim lacks merit. See PCRA Court Opinion, 5/12/16, at

13-14; see also Commonwealth v. Scott, 470 A.2d 91, 93 (Pa. 1983)

(stating that a claim of newly-discovered evidence will fail where the

proposed new evidence is not admissible); see also Commonwealth v.

Henry, 706 A.2d 313, 321 (Pa. 1997) (noting that recantation evidence is

notoriously unreliable, and where it involves an admission of perjury, it is

the least reliable source of proof; unless the PCRA court is satisfied that the

recantation is true, it should deny a new trial).       We affirm based on the

PCRA court’s rationale in rejecting Smith’s final issue.        See PCRA Court

Opinion, 5/12/16, at 13-14.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/30/2017




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