J-S19013-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 MARKEITH AIKENS                          :
                                          :
                    Appellant             :   No. 2334 EDA 2018

             Appeal from the PCRA Order Entered July 11, 2018
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0003098-2013


BEFORE: BOWES, J., McCAFFERY, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.:                               FILED JULY 24, 2020

      Markeith Aikens appeals pro se from the dismissal of his first Post-

Conviction Relief Act (“PCRA”) petition. After careful review, we affirm.

      The trial court summarized the relevant factual history of this case as

follows:

             Ms. Linda Tolbert testified that, at the relevant time, she
      owned and resided at 931 North 40th Street, Philadelphia, PA.
      The property was originally a three-story apartment complex that
      Ms. Tolbert had converted into a single family residence. She
      testified that five other family members also lived in the home,
      including her thirty-four year-old nephew, Appellant, who resided
      in the back bedroom on the second floor. In addition to the
      permanent residents, about ten[ to ]twelve of Ms. Tolbert’s
      grandchildren stayed at the residence on the weekends, including
      her grandson T.T., the complainant. When the children were
      there, they would mostly spend their time playing in the “play
      room” located in the front room on the second floor and, according
      to Ms. Tolbert, they would generally sleep in that area as well.

             Complainant, T.T., who is currently nineteen years old,
      testified that he stayed at his grandmother’s house every weekend
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     during the years of 2011 and 2012. T.T. further testified that
     sometime in 2011, when he was fourteen years old, Appellant
     called him into his bedroom and asked him whether he wanted to
     watch “porn” and put on a DVD showing naked men and woman
     having sex. While they were watching the DVD, Appellant and
     T.T. both exposed their penises. T.T. testified that Appellant bent
     him over and put his penis into his anus. Appellant also asked to
     perform oral sex on T.T., and then Appellant put T.T.’s penis into
     his mouth and put his penis into T.T.’s mouth.

           T.T.’s grandmother, Ms. Tolbert, testified that she did not
     know about these incidents until T.T. confided in her in late
     January of 2013. Ms. Tolbert testified that T.T. woke her up one
     night, about three in the morning, and told her, “[Appellant] had
     sex with me,” followed by “a lot of times.” When Ms. Tolbert asked
     T.T. what he meant by that statement, he told her that Appellant
     “pulled [his] pants down and went inside of [him],” and that
     Appellant asked whether he wanted to have oral sex, but he had
     said “no.” Upon hearing this, Ms. Tolbert tried to call T.T.’s mother
     to notify her about the situation, but T.T. begged her not to say
     anything because he was “scared” and promised that he would tell
     her himself within the next week.

            T.T.’s mother, Ms. Karima Tolbert testified that T.T. suffers
     from an intellectual disability and that, as a result of his disability,
     he requires special education and sometimes experiences
     difficulty communicating and understanding everyday problems.
     T.T. informed her about the incidents on January 30, 2013, while
     they were at his doctor’s appointment at Children’s Hospital of
     Philadelphia (CHOP) for a routine annual physical exam. Karima
     testified that while they were waiting in the examination room,
     T.T. told her he had wanted to get an HIV test because “Me and
     Marky had sex.” When she asked him, “[s]ex like what, sex like
     you entered him or he entered you?” T.T. responded, “yeah. . .
     [h]e did it to me.” Karima immediately left the examination room,
     called her mother, and took T.T. home without completing the
     examination. After Karima contacted the police, she, T.T., and
     Linda Tolbert went to the Special Victim’s Unit to file a police
     report. Subsequently, on February 13, 2013, Karima and T.T.
     returned to CHOP to complete the examination and get an HIV
     test.

           Philadelphia Police Officer Gregory Meissler, a fourteen year
     veteran of the Philadelphia Police Department, Special Victim’s

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      Unit, testified that as part of his investigation, he interviewed T.T.
      and Karima separately, taking individual statements from each of
      them. Based on these interviews, Officer Meissler obtained an
      affidavit of probable cause in support of an arrest warrant for
      Appellant, which was subsequently issued.

             Complainant’s twin brother, M.T., testified that after his
      family returned from the Special Victims Unit on January 30, 2013,
      T.T. told him, for the first time, that he had sex with Appellant on
      two prior occasions. M.T. also testified that there were times
      when Appellant and T.T. spent time alone together at his
      grandmother’s house.

Trial Court Opinion, 8/4/15, at 5-7 (cleaned up).

      Appellant was charged with multiple sexual offenses, and on April 25,

2014, was convicted by a jury of unlawful contact with a minor and corrupting

morals of a minor.      He was found not guilty of involuntary deviate sexual

intercourse (“IDSI”).     Prior to sentencing, trial counsel presented an oral

motion for extraordinary relief. See N.T. Sentencing Hearing, 8/7/14, at 10-

16. In the motion, counsel challenged the grading of Appellant’s conviction

for unlawful contact with a minor as a first-degree felony, due to the IDSI

acquittal. The trial court denied Appellant’s motion and proceeded directly to

sentencing, imposing an aggregate sentence of seven to fifteen years of

imprisonment. In fashioning its sentence, the trial court graded the unlawful

contact with a minor as a first-degree felony and imposed a sentence of six to

twelve years of incarceration. The court further imposed a consecutive one-

to-three-year sentence for the corruption-of-a-minor conviction.        Appellant

timely filed a post-sentence motion, renewing his argument that his conviction




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for unlawful contact with a minor should be graded as third-degree felony.

The trial court denied Appellant’s motion, and he filed a direct appeal.

          Although Appellant initially raised seven issues in his Pa.R.A.P. 1925(b)

statement, he only pursued one issue on appeal challenging the grading of his

unlawful contact conviction at sentencing. In a published opinion, we rejected

Appellant’s allegation of error. See Commonwealth v. Aikens, 139 A.3d

244 (Pa.Super. 2016). Our Supreme Court agreed. After finding that the jury

instruction properly required the jury to find that Appellant contacted the

victim for the purpose of engaging in IDSI before it could return a guilty verdict

for unlawful contact with a minor, our Supreme Court affirmed Appellant’s

judgment of sentence. See Commonwealth v. Aikens, 168 A.3d 137 (Pa.

2017).

          Appellant filed a timely pro se PCRA petition, in which he again asserted

that his sentence was illegal due to the improper grading of his unlawful

contact conviction. Appellant also argued that trial counsel was ineffective for

failing to object when the prosecutor asked leading questions of the victim

and when the court delivered confusing instructions regarding the elements

of the charges to the jury. On February 14, 2018, appointed counsel filed a

Turner/Finley1 letter and a motion to withdraw, asserting that after

reviewing the record, Appellant had no grounds for achieving post-conviction

relief.     The PCRA court agreed with counsel’s assessment and issued a
____________________________________________


1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

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Pa.R.Crim.P. 907 notice of its intent to dismiss, in which it granted counsel’s

request to withdraw. Appellant filed a pro se response, listing eleven claims

of error that he wanted PCRA counsel to pursue. After reviewing Appellant’s

response, the PCRA court dismissed Appellant’s petition as meritless.

Appellant filed a timely notice of appeal and a nunc pro tunc Pa.R.A.P. 1925(b)

concise statement.2 On October 18, 2019, the PCRA court issued its Pa.R.A.P.

1925(a) opinion.

       Appellant raises the following issues for our review:

       A.     Was Appellant’s PCRA counsel ineffective for failure to layer
              an [ineffective assistance of counsel (“IAC”)] claim against
              direct appeal counsel for failure to raise an IAC claim against
              trial counsel for failure to challenge the trial court’s error
              allowing prosecutor to lead [a] witness on the stand while
              testifying, even after [the] judge admonished [the]
              prosecutor warning that if he should continue the judge
              would order charges dismissed; and where after such
              continued conduct, the judge allowed and issued no
              cautionary instruction, and trial counsel neglected to object
              thereto?

       B.     Was Appellant’s PCRA counsel ineffective for failure to raise
              and preserve issues in the original 1925(b) statement filed
              post-trial by direct appeal counsel – i.e., “that the jury’s
              acquittal of Appellant on the charge of IDSI is inconsistent
              with its guilty verdict on unlawful contact with a minor”;
____________________________________________


2  Due to a breakdown in the prison communications system, the PCRA court
did not initially receive Appellant’s Pa.R.A.P. 1925(b) statement and Appellant
did not receive notice of the appellate briefing schedule. As a consequence,
the PCRA court filed its Pa.R.A.P. 1925(a) opinion finding all of Appellant’s
issues waived and we dismissed his appeal for failure to file a brief. After this
was uncovered, Appellant filed an application to reinstate his appeal. We
granted Appellant’s request and remanded the case so that Appellant could
file a nunc pro tunc 1925(b) statement and the PCRA court could issue a
corresponding 1925(a) opinion.

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            where there cannot be an inconsistent verdict when
            acquitted of an underlying or predicate crime of the second
            charge?

      C.    Was Appellant’s PCRA counsel ineffective for failure to rise
            a layered claim of IAC on direct appeal counsel for failure to
            raise IAC claim on trial counsel for failure to challenge
            whether the evidence at trial was sufficient as a matter of
            law to convict Appellant of IDSI?

      D.    Was Appellant’s PCRA counsel ineffective for failure to layer
            an IAC claim against direct appeal counsel for failure to raise
            an IAC claim against trial counsel for failure to challenge and
            raise the claim of whether the verdict was against the weight
            of the evidence?

Appellant’s brief at 2.

      We begin with a discussion of the pertinent legal principles. Our “review

is limited to the findings of the PCRA court and the evidence of record,” and

we do not “disturb a PCRA court’s ruling if it is supported by evidence of record

and is free of legal error.” Commonwealth v. Rykard, 55 A.3d 1177, 1183

(Pa.Super. 2012).     Similarly, “[w]e grant great deference to the factual

findings of the PCRA court and will not disturb those findings unless they have

no support in the record. However, we afford no such deference to its legal

conclusions.”   Id.       “[W]here the petitioner raises questions of law, our

standard of review is de novo and our scope of review is plenary.” Id.

      Appellant alleges layered claims of trial counsel ineffectiveness.      In

reviewing IAC claims, counsel is presumed to be effective, and a PCRA

petitioner bears the burden of proving otherwise. See Commonwealth v.

Becker, 192 A.3d 106, 112 (Pa.Super. 2018). To do so, a petitioner must


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plead and prove that: (1) the legal claim underlying his ineffectiveness claim

has arguable merit; (2) counsel’s decision to act (or not) lacked a reasonable

basis designed to effectuate the petitioner’s interests; and (3) prejudice

resulted. Id. The failure to establish any of the three prongs is fatal to the

claim. Id. at 113.

      Where a petitioner asserts a layered IAC claim he must argue each

prong of the three-prong ineffectiveness test for each separate attorney.

Commonwealth v. Chmiel, 30 A.3d 1111, 1128 (Pa. 2011). As we have

explained:

      Layered claims of ineffectiveness are not wholly distinct from the
      underlying claims, because proof of the underlying claim is an
      essential element of the derivative ineffectiveness claim . . . . In
      determining a layered claim of ineffectiveness, the critical inquiry
      is whether the first attorney that the defendant asserts was
      ineffective did, in fact, render ineffective assistance of counsel. If
      that attorney was effective, then subsequent counsel cannot be
      deemed ineffective for failing to raise the underlying issue.

Commonwealth v. Rykard, 55 A.3d 1177, 1190 (Pa.Super. 2012) (citations

and quotations omitted).

      In Appellant’s first layered IAC claim, Appellant attacks all three of his

prior counsel’s effectiveness after trial counsel failed to object when the

prosecutor asked leading questions of the victim, and appellate and PCRA

counsel did not litigate this issue. See Appellant’s brief at 7-10. The PCRA

court disagreed with Appellant’s recounting of the record and found

Appellant’s claim meritless. See PCRA Opinion, 10/18/19, at 9.

      In its opinion, the PCRA court explained its reasoning as follows:

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             [Appellant] misstates the record. In its brief examination of
      the complaining witness, who was [fourteen] years old at the time
      he was assaulted by [Appellant], trial counsel objected to the
      Commonwealth’s asking leading questions. (N.T., 4/23/14 pgs.
      103, 104) In sustaining trial counsel’s objections, the [c]ourt
      instructed the jury as to the meaning of leading questions,
      concluding: “Leading questions aren’t a terrible thing, but they
      you should by [sic] avoided because in the end, you’re not
      listening to the witness testify. You’re listening to the lawyer
      testify.” (N.T., 4/23/14 pgs. 104-105) The [c]ourt again, on its
      own initiative had to admonish counsel for the Commonwealth to
      refrain for asking leading questions. (N.T., 4/23/14 pgs. 107-109)

             Due to the delicate nature of the charges against [Appellant]
      and the age of the complainant at the time of the offense, it was
      clear that the complainant was a reluctant witness. (N.T., 4/23/14
      pgs. 106, 107, 110) In light of this, the [c]ourt viewed counsel
      for the Commonwealth[’s] questions as an attempt to aid the
      complainant in relating his account of the assault; not a deliberate
      attempt to elicit testimony that he could not otherwise introduce.
      Had trial counsel sought sanctions against the Commonwealth,
      the [c]ourt would have denied such a request.

Id.

      We discern no abuse of discretion in the PCRA court’s conclusion, as our

own review of the record supports it.          Trial counsel objected when the

Commonwealth asked leading questions of the victim. See N.T. Jury Trial,

4/23/14, at 104-05. The trial court sustained trial counsel’s objection. When

the prosecutor asked another leading question, the trial court criticized the

prosecutor in front of the jury and on the same grounds. Id. at 107-109.

Therefore, the PCRA court did not err when it concluded that Appellant’s

allegation was meritless. Accordingly, appellate counsel and PCRA counsel

were not ineffective for failing to litigate this issue.




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      Appellant’s second and fourth claims implicate appellate counsel’s

decision to pursue only one of the seven claims that were initially raised in the

concise statement on appeal, and PCRA counsel’s failure to litigate this issue.

See Appellant’s brief at 11-14, 19-21. The PCRA court disagreed, finding that

Appellant’s complaints were undeveloped and meritless.         See Trial Court

Opinion, 10/18/19, at 5. We agree with the PCRA court’s assessment.

      In his analysis section of both argument sections, Appellant simply

states that he is entitled to relief because counsel abandoned some of the

issues on appeal that were, in his opinion, arguably meritorious. This deficient

analysis does not meet the pleading requirements of the test for ineffective

assistance of counsel. As previously explained, a sufficient analysis does not

stop at arguable merit, but also responds to whether appellate counsel had a

reasonable basis for his inaction and explains how appellate counsel’s actions

prejudiced Appellant to an extent that relief is warranted.        Importantly,

“[c]laims involving appellate counsel ineffectiveness . . . involve concerns

unique to appellate practice. Arguably meritorious claims may be omitted in

favor of pursuing claims which in the exercise of appellate counsel’s

objectively reasonable professional judgment, offer a greater prospect of

securing relief.”   Commonwealth v. Lambert, 797 A.2d 232, 244 (Pa.

2001).

      We agree with the PCRA court’s conclusion that Appellant’s arguments

attacking appellate counsel’s ineffectiveness were insufficiently developed.


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Accordingly, Appellant’s layered ineffective assistance of counsel claim,

arguing that PCRA counsel was ineffective on the same grounds, also fails.3

See, e.g., Commonwealth v. Lopez, 854 A.2d 465, 469 (Pa. 2004)

(deeming ineffective assistance of counsel claims waived where the petitioner

failed to develop, through a discussion of the reasonable basis and prejudice

prongs, how appellate counsel rendered ineffective assistance of counsel in

failing to advance claims of trial counsel ineffectiveness).

       In Appellant’s remaining layered allegation of counsel ineffectiveness,

he argues that trial counsel was ineffective for failing to ensure that his

unlawful contact with a minor conviction was graded as a third degree felony,

due to his IDSI acquittal.4 See Appellant’s brief at 16-18. The Commonwealth

asserts that appellant's claim was previously litigated, since he challenged the

grading of the unlawful contact of a minor conviction on direct appeal and our



____________________________________________


3 The Commonwealth asserts that these claims are waived because they were
not included in Appellant’s pro se PCRA petition. See Commonwealth’s brief
at 14. This is true. However, because Appellant raised this issue as a layered
claim of PCRA counsel ineffectiveness in his response to the Rule 907 notice,
and the PCRA court had the opportunity to review it, we decline to find waiver
on this basis. See Pro Se Objection to Rule 907 Intent to Dismiss, 5/18/18;
see also Commonwealth v. Rigg, 84 A.3d 1080, 1084-85 (Pa.Super. 2014)
(explaining that a petitioner must request leave to amend his petition before
raising new claims of trial or appellate counsel ineffectiveness in a Rule 907
response, but not before raising new claims of PCRA counsel ineffectiveness).

4While Appellant frames this issue as a sufficiency claim in his statement of
questions involved, the substance of his argument attacks the grading of the
unlawful contact charge due to the IDSI acquittal. See Appellant’s brief at 2,
15.

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Supreme Court has already spoken on this issue. See Commonwealth’s brief

at 16-17; see also 42 Pa.C.S. § 9543(a)(3). The PCRA court accepted this

argument below, but we will review Appellant’s claim within the context of the

layered ineffective assistance context, since this is his first opportunity to

challenge counsel’s stewardship. See Aikens, supra.

        We find that the record supports the PCRA court’s denial of this claim.

Immediately prior to sentencing, trial counsel presented an oral motion for

extraordinary relief. See N.T. Sentencing Hearing, 8/7/14, at 10-16. Among

trial counsel’s arguments was a challenge to the grading of his conviction for

unlawful contact with a minor as a first-degree felony, due to his acquittal for

IDSI.    Id.   The trial court denied Appellant’s motion and proceeded to

sentencing. In his post-sentence motion, trial counsel renewed this argument,

which again the trial court denied. Therefore, because the record reflects that

trial counsel did challenge the grading of the unlawful contact of a minor

conviction, albeit unsuccessfully, this allegation is meritless and the PCRA

court did not err when it denied Appellant’s claim. Accordingly, Appellant’s

layered claims against appellate and PCRA counsel also fail.

        Appellant has not convinced us that any of his issues provide grounds

for relief. Therefore, we find that the PCRA court did not abuse its discretion

when it denied Appellant’s PCRA petition.

        Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/24/20




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