J-S10015-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ALEX MOODY                                 :
                                               :
                       Appellant               :   No. 942 EDA 2018

                 Appeal from the PCRA Order February 22, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0006293-2012


BEFORE:      GANTMAN, P.J.E., STABILE, J., and COLINS*, J.


MEMORANDUM BY COLINS, J.:                                Filed March 19, 2019

        Appellant, Alex Moody, pro se, appeals from the order of the Court of

Common Pleas of Philadelphia County, entered February 22, 2018, that

dismissed his first petition filed under the Post Conviction Relief Act (“PCRA”)1

without a hearing. We affirm.
     “This case arises from Appellant’s beating of his then girlfriend, during

which Appellant, who is a bodybuilder, repeatedly punched, slapped, and

choked her[,]” resulting in a “jury conviction of aggravated assault.[2]”

Commonwealth v. Moody, No. 3360 EDA 2014, unpublished memorandum

at 1 (Pa. Super. filed December 18, 2015); see also Trial Court Opinion, filed



____________________________________________


1   42 Pa.C.S. §§ 9541–9546.
2   18 Pa.C.S. § 2702(a)(1).


*    Retired Senior Judge assigned to the Superior Court.
J-S10015-19


April 20, 2015, at 1-7 (underlying facts and procedural history prior to direct

appeal).

      During Appellant’s jury trial, a forensic nurse, who examined the victim

shortly after the incident, testified that the victim’s injuries were consistent

with being hit and strangled. Trial Court Opinion, filed April 20, 2015, at 11

(citing N.T., 6/5/2014, at 36-37). Photographs of the victim taken by the

nurse were shown to the jury. Exs. C-9 to C-22; see also Trial Court Opinion,

filed April 20, 2015, at 10-11.

      Reports from an external examination of the [victim conducted by
      the forensic nurse] shortly after the attack evinced bruising and
      swelling around her left eye and check, abrasions to her nose, a
      tear on her lower lip, tenderness of the scalp from her hair being
      pulled, and abrasions and erythema on her neck. A genital
      examination revealed that the [victim] suffered a tear at the
      bottom of the entrance to her vagina.

Trial Court Opinion, filed April 20, 2015, at 10-11; see also id. at 5 (citing

N.T., 6/5/2014, at 30-34, 42, 46, 52). A qualified forensic scientist testified

that Appellant was identified as the source of the DNA from sperm recovered

from samples collected by the forensic nurse during his examinations of the

victim. Id. (citing N.T., 6/5/2014, at 53, 85-86, 88-90).

      Appellant testified in his own defense.       Throughout his testimony

Appellant repeatedly referred to an alleged witness to the incident, hereinafter




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referred to as “Ms. Saunders.”3 See, e.g., N.T., 6/5/2014, at 115-16, 119-

20, 123. When asked why Ms. Saunders was not present to testify, Appellant

admitted that she was “not here because she said she had a bench warrant

on her.” Id. at 127. Appellant further testified that:

       he has been bodybuilding since the age of thirteen, that he was
       significantly stronger and larger than the [victim], that he had
       large hands, . . . that he could have caused the bruising, swelling,
       and cuts to the [victim]’s throat[, and] “that he applied slight
       pressure each time he grabbed the [victim] by her neck.

Trial Court Opinion, filed April 20, 2015, at 10-11 (citing N.T., 6/5/2014, at

129-37).

       Immediately prior to closing arguments, the trial court instructed the

jury that that the arguments of counsel were not evidence. N.T., 6/5/2014,

at 140.    During closing argument, Appellant’s trial counsel referred to the

victim’s testimony as “absolutely crap” and repeatedly stated that her

____________________________________________


3 The name of this alleged witness is spelled differently throughout the
documents in this action. In the notes of testimony, her name is spelled
“Marcie Saunders.” N.T., 6/5/2014, at 115-16, 119-20, 123, 127. A
memorandum of law accompanying Appellant’s PCRA petition spells her name
as “Marcinel Sanders” or “Sander.” Suppl. Mem. of Law in Supp. of Pet’r’s
Mot. for Post Conviction Collateral Relief, 9/12/2016, at 5. Second PCRA
counsel’s “no-merit” letter spells her name “Marcianeil Saunders,” nicknamed
“Marcie.” No-merit Letter, 9/5/2017, at 7, 13. Appellant’s Response to Rule
907 Notice spells her name “Marcinel Saunders.” Response to Rule 907
Notice, 2/14/2018, at 5. Appellant’s Brief alternatively spells her name as
“Marcinel Saunders” or “Sauners.”         Appellant’s Brief at 15-16.     The
Commonwealth’s Brief spells her name “Marice Saunders.” Commonwealth’s
Brief at 6, 13. For the convenience of the reader, we have elected to refer to
this alleged witness herein as “Ms. Saunders.”




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testimony “makes no sense[,]” “doesn’t make a whole lot of sense[,]” or

variations thereof. Id. at 146, 149-50; see also id. at 152, 154. During

closing, the prosecutor stated that the victim was “honest to a fault.” Id. at

166.4 Appellant’s trial counsel then motioned for mistrial, which the trial court

denied. Id. at 188.

       On June 6, 2014, the jury convicted Appellant of aggravated assault.

On October 24, 2014, Appellant was sentenced to ten to twenty years of

confinement. As Appellant had previously been convicted of robbery, Docket

No. CP-51-CR-0527001-1989, which is a first-degree felony and a statutorily-

defined “crime of violence,” Appellant’s sentence included a mandatory

minimum term of incarceration pursuant to the Sentencing Code, 42 Pa.C.S.

§ 9714(a) (“Sentences for second and subsequent offenses”).             See id.

§ 9714(g) (defining “crime of violence” to include robbery); N.T., 10/24/2014,

at 3, 6.

       Appellant filed a direct appeal.          The concise statement of errors

complained of on appeal filed by trial counsel for Appellant’s direct appeal

challenged the legality of Appellant’s sentence and alleged that a new trial

should be granted due to “grossly improper ‘vouching’ on the part of the

[p]rosecutor[,]” amongst other claims. Statement of Matters Complained of



____________________________________________


4For example, during her testimony, the victim had admitted that she had
smoked six bags of crack cocaine prior to the assault. N.T., 6/4/2014, at 103.


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Pursuant to Rule of Appellate Procedure 1925(b), 12/31/2014, at 2 ¶¶ 3-4.

The trial court addressed the aforementioned challenges in its opinion dated

April 20, 2015.      See Trial Court Opinion, filed April 20, 2015, at 12-16.

However, trial counsel chose not to pursue a challenge to the legality of the

sentence or allegations of prosecutorial misconduct in the brief to this Court.

Moody, No. 3360 EDA 2014, at 2 (citing Appellant’s Brief, No. 3360 EDA 2014,

at 3).5

       This Court affirmed Appellant’s judgment of sentence on December 18,

2015. Id. at 1. Appellant did not file a petition for allowance of appeal to the

Supreme Court of Pennsylvania.

       On September 12, 2016, Appellant filed his first, pro se, timely6 PCRA

petition, contending that his trial counsel was ineffective for five reasons:

(1) “abandon[ing]” him during his direct appeal, including failing to “confer”

with him as to whether he wanted to file a petition for allowance of appeal to

the Supreme Court of Pennsylvania; (2) failing to challenge the trial court

“erroneously imposing a mandatory sentence”; (3) failing to pursue a claim

that the prosecutor improperly “vouch[ed]” for the victim’s truthfulness;

____________________________________________


5 Herein, all references to either party’s brief on direct appeal will include that
appeal’s docket number, “No. 3360 EDA 2014” – e.g., Appellant’s Brief,
No. 3360 EDA 2014, at 1. All citations to either party’s brief filed pursuant to
the current collateral appeal will not include a docket number – e.g.,
Appellant’s Brief at 1.
6 Appellant’s PCRA petition was filed within one year of the date that his
judgment became final. See 42 Pa.C.S. § 9545(b)(1).


                                           -5-
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(4) “refusing to raise the Claim of ‘prompt complaint’”; and (5) “fail[ing] to

call a known witness that would have help[ed] the defense.”                   PCRA Pet.,

9/12/2016, at 3-4.

       According to the docket, on February 13, 2017, the PCRA court

appointed counsel to represent Appellant.              However, no order appointing

counsel appears in the certified record.7 Additionally, without this order, we

cannot determine whether the PCRA court ordered PCRA counsel to file an

amended petition or the length of time given to PCRA counsel to file any such

amended petition. There also is no separate order in the record or listed on

the docket ordering such an amended petition.                  “Omissions like these

significantly impair our ability to consider an appeal.”                 Erie Insurance

Exchange v. Moore, 175 A.3d 999, 1006 (Pa. Super. 2017) (citing Smith v.

Township of Richmond, 82 A.3d 407, 417 n.9 (Pa. 2013) (lamenting similar

issue in case before Supreme Court)), reargument denied (Jan. 24, 2018),

appeal granted on other grounds, 189 A.3d 382 (Pa. 2018).

       On June 16, 2017, the PCRA court entered an order “that the Motion to

Withdraw Counsel is GRANTED” and appointing new PCRA counsel.                       Order

Withdrawing Counsel, 6/16/2017.                Nevertheless, there is no motion to

withdraw, no “no-merit” letter, and no prior notice to Appellant that first PCRA

counsel    had    requested     to   withdraw     in   the   certified    record.    See


____________________________________________


7This Court’s Prothonotary confirmed with the Philadelphia Office of Judicial
Records that the appointment notice was not in the trial court’s record.

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Commonwealth v. Muzzy, 141 A.3d 509, 510–11 (Pa. Super. 2016)

(enumerating procedural requirements for withdrawing as counsel). Again,

“[o]missions like these significantly impair our ability to consider an appeal.”

Erie Ins. Exch., 175 A.3d at 1006. Additionally, the order does not explicitly

state that new PCRA counsel may file an amended PCRA petition, although it

does grant a continuance “for defense filings.” Order Withdrawing Counsel,

6/16/2017.

      On September 5, 2017, second PCRA counsel filed a “no-merit” letter

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc),

stating that Appellant “is not entitled to post-conviction relief under the

[PCRA], because . . . the claims raised in the petition are not meritorious under

controlling authority.” No-merit Letter, 9/5/2017, at 1. The next day, second

PCRA counsel filed a petition to withdraw, stating that he had sent Appellant

copies of the no-merit letter and the petition to withdraw, along with “a letter

which advises [Appellant] that he has the right to proceed pro se or with

privately retained counsel if th[e trial c]ourt grants leave to withdraw as

counsel[,]” but the letter is not attached to the motion and does not otherwise




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appear in the certified record.          Mot. of Counsel for Leave to Withdraw,

9/5/2017, at ¶ 3.8 See Erie Ins. Exch., 175 A.3d at 1006.

       On November 13, 2017, the PCRA court entered a notice of intent to

dismiss all claims without a hearing pursuant to Pa.R.Crim.P. 907 (“Rule 907

Notice”), stating that any response thereto was due within twenty days.

Appellant requested an extension of time to file a response, which the PCRA

court granted on November 28, 2017, extending the due date for Appellant’s

response until February 1, 2018.

       Although he was not granted any further extensions, Appellant did not

file his response (“Response to Rule 907 Notice”) until February 14, 2018.9

The Response to Rule 907 Notice pleaded ineffective assistance of second

PCRA counsel for failing to file an amended petition raising claims that trial

counsel was ineffective for failing to pursue a claim on direct appeal that the

prosecutor “improperly vouch[ed] for the credibility of the [victim]” and for

“failure to call a witness.” Response to Rule 907 Notice, 2/14/2018, at 3, 5.



____________________________________________


8 This Court’s Prothonotary confirmed with the Philadelphia Office of Judicial
Records that there were no exhibits attached to the petition to withdraw and
that no letter from second PCRA counsel to Appellant was separately docketed.
9 The proof of service accompanying the Response to Rule 907 Notice was
dated February 14, 2018. A postmark attached thereto is illegible in the
certified record. The Response to Rule 907 Notice is date-stamped and
entered on the docket on February 16, 2018. Whichever date is used, the
Response to Rule 907 Notice was still late, as even the February 14th date is
thirteen days after the due date allowed by the order of November 28, 2018,
granting Appellant’s request for an extension.

                                           -8-
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      On February 22, 2018, the PCRA court dismissed Appellant’s PCRA

petition and granted second PCRA counsel’s motion to withdraw.              On

March 14, 2018, Appellant filed this timely appeal.

      On March 29, 2018, the PCRA court ordered Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),

and, on June 29, 2018, Appellant filed the following concise statement of

errors (“Statement”):

      [Appellant, p]ro [s]e, and in response to th[e trial c]ourt’s ORDER
      to provide Statement of Matters Complained Of, pursuant to Rule
      of Appellate Procedure 1925(b), indicates that the following will
      be raised on direct appeal to the Superior Court of Pennsylvania:

         1. [Appellant] respectfully request[s] arrest of judgement
         of Aggravated Assault, because Plaintiff Ms. Ransom had
         never received any substantial medical treatment, and or
         seen a Doctor, and or went to a hospital. In FACT SHE
         DECLINED MEDICAL TREATMENT. However, on 5/24/2012
         PRELIMINARY HEARING NOTES Pg. 7, She testified to
         defendant only hitting her with an OPEN HAND, (SLAPPING
         HER) when questioned by the same D.A., Ms. Kemp. Then
         on 6/4/14 she testifies that [Appellant] at trial SLAPPED,
         PUNCHED, & CHOKED her, IN TRIAL NOTES Pg. 94-95.
         When in fact defendant never did such. There were two
         different stories told. Also TWO OFFICERS testified she
         declined to go to the hospital, or SEE A DOCTOR.

         EXHIBITS OF ALL ENCLOSED.

         2. Ineffective Assistance of [trial] Counsel, because
         Attorney Mr. Mandell failed to Cross-Examine Plaintiff
         Ms. Ransom on why she never mentioned to Assisting
         Officers of [Appellant] punching her or at Preliminary
         Hearing when questioned by D.A. Ms. Kemp specifically
         asked her was it a CLOSED FIST or OPEN HAND. Had,
         Attorney Mr. Mandell thoroughly went over Preliminary
         Material, he would have known of such STATEMENT MADE
         BY PLAINTIFF Ms. Ransom. [sic]


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Statement, 6/29/2018, at 1-2 (some formatting).

      On July 11, 2018, the PCRA court entered its opinion pursuant to

Pa.R.A.P. 1925(a), stating that Appellant’s first “claim is not cognizable under

the PCRA” and that his “second claim is waived since it is being raised for the

first time on appeal.” PCRA Court Opinion, July 11, 2018, at 4, 6.

      In his brief to this Court, Appellant now presents the following issues for

our review:

      I.     Did the trial court err[] in finding that Appellant’s PCRA
      petition lack[ed] merit thereby [ac]cepting court[-]appointed
      counsel’s no-merit letter when PCRA counsel was ineffective and
      abandoned Appellant?

      II.    Was PCRA counsel constitutionally ineffective when failing
      to raise trial/appellant counsel ineffectiveness in violation of the
      Sixth Amendment to the United States Constitution? [sic]

Appellant’s Brief at 4.

      “We review the denial of PCRA relief to decide whether the PCRA court’s

factual determinations are supported by the record and are free of legal error.”

Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018).

      Both of Appellant’s challenges allege that PCRA counsel was ineffective,

Appellant’s Brief at 4, 8, 12-15, 17, and, thus, both are waived due to

Appellant’s failure to include them in his Statement, which is quoted in its

entirety above. Compare Appellant’s Brief at 4 with Statement, 6/29/2018,

at 1-2; see Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement

and/or not raised in accordance with the provisions of this paragraph (b)(4)

are waived”); see also Commonwealth v. Hill, 16 A.3d 484, 491 (Pa. 2011)


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(“in order to preserve their claims for appellate review, Appellants must

comply whenever the trial court orders them to file a Statement of Matters

Complained of on Appeal pursuant to Rule 1925”; “[a]ny issues not raised in

a 1925(b) statement will be deemed waived” (citation omitted)).

      Although not included in his statement of questions involved pursuant

to Pa.R.A.P. 2116, Appellant’s Brief at 4, in the argument section of his brief

pursuant to Pa.R.A.P. 2119, Appellant admits that his Statement was

“defective” but contends that this defectiveness was due to second PCRA

counsel’s “abandonment[.]” Appellant’s Brief at 8. Appellant continues that

the appropriate remedy would be for this Court to “remand[] this case back

to the PCRA court pursuant to Pa.R.A.P. 1925(c)(3)” and to “allow” him “to

file an [a]mended [c]oncise statement[.].” Id.

      Pa.R.A.P. 1925(c)(3) states:

      If an appellant in a criminal case was ordered to file a Statement
      and failed to do so, such that the appellate court is convinced that
      counsel has been per se ineffective, the appellate court shall
      remand for the filing of a Statement nunc pro tunc and for the
      preparation and filing of an opinion by the judge.

In the current action, Appellant filed the Statement and hence could not have

“failed to do so,” as required for remand according to Pa.R.A.P. 1925(c)(3).

Furthermore, both first and second PCRA counsel had been granted leave to

withdraw by the PCRA court by the time the court ordered Appellant to file a

concise statement of errors, and therefore “counsel” could not have been “per

se ineffective” for failing to file a concise statement, which is also necessary



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for remand under Pa.R.A.P. 1925(c)(3).                Finally, the PCRA court filed an

opinion pursuant to Pa.R.A.P. 1925(a) based upon Appellant’s Statement, and,

thus, there would be no benefit to “remand[ing] . . . for the preparation and

filing of an opinion by the judge.” Pa.R.A.P. 1925(c)(3). For all these reasons,

Pa.R.A.P. 1925(c)(3) is inapplicable to the current appeal.

        Assuming we were to address the specific allegations of ineffectiveness

raised in Appellant’s brief, we would begin by noting that “[c]ounsel will not

be found ineffective for failing to raise a meritless claim.” Brown, 196 A.3d

at 151. PCRA counsel thereby cannot be considered ineffective for failing to

raise   the    meritless   claim     that   trial    counsel   was    ineffective.    See

Commonwealth v. Mason, 130 A.3d 601, 618-19 (Pa. 2015) (to prevail

upon a layered ineffectiveness claim, a PCRA petitioner must present

argument on and prove the three prongs of the ineffective-assistance test,

including that “the legal claim underlying the ineffectiveness claim has

arguable      merit[,]”    as   to   each     relevant     layer     of   representation);

Commonwealth v. Elliott, 80 A.3d 415, 427 (Pa. 2013) (to prevail on a

claim of most recent counsel’s ineffectiveness for failure to raise an allegation

of earlier counsel’s ineffectiveness, a PCRA petitioner must present a layered

claim that shows ineffectiveness at each layer of allegedly ineffective

representation).

        In his brief to this Court, Appellant specifically contends that second

PCRA counsel was ineffective for failing to raise claims that trial counsel was


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ineffective for failing:   (1) to assert on direct appeal that the prosecutor

“improperly vouched for the credibility of the [victim,]” arguing that she “‘was

honest to a fault’”; (2) to call a witness “to impeach or rebut” the victim’s trial

testimony; and (3) to challenge the legality of Appellant’s sentence pursuant

to Alleyne v. United States, 570 U.S. 99 (2013). Appellant’s Brief at 13,

15, 17.

      Assuming arguendo that we were to consider Appellant’s first claim,

Appellant’s Brief at 13, we would conclude that this underlying legal claim was

meritless pursuant to the analysis thereof in the trial court’s opinion written

for the direct appeal, dated April 20, 2015:

      [Appellant] contends the trial court erred when it denied [his]
      [m]otion for [m]istrial based on statements made in the
      Commonwealth’s closing argument. N.T. 6/5/14 at p. 188. No
      relief is due.

      It is well settled that statements made by the prosecutor to the
      jury during closing argument will not form the basis for granting
      a new trial “unless the unavoidable effect of such comments would
      be to prejudice the jury, forming in their minds fixed bias and
      hostility toward the defendant so they could not weigh the
      evidence      objectively    and   render      a    true verdict.”
      [Commonwealth v.] Fletcher, 861 A.2d [898,] 916 [(Pa. 2004)]
      (quoting Com. v. Stokes, 839 A.2d 226, 230 (Pa. 2003)). Like
      the defense, the prosecution is accorded reasonable latitude and
      may employ oratorical flair in arguing its version of the case to
      the jury. Com. v. Williams, 896 A.2d 523, 542 (Pa. 2006)
      (citations omitted). Prosecutorial misconduct will not be found
      where the comments were based on the evidence or derived from
      proper inferences. Com. v. Chester, 587 A.2d 1367, 1377 (Pa.
      1991), cert. denied, 502 U.S. 959 (1991) (citations omitted). In
      addition, any challenged prosecutorial comment must not be
      viewed in isolation, but rather must be considered in the context
      in which it was offered. Com. v. Hutchinson, 25 A.3d 277, 307
      (Pa. 2011).


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      [Appellant] asserts that the prosecutor impermissibly vouched for
      the truthfulness of Commonwealth witness’ testimony . . . during
      closing argument. N.T. 6.5.14 at p. 188. . . . [D]efense counsel
      objected when the prosecutor argued:

         MS. KEMP:... this should not be based on prejudice or bias.
         This needs to be based on the facts and the facts of this case
         came from Miss Ransom because, as she testified, this
         woman was honest to a fault.

      N.T. 6/5/14 at pp. 166-67.

      The prosecutor’s argument was a fair response to comments made
      by defense counsel during closing regarding the credibility of the
      Complainant’s testimony, e.g. that her testimony did not make
      sense and that portions of her testimony were “absolute[] crap.”
      See N.T. 6/5/14 at pp. 145-54.         Therefore, this claim of
      prosecutorial misconduct fails. . . .

      None of the comments made by the prosecutor during closing
      were of the type or kind to have the unavoidable effect to
      prejudice the jurors by forming in their minds a fixed bias and
      hostility in such manner as to impede their ability to weigh the
      evidence objectively and render a true verdict. The allegations of
      prosecutorial misconduct are without merit. Moreover, the jury
      was properly instructed that arguments of counsel were not
      evidence[.] . . . N.T. 6/5/14 at p. 140. The jury is presumed to
      have followed such instruction. [Commonwealth v.] Judy, 978
      A.2d [1015,] 1028 [(Pa. Super. 2009)].

Trial Court Opinion, filed April 20, 2015, at 14-16.     Since Appellant’s first

underlying claim was meritless, he could not have established that trial

counsel was ineffective for failing to raise it. See Brown, 196 A.3d at 151.

Second PCRA counsel thereby could not have be considered ineffective for

failing to raise the meritless claim that trial counsel was ineffective for not

raising this first claim. See id.; see also Mason, 130 A.3d at 618-19; Elliott,

80 A.3d at 427.




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      Assuming arguendo that we were to consider Appellant’s next claim –

i.e., that second PCRA counsel was ineffective for failing to raise claims that

trial counsel was ineffective for failing to call a witness “to impeach or rebut”

the victim’s trial testimony, Appellant’s Brief at 15, we would note that, in

order to find counsel ineffective for not calling a witness, the witness must

have been “available to testify for the defense[,]” Brown, 196 A.3d at 167.

Since Appellant admitted at trial that Ms. Saunders was “not here because she

said she had a bench warrant on her[,]” N.T., 6/5/2014, at 127, he cannot

establish her availability to testify and therefore trial counsel’s ineffectiveness

for not calling her to testify.

      We would further observe that, even without the victim’s trial testimony,

the evidence was still sufficient to convict Appellant of aggravated assault.

Appellant himself testified: “that he has been bodybuilding since the age of

thirteen, that he was significantly stronger and larger than the [victim], that

he had large hands, . . . that he could have caused the bruising, swelling, and

cuts to the [victim]’s throat[,]” and “that he applied slight pressure each time

he grabbed the [victim] by her neck.” Trial Court Opinion, filed April 20, 2015,

at 10-11 (citing N.T., 6/5/2014, at 129-37). “The jury, as fact-finder, viewed

photographs of the [victim] taken shortly after the incident[.]” Id.; see also

Exs. C-9 to C-22. A forensic nurse who examined the victim after the incident

testified that the victim’s injuries were consistent with being hit and strangled.




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Trial Court Opinion, filed April 20, 2015, at 11 (citing N.T., 6/5/2014, at 36-

37).

       Reports from an external examination of the [victim conducted by
       the forensic nurse] shortly after the attack evinced bruising and
       swelling around her left eye and check, abrasions to her nose, a
       tear on her lower lip, tenderness of the scalp from her hair being
       pulled, and abrasions and erythema on her neck. A genital
       examination revealed that the [victim] suffered a tear at the
       bottom of the entrance to her vagina.

Id.; see also id. at 5 (citing N.T., 6/5/2014, at 30-34, 42, 46, 52). A forensic

scientist testified that Appellant was identified as the source of the DNA from

samples collected by the forensic nurse during his examinations of the victim.

Id. (citing N.T., 6/5/2014, at 53, 85-86, 88-90). Ergo, assuming arguendo

that trial counsel had called Ms. Saunders and that Ms. Saunders had

challenged the victim’s credibility to the point where the jury disregarded her

entire testimony, the combination of Appellant’s own testimony, photographs

of the victim, the medical and forensic testimony, and the medical reports

from the external and genital examinations of the victim would still have been

sufficient to convict Appellant of aggravated assault.

       Hence, Appellant’s second underlying legal claim lacks merit, and trial

counsel cannot be found ineffective for failing to call Ms. Saunders to testify

at trial. See Brown, 196 A.3d at 151. Second PCRA counsel likewise could

not have be considered ineffective for failing to raise the meritless claim that

trial counsel was ineffective for not calling Ms. Saunders to testify at trial. See

id.; see also Mason, 130 A.3d at 618-19; Elliott, 80 A.3d at 427.



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      As for Appellant’s final contention – i.e., that second PCRA counsel was

ineffective for failing to argue that trial counsel was ineffective for not

challenging the legality of Appellant’s sentence pursuant to Alleyne, 570 U.S.

99, before this Court on direct appeal, Appellant’s Brief at 17, we observe that

Appellant failed to preserve this claim before the PCRA court. Unlike his other

two allegations of second PCRA counsel’s ineffectiveness, Response to Rule

907 Notice, 2/14/2018, at 3, 5, Appellant did not include this final contention

in his Response to Rule 907 Notice.           See generally id.; see also

Commonwealth v. Rykard, 55 A.3d 1177, 1182, 1188-89 (Pa. Super. 2012)

(claim of PCRA counsel’s ineffectiveness can be raised for the first time in a

response to a Rule 907 notice).

      Nevertheless, to the extent that this final issue is a challenge to the

legality of Appellant’s sentence, such a challenge “is not subject to waiver and

may be raised at any time.” Commonwealth v. Sarvey, ___ A.3d ___, 2018

PA Super 307, *12 (filed November 16, 2018).

      Thus, assuming, for argument’s sake, that we were to consider this

sentencing question, we would note that the trial court explained that

Appellant received a mandatory minimum sentence due to his prior conviction

for robbery, N.T., 10/24/2014, at 3, 6; Trial Court Opinion, filed April 20,

2015, at 13 (citing 18 Pa.C.S. § 9714(a), (g); Docket No. CP-51-CR-0527001-

1989), and that “[t]he Commonwealth provided reasonable notice of its

intention to proceed under [18 Pa.C.S. § 9714] after conviction and before


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sentencing” and “proved the requisite elements of the statute.” Trial Court

Opinion, filed April 20, 2015, at 13. Alleyne held that, other than the fact

of a prior conviction, any fact that increases the penalty for a crime beyond

the prescribed statutory minimum must be submitted to a jury and proved

beyond a reasonable doubt. 570 U.S. at 126. Since Appellant’s mandatory

minimum was contingent upon his prior conviction, he is not eligible for relief

pursuant to Alleyne, and this underlying issue would also be without merit.

See Commonwealth v. Watley, 81 A.3d 108, 117 (Pa. Super. 2013) (en

banc) (Alleyne “renders those Pennsylvania mandatory minimum sentencing

statutes that do not pertain to prior convictions constitutionally infirm

insofar as they permit a judge to automatically increase a defendant’s

sentence based on a preponderance of the evidence standard” (emphasis

added) (footnote omitted)).     Appellant’s challenge to the legality of his

sentence consequently is meritless, and, assuming that it served as the basis

for Appellant’s ineffectiveness claims against either trial counsel or second

PCRA counsel, such ineffectiveness claims also lack merit. See Brown, 196

A.3d at 151; Mason, 130 A.3d at 618-19; Elliott, 80 A.3d at 427.

      Accordingly, we conclude that Appellant’s issues raised on appeal are

waived.   To the extent they are not waived, they are meritless.       Having

discerned no error of law, we affirm the order below. See Brown, 196 A.3d

at 150.

      Order affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/19/2019




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