J-S02042-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

WILLIAM H. LEAK

                            Appellant                 No. 411 EDA 2015


               Appeal from the PCRA Order Entered January 23, 2015
                In the Court of Common Pleas of Philadelphia County
                  Criminal Division at No: CP-51-CR-0801371-2006


BEFORE: SHOGAN, LAZARUS, and STABILE, JJ.

MEMORANDUM BY STABILE, J.                              FILED June 16, 2016

       Appellant, William Leak, appeals from the January 23, 2015 order of

the Court of Common Pleas of Philadelphia County (the “PCRA court”)

dismissing his petition pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. Upon review, we affirm.

       Following a jury trial on June 27, 2008, Appellant was found guilty of

rape, involuntary deviate sexual intercourse, aggravated assault, aggravated

indecent assault, unlawful restraint, and possession of an instrument of

crime.1,   2
               Following a Megan’s Law hearing, Appellant was found to be a

____________________________________________


1
  Respectively, 18 Pa.C.S.A. §§ 3121, 3123(a), 2702(a)(4), 3125, 2902,
907(b).
2
 Unless otherwise specified, these facts come from the PCRA court’s March
27, 2015 Pa.R.A.P. 1925(a) opinion.
J-S02042-16



sexually violent predator. Appellant was sentenced to an aggregate ten to

twenty years of incarceration to be followed by thirty years of probation.

Appellant filed a post-sentence motion which the trial court denied without a

hearing. Appellant appealed to this Court. This Court remanded to the trial

court to determine whether the videotaped deposition of the Complainant,

Quianna   Martin,    took   place   in    accordance   with   Pa.R.Crim.P.   500.

Commonwealth v. Leak, 22 A.3d 1036, 1039 (Pa. Super. 2011).                  After

hearing, the trial court determined that the requirements of Rule 500 had

been satisfied. This Court affirmed the trial court’s determination, rejecting

Appellant’s arguments as either meritless or waived. Id. at 1050.

      On March 16, 2012, trial counsel filed a PCRA petition. Appellant then

filed a pro se PCRA petition on August 28, 2012, alleging trial counsel’s

ineffectiveness.    New counsel was appointed and filed an amended PCRA

petition. In counsel’s amended petition, Appellant claimed:

      1. Petitioner was denied due process of law by ineffective
      assistance of counsel during pre-trial proceedings.

      2. Petitioner was denied due process by counsel’s failure to
      ensure fair process.

      3. Petitioner was denied due process of law by ineffective
      assistance by counsel’s failure to prepare.


Appellant’s Amended PCRA Petition at 3.           The Commonwealth filed a

response on September 12, 2014. On December 18, 2014, the PCRA court

issued a Pa.R.Crim.P. 907 notice. The PCRA court did not receive a response



                                         -2-
J-S02042-16



from Appellant, and so it dismissed Appellant’s petition. Appellant then filed

the instant appeal.

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

Appellant asserted that:

      1. The [PCRA] court was in error in denying the defendant’s
      PCRA [petition] without an evidentiary hearing.

      2. The [PCRA] court was in error in denying the amended PCRA
      [petition] filed by PCRA counsel on February 6, 2014. The issues
      to be raised before the Superior Court in this appeal are fully set
      forth and developed in the amended PCRA [petition] filed by
      Appellant’s counsel.

Appellant’s Rule 1925(b) Statement.       The PCRA court filed a Rule 1925(a)

opinion dismissing all of Appellant’s claims. Appellant now essentially raises

the same issues as those stated in his Rule 1925(b) statement for our

review.

      “In PCRA proceedings, an appellate court’s scope of review is limited

by the PCRA’s parameters; since most PCRA appeals involve mixed

questions of fact and law, the standard of review is whether the PCRA court’s

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

Commonwealth v. Pitts, 981 A.2d 875, 878 (Pa. 2009).

      In his first issue, Appellant alleges that the PCRA court erred by not

granting an evidentiary hearing on his amended PCRA petition.           Appellant

argues that, while the right to an evidentiary hearing is not absolute, when

the facts alleged in a PCRA petition would entitle an appellant to relief if




                                        -3-
J-S02042-16



proven, the court may not dismiss the petition without an evidentiary

hearing. Appellant’s Brief at 15.

      A PCRA court may dismiss a petition without a hearing when the

petition does not present an issue of material fact, when the PCRA court

believes the petitioner is not entitled to relief, and when a hearing would

serve no legitimate purpose. Pa.R.Crim.P. 907(1). “[T]o obtain reversal of

a PCRA court’s decision to dismiss a petition without a hearing, an appellant

must show that he raised a genuine issue of fact which, if resolved in his

favor, would have entitled him to relief, or that the court otherwise abused

its discretion in denying a hearing.”    Commonwealth v. Sneed, 45 A.3d

1096, 1105-06 (Pa. 2012).

      Appellant does not indicate what genuine issue of fact, if proven,

would entitle him to relief.   Rather, he asserts only the general allegation

that “the claims of ineffectiveness raised in Appellant’s amended PCRA

petition are meritorious” and contends “the PCRA [c]ourt should have

granted an evidentiary hearing to provide the forum to demonstrate such

manifest injustice.” Appellant’s Brief at 15-16. Appellant fails to point out

any issue of material fact, and we cannot construct Appellant’s argument for

him. Accordingly, Appellant is not entitled to relief on his first issue.

      Appellant’s second issue is that the PCRA court erred in not granting

relief on his claim that trial counsel was ineffective.         To establish an

ineffective assistance of counsel (IAC) claim, a PCRA petitioner must plead

and prove: (1) the underlying issue is of arguable merit; (2) counsel lacked

                                      -4-
J-S02042-16



a strategically reasonable basis for the act or omission; and (3) the

petitioner suffered prejudice in that counsel’s ineffectiveness affected the

result of the proceeding. Commonwealth v. Harris, 852 A.2d 1168, 1173

(Pa. 2004). Failure to prove any prong will defeat an ineffectiveness claim.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779–80 (Pa. Super.

2015) (en banc), appeal denied, 123 A.3d 331 (Pa. 2015).

      Appellant argues that trial counsel was ineffective for four reasons:

(1) counsel failed to properly litigate Appellant’s claims pursuant to

Pa.R.Crim.P. 600, (2) counsel failed to properly litigate Appellant’s claims

pursuant to the Interstate Agreement on Detainers Act (IAD), (3) counsel

failed to object to the Commonwealth’s improper use of videotaped

testimony pursuant to Pa.R.E. 501, and (4) counsel failed to adequately

prepare to represent Appellant. Appellant’s Brief at 19, 22, 24. All four of

these claims fail at least one prong of the IAC test.

      On his first claim, that trial counsel was ineffective for failing to litigate

properly Appellant’s claims pursuant to Pa.R.Crim.P. 600, Appellant argues

that trial counsel failed to object to the trial court’s granting of numerous

continuances on behalf of the complaining witness, and that trial counsel

failed to check with local medical facilities or hospitals to determine whether

the Complainant, Ms. Martin, was actually seriously ill and unable to testify.

Appellant’s Brief at 19.

      While Appellant couches these arguments as an IAC claim, the

underlying issue is substantively the same as that which Appellant previously

                                       -5-
J-S02042-16



raised before this Court. See Leak, 22 A.3d at 1039-50. Therein this Court

held:

              Leak next argues that the trial court erred in denying
        Leak’s motion to dismiss pursuant to Pa.R.Crim.P. 600(G). Rule
        600 provides that, where a defendant is at liberty on bail, trial
        must commence within 365 days of the date of the criminal
        complaint. Pa.R.Crim.P. 600(A)(3). Rule 600(G) provides as
        follows:

             (G) For defendants on bail after the expiration of 365
             days, at any time before trial, the defendant or the
             defendant’s attorney may apply to the court for an
             order dismissing the charges with prejudice on the
             ground that this rule has been violated. A copy of
             such motion shall be served upon the attorney for
             the Commonwealth, who shall also have the right to
             be heard thereon.

             If the court, upon hearing, shall determine that the
             Commonwealth exercised due diligence and that the
             circumstances occasioning the postponement were
             beyond the control of the Commonwealth, the
             motion to dismiss shall be denied and the case shall
             be listed for trial on a date certain. If, on any
             successive listing of the case, the Commonwealth is
             not prepared to proceed to trial on the date fixed,
             the    court     shall   determine     whether     the
             Commonwealth exercised due diligence in attempting
             to be prepared to proceed to trial. If, at any time, it
             is determined that the Commonwealth did not
             exercise due diligence, the court shall dismiss the
             charges and discharge the defendant.

        Pa.R.Crim.P. 600(G).

         ....

              The record in the instant matter reflects that the
        preliminary hearing for the Commonwealth’s first complaint was
        continued six times. One of the six continuances was requested
        by the defense.      N.T. 4/30/07, at 8.     Four others were

                                      -6-
J-S02042-16


     necessitated because Martin, the complaining witness, was
     believed to be terminally ill with AIDS and could not attend. Id.
     at 5–6. Another was continued because Martin returned to her
     native Georgia to live with her parents and was incarcerated
     there on a probation violation. Id. at 6; N.T., 6/23/08, at 8.5
     The district attorney from Chatham County Georgia informed
     Commonwealth authorities in late January of 2006 that Georgia
     authorities were in the process of determining what sentence
     Martin would receive for violating her probation, and that Martin
     could not readily be made available for transfer back to
     Pennsylvania.     N.T., 6/23/08, at 8–9.     The Commonwealth
     withdrew its first complaint against Leak on February 14, 2006,
     because it was evident that Martin would not be transferred back
     to Pennsylvania prior to Leak’s “must be tried” date. N.T.,
     4/30/07, at 6.

       ....

            In the instant matter, the record reflects that it was
     impossible for the Commonwealth to procure Martin’s testimony
     prior to the withdrawal of the first complaint. The Rule 600
     hearing records establish that Commonwealth was unable to
     procure Martin’s transportation from a Georgia prison in time for
     Leak’s must be tried date, and Leak did not dispute that Martin’s
     illness prevented her from attending four preliminary hearings
     prior to her incarceration in Georgia.               Under these
     circumstances, we conclude that the trial court acted within its
     discretion in finding that the withdrawal and re-filing of charges
     against Leak was not the result of misconduct or lack of due
     diligence on the part of the Commonwealth. Indeed, given
     Martin’s grave health condition, the Commonwealth had every
     incentive to procure her testimony as soon as possible.
     Accordingly, the trial court did not err in rejecting Leak’s
     assertion that the original criminal complaint was the triggering
     event for the Rule 600 period. Since Leak’s Rule 600 argument
     is based entirely on that assertion, the argument fails.

Commonwealth v. Leak, 22 A.3d 1036, 1041-43 (Pa. Super. 2011). In its

Rule 1925(a) opinion, the PCRA court also noted that,

     as a matter of equity, that this [c]ourt held two hearings prior to
     trial on unavailability. That this [c]ourt spoke to the complaining
     witness’s doctor, whereupon this [c]ourt was told that the

                                    -7-
J-S02042-16


          complaining witness was bedridden and terminally ill. That this
          [c]ourt even attempted to set up a video hearing in Chatham
          County, Georgia, so that the Complainant who was very ill could
          testify, and she was not able to. She was bedridden and
          couldn’t even be taken to the local courthouse.

PCRA Court Opinion, 3/27/15, at 7 (citation omitted).                As this Court’s

disposition of Appellant’s Rule 600 claim in Leak and the PCRA court’s

explanation of Complainant’s circumstances clearly establishes, Appellant’s

instant Rule 600 argument is meritless.              Therefore, Appellant’s first IAC

claim fails.

          Appellant’s second IAC allegation, that trial counsel failed to properly

litigate his IAD claim, also fails.            Appellant does not indicate how this

argument is of arguable merit as applied to the facts of his case, what action

or inaction of trial counsel resulted in counsel’s failure to properly litigate

this claim, or how prejudice, if any, would have affected the outcome of his

proceedings.       If Appellant is alluding to this Court’s disposition of his IAD

claim in Leak to support this second IAC allegation, Appellant’s claim again

fails.3     While Appellant generally discusses the structure of the IAD, as
____________________________________________


3
    Regarding Appellant’s IAD claim in Leak, we held as follows.

          Leak also asserts an argument pursuant to Article III of the IAD.
          “Article III of the IAD allows a prisoner against whom a detainer
          has been lodged to request that he or she be transferred to the
          jurisdiction that filed the detainer and be brought to trial within
          180 days of his or her request.” Id. (citing 42 Pa.C.S.A. § 9101,
          Article III). Leak, however, failed to include this argument in his
          Pa.R.A.P. 1925(b) concise statement of matters complained of
          on appeal. Leak’s concise statement addresses his Article IV
          argument in detail, but makes no mention of an argument under
(Footnote Continued Next Page)


                                           -8-
J-S02042-16



stated above, he completely fails to articulate how the facts in his case, as

applied under that statute, demonstrate how trial counsel’s ineffectiveness

affected the result of his proceeding.           Appellant fails to satisfy any of the

three prongs of the IAC test. Appellant’s second IAC claim fails.

      Appellant’s third IAC claim is that trial counsel failed to object to the

Commonwealth’s         improper     use     of   videotaped    testimony   pursuant    to

Pa.R.Crim.P. 501. Appellant’s Brief at 22. Appellant argues that, because

trial counsel failed “to properly prepare and verse himself in the rules of

criminal   procedure,”       he    failed   to    ensure   a   fair   process   as   “the

Commonwealth made use of a videotape to preserve the complaining

witness’s testimony.” Appellant’s Brief at 20-21. Appellant alleges that trial

counsel failed to properly object under Rules 500 and 501 even though trial

counsel was “aware through the Appellant’s assertions that the complaining

witness was actually living in Philadelphia and not so seriously ill that she

was prevented from testifying.”4 Appellant’s Brief at 21. Further, Appellant

argues that, “[b]y trial counsel’s own admission, he was not prepared to

                       _______________________
(Footnote Continued)

      Article III. As a result, Leak has waived his Article III argument.
      Pa.R.A.P. 1925(b)(4)(vii).

Leak, 22 A.3d at 1040-41.
4
  As this Court concluded in Leak, “the instant record makes abundantly
clear that [Complainant] was terminally ill with AIDS at the time of the
preliminary hearing, and that she passed away prior to [Appellant]’s trial.”
Leak, 22 A.3d at 1047. We explain this more fully below.



                                            -9-
J-S02042-16



cross-examine    the   complaining    witness,”   and   that   trial   counsel’s

ineffectiveness denied Appellant the opportunity to adequately cross-

examine the complaining witness.        Appellant’s Brief at 21, 22 (citation

omitted).

     Contrary to Appellant’s assertion, the record reveals that trial counsel

did object to the videotape at the preliminary hearing. See N.T. Preliminary

Hearing, 8/6/08, at 5 (“We will object to a videotape.”).          Additionally,

Appellant’s implication that trial counsel did not adequately cross-examine

Complainant because he did not prepare for the hearing is incorrect. Rather,

the portion of the record that Appellant cites reveals that trial counsel was

concerned that he would not have a “full and fair opportunity to cross-

examine” Complainant under the circumstances stating, “[n]one of us are

able to conduct cross-examinations [at] preliminary hearings that would be

to the extent that we will at trial.” Preliminary Hearing, 8/6/08, at 7. In

Leak, this Court thoroughly addressed the issue underlying Appellant’s IAC

claim regarding the admission of Complainant’s videotaped testimony. See

Leak, 22 A.3d at 1043-49. Briefly, this Court held the following.

            We next consider Leak’s argument that the trial court
     erred in admitting into evidence the video of [Complainant]’s
     preliminary hearing testimony.     In light of [Complainant]’s
     terminal illness, the Commonwealth sought to preserve her
     testimony by videotape so that it could be used at trial if
     [Complainant] was unavailable. Rule 500 of the Pennsylvania
     Rules of Criminal Procedure, which we will address in more detail
     below, permits videotaped preservation of a witness’ testimony
     in certain circumstances.



                                     - 10 -
J-S02042-16


       ....

             Since Leak was afforded a full and fair opportunity to cross
      examine [Complainant], and since the Commonwealth’s
      technical noncompliance with Rule 500 did not result in any
      prejudice, we conclude that a miscarriage of justice would result
      from excluding [Complainant]’s testimony, not from its
      admission.     The trial court did not abuse its discretion in
      admitting [Complainant]’s videotaped testimony into evidence at
      trial. Leak’s Rule 500 argument fails.

Leak, 22 A.3d at 1043-49.        Accordingly, Appellant’s third IAC claim is

without merit. 42 Pa.C.S.A. § 9543(a)(3).

      Appellant’s fourth and final IAC claim is that trial counsel failed to

adequately prepare to represent Appellant.          Appellant’s Brief at 24.

Appellant argues that trial counsel failed to investigate the procedure

employed by the arresting officers, claiming this would have led to “valuable

impeachment evidence.” Appellant’s Brief at 23. Appellant argues that trial

counsel failed to investigate the whereabouts of the Complainant throughout

the pre-trial proceedings and to verify that she was seriously ill and unable

to testify. Appellant’s Brief at 23. Appellant also alleges that trial counsel

should have employed an expert witness. Appellant’s Brief at 24.

      As the PCRA court notes, Appellant fails to specify how investigation

into the procedures employed by the arresting officers would have produced

exculpatory evidence,

      particularly in light of the evidence that the police came onto the
      scene to see [Appellant] holding a knife to the [Complainant].
      The [Complainant]’s blood was found on [Appellant]’s shirt.
      [Appellant]’s DNA, which was recovered from sperm on the
      [Complainant]’s shirt, was retested at [Appellant]’s request and



                                    - 11 -
J-S02042-16


      again confirmed it was [Appellant]’s DNA. The evidence against
      this [Appellant] was overwhelming.

PCRA Court Opinion, 3/27/15, at 6-7. Appellant also fails to specify how trial

counsel investigating the whereabouts of Complainant would have produced

exculpatory evidence given that “the instant record makes abundantly clear

that [Complainant] was terminally ill with AIDS at the time of the

preliminary hearing, and that she passed away prior to [Appellant]’s trial.”

Leak, 22 A.3d at 1047, n. 10; see also PCRA Court Opinion, 3/27/15, at 7.

As such, these arguments are meritless. Additionally, Appellant presents no

argument as to what sort of expert was necessary for his defense or how he

suffered prejudice as a result of trial counsel’s failure to hire an expert.

Accordingly, Appellant cannot establish any of the three IAC prongs.

Appellant’s fourth IAC claim fails.

      As Appellant is not entitled to relief on any of his issues, we affirm the

January 23, 2015 order of the PCRA court dismissing Appellant’s PCRA

petition.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/16/2016




                                      - 12 -
