J-S42013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

PAUL WILLIAM TALBERT,

                            Appellant               No. 2031 MDA 2016


               Appeal from the PCRA Order November 15, 2016
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0002721-2011


BEFORE: OLSON, J., MOULTON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                       FILED SEPTEMBER 18, 2017

        Appellant, Paul William Talbert, appeals from the order entered on

November 15, 2016, denying Appellant relief on his petition filed pursuant to

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.         We

affirm.

        The relevant factual background and procedural history of this case

are as follows. On March 25, 2011, Appellant was charged with a number of

crimes, including aggravated indecent assault of a person less than 16 years

of age, indecent assault, and corruption of minors.1 Appellant proceeded to

a jury trial, where the victim testified that Appellant is her stepfather and

____________________________________________


1
    18 Pa.C.S.A. §§ 3125(a)(8), 3126(a)(8), and 6301(a)(1), respectively.
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that he began sexually abusing her when she was around 12 years of age.

As the victim testified, Appellant is a long-haul truck driver and Appellant

first sexually abused her in his truck, when he was on a work-trip to New

Jersey. N.T. Trial, 8/12/13, at 81-83. The victim testified that, during this

incident, Appellant “tried to put his dick in [her] vagina,” but that she could

not remember whether Appellant succeeded in doing so. Id. at 83-84.

      The victim testified that Appellant next sexually assaulted her

approximately one to two years later and that, after the second time,

Appellant sexually abused her about “once or twice a month” until she was

16 years old. Id. at 86 and 89. Further, the victim testified that, during the

later instances of abuse, Appellant “would either rub [her] clit[oris] or put

his finger in” her vagina – and that Appellant did so “multiple” times. Id. at

89-94.

      On August 13, 2013, a jury convicted Appellant of the above-

mentioned crimes and, on April 21, 2014, the trial court sentenced Appellant

to serve a term of two-and-a-half to five years in prison, followed by five

years of probation. N.T. Sentencing, 4/21/14, at 73-74. This Court affirmed

Appellant’s judgment of sentence on August 4, 2015; our Supreme Court

denied Appellant’s petition for allowance of appeal on December 16, 2015.

Commonwealth v. Talbert, 131 A.3d 81 (Pa. Super. 2015) (unpublished

memorandum) at 1-14, appeal denied, 128 A.3d 220 (Pa. 2015).




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        On February 3, 2016, Appellant filed a pro se PCRA petition. The PCRA

court appointed counsel and Appellant filed an amended petition on May 16,

2016.    The PCRA court held hearings on May 27, and July 29, 2016.          On

November 16, 2016, the PCRA court denied relief.              This timely appeal

follows.2

____________________________________________


2
   On December 13, 2016, the trial court ordered Appellant to file and serve
a concise statement of errors complained of on appeal, pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b). Appellant filed his Rule
1925(b) statement on January 3, 2017 and, within the statement, Appellant
listed the following claims:

          1. The [trial] court erred in finding that trial counsel was not
          ineffective for failing to cross examine and impeach the []
          victim at trial with her alleged inconsistencies regarding:

              a. The identity of the [] abuser;

              b. The timing of the [] abuse;

              c. Whether penetration of the [] victim’s vagina actually
              occurred;

              d. The allegation of rectal intercourse;

              e. The location of the abuse allegedly occurring in the
              truck;

              f. Whether [Appellant] removed her underwear during
              the abuse that [] occurred in the truck;

              g. The frequency of the [] abuse occurring in the truck;

              h. The identity of the first person the victim allegedly
              disclosed the abuse;

              i. The allegation of [Appellant] fondling her breasts;
(Footnote Continued Next Page)


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      Although Appellant has failed to list the issues presented on appeal,

Appellant argues the following claims in his brief to this Court:

         1. Because the failure to cross-examine [the victim] on prior
         inconsistent statements is both of arguable merit and raises
         a reasonable probability of a different verdict, the [trial]
         court erred.

         2. Because trial counsel’s failure to call multiple witnesses
         regarding prior inconsistent statements of [the victim] is
         both of arguable merit and raises the reasonable probability
         of a different verdict, the [trial] court erred.



                       _______________________
(Footnote Continued)


             j. The age of the victim when the first and last incidents
             occurred;

             k. The descriptions of the last incident of alleged abuse.

         2. The lower court erred in denying [Appellant’s] PCRA
         petition for after discovered exculpatory evidence pursuant
         to [42 Pa.C.S.A. § 9543(a)(2)(vi)] by:

                                            ...

             e. Ruling that Exhibit 7, the undated letter signed “Dear
             Dad” was not relevant, and not exculpatory and would
             not be likely to compel a different verdict.

                                            ...

         3. The [trial] court erred in finding that trial counsel was not
         ineffective for failing to adequately investigate and prepare
         pretrial as a result of [Appellant’s] lack of communication
         and lack of understanding due to his Asperger’s.

Appellant’s Rule 1925(b)           Statement,     1/3/17,   at   1-2   (some   internal
capitalization omitted).



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         3. Trial counsel’s failure to develop an adequate trial
         strategy because of his insufficient communication with
         [Appellant] requires a new trial.

         4. Because trial counsel’s failure to introduce prior
         inconsistent statements of [the victim] regarding the
         charged offense is both of arguable merit and raises the
         reasonable probability of a different verdict, the [trial] court
         erred.

Appellant’s Brief at 1-30.3,    4



       As we have stated:

         [t]his Court’s standard of review regarding an order
         dismissing a petition under the PCRA is whether the
         determination of the PCRA court is supported by evidence of
         record and is free of legal error. In evaluating a PCRA
         court’s decision, our scope of review is limited to the
         findings of the PCRA court and the evidence of record,
         viewed in the light most favorable to the prevailing party at
____________________________________________


3
  Appellant failed to include a Pennsylvania Rule of Appellate Procedure 2116
“statement of questions involved” section in his brief. Rule 2116(a) declares
that “[n]o question will be considered [on appeal] unless it is stated in the
statement of questions involved or is fairly suggested thereby.” Pa.R.A.P.
2116(a). However, pursuant to our case law, we “may overlook [a Rule
2116 violation] when an appellant raises the question[] involved in some
other portion of his brief [and when the violation] does not impede our
ability to review the issue[].” Commonwealth v. Clinton, 683 A.2d 1236,
1239 (Pa. Super. 1996). In this case, Appellant clearly raises the issues he
wishes to present to this Court in the argument section of his brief.
Appellant’s Brief at 1-30.       Thus, since Appellant clearly and distinctly
“identifies the specific issue[s] . . . in the argument section of [the] appellate
brief . . . Appellant’s failure to comply with Rule 2116(a) does not impede
our ability to review the issue[s],” and, accordingly, we will not find waiver
for failure to comply with Rule 2116. Commonwealth v. Long, 786 A.2d
237, 239 n.3 (Pa. Super. 2001).
4
  For ease of discussion, this Court has reorganized Appellant’s claims on
appeal.




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        the trial level. We may affirm a PCRA court’s decision on
        any grounds if it is supported by the record.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010) (internal

citations omitted).

      To be eligible for relief under the PCRA, the petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

resulted from “one or more” of the seven, specifically enumerated

circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily

enumerated circumstances is the “[i]neffectiveness 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.A. § 9543(a)(2)(ii).

      Counsel is, however, presumed to be effective and “the burden of

demonstrating ineffectiveness rests on [A]ppellant.”      Commonwealth v.

Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010).         To satisfy this burden,

Appellant must plead and prove by a preponderance of the evidence that:

        (1) his underlying claim is of arguable merit; (2) the
        particular course of conduct pursued by counsel did not
        have some reasonable basis designed to effectuate his
        interests; and, (3) but for counsel’s ineffectiveness, there is
        a reasonable probability that the outcome of the challenged
        proceedings would have been different.

Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003).             “A failure to

satisfy any prong of the test for ineffectiveness will require rejection of the

claim.” Id.




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       First, Appellant claims that trial counsel was ineffective for failing to

adequately cross-examine the victim regarding alleged prior inconsistent

statements. Appellant’s Brief at 13. Specifically, Appellant argues that trial

counsel was ineffective for failing to cross-examine the victim regarding her

alleged prior inconsistent statements about: “whether penetration occurred

[and] the specific part of the body that she alleged [Appellant] penetrated

and violated” when the victim was 12 years old and the two were in New

Jersey, inside of Appellant’s truck; “the number of times there were truck

rides during which [the victim] touched [Appellant];” and, “the frequency of

the incidents in the truck.” Appellant’s Brief at 15-18.5

       At the outset, Appellant has failed to identify any portion of the record

in which an inconsistency may be found regarding “the number of times

there were truck rides during which [the victim] touched [Appellant]” and

“the frequency of the incidents in the truck.” See Appellant’s Brief at 7-10

and 13-18. Therefore, these claims are waived. Commonwealth v. Spotz,

716 A.2d 580, 585 n.5 (Pa. 1999) (“[the Pennsylvania Supreme Court] has

held that an issue will be deemed to be waived when an appellant fails to

____________________________________________


5
  Within Appellant’s PCRA petition, Appellant claimed that trial counsel was
ineffective for failing to cross-examine the victim on a number of additional,
alleged inconsistencies. We note that Appellant has waived any claim that is
not contained in the argument section of his brief. Commonwealth v.
Phillips, 141 A.3d 512, 522 (Pa. Super. 2016) (issues “not developed in the
[b]rief’s argument section will be deemed waived”).




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properly explain or develop it in his brief”); Commonwealth v. Perez, 93

A.3d 829, 838 (Pa. 2014) (“to the extent appellant’s claims fail to contain

developed argument or citation to supporting authorities and the record,

they are waived”).

      Appellant also claims that trial counsel was ineffective for failing to

cross-examine the witness regarding “whether penetration occurred [and]

the specific part of the body that she alleged [Appellant] penetrated and

violated” when the victim was 12 years old and the two were inside of

Appellant’s truck, in New Jersey. Appellant’s Brief at 17. This claim fails.

      Appellant’s argument arises from an alleged incident that took place in

New Jersey when the victim accompanied Appellant on a truck ride.

Appellant was not on trial regarding any conduct alleged to have occurred

during this incident. Testimony regarding this incident was admissible only

for a limited purpose, to show Appellant’s “passion or propensity for illicit

sexual relations with [the victim].” PCRA Court Opinion, 11/15/16, at 7; see

also Commonwealth v. Dunkle, 602 A.2d 830, 839 (Pa. 1992) (evidence

of “prior sexual misconduct with the victim is admissible to show a passion

or propensity for illicit sexual relations with the particular person concerned

in the crime on trial”) (internal quotations, citations, and corrections

omitted).

      Further, while there may have been slight variances in statements the

victim gave during interviews and what she testified to at trial, these


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variances were de minimis and reasonable given that the alleged incident

occurred about seven years prior to the trial.      Thus, Appellant was not

prejudiced by trial counsel’s failure to cross-examine the victim on de

minimis inconsistencies on a collateral matter.            Commonwealth v.

Vandivner, 130 A.3d 676, 696 (Pa. 2015) (“a petitioner seeking relief under

the PCRA must demonstrate prejudice by showing there is a reasonable

probability that the result of the proceeding would have been different”).

Therefore, this claim fails.

      Appellant next argues that trial counsel was ineffective for failing to

call multiple witnesses who would have testified that the victim made prior

inconsistent statements. Appellant’s Brief at 18. Appellant did not include

this claim in his Rule 1925(b) statement.    Therefore, the claim is waived.

Pa.R.A.P. 1925(b)(4)(vii) (“[i]ssues not included in the [Rule 1925(b)

s]tatement . . . are waived”).

      In his third claim, Appellant alleges that trial counsel was ineffective

for not adequately investigating and preparing for trial due to a lack of

communication     with   Appellant.   Appellant   claims    that   this   lack   of

communication was caused by his own inability to communicate effectively

as a result of having Asperger Syndrome. Appellant’s Brief at 22. Appellant

further argues that he was unable to understand what was happening at trial

or aid in his own defense, and therefore a new trial is warranted. Id. at 23.

The PCRA court heard testimony and received evidence regarding this claim


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and   concluded   that   trial   counsel   was   not   ineffective    for   failing   to

communicate with Appellant or for failing to prepare and investigate for trial.

PCRA Court Opinion, 11/15/16, at 32. We agree.

      Prior to trial, Appellant received a competency evaluation and was told

by his own expert that he was competent to stand trial.              Specifically, the

expert found:

        [Appellant’s] current therapist went so far as to diagnose
        [Appellant] with Asperger’s Disorder. [Appellant] has many
        features of Asperger’s Disorder. A hallmark symptom is his
        social autism; however, [Appellant] fails to meet the criteria
        for repetitive restrictive and stereotype patterns of
        behavior. While they may be present, there is no evidence
        of them in the materials presented to this examiner.
        Furthermore, Asperger’s Disorder is a diagnosis typically
        diagnosed in childhood or adolescence. [Appellant] was
        treated in adolescence for depression and anxiety. At no
        time was he diagnosed with any of the autism spectrum
        disorders. These would clearly have developed by that
        point.

                                       ...

        [Appellant] was able to relate the charges and allegations
        against him. He was able to demonstrate understanding of
        his possible and probable sentences. He knew who his
        attorney was and the Judge on the case. He was able to
        define a court of law. He was able to identify the various
        components of a court of law and describe their functions.
        These included judge, jury, prosecuting attorney, defense
        attorney, defendant, stenographer, and witness. He was
        able to define a plea. He was able to identify the various
        pleas and describe them well. These included guilty, not
        guilty, nolo contendere, not guilty by reason of insanity,
        guilty but mentally ill[,] and plea bargain. To those of
        which he was not immediately familiar, he was readily
        educated.

                                       ...

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J-S42013-17



        The defendant was able to demonstrate the capacity to
        communicate a choice. He had the ability to understand the
        information relevant to his case. He had the ability to
        understand his situation and its relevant consequences. He
        was able to manipulate information rationally, relevantly
        and apply it to a personal value system. The defendant has
        the verbal articulation skills required to cooperate with his
        attorney in the preparation of his defense and to challenge
        his accusers. This opinion is considered stable over time.

PCRA Court Opinion, 11/15/16, at 30-31, citing Forensic Psychiatric

Evaluation, 1/22/13, at 3-4. Trial counsel testified that, during the trial, he

“had no reason to suspect that [Appellant] wasn’t comprehending what

[counsel was] telling him” and “[Appellant] gave the appearance that he

understood.” N.T. PCRA Hearing, 7/29/16, at 15. It was not until after the

trial ended did Appellant ever indicate that he did not understand. Further,

the trial court conducted a colloquy with Appellant to determine whether his

decision not to testify was made knowingly and intelligently.       N.T. Trial,

8/13/13, at 160-164.       During the colloquy, Appellant answered the

questions appropriately and declared that he understood what was being

said. Id. at 161.

      Moreover, there were numerous instances on the record where

Appellant aided in his own defense.    For instance, Appellant provided trial

counsel with a letter that was written to him by the victim.        N.T. PCRA

Hearing, 7/29/16, at 10-11.    Trial counsel also testified that prior to trial,

“there were a lot of things I asked for and we discussed.” Id. at 11. Trial

counsel also testified that he explained and discussed with Appellant the voir

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dire   process,    calling   witnesses,    cross-examination,     and    general    trial

strategy, and that Appellant appeared to understand. Id. at 14.

       Given these facts, we conclude that the PCRA court did not abuse its

discretion when it concluded that counsel was not ineffective for failing to

adequately communicate with Appellant or prepare and investigate for trial.

       In his last claim, Appellant contends he is entitled to relief based on

exculpatory after-discovered evidence. See 42 Pa.C.S.A. § 9543(a)(2)(vi).

To obtain relief on this basis, Appellant must plead and prove by a

preponderance of the evidence the “unavailability at the time of trial of

exculpatory evidence that has subsequently become available and would

have changed the outcome of the trial had it been introduced.”                Id.    To

obtain relief based on after-discovered evidence, an appellant must show

that the evidence:

         (1) could not have been obtained prior to the conclusion of
         the trial by the exercise of reasonable diligence; (2) is not
         merely corroborative or cumulative; (3) will not be used
         solely to impeach the credibility of a witness; and (4) would
         likely result in a different verdict if a new trial were granted.

Commonwealth v. Foreman, 55 A.3d 532, 537 (Pa. Super. 2012), citing

Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008). To determine

whether the evidence is “of such nature and character” to compel a different

verdict in a new trial, a court should consider “the integrity of the alleged

after-discovered evidence, the motive of those offering the evidence, and

the    overall    strength   of   the     evidence   supporting    the    conviction.”


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Commonwealth v. Padillas, 997 A.2d 356, 365 (Pa. Super. 2010), appeal

denied, 14 A.3d 826 (Pa. 2010).

      In his PCRA petition, Appellant raised a number of issues regarding

after-discovered evidence.        However, in his brief, Appellant limits his

argument to a letter that was allegedly written by the victim and dated

November 14, 2010.      Appellant’s Brief at 26.   As described in Appellant’s

PCRA petition:

        [The h]andwritten letter from [the victim] to her “Dad”,
        presumably [Appellant’s brother, Glenn Talbert], dated
        November [14], 2010, in which she states, among other
        things, that “. . . mom is protective of me, even though she
        doesn’t know me.”        Additionally, the letter makes no
        reference to the incidents that allegedly occurred between
        her and [Appellant].

Appellant’s PCRA Petition, 2/8/16, at ¶ 26e.

      It is unknown whether the letter was intended for Appellant or

Appellant’s brother. Appellant argues that if the letter were intended for his

brother, “the fact that the alleged victim fails to reveal alleged sexual abuse

tends to make the occurrence of the alleged abuse less likely.” Appellant’s

Brief at 29. If, however, the letter were intended for Appellant, he argues,

“the fact that the alleged victim would write a letter of such sentiments to

the person allegedly abusing her likewise makes the occurrence of the

alleged abuse less likely.” Id.

      First, the letter was found by Appellant’s sister in the house where

Appellant lived.   At the PCRA hearing, Appellant’s sister testified that it is


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J-S42013-17


possible the letter could have been found prior to trial, but was not. N.T.

PCRA Hearing, 7/29/16, at 29. The letter was not signed by the victim and

Appellant did not call the victim as a witness during the PCRA hearing to

verify she authored the letter. It is unknown who the intended recipient of

the letter was.    Furthermore, the fact that the letter does not mention the

sexual abuse is not significant, as the absence of the statement is (at most)

of negligible relevancy to prove the absence of the abuse. Accordingly, the

PCRA court properly denied Appellant relief on this claim.

      Therefore, based on our standard of review and the rationale explained

above, Appellant failed to establish that his trial counsel was ineffective.

Further, Appellant did not meet the burden of proving his after-discovered

evidence claim.    Thus, we conclude that the PCRA court’s order, denying

Appellant post-conviction collateral relief, is supported by the record and is

free of legal error.

      Order affirmed. Jurisdiction relinquished.

 Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/18/2017




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