J. S62034/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                  v.                    :
                                        :
DONALD STEWART,                         :          No. 2383 EDA 2017
                                        :
                       Appellant        :


                Appeal from the PCRA Order, June 12, 2017,
           in the Court of Common Pleas of Philadelphia County
             Criminal Division at No. CP-51-CR-0403521-2003


BEFORE: LAZARUS, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED FEBRUARY 14, 2019

     Donald Stewart appeals from the June 12, 2017 order filed in the

Court of Common Pleas of Philadelphia County that dismissed his petition

filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546. After careful review, we affirm.

     The facts, as set forth by a previous panel of this court, are as follows:

                 On January 13, 2003, Kynisha Barnes,
                 18 (hereinafter “Barnes”), was walking
                 along Baynton Street in the City and
                 County of Philadelphia, where she came
                 in contact with [appellant].     With his
                 daughter in the back seat asleep,
                 [appellant] pulled up in a black Jaguar
                 alongside Barnes and struck up a
                 conversation.    [Appellant] told Barnes
                 that he owned a salon with his mother on
                 the other side of Germantown and that
                 he needed someone to work for him as a
                 cashier. Barnes told [appellant] that she
J. S62034/18


               was interested since she was not
               employed at the time.          [Appellant]
               opened the car door, and Barnes got in
               so that he could drive her to the salon to
               fill out an application.

               [Appellant] first drove to an unidentified
               location in Germantown and dropped off
               his daughter while Barnes waited in his
               car. [Appellant] returned and drove for
               about thirty (30) minutes to his
               residence located at 2056 North 23rd
               Street in the City and County of
               Philadelphia. [Appellant] told Barnes to
               get out of the car and they walked up to
               his house. Once inside, [appellant] told
               Barnes to relax and get comfortable, but
               she remained standing.         [Appellant]
               removed her coat and told her to wait on
               his couch while he went upstairs. When
               [appellant] returned, Barnes asked to be
               taken home. [Appellant] replied, “No, I
               want to take care of you.”          Barnes
               grabbed her coat, but [appellant] led her
               upstairs by the arm. Barnes repeatedly
               told [appellant] that she did not want to
               go upstairs, to which he replied, “Yes you
               do.”

               [Appellant] sat Barnes on his bed, turned
               the television and radio on high volume,
               and left the room.      When [appellant]
               returned, Barnes asked if she could use
               his bathroom where she stayed for a
               short time contemplating what to do. As
               she stood in the bathroom, [appellant]
               opened the door wearing only his
               underwear. He pulled Barnes back into
               the bedroom, reached under her shirt
               and removed her bra. As Barnes tried to
               push him away, [appellant] said, “I am
               going to give you money for it.” Barnes
               repeatedly told [appellant] to stop.
               Barnes tried to run out of the room, but


                                 -2-
J. S62034/18


                   [appellant] grabbed her by the waist and
                   forced her down on the bed. He told her
                   that if she did not remove her pants, he
                   would rip them off her.        [Appellant]
                   removed his underwear and forced his
                   penis into her vagina. Barnes repeatedly
                   told [appellant] to stop.        After he
                   finished, Barnes went into the bathroom
                   to clean herself. Afterwards, [appellant]
                   attempted to give her money. Barnes
                   refused. [Appellant] put the money in
                   her [,] which Barnes did not discover
                   until later. Barnes asked [appellant] to
                   drive her back to the location where they
                   met.      Once he stopped the car,
                   [appellant] handed her a piece of paper
                   with a telephone number with the name
                   “Jamal” written on it.         Afterwards,
                   Barnes told both her friend Byron
                   Chamberlain, and her sister about the
                   incident with [appellant].

                   The next day, Barnes told the school
                   nurse about the incident and police were
                   called to the school.    Barnes gave a
                   statement to police.       Barnes said
                   [appellant] had a noticeable scar on his
                   stomach. On January 15, 2003, Barnes
                   gave a statement to the Special Victim’s
                   Unit. Police went to [appellant’s] home,
                   but he denied any involvement with
                   Barnes.    On March 3, 2003, Barnes
                   picked [appellant] out of a photo array.
                   Barnes said [appellant’s] name was
                   Jamal.    [Appellant] was arrested on
                   March 9, 2003.

              Trial Court Opinion, 11/20/07, at 2-4 (citations
              omitted).

              After a jury trial, [appellant] was found guilty of
              [rape and sexual assault].[1] Counsel for [appellant]

1   18 Pa.C.S.A. §§ 3121(a) and 3124.1, respectively.


                                      -3-
J. S62034/18


           filed post-verdict Motions.        Subsequently, new
           counsel entered an appearance for [appellant] and
           filed additional post-trial Motions. The trial court
           denied    [appellant’s]    post-trial  Motions,  and
           sentenced [appellant] to a prison term of ten to
           twenty years on the rape conviction.[Footnote 2]

                 [Footnote 2] The conviction of sexual
                 assault merged with the rape conviction
                 for purposes of sentencing.

Commonwealth v. Stewart, 970 A.2d 479 (Pa.Super. 2009) (unpublished

memorandum at 1-3).

     Appellant then appealed to this court, which affirmed. Id. Appellant

petitioned for allowance of appeal with the Pennsylvania Supreme Court.

Our supreme court vacated the portion of this court’s opinion related to

prosecutorial misconduct and remanded to this court with instructions to

remand to the trial court to address whether the assistant district attorney

committed prosecutorial misconduct.     Commonwealth v. Stewart, 987

A.2d 1214 (Pa. 2010).       The trial court concluded that there was no

prosecutorial misconduct.     This court affirmed.     Commonwealth v.

Stewart, 23 A.3d 577 (Pa.Super. 2010).        Appellant then petitioned for

allowance of appeal our supreme court, which denied the petition on May 12,

2011. Commonwealth v. Stewart, 21 A.3d 1193 (Pa.Super. 2011).

     The PCRA court recounted the following additional procedural history:

           On May 8, 2012, [a]ppellant filed a pro se PCRA
           Petition.   On January 21, 2014, court-appointed
           counsel filed an Amended PCRA Petition. On April 1,
           2014, [a]ppellant filed a motion to remove counsel.
           On June 26, 2014, John Cotter, Esq. entered his


                                   -4-
J. S62034/18


             appearance on behalf of [a]ppellant. On August 1,
             2014, counsel filed an Amended PCRA Petition. On
             October 7, 2014, [a]ppellant filed a motion for new
             counsel. On October 27, 2014 and November 17,
             2014, counsel filed PCRA supplements. On July 6,
             2015, counsel filed a motion to withdraw as counsel,
             citing [a]ppellant’s wishes to proceed pro se. On
             August 21, 2015, this Court held a Grazier[2]
             hearing and permitted [a]ppellant to proceed
             pro se.     On December 11, 2015, this Court
             appointed Matthew J. Wolfe, Esq. as standby
             counsel. On March 18, 2016, [a]ppellant filed an
             Amended PCRA Petition. On March 22, 2016, the
             Commonwealth        filed a    Motion    to  Dismiss
             [a]ppellant’s PCRA Petition.     On May 12, 2016,
             [a]ppellant filed yet another PCRA Petition.      On
             July 18, 2016, [a]ppellant filed a Motion for
             Extension of Time.        On July 25, 2016, the
             Commonwealth filed a response. On May 11, 2017,
             [a]ppellant filed another Motion for Extension of
             Time.     On May 12, 2017, [a]ppellant filed yet
             another PCRA Petition.      On June 7, 2017, the
             Commonwealth filed a brief in opposition to
             [a]ppellant’s motion for extension of time. Following
             arguments presented by both sides, on June 12,
             2017, this Court dismissed [a]ppellant’s PCRA
             Petition.

             On July 7, 2017, [a]ppellant filed[] a notice of
             appeal. On September 29, 2017, [a]ppellant filed
             with the court a Statement of Errors Complained [of]
             on Appeal, pursuant to this Court’s order. This Court
             cannot identify, precisely, [a]ppellant’s claims raised
             on appeal. (See Attached Statement of Errors).

PCRA court opinion, 3/6/18 at 1-2.

       The PCRA court filed an opinion, pursuant to Pa.R.A.P. 1925(a) on

March 6, 2018.




2   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).


                                      -5-
J. S62034/18

      Appellant raises the following issue for this court’s review:         “Did the

PCRA Court err and/or abuse its discretion when it denied [appellant’s]

petition under the PCRA seeking a new trial based upon the ineffective

assistance of counsel?” (Appellant’s brief at 4.)

      Proper appellate review of a PCRA court’s dismissal of a PCRA petition

is limited to the examination of “whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Miller,

102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s

findings will not be disturbed unless there is no support for the findings in

the certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super.

2014) (citations omitted). “This Court grants great deference to the findings

of the PCRA court, and we will not disturb those findings merely because the

record could support a contrary holding.”          Commonwealth v. Hickman,

799 A.2d 136, 140 (Pa.Super. 2002) (citation omitted).

      Appellant’s claims concern the ineffective assistance of counsel.           To

prevail on a claim of ineffective assistance of counsel under the PCRA, a

petitioner must establish the following three factors: “first[,] the underlying

claim has arguable merit; second, that counsel had no reasonable basis for

his   action    or   inaction;   and   third,   that   Appellant   was   prejudiced.”

Commonwealth v. Charleston, 94 A.3d 1012, 1020 (Pa.Super. 2014)

(citation omitted), appeal denied, 104 A.3d 523 (Pa. 2014).

               [A] PCRA petitioner will be granted relief only when
               he proves, by a preponderance of the evidence, that


                                         -6-
J. S62034/18


            his conviction or sentence resulted from the
            [i]neffective assistance of counsel which, in the
            circumstances of the particular case, so undermined
            the truth-determining process that no reliable
            adjudication of guilt or innocence could have taken
            place.

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

marks   omitted;     some    brackets    in   original),   citing     42    Pa.C.S.A.

§ 9543(a)(2)(ii).

      “[C]ounsel    is   presumed   to   be   effective    and      the    burden   of

demonstrating ineffectiveness rests on appellant.”          Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011) (citation omitted), appeal

denied, 30 A.3d 487 (Pa. 2011). Additionally, counsel is not ineffective for

failing to raise a claim that is devoid of merit. Commonwealth v. Ligons,

971 A.2d 1125, 1146 (Pa. 2009).

      Initially, appellant contends that his trial counsel was ineffective for

failing to consult or present evidence from any experts in forensic science,

DNA, or any related field to discuss the significance of the lack of physical

and forensic evidence presented.

            In order to demonstrate counsel's ineffectiveness for
            failure to call a witness, a petitioner must prove that
            “the witness [] existed, the witness [was] ready and
            willing to testify, and the absence of the witness[’]
            testimony prejudiced petitioner and denied him a fair
            trial.”   [Commonwealth v.] Johnson, 27 A.3d
            [244], 247 (Pa.Super. 2011). In particular, when
            challenging trial counsel's failure to produce expert
            testimony, “the defendant must articulate what
            evidence was available and identify the witness who
            was      willing     to    offer     such    evidence.”


                                        -7-
J. S62034/18


              Commonwealth v. Bryant, 579 Pa. 119, 855 A.2d
              726, 745 (2004) (internal citation omitted). Also,
              “[t]rial counsel need not introduce expert testimony
              on his client's behalf if he is able effectively to
              cross-examine prosecution witnesses and elicit
              helpful     testimony.”        Commonwealth       v.
              Copenhefer, 553 Pa. 285, 719 A.2d 242, 253
              (1998); accord Commonwealth v. Williams, 537
              Pa. 1, 640 A.2d 1251, 1265 (1994).

Commonwealth v. Luster, 71 A.3d 1029, 1047 (Pa.Super. 2013).

      Here, appellant failed to identify what expert was available and willing

to testify.    Also, the record reflects that there was no DNA evidence

available. Because the Commonwealth did not present any DNA evidence or

expert testimony, the jury would have been aware that there was no DNA

evidence that linked appellant to the rape. The Commonwealth also notes

that appellant’s trial counsel argued in his closing argument about the

absence of DNA evidence.        Appellant fails to establish how he suffered

prejudice from the failure to call the witness, so his claim fails under

Charleston.

      Appellant next contends that his trial counsel was ineffective because

he failed to object to a portion of a jury instruction concerning reasonable

doubt which appellant believes is constitutionally infirm. Appellant concedes

that while he raised this claim in his statement of errors complained of on

appeal, he did not raise it before the PCRA court dismissed his petition(s).

This issue is waived because a claim not raised in a PCRA petition cannot be




                                     -8-
J. S62034/18

raised for the first time on appeal. Commonwealth v. Santiago, 855 A.2d

682, 691 (Pa. 2004).

     Appellant has failed to prove that the PCRA court’s decision contained

legal error or that any findings were unsupported by the evidence of record.

     Order affirmed.



     Lazarus, J. joins this Memorandum.

     McLaughlin, J. concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 2/14/19




                                    -9-
