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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                   v.

JOHNATHAN ROBINS

                        Appellant                  No. 2047 EDA 2016


                Appeal from the PCRA Order April 27, 2016
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0003430-2009


BEFORE: BOWES, J., SHOGAN, J., AND STEVENS, P.J.E.,*

MEMORANDUM BY BOWES, J.:                      FILED SEPTEMBER 27, 2017

     Johnathan Robins appeals from the April 27, 2016 order dismissing his

PCRA petition. We affirm.

     Appellant was convicted of involuntary deviate sexual intercourse

(IDSI), statutory sexual assault, unlawful contact with a minor, interference

with custody of children, and corruption of minors. We adopt the summary

of the underlying facts from the memorandum of this Court on direct appeal:

     [Philadelphia Police] Officer [Brian] Mort encountered E.J. and
     [A]ppellant engaged in a verbal dispute over their one year old
     child. Upon speaking to [Appellant] and E.J., and examining the
     identification produced by each, Officer Mort and his partner
     determined that E.J. was fourteen years old at the time the child
     was conceived. Officer Mort then placed [A]ppellant under arrest
     and transported both [A]ppellant and E.J. to the Philadelphia
     Police Department’s Special Victims Unit.




* Former Justice specially assigned to the Superior Court.
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            [A]ppellant’s testimony essentially mirrored that of E.J.
     [A]ppellant testified that he met E.J. on a dating phone line for
     adults over the age of eighteen. After talking on the phone, they
     then met for dinner and talked about having a family.
     [A]ppellant admitted that sometime after their meeting that “yes
     we did have intercourse.”         [A]ppellant testified on cross
     examination that he also engaged in oral sex with E.J.
     Attempting to down play this aspect of their relationship, he
     testified that they were then trying to have a baby.

            [A]ppellant testified that after E.J. became pregnant, he
     wanted to marry her before the child was born. [Appellant]
     testified that he researched the marriage laws of both
     Pennsylvania and Missouri before deciding to take E.J. to
     Missouri to get married. [A]ppellant testified that he chose to
     marry E.J, in Missouri because it does not require a three day
     waiting period and “I could do it in one day.” Appellant testified
     that it wasn’t until January of 2009, after they returned from
     Missouri, that he learned of E.J.’s true age.

Commonwealth v. Robins, 32 A.3d 823, at 2. (Pa.Super. 2011)

     Appellant, proceeding pro se with Attorney Thomas McGill, Jr., acting

as stand-by counsel, was convicted by a jury of all charges.        The court

sentenced him to a mandatory term of ten to twenty years imprisonment for

IDSI, and consecutive one to five year terms of imprisonment for statutory

sexual assault and unlawful contact with a minor. He received no additional

penalty for the remaining convictions. Appellant was determined not to be a

sexually violent predator, but nonetheless required to register as a sexual

offender under the Sexual Offender Registration and Notification Act

(“SORNA”), 42 Pa.C.S. § 9799.10 et seq.

     This Court affirmed judgment of sentence on August 5, 2011. Id. The

Supreme   Court   denied   allowance   of   appeal   on   January   20,   2012.

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Commonwealth v. Robins, 35 A.3d 1206 (Pa. 2012).               Appellant timely

filed the instant pro se PCRA petition and counsel was appointed.            When

Appellant indicated that he wished to waive counsel, the court conducted a

Grazier hearing.1 Appellant was permitted to proceed pro se and he filed an

amended PCRA petition on September 15, 2014, and an addendum on July

27, 2015. The Commonwealth moved to dismiss the petition. On April 27,

2016, following a hearing, the PCRA court dismissed Appellant’s PCRA

petition, and Appellant filed the instant appeal.

       Appellant presents eleven questions for our review:

       I.     Did the Trial Court err in sentencing [A]ppellant to a crime
              that the jury did not find him guilty of because they were
              not presented with it, as court gave instructions on the
              wrong statute?

       II.    Did the Trial Court err by refusing to merge lesser-included
              offense at sentencing?

       III.   Is the mandatory minimum Appellant was sentenced to
              unconstitutional?

       IV.    Did Trial Court err by refusing to admit marriage license
              and marriage law into evidence?

       V.     Did Trial Court err by refusing to allow [A]ppellant to put
              forward affirmative marriage defense?

       VI.    Did Trial Court err by refusing to instruct jury of marriage
              defense?


____________________________________________


1
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).



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      VII.   Did Trial Court err by making prejudicial statements about
             [A]ppellant’s marriage and other testimonial evidence
             [A]ppellant was trying to present?

      VIII. Did the cumulative effect of Trial Court errors deprive
            [A]ppellant of fair trial?

      IX.    Did Trial Court violate [A]ppellant’s Due Process Rights by
             imposing registration requirement when he was assessed
             not to be a sexually violent predator?

      X.     Was [A]ppellant Counsel ineffective during sentencing and
             on appeal for not putting forward above issues?

      XI.    Did Trial Court violate [A]ppellant’s right to be Pro Se
             during PCRA proceedings?

Appellant’s brief at 2-3.

      In reviewing an order denying PCRA relief, we must determine whether

the PCRA court’s determination is supported by the evidence of record and

free of legal error.   Commonwealth v. Harris, 114 A.3d 1 (Pa.Super.

2015).

      Appellant’s first contention is that the trial court erred in instructing

the jury pursuant to subsection (a)(7) of the IDSI statute, when he was

charged with violating subsection (a)(1) of that statute.    Furthermore, the

jury found him guilty under subsection (a)(7), and the court sentenced him

under that provision. He relies upon Commonwealth v. Kopp, 591 A.2d

1122 (Pa.Super. 1991), where the defendant was found guilty of a different

subsection of the robbery statute than was charged in the indictment, which




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this Court held constituted a substantive change in the elements of the crime

and prejudiced defendant.

       We note preliminarily that Appellant did not object to this alleged

defect at trial.    Nor did he object to the jury instruction based on IDSI

subsection (a)(7). Since this claim could have been challenged at trial, it is

waived under the Post-Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546,

unless an exception applies. Commonwealth v. Blakeney, 108 A.3d 739,

745 (Pa. 2014). No exception has been alleged.

       Moreover, the record does not factually support Appellant’s claim. The

criminal information charged Appellant, age forty at the time, with both IDSI

by forcible compulsion and IDSI by engaging in deviate sexual intercourse

with a complainant who was less than 16 years of age and to whom he was

not married at the time. 18 Pa.C.S. § 3123 (a)(1) and (a)(7). Furthermore,

prior to his arraignment, the Commonwealth orally amended the information

when it advised the court that it was proceeding solely under § 3123(a)(7).

Thus, Appellant had the requisite notice that he was being charged under §

3123(a)(7), and in fact, he asserted a mistake of age defense that was

applicable only to that subsection.2 No relief is due.

____________________________________________


2
  The trial court pointed out that the verdict slip and the sentencing order
mistakenly indicated IDSI pursuant to 18 Pa.C.S. § 3123(a)(1), and
attributed this to a clerical error that did not reflect the oral amendment.
The court maintained that Appellant was charged and convicted of §
(Footnote Continued Next Page)


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      Appellant’s second issue is that all of his sentences should have

merged as they arose out of the same criminal act.      He does not specify

which offenses were lesser-included offenses that should have merged.

Such a claim “raises a challenge to the legality of the sentence,” for which

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

Commonwealth v. Brown, 159 A.3d 531, 532-533 (Pa.Super. 2017).

Although Appellant did not challenge his sentence on this basis below or on

direct appeal, the claim is not waived as challenges to the legality of a

sentence can be raised for the first time in a timely PCRA petition.

Commonwealth v. Infante, 63 A.3d 358 (Pa.Super. 2013) (recognizing

that legality of sentence claims are non-waivable and always subject to

review within the PCRA provided they are asserted in a timely petition).

      The statute governing the merger of sentences provides:

            No crimes shall merge for sentencing purposes unless the
      crimes arise from a single criminal act and all of the statutory
      elements of one offense are included in the statutory elements of
      the other offense. Where crimes merge for sentencing purposes,
      the court may sentence the defendant only on the higher graded
      offense.

42 Pa.C.S. § 9765; see also Commonwealth v. Baldwin, 985 A.2d 830,

833 (Pa. 2009).


                       _______________________
(Footnote Continued)

3123(a)(7), and that it was clear throughout that this was the applicable
subsection.



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       Appellant’s brief offers no support for his contention that all of the

criminal conduct charged arose from one criminal act.       Indeed, the record

belies that contention.      The IDSI charge related to oral sexual intercourse

with the fourteen-year-old complainant that occurred on a different occasion

from the statutory sexual assault, which involved vaginal sexual intercourse

on numerous occasions prior to the purported marriage in Missouri.         The

interference with custody of child, unlawful contact with a child, and

corruption of minors involved different conduct at various times during 2007

and 2008.

       Furthermore, even if Appellant had demonstrated that the crimes

arose from a single criminal act, the offenses would only merge for

sentencing purposes if the statutory elements of the lesser-included offenses

were included in the statutory elements of the other offense.         Appellant

ignores this facet of the merger analysis and fails to demonstrate the

identity of elements of the offenses that would support merger.3 Appellant’s

claim is without merit.


____________________________________________


3
   The attorney for the Commonwealth initially misspoke at sentencing and
suggested that interference with custody of a child and corruption of the
morals of a minor merged for sentencing purposes. When the trial court
questioned that representation, the Commonwealth backtracked and
conceded that there was no merger technically, but that it was
recommending no additional penalty on the corruption of morals charge.




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       Appellant’s third issue is a constitutional challenge to the mandatory

minimum sentence imposed for IDSI.               He cites Commonwealth v. Ruiz,

131 A.3d 54 (Pa.Super. 2015), in support of his contention that he can avail

himself of the Supreme Court’s decision in Alleyne v. United States, 133

S.Ct. 2151 (2013), in this timely PCRA petition.

       Appellant misapprehends Ruiz.           A defendant can raise an Alleyne

challenge in a timely PCRA petition so long as judgment of sentence was not

final when Alleyne was decided on June 17, 2013.              Commonwealth v.

Washington, 142 A.3d 810 (Pa. 2016). Appellant’s judgment of sentence

became final on or about April 20, 2012, almost a year before the Supreme

Court decided Alleyne.4          Alleyne does not apply retroactively to afford

Appellant relief.

       Appellant’s fourth, fifth, sixth, and seventh issues all pertain to claims

of trial court error in refusing to admit the marriage license into evidence,

permit an affirmative defense of marriage, instruct the jury on a marriage

defense, and in making allegedly prejudicial comments about the marriage.

The Commonwealth counters that these issues were either previously

litigated or waived.      42 Pa.C.S. § 9543(a)(3).      The Commonwealth relies

upon 42 Pa.C.S. § 9544(a)(2) and Commonwealth v. Keaton, 45 A.3d
____________________________________________


4
     Appellant’s judgment of sentence became final ninety days after the
Pennsylvania Supreme Court denied allowance of appeal, when he did not
file a petition for writ of certiorari to the United States Supreme Court.



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1050 (Pa. 2012), for the proposition that an issue is deemed to have been

previously litigated if the highest appellate court in which review could have

been obtained as a matter of right has ruled on the merits of the issues.

Appellant counters that, on direct appeal, he argued only error in the trial

court’s refusal to instruct the jury on the marriage law, which is distinctly

different from error in refusing the marriage defense, admission of the

marriage certificate, and the court’s allegedly prejudicial comments on it.

      Our review of the record confirms that these issues were previously

litigated on direct appeal.   Blakeney, supra.      This Court addressed and

rejected as irrelevant all claims of error related to Appellant’s “marriage

defense” because the crimes charged were committed prior to the alleged

marriage. No relief is due.

      Next, Appellant faults trial and appellate counsel for failing to raise the

issues of merger and the IDSI statute on appeal. We note there is a strong

presumption that counsel was effective in his representation. Harrington v.

Richter, 131 S.Ct. 770 (2011).      In order to prevail on an ineffectiveness

claim, an appellant must demonstrate all of the following: 1) the underlying

claim is of arguable merit; (2) counsel’s performance lacked a reasonable

basis; and (3) ineffective assistance of counsel caused him prejudice.

Commonwealth v. Pierce, 786 A.2d 203 (Pa. 2001).

      Appellant elected to proceed pro se at trial with the assistance of

stand-by counsel. In such circumstances, the defendant is counsel of record

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and stand-by counsel merely fulfills a limited role.          Commonwealth v.

Blakeney, 108 A.3d 739, 756 (Pa. 2014).          When a defendant chooses to

represent himself, he cannot obtain post-conviction relief by raising a claim

of ineffectiveness of himself or stand-by counsel.      Id.   Thus, any claim of

ineffectiveness of trial counsel arising from the failure to challenge the

submission to the jury of the IDSI charge under § 3123(a)(7), is not

cognizable under the PCRA.

      We have also determined supra that Appellant’s merger claim lacks

merit.   “Failure to raise a meritless issue is not ineffective assistance of

counsel.”    Commonwealth v. McBee, 520 A.2d 10, 14 (Pa. 1986);

Commonwealth v. Bryant, 855 A.2d 726, 742 (Pa. 2004) (“Trial counsel

cannot be held to be ineffective for failing to take futile actions or raise a

meritless claim.”).

      Appellant’s claim that the cumulative effect of trial court error deprived

him of a fair trial fares no better.       Having concluded that Appellant’s

individual claims of trial court error are either previously litigated, waived, or

meritless, there is no harmful cumulative effect to consider.                See

Commonwealth v. Wright, 961 A.2d 119 (Pa. 2008).

      Next Appellant alleges that the trial court erred in requiring him to

register under SORNA when he was not determined to be a sexually violent

predator (“SVP”). Since this issue could have been raised on direct appeal,

but was not, it is waived. See 42 Pa.C.S. §§ 9541-9546; Blakeney, supra

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at 745. Nor can direct appeal counsel be deemed ineffective for failing to

assert a claim that was not preserved below by Appellant who was

proceeding pro se. See Blakeney, supra at 749 (recognizing that a PCRA

appellant who represented himself at trial may be “restricted by trial level

defaults chargeable to . . . himself[,]” and find layered claims of counsel

ineffectiveness unavailable).      Moreover, Appellant’s premise is faulty.

Registration requirements do not apply solely to SVPs. Four of Appellant’s

convictions, namely IDSI, statutory sexual assault, interference with the

custody of a child, and unlawful contact with a minor, carry a registration

requirement. Appellant’s claim is without merit.

      In his final issue, Appellant claims that the trial court violated his right

to appear pro se on direct appeal and during the instant PCRA appeal. He

makes vague allegations that the trial court filed “defense motions with no

authority” and “without telling him.” Appellant’s brief at 46. He argues that

the trial court did not permit him to attend hearings on September 15, 2014,

July 27, 2015, January 21, 2016, March 21-23, 2016, March 30, 2016, April

25, 2016, and April 27, 2016. Appellant does not spell out the purpose of

these alleged hearings, but insists that denial of his right to proceed pro se

is not subject to a harmless error analysis, citing McKaskle v. Wiggins,

465 U.S. 168, 177 n.8 (1984).

      The trial court dismissed these claims as “nonsensical and wholly

unsupported on the record.”      Trial Court Opinion, 11/10/16, at 14.        The

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Commonwealth characterizes the claim as frivolous, pointing to the fact that

the trial court granted Appellant the right to proceed pro se after a Grazier

hearing, and Appellant filed his PCRA petition, an amended petition, an

addendum to the amended petition, and a merits brief without the

assistance of counsel. We agree.

      Moreover, after a thorough review of the record, we find no support for

Appellant’s claims that he was not permitted to attend “hearings” on the

aforementioned dates.       The record indicates that no hearings were

conducted in Appellant’s absence. Furthermore, the record establishes that

on September 15, 2014, Appellant filed an amended pro se PCRA petition.

On July 27, 2015, he filed a petition to add an addendum to his PCRA

petition to assert an Alleyne mandatory minimum argument; to allege that

he had been reincarcerated for failure to register under an unconstitutional

statute; that he was convicted of IDSI by forcible compulsion pursuant to a

defective indictment. On January 21, 2016, the court ordered that Appellant

be transported to court for a PCRA hearing scheduled at a later date.     On

March 21, 2016, the Commonwealth filed a motion to dismiss Appellant

PCRA petition, and the trial court issued Rule 907 notice on March 23, 2016.

Appellant filed a reply to the Commonwealth’s motion on March 30, 2016, a

supplement thereto on April 25, 2016, and on April 27, 2016, the PCRA court

issued an order dismissing Appellant’s petition. No relief is due.

      Order affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/27/2017




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