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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                     :
                                           :
MARCUS ANTHONY GAGOT,                      :
                                           :
                         APPELLANT         :
                                           :     No. 1110 WDA 2016

                  Appeal from the PCRA Order June 15, 2016
                In the Court of Common Pleas of Beaver County
              Criminal Division at No(s): CP-04-CR-0001892-2011



BEFORE: LAZARUS, J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY DUBOW, J.:                              FILED APRIL 07, 2017

        Appellant, Marcus Anthony Gagot, appeals pro se from the Order

entered in the Beaver County Court of Common Pleas denying his first

Petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§

9541-9546. After careful review, we affirm.

        The PCRA court’s Pa.R.A.P. 1925(a) Opinion includes a thorough and

complete narrative of the facts and procedural history in this case, which we

adopt for purposes of our disposition. See PCRA Ct. Op., 8/22/16, at 1-4.

We summarize the facts and procedural history as follows. On February 14,

2013, the trial court sentenced Appellant to 15 to 30 years’ incarceration

*
    Retired Senior Judge assigned to the Superior Court.
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following his jury conviction of four counts each of Aggravated Indecent

Assault and Indecent Assault, two counts of Rape, and one count each of

Statutory Sexual Assault, Sexual Assault, and Corruption of Minors. See 18

Pa.C.S.A.   §§   3125(a)(1),   (2),   (4),   (8);   3126(a)(1),   (2),   (4),   (8);

3121(a)(1), (3); 3122.1; 3124.1; 6301(a)(1).          Appellant’s victim was his

then-girlfriend’s 13-year-old daughter.

      Appellant appealed his Judgment of Sentence, and this Court affirmed.

Commonwealth v. Gagot, Nos. 943, 959 WDA 2013 (Pa. Super. filed April

25, 2014) (unpublished memorandum).           The Pennsylvania Supreme Court

denied Appellant’s Petition for Allowance of Appeal on August 26, 2014.

Commonwealth v. Gagot, 99 A.3d 76 (Pa. filed August 26, 2014).

      On July 8, 2015, Appellant filed a pro se Petition under the PCRA

raising claims of ineffective assistance of counsel and violation of his

constitutional rights.1 On July 13, 2015, the PCRA court appointed counsel

to represent Appellant. On April 8, 2016, counsel filed a Turner/Finley2 no-

merit letter and sought to withdraw as Appellant’s counsel.


1
  Specifically, in addition to his claims of ineffective assistance of counsel,
Appellant alleged in his pro se Petition that government agents were biased
against him, and that the Commonwealth failed to disclose exculpatory
evidence, engaged in various acts of prosecutorial misconduct, and did not
give Appellant a copy of his arrest warrant or a report prepared by CYS. He
also alleged general violations of the Fifth, Sixth, and Eighth Amendments to
the U.S. Constitution.
2
  See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).



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      On April 14, 2016, the PCRA court issued a Pa.R.Crim.P. 907 Notice

advising Appellant of its intent to dismiss his Petition without a hearing. In

the Notice, the court concluded that Appellant’s ineffective assistance of

counsel claims lacked merit and that Appellant had previously litigated

and/or waived his other claims, and granted counsel’s request to withdraw.

Appellant filed a pro se Response on May 20, 2016.

      On June 15, 2016, the PCRA court dismissed Appellant’s Petition

without a hearing. Appellant filed a timely pro se Notice of Appeal on July

12, 2016. Appellant filed a second Notice of Appeal on July 28, 2016, after

the Clerk of Courts notified him that he had failed to attach the required

Proof of Service to his first Notice of Appeal.3 The PCRA court did not order

Appellant to file a Pa.R.A.P. 1925(b) Statement.

      Appellant raises the following seven issues on appeal:

         1. Did [c]ounsel render prejudicially ineffective assistance
         for failing to notice, make inquiry’s [sic], and obtain a copy
         of the arrest warrant being that Appellant was not
         provided a copy pursuant to Pa.R.Crim.P 540(D)[?]

         2. Did [c]ounsel render prejudicially ineffective assistance
         for failing to effectively cross-examine Ms. Valentine on her
         conflicting statements contained in Kathy Kloonan’s report
         in comparison to her statements to [p]olice and on the
         stand, pursuant to Pa.R.E. 613[?]

         3. Did counsel render prejudicially ineffective assistance
         for accepting a $3,000 retainer and failing to comply with

3
  This does not affect the validity of Appellant’s appeal. See Pa.R.A.P. 902
(“Failure of an appellant to take any step other than the timely filing of a
[N]otice of [A]ppeal does not affect the validity of the appeal[.]”).



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         Pa.R.Crim.P. 120(A)(1), and thereby placing the Appellant
         at a disadvantage, unfairly, at a critical stage pursuant to
         United States v. Cronic, 466 U.S. 648[ (1984)?]

         4. Did [c]ounsel render prejudicially ineffective assistance
         for failing to move the [c]ourt for an in-camera inspection
         of otherwise confidential information protected by law or
         statute with regard to only the verbatim statements made
         pertaining to the allegations pursuant to Commonwealth
         v. Ritchie, 509 Pa. 357, 502 A.2d 148 (1985), if not
         discoverable    or    within   the   possession     of   the
         Commonwealth[?]

         5. Did [c]ounsel render prejudicially ineffective assistance
         for failing to familiarize himself with the process of DNA
         testing sufficiently to move the [c]ourt for the need of an
         expert, and to require the prosecution to produce the
         “Relative Fluorescence Unit” values report to better and
         effectively cross-examine Dr. Hai Sheng Li as his cross-
         examination of her was minimal an[d] inadequate[?]

         6. Did the [t]rial [c]ourt err in its denial of Appellant’s
         [M]otion for Judgment of Acquittal having failed to prove
         all the elements of “Forcible Compulsion” as required by
         [l]aw pursuant to Commonwealth v. Berkowitz, 537 Pa.
         143[,] 641 A.2d 1161 [(Pa. 1994)?]

         7. Did    [the]   Assistant   District   Attorney     commit
         [p]rosecutorial [m]isconduct by failing to disclose complete
         discovery concerning the “Relative Fluorescence Unit”
         values of both DNA samples obtained and tested along
         with the report of Jennifer Wright of CYS, who interviewed
         Ms. Valentine being as Ms. Wright is a state actor pursuant
         to Pa.R.Crim.P. 573[?]

Appellant’s Brief at vi (reordered for ease of disposition).

      We review the denial of a PCRA petition to determine whether the

record supports the PCRA court’s findings and whether its order is otherwise

free of legal error.   Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014). This Court grants great deference to the findings of the PCRA court if


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they are supported by the record. Commonwealth v. Boyd, 923 A.2d 513,

515 (Pa. Super. 2007). We give no such deference, however, to the court’s

legal conclusions.   Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.

Super. 2012).

      To be eligible for relief pursuant to the PCRA, Appellant must establish,

inter alia, that his conviction or sentence resulted from one or more of the

enumerated errors or defects found in 42 Pa.C.S. § 9543(a)(2). Appellant

must also establish that the issues raised in the PCRA petition have not been

previously litigated or waived.   42 Pa.C.S. § 9543(a)(3).     An allegation of

error “is waived if the petitioner could have raised it but failed to do so

before trial, at trial, during unitary review, on appeal or in a prior state

postconviction proceeding.” 42 Pa.C.S. § 9544(b).

      Appellant’s first five issues challenge the PCRA court’s conclusion that

his trial counsel was not ineffective. Appellant’s Brief at 5-16, 23-28. The

law presumes counsel has rendered effective assistance. Commonwealth

v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010).               The burden of

demonstrating ineffectiveness rests on Appellant.        Id.    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



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would have been different. Commonwealth v. Fulton, 830 A.2d 567, 572

(Pa. 2003).

      The Honorable Kim Tesla, sitting as the PCRA court, has authored a

comprehensive, thorough, and well-reasoned opinion, citing to the record

and relevant case law in addressing Appellant’s claims on appeal.         After a

careful review of the parties’ arguments and the record, we affirm on the

basis of the PCRA court’s opinion. See PCRA Ct. Op., 8/22/16, at 7-15

(concluding that each of Appellant’s ineffectiveness claims failed).

      In Appellant’s sixth issue, he claims the trial court abused its discretion

in denying his Motion for Judgment of Acquittal. Appellant’s Brief at 17-19.

      The PCRA specifically permits challenges asserting (1) constitutional

violations; (2) ineffective assistance of counsel; (3) an unlawful inducement

of a guilty plea; (4) obstruction of a defendant's right to an appeal; (5)

newly discovered exculpatory evidence that was not available at the time of

the trial; (6) an imposition of a sentence greater than the lawful maximum;

and (7) a lack of jurisdiction.     See 42 Pa.C.S. § 9543(a)(2).       Notably, a

challenge to an order denying a Motion for Judgment of Acquittal is not

included in this exhaustive list.

      Because Appellant raises a claim that is not cognizable under the

PCRA, we cannot grant him relief on this issue.4


4
 Moreover, Appellant has previously litigated this issue. See 42 Pa.C.S. §
9543(a)(3) (to be eligible for PCRA relief, a petitioner must plead and prove



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      In his last issue, Appellant claims the District Attorney committed

prosecutorial    misconduct   by   failing   to   disclose   complete   discovery.

Appellant’s Brief at 20-22. This claim is likewise not cognizable by the PCRA.

      Moreover, our review of the certified record indicates that Appellant

had the opportunity to litigate this claim at trial and on direct appeal, but

failed to do so. See 42 Pa.C.S. § 9543(a)(3). Appellant is, therefore, not

entitled to relief.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/7/2017




“[t]hat the allegation of error has not been previously litigated[.]”). The trial
court denied his Motion for Judgment of Acquittal and Post-Sentence Motions
challenging the weight and sufficiency of the Commonwealth’s evidence, and
this Court affirmed Appellant’s Judgment of Sentence.



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