J-S83033-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    CALVIN GADSON                              :
                                               :
                      Appellant                :       No. 1036 EDA 2017

                 Appeal from the PCRA Order February 21, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0001989-2010


BEFORE: GANTMAN, P.J., OLSON, J., and DUBOW, J.

MEMORANDUM BY GANTMAN, P.J.:                            FILED MARCH 06, 2018

        Appellant, Calvin Gadson, appeals pro se from the order entered in the

Philadelphia County Court of Common Pleas, which dismissed his first

petition filed under the Post Conviction Relief Act (“PCRA”).1 We affirm the

order denying PCRA relief on the grounds asserted but vacate and remand

regarding Appellant’s designation as a sexually violent predator (“SVP”).

        The PCRA court opinion accurately set forth the relevant facts and

procedural history of this case. Thus, we have no reason to restate them.2

        Appellant raises the following issues for our review:
____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.

2 We add that our Supreme Court denied Appellant’s petition for allowance of
appeal on July 7, 2016. See Commonwealth v. Gadson, 141 A.3d 588
(Pa.Super. 2016), appeal denied, 636 Pa. 646, 141 A.3d 478 (2016).
J-S83033-17


       WHETHER THE [PCRA] COURT ERRED AND ABUSED ITS
       DISCRETION   IN   DISMISSING   APPELLANT’S  PCRA
       PETITION WHERE APPELLATE COUNSEL PROVIDED
       INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO
       COMPEL THE COURT AND COURT REPORTER TO COMPLY
       WITH THE RULES OF APPELLATE PROCEDURE IN
       PROVIDING THE TRANSCRIPTS OF THE CASE, AND BY
       FAILING   TO  MOVE FOR     SUPPRESSION    OF ALL
       TRANSCRIPTS IN THIS CASE WHERE THESE TRANSCRIPTS
       WERE DEFECTIVELY PRODUCED AND FRAUDULENTLY
       CERTIFIED RESULTING IN TRANSCRIPTS TO WHICH NO
       VERITY CAN BE CLAIMED WHICH PRECLUDED ANY TYPE
       OF MEANINGFUL REVIEW OR BASIS FOR APPEAL
       VIOLATING APPELLANT’S RIGHTS TO EQUAL PROTECTION,
       AND DUE PROCESS [PURSUANT] TO THE FOURTEENTH
       AMENDMENT OF THE UNITED STATES CONSITUTION?

       WHETHER THE [PCRA] COURT ERRED AND ABUSED ITS
       DISCRETION   IN   DISMISSING  APPELLANT’S  PCRA
       PETITION WHERE [APPELLATE] COUNSEL RENDERED
       INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO
       CHALLENGE THE SUFFICIENCY OF THE EVIDENCE…TO
       SUSTAIN THE CONVICTIONS?

       WHETHER THE [PCRA] COURT ERRED AND ABUSED ITS
       DISCRETION    IN  DISMISSING   APPELLANT’S  PCRA
       PETITION,   WHERE     TRIAL  COUNSEL    RENDERED
       INEFFECTIVE ASSISTANCE OF COUNSEL BY STIPULATING
       TO FACTS PRIOR TO TRIAL WITHOUT APPELLANT’S
       CONSENT, AND IN DOING SO, DEPRIVED HIM OF HIS
       RIGHT TO CONFRONTATION PURSUANT TO THE SIXTH
       AMENDMENT AND ILLEGALLY AND UNCONSITUTIONALLY
       WAIVED    APPELLANT’S   GUARANTEED   FUNDAMENTAL
       RIGHT TO CONFRONTATION?

       WHETHER THE [PCRA] COURT ERRED AND ABUSED ITS
       DISCRETION    IN  DISMISSING   APPELLANT’S  PCRA
       PETITION WHERE COUNSEL [RENDERED] INEFFECTIVE
       ASSISTANCE OF COUNSEL FOR FAILING TO RAISE AND
       LITIGATE ANY ISSUE RELATED TO THE DENIAL OF
       APPELLANT’S RIGHT TO DUE PROCESS OF LAW PURSUANT
       TO THE FOURTEENTH AMENDMENT OF THE UNITED
       STATES CONSTITUTION BY THE POLICE AND/OR [THE]
       COMMONWEALTH’S FAILURE TO PRESERVE EXCULPATORY

                             -2-
J-S83033-17


          EVIDENCE FAVORABLE TO THE DEFENSE?

(Appellant’s Brief at 4-5).

      Our standard of review of the denial of a PCRA petition is limited to

examining whether the record evidence supports the court’s determination

and whether the court’s decision is free of legal error. Commonwealth v.

Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959

A.2d 319 (2008). This Court grants great deference to the findings of the

PCRA court if       the   record contains any support for             those   findings.

Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied,

593 Pa. 754, 932 A.2d 74 (2007).            A petitioner is not entitled to a PCRA

hearing as a matter of right; the PCRA court can decline to hold a hearing if

there is no genuine issue concerning any material fact, the petitioner is not

entitled to PCRA relief, and no purpose would be served by any further

proceedings. Commonwealth v. Hardcastle, 549 Pa. 450, 701 A.2d 541

(1997).

      The     law   presumes     counsel    has   rendered     effective   assistance.

Commonwealth v. Gonzalez, 858 A.2d 1219, 1222 (Pa.Super. 2004),

appeal denied, 582 Pa. 695, 871 A.2d 189 (2005). To prevail on a claim of

ineffective   assistance    of   counsel,    a    petitioner   must    show,    by   a

preponderance of the evidence, ineffective 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


                                       -3-
J-S83033-17


have taken place. Commonwealth v. Turetsky, 925 A.2d 876 (Pa.Super.

2007), appeal denied, 596 Pa. 707, 940 A.2d 365 (2007).          The petitioner

must demonstrate: (1) the underlying claim has arguable merit; (2) counsel

lacked a reasonable strategic basis for his action or inaction; and (3) but for

the errors and omissions of counsel, there is a reasonable probability that

the outcome of the proceedings would have been different.          Id. at 880.

“The petitioner bears the burden of proving all three prongs of the test.” Id.

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Giovanni O.

Campbell, we conclude Appellant’s issues merit no relief.      The PCRA court

opinion comprehensively discusses and properly disposes of the questions

presented. (See PCRA Court Opinion, filed May 9, 2017, at 4-10) (finding:

(1) appellate counsel ordered notes of testimony and each volume was

lodged with court electronically using court reporting system; court reporter

certified accuracy and completeness of each volume of testimony; Appellant

points to no inaccuracy in transcripts and fails to identify any prejudice he

suffered from alleged technical defects in filing of transcripts; counsel is not

ineffective for failing to raise meritless claim; (2) Appellant alleges that due

to defective transcripts, Superior Court erred by deciding on direct appeal

that Commonwealth presented sufficient evidence to sustain Appellant’s

convictions; because underlying premise regarding defect of transcripts lacks

merit, related sufficiency claim fails; (3) defense theory at trial was that


                                     -4-
J-S83033-17


Victim consented to sex acts;3 court charged jury on consent defense; at no

time during trial did Appellant ever contest fact that his DNA matched semen

sample recovered from Victim; under these circumstances, it was reasonable

and appropriate for defense counsel to stipulate to evidence regarding DNA

collection and sample;4 trial counsel did not need Appellant’s express

approval to enter stipulations; moreover, collective testimony from Victim,

various officers, and forensic scientist was duplicative of information

contained in stipulations; Appellant cannot demonstrate prejudice based on

counsel’s stipulations; (4) Appellant complains counsel was ineffective for

failing to challenge absence of Victim’s rape examination medical records;

incident occurred on January 31, 1998; DNA match to Appellant did not

occur until 2010; fact that medical records no longer existed was not

____________________________________________


3 Relevant to this issue, the parties entered into three stipulations of fact
regarding: (1) the rape kit procedure performed on Victim; (2) the analysis
of the swabs collected from Victim’s rape kit; and (3) DNA testing of the
swabs from Victim’s rape kit, the results of which were entered into a
national database and matched Appellant’s DNA.

4 We depart only from the PCRA court’s suggestion that Appellant waived
this issue for failing to object to the stipulations when they were entered on
the record at trial. Appellant could not have objected to trial counsel’s
performance during trial. See generally Commonwealth v. Mason, 634
Pa. 359, 473-74, 130 A.3d 601, 671 (2015) (stating: “What our
jurisprudence has consistently prohibited at both trial and appellate levels
when strategic disagreements arise between defendant and counsel is the
option of hybrid representation, where an otherwise represented defendant
acts as de facto co-counsel exercising control over parts of the defense”;
purpose behind rule prohibiting hybrid representation is to promote judicial
efficiency in representation and to avoid conflicting strategies in defense).



                                           -5-
J-S83033-17


discovered until May of 2012; there is no evidence Commonwealth ever

possessed Victim’s medical records or willfully caused records to be

unavailable; there is no evidence or allegation that Victim’s medical

evaluation contained materially exculpatory evidence; mere fact that those

records no longer exist does not warrant relief under these circumstances).

Thus, we affirm as to Appellant’s issues on the basis of the PCRA court’s

opinion.

      Nevertheless, we are mindful of recent case law calling into question

the validity of Appellant’s SVP status. Consequently, we elect to review the

legality of Appellant’s sentence sua sponte.      See Commonwealth v.

Randal, 837 A.2d 1211 (Pa.Super. 2003) (en banc) (explaining challenges

to illegal sentence cannot be waived and may be raised by this Court sua

sponte, assuming jurisdiction is proper; illegal sentence must be vacated);

Commonwealth v. Butler, 173 A.3d 1212 (Pa.Super. 2017) (addressing

legality of appellant’s SVP status sua sponte).

      Recently, the Pennsylvania Supreme Court held that the registration

requirements under the Sexual Offender Registration and Notification Act

(“SORNA”) constitute criminal punishment. Commonwealth v. Muniz, ___

Pa. ___, 164 A.3d 1189 (2017). In light of Muniz, this Court held: “[U]nder

Apprendi and Alleyne, a factual finding, such as whether a defendant has a

mental abnormality or personality disorder that makes him…likely to engage

in predatory sexually violent offenses, that increases the length of


                                     -6-
J-S83033-17


registration must be found beyond a reasonable doubt by the chosen fact-

finder.”5 Butler, supra at 1217 (internal quotations and citations omitted).

This Court further held: “Section 9799.24(e)(3) of SORNA[6] violates the

federal and state constitutions because it increases the criminal penalty to

which a defendant is exposed without the chosen fact-finder making the

necessary factual findings beyond a reasonable doubt.” Id. at 1218. The

Butler Court concluded that trial courts can no longer designate convicted

defendants as SVPs or hold SVP hearings, “until [the] General Assembly

enacts a constitutional designation mechanism.”        Id. (vacating appellant’s

SVP status and remanding to trial court for sole purpose of issuing

appropriate notice under 42 Pa.C.S.A. § 9799.23, governing reporting

requirements for sex offenders, as to appellant’s registration obligation).

       Here, following an assessment by the Sexual Offender Assessment

Board, the court imposed SVP status on Appellant on August 15, 2014.

Appellant’s SVP status carried a lifetime registration requirement.     See 42

Pa.C.S.A. § 9799.15(a)(6).          This Court affirmed Appellant’s judgment of

sentence on February 8, 2016, and our Supreme Court denied allowance of
____________________________________________


5 Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
(2000) and Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186
L.Ed.2d 314 (2013).

6 See 42 Pa.C.S.A. § 9799.24(e)(3) (stating: “At the hearing prior to
sentencing, the court shall determine whether the Commonwealth has
proved by clear and convincing evidence that the individual is a sexually
violent predator”).



                                           -7-
J-S83033-17


appeal on July 7, 2016.     Before Appellant’s judgment of sentence became

final, the United States Supreme Court had decided Alleyne on June 17,

2013. Relying on Alleyne, this Court decided Butler on October 31, 2017,

which deemed unconstitutional the current mechanism for imposition of SVP

status used in the present case and stated trial courts cannot impose SVP

status in that manner. See Butler, supra. In light of Muniz and Butler,

Appellant’s SVP status constitutes an illegal sentence. Because Appellant’s

judgment of sentence was still pending at the time of Alleyne, Appellant is

entitled to correction of his illegal sentence.    See Commonwealth v.

DiMatteo, 2018 WL 459340 (Pa. Jan. 18, 2018) (holding appellant was

entitled to sentencing relief under Alleyne on collateral review of his first

timely PCRA petition where appellant’s judgment of sentence was not yet

final when Supreme Court decided Alleyne).        Accordingly, we affirm the

order denying PCRA relief as to Appellant’s claims presented, based on the

PCRA court opinion; but we vacate Appellant’s SVP status and remand to the

trial court to issue a revised notice to Appellant pursuant to 42 Pa.C.S.A. §

9799.23. See Butler, supra.

      Order affirmed; SVP status vacated; case remanded with instructions.

Jurisdiction is relinquished.




                                    -8-
J-S83033-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/6/18




                          -9-
                                                                               Circulated 02/05/2018 10:45 AM

                                                                                                             FILED

                         IN THE COURT OF COMMON PLEAS                                                  MAY O 92017
                FOR THE FIRST ruDICIAL DISTRICT OF PENNSYLVANIA                                 Office oi Judicial Recor
                            TRIAL DIVISION - CRIMINAL                                            Appeals/Post Trla

COMMONWEALTII OF PA                                  CP-51-CR-0001989-2010

       v.                                                                   CP-51-CR-0001969-2010 comm. v. Gadson. Calvin
                                                                                              Opinion




                                                                                 H\Hlllllllrnl
CALVIN GADSON

                                 MEMORANDUM OPINION
                                                                                          7944176031
CAMPBELL, J.                                                                              May 9, 2017

Proceduralllistory
       Ap�ellant, Calvin Gadson, was arrested on January 4, 2010, and charged with Rape and
related offenses occurring on or about January 31, 1998.

       On February 5, 2014, the case proceeded to trial before this Court, sitting with a jury. On

February 11, 2014, the jury returned its verdicts. Appellant was convicted of Rape, Conspiracy

to commit Rape, Sexual Assault, Unlawful Restraint, and Robbery. He was acquitted of a

violation of the Uniform Firearms Act (18 Pa.C.S. § 6106).

       On August 15, 2014, following a hearing, Appellant was classified a Sexually Violent

Predator. He was then sentenced to 10-20 years' incarceration on the Rape, 10-20 years on the

Conspiracy to commit Rape, 2 Y2 - 5 years on the Sexual Assault, 1 Y2 - 3 years on the Unlawful
                                   .           .
Restraint and l 0-20 years on the Robbery. The sentences on the Rape, Conspiracy and Robbery

were each consecutive to one another. The sentences on the Sexual Assault and the unlawful

restraint were concurrent with each other, but consecutive to the other sentences, for an

aggregate sentence of 32 Y2 - 65 years' incarceration.

       Appellate counsel was appointed on August 26, 2014.

       A timely Notice of Appeal was filed on September 12, 2014.

       On February 8, 2016, the Superior Court affirmed the judgment of sentence.
        On November 7, 2016, Appellant filed a petitioner under the Post-Conviction Relief Act.

42 Pa.C.S. § 9541, et seq.

        Counsel was appointed for Appellant.

        On January 6, 2017, counsel filed a letter of no-merit, pursuant to Commonwealth v.

Finley. After conducting and independent review, the Court issued a· Notice of Intent to Dismiss

the Petition on January 23, 2017, a copy of which was served on Appellant.

        On February 21, 2017, the Court dismissed the Petition and granted counsel leave to_

withdraw. That same date the Order of dismissal and leave to withdraw was served on

Appellant, along with a Notice of Dismissal of PCRA and Petition and Right to Appeal, pursuant

to Pa.R.Crim.P. 907(4).

       _ Appellant filed a Notice of Appeal on March 13, 2017.

Factual History
                                     ..
        The· evidence adduced at trial, viewed in the light most favorable to the Commonwealth

as the verdict winner, established the following:

        On January 31, 1998, then 15 year old Complainant was walking home accompanied by

her then boyfriend, now husband. N.T. 2/5/14, pp. 47-48. As they passed a park near Dobbins

High School two men with guns ordered them into the park through bent bars in the fence. NT.

2/5/14, pp. 48, 60-61, 101-102, 104, I 06. One of the men had a .22 and the other had a shotgun

which they pointed at Complainant and her boyfriend. N.T. 2/6/14, pp. 136, 167-169, 171, 191-

192.

        One of the men hit the boyfriend in the back of the head with the 22. N.T. 2/6/14, p.

13 7. The men ordered Complainant and her boyfriend to empty their pockets of a beeper and


                                                    2
some change. N.T. 2/5/14, pp. 49, 62-63. The boyfriend protested, but was told to shut up or

they would kill Complainant. N.T. 2/5/14, p. 62; N.T. 2/6/14, p. 136.

       One of the men took Complainant over by a tree and ordered her to remove her clothes.

N.T. 2/5/14, pp. 50-51, 123. After she removed her clothes, the man ordered her to perform oral

sex on him. N.T. 2/5/14, pp. 51, 125. He then told her to tum around and he touched her vagina

before penetrating her vagina with his penis. N.T. 2/5/14, pp. 51-54, 124. During this time the

man told Complainant that she had better do what he said or he would kill her. N.T. 2/5/14, p.

53.

       After the first man finished having intercourse with her, the second man approached

Complainant and attempted to have sex with her. N.T. 2/5/14, p. 55. When he was unable to

penetrate her anally, he ordered her to perform oral sex on him, which she did. N.T. 2/5/14, p.

55-56. This second man then had vaginal intercourse with her. N.T. 2/5/14, p. 56. When he was

done, the second man told Complainant to lie down and not look at him, or he would kill her.

N.T. 2/5/14, p, 56. After a couple of minutes she heard her boyfriend's voice telling her to hurry

and get dressed, after which they left and went to her home. N.T. 2/5/14, p. 56.

       After reaching her home, Complainant sent her boyfriend home and then told her

grandmother what had happened. N.T. 2/5/14, p, 64-65; N.T. 2/6/14, p. 139, 151. Complainant

then called the police, who took her to the police station, and then to the hospital where she was

examined and a rape kit was prepared. N.T. 2/5/14, pp. 64-66, 133, 85-86. Although she was

shown photographs in 1998 and again in 2009, she could not identify the perpetrators. N. T.

2/5/14, pp. 69-70.

       The samples collected in the rape kit were preserved and ultimately examined for DNA.


                                                 3
A DNA profile was obtained and documented July 29, 2002. N.T. 2/6/14, pp. 87-89. Police

Detective Linda Pace obtained a "John Doe" arrest warrant for a person with the DNA profile in

the sample obtained from Complainant. N.T. 2/6/14, pp. 94-96, 111; Exhibits C-13, C-14.

On July 31, 2009, the DNA obtained from the cervix of Complainant was matched to Appellant

Calvin Gadson. N.T. 2/6/14, pp. 89, 98. A search warrant authorizing the taking of a DNA

sample from Calvin Gadson was obtained on October 6, 2009. N.T. 2/6/14, p.103-108; Exhibits

C-15, C� 16. The DNA from Complainant matched the DNA sample taken from Appellant

Calvin Gadson. N'I', 2/7/14, pp. 16-18, 34. Complainant never had consensual sex with

Appellant Calvin Gadson. N.T. 2/5/14, p. 70.

Discussiqn

         Appellant raises three issues in his petition: 1) Ineffectiveness of appellate counsel in

failing to seek to have the trial transcripts suppressed on appeal; 1 2) Ineffectiveness of trial

counsel in stipulating to the chain of custody of the DNA evidence retrieved from the

complainant's person and the results of the DNA tests; and 3) Ineffectiveness of trial counsel in

failing to litigate a denial of due process arising from the unavailability of the Complainant's

medical records from the examination after the incident. None of these claims have merit.

         As a threshold matter, we note that this matter was dismissed and counsel was relieved

following the filing of a "no-merit" or "Finley" letter. The requirements of the Finley letter, and

thereafter dismissal of the PCRA petition and permitting counsel to withdraw are:



 l.Appellant alleges a related error of sufficiency of the evidence, the gravamen of which is that since the transcripts
were defective, there was no evidence that the Superior Court could find sufficient to sustain the conviction.
Because we find the underlying premise - defect of transcripts - to be without merit, there is no basis for relief on
the subsumed claim of sufficiency. Moreover, the sufficiency of the evidence claim was previously litigated and
rejected by the Superior Court in the direct appeal. Such a previously litigated claim is not cognizable under the
PCRA. 42 Pa.C.S. § 9544(b).
                                                            4
               l) As part of an application to withdraw as counsel, PCRA counsel must attach to
       the application a "no-merit" letter,

              2) PCRA counsel must, in the "no-merit" letter, list each claim the petitioner
       wishes to have reviewed, and detail the nature and extent of counsel's review of the
       merits of each of those claims,

               3) PCRA counsel must set forth in the "no-merit" letter an explanation of why the
       petitioner's issues are meritless,

                4) PCRA counsel must contemporaneously forward to the petitioner a copy of the
       application to withdraw, which must include (i) a copy of both the "no-merit" letter, and
       (ii) a statement advising the PCRA petitioner that, in the event the trial court grants the
       application of counsel to withdraw, the petitioner has the right to proceed pro se, or with
       the assistance of privately retained counsel;    ·

               5) the court must conduct its own independent review of the record in the light of
       the PCRA petition and the issues set forth therein, as well as of the contents of the
       petition of PCRA counsel to withdraw; and

                6) the court must agree with counsel that the petition is meritless.

       Commonwealth v. Friend, 896 A.2d 607, 615 (Pa. Super. 2006).

       Each of the first four requirements was met. As to the remaining two requirements, the

Court conducted its own independent review and, as set forth below, agreed that the petition is

meritless.

       1. The trial transcripts were properly filed and Appellant is unable to aver any
          prejudice he suffered from alleged preeedural defects in the filing of the
             transcripts.
                                         .                         .
       The transcripts, also referred to as the notes of testimony, were ordered by appellate

counsel. Each volume was then lodged with the court electronically, using the Court Reporting

System. The accuracy and completeness of each volume is certified by the Court Reporter.

Defendant avers. no inaccuracy, significant or otherwise, in the transcripts and fails to identify

any prejudice he claims to have suffered from the claimed technical defects in the filing of the


                                                  5
transcripts.

        "It is well established that ... counsel cannot be deemed ineffective for failing to raise a

meritless claim." Commonwealth v, Lawrence, 960 A.2d 473, 478 (Pa. Super. 2008), citing

Commonwealth v. Daniels, 941 A.2d 795, 798 (Pa. Super. 2008). In the absence of any

prejudice, we cannot find either error or ineffectiveness of counsel,


         2. Counsel was not ineffective in stipulating to the chain of custody of DNA samples
            or the results of DNA testing.

         The theory of the defense was consent. At no time in the course of the trial did the

defense ever take issue with the fact that Appellant's DNA matched the semen sample recovered

from the complainant's person. Rather, the defense was that there was a consensual sexual

encounter between Appellant and the complainant, which the complainant then attempted to

conceal from her boyfriend at the time and from her grandmother by fabricating an allegation of

rape.2 Indeed, the jury was charged on the defense of consent. N.T. 2/7/14, pp. 95-97; N.T.

2/10/14, pp. 10-11. Under these circumstances it was reasonable and appropriate for defense

counsel to stipulate to evidence regarding the DNA collection and custody.

         Further, at no time did Appellant take issue with the stipulation. When the prosecutor

first rose to offer the stipulation before the jury heard the details of the stipulated testimony, the

Court explained the significance to the jury, with Appellant present. N.T. 2/6/14, pp. 83·84.

Appellant did not raise an objection at that point. The stipulations were then presented to the

jury. N.T. 2/6/14, pp. 85-90. Appellant did not interpose any objection at that point, nor did he

take issue when his counsel acknowledged the stipulation. N.T. 2/6/14, p. 91. He also did not



2·N.T. 2/S/14, p. 39; 79-84; 89-90; 121; 137
                                                   6
object when the stipulation was re-read to the jury in response to a question during deliberations.

N.T. 2/10/14, p. 24-28.

       In Commonwealth v. Brown, 18 A.3d 1147, 1161 (Pa. Super. 2011), the Superior Court

also faced the questions of whether trial counsel was ineffective because he did not adequately

explain to Appellant that the effect of proceeding by stipulation was to relinquish his

constitutional right to confront and cross-examine witnesses. Therein, the Superior Court

quoted the United States Supreme Court's observation that: "Although there are basic rights that

the attorney cannot waive without the fully informed and publicly acknowledged consent of the

client, the lawyer has-and must·have-fu.11 authority to manage the conduct of the trial. The

adversary process could not function effectively if every tactical decision required client

approval." 'Id. at 1162, quoting Taylor v. Illinois, 484 U.S. 400, 417-18 (1988). "Thus," the

Superior Court concluded, "the United. States Supreme Court has held that the decision as to

whether to cross-examine a witness and what agreements to enter about admission of evidence

are rights that a lawyer may relinquish on behalf of a defendant without the defendant's express

consent." Brown, supra., at 1163.

        Accordingly, even if the record did not demonstrate that the stipulation was consistent

with the defense and further that despite several opportunities, Appellant never took issue with

the stipulation at time of trial, the decision to enter into these stipulations was well within the

province of counsel and does not form the basis of an ineffectiveness claim.

       Finally, we note that the collective testimony of the complainant (N.T. 2/5/14, p. 133,

137), Officer Mychack (N.T. 2/6/14, p. 38), Officer Sanchez (N.T. 2/6/14, p. 46, 51-54),

Detective Pace (N.T. 2/6/14, pp. 94-118), and Forensic Scientist Knox (N.T. 2/7/14, pp 8-20),


                                                   7
                                                                               \
duplicated the information stated in the stipulations of which Appellant contains. Because the

other overwhehning evidence demonstrated Appellant's guilt, including the evidence and

testimony covering the stipulated matters, Appellant suffered no prejudice from the stipulations.

Commonwealth v. Birdsong, 24 A.3d 319, 335 (Pa. 2011).

        3. Counsel was not ineffective in regard to the complainant's medical records.

        Appellant complains that his counsel was ineffective for failing to challenge the absence

of the complainant's medical records, which absence he claims denied him due process.

        Here, as Appellant acknowledged in his Petition (p. 17), the Complainant's medical

records from her examination at Episcopal Hospital after the rape, no longer existed. The

incident occurred on January 31, 1998. Toe DNA match to Appellant did not occur until 2010

and the fact that the medical records no longer existed was not discovered until May of 2012.

PCRA Petition, Exhibit A, p. 14. That the medical records of a rape examination were no longer

available more than 14 years after the event is hardly surprising.

       Moreover, there is no evidence that the Commonwealth ever possessed the records or that

they willfully caused the records to be unavailable. "[T]o establish a Brady violation, a

defendant is required to demonstrate that exculpatory or impeaching evidence, favorable to the

defense, was suppressed by the prosecution, to the prejudice of the defendant." Commonwealth v.

Gibson, 951 A.2d 1110, 1126 (Pa. 2008). "[F]avorable evidence is material, and constitutional

error results from its suppression by the government, if there is a reasonable probability that, had

the evidence been disclosed to the defense, the result of the proceeding would have been

different." Kyles v. Whitley, 514 U.S. 419, 433-434, 115 S. Ct. 1555, 131 L. Ed. 2d 490

(1995)(intemal quotation marks omitted).


                                                 8
        "[S]upport for an allegation that destroyed evidence was exculpatory ... cannot be based

 on a 'mere assertion."' Commonwealth v. Snyder, 963 A.2d 396, 405 (Pa. 2009) (citations

 omitted); see also Commonwealth v. Free, 902 A.2d 565, 571 (Pa. Super. 2006) ("The allegation

 that the evidence at issue was exculpatory cannot be based on a mere assertion.") (citation

 omitted). The burden of proof is on the defendant to demonstrate that the Commonwealth

 withheld or suppressed evidence. See Commonwealth v. Porter, 728 A.2d 890, 898 (Pa. 1999).

 "[Tjhe United States Supreme Court has held that '[t]he mere possibility that an item of

 undisclosed information might have helped the defense, or might have affected the outcome of

the trial, does not establish 'materiality' in the constitutional sense."' Commonwealth v, Spotti,

94 A.3d 367, 383 (Pa. Super. 2014), citing Commonwealth v. Ly, 980 A.2d 61, 75-76 (Pa. 2009)

(internal citations omitted).

        As to Brady claims advanced under the PCRA, a defendant must demonstrate that the

alleged Brady violation "so undermined the truth-determining process that no reliable
                                 .....
adjadication of guilt or innocence could have taken place. 11 See Commonwealth v. Copenhefer,

719 A.2d 242, 259 (Pa. 1998).

       Here, there is no evidence or averment that the records of the rape medical examination

of complainant contained materially exculpatory evidence of any kind. The mere fact that they

no longer exist does not warrant relief where there is no basis for believing there was any
           .                                             .
exculpatory information in the records and where there is no basis to believe that either the

police or the prosecution played any role in the unavailability of the complainant's 14 year old

medical records.

       Accordingly, Appellant has raised no issues of merit and the PCRA petition was properly


                                                 9
dismissed.


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             .
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                 10
Commonwealth v. Calvin Gadson                   Case Number: CP-51-CR-1989-2010


                                   PROOF OF SERVICE

I hereby certify that I am this day serving the foregoing upon the person(s), and in the
manner indicated above, which service satisfies the requirements of Pa.R.Crim.P.114:



District Attorney:
                       Robin Godfrey, Esquire
                       Chief of PCRA Unit
                       Office of the District Attorney
                       Three South Penn Square
                       Philadelphia, PA 19107


Type of Service        ( ) Personal (X) First Class Mail

Defendant:
                       Calvin Gadson
                       LR-3104
                       SCI Rockview .
                       Box A
                       Bellefonte, PA 16823


Type of Service:       (X) Other, please specify: CertijiedMail (70132630000158979427)



Dated: May 9, 2017



��-
v anessa A. Montone
Judicial Secretary to
Honorable Giovanni 0. Campbell
