J-S76016-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

DAVID STEPHEN SULLIVAN

                            Appellant                No. 687 WDA 2014


                  Appeal from the PCRA Order March 12, 2014
              In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0002944-2005


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

MEMORANDUM BY PANELLA, J.                         FILED FEBRUARY 5, 2015

        Appellant, David Stephen Sullivan, appeals from the order entered

March 12, 2014, in the Court of Common Pleas of Allegheny County, which

dismissed his PCRA1 petition without a hearing. After review, we affirm in

part, vacate in part, and remand for further proceedings.

        Following a jury trial, Sullivan was convicted of involuntary deviate

sexual intercourse with a child, two counts of indecent assault, endangering

the welfare of children, corruption of a minor and terroristic threats, arising

out the of repeated sexual abuse of his minor stepdaughter. Judgment of

sentence was imposed on January 18, 2007. On appeal, this Court affirmed

Sullivan’s judgment of sentence, and the Pennsylvania Supreme Court

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1
    42 Pa.C.S.A. §§ 9541-9546.
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denied allocatur.     See Commonwealth v. Sullivan, 853 WDA 2007 (Pa.

Super., filed Oct. 27, 2009) (mem. op.), appeal denied, 8 A.3d 345 (Pa.

2010).

       On December 21, 2011, Sullivan filed a timely PCRA petition. Counsel

later filed an amended petition.           On August 29, 2012, the PCRA court

entered notice of its intent to dismiss Sullivan’s petition.       In response

thereto, Sullivan filed a motion to file an amended petition, which the PCRA

court granted.     An amended petition was filed, and the PCRA court again

issued notice of intent to dismiss the petition on April 16, 2013. The PCRA

ultimately dismissed Sullivan’s petition and this timely appeal followed. 2

       On appeal, Sullivan raises the following issues for our review:

       I.     Did the lower court err and abuse its discretion when it
              denied Mr. Sullivan’s amended motion for post-conviction
              relief without a hearing, through a fill-in-the-blanks form
              order, where his petition included specific claims that he
              was denied effective assistance of counsel when trial
              counsel failed to present an exculpatory witness supported
              by certifications and appropriate legal authority, solely
              because trial counsel believed the lower court would be
              upset with him given the witness’[s] age.

       II.    Did the lower court err and abuse its discretion where it
              held Mr. Sullivan’s petition was defective because the
              attached certifications, filed pursuant to Commonwealth
              v. Brown, 767 A.2d 576 (Pa. Super. 2001), were not
              affidavits despite there being nothing in statute or rule
              requiring affidavits to support Mr. Sullivan’s petition.
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2
   On March 14, 2014, Sullivan’s current PCRA counsel entered his
appearance.    Sullivan’s prior PCRA counsel was permitted to withdraw
representation in this matter.



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       III.   Did the lower court err and abuse its discretion where it
              incorrectly concluded that the testimony from an
              exculpatory witness, who was never called by trial counsel
              out of fear that to do so would upset the court, was not
              more than cumulative when the record plainly
              demonstrates that the proffered testimony would directly
              say the victim lied about the allegations of abuse because
              she was mad at her father.

       IV.    Did the lower court err and abuse its discretion when it
              dismissed, without a hearing, Mr. Sullivan’s newly-
              discovered evidence claim as abandoned on appeal where
              its order dismissing the petition was silent as to its
              reasons, was nothing more than a fill-in the-blanks form
              order and as a result, Mr. Sullivan reserved the right to
              address further issues pursuant to Ryan v. Johnson, 564
              A.2d 1237 (Pa. 1989), and where Mr. Sullivan’s petition
              plainly argued newly-discovered evidence as an alternative
              theory of relief.

       V.     Did the lower court err and abuse its discretion in
              dismissing without a hearing, through a fill-in-the-blanks
              form order, Mr. Sullivan’s claim that his sentence was
              illegal as “patently frivolous and without support on the
              record.”

Appellant’s Brief at 9-10.3

       “Our standard of review of a trial court order granting or denying relief

under the PCRA calls upon us to determine whether the determination of the

PCRA court is supported by the evidence of record and is free of legal error.”

Commonwealth v. Barndt, 74 A.3d 185, 191-192 (Pa. Super. 2013)

(citation and internal quotation marks omitted). “The PCRA court’s findings

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3
 We find it wholly unnecessary to remind this Court three times of counsel’s
belief that the order denying PCRA relief was a “fill-in-the-blanks form
order.” Nothing in our Rules of Criminal or Appellate Procedure prohibits the
use of form orders.



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

certified record.”     Id. (citation omitted).      The PCRA court's credibility

determinations are binding on this Court, where there is record support for

those determinations. See Commonwealth v. Timchak, 69 A.3d 765, 769

(Pa. Super. 2013).

      Sullivan devotes much of his appeal to the argument that the PCRA

court erred when it dismissed his petition without a hearing, as trial counsel

was ineffective for failing to call an exculpatory witness. We note that the

right to an evidentiary hearing on a PCRA petition is not absolute:

      It is within the PCRA court’s discretion to decline to hold a
      hearing if the petitioner's claim is patently frivolous and has no
      support either in the record or other evidence.           It is the
      responsibility of the reviewing court on appeal to examine each
      issue raised in the PCRA petition in light of the record certified
      before it in order to determine if the PCRA court erred in its
      determination that there were no genuine issues of material fact
      in controversy and in denying relief without conducting an
      evidentiary hearing.

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (citations

omitted).

      To establish ineffectiveness of counsel, “a PCRA petitioner must show

the underlying claim has arguable merit, counsel's actions lacked any

reasonable    basis,   and   counsel's    actions   prejudiced   the   petitioner.”

Commonwealth v. Jones, 71 A.3d 1061, 1063 (Pa. Super. 2013) (citation

omitted), appeal denied, 84 A.3d 1062 (Pa. 2014). “Prejudice means that,

absent counsel's conduct, there is a reasonable probability the outcome of



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the proceedings would have been different.”          Id.   If a reasonable basis

exists for the particular course chosen by counsel, the inquiry ends and

counsel’s       performance         is     deemed   constitutionally    effective.

Commonwealth v. Lauro, 819 A.2d 100, 106 (Pa. Super. 2003) (citations

omitted).     Failure to satisfy any prong of the test requires that the claim be

dismissed.      See Commonwealth v. O’Bidos, 849 A.2d 243, 249 (Pa.

Super. 2004).

        Trial counsel will not be deemed ineffective for failing to call a witness

to testify unless it is demonstrated that:

        (1) the witness existed; (2) the witness was available; (3)
        counsel knew of, or should have known of the existence of the
        witness; (4) the witness was willing to testify for the defense;
        and (5) the absence of the testimony was so prejudicial to
        petitioner to have denied him or her a fair trial.

Commonwealth v. Brown, 18 A.3d 1147, 1160-1161 (Pa. Super. 2011)

(citation omitted).

        Sullivan argues that trial counsel was ineffective for failing to present

D.S., his biological son4 and the victim’s brother, as an exculpatory witness.

Sullivan averred in his petition that counsel knew of and spoke to D.S. and

that the witness was available and willing to testify that the victim told him

on two separate occasions that she deliberately and intentionally lied about




____________________________________________


4
    D.S. was ten years old at the time of trial.



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the abuse allegations.        See Amended PCRA Petition, 1/9/13 at 6-7 and

attached certifications.

       Preliminarily, we note that to the extent the PCRA court dismissed

Sullivan’s petition based upon his failure to file supporting affidavits in

support of his ineffective assistance of counsel claim, this decision was in

error. The PCRA court relied upon this Court’s decision in Commonwealth

v. Khalil, 806 A.2d 415, 422 (Pa. Super. 2002), for the proposition that

“ineffectiveness for failing to call a witness will not be found where a

defendant fails to provide affidavits from the alleged witness including

availability and willingness to cooperate with the defense.” Id. Noting that

Sullivan attached “certifications” rather than affidavits in support of his

claim, the PCRA court dismissed Sullivan’s ineffectiveness claim outright.

See PCRA Court Opinion, 7/23/14 at 3.

       Approximately two months after the PCRA court filed its Rule 1925(a)

opinion, this Court sitting en banc expressly held that certifications are

sufficient under the PCRA and the Rules of Criminal Procedure and that

affidavits   are     not   required   to   secure    an    evidentiary    hearing   on

ineffectiveness for failure to call a witness.             See Commonwealth v.

Pander, 100 A.3d 626, 640-642 (Pa. Super. 2014) (en banc). Based upon

this   Court’s     decision   in   Pander,   we     find   Sullivan’s   reliance   upon

certifications was not fatal to his ineffectiveness claim.

       Alternatively, the PCRA court determined that Sullivan could not

establish that he was prejudiced by trial counsel’s failure to call D.S. as a

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witness.   Specifically, the PCRA court determined that D.S.’s testimony

would essentially have been cumulative of several other witnesses “who all

testified at trial that they witnessed no inappropriate conduct between

[Sullivan and the victim], and also the testimony of [the victim’s]

grandmother, … who blatantly called [the victim] a liar[.]”      PCRA Court

Opinion, 7/23/14 at 4.     The court concluded that “[w]ith nothing new to

offer, there is no reasonable basis to conclude that [D.S.’s] testimony would

have resulted in a different verdict.” Id. at 5.

      We find the PCRA court’s determination that Sullivan did not suffer

prejudice as a result of counsel’s failure to call D.S. as a witness to have

been premature. Rather, we find it necessary to remand this matter for an

evidentiary hearing to first determine whether counsel had a reasonable

basis for not calling D.S. as a witness. See Commonwealth v. Williams,

899 A.2d 1060, 1065 (Pa. 2006) (where question of whether counsel had a

reasonable basis for chosen action is not readily apparent from the record,

remand for evidentiary hearing is appropriate). The PCRA court should then

make findings of fact with respect to the reasonable basis of counsel’s

decision not to call D.S. as a witness.        If counsel’s decision lacked a

reasonable basis, the PCRA court shall then determine whether counsel’s

omission prejudiced Sullivan.    See Commonwealth v. Green, 981 A.2d

1283 (Pa. 2009) (Superior Court inappropriately presumed counsel had no

reasonable basis for seeking reconsideration of petitioner’s sentence and in

assuming petitioner suffered prejudice therefrom).

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       Finally, we note that Sullivan’s remaining two claims are without merit.

Sullivan’s claim that D.S.’s exculpatory testimony somehow constitutes

after-discovered evidence is directly at odds with his claim that trial counsel

was aware of D.S.’s existence and that D.S. was ready and willing to testify

at trial. We need not address this claim further.

       We likewise find no merit to Sullivan’s argument that the sentence

imposed by the trial court on the charge of Involuntary Deviate Sexual

Intercourse with a Child (IDSI), 18 Pa.C.S. § 3123(a)(6),5 constitutes a

violation of the ex post facto prohibition in the United States and

Pennsylvania Constitutions.6 The ex post facto prohibition is violated when

it:

           (1) makes an action done before the passing of the law,
           and which was innocent when done, criminal, and
           punishes such action; (2) aggravates a crime, or makes it
           greater than it was when committed; (3) changes the
           punishment, and inflicts a greater punishment than the
           law annexed to the crime when committed; or (4) alters
           the legal rules of evidence, and receives less, or different,
           testimony than the law required at the time of the
           commission of the offense in order to convict the
           offender.


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5
 Section 3123(a)(6) has since been deleted, and the crime of Involuntary
Sexual Intercourse with a Child is now codified at section 3123(b).
6
  The ex post facto prohibition in the Pennsylvania Constitution is “virtually
identical” to that contained in the U.S. Constitution, and analysis under the
latter disposes of claims under the former.         See Commonwealth v.
Allshouse, 36 A.3d 163, 184 (Pa. 2012).



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Commonwealth v. Allshouse, 36 A.3d 163, 184 (Pa. 2012) (citations

omitted).

       The criminal information in this matter charged that the sexual

assaults occurred between January 1, 2002, and December, 2004. Effective

February 14, 2003, the legislature amended 18 Pa.C.S. § 3123(a)(6) to

increase the maximum penalty for this crime from not more than twenty

years of incarceration to not more than forty years of incarceration.   See

2002 Pa. Legis. Serv. Act 2002-162 (H.B. 976) (Purdon’s).           Sullivan

maintains that the trial court’s sentence of 18 to 36 years of incarceration

for IDSI was illegal because the information included allegations that the

sexual assaults occurred both before and after the effective date of the

amendment.7         Sullivan thus argues that the trial court should have

sentenced him to the lesser punishment for IDSI in place prior to the

February 14, 2003, amendment.

       The PCRA court rejected Sullivan’s argument on the basis that the

victim’s testimony at trial established that the sexual abuse did not occur

until after Sullivan divorced her mother in the fall of 2003 and when the

victim moved in with Sullivan and his mother.     See PCRA Court Opinion,

7/23/14 at 5-7 (citing N.T., Trial, Oct. 24-26, 2006, Vol. I at 134).   Our
____________________________________________


7
  Sullivan actually argues that the Commonwealth unlawfully applied ex post
facto a statute that did not exist until after February 14, 2003. Of course,
the statute in question existed prior to February 14, 2003 – the legislature
merely amended it effective on that date.



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review of the record confirms the PCRA court’s conclusion that the sexual

abuse did not occur until the fall of 2003—well after the effective date of the

legislature’s   amendment      to   the   penalty    under    section   3123(a)(6).

Therefore, the trial court’s sentence under the new sentencing guideline with

a maximum of 40 years of incarceration did not constitute an ex post facto

sentence.

      Order affirmed in part and vacated in part.            Case remanded for an

evidentiary     hearing   consistent   with   this   memorandum.        Jurisdiction

relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/5/2015




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