J-S68023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOSEPH CLAIR WHITAKER                      :
                                               :
                       Appellant               :   No. 313 WDA 2018

                  Appeal from the PCRA Order August 18, 2017
     In the Court of Common Pleas of Clearfield County Criminal Division at
                       No(s): CP-17-CR-0000651-1999


BEFORE:      SHOGAN, J., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY DUBOW, J.:                                 FILED APRIL 26, 2019

       Appellant, Joseph Whitaker, appeals from the Order denying his Petition

filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-46

(“PCRA”). After careful review, we conclude that Appellant waived the specific

layered ineffectiveness claim he raises here. Accordingly, we affirm.

       On March 2, 2000, a jury convicted Appellant of three counts of Rape,

and one count each of involuntary deviate sexual intercourse and aggravated

assault in connection with an attack on his then-girlfriend.1 The court imposed

an aggregate sentence of 21 to 60 years’ incarceration.        Appellant filed a

Notice of Appeal.




____________________________________________


1 At Appellant’s jury trial, the victim, two sexual assault experts, the doctor
and nurse on duty the night of the incident and two police officers testified for
the Commonwealth. Appellant’s foster mother testified on Appellant’s behalf.
____________________________________
* Former Justice specially assigned to the Superior Court.
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        Following the filing of the Notice of Appeal, and notwithstanding its lack

of jurisdiction, the trial court held a hearing on a defense Motion to establish

a record with regard to allegations of ineffective assistance of counsel. See

N.T. – Evidentiary hearing, 11/22/2000. Trial counsel testified at that hearing

regarding his trial strategy. See id. at 41-44. No one asked trial counsel

about his use of dismissive and disrespectful language during the trial.2

        Following a procedural odyssey, which is not relevant to the issue raised

in this appeal,3 the trial court reinstated Appellant’s appellate rights nunc pro

tunc and appointed counsel.          Appellant filed a timely appeal.4   This Court



____________________________________________


2   Trial counsel passed away January 11, 2008.

3 This Court originally affirmed Appellant’s Judgment of Sentence on May 22,
2002, after which Appellant filed a PCRA petition. The PCRA court dismissed
the Petition, but Appellant’s appointed counsel failed to inform Appellant
timely of the dismissal. Appellant pro se sought the reinstatement of his
appeal rights nunc pro tunc, which the PCRA court denied. This Court
affirmed. Appellant subsequently filed a writ of habeas corpus in the Federal
District Court, which that court granted. Based on the Order from the U.S.
District Court, the Clearfield County Court of Common Pleas reinstated
Appellant’s direct appeal rights nunc pro tunc and appointed Damion J.
Beaver, Esq. to represent Appellant. This Court again affirmed the Judgment
of Sentence.

4 On direct appeal, Appellant raised three issues, including allegations that
trial counsel provided ineffective assistance during the pretrial stage. See
Commonwealth v. Whitaker, 893 WDA 2009 (Pa. Super. filed Sept. 3,
2010). This Court addressed that claim on direct appeal, relying on
Commonwealth v. Montalvo, 986 A.2d 84, 91 n.5 (Pa. 2009), because the
record had been developed prior to the Pennsylvania Supreme Court’s ruling
in Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002). See Whitaker,
supra at 15 n.8.


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affirmed his Judgment of Sentence. Commonwealth v. Whitaker, 893 WDA

2009 (Pa. Super. filed Sept. 3, 2010).

       On September 1, 2011, Appellant filed a pro se PCRA Petition seeking

collateral relief.   The court sent a Notice of Intent to Dismiss pursuant to

Pa.R.Crim.P. 907.       On November 15, 2011, the PCRA court dismissed the

Petition as an untimely second PCRA Petition. Appellant timely appealed.

       This Court concluded that the PCRA court erred in failing to recognize

that Appellant’s PCRA Petition should have been considered a first-filed PCRA

Petition since Appellant’s appeal rights had been reinstated nunc pro tunc.

See Order, Commonwealth v. Whitaker, No. 1682 WDA 2011 at 2 n.1 (Pa.

Super. filed 8/23/12) (citing Commonwealth v. O’Bidos, 849 A.2d 243, 252

n.3 (Pa. Super. 2004)). We remanded to the PCRA court for the appointment

of counsel and consideration of the merits.

       On September 28, 2012, the PCRA court appointed J.D. Ryan, Esq., to

represent Appellant.5 On December 1, 2014, Appellant filed pro se a “Request

for Permission to File an Amendment to the PCRA Petition,” asserting that he

had “only received two letters from counsel since November of 2012.” See

Request, 12/1/14, at 4. On August 5, 2015, Attorney Ryan filed an

“Endorsement of Prior Pro Se Filing and Praecipe to Schedule Hearing”

indicating that “prior counsel informed undersigned counsel that prior counsel

____________________________________________


5 Unbeknownst to the court or counsel, Appellant’s brother simultaneously
hired private counsel, Damion J. Bevacqua, Esq., to represent Appellant.


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was privately retained and undersigned counsel’s services were not needed.”

See Endorsement, filed 8/5/15. Attorney Ryan also stated that prior counsel

failed to take any action.

       The court held a hearing on the Motion to Amend the PCRA Petition on

May 10, 2016, following which it entered an Order “reappoint[ing]” Attorney

Ryan as PCRA counsel and granting Appellant 120 days to file an Amended

PCRA Petition. Appellant filed an Amended PCRA Petition on September 7,

2016, raising eight claims asserting that both trial counsel and appellate

counsel provided ineffective assistance. See Amended PCRA Petition, filed

9/7/16, at ¶10.6
____________________________________________


6 In support of his ineffectiveness claims, Appellant asserted the following in
his Amended PCRA Petition:

       a. At Trial, counsel failed to object to victim’s testimony of prior
       bad acts, which were not related to criminal charges.
       b. At Trial, counsel failed to object to inflammatory comments
       made by the victim.
       c. At Trial, counsel acted in such a manner that the jurors could
       have held counsel’s conduct against the Defendant at the time a
       verdict was reached.
       d. At Trial, counsel failed to challenge the [C]ommonwealth’s
       Motion to Amend Information.
       e. Appellate Counsel failed to challenged[] the Amended
       Information.
       f. Appellate Counsel failed to challenge the weight and
       sufficiency of the evidence presented at Trial.
       g. Appellate counsel failed to challenge discretionary aspects of
       Defendant’s sentence on appeal.
       h. Appellate counsel failed to challenge the lower court’s
       decision in pretrial motions.

Amended Petition at ¶ 10.



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        On February 3, 2017, the Hon. David E. Grine, Esq., held a hearing on

the Amended Petition at which Appellant’s direct appeal counsel testified.      At

Appellant’s request, the court took judicial notice of the transcript of the

evidentiary hearing that occurred on November 22, 2000, regarding trial

counsel’s assistance. At the close of the PCRA hearing, the court directed the

parties to file suggested findings of fact and conclusions of law.

        On August 18, 2017, the court denied relief, finding that although there

was “ample evidence demonstrating that trial counsel may have been

ineffective in multiple ways,” “appellate counsel had a reasonable basis for

pursuing what he believed to be the stronger argument for an ineffective

counsel claim on appeal,” i.e., the lack of pretrial representation. See Opinion

and Order, filed 8/18/17, at 3.7

        Appellant timely appealed. He filed a Pa.R.A.P. 1925(b) Statement;8

the trial court relied on its Opinion filed August 18, 2017 in lieu of a Rule

1925(a) Opinion.
____________________________________________



7 The PCRA Court did not address the four issues in which Appellant challenged
trial counsel’s effective assistance. Appellant did not raise those claims in this
appeal.

8   In his Rule 1925(b) Statement, Appellant raised the following two issues:

        1. The lower court erred in denying the PCRA Petition where
        Defendant showed appellate counsel failed to raise substantial and
        meritorious issues on appeal, related to trial counsel’s failure to
        adequately represent Defendant at trial.




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       Appellant raises only one issue for our review:

       Whether the lower court erred in denying Appellant’s PCRA
       Petition where there was sufficient evidence introduced of
       ineffective assistance of counsel, whereby appellate counsel failed
       to pursue issues of trial counsel’s offensive presentation at trial[?]

Appellant’s Brief at 4.

       Appellant contends that trial counsel “sabotage[d]” his case because

counsel’s offensive “language and attitude” expressed in his opening

statement, throughout trial, and in closing statement was “reprehensible and

denied Appellant [ ] a fair trial.” Id. at 11. He avers that appellate counsel

was ineffective for failing to raise issues on appeal implicating this aspect of

trial counsel’s behavior. Id.

       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 the record

supports them. 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).



____________________________________________


       2. The lower court erred in denying the PCRA Petition where
       Defendant showed appellate counsel failed to raise substantial and
       meritorious issues on appeal, related to trial counsel’s
       reprehensible statements during trial and closing arguments.

Appellant’s Rule 1925(b) Statement, filed 3/29/18.

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      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

proceeding would have been different.” Commonwealth v. Fulton, 830 A.2d

567, 572 (Pa. 2003) (citations omitted). Failure to satisfy any prong of the

test will result in rejection of the appellant’s ineffective assistance of counsel

claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).

      With respect to layered ineffectiveness claims, the Pennsylvania

Supreme Court has provided the following guidance:

      [I]n order for a petitioner to properly raise and prevail on a layered
      ineffectiveness claim, sufficient to warrant relief if meritorious, he
      must plead, present, and prove the ineffectiveness of Counsel
      2 (appellate counsel), which as we have seen, necessarily reaches
      back to the actions of Counsel 1 (trial counsel). To preserve (plead
      and present) a claim that Counsel 2 was ineffective in our
      hypothetical situation, the petitioner must: (1) plead, in his PCRA
      petition, that Counsel 2 was ineffective for failing to allege that
      Counsel 1 was ineffective for not [taking the suggested actions],
      see Commonwealth v. Marrero, 748 A.2d 202, 203, n. 1
      (2000); and (2) present argument on, i.e., develop, each prong
      of the Pierce test as to Counsel 2's representation, in his briefs or
      other court memoranda. Then, and only then, has the petitioner
      preserved a layered claim of ineffectiveness for the court to
      review[.]



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Commonwealth v. McGill, 832 A.2d 1014, 1022 (Pa. 2003) (emphasis in

original).

       “Where, however, the petitioner fails to plead, present and prove all

three prongs of the [] test regarding the underlying issue of trial counsel's

ineffectiveness, … [a] petitioner is unable to establish the requisite arguable

merit prong of his layered claim of appellate counsel's ineffectiveness.”

Commonwealth v. Reyes, 870 A.2d 888, 897 (Pa. 2005) (citation omitted).

       Here, Appellant raised four claims against appellate counsel in his

Amended PCRA Petition challenging appellate counsel’s stewardship, i.e.,

counsel’s failure to challenge the Amended Information, failure to challenge

the weight and sufficiency of the evidence, failure to challenge the

discretionary aspects of defendant’s sentence, and failure to challenge the

lower court’s decision on Appellant’s pre-trial motions.       Appellant did not

present a claim that appellate counsel was ineffective for failing to raise an

issue that implicates trial counsel’s use of offensive language during trial.9

Rather, he now raises it for the first time before this Court as a layered

ineffectiveness claim.10

____________________________________________


9 Appellant challenged trial counsel’s use of offensive language in his Amended
PCRA Petition as a basis to find trial counsel ineffective, but Appellant did not
include that trial counsel ineffectiveness claim in his Rule 1925(b) Statement
as a basis for this appeal.

10We note that this case presents a unique situation in that Appellant did raise
a claim of ineffective assistance of trial counsel on direct appeal that this Court



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       Because Appellant did not raise this claim before the PCRA court, he

failed to preserve it for our review. See McGill, supra at 1022 (observing

that “[t]o preserve (plead and present) a claim that Counsel 2 was ineffective

in our hypothetical situation, the petitioner must: (1) plead, in his PCRA

petition, that Counsel 2 was ineffective for failing to allege that Counsel 1 was

ineffective for not [taking the suggested actions]”). Accordingly, this claim is

waived. See Pa.R.A.P. 302 (a) (providing issues not raised in the lower court

are waived and cannot be raised for the first time on appeal).11

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/26/2019




____________________________________________


addressed. See Whitaker, No. 893 WDA 2009, at 8, discussed supra at
footnote 4. Accordingly, Appellant should have challenged appellate counsel’s
failure to raise the specific claim he raises here in his Amended PCRA Petition.
This he did not do.

11 We are mindful that generally ineffective assistance of trial counsel claims
can only be raised on collateral review. See 42. Pa.C.S. § 9543(a)(2)(ii);
Grant, supra at 738. Thus, outside the unique situation presented in this
case, a claim that appellate counsel was ineffective for failing to challenge trial
counsel’s stewardship on direct appeal would have no merit because the time
for raising such a claim is in a PCRA Petition, not on direct appeal.

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