J-S39041-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                 Appellee                 :
                                          :
                    v.                    :
                                          :
GREGORY A. BARTO,                         :
                                          :
                 Appellant                :     No. 329 MDA 2015

              Appeal from the Order Entered February 2, 2015
             in the Court of Common Pleas of Lycoming County
            Criminal Division at No(s): CP-41-CR-0000110-2009,
            CP-41-CR-0000844-2009, CP-41-CR-0000896-2009,
            CP-41-CR-0001079-2008, CP-41-CR-0001606-2009,
                          CP-41-CR-0001632-2009

BEFORE:     STABILE, PLATT,* and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                       FILED JULY 26, 2016

      Gregory A. Barto (Appellant) appeals pro se from the order which

dismissed his petition filed pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S. §§ 9541-9546.1 Upon review, we affirm.

      The PCRA court summarized the background underlying this matter as

follows.

            Following a jury trial in May 2010, Appellant was convicted
      of numerous controlled substance offenses, and sex and
      corruption offenses related to separate female victims. The
      offenses included possession with intent to deliver (PWID)
      cocaine and marijuana, forcible rape, terroristic threats,
      corruption of minors, sexual exploitation of children and sexual
      abuse of children. These offenses were based on a pattern of


1
  We note with disapproval that the Commonwealth has failed to file a brief
in this matter, despite receiving three extensions of time to do so.

*Retired Senior Judge assigned to the Superior Court.
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      activity in which Appellant provided alcohol and/or controlled
      substances to minor females, and then he, and sometimes his
      wife, would have sexual contact with them. They videotaped
      their sexual activities with some of the females, and they
      showed pornographic videos to other females to encourage them
      to engage in sexual activities. Appellant was sentenced to
      undergo thirty-five to seventy years of incarceration in a state
      correctional institution.

            No post[-]sentence motions were filed, but Appellant filed
      a direct appeal. The Pennsylvania Superior Court affirmed
      Appellant’s judgment of sentence, and the Pennsylvania
      Supreme Court denied his petition for allowance of appeal.
      [Commonwealth v. Barto, 32 A.3d 837 (Pa. Super. 2011),
      appeal denied, 38 A.3d 822 (Pa. 2012).]

PCRA Court Opinion, 8/12/2015, at 1-2 (repetition of quantities in numerical

form omitted).

      Appellant timely filed pro se a PCRA petition on October 25, 2012.

Counsel was appointed, and an amended petition was filed. Eventually, a

“Second Amended PCRA Petition” was filed on July 1, 2014.               Therein,

Appellant raised claims of ineffective assistance of prior counsel for failing to

file a post-sentence motion or appeal challenging the sufficiency of the

evidence, the weight of the evidence, and the discretionary aspects of

Appellant’s sentence.      Second Amended PCRA Petition, 7/1/2014, at

unnumbered pages 5-7.

      On January 2, 2015, the PCRA court issued an opinion concluding that

Appellant’s three ineffective-assistance-of-counsel claims did not entitle him

to relief and an order providing notice of its intent to dismiss the petition

without a hearing pursuant to Pa.R.Crim.P. 907.            Opinion and Order,


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1/2/2015.           On February 2, 2015, the PCRA court dismissed the petition.

Appellant timely filed pro se a notice of appeal to this Court. On March 10,

2015, Appellant filed a petition requesting a Grazier2 hearing. On April 9,

2015, the PCRA court issued an order stating that, following a hearing, it

found Appellant had knowingly, intelligently, and voluntarily waived his right

to appellate counsel.            The PCRA court also issued an order directing

Appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b). Appellant filed a concise statement, and the

PCRA court issued its opinion pursuant to Pa.R.A.P. 1925(a).

            On     appeal,   Appellant   presents   the   following   issues   for   our

consideration:

       I.        Whether appellate counsel was ineffective for fail[ing] to
                 challenge the sufficiency of evidence in regards to N.B. and
                 A.W.?

      II.        Whether Appellant s[h]ould be entitled to an evidentiary
                 hearing based on after-discovered evidence which Appellant
                 learned that the investigating trooper was arrested for similar
                 offenses that occurred prior to Appellant’s trial and a hearing
                 is warranted to determine if the Commonwealth violated
                 [Brady v. Maryland, 373 U.S. 83 (1963),] because the
                 Pennsylvania State Police was part of the arrest and or
                 whether this new … evidence warrants a new trial regardless
                 of any Brady violation?

     III.        Wheth[er] trial counsel was ineffective for fail[ing] to inform
                 Appellant that he could have character witnesses to testify for
                 his reputation of non-violence denying Appellant his Sixth



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


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            Amendment right to effective        counsel   and   Fourteenth
            Amendment right to due process?

   IV.      Whether Appellant had adequate counsel during the PCRA
            proce[e]ding as appointed counsel did not communicate with
            Appellant and did not inform Appellant that he filed an
            amended petition on Appellant’s behalf pursuant to
            Pa.R.Crim.P. 902(a)(14)?

Appellant’s Brief at 5 (unnecessary capitalization and suggested answers

omitted; some formatting altered).

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

under the PCRA requires us to determine whether the decision of the PCRA

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

Commonwealth v. Perez, 103 A.3d 344, 347 (Pa. Super. 2014).

         In his first issue, Appellant argues that his counsel was ineffective for

failing to challenge the sufficiency of the evidence in regard to victims N.B.

and A.W. In the argument section of his brief, however, Appellant abandons

his claim as to A.W. See Appellant’s Brief at 12 (“In regards to A.W[.], after

reviewing the evidence in light [sic] most favorable to the Commonwealth

Appellant concedes that the fact finder may have had sufficient evidence to

determine guilt in regards to the offenses alleged against [A.W.]. Appellant

will not make any further argument in regards to this matter.”). Thus, we

need not address this claim further.

         With regard to Appellant’s claim as to N.B., we note that

         a PCRA petitioner will be granted relief only when he proves, by
         a preponderance of the evidence, that his conviction or sentence


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      resulted from the [i]neffective 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 have taken place. …

          It is well-established that counsel is presumed to have
          provided effective representation unless the PCRA
          petitioner pleads and proves all of the following: (1) the
          underlying legal claim is of arguable merit; (2) counsel’s
          action or inaction lacked any objectively reasonable basis
          designed to effectuate his client’s interest; and (3)
          prejudice, to the effect that there was a reasonable
          probability of a different outcome if not for counsel’s error.

      The PCRA court may deny an ineffectiveness claim if the
      petitioner’s evidence fails to meet a single one of these prongs.
      Moreover, a PCRA petitioner bears the burden of demonstrating
      counsel’s ineffectiveness.

Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010)

(internal quotation marks and citations omitted).

      Furthermore, “[c]laims of ineffective assistance of counsel are not self-

proving.” Commonwealth v. Wharton, 811 A.2d 978, 986 (Pa. 2002). In

order to be entitled to relief, “a petitioner must set forth and individually

discuss    substantively   each    prong    of   the   [ineffectiveness]    test.”

Commonwealth v. Steele, 961 A.2d 786, 797 (Pa. 2008).                      Herein,

Appellant has failed to do so.     With respect to the arguable merit prong,

Appellant does not set forth and meaningfully discuss the legal principles

pertaining to his underlying sufficiency claim or the elements of crimes he

seeks to challenge on that basis.        As to the latter two prongs of the

ineffectiveness test, Appellant baldly asserts that “[s]hould this [C]ourt find



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the evidence insufficient then [a]ppellate counsel would be ineffective

pursuant to United States v. Cronic and the Strickland standard would be

moot, that is determining if counsel had a reasonable basis.”3    Appellant’s

Brief at 11. Thus, Appellant’s first issue as it pertains to N.B. is waived.

Steele, 961 A.2d at 797 (finding ineffectiveness claims waived for lack of

development where the appellant “fail[s] to set forth all three prongs of the

ineffectiveness test and meaningfully discuss them”).

     Turning to Appellant’s remaining claims on appeal, we reject them for

the following reasons. With respect to Appellant’s second issue, wherein he

alleges that he is entitled to a hearing based on an alleged Brady violation

and a hearing or new trial based on after-discovered evidence, we observe

that the July 1, 2014 amended petition did not include a claim based on

Brady or after-discovered evidence.        Thus, no relief is due.      See

Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008) (“A

reviewing court must examine the issues raised in the PCRA petition in light

of the record in order to determine whether the PCRA court erred in

concluding that there were no genuine issues of material fact and in denying



3
  Presumably, Appellant is referring to United States v. Cronic, 466 U.S.
648 (1984), which “relieves an appellant from the burden of proving
prejudice where there has been an actual or constructive denial of counsel,
i.e., when counsel’s failure has been complete and it is as if the right to
counsel has been denied,” Steele, 961 A.2d at 811, and the three-pronged
ineffectiveness standard derived from Strickland v. Washington, 466 U.S.
668 (1984).


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relief without an evidentiary hearing.”); see also Commonwealth v.

Washington, 927 A.2d 586, 601 (Pa. 2007) (“Any claim not raised in the

PCRA petition is waived and not cognizable on appeal.”). Appellant’s third

issue, wherein he claims that trial counsel was ineffective for failing to

inform him that he could have character witnesses testify on his behalf, was

also not raised in his July 1, 2014 amended petition before the PCRA court.

Thus, it is waived. See Washington, 927 A.2d at 601. Finally, our review

of the record reveals that Appellant did not raise his fourth issue, wherein he

alleges PCRA counsel’s ineffectiveness,4 before the PCRA court or in his

1925(b) statement. Therefore, this claim is also waived. Commonwealth

v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) (en banc) (“[C]laims of PCRA

counsel’s ineffectiveness may not be raised for the first time on appeal.”);

Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement and/or not

raised in accordance with the provisions of this paragraph (b)(4) are

waived.”).

      Appellant has failed to establish that he is entitled to relief on his

claims herein. Accordingly, we affirm the order of the PCRA court.

      Order affirmed.




4
  Appellant also alludes to PCRA counsel’s ineffectiveness in the context of
his second and third issues on appeal.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/26/2016




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