J-S34010-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                     v.

ISMAEL KH’BIN,

                          Appellant                No. 1801 MDA 2014


               Appeal from the PCRA Order October 3, 2014
             In the Court of Common Pleas of Lebanon County
            Criminal Division at No(s): CP-38-CR-0000884-2011
                          CP-38-CR-0000887-2011

BEFORE: BOWES, OTT and STABILE, JJ.

MEMORANDUM BY BOWES, J.:                             FILED JUNE 22, 2015

      Ismael Kh’bin appeals from the October 3, 2014 order denying PCRA

relief. We affirm.

      A jury convicted Appellant of rape, involuntary deviate sexual

intercourse (“IDSI”), and indecent assault on January 10, 2012.     The trial

court convicted Appellant of two counts of driving under the influence and

various summary offenses. The charges arose out of events that occurred

on March 11 and 12, 2011, and can be briefly summarized as follows.

      Pennsylvania State Police arrived at the scene of a one-car accident in

the early morning hours of March 12, 2011. There were two occupants of

the vehicle but Appellant admitted to police that he was the one who was

driving when the crash occurred.      When Appellant reluctantly exited the
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vehicle at the direction of police, he had difficulty standing.    The officer

testified that Appellant was swaying, his eyes were bloodshot and glassy,

and a strong odor of alcohol emanated from him. The officer conducted a

field sobriety test but the test was terminated prior to completion when

Appellant was too impaired to perform some of the tasks safely. Appellant

registered a .122 blood alcohol level on a breath test performed at 5:13 a.m.

      The passenger in the vehicle was Appellant’s grandson, who by all

indications had also been drinking.      Approximately five days after the

incident, the victim told his grandmother and his probation officer that

Appellant had sexually assaulted him in the car following the accident. He

stated that he would not have reported the incident except that Appellant

was living with the victim’s younger cousins, and he was concerned for their

well-being. The victim further testified that, after consuming alcohol, he fell

asleep in the back of the vehicle. He was awakened by Appellant performing

fellatio on him.

      On April 25, 2012, Appellant was sentenced to eight to twenty years

incarceration. He timely appealed and challenged the sufficiency and weight

of the evidence.   In addition, he alleged that the trial court erred in two

respects: by denying trial counsel’s request to cross-examine the victim

regarding his juvenile adjudication for indecent assault and by telling the

jury pool during voir dire that the charges were “unpleasant.”            See

Commonwealth v. Kh’bin, 82 A.3d 456 (Pa.Super. 2013) (unpublished

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memorandum at 10).            Finally, Appellant claimed that the Commonwealth

“prejudicially and maliciously used his sexual orientation to prejudice the

jury.” Id. This Court affirmed judgment of sentence.

      Appellant filed the present PCRA petition, his first, on May 14, 2014,

and counsel was appointed.            The Commonwealth filed a response to the

petition. At an evidentiary hearing on July 11, 2014, Appellant testified via

video teleconference from state prison.           In response to questioning from

PCRA counsel, Appellant claimed that the trial court erred in refusing to

permit      trial   counsel   to   introduce   evidence   of   the   victim’s    juvenile

adjudication for indecent assault.             N.T., 7/11/14, at 5.        He further

maintained that the victim’s allegations against him so closely mirrored the

accusations lodged against the victim in that juvenile proceeding as to

suggest that the allegations herein were fabricated.                 Id. at 6.      More

specifically, Appellant pointed out that the victim in this case stated that he

was asleep at the time of the assault; the female victim in the juvenile

adjudication also stated she was asleep and not conscious of what was

happening. The trial court declined to permit such testimony under the Rape

Shield statute.       Although Appellant appealed that ruling, he alleged herein

that he was not afforded relief because the discussion had not been placed

on the record.        Appellant testified that trial counsel waived the issue by

failing to preserve the record, and that the issue was important to his case.

Id. at 7.

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      Trial counsel, Public Defender Nicholas Sidelnick, confirmed that there

was a meeting in chambers to discuss the evidentiary issue involving the

victim’s juvenile indecent assault adjudication.   Counsel asked that he be

permitted to question the victim regarding his prior delinquency adjudication

on an indecent assault charge because in that case, as in Appellant’s case, a

sexual assault was alleged to have occurred when the victim was

unconscious.     Counsel argued in chambers that the instant victim was

drawing from his life experience to fabricate the allegations in this case. The

trial court denied the motion.    Counsel asserted this ruling as error in a

timely post-sentence motion; the trial court denied relief.     However, the

record does not contain the substance of the discussion.

      Appellant also alleged that trial counsel was ineffective because he

waived the recording of the voir dire process. He testified that he was not

consulted prior to counsel’s decision.     Furthermore, Appellant maintained

that he could not recall the process of striking various jurors and suggested

that he was not present in the room when trial counsel waived the recording.

Id. at 12.     Due to counsel’s waiver, Appellant maintained, there was no

record of the trial court’s comment regarding the “unsavoriness of the case”

or words to that effect, which Appellant deemed prejudicial due to its

foreclosure of appellate review. Id. at 8.

      Regarding the waiver of the recording of voir dire, trial counsel

testified that Appellant was present and did not object.     Id. at 16.    Had

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Appellant objected, counsel testified that he would not have waived the

recording. Id. Counsel testified further that he did not find objectionable

the trial court’s comment during voir dire about the unpleasantness of rape

allegations and that Appellant did not say anything to him when the

comment was made. Id. at 21.

       Finally, Appellant generally criticized counsel for waiving transcription

of the opening statements and closing arguments. Id. at 7. Trial counsel

denied that he waived the recording of opening or closing statements. He

confirmed that he had filed a written request for the transcripts of the trial

and the sentencing hearing, and that request was admitted into evidence.

Id. at 17; Exhibit 1.         Counsel testified that he did not hear anything

objectionable in the prosecutor’s arguments and that Appellant expressed

his concerns for the first time on April 25, 2012, the day prior to sentencing.

Id. at 22.1

       The PCRA court ordered the parties to brief the issues within thirty

days of receipt of the transcript of the hearing, and on October 3, 2014, the

court issued an order and opinion denying PCRA relief. Appellant filed the
____________________________________________


1
  The Commonwealth introduced the order and opinion of the trial court
dated September 10, 2012, which specifically addressed Appellant’s pretrial
motion regarding the victim’s and prior juvenile adjudication and finding that
indecent assault adjudication irrelevant to the proceeding and more
prejudicial to the victim than probative. Id. at 10; see Exhibit 2. The
Commonwealth also offered this Court’s memorandum opinion on direct
appeal denying relief as Exhibit 3.



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within appeal, complied with the court’s order to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal, and the PCRA court

issued its Rule 1925(a) opinion.

      Appellant raises three issues on appeal:

      1. Whether the trial court erred when it denied Defendant’s use
         of the alleged victim’s juvenile adjudication where there was
         similarity between the alleged victim’s adjudication and the
         allegations made against the Defendant?

      2. Whether trial counsel was ineffective for failing to have voir
         dire recorded and subsequently transcribed where the trial
         court made a prejudicial comment against the Defendant to
         the potential jurors?

      3. Whether trial counsel was ineffective for failing to have the
         opening and closing arguments of the trial recorded and
         subsequently transcribed where the prosecution made a
         prejudicial comment against Defendant to the jurors?

Appellant’s brief at 4.

      In reviewing PCRA appeals, we view the evidence "in the light most

favorable to the prevailing party at the PCRA level."      Commonwealth v.

Henkel, 90 A.3d 16, 20 (Pa.Super. 2014).         Our "review is limited to the

findings of the PCRA court and the evidence of record[.]" Id. Additionally,

"[w]e grant great deference to the factual findings of the PCRA court and will

not disturb those findings unless they have no support in the record." Id.

In this respect, we will not "disturb a PCRA court's ruling if it is supported by

evidence of record and is free of legal error." Id. However, we afford no

deference to its legal conclusions.      Id.   "[W]here the petitioner raises



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questions of law, our standard of review is de novo and our scope of review

is plenary." Id.

       First, Appellant assails the trial court’s pre-trial ruling on the

inadmissibility of the victim’s juvenile delinquency adjudication.           The

identical argument was advanced on direct appeal, see Commonwealth v.

Kh’bin, supra, but this Court was hampered in its ability to review the claim

since the in-chambers discussion of the issue had not been recorded.

Nonetheless, this Court also noted the claim was underdeveloped because

Appellant failed to cite to relevant authority or discuss the admissibility of

the adjudication in light of the Rape Shield Law. Id. at 11.

       At the PCRA hearing, Appellant maintained that he was unable to

effectively appeal the Rape Shield issue because “his attorney waived those

issues by not having a transcript.” Id. at 7. Although Appellant arguably

asserted ineffective assistance of counsel that would have permitted

collateral review of this issue, his appellate brief does not contain any

argument regarding counsel’s ineffectiveness in this regard or provide any

legal support for that allegation.2 Thus, this ineffectiveness claim is waived.

See Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (an

appellate brief that fails “to provide any discussion of a claim with citation to
____________________________________________


2
  We note that Appellant did not argue in his brief filed with the PCRA court
that counsel was ineffective in failing to ensure that the in-chambers
discussion was recorded and transcribed to enable appellate review.



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relevant authority or fails to develop the issue in any other meaningful

fashion capable of appellate review” results in waiver).

      Appellant’s two remaining issues involve ineffective assistance of

counsel claims. We discussed the law regarding an ineffectiveness claim in

Commonwealth v. Stewart, 84 A.3d 701 (Pa.Super. 2013) (en banc). In

order to plead and prove ineffective assistance of counsel, the petitioner

must establish that: (1) “the underlying issue has arguable merit; (2)

counsel’s actions lacked an objective reasonable basis; and (3) actual

prejudice resulted from counsel’s act or failure to act.” Id. at 706. “A claim

has arguable merit where the factual averments, if accurate, could establish

cause for relief.” Id. at 707.

      In deciding whether counsel had a reasonable strategy for his action or

inaction, the test is “whether no competent counsel would have chosen that

action or inaction,” or whether another alternative not chosen “offered a

significantly greater potential chance of success.” Id. Finally, “[p]rejudice

is established if there is a reasonable probability that, but for counsel’s

errors, the result of the proceeding would have been different.”       Id.   A

reasonable probability is one “sufficient to undermine confidence in the

outcome.” Id.

      Both issues involve allegations that trial counsel was ineffective for

failing to ensure that portions of the trial proceedings were recorded and

available later for transcription.   For purposes of our analysis, we will

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assume that counsel had no reasonable strategic basis for foregoing the

recording.

      Appellant contends first that trial counsel was ineffective for failing to

have the voir dire recorded and later transcribed.     According to Appellant,

the trial court made a prejudicial remark to potential jurors. The PCRA court

determined that the underlying claim lacked arguable merit and that

Appellant was not prejudiced by the remark. It relied upon its earlier finding

that, “It would be hard to find a person who would consider listening to facts

concerning sexual offenses to be pleasant[,]” and characterized its comment

as a “benign observation.”     Trial Court Opinion, 9/10/12, at 18-19.       On

direct appeal, this Court agreed with that reasoning. See Kh’bin, supra at

12.

      We note at the outset that Appellant wholly fails to demonstrate that

his underlying claim is of arguable merit. Appellant even neglects to apprise

this Court of the substance of the alleged objectionable remark. It is only

after a thorough review of the record and this Court’s memorandum opinion

on direct appeal that we were able to glean that Appellant is referring to a

comment allegedly made by the court to the jury pool that the charges in

this case were unpleasant. Moreover, we find nothing about the trial court’s

comment that rises to the level of prejudice required for PCRA relief, and

Appellant does not cite any authority to the contrary. This claim fails.




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      Finally, Appellant claims that trial counsel was ineffective in waiving

the recording of opening and closing arguments, thus precluding a

meaningful appeal of his claim that the prosecution made an unsavory

comment about him in front of the jury both during opening and closing

remarks. Counsel testified at the PCRA evidentiary hearing that he did not

waive the recording of the opening and closing statements, and that he

specifically requested the transcripts of the trial, representations that are

supported by the record. N.T., 7/11/14, at 16-17. Moreover, trial counsel

testified that he did not hear anything objectionable in the prosecutor’s

argument and there is no indication that any objections were placed on the

record during the opening and closing arguments. Id. at 22.

      Appellant’s argument in support of his claim is so thoroughly

undeveloped and devoid of legal authority as to result in waiver of the issue.

See Johnson, supra. Had Appellant objected or sought a mistrial on this

basis, he would have had the burden of demonstrating that the prosecutor’s

remarks constituted reversible error, i.e., the effect of forming in the minds

of the jury “a fixed bias and hostility toward the defendant such that they

could not weigh the evidence objectively and render a fair verdict.”

Commonwealth v. Tedford, 969 A.2d 1, 33 (Pa. 2008).            Appellant has

failed to make even a colorable showing of arguable merit or prejudice that

would entitle him to relief.

      Order affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/2015




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