J-S06011-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

RYAN MICHAEL CARTER

                            Appellant                  No. 499 MDA 2015


                Appeal from the PCRA Order February 23, 2015
               In the Court of Common Pleas of Bradford County
              Criminal Division at No(s): CP-08-CR-0000652-2009


COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

RYAN MICHAEL CARTER

                            Appellant                  No. 500 MDA 2015


                Appeal from the PCRA Order February 23, 2015
               In the Court of Common Pleas of Bradford County
              Criminal Division at No(s): CP-08-CR-0000653-2009


BEFORE: PANELLA, J., MUNDY, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, J.                             FILED MARCH 21, 2016

        Appellant, Ryan Michael Carter, appeals from the order denying him

relief on his petition pursuant to the Post Conviction Relief Act (“PCRA”).

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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Carter argues that the PCRA court erred in denying him relief without a

hearing. After careful review, we affirm.

      A panel of this Court summarized the factual and procedural history

behind Carter’s convictions as follows.

      In 2009, [Carter] was charged with over 80 counts stemming
      from accusations he molested his nieces. The charges accused
      21-year-old Appellant of molesting 11-year-old H.C.; eight-year-
      old D.C.; and three-year-old A.C. As way of background, S.M.
      and R.C. are the biological parents of H.C. C.C. and R.C. are the
      biological parents of D.C. and A.C. S.M. and R.C. divorced in
      1988, and C.C. and R.C. separated in 2008.

      At [Carter’s] trial, S.M. testified that on a Sunday in August
      2009, her 11-year-old daughter, H.C., approached her,
      complaining of a sore between her legs. S.M. took her daughter
      into the bathroom where she discovered an infected gash that
      looked “like somebody had gouged a chunk of flesh out[.]” H.C.
      eventually told to S.M. that when she was staying with her
      father, [Carter], her uncle, touched her while she was sleeping.
      S.M. took H.C. to the emergency room where H.C. was
      prescribed antibiotics and painkillers. H.C. immediately met with
      the state police.

      After learning from S.M. that [Carter] had molested H.C., C.C.
      confronted D.C. and A.C. Specifically, C.C. asked D.C. if she
      knew the difference between a good touch and a bad touch.
      D.C. said she did and eventually revealed that [Carter] had
      touched her as well. The following morning C.C. took D.C. to the
      emergency room, and then to the state police.

      [Carter] was subsequently charged, and a preliminary hearing
      was held on October 29, 2009. [The case proceeded to a single
      trial concerning the charges alleging the victimization of H.C. and
      D.C. The Commonwealth dropped all charges relating to A.C.
      prior to trial.]

      On May 25, 2010, a two-day trial commenced. On May 26,
      2010, the jury found Carter guilty of [two counts each of criminal
      attempt to commit involuntary sexual intercourse with a child,
      involuntary deviate sexual intercourse with a child, statutory

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       sexual assault, and indecent assault of a child less than thirteen
       years of age.] On September 13, 2010 [Carter] was sentenced
       to 21 to 44 years’ imprisonment.

Commonwealth v. Carter, Nos. 205 & 206 MDA 2011, at 2-4 (filed

2/23/12) (unpublished memo) (citations and footnotes omitted).

       This court affirmed, and on July 31, 2012, the Supreme Court of

Pennsylvania     denied     Carter’s    petition   for   allowance   of   appeal.   See

Commonwealth v. Carter, 49 A.3d 441 (Pa. 2012) (Table). Carter did not

appeal to the Supreme Court of the United States.

       Carter filed a timely pro se PCRA petition on October 30, 2013.1 The

PCRA court appointed counsel to represent Carter, and amended PCRA

petitions were filed on June 4, 2014 and September 22, 2014. The PCRA

court subsequently dismissed the petition without a hearing, and this timely

appeal followed.

       Carter raises two issues for our review on appeal. First, he asserts that

the PCRA Court erred in concluding that he had failed to establish that trial

counsel had been ineffective by failing to call certain witnesses in support of

____________________________________________


1
   Carter’s petition was timely as his judgment of sentence became final
when, after it was affirmed by this Court and our Supreme Court denied his
petition for allowance of appeal, the ninety-day time period within which
Carter could seek a direct appeal to the United States Supreme Court
expired. See Commonwealth v. Hutchins, 760 A.2d 50 (Pa. Super. 2000);
Commonwealth v. Alcorn, 703 A.2d 1054, 1056 (Pa. Super. 1997); see
also U.S.Sup.Ct.R. 13 (stating that a petition for writ of certiorari must be
filed within 90 days of final judgment). Thus, Carter had until October 31,
2013 to file his first PCRA petition.



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Carter’s alibi defense. Second, he contends that the PCRA court erred in

concluding that evidence of one of the victim’s recantation of her testimony

did not entitle him to relief. We address these claims in sequence.

      In his first argument, Carter asserts that trial counsel was ineffective

by failing to call certain disinterested witnesses in support of his alibi

defense. In reviewing an allegation of ineffective assistance of counsel, we

begin with the assumption that counsel was effective. See Commonwealth

v. Pierce, 527 A.2d 973, 975 (Pa. 1987). “To plead and prove ineffective

assistance of counsel a petitioner must establish: (1) that 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.” Commonwealth v. Stewart, 84 A.3d 701, 706 (Pa. Super.

2013) (en banc) (citation omitted). If the petitioner “fails to plead or meet

any elements of the above-cited test, his claim must fail.” Id. (citation

omitted).

      [I]n the particular context of the alleged failure to call witnesses,
      counsel will not be deemed ineffective unless the PCRA petitioner
      demonstrates: (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. Miner, 44 A.3d 684, 687 (Pa. Super. 2012) (citation

omitted).




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      The right to an evidentiary hearing on a post-conviction petition is not

absolute. See Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa.

Super. 2001). 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. Id. 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. Hardcastle, 701 A.2d 541, 542-

543 (Pa. 1997). In “ineffectiveness claims in particular, if the record reflects

that the underlying issue is of no arguable merit or no prejudice resulted, no

evidentiary hearing is required.”    Commonwealth v. Bauhammers, 92

A.3d 708, 726-727 (Pa. 2014) (citation omitted). “Prejudice is established if

there is a reasonable probability that, but for counsel’s errors, the result of

the proceeding would have been different. A reasonable probability is a

probability   sufficient   to   undermine   confidence    in   the   outcome.”

Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (citations

and internal quotation marks omitted).

      We conclude that the PCRA court did not abuse its discretion in

dismissing this claim without a hearing. We do not necessarily agree with

the trial court’s characterization of the proposed testimony as merely


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cumulative, as the allegedly disinterested alibi witnesses identified by Carter

may be qualitatively different from the alibi witnesses, namely his mother,

sister and brother, that he actually presented at trial. However, we cannot

otherwise find an abuse of discretion in the PCRA court’s determination that

this testimony did not undermine its confidence in the outcome. As is

common in cases involving children, the victims were unable to specify the

exact dates when the assaults occurred. The proposed alibi testimony, if

believed, would have covered a portion of the time period when the assaults

may have occurred. However, even if believed, this alibi would not

necessarily negate the timelines presented by the victims. We therefore

conclude that Carter’s first issue on appeal merits no relief.

      In his second issue, Carter argues that the PCRA court erred in

denying him relief on his claim of after-discovered evidence. In particular,

Carter claims that he can present a witness who will testify that D.C.

recanted her trial testimony while speaking to a friend.

      To obtain relief based upon newly-discovered evidence under the
      PCRA, a petitioner must establish that: (1) the evidence has
      been discovered after trial and it could not have been obtained
      at or prior to trial through reasonable diligence; (2) the evidence
      is not cumulative; (3) it is not being used solely to impeach
      credibility; and (4) it would likely compel a different verdict.

Commonwealth v. D’Amato, 856 A.2d 806, 823 (Pa. 2004) (citation

omitted). The PCRA court held that this evidence would solely be used to

impeach credibility, and therefore could not entitle Carter to relief.      We

agree.

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      Carter argues that this is “not merely an inconsistent statement, it

negates evidence of the defendant’s guilt[.]” Appellant’s Brief, at 12.

However, as the proposed testimony of someone other than D.C., this

testimony would not be independent evidence of Carter’s innocence, but

rather merely evidence that assailed the credibility of D.C.’s version of

events. Thus, it is merely evidence that would be used to impeach, and

cannot form the basis of the relief Carter seeks. We therefore conclude that

Carter is due no relief on this claim.

      Order affirmed. Jurisdiction relinquished.

      Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/21/2016




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