J-S19025-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                 v.                            :
                                               :
                                               :
    CHRISTOPHER JACKSON CARTER                 :
                                               :
                       Appellant               :   No. 1942 EDA 2017

                   Appeal from the PCRA Order May 17, 2017
      In the Court of Common Pleas of Monroe County Criminal Division at
                        No(s): CP-45-CR-0002272-2012


BEFORE: SHOGAN, J., NICHOLS, J., and PLATT, J.*

MEMORANDUM BY NICHOLS, J.:                                FILED JUNE 25, 2018

          Appellant Christopher Jackson Carter appeals from the order dismissing

his first Post Conviction Relief Act1 (PCRA) petition following a hearing.

Appellant contends that the PCRA court erred in suggesting that his petition

was untimely filed and denying relief on the merits of the petition. We agree

with Appellant that his petition was timely filed but affirm the order denying

relief.

          The PCRA court summarized the procedural history of this matter as

follows:

          On December 3, 2012, a Criminal Information was filed charging
          [Appellant] with 5 counts of Rape by Forcible Compulsion, 18
          Pa.C.S.A. § 3121(1), (F1); 5 counts of Rape of a Mentally Ill or
          Deficient Victim, 18 Pa.C.S.A. § 3121(4), (F1); 5 counts of
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S. §§ 9541-9546.
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       Involuntary Deviate Sexual Intercourse-Compulsion, 18 Pa.
       C.S.A. §3121(1), (F1); 5 counts of Involuntary Deviate Sexual
       Intercourse-Victim Less than 16, 18 Pa.C.S.A. § 3123(5), (F1); 5
       counts of Aggravated Indecent Assault-Without Consent, 18 Pa
       C.S.A. § 3125(1), (F2); 4 counts of Indecent Assault-Over
       18/Under 14, 18 Pa.C.S.A. § 3126(a)(6), (M1); 5 counts of
       Indecent Assault of Person less than 13 years of age, 18 Pa.C.S.A.
       § 3126 (a)(1), (M2); 5 counts of Endangering Welfare of Children,
       18 Pa.C.S.A. § 4304, (M1); and 5 counts of Corruption of Minors,
       18 Pa.C.S.A. § 6301 (a), (M1).

       These charges stem from ongoing sexual abuse suffered by K.M.B.
       [Victim] at the hands of [Appellant]. [Victim] testified that she
       was sexually abused by her mother’s paramour, [Appellant], since
       the age of 4, from 1991 to 1994. On October 21, 2013, a jury trial
       commenced and on October 22, 2013, the jury returned a verdict
       of guilty to the following:

          1. 1 count of Rape by Forcible Compulsion;

          2. 5 counts of Involuntary Deviate Sexual Intercourse
          Person Less than 16;

          3. 5 counts of Aggravated Indecent Assault;

          4. 4 counts of Indecent Assault;

          5. 5 counts of Endangering Welfare of Children; and

          6. 5 counts of Corruption of Minors.

       On February 18, 2014, the Honorable Jennifer Harlacher Sibum
       sentenced [Appellant] to a state correctional institution for an
       aggregate term of incarceration of no less than 240 months and
       not to exceed 480 months.[2] [Appellant] filed an appeal to the
____________________________________________


2  The trial court’s aggregate sentence was composed of the following
sentences of imprisonment: (1) seven to fourteen years on Count 1 – rape by
forcible compulsion; (2) a consecutive seven to fourteen years on Counts 16
– IDSI person less than 16 years old; (3) six to twelve years on Count 17 -
IDSI person less than 16 years old; (4) concurrent six to twelve years on
Counts 17-20 - IDSI person less than 16 years old, each; (5) concurrent one
to two years on Count 35-39 – endangering welfare of children, each.




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       Pennsylvania Superior Court and on March 19, 2015, [and this]
       Court     affirmed   [Appellant]’s    judgment     of   sentence.
       [Commonwealth v. Carter, 111 A.3d 1221 (Pa. Super. 2015)]
       A request for allowance of appeal was not filed by counsel and on
       or about September 10, 2015, Petitioner filed a Nunc Pro Tunc
       Petition for Allowance of Appeal with the Pennsylvania Supreme
       Court. On December 21, 2015, the Pennsylvania Supreme Court
       issued an Order granting [Appellant]’s Nunc Pro Tunc Petition for
       Allowance of Appeal. On June 1, 2016, the Pennsylvania Supreme
       Court denied [Appellant]’s Petition for Allowance of Appeal.

PCRA Ct. Op., 8/11/16, 1-3.

       Appellant filed a pro se PCRA petition, which the PCRA court received on

August 11, 2016. The court appointed counsel, who filed an amended PCRA

petition on September 26, 2016.3               The Commonwealth filed an answer,

asserting that Appellant’s petition was not timely filed.        According to the

Commonwealth, Appellant’s conviction became final on April 19, 2015, thirty

days after this Court affirmed the judgment of sentence and Appellant failed
____________________________________________


The trial court’s sentencing order referred to mandatory sentencing under 42
Pa.C.S. § 9718(a)(3) with respect to Counts 1 and 16-20, for rape and IDSI,
respectively. However, the applicable mandatory minimum provision was
former section 9718(a)(1) which, inter alia, required that a person convicted
of rape and IDSI when the victim is under sixteen years of age be sentenced
to not less than five years’ imprisonment. See 1982, Dec. 30, P.L. 1472 No.
334, § 1; see also Commonwealth v. Arnold, 514 A.2d 890, 891 n.1 (Pa.
Super. 1986) (quoting former section 9718).

This Court has held that a sentence greater than the prescribed mandatory
minimum provision is not subject to a challenge under United States v.
Alleyne, 570 U.S. 99 (2013). See Commonwealth v. Zeigler, 112 A.3d
656, 662 (Pa. Super. 2015). Therefore, because the sentences imposed for
rape and IDSI in this case exceeded the prescribed mandatory minimum
sentence, Alleyne is not at issue. See id.

3 In the meantime, the Commonwealth filed an answer asserting that
Appellant’s petition should be dismissed as untimely.

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to file a timely petition for allowance of appeal. Therefore, the Commonwealth

asserted that the one-year PCRA time bar expired on April 19, 2016.

      The PCRA court convened a hearing on December 2, 2016, at which both

Appellant and Appellant’s trial counsel (trial counsel) testified.   The court

thereafter entered an order dismissing Appellant’s petition on May 17, 2017.

In the opinion accompanying its order, the court             agreed with the

Commonwealth’s position that Appellant’s petition was not timely filed.

Nevertheless, the court addressed Appellant’s claims and found them to be

meritless.

      Appellant timely appealed and complied with the PCRA court’s order to

submit a Pa.R.A.P. 1925(b) statement. The court adopted its May 17, 2017

order as dispositive of the issues raised in Appellant’s Rule 1925(b) statement.

      Appellant presents the following questions on appeal:

      1. Did the trial court err and abuse its discretion by not finding
         that any failure by [Appellant] to file a timely PCRA [petition]
         was the result of the ineffectiveness of counsel and, as such,
         that his PCRA [petition] was timely filed for court review?

      2. Did the trial court err and abuse its discretion by not finding,
         following PCRA hearing, that trial counsel was ineffective and
         that such ineffec[tiveness] was constitutionally infirm such that
         [Appellant] is entitled to a new trial?

Appellant’s Brief at 5.

      Appellant first contends that the PCRA court erred in concluding that his

PCRA petition was not timely filed.    Specifically, Appellant argues that the

court erred in concluding that his conviction became final on April 19, 2015.



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Appellant emphasizes that the Pennsylvania Supreme Court granted him leave

to file a petition for allowance of appeal nunc pro tunc on December 28, 2015,

and denied allowance of appeal on June 1, 2016.          He concludes that the

Pennsylvania Supreme Court thus “extend[ed] the life of the case until the

conclusion of such review.” Appellant’s Brief at 12.

      Appellant’s contention raises a pure question of law. Our standard of

review is de novo, and our scope of review is plenary.

      The PCRA states, in relevant part:

      (b) Time for filing petition.—

         (1) Any petition under this subchapter, including a second
         or subsequent petition, shall be filed within one year of the
         date the judgment becomes final . . .

                                     ***

         (3) For purposes of this subchapter, a judgment becomes
         final at the conclusion of direct review, including
         discretionary review in the Supreme Court of the United
         States and the Supreme Court of Pennsylvania, or at the
         expiration of time for seeking the review.

42 Pa.C.S. § 9545(b)(1), (3).

      In Commonwealth v. Hutchins, 760 A.2d 50 (Pa. Super. 2000), the

petitioner was convicted, and this Court denied his direct appeal on September

25, 1996.   Id. at 51-52.   The petitioner did not petition the Pennsylvania

Supreme Court for allowance of appeal within thirty days of this Court’s

decision, but filed a petition for allowance of appeal nunc pro tunc on January

16, 1997. Id. at 52. The Pennsylvania Supreme Court denied the petition on

March 25, 1997. Id. The petitioner subsequently filed his first PCRA petition

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on March 20, 1998, within one year of the Supreme Court’s denial of his

petition for allowance of appeal nunc pro tunc. Id. The PCRA court denied

the petition as raising issues previously addressed during the petitioner’s

direct appeal. Id.

     This Court affirmed the PCRA court’s ruling on a different basis:

     [The petitioner]’s judgment of sentence was affirmed by our Court
     on September 25, 1996. [The petitioner] therefore had 30 days
     after our Court affirmed his judgment of sentence to seek further
     review by our Supreme Court. See Pa.R.A.P. 1113(a) (“. . . a
     petition for allowance of appeal shall be filed with the Prothonotary
     of the Supreme Court within 30 days of the entry of the order of
     the Superior Court sought to be reviewed . . . ”). [The petitioner]
     did not file his petition seeking allowance of appeal within this 30–
     day period. Thus, under the express terms of Section 9545(b)(3),
     [the petitioner]’s judgment of sentence became final after the
     expiration of the 30-day period in which Appellant was allowed to
     seek further review, which was on October 25, 1996.

     We recognize that [the petitioner] later filed an untimely petition
     for allowance of appeal with our Supreme Court, which was
     denied. This later filing and subsequent denial, however, does not
     operate to circumvent the clear and unambiguous language
     contained in Section 9545(b)(3) by altering the date on which [the
     petitioner]’s conviction became final. The fact remains that [the
     petitioner] did not timely seek review of our Court’s decision with
     our Supreme Court within the 30 day time period allowed for
     seeking such review, thus his conviction must be deemed final as
     of the expiration of that time period. Were we to hold otherwise,
     then we would be disregarding the plain meaning of Section
     9545(b)(3) and acting in contravention to the express intent of
     the legislature.

Hutchins, 760 A.2d at 54 (some citations omitted and emphasis added).

     Hutchins is distinguishable from the instant case.              Here, the

Pennsylvania Supreme Court granted Appellant leave to proceed nunc pro



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tunc and denied his petition for allowance of appeal on June 1, 2016. Once

the Pennsylvania Supreme Court granted nunc pro tunc relief, Appellant’s right

to direct review was revived. See Commonwealth v. Karanicolas, 836 A.2d

940, 944-45 (Pa. Super. 2003) (concluding that reinstatement of direct appeal

rights nunc pro tunc rendered judgment of sentence non-final for the purposes

of Section 9545); see also Black’s Law Dictionary at 1174 (9th ed. 2009)

(defining nunc pro tunc as “[Latin ‘now for then’] [h]aving retroactive legal

effect through a court’s inherent power”).

      Furthermore, when the Pennsylvania Supreme Court denied Appellant’s

petition for allowance of appeal on its merits on June 1, 2016, Appellant had

ninety days to seek further relief in the United States Supreme Court. See

S.Ct.R. 13. Because Appellant did not file a petition for a writ of certiorari, his

conviction became final for the purposes of the PCRA on August 30, 2016, and

the one-year time period to file a facially timely petition would have expired

after August 30, 2017. Therefore, Appellant’s pro se PCRA petition, which was

docketed on August 11, 2016, was timely filed.

      Appellant next contends that the PCRA court erred in denying relief on

the issues raised in his petition.     Because the PCRA court conducted an

evidentiary hearing and ruled that Appellant’s issues lacked merit, we proceed

to consider the merits of Appellant’s arguments.

      The standards governing our review are well settled:

      In addressing the grant or denial of post-conviction relief,
      [appellate courts] consider whether the PCRA court’s conclusions
      are supported by record evidence and are free of legal error. [T]o

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       prevail on . . . ineffectiveness allegations, [an a]ppellant must
       demonstrate that the underlying claim is of arguable merit; that
       no reasonable strategic basis existed for counsel’s act or omission;
       and that counsel’s error resulted in prejudice, or, in other words,
       that there is a reasonable probability that the outcome would have
       been different. In addition, [an a]ppellant is required to establish
       that his claims have not been previously litigated or waived.

Commonwealth v. Gibson, 951 A.2d 1110, 1120 (Pa. 2008) (citations

omitted).

       Appellant first argues that trial counsel was ineffective for failing to

consult and seeking his input before trial. Appellant’s Brief at 15. No relief is

due.

       Instantly, trial counsel testified that she consulted with Appellant.4 N.T.,

12/2/16, at 34-35, 37. As noted by the PCRA court, trial counsel also testified

that Appellant became uncooperative with her shortly before trial. See PCRA

Ct. Op., 5/17/17, at 8; N.T., 12/2/16, at 38-39. Thus, Appellant’s argument

that trial counsel failed to consult with him is belied by the record, and the

PCRA court properly denied this claim for lack of arguable merit.

       Appellant, in his second argument, asserts that trial counsel failed “to

seek the attendance at trial of the numerous witnesses, both character and

fact-based suggested” by Appellant. Appellant’s Brief at 15.

       It is well settled that

       Counsel has a general duty to undertake reasonable investigations
       or make reasonable decisions that render particular investigations
____________________________________________


4We note that trial counsel testified that Appellant conceded some improper
contact with Victim, but denied committing felony offenses. N.T., 12/2/16, at
34.

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      unnecessary. Counsel’s unreasonable failure to prepare for trial is
      “an abdication of the minimum performance required of defense
      counsel.” The duty to investigate, of course, may include a duty
      to interview certain potential witnesses; and a prejudicial failure
      to fulfill this duty, unless pursuant to a reasonable strategic
      decision, may lead to a finding of ineffective assistance.

Commonwealth v. Johnson, 966 A.2d 523, 535-36 (Pa. 2009) (citation

omitted).

      Additionally, when raising a claim of ineffectiveness for failure to call a

potential witness, a petitioner must establish that:

      (1) the witness existed; (2) the witness was available to testify
      for the defense; (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 of the
      witness was so prejudicial as to have denied the defendant a fair
      trial.

Commonwealth v. Matias, 63 A.3d 807, 810-11 (Pa. Super. 2013) (en

banc) (citation omitted).

      Here, trial counsel testified that she contacted Appellant’s intended

character witnesses.    N.T., 12/2/16, at 33.      According to trial counsel,

Appellant’s intended witnesses were “cousins who were children around the

same age as the alleged victim.” Id. The proposed witnesses were all out of

state and “indicated in letters that they did not wish to testify.” Id. At the

PCRA hearing, Appellant did not call or even identify any witnesses that were

available and willing to testify on his behalf.         Therefore, Appellant’s

generalized assertions based on trial counsel’s failure to investigate or call

witnesses merit no relief. See Johnson, 966 A.2d at 535-36; Matias, 63

A.3d 807, 810-11.

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      In his third argument, Appellant asserts that trial counsel was ineffective

for failing to cross-examine Victim based on her family history of abuse.

Appellant baldly asserts that there was an “allegation of molestation by a

family member.”    Appellant’s Brief at 16.    Appellant emphasizes that trial

counsel testified that she believed she cross-examined Victim regarding the

allegation of abuse by another party, but that the trial record did not support

counsel’s belief. Id. at 16-17. With respect to prejudice, Appellant states:

      Had counsel chosen to call the witnesses suggested by
      [Appellant], utilized the evidence of other sexual abuse within the
      alleged victim’s family, pursued the proper pretrial motions and
      their necessary appeals and caused appropriate and thorough
      pretrial planning to occur through investigation and planning, the
      result of the trial and subsequent appeal would very likely have
      been different. As a result, [Appellant] is entitled to a new trial.

Id. at 17.

      A review of the record reveals that Appellant provided no support for his

assertions that Victim was abused by others.         For example, Appellant’s

assertion that Victim was molested by her father appears to be based on his

claim that Victim saw Appellant in the shower and told him, “My daddy’s is

bigger than yours.” N.T., 12/2/16, at 11. Appellant also asserted at the PCRA

hearing that Victim’s uncle abused Victim’s mother. Id. at 10. Aside from

the speculative nature of Appellant’s assertions, Appellant has not shown how

these allegations, even if true, would have been admissible or would have

changed the outcome at trial. Therefore, we conclude that Appellant failed to




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carry his burden of establishing any right to relief. See Gibson, 951 A.2d at

1120.

        In his fourth argument, Appellant contends that trial counsel was

ineffective for failing to file pre-trial motions. Appellant’s Brief at 16. We

conclude that Appellant’s boilerplate assertions impede our review to the

extent that meaningful appellate review is not possible.

        The Pennsylvania Rules of Appellate Procedure require that an argument

include “discussion and citation of authority as are deemed pertinent.”

Pa.R.A.P. 2119(a). The Pennsylvania Supreme Court has stated:

        where an appellate brief fails to provide any discussion of a claim
        with citation to relevant authority or fails to develop the issue in
        any other meaningful fashion capable of review, that claim is
        waived. It is not the obligation of this Court, even in a capital
        case, to formulate Appellant's arguments for him.

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

        Instantly, Appellant suggests that trial counsel was ineffective for failing

to file a pre-trial motion challenging Victim’s allegations based on taint.

Appellant’s Brief at 15. However, aside from his general assertions that Victim

could have been molested by others, he advances no factual or legal argument

that Victim, who was in her twenties when she first reported the abuse and

then testified at trial, should have been deemed incompetent to testify. Cf.

Commonwealth v. Davis, 939 A.2d 905, 906-08 (Pa. Super. 2007)

(discussing pre-trial taint hearings to determine competence of minor victim).

Therefore, Appellant’s argument that trial counsel was ineffective for failing to



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file pre-trial motions is waived.5 See Pa.R.A.P. 2119(a); Johnson, 985 A.2d

at 924.

       Lastly, Appellant claims that trial counsel was ineffective for failing to

file a petition for allowance of appeal during his direct appeal. We agree with

the PCRA court that this claim is moot. As discussed above, the Pennsylvania

Supreme Court granted Appellant leave to file a petition for allowance of

appeal nunc pro tunc and subsequently denied allowance of appeal.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/25/18




____________________________________________


5 We note that Appellant suggested to the PCRA court that trial counsel was
also ineffective for failing to file a pre-trial motion to quash the charges based
on the statute of limitations. However, in his brief, Appellant does not refer
to the statute of limitations, discuss the pertinent changes in the law, or
respond to the Commonwealth’s assertions that the statute of limitations were
tolled while Appellant was living outside of the Commonwealth. Therefore,
this issue is also waived. See Pa.R.A.P. 2119(a); Johnson, 985 A.2d at 924.

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