J-S30004-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ERNESTO ALMODOVAR

                            Appellant                  No. 1255 EDA 2011


                   Appeal from the PCRA Order April 14, 2011
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0700241-2003


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.:                            FILED JUNE 01, 2015

        Appellant, Ernesto Almodovar, appeals from the order entered in the

Philadelphia County Court of Common Pleas, which denied his first petition

brought pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        In its opinion, the PCRA court fully and correctly set forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them.2

____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.
2
  In addition to Appellant’s convictions set forth in the PCRA court’s opinion,
the court also convicted Appellant of unlawful restraint; the court sentenced
Appellant to 1-2 years’ imprisonment for that offense, concurrent to
Appellant’s sentence for rape. Further, the PCRA court opinion states it
denied PCRA relief on May 3, 2011. The court actually denied relief on April
14, 2011 (following issuance of appropriate notice of intent to dismiss the
(Footnote Continued Next Page)
J-S30004-15


      Appellant raises one issue for our review:

          WAS APPELLANT…DENIED EFFECTIVE ASSISTANCE [OF]
          COUNSEL IN THAT TRIAL COUNSEL FAILED TO PRESENT
          TESTIMONY THAT APPELLANT HAD NEVER BEEN INFECTED
          WITH THE HUMAN PAPILLOMAVIRUS (HPV) TO REBUT THE
          COMMONWEALTH’S THEORY THAT THE COMPLAINANT
          WAS INFECTED BY [APPELLANT] AS THE RESULT OF THE
          INCIDENT GIVING RISE TO THE CHARGES IN THIS CASE.

(Appellant’s Brief at 3).

      Our standard of review of the denial of a PCRA petition is limited to

examining whether the record evidence supports the court’s determination

and whether the court’s decision is free of legal error. Commonwealth v.

Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959

A.2d 319 (2008). This Court grants great deference to the findings of the

PCRA court if      the      record contains any support for        those   findings.

Commonwealth v. Carr, 768 A.2d 1164 (Pa.Super. 2001). A petitioner is

not entitled to a PCRA hearing as a matter of right; the PCRA court can

decline to hold a hearing if there is no genuine issue concerning any material

fact, the petitioner is not entitled to PCRA relief, and no purpose would be

served by any further proceedings.               Commonwealth v. Hardcastle, 549

Pa. 450, 701 A.2d 541 (1997).

                       _______________________
(Footnote Continued)

petition without a hearing per Pa.R.Crim.P. 907); Appellant timely filed a
notice of appeal on May 3, 2011. The PCRA court also states it ordered
Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). Nevertheless, the docket entries show
Appellant filed a voluntary concise statement on June 1, 2011.



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J-S30004-15


      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Willis W.

Berry, Jr., we conclude Appellant’s issue merits no relief.    The PCRA court

opinion comprehensively discusses and properly disposes of the question

presented. (See PCRA Court Opinion, filed April 20, 2012, at 4-6) (finding:

Victim positively identified Appellant as person who sodomized Victim and

threatened to kill him if Victim told anyone; Victim admitted he had also

been sexually assaulted in past by someone other than Appellant; Victim’s

testimony was credible and trustworthy; Appellant’s assertion that outcome

of trial would have been different had trial counsel presented evidence that

Appellant is not HPV carrier, and could not have infected Victim with HPV, is

irrelevant in light of Victim’s testimony; evidence of who infected Victim with

HPV is tangential to whether Appellant committed crimes charged; Victim did

not assert that Appellant infected Victim with HPV; it is wholly conceivable

that someone other than Appellant could have infected Victim with HPV;

Appellant’s proffered evidence would not have yielded different outcome of

trial; thus, Appellant’s ineffectiveness claim fails). Accordingly, we affirm on

the basis of the PCRA court’s opinion.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/1/2015




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                      IN THE COURT OF COMMON PLEAS
                 FIRST JUDICIAL DISTRICT OF PENNSYLVANIA                                         FILED
                          CRIMINAL TRIAL DIVISION
                                                                                              f?J 2 0 2012
COMM. OF PENNSYLVANIA                                 CPS l -CR-0700241-2003
                                                                                              PostTrialUnit
                      v.
ERNESTO ALMODOVAR,
          Appellant                                   No. 1255 EDA 2011

                                         OPINION



BERRY, J.                                             DATE: April 17, 2012

PROCEDURAL HISTORY

        Appellant was originally before this court, sitting without a jury, in a bifurcated

matter on May 27,2004, and August 5, 2004, and found guilty of Rape (Fl), Involuntary

Deviate Sexual Intercourse ("IDSI") (Fl); Sexual Assault, Statutory Sexual Assault,

Indecent Assault, Corrupting Morals of a Minor ("CMOM"), Indecent Exposure, False

Imprisonment, and Terroristic Threats. Appellant was determined to be a sexually

violent predator on November 22, 2004, after a Megan's Law hearing, and was sentenced

on January 25, 2005, to the following: seven to twenty years for Rape (Fl); seven to

twenty years for IDSI (Fl), concurrent to the Rape conviction; one to five years for

Indecent Assault, consecutive to the Rape and IDSI convictions; one to two years for

CMOM, concurrent to the Rape conviction; one to two years for Indecent Exposure,

concurrent to the Rape conviction; six to twelve months for False Imprisonment,

consecutive to the Indecent Assault conviction; and one to two years for Terroristic

Threats, concurrent, to the Rape conviction. Appellant's aggregate sentence was eight

and a half to twenty-six years incarceration. Appellant filed a timely notice of appeal, but

it was dismissed for counsel's failure to file a brief. Appellant's right to appeal was



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reinstated nunc pro tune on May 24, 2006 and Appellant's conviction was affirmed by
                                                    •
the Pennsylvania Superior Court on June 9, 2008. Appellant filed a timely prose petition

under the Post Conviction Relief Act (PCRA) and attorney Norman Scott was appointed

PCRA counsel on August 11, 2009. Appellant subsequently filed an amended petition

averring ineffective assistance of counsel which was denied for lack of merit on May 3,

2011.

        This timely appeal follows.

FACTS

        Appellant's convictions stem from his sexual assault on six year old complainant

     ':3"., 6.,   while he lived with complainant                           in Philadelphia.

Appellant was dating complainant's aunt, and was a good friend of complainant's uncle.

The assault took place in the kitchen late in the evening while complainant's mother was

at :work, and his grandmother and aunt were sleeping upstairs. Complainant entered the

kitchen to fix a bowl of cereal and found appellant sitting at the table, in the dark. While

complainant fixed his cereal, appellant grabbed him by his hands and pushed him up

against the refrigerator face first. Appellant then put complainant's hands on the

refrigerator above his head, pulled down complainant's pants and underwear, and stuck

his penis in complainant's   anus. When complainant screamed out in pain, appellant

threatened to kill him and burn down the house if he told anyone. Appellant then locked

complainant in the backyard for an unspecified amount of time when he tried to run

upstairs and tell his grandmother. Although complainant could not determine how long

before appellant let him back in the house, he testified that it "was a long time."

        Complainant does not remember exactly what month the incident took place, only




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that it was "cold outside", but it was not reported until May 22, 2003, when

complainant's mother,       G, ..   c.         took him to a doctor after finding warts on his

anus. Complainant had admitted to her that the night before, his 12 year old cousin had

put his penis in complainant's anus when he was five years old. Upon examination,

complainant was diagnosed with genital warts, a symptom of the sexually transmitted

disease caused by the Human Papilova Virus ("HPV"). When his mother asked him if

anyone else had touched him, complainant admitted that he had been touched by his six

year old cousin as well. ~     {I;. ,   _explained to him what a sexually transmitted disease was,

and how it was transmitted. She named all of the men who had lived in her house

recently, starting with her brother, brother-in-law, and the construction workers that

entered her home, and asked complainant if any of those men had touched him while they

were at the house, to which complainant said no. When             G.c.   asked complainant

whether appellant had ever touched him, he looked down at the floor and denied it.

G-:.·c. told him   she thought he was lying, and asked him again whether appellant touched

him, and complainant denied it a second time. When they returned home from the

doctor's office, ~, C.: asked her son a third time whether appellant had touched him, and

he admitted that appellant had touched him, and that he lied the previous times because

appellant had threatened to burn the house down.

          ~ ·C .. called her brother and told him what complainant said about appellant, and

her brother called appellant's brother to arrange a meeting at her house. When appellant

showed up, &~e.called the police, who arrived shortly after. Complainant told the

officers that appellant "put his pee-pee on my behind" and appellant was placed under

arrest.




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        As a result of the assault, complainant undergoes counseling at least once a week,

suffers from depression and increased anger, has attempted to commit suicide on two

separate occasions, (the first by jumping in front of a car, and the second by climbing into

a trash dumpster before getting placed into a garbage truck), and now attends

                         a special needs school in Philadelphia for children with behavioral

and other developmental needs.



ISSUE

        In response to this Court's Order for a Statement of Matters Complained of on

Appeal, Appellant raises the sole issue:

        1.   The defendant was denied effective assistance of counsel
                                                                   .~ .. in that trial counsel

             failed to present testimony that the defendant had never been infected with the

             Human Papillomavirus (HPV) to rebut the Commonwealth's theory that the

             complainant was infected by the defendant as the result of the incident giving

             rise to the charges in this case.

DISCUSSION

The Court properly dismissed Appellant's PCRA petition for lack of merit.

        In order to establish a successful claim of ineffective assistance of counsel,

Appellant must prove: 1) that the underlying claim has merit; 2) that there was no

reasonable basis for the course of conduct taken or not taken by counsel; and 3) that

Appellant was so prejudiced by the ineffective representation, that the outcome would

have been different, if not for the ineffective representation, Commonwealthv. Rollins,

558 Pa 532, 738 A.2d 435 (1999), 1999 Pa Lexis 2908, application for re-argument




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den'd; Commonwealth v. Douglas, 558 Pa. 412, 737 A.2d 1188 (1999). Counsel will not

be deemed ineffective for failing to assert a meritless claim, Commonwealth v. Durst,

522 Pa. 2, 559 A.2d 504, 505, (1989).

       Appellant avers that the outcome of his trial would have been different had trial

counsel presented medical evidence that he was not a carrier of HPV, could not have

infected complainant with HPV, and therefore could not have raped complainant. This

argument is wholly irrelevant in light of the fact that Complainant positively identified

Appellant, and testified that Appellant was the one who sodomized him in a darkened

kitchen while his grandmother slept upstairs, threatened to kill him if he told anyone, and

locked him out of the house when he tried to run upstairs and tell his grandmother.

Further, Complainant admitted that Appellant was not the only individual that had

sexually assaulted him.

       Complainant's testimony was deemed credible and trustworthy, and the Court

sitting as fact-finder believed his testimony; whether Appellant was the one who infected

Complainant with HPV is merely tangential to the issue of whether or not he committed

the crimes charged. Complainant never asserted that Appellant infected him. It is wholly

conceivable that Complainant could have received HPV from another individual, but it is

irrefutable that Appellant was the one who terrorized and assaulted him.

       The improper assertion that the Court relied on the presence of HPV to convict

Appellant is his own, and need not be ascribed to trial counsel. Therefore Counsel can

not be deemed ineffective for failing to employ a strategy that would not have yielded a

different result. Appellant's petition was therefore properly denied.




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CONCLUSION

For the above reasons, this Court's judgment should be affi




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