J-S60028-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

DARIN LEE HAUMAN

                        Appellant                   No. 439 MDA 2014


             Appeal from the PCRA Order of February 25, 2014
         In the Court of Common Pleas of Fulton/Franklin Counties
      Fulton County Criminal Division at No: CP-29-CR-0000115-2001


BEFORE: OTT, STABILE, and JENKINS, JJ.

MEMORANDUM BY STABILE, J.:                       FILED JANUARY 16, 2015

      Appellant, Darin Lee Hauman, appeals pro se from the February 25,

2014 order entered in the Court of Common Pleas of the 39 th Judicial

District, Fulton County Branch, reinstating that court’s March 2, 2012 denial

of collateral relief pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. §§ 9541-9546. Following review, we affirm.

      The PCRA court summarized the factual background of this case as

follows:

      [Appellant] was arrested in Allegheny County following his
      attempt to meet with an underage girl. [Appellant], calling
      himself Jake Thomas, had been exchanging e-mails concerning
      sexual topics with a girl named ShyLittleMissy who[m] he
      believed to be 12 or 13 years old. ShyLittleMissy was, in fact, an
      undercover Pennsylvania State Police (PSP) Trooper who was
      given this e-mail account by a private citizen named Ty
      Grabowski who had originally set up the account to help law
      enforcement find child pornographers.
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      Following his arrest, [Appellant] was interviewed by PSP and
      admitted that he had been in contact with a girl he believed was
      13 years old and that his intentions were sexual in nature. This
      information was relayed to PSP in Fulton County and a search
      warrant for [Appellant’s] residence was obtained to attempt to
      find evidence of child pornography. The warrant was executed
      and 27 photographs were found under the carpeting of his
      home. As a result [Appellant] was charged with 27 counts of
      Possession of Child Pornography.

PCRA Court Opinion, 3/2/12, at 1.

      In a subsequent opinion, the PCRA court provided the following

procedural history of this case:

      [Appellant] was arrested on August 27, 2001 and charged with
      27 counts of possession of child pornography. A bench trial was
      held on October 2, 2003 and the [c]ourt found Appellant guilty
      on 11 counts of possession of child pornography and not guilty
      on the remaining 16 counts.        Appellant was sentenced on
      March 15, 2004. Appellant filed a [PCRA petition] on July 14,
      2010. A hearing on the PCRA petition was held on March 22,
      2011. Trial counsel Clint Barkdoll testified. The record was left
      open for a second hearing so that additional witnesses could be
      located. The second hearing was held on July 5, 2011. Trooper
      Roche (formerly LaRoche) testified. On March 2, 2012 this
      [c]ourt issued an Order denying Appellant’s PCRA petition.
      Attached to the Order was a comprehensive Opinion delineating
      our reasons for denying the petition. Appellant appealed this
      decision to the Superior Court on March 30, 2012. Pursuant to
      Superior Court Order dated March 12, 2013 our March 2, 2012
      Order denying Appellant PCRA relief was vacated and we held a
      Grazier hearing on July 16, 2013.          On October 7, 2013
      Appellant filed a Motion for Leave to Amend his PCRA petition.
      On February 24, 2014 we issued an Order denying that motion.
      In that same Order we reinstated our denial of Appellant’s PCRA
      petition to provide Appellant with an appealable Order pursuant
      to the Superior Court’s February 7, 2014 Order. Appellant
      subsequently filed a Notice of Appeal on March 10, 2014,
      appealing our Order dated February 24, 2014 denying
      Appellant’s Motion for Leave to Amend his PCRA petition and
      denying Appellant’s PCRA petition by incorporation of our
      March 2, 2012 denial of Appellant’s PCRA petition. On April 2,

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       2014 Appellant filed with this [c]ourt a Concise Statement of
       Errors Complained of on Appeal.

PCRA Court Rule 1925(a) Opinion, 5/13/14, at 1-2 (citing Commonwealth

v. Grazier, 713 A.2d 81 (Pa. 1998)).1

       On appeal, Appellant sets forth nine issues in his Statement of

Questions Involved as follows:

       1. Whether the PCRA Court erred when it denied relief under
          PCRA Count 2, alleging trial counsel ineffectiveness for failing
          to reasonably challenge the arrest in Allegheny Co., Pa.

       2. Whether the PCRA Court erred when it denied relief under
          PCRA Count 3, alleging trial counsel ineffectiveness for failing
          to reasonably challenge the veracity of the affidavit of
          probable cause of the Fulton Co. search warrant.

       3. Whether the PCRA Court erred when it denied relief under
          PCRA Count 4, alleging trial counsel ineffectiveness for failing
          to reasonably challenge duplicity in the one paragraph
          Charging Information, which was used for 27 counts.

       4. Whether the PCRA Court erred when it denied relief under
          PCRA Count 5-A, alleging trial counsel ineffectiveness for
____________________________________________


1
 Although not readily apparent from the PCRA court’s procedural history, we
note that Appellant’s initial PCRA petition was timely filed.        Appellant
pursued a direct appeal to this court from his March 15, 2004 judgment of
sentence. On March 18, 2005, this Court vacated the judgment of sentence
and remanded for resentencing. Following resentencing, Appellant again
appealed to this Court, which affirmed the judgment of sentence on
September 1, 2006. Appellant then sought allowance of appeal to our
Supreme Court, which denied the petition on November 18, 2008. Appellant
petitioned the United States Supreme Court for a writ of certiorari. The
Supreme Court denied certiorari on October 5, 2009. Appellant’s PCRA
petition was filed on July 14, 2010, within one year of the date his judgment
became final. 42 Pa.C.S.A. § 9545(b)(1).




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          failing to object to Tpr. Roche’s testimony about events in
          Allegheny Co., Pa., based on Pa.R.E. 404(b).

       5. Whether the PCRA Court erred when it denied relief under
          PCRA Count 5-B, alleging trial counsel ineffectiveness for
          failing to object, during trial and/or in a post-sentence
          motion, to Tpr. Roche’s hearsay testimony as to an
          Informant’s testimonial statements [and] emails.

       6. Whether the PCRA Court erred when it denied relief under
          PCRA Count 5-D, alleging trial counsel ineffectiveness for
          failing to raise the defense of collateral estoppel.

       7. Whether the PCRA Court erred when it denied relief under
          PCRA Count 6, alleging trial counsel ineffectiveness for failing
          to present a rebuttal expert witness regarding the correct use
          of the Tanner Staging Methodology.

       8. Whether the PCRA Court erred when it denied relief under
          PCRA Count 7, alleging trial counsel ineffectiveness for failing
          to argue, on direct appeal, how the trial court erred (a) when
          it found Appellant guilty on 4 out of a group of 20 depictions
          (i.e., Cmwlth’s Ex. 2); and (b) when it ignored or failed to
          defer to the testimony of the Commonwealth’s expert who
          was unable to offer any opinion as to the necessary age
          element of those models depicted.

       9. Whether the PCRA Court erred when it denied [A]ppellant
          leave to amend his petition for post conviction relief to make
          claims of PCRA Counsel ineffectiveness prior to this appeal
          being taken.

Appellant’s Brief at 5-6.2
____________________________________________


2
  We note that Appellant’s brief fails to comply with the rules of appellate
procedure in at least two important respects. Most noticeably, the brief
violates Pa.R.A.P. 2135, which governs the length of briefs.              In
Commonwealth v. Spuck, 86 A.3d 870 (Pa. Super. 2014), this Court
discussed revisions to Rule 2135 that went into effect in May 2013. Rule
2135 previously used the number of pages as a measuring standard for
length of briefs. The revised rule uses number of words instead and limits a
principal brief to 14,000 words, requiring the filing of a certificate of
(Footnote Continued Next Page)


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      As our Supreme Court explained in Commonwealth v. Chmiel, 30

A.3d 1111 (Pa. 2011):

      Under our standard of review for an appeal from the denial of
      PCRA relief, we must determine whether the ruling of the PCRA
      court is supported by the record and is free of legal error.
      Commonwealth v. Washington, 592 Pa. 698, 927 A.2d 586,
      593 (2007). The PCRA court’s credibility determinations are
      binding on this Court when they are supported by the record.
      Commonwealth v. Johnson, 600 Pa. 329, 966 A.2d 523, 532,
      539 (2009). However, this Court applies a de novo standard of
      review to the PCRA court’s legal conclusions. Commonwealth
      v. Rios, 591 Pa. 583, 920 A.2d 790, 810 (2007).

Id. at 1127. Further:

      To prevail on a claim of ineffective assistance of counsel, a
      petitioner must overcome the presumption that counsel is
                       _______________________
(Footnote Continued)

compliance if a principal brief exceeds thirty pages. Id. at 873 (citing
Commonwealth v. Roney, 79 A.3d 595, 646 (Pa. 2013) (Castille, C.J.,
concurring). “The certification requirement is not limited to counsel: Pro se
litigants, too, are obliged to provide a certification for a primary brief that
exceeds thirty pages. See Pa.R.A.P. 2135(d) (‘[T]he attorney or the
unrepresented filing party shall include a certification that the brief
complies with the word count limits.’ (emphasis added).” Id. Appellant’s
brief spans 60 pages but does not include the required Rule 2135(d)
certification reflecting compliance with the word limitation.

Important also is Appellant’s failure to attach a copy of his statement of
errors complained of on appeal, as required by Pa.R.A.P. 2111(d). Although
Pa.R.A.P. 2101 authorizes us to dismiss an appeal for failure to comply with
briefing requirements, we decline to do so and elect to address the merits in
an effort to bring this matter to a conclusion, recognizing the case dates
back to Appellant’s arrest in 2001. Further, we acknowledge that the PCRA
court refers to the nine errors raised by Appellant, the first eight of which
were addressed in the PCRA court’s 2012 opinion, which is incorporated in
its 2014 opinion, and a ninth noted as raised in the instant appeal, which the
PCRA court addressed in its 2014 opinion. Because the issues addressed by
the PCRA court parallel the nine issues raised in Appellant’s brief, we shall
address them despite Appellant’s failure to comply with Rule 2111(d).



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     effective by establishing all of the following three elements, as
     set forth in Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d
     973, 975–76 (1987): (1) the underlying legal claim has arguable
     merit; (2) counsel had no reasonable basis for his or her action
     or inaction; and (3) the petitioner suffered prejudice because of
     counsel's ineffectiveness. Commonwealth v. Dennis, 597 Pa.
     159, 950 A.2d 945, 954 (2008). With regard to the second,
     reasonable basis prong, “we do not question whether there were
     other more logical courses of action which counsel could have
     pursued; rather, we must examine whether counsel’s decisions
     had any reasonable basis.” Washington, supra at 594. We
     will conclude that counsel’s chosen strategy lacked a reasonable
     basis only if Appellant proves that “an alternative not chosen
     offered a potential for success substantially greater than the
     course actually pursued.” Commonwealth v. Williams, 587
     Pa. 304, 899 A.2d 1060, 1064 (2006) (citation omitted). To
     establish the third, prejudice prong, the petitioner must show
     that there is a reasonable probability that the outcome of the
     proceedings would have been different but for counsel’s
     ineffectiveness.    Dennis, supra at 954.        “We stress that
     boilerplate allegations and bald assertions of no reasonable basis
     and/or ensuing prejudice cannot satisfy a petitioner’s burden to
     prove that counsel was ineffective.” Commonwealth v. Paddy,
     15 A.3d 431, 443 (Pa. 2011).

Id. at 1127-28.

     Turning to the issues in Appellant’s brief, Appellant challenges the

PCRA court’s denial of relief under Paragraphs 2, 3, 4, 5-A, 5-B, 5-D, 6, and

7 of his PCRA petition and alleges PCRA court error for the court’s denial of

his motion to amend the PCRA petition. We shall address the claims in the

order presented.    “To the extent that we do not discuss all applicable

requisites to relief in our treatment of any particular [PCRA] claim, it is

because the aspect in focus is dispositive of overarching and/or derivative

claims.” Commonwealth v. Rega, 70 A.3d 777, 780 n.2 (Pa. 2013).




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       In Paragraph 2 of his PCRA petition, Appellant alleges trial counsel

ineffectiveness for failing to challenge Appellant’s arrest in Allegheny County,

an arrest Appellant suggests was illegal. Appellant’s Brief at 23. Appellant

surmises that PCRA counsel could have proven the Allegheny County arrest

was illegal, resulting in “a strong probability that the search warrant for

appellant’s residence would have been found improperly issued, thus

eliminating the key evidence used against him at his Fulton Co. trial.” Id.

Appellant’s argument lacks arguable merit. As the PCRA court recognized:

       The Allegheny County Court of Common Pleas did not dismiss
       [Appellant’s] case because it determined that his arrest was
       illegal. The charges were dismissed following a habeas corpus
       proceeding. The court determined that there was not sufficient
       evidence. No such determination was ever made regarding the
       arrest. This is further evidenced by [Appellant’s] PCRA Exhibit
       9A which contains a copy of the Order dated May 27, 2004
       dismissing the Allegheny case.

PCRA Court Opinion, 3/2/12, at 4.              Further, as noted by the PCRA court,

Appellant’s “trial counsel had a reasonable basis for not challenging the

Fulton County warrant as fruit of the poisonous tree because [Appellant’s]

arrest was never deemed to be unlawful.” Id.3 Appellant is not entitled to

relief based Paragraph 2 of his PCRA petition.


____________________________________________


3
  We note Appellant was represented by separate counsel in Allegheny
County and that the Allegheny County case was dismissed on May 27, 2004.
Appellant’s Fulton County trial took place in October 2003 after numerous
continuances were granted. Appellant was sentenced in March 2004, more
than two months before the habeas hearing in Allegheny County.



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      Appellant next alleges error related to Paragraph 3 of his PCRA petition

in which he claims trial counsel was ineffective for failing to challenge the

affidavit of probable cause for the Fulton County search warrant. Appellant

argues the affidavit is replete with errors and misrepresentations that, if

eliminated, would render the warrant insufficient to pass a magistrate’s test

for probable cause.   Appellant’s Brief at 31.   He asserts trial counsel was

ineffective for refusing to request a hearing pursuant to Franks v.

Delaware, 438 U. S. 154 (1978).       In Franks, the United States Supreme

Court held that “where a defendant demonstrates that an affiant in a

warrant affidavit made a false statement knowingly and intentionally, or with

reckless disregard for the truth, the search warrant must be voided, unless

the affidavit’s remaining content is sufficient to establish probable cause.”

Rega, 70 A.3d at 783. With regard to truthful statements in an affidavit,

      [t]his does not mean “truthful” in the sense that every fact
      recited in the warrant affidavit is necessarily correct, for
      probable cause may be founded upon hearsay and upon
      information received from informants, as well as upon
      information within the affiant’s own knowledge that sometimes
      must be garnered hastily. But surely it is to be “truthful” in the
      sense that the information put forth is believed or appropriately
      accepted by the affiant as true.

Franks, 438 U.S. at 165.

      In his brief, Appellant sets forth the text of the six-paragraph warrant

affidavit and dissects each paragraph of the affidavit over the next six pages

of his brief. In the first paragraph, the affiant, Trooper Flaherty, represents

that Troopers Roche and Bard contacted him for assistance and related

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information concerning their investigation into a “traveler” case. Appellant

contends he could not find any legal reference to the term “traveler”—used

in the context of the affidavit as a person who contacts juveniles via email

and chat rooms—and suggests the use of the word was simply “wordy

jargon” to get the magistrate to “take that bait hook, line and sinker,” id.,

seemingly because Trooper Roche testified he never had chat room

exchanges with Appellant. Also, Appellant challenges statements made by

Trooper Roche, claiming Roche testified at the PCRA hearing that Trooper

Bard was privy to all the information, after having testified at Appellant’s

2003 trial that “[i]f it’s in [the affidavit], then I wrote it.” Appellant suggests

the statements are inconsistent because the 2003 statement means that

Trooper Bard had “nothing to do with the [the affidavit.]” Appellant’s Brief

at 28. In addition, he argues that there were no emails between Appellant

and “Missy Little” indicating “Missy Little” was twelve years of age, but does

not acknowledge that there were emails he omitted from Exhibit 4 to his

PCRA petition—which were read into the record at Appellant’s preliminary

hearing—indicating that “Missy Little” (as the affidavit refers to the person

with the email address “ShyLittleMissy”) was twelve years old. Appellant’s

Brief at 28; PCRA Court Opinion, 3/2/12, at 5 n.1.

      We acknowledge that the PCRA court’s focus on Paragraph 3 of

Appellant’s PCRA petition was on Appellant’s assertions about emails

indicating ShyLittleMissy was 12 rather than 13 years old. Even though the


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PCRA court did not address all of Appellant’s claims of error and

misstatement in the affidavit, we find nothing in the affidavit that falls short

of the Franks requirement that that statements be “‘truthful’ in the sense

that the information put forth is believed or appropriately accepted by the

affiant as true.” Franks, 438 U.S. at 165.4 Appellant is attempting to play

a game of semantics in his attack on the warrant.         However, he has not

demonstrated that the affiant, Trooper Flaherty, made any false statement

knowingly and intentionally, or with reckless disregard for the truth. We find

no arguable merit in Appellant’s contention that trial counsel was ineffective

for failing to challenge the affidavit. Appellant’s claims relating to Paragraph

3 of the PCRA petition fail.

       Appellant next asserts PCRA court error under Paragraph 4 of his PCRA

petition, which argues trial counsel ineffectiveness for refusing to challenge

“duplicity” in the one-paragraph charging information used for all 27 counts

alleged against him. As the PCRA court noted, duplicity is “[t]he charging of

the same offense in more than one count of an indictment.”          PCRA Court

Opinion, 3/2/12, (quoting Black’s Law Dictionary (9th ed. 2009)). Here,


____________________________________________


4
  We likewise decline to address all the claims of error and misstatement
Appellant suggests appear in the six-paragraph affidavit.              As noted,
Appellant devotes six pages of his brief to these supposed errors. We
instead limit our discussion to Appellant’s claims of error and misstatement
in the first paragraph of the affidavit as illustrative of the type of “error and
misstatement” Appellant alleges appears throughout the affidavit.



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Appellant was charged with 27 counts of possession of child pornography

under 18 Pa.C.S.A. § 6312(d). As our Supreme Court has recognized:

      Under Section 6312(d), it is a violation of the law for “[a]ny
      person who knowingly possesses or controls any book,
      magazine, pamphlet, slide, photograph, film, videotape,
      computer depiction or other material” which depicts a minor
      “engaging in a prohibited sexual act or in the simulation of such
      act.” 18 Pa.C.S. § 6312(d). The General Assembly’s use of the
      term “any,” which could mean one or more items, suggests a
      lack of restriction or limitation. Further, all of the objects listed
      in the statute are singular, e.g., a “photograph” or a “computer
      depiction,” meaning that each photograph or computer depiction
      constitutes a distinct occurrence of offensive conduct in violation
      of Section 6312(d).

Commonwealth v. Davidson, 938 A.2d 198, 218-19 (Pa. 2007). Each of

the 27 counts in the complaint corresponded with one of the 27 photographs

recovered from under the carpet in Appellant’s home.            The trial court

determined that eleven of those photographs constituted child pornography.

Clearly, Appellant was not charged with the same offense in more than one

count of the indictment.    Appellant’s claims relating to Paragraph 4 of his

PCRA petition lack arguable merit and provide no basis for relief.

      In issues 4 through 6, Appellant alleges trial counsel ineffectiveness

relating to three subparagraphs in Paragraph 5 of his PCRA petition. In the

first of these, Appellant claims trial counsel was ineffective for failing to

object to Trooper Roche’s testimony concerning events in Allegheny County.

      The PCRA court rejected Appellant’s claim for lack of arguable merit,

concluding the testimony relating to Appellant’s prior actions in soliciting a

minor in Allegheny County was relevant to show his motive and intent for

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possessing photographs depicting child pornography. PCRA Court Opinion,

3/2/12, at 7-8. Further, the PCRA court recognized a reasonable basis for

trial counsel not objecting to the testimony sooner than he did. As the PCRA

court explained, “[t]rial counsel believed that testimony regarding what

happened in the Allegheny case was merely the basis for later testimony

which would explain why the Fulton County warrant was issued, since the

Allegheny case provided the factual basis for that warrant.”           Id. at 8.

Finally, an earlier objection would not have put Appellant in a different

position, as evidenced by the fact the trial court overruled trial counsel’s

objection when it was made, permitting the testimony to establish intent and

motive.   Id.   Because Appellant’s assertions lack arguable merit, because

trial counsel had a reasonable basis for his actions, and because Appellant

was not prejudiced by trial counsel’s actions, Appellant’s claims of PCRA

court error with respect to Paragraph 5-A of his PCRA petition fail.

      Appellant next argues the PCRA court erred by denying relief based on

Appellant’s claims of ineffectiveness stemming from trial counsel’s failure to

object to hearsay testimony.     The testimony in question was offered by

Trooper Roche and addressed his conversations with Grabowski—the creator

of the ShyLittleMissy email account—as well as the emails exchanged

between Grabowski and Appellant.       Appellant asserts the testimony was

hearsay because Grabowski was not called to testify at either the Allegheny

or Fulton County proceedings, depriving Appellant of the opportunity to


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cross-examine him. Appellant contends the introduction of such testimonial

hearsay constituted a violation of the Sixth Amendment and trial counsel

was ineffective for failing to object to it.

      The PCRA court rejected Appellant’s argument, finding that the

testimony was not hearsay because it was not offered for the truth of the

matter asserted. PCRA Court Opinion, 3/2/12, at 8. Instead the testimony

was offered to establish motive and intent.         Id. at 8-9.     As the

Commonwealth suggests:

      The evidence showed the state of mind of the declarant, Ty
      Grabowski, was to “bait” a pedophile.        Evidence offered to
      establish the state of mind of the declarant is not hearsay. The
      evidence also showed and explained the state of mind and
      actions of the hearer, Trooper [Roche], which was to take over
      the role of “shylittlemissy” and catch the pedophile that
      Grabowski had lured in. Evidence offered to establish the state
      of mind of the hearer is not hearsay.

Commonwealth Brief, at 12-13 (citations omitted).

      Appellant’s argument is grounded on his contention that the trooper’s

testimony constituted testimonial hearsay while acknowledging the Sixth

Amendment would not be violated if Grabowski’s statements to the trooper

were non-testimonial. He recognizes that statements are non-testimonial if

made “in the course of police interrogation under circumstances objectively

indicating that the primary purpose of the interrogation is to enable police

assistance to meet an ongoing emergency.” Appellant’s Brief at 42 (quoting

Davis v. Washington, 547 U.S. 813, 822 (2006)). “They are testimonial

when the circumstances objectively indicate that there is no such ongoing

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emergency, and that the primary purpose of the interrogation is to establish

or prove past events potentially relevant to later criminal prosecution.” Id.

(quoting Davis, 547 U.S. at 822.)

     Appellant contends Grabowski did not ask police to meet with him

regarding an ongoing emergency.      Id.     The Commonwealth counters that

“implicit in Davis is the idea that because the prospect of fabrication in

statements given for the primary purpose of resolving [an] emergency is

presumably significantly diminished, the Confrontation Clause does not

require such statements to be subject to the crucible of cross-examination.”

Commonwealth’s Brief at 13-14 (quoting Michigan v. Bryant, 131 S.Ct.

1143, 1157 (2011)). Further, the Supreme Court in Bryant “cautioned that

the scope of an ‘ongoing emergency’ should not be narrowly drawn.” Id. at

14. The Commonwealth suggests that:

     Grabowski, a private citizen, took it upon himself to create a
     “chat room” persona (“shylittlemissy”) to troll the internet for
     pedophiles. In that capacity, “shylittlemissy” began a sexually
     charged e-mail correspondence with someone calling himself
     “jake thomas” on a Hotmail account—fatdiggity@hotmail.com.
     Grabowski did not know who or where “jake thomas” was. All he
     knew was that he thought he had an internet predator “nibbling
     on the bait” and needed to hand the whole thing over to the
     police. Viewed objectively, being in contact with an apparent
     internet predator seeking contact with an underage girl would
     feel like an ongoing emergency to a reasonable person, the kind
     of threat that endangered the public as a whole. Who else was
     “jake thomas” reaching out to, and how? Grabowski did not
     contact the police to provide testimony against [Appellant]—he
     did not even know who [Appellant] was. He contacted the police
     because he needed help to resolve an ongoing emergency. He
     was in contact with an internet predator and was in way over his
     head.

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Commonwealth’s Brief at 14-15.

      We agree with the PCRA court that the testimony did not constitute

hearsay.    Even if it did, it was non-testimonial in nature under the

circumstances of this case.       Further, even if it could be considered

testimonial hearsay, we cannot see how Appellant was prejudiced by the

testimony. As the Commonwealth contends, in the taped statement given to

Trooper Roche, Appellant admitted he believed he was communicating with

an underage female for purpose of eventually having sexual contact with

her. Commonwealth’s Brief at 15. Appellant’s claim under Paragraph 5-B of

his PCRA petition fails.

      Appellant also claims the PCRA court erred by denying relief under

Paragraph 5-D of his PCRA petition in which he alleged trial counsel

ineffectiveness for failing to raise the defense of collateral estoppel after the

Allegheny County case was dismissed.           Initially, we reject Appellant’s

contention that dismissal of the case constituted a “final judgment on the

merits.” As the PCRA court recognized, Appellant was charged in Allegheny

County with one count of Solicitation of Involuntary Deviate Sexual

Intercourse (“IDSI”) and four counts of Criminal Attempt (Unlawful Contact

with a Minor, Rape, IDSI, and Statutory Rape). PCRA Court Opinion, 3/2/12,




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at 9.5   Appellant filed a motion for writ of habeas corpus and the court

dismissed the charges without prejudice on May 27, 2004, more than two

months after Appellant was sentenced in Fulton County. As the PCRA court

recognized:

       “In Pennsylvania, double jeopardy does not attach and the
       constitutional prohibition against double jeopardy has no
       application until a defendant stands before a tribunal where guilt
       or innocence will be determined.” Commonwealth v. Hunter,
       674 A.2d 306 (Pa. Super. 1996). [Appellant’s] Allegheny County
       charges were dismissed pursuant to a pretrial motion. He did
       not stand trial and the Commonwealth was not barred from re-
       filing those same charges. Jeopardy did not attach and therefore
       double jeopardy could not have attached. Further we note that
       the charges in Allegheny County were substantially different
       from the [possession of child pornography] charges filed in
       Fulton County.

Id. at 10. Appellant’s claim of PCRA court error based on Paragraph 5-D of

his PCRA petition fails for lack of arguable merit.

       In his seventh issue, Appellant argues trial counsel ineffectiveness for

failure to present an expert witness to rebut the testimony of the

Commonwealth’s expert.             The Commonwealth’s expert testified about

application of the “Tanner staging scale” used to determine the age of

____________________________________________


5
  Appellant defeats his own collateral estoppel argument in the first prong of
the four-pronged definition he outlines in his brief, i.e., that an issue decided
in a prior action is identical to one presented in a later action. Appellant’s
Brief at 44. Even if the Allegheny County action could be considered “a later
action,” it cannot be said that any issue from Allegheny County, with charges
of Solicitation of IDSI and Criminal Attempt, was addressed in the Fulton
County action involving charges of Possession of Child Pornography.




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children depicted in Appellant’s photographs based on physical development.

Appellant’s argument lacks reasonable merit.         As the PCRA court aptly

noted, “Trial counsel need not introduce expert testimony on his client’s

behalf if he is able to effectively cross-examine prosecution witnesses and

elicit helpful testimony.”         PCRA Court Opinion, 3/2/12, at 11 (citing

Commonwealth v. Marinelli, 810 A.2d 1257, 1269 (Pa. Super. 2002)).

The PCRA court explained:

       After reviewing the transcripts, we find that trial counsel
       effectively cross-examined the expert on his methods and use of
       Tanner. Trial counsel cross-examined [Commonwealth expert]
       Dr. Greenwald on his understanding of the Tanner scale and the
       conclusiveness of his results. In fact, arguments contained in
       Dr. Rosenbloom’s affidavit attached to the Offer of Proof were
       brought out during cross-examination of Dr. Greenwald by trial
       counsel. For example, Dr. Rosenbloom asserts that the Tanner
       scale is not intended for determining age, but rather, it was
       intended for use in determining stages of development. This is
       evident in trial counsel’s questioning on pages 93 and 94 of the
       transcript. Trial counsel elicits testimony wherein Dr. Greenwald
       admits that the scale isn’t intended for determining exact
       chronological age.

       Pursuant to Marinelli, trial counsel effectively cross-examined
       the Commonwealth’s expert and was not required to produce a
       rebuttal expert.

PCRA Court Opinion, 3/2/12, at 11.6 Because Appellant’s claims relating to

Paragraph 6 of his PCRA petition lack arguable merit, Appellant is not

entitled to relief.

____________________________________________


6
  The PCRA court also noted that trial counsel did contact an expert in the
field of forensic evaluation of computer generated child pornography and
(Footnote Continued Next Page)


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      Next, Appellant claims PCRA court error for rejecting claims in

Paragraph 7 of his PCRA petition.            In Paragraph 7, Appellant alleged that

trial counsel was ineffective for failing to challenge on direct appeal the trial

court’s discounting of expert testimony regarding four of the pictures upon

which Appellant was convicted.            Appellant contends the Commonwealth’s

expert testified it was not possible to state beyond a reasonable degree of

medical certainty that the subjects in those pictures were under the age of

18.

      It is of no consequence that the trial court convicted Appellant on

possession charges for those four photographs absent expert testimony

establishing the individuals depicted were under the age of 18. While it is

clear that competent expert testimony is sufficient to establish the age of a

person alleged to be a child under the 18 years of age under 18 Pa.C.S.A.

§ 6312(e), it is equally true that expert testimony is not required for the

court to establish the age of the children in photographs. Commonwealth

v. Robertson-Dewar, 829 A.2d 1207 (Pa. Super. 2003). The PCRA court

noted that “[i]n reaching its verdict, the [c]ourt considered all the evidence
                       _______________________
(Footnote Continued)

sent him evidence from this case to evaluate. The expert advised counsel
that he was familiar with some of the images from Appellant’s case by virtue
of his involvement with other cases and was aware that some of the
images—and the identity and ages of the children depicted in those images—
had been established conclusively as images of actual underage children.
Knowing the images portrayed actual underage children, trial counsel was
prohibited by the Rules of Professional Conduct from offering evidence that
he knew to be false. PCRA Court Opinion, 3/2/12, at 11.



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presented at trial, including the testimony of the expert.   The [c]ourt was

not bound by the expert’s testimony and found additional evidence

supporting a finding that the individuals in the pictures were indeed

children.” PCRA Court Opinion, 3/2/12, at 12. Appellant’s challenge based

on Paragraph 7 of his PCRA petition lacks arguable merit.

      In his ninth and final issue raised in this appeal, Appellant claims the

PCRA court erred by denying his request to amend his PCRA petition to

allege ineffectiveness of PCRA counsel.      Specifically, Appellant contends

PCRA counsel was ineffective for failing to question trial counsel about his

“strategic decision making” with respect to paragraphs 5-A, 5-B, 5-D and 7

of Appellant’s PCRA petition. Appellant’s Brief at 56-57.

      As the PCRA court recognized, there is no absolute right to amend a

PCRA petition. PCRA Court Opinion, 5/13/14, at 3 (citing Commonwealth

v. Williams, 732 A.2d 1167, 1191 (Pa. 1999)). “Leave to amend a PCRA

petition lies within the sound discretion of the [c]ourt and should be granted

to achieve substantial justice.” Id. More importantly, the issues Appellant

wished to raise in an amended PCRA petition are issues we have already

determined to lack arguable merit. There would be nothing accomplished by

permitting Appellant to amend his PCRA petition to allege PCRA counsel

ineffectiveness for failing to question trial counsel about issues on which we

have already ruled. “In determining a layered claim of ineffectiveness, the

critical inquiry is whether the first attorney that the defendant asserts was


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ineffective did, in fact, render ineffective assistance of counsel. If that

attorney was effective, then subsequent counsel cannot be deemed

ineffective for failing to raise the underlying issue.”   Commonwealth v.

Rykard, 55 A.3d 1177, 1190 (Pa. Super. 2012) (quoting Commonwealth

v. Burkett, 5 A.3d 1260, 1270 (Pa. Super. 2010)).

      We find that the ruling of the PCRA court is supported by the record

and is free of legal error. Therefore, we affirm the PCRA court’s February

25, 2014 order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/16/2015




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