J-S64010-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DAVID ROGER LOOMIS                         :
                                               :
                       Appellant               :   No. 123 WDA 2019

            Appeal from the PCRA Order Entered December 20, 2018
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
                           CP-25-CR-0002775-2014


BEFORE:      BOWES, J., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY BOWES, J.:                                FILED MARCH 27, 2020

        David Roger Loomis appeals from the December 20, 2018 order

dismissing his petition pursuant to the Post-Conviction Relief Act (“PCRA”).

We affirm in part, vacate in part, and remand to the PCRA court for further

proceedings consistent with this memorandum.

        As a result of the nature of our holding, we will only briefly review the

factual history of this case. Appellant’s convictions resulted from his long-

term sexual abuse of his cousins, K.R. and G.B. (collectively, “the victims”),

which was disclosed to the Erie Police Department in February 2014, several

years after the assaults occurred. See Commonwealth v. D.R.L., 161 A.3d

381 (Pa.Super. 2017) (unpublished memorandum at 2).               Appellant was


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*   Retired Senior Judge assigned to the Superior Court.
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arrested and charged with various offenses in connection with K.R.’s

allegations of abuse. No charges were filed with respect to G.B.’s allegations

due to the statute of limitations having expired, but G.B.’s testimony was

admitted at trial pursuant to Pa.R.E. 404(b). Id. at 3.

       Following a two-day trial, Appellant was convicted of rape of a person

less than thirteen years old, two counts of involuntary deviate sexual

intercourse (“IDSI”) with a person less than thirteen years old, sexual assault,

two counts of indecent assault of a person less than thirteen years old,

corruption of a minor, and endangering the welfare of children (“EWOC”). Id.

at 1, 3. Ultimately, Appellant was sentenced to an aggregate term of twenty-

one to forty years of incarceration.           On direct appeal, this Court affirmed

Appellant’s judgment of sentence. Id. at 10.

       On January 24, 2018, Appellant filed a timely pro se PCRA petition. On

May 22, 2018, Appellant filed an amended PCRA petition via PCRA counsel

that raised, inter alia, the alleged ineffectiveness of trial counsel. The PCRA

court issued notice of its intent to dismiss Appellant’s petition without a

hearing pursuant to Pa.R.Crim.P. 907(1). Appellant filed a response to the

PCRA court’s Rule 907(1) notice. On December 20, 2018, the PCRA court

dismissed Appellant’s claims of ineffectiveness without a hearing.1

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1  Appellant devoted a significant portion of the instant PCRA petition to
arguing against the imposition of registration requirements pursuant to
Pennsylvania’s Sex Offender Registration and Notification Act (“SORNA”). See



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       Appellant filed a timely notice of appeal. The PCRA court did not order

Appellant to file a concise statement of errors pursuant to Pa.R.A.P. 1925(b),

but filed an opinion relying upon the reasoning presented in its August 17,

2018 order and opinion giving notice of the PCRA court’s intent to dismiss

Appellant’s petition without a hearing.

       Appellant presents the following issues for our consideration:

       1. Did the PCRA court err when it dismissed, without a hearing,
       Appellant’s claim that trial counsel was ineffective for advising
       [Appellant] not to testify in his own defense at trial?

       2. Did the PCRA court err when it dismissed, without a hearing,
       Appellant’s claim that trial counsel was ineffective for not cross-
       examining G.B. as to whether he continued to visit Appellant’s
       home and attend family functions for years after the alleged
       offenses?

       3. Did the PCRA court err when it dismissed, without a hearing,
       Appellant’s claim that trial counsel was ineffective for not
       objecting to the imposition of an aggravated range sentence for
       [EWOC] when the offense gravity score already adjusted for a
       “course of conduct”?

Appellant’s brief at 6.




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Amended PCRA Petition, 5/22/18, at ¶¶ 27-42; see also Response to Rule
907 Notice, 9/6/18, at ¶¶ 3-15. On December 20, 2018, the PCRA court
entered an order holding that: (1) SORNA as reenacted pursuant to Act 29 of
2018 H.B. 1952 remains punitive pursuant to Commonwealth v. Muniz, 164
A.3d 1189 (Pa. 2017); and (2) the imposition of SORNA’s registration
requirements upon Appellant violated the ex post facto clauses of the
Pennsylvania and U.S. Constitutions. Aside from this issue, the PCRA court
affirmed the remainder of Appellant’s convictions and sentence in toto.
Neither party has raised any claim respecting SORNA in this appeal. Thus, we
will not address it further in this memorandum.

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      As a general matter, our standard of review over an order denying a

petition under the PCRA requires us to determine whether the record supports

the PCRA court’s determination and whether the court correctly stated and

applied the law.    See Commonwealth v. duPont, 860 A.2d 525, 529

(Pa.Super. 2004). We will not disturb the PCRA court’s findings unless those

findings are unsupported by the record. Id.

      Appellant’s arguments are squarely directed towards the PCRA court’s

decision not to hold a PCRA hearing in this case under Rule 907, as opposed

to advocating the underlying merits of the claims. See Appellant’s brief at 27,

31. In pertinent part, Appellant is requesting that we remand this case for

the development of a more-thorough factual record via hearing..

      Pennsylvania Rule of Criminal Procedure 907 provides as follows with

respect to dismissing PCRA petitions without an evidentiary hearing:

      (1) the judge shall promptly review the petition, any answer by
      the attorney for the Commonwealth, and other matters of record
      relating to the defendant’s claim(s). If the judge is satisfied from
      this review that there are no genuine issues concerning any
      material fact and that the defendant is not entitled to post-
      conviction collateral relief, and no purpose would be served by any
      further proceedings, the judge shall give notice to the parties of
      the intention to dismiss the petition and shall state in the notice
      the reasons for the dismissal.

      ....

      (4) When the petition is dismissed without a hearing, the judge
      promptly shall issue an order to that effect . . . .

Pa.R.Crim.P. 907. “[T]here is no absolute right to an evidentiary hearing on

a PCRA petition.”    Commonwealth v. Springer, 961 A.2d 1262, 1264

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(Pa.Super. 2008). Thus, a PCRA court may decline to hold a hearing on a

PCRA petition if the claims included therein are patently frivolous or lack

support from either the record or other evidence. See duPont, supra at 530.

On appeal, our task is to examine each of the issues in light of the record to

determine whether the PCRA court erred in concluding that there were no

genuine issues of material fact and denying relief without a hearing.           See

Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa.Super. 2001).

      With respect to Appellant’s first claim, he alleges that “trial counsel’s

advice not to testify was so unreasonable that it effectively vitiated Appellant’s

knowing and voluntary waiver of his right to testify.” Appellant’s brief at 23

(emphasis omitted). The PCRA court cursorily dismissed this claim on the

grounds that Appellant had participated in a waiver colloquy prior to waiving

his right to testify. See PCRA Court Opinion, 8/17/18, at 1.

      In support of this assertion, the PCRA court cited only an unpublished

case from this Court that was filed prior to May 2, 2019. Initially, we note

that such a case has neither precedential nor persuasive value before this

Court.   See Pa.R.A.P. 126(b).     The PCRA court did not further assess the

merits of Appellant’s ineffectiveness claim, but balanced its holding exclusively

upon its novel interpretation of the waiver colloquy, based upon an

unpublished memorandum which we are expressly prohibited from citing. See

Superior Court IOP § 65.37(B) (“An unpublished memorandum decision filed

prior to May 2, 2019, shall not be relied upon or cited by a Court . . . .”).


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       Unfortunately, the PCRA court’s holding on this point is erroneous. The

mere instance of a waiver colloquy does not prevent a petitioner from later

challenging the effectiveness of his attorney’s advice not to testify.         See

Commonwealth v. Nieves, 746 A.2d 1102, 1103-5 (Pa. 2000) (permitting

challenge to the voluntariness of decision not to testify based upon counsel’s

ineffectiveness despite a valid waiver colloquy); see also Commonwealth

v. Ford, 484 A.2d 406, 409 (Pa.Super. 1984) (“Even where we have a record

of the plea colloquy, we have recognized petitioner’s right to present additional

evidence where the record did not clearly refute his claim.”).2

       The relevant point of inquiry on this issue is not whether Appellant

participated in a waiver colloquy, but upon the contours of the legal advice

provided by trial counsel that informed Appellant’s decision not to testify:

       The decision of whether or not to testify on one’s own behalf is
       ultimately to be made by the defendant after full consultation with
       counsel. In order to sustain a claim that counsel was ineffective
       for failing to advise the appellant of his rights in this regard, the
       appellant must demonstrate either that counsel interfered with his
       right to testify, or that counsel gave specific advice so
       unreasonable as to vitiate a knowing and intelligent decision to
       testify on his own behalf.

Commonwealth v. Michaud, 70 A.3d 862, 869 (Pa.Super. 2013).




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2  The holding in Commonwealth v. Ford, 484 A.2d 406, 409 (Pa.Super.
1984), concerned a guilty plea colloquy, as opposed to a waiver colloquy.
However, we believe that the principle discussed therein regarding the effect
of a colloquy is equally applicable to the instant case.

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      In order to prevail on this point, Appellant must “plead and prove” that

counsel rendered “ineffective assistance . . . which, in the circumstances of

the particular case, so undermined the truth determining process such that no

reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S.

§ 9543(a)(2)(ii).    “Success on a claim of ineffective assistance of counsel

requires the petitioner to rebut the presumption that counsel rendered

ineffective assistance.”   Commonwealth v. Williams, 141 A.3d 440, 454

(Pa. 2016). Accordingly, Appellant is required to “prove, by a preponderance

of the evidence, that (1) the claim has arguable merit[;] (2) counsel’s action

or inaction was not based upon a reasonable trial strategy[;] and (3) petitioner

suffered prejudice because of counsel’s act or omission.” Id. “The failure to

satisfy any one of the prongs requires rejection of the petitioner’s claim.” Id.

      Appellant’s argument is straightforward. He avers that trial counsel was

ineffective because he suddenly advised Appellant not to testify at trial

despite: (1) Appellant continually maintaining his innocence; (2) thorough

preparation   of    Appellant’s   anticipated   trial   testimony;   and   (3)   the

Commonwealth’s case hinging entirely upon the credibility of the victims. See

Appellant’s brief at 21.     Specifically, Appellant averred that trial counsel

“prepared him to testify and then vacillated as to whether or not Appellant

should testify.” Id. at 23. As such, Appellant avers that trial counsel’s advice

denied him the opportunity to testify as to his own innocence by challenging

the victims’ version of events and underlying credibility.       Id. at 26 (citing


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Commonwealth v. Neal, 618 A.2d 438, 440-41 (Pa.Super. 1992) (holding

counsel was ineffective where the defendant’s “decision to forego testifying on

his own behalf was not an informed decision reached after full consultation

with counsel” in a case that “turned primarily on the credibility of the victim”)).

      At this juncture, we note that “[w]here it can not be determined from

the record whether a satisfactory basis for counsel’s action exists, an

evidentiary hearing is usually needed to allow counsel to explain his or her

actions so that we can resolve the issue of whether counsel’s performance was

unreasonable and, if so, prejudicial.”     Commonwealth v. Edmiston, 634

A.2d 1078, 1092 (Pa. 1993), abrogated on other grounds, Commonwealth

v. Freeman, 827 A.2d 385 (Pa. 2003). A PCRA petitioner “should be given

every conceivable legitimate benefit in favor of the grant of a hearing. If the

reviewing court cannot tell from the record whether petitioner’s claims are

frivolous and without support, it is necessary to remand for an evidentiary

hearing.” Ford, supra at 408-9 (internal citations and quotations omitted).

      The transcript of the waiver colloquy relied upon by the PCRA court is

silent as to any discussions Appellant may have had with trial counsel

concerning his decision not to testify. See N.T. Trial, 10/22/15, at 28-29. It

also does not reveal what trial counsel’s rationalization for this advice might

have been. Id. Beyond trial counsel acknowledging that he had discussed

this issue “at length” with Appellant, no further information is present to

facilitate our review. Id. Our review of the remaining certified record has


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revealed no other additional information regarding trial counsel’s advice to

Appellant on this point. As a result of the PCRA court’s dismissal without a

hearing, we do not have the benefit of trial counsel’s testimony explaining his

reasons for suddenly advising Appellant not to testify.3

       Our role is not to engage in an ad hoc assessment of the ultimate merits

of Appellant’s claim for relief, but to determine whether any “genuine issues

of material fact” remain unresolved with respect to the PCRA court’s decision

to dismiss Appellant’s petition without an evidentiary hearing. See Jordan,

supra at 1014. Based on the foregoing, we believe that material issues of

fact persist with respect to Appellant’s first claim. The PCRA court’s reliance

upon an unpublished memorandum was erroneous, and our review indicates

that Appellant’s first claim presents arguments that would benefit from an

evidentiary hearing. See Nieves, supra at 1103-5; Neal, supra at 440-41.

As such, we will vacate that portion of the PCRA court’s order that dismissed

Appellant’s first claim without an evidentiary hearing.

       Appellant’s second issue alleges that trial counsel was also ineffective

by failing to cross-examine G.B. regarding alleged inconsistencies in his

testimony. Specifically, Appellant avers that he provided trial counsel with



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3 We are particularly mindful that “the most important witness for the defense
in many criminal cases is the defendant himself.” Rock v. Arkansas, 483
U.S. 44, 52 (1987). “Even more fundamental to a personal defense than the
right of self-representation . . . is an accused’s right to present his own version
of events in his own words.” Id.

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information that could have been utilized to impeach G.B., namely that: (1)

G.B. had continued to attend some family functions after the assaults took

place; and (2) G.B. visited Appellant’s home during his teenaged years. In its

opinion, the PCRA court concluded that trial counsel’s apparent decision not

to utilize this information “did not prejudice [Appellant] to the point [that] he

did not receive a fair trial.” PCRA Court Opinion, 8/17/18, at 2.

      The legal standards governing our review of this issue are the same as

those discussed above. With particular reference to Appellant’s request for an

evidentiary hearing, our Supreme Court has stated that “[w]here the record

reflects that the underlying claim is of no arguable merit or no prejudice

resulted, no evidentiary hearing on an ineffective assistance claim is required.”

Commonwealth v. Pirela, 726 A.2d 1026, 1037 (Pa. 1999).

      At trial, G.B. testified that he would regularly spend time at Appellant’s

house during his childhood. See N.T. Trial, 10/21/15, at 21-23. However, as

a result of Appellant’s abuse and the resulting psychological toll, G.B. testified

that he eventually began distancing himself from Appellant and the rest of his

extended family:

      You know, it started to get more and more sparse the times I
      would go over there, and eventually I just distanced myself
      completely. As I started to get into high school years and stuff
      like that, it got really awkward so I eventually quit going over to
      his house. And then every so often [Appellant would] be at
      another family event at a relative’s house so then eventually I just
      quit going to my family’s house altogether.




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Id. at 32-33. Despite “distancing” himself, G.B. testified that he still

occasionally attended family events and had encountered Appellant at such a

“random party.” Id. at 33-34. On cross-examination, Appellant’s trial counsel

did not raise any questions regarding these statements. Id. at 38-52.

      Even assuming, arguendo, that trial counsel was in possession of

information indicating that G.B. continued to attend family events after the

abuse concluded and had visited Appellant’s house when he was “17 or 18,”

we fail to see how that information is inconsistent with G.B.’s testimony above.

G.B. testified that his relationship with Appellant and his extended family

began to become “really awkward” during his “high school years.” Id. at 32.

As a result of this escalating discomfort, Appellant “eventually” stopped going

to Appellant’s home and his “family’s house.” Id. at 32-33.

      G.B. never testified that he had stopped visiting Appellant’s house

altogether before the age of 18, and he never stated that he completely

stopped attending family events. To the contrary, G.B.’s testimony suggests

both that he continued to spend time at Appellant’s home during his “high

school years” and that he continued to participate in family events.

Notwithstanding Appellant’s averments, the information allegedly in trial

counsel’s possession was consistent with G.B.’s version of events and did not

constitute a valid basis for impeachment.

      Overall, Appellant has failed to demonstrate either arguable merit or

prejudice.    See Commonwealth v. Smith, 181 A.3d 1168, 1182-84


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(Pa.Super. 2018) (holding that petitioner failed to establish either arguable

merit or prejudice where the alleged impeachment evidence not utilized by

counsel did not undermine the witness’s testimony and did not establish the

petitioner’s innocence). Even giving Appellant every legitimate benefit of the

doubt, his second ineffectiveness claim presents no issues of material fact. As

such, we affirm that portion of the PCRA court’s order dismissing Appellant’s

second claim without a hearing. Accord Jordan, supra at 1014.

      Appellant’s third claim asserts that trial counsel was ineffective for

failing to object to the aggravated-range minimum sentence imposed by the

trial court on Appellant’s conviction for EWOC. See Appellant’s brief at 31-

34. This charge was graded as a third-degree felony because it involved “a

course of conduct of endangering the welfare of a child.”        18 Pa.C.S. §

4304(b)(1)(ii); see also N.T. Trial, 10/22/15, at 93. This grading had the

effect of increasing the offense gravity score (“OGS”) from five to six. See

204 Pa. Code § 303.15. Given Appellant’s lack of a prior record score, this

increase in OGS expanded Appellant’s minimum aggravated-range sentence

from restorative sanctions to twelve months, to nine to eighteen months. See

204 Pa. Code § 303.16(a) (“Basic Sentencing Matrix”).

      The trial court imposed a minimum sentence at the top of this

aggravated range. See N.T. Sentencing, 1/26/16, at 28 (sentencing Appellant

to a consecutive sentence of eighteen to thirty-six months as to EWOC

charge). During sentencing, the trial court recounted the multitude of factors


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it considered in crafting Appellant’s sentence, and made the following

statement: “[Appellant] will now be given the following sentence by the Court,

which will be in the aggravated range of the sentencing guidelines, mainly

because it involved a course of conduct with a young child over a significant

number of years.” Id. at 26.

      Appellant’s argument asserts that trial counsel provided ineffective

assistance by failing to challenge the trial court allegedly erroneous reference

to Appellant’s “course of conduct” in imposing an aggravated-range sentence.

See Appellant’s brief at 33. Specifically, Appellant avers that this factor had

already been included in the sentence as a result of the grading of the EWOC

charge, and that trial counsel should have objected. Id. In support of this

argument, Appellant cites this Court’s holding in Commonwealth v.

Shugars, 895 A.2d 1270 (Pa.Super. 2006), wherein we stated the following

with respect to sentencing:

      It is impermissible for a court to consider factors already included
      within the sentencing guidelines as the sole reason for increasing
      or decreasing a sentence to the aggravated or mitigated range.
      Trial courts are permitted to use prior conviction history and other
      factors already included in the guidelines if, they are used to
      supplement other extraneous sentencing information.

Id. at 1275 (emphasis in original) (quoting Commonwealth v. Simpson,

829 A.2d 334, 339 (Pa.Super. 2003)).

      The PCRA court rejected this argument:

      A review of the [trial court’s] sentencing remarks reveal that the
      [trial court] thoroughly considered a plethora of factors in
      sentencing [Appellant]. Courses of conduct in general do not take

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      into account the age of the child during the crime[,] or the number
      of times or years included in each specific crime. This course of
      conduct was unique to this case and encompassed all of the other
      considerations the Court mentioned in its sentencing.

PCRA Court Opinion, 8/17/18, at 2. The PCRA court concluded that this claim

was meritless and, consequently, held that trial counsel could not be deemed

ineffective for failing to pursue it. See Commonwealth v. G.Y., 63 A.3d 259,

265 (Pa.Super. 2013) (“Counsel cannot be deemed ineffective for failing to

pursue a meritless claim.”). We agree.

      A review of the transcript of the trial court’s statements indicate that

the trial court referred to Appellant’s “course of conduct” by way of considering

the age of the victim, and the extended period of time over which the abuse

took place. See N.T. Sentencing, 1/26/16, at 26. Assuming, arguendo, that

referring to Appellant’s “course of conduct” constitutes reliance upon “other

factors already included in the guidelines,” the trial court was only utilizing

that factor as a vehicle to “supplement other extraneous sentencing

information,” e.g., the age of the victim and the long period of abuse. Accord

Shugars, supra at 1275. As such, the trial court did not err in imposing an

aggravated-range minimum sentence and trial counsel cannot be deemed

ineffective for declining to raise a meritless claim. Accord B.Y., supra at

265. Therefore, we discern no lingering issue of material fact in this claim,

and affirm the PCRA court’s dismissal of this claim without a hearing.

      Based on the foregoing discussion, we vacate only that portion of the

PCRA court’s December 20, 2018 order that dismissed Appellant’s claim for

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alleged ineffectiveness based upon trial counsel advising Appellant not to

testify at trial. All other aspects of the order are affirmed. On remand, we

direct the PCRA court to hold an evidentiary hearing regarding Appellant’s

claim of ineffectiveness identified immediately above.

      Order vacated in part and affirmed in part. Case remanded for further

proceedings. Jurisdiction relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/27/2020




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