J-S79036-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    STRANDON MILLER                            :
                                               :
                      Appellant                :       No. 143 EDA 2017

                Appeal from the PCRA Order December 20, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0002279-2009


BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.:                        FILED DECEMBER 19, 2017

        Appellant, Strandon Miller, 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 accurately sets forth the

relevant facts and procedural history. Therefore, we have no need to restate

them.

        Appellant raises one issue for our review:

           WHETHER APPELLANT WAS PREJUDICED BY TRIAL AND
           APPELLATE COUNSEL[S’] FAILURE TO PRESERVE THE
           ISSUE OF SUFFICIENCY OF THE EVIDENCE FOR
           CONSIDERATION IN APPELLANT’S DIRECT APPEAL[?]


____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.
J-S79036-17


(Appellant’s Brief at 4).

      As a preliminary matter, we must determine if Appellant properly

preserved his issue for appellate review. As a rule, the failure to raise an

issue before the PCRA court constitutes waiver of the claim for appeal.

Commonwealth v. Bond, 572 Pa. 588, 819 A.2d 33 (2002).                    See also

Pa.R.A.P. 302(a) (stating issues not raised in lower court are waived and

cannot be raised for first time on appeal). Additionally, “issues not raised in

a Pa.R.A.P. 1925(b) statement will be deemed waived.” Commonwealth v.

Castillo,   585   Pa.   395,   403,   888    A.2d   775,   780   (2005)    (quoting

Commonwealth v. Lord, 553 Pa. 415, 420, 719 A.2d 306, 309 (1998)).

“Rule 1925(b) waivers may be raised by the appellate court sua sponte.”

Commonwealth v. Hill, 609 Pa. 410, 427, 16 A.3d 484, 494 (2011).

      Instantly, the sole issue Appellant raised in his Rule 1925(b) statement

provides as follows:

         [Whether] the PCRA court erred as a matter of law and
         abused its discretion when it denied, without an
         evidentiary hearing, [Appellant]’s sought-after PCRA relief
         asking for a new trial even though [Appellant]
         demonstrated that trial counsel’s failure to object to the
         introduction of evidence at trial was ineffective assistance
         of counsel[?]

(See Rule 1925(b) statement, filed 1/31/17, unpaginated). Appellant raised

this claim for the first time in his Rule 1925(b) statement, but he failed to

raise it in his petitions before the PCRA court. Therefore, the “evidentiary”

claim Appellant raised in his Rule 1925(b) statement is waived for appellate


                                       -2-
J-S79036-17


review.      See Bond, supra; Pa.R.A.P. 302(a), supra.                   Further, the

“preservation” issue Appellant argues on appeal differs from the only issue

he presented in his Rule 1925(b) statement.           Because Appellant failed to

raise his “preservation” issue in his concise statement, it is also waived for

purposes of our review. See Castillo, supra. Moreover, even if Appellant

had properly preserved these claims, they would merit no relief.

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

examining     whether    the   evidence    of      record   supports       the   court’s

determination    and    whether   its     decision     is   free    of   legal     error.

Commonwealth v. Conway, 14 A.3d 101, 108 (Pa.Super. 2011), appeal

denied, 612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference

to the findings of the PCRA court if the record contains any support for those

findings. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.Super. 2007),

appeal denied, 593 Pa. 754, 932 A.2d 74 (2007).                    We give no such

deference, however, to the court’s legal conclusions.          Commonwealth v.

Ford, 44 A.3d 1190, 1194 (Pa.Super. 2012).             Further, 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. Wah, 42 A.3d 335, 338

(Pa.Super.    2012);    Commonwealth          v.   Jones,    942    A.2d    903,    906

(Pa.Super. 2008), appeal denied, 598 Pa. 764, 956 A.2d 433 (2008).


                                        -3-
J-S79036-17


      The     law   presumes     counsel    has   rendered     effective   assistance.

Commonwealth v. Gonzalez, 858 A.2d 1219 (Pa.Super. 2004), appeal

denied, 582 Pa. 695, 871 A.2d 189 (2005).                To prevail on a claim of

ineffective   assistance    of   counsel,    a    petitioner   must   show,    by   a

preponderance of the evidence, ineffective assistance of counsel, which, in

the circumstances of the particular case, so undermined the truth-

determining process that no reliable adjudication of guilt or innocence could

have taken place. Commonwealth v. Turetsky, 925 A.2d 876 (Pa.Super.

2007), appeal denied, 596 Pa. 707, 940 A.2d 365 (2007).               The petitioner

must demonstrate: “(1) the underlying claim is of arguable merit; (2)

…counsel had no reasonable strategic basis for his…action or inaction; and

(3) but for the errors and omissions of counsel, there is a reasonable

probability that the outcome of the proceedings would have been different.”

Id. at 880. “The petitioner bears the burden of proving all three prongs of

the test.”    Id.   “If a petitioner fails to plead or meet any elements of the

[ineffectiveness] test, his claim must fail.” Commonwealth v. Burkett, 5

A.3d 1260, 1272 (Pa.Super. 2010). See also Commonwealth v. Chmiel,

612 Pa. 333, 362, 30 A.3d 1111, 1128 (2011) (explaining boilerplate

allegations and bald assertions of no reasonable basis and/or ensuing

prejudice cannot satisfy petitioner’s burden to prove ineffectiveness).

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

applicable law, and the well-reasoned opinion of the Honorable Giovanni O.


                                       -4-
J-S79036-17


Campbell, we would affirm on the basis of the PCRA court’s opinion.       The

PCRA court comprehensively addresses and properly disposes of Appellant’s

issues.   (See PCRA Court Opinion, filed February 13, 2017, at 3-8)

(addressing thoroughly Appellant’s Rule 1925(b) statement claim and

appellate issue and finding both meritless). The record supports the PCRA

court’s rationale, and we see no reason to disturb it. Therefore, if Appellant

had properly preserved his issues for our review, then we would affirm

based on the PCRA court’s opinion. Accordingly, we affirm. See generally

In re K.L.S., 594 Pa. 194, 197 n.3, 934 A.2d 1244, 1246 n.3 (2007)

(stating where issues are waived on appeal, we should affirm).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/19/2017




                                    -5-
                                                                                                  Circulated 12/01/2017 01:48 PM




                           IN THE COURT OF COMMON PLEAS
                  FOR THE FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                              TRIAL DIVJSION - CRIMINAL

COMMONWEALTH                                                        CP-51-CR-0002279-2009              FILED
        v.
                                   CP-51-CR-0002279-2009 Comm. v. Miller, Strandon
                                                     Opinion                                             FEB 13 201f-

STRANDON MILLER
                                                                                                   Criminal �peals Unit
                                        111111111 IIIIIIIIUI 1111                                First Judicia\ District of PA
                                             7905058091
                                     MEMORANDUM OPINION

CAMPBELL, J.                                                                                  February     J gm, 201 7

Procedural Histon:

        On September 17, 2009, following a jury trial before the Honorable Earl Trent, Petitioner

Strandon Miller (aka Brandon Miller), was found guilty of aggravated assault graded as a first

degree felony, criminal conspiracy, endangering the welfare ofa child, possessing an instrument

of crime, and recklessly endangering another person. On November 5, 2009, Petitioner was

                                                       h 2. 5
                                                                                     «
sentenced to an aggregate term of \ 1.. \ /.2...                            :. years' incarceration.
        fletltioner Appealed to the �uperior Court, which amrmed the judgment or sentence.

Commonwealth v. Miller, 32 A.3d 846 (Pa. Super. 2011).

        Petitioner filed an application for en bane re-argument, which the Superior Court denied

on October 26, 2011. Commonwealth v. Miller, 2011 Pa. Super. LEXIS 4256 (Pa. Super 2011).

        On May 1, 2012, Petitioner filed the instant pro se petition under the Pennsylvania Post

Conviction Relief Act (11PCRA11).

        On October 15, 2012, the Pennsylvania Supreme Court granted Petitioner leave to file a

Petition for Allowance of Appeal, nunc pro time. Commonwealth v. Miller, 55 A.3d 98 (Pa. 2012).

        Petitioner filed his petition for allowance of appeal on November 2; 2012, which the

Pennsylvania Supreme Court denied on June· 12, 2013. Commonwealth v. Strandon Miller, 69 A.3d
243 (Pa. 2013).

         Petitioner filed a pro se Petition for Writ of Habeas Corpus and accompanying

Memorandum of Law in the United States District Court for the Eastern District of Pennsylvania

Court on November 25, 2013. Therein Petitioner alleged that: (1) trial counsel was ineffective for

not arguing that use of force by a parent or guardian may be justifiable under 18 Pa.C.S. §509(l)(i);

(2) direct appeal counsel was ineffective for not filing a timely allocatur petition; and (3) trial and

direct appeal counsel were ineffective for not relying on specific cases Miller v. Pennsylvania,

2014 U.S. Dist. LEXIS 95443, *6-7 (E.D. Pa. June 19, 2014).1

         On June 19, 2014, United States Magistrate Judge Henry S. Perkin recommended that the

petition be denied and dismissed without prejudice. On July 10, 2014, United States District Court

Judge Nitza Quinones Alejandro adopted Judge Perkins' recommendations.                                    Miller v.

Pf#PlrlSJ,1/V#Hit.l, 20l4 U.S. Dist. L.EXIS 94723, *2, 2014 WL :1401111 CE,D. Pa. Jul� 1 O. :2014:).

         Counsel for Petitioner filed an Amended PCRA Petition on November 7, 2014. He filed a

Supplemental Amended PCRA Petition on September 14, 2015.

         The Commonwealth filed an Answer to the Petition on February 5, 2016.

         The matter was assigned to this Court on February 10, 2016.

         On November 28, 2016, the Court sent Petitioner a Notice oflntent to Dismiss the PCRA

Petition, pursuant to Pa.R.Crim.P. 907.

         On December 20, 2016, the PCRA petition was dismissed and Petitioner was sent Notice

of the dismissal and a copy of the Order.

         On December 23, 2016, a timely Notices of Appeal was filed.


I Petitioner's filings in the federal habeas case are docketed under the name Brandon Miller, at E.D. Pa. No. l 3-cv-
06862.                                                                                .
                                                          2
        Pursuant to Pa.R.A.P. 1925(b)(2) and (3), the Court entered an order on January 23, 2017,

directing the filing of a Statement of Errors Complained of on Appeal, not later than twenty-one

(21) days after entry of the order.

        A Rule 1925(b) Statement of Errors was filed on January· 31, 2017.

Factual Histon;

        The Commonwealth established at trial that Petitioner and Crystal Otte, his live-in

girlfriend, repeatedly beat the girlfriend's six-year old daughter with a metal-studded belt. School

personnel observed injuries to the child's hands, back, and buttocks, and reported the abuse. The

jury also heard evidence, by way of stipulation, that:

        A jury found that Strandon Miller similarly assaulted two-year-old fY} , f?, , the son
        of his then girlfriend. M , R..., died in the hospital eight days after the assault. He never
        regained consciousness and died from a lacerated liver, pancreatic injury, facial bruises,
        and hypoxia, which is lack of blood flow and/or oxygen to the brain. A jury determined
        that M · R, 's death was caused by Strandon Mi1ler. The jury convicted Strandon
        Miller of the involuntary manslaughter of /VI. R..            Strandon Miller is currently
        appealing that jury's guilty verdict.

(N.T. 9/16/09, 66-67).

        The other evidence adduced at trial is adequately set forth in Judge Trent's September 20,
2010, Opinion. We adopt Judge Trent's summary as though fully set forth herein.

Discussion

        The May 3, 2012, pro se PCRA Petition raises the single ground of failure of trial and

appellate counsel to advance the defense of parental discipline or punishment. The September 14,

2015, Supplemental Amended PCRA Petition raises this claim in the context of failure of trial and

appellate counsel to preserve the claim of insufficiency of the evidence to support the conviction..2


2 The November 7, 2014, Amended PCRA Petition raises as the sole ground for relief the failure to file a Petition
for Allowance of Appeal to the Supreme Court. The Supreme Court granted leave to file a Petition for Allowance of
                                                        3
In response to the Court's January 23, 2017, Order pursuant to Pa.RAP. 1925(b)(2) and (3),

directing the filing of a Statement of Errors Complained of on Appeal, Appellant filed a Rule

1925(b) Statement on January 31, 2017, raising the single ground of error was the denial of the

request for a new trial based upon alleged ineffectiveness of trial counsel for "failure to object to

the introduction of evidence at trial."

         The claim of ineffectiveness of counsel in failing to advance the argument that the conduct

fell within the range of permissible parental discipline or punishment was not preserved by raising

it in the Pa.R.A.P. l925(b) Staterpent. Accordingly, it is waived. However, even if not waived, it

is clearly meritless. The evidence conclusively demonstrated injury and intent far beyond that

which could conceivably be construed as falling within the bounds of lawful parental discipline of

a six year-old child. See below.

         As for the sole ground raised in the Rule I 925(b) Statement - "trial counsel's failure to

object to the introduction of evidence at trial" - there is nothing in the originalPCRA Petition, the

Amended Petition or the Supplemental Petition addressing such alleged failure. If the alleged

failure to object goes to the introduction of the child's statements under the �)ender years"

exception, that issue has been previously litigated. See Superior Court Opinion, pp. 3-5. If the

alleged failure to object goes to the evidence of Petitioner's prior conviction for the beating death

ofhis prior girlfriend's two year old son, that too has been previously litigated. See Superior Court

Opinion, pp. 8..;11. The PCRA provides that in order to be eligible for relief, "the allegation of

error has not been previously litigated or waived." 42 Pa.C.S. § 9543(a)(3). See also 42 Pa.C.S.



A��lil1II, tiUtl�_t,ro tUnt. pn October 15, 2012 (Commonwealth. v. Miller, 55 A.3d 98 (Pa. 2012).), and because such a
petition was filed and denied by the Pennsylvania supreme Court dented on June 12, 2013. Commonwealth v.
Strandon Miller, 69 A.3d 243 (Pa. 2013). As acknowledged in paragraph 2 of the September 14, 2015,
Supplemental Amended Petition, this ground is clearly moot.
                                                           4
§ 9544.

          Therefore, although not preserved pursuant to Rule l 925(b ), we will address the only

conceivably viable issue raised in the PCRA petitions.

          l..    The evidence was sufficient to overcome any license to impose discipline under
          18 Pa.C.S. § 509.

          The claim in the September 14, 2015, Supplemental Amended PCRA Petition of failure of

trial and appellate counsel to preserve the claim of insufficiency of the evidence to support the

conviction, is not raised in the Pa.R.A.P. I 925(b) Statement. Moreover, it is without merit. As

the Superior stated regarding his previous effort to argue sufficiency of the evidence on appeal:

"Even if Miller had preserved his claim for appellate review, we would conclude that it lacks merit

for the reasons stated in the trial court's Opinion. See Trial Court Opinion, 9/20/10, at 5- 7

(unnumbered) (concluding that the evidence was sufficient to establish that Miller intended to

cause serious bodily injury)". Commonwealth v. Miller, No. 3490 EDA 2009, Slip. Op. 13, note

5 (Pa. Super. 8/30/11). This Court likewise adopts Judge Trent's reasoning.

          However, everi assuming, arguendo, that the claim is this time preserved for appellate

review, it nonetheless fails.
          A ciaim cnanengmg the sufficiency or the evidence presents a question of law.

Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 751 (2000). We must determine "whether

the evidence is sufficient to prove every element of the crime beyond a reasonable doubt."

 Commonwealth v. Hughes, 521 Pa. 423, 555 A2d 1264, 1267 (1989). We "must view evidence in

the light most favorable to the Commonwealth as the verdict winner, and accept as true all evidence

 and all reasonable inferences therefrom upon which, if believed, the fact finder properly could

 have based its verdict." Id.

                                                  5
       Our Supreme Court has instructed:

        [T]he facts and circumstances established by the Commonwealth need not preclude
       every possibility of innocence. Any doubts regarding a defendant's guilt may be
       resolved by the fact-finder unless the evidence is so weak and inconclusive that as
       a matter of law no probability of fact may be drawn from the combined
       circumstances. Moreover, in applying the above test, the entire record must be
       evaluated and all evidence actually received must be considered. Finally, the trier
       of fact while passing upon the credibility of witnesses and the weight of the
       evidence produced, is free to believe all, part or none of the evidence.
       Commonwealth v. Ratsamy, 594 Pa. 176, 934 A.2d 1233, 1236 n. 2 (2007).

Commonwealth v. Thomas, 65 A.3d 939, 943 (Pa. Super. 2013).

        18 Pa.C.S. § 509. Use of force by persons with special responsibility for care, discipline

or safety of others, provides, in pertinent part:

        The use of force upon or toward the person of another is justifiable if:
               (I) The actor is the parent or guardian or other person similarly responsible for the
               general care and supervision of a minor or a person acting at the request of such
               parent, guardian or other responsible person and:
               (i) the force is used for the purpose of safeguarding or promoting the welfare of
               the minor, including the preventing or punislunent of his misconduct; and
               (ii) the force used is not designed to cause or known to create a substantial risk of
               causing death, serious bodily injury, disfigurement, extreme pain or mental.distress
               or gross degradation.

        As in Commonwealth v. Bradley, 69 A.3d 253, (Pa. Super. 2013), even if Petitioner had

provided argument in support of his claim that the use of force was justified under 18 Pa.C.S. §

509, the conviction would have been affirmed.

        TI1e conduct here was that:

        [I]n the evening of December 8; 2008, the [six year-old] complainant was instructed to
        clean a litter box. Ms. Otte concluded that the complainant improperly executed the
        cleaning, and decided to beat her with a belt partially composed of metal rings. Ms. Otte
        proceeded to strike the backside of her body for an extended period of time. The
        complainant attempted to deflect the strikes and defend herself by extending her arm back
        behind her body. At some point, Ms. Otte ceased and physically transferred the belt to the
        Appellant. Later that evening, the [Petitioner] resumed the beating of the complainant with
        the belt Extensive physical injuries were sustained by the complainant as a result of the
                                                    6
       beating.

Trial Court Opinion, unnumbered pp. 6- 7.

       Regarding § 509, the Superior Court has explained: "In applying this section, we believe

that the fact finder must assess whether the [parent] believed the use of force was necessary to

maintain reasonable discipline and whether it was consistent with the child's welfare, in

consideration of, the child's [alleged] misconduct, the nature and severity of the punishment

inflicted, the age and size of the child and alternative means of discipline that were available."

Commonwealth v. Tullius, 582 A.2d 1, 4 (Pa. Super. 1990).

       In considering the evidence, we are guided by the sage analysis of our colleague, Judge

Wallace H. Bateman, Jr.:

       It is true that parents have the privilege to subject their children to corporal punishment
       when the children misbehave. This is so because our society recognizes the primary role
       of parents in preparing children to assume the obligations and responsibilities of adults,
       and because there is a need to ensure that the state, through its criminal justice system, does
       not unduly interfere with the private realm of family life. See [Commonwealth v. Ogin, 540
       A.2d 549, 554 (Pa. Super. 1988)]. Nevertheless, there are limits regarding the type and
       severity of the corporal punishment which a parent may impose. Id. The law long ago
       abandoned the view that children are essentially "chattels of their parents without
       independent legal rights." Id. Moreover, it is now clear that child abuse is a serious and
       widespread problem, which the state has a powerful interest in preventing and deterring.
       Id. According to 18 Pa.C.S.A § 509(l)(ii), "the force upon or toward the person of another
       it j1J11tifiable if the actor is the parent er �ardian ... and the force used is not desisned to
       cause or known to create a substantial risk of causing death, serious bodily injury,
       disfigurement, extreme pain or mental distress or gross degradation." 18 Pa.C.S.A §
       509( 1 )(ii).

Commonwealth v, Riggins.2011 Pa. Dist. & Cnty. Dec. LEXIS 551, * 17-18 (Pa. County Ct.2011 ).

        Under the facts presented here, granting all reasonable inferences to the Commonwealth as

the verdict winner, we have no difficulty concluding that the use of force was not necessary to

maintain reasonable discipline; that the force used was not consistent with the child's welfare; that


                                                   7
the child's alleged misconduct in failing to adequately clean the cat's litterbox was insignificant

and certainly did not warrant anywhere near the level of physical punishment inflicted; that the

nature and severity of the punishment inflicted was grossly out of proportion to any infraction, let

alone the minor misconduct alleged against this 6 year-old; and there were ample alternative means

of appropriate, reasonable discipline available to Petitioner and his co-conspirator.

       "It is well established that ... counsel cannot be deemed ineffective for failing to raise a

meritless claim."   Commonwealth v. Lawrence, 960 A.2d 473, 478 (Pa. Super. 2008), citing

Commonwealth v. Daniels, 947 A.2d 795, 798 (Pa. Super. 2008). Here, the evidence presented

was clearly sufficient, and counsel's failure to preserve a meritless challenge to that sufficiency

does not render counsel ineffective or warrant relief.

       For all the reasons set forth herein, Defendant's Petition under the Post-Conviction Relief

Act was properly dismissed.


                                              By The Court:




                                                  8
