J-S62036-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

RICHARD CHARLES MILLER

                            Appellant               No. 3598 EDA 2013


               Appeal from the PCRA Order November 12, 2013
                In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0004344-2010


BEFORE: ALLEN, J., OLSON, J., and OTT, J.

MEMORANDUM BY OTT, J.:                               FILED APRIL 01, 2015

        Richard Charles Miller appeals from the order entered November 12,

2013, in the Lehigh County Court of Common Pleas, denying his first petition

filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et

seq. Miller seeks relief from the judgment of sentence of an aggregate 15 to

30 years’ imprisonment, imposed on November 22, 2011, following his jury

conviction of involuntary deviate sexual intercourse (IDSI), aggravated

indecent assault, indecent assault, and corruption of minors,1 for his sexual

assault of a 12-year-old boy. Contemporaneous with this appeal, counsel for

Miller has filed a petition to withdraw, and accompanying Turner/Finley2
____________________________________________


1
    18 Pa.C.S. §§ 3123(a)(7), 3125(a)(8), 3126(a)(7) and 6301, respectively.
2
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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“no-merit” letter.   For the reasons set forth below, we grant counsel’s

petition to withdraw, and affirm the order on appeal.

     The PCRA court aptly summarized the trial testimony as follows:

            The victim, [Z.G.], who was thirteen years old at the time
     of trial, testified that [Miller] sexually assaulted him around the
     time of his birthday. He explained how [Miller] used both his
     finger and a “red candlestick thing” along with Vaseline, to touch
     the inside of [the victim’s] butt. These actions left [the victim]
     feeling “weird”, but [the victim] stated [Miller] “felt good. [The
     victim] also testified that [Miller] touched him “in my private
     part” with his hand.

            [T.G., the victim’s] mother, recounted how she met
     [Miller] when she was at a food bank with her boyfriend, Ishmael
     Figueroa.    Both [T.G.] and Ishmael grew comfortable with
     [Miller], who reminded [T.G.] of her grandfather.        As their
     relationship and trust of [Miller] developed, they began allowing
     [the victim] to sleep at [Miller’s] residence. These sleepovers
     ended, however, when [the victim] “blurted out … [Miller]
     touches me.”

            [The victim’s] allegations were corroborated when
     Detective Jacqueline Murray, a County Detective assigned to
     investigate child physical and sexual abuse, executed a search
     warrant at [Miller’s] residence on September 1, 2010. Inside a
     Kitty Litter container located near [Miller’s] bed was a “red dildo
     candlestick type object … various lubrication bottles and also a
     clear larger size tube.”

           Dr. [John] Van Brakel, who was working at the time as the
     Chairman of the Department of Pediatrics at the Lehigh Valley
     Hospital and with the Children’s Advocacy Center, examined
     [the victim] on September 3, 2010. Dr. Van Brakel’s “open-
     ended” interview and his examination of [the victim] confirmed
     the details of the abuse, in spite of the “normal” physical
     examination.       Despite   [the  victim’s]    background    of
     developmental delay and a variety of behavioral and mental
     health diagnoses, Dr. Van Brakel testified that [the victim] was
     cooperative and responsive to questioning.       Dr. Van Brakel
     explained that he would not expect to see any physical findings



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       in ninety-five percent of cases, and when there are physical
       findings, they are “rather superficial.”

              [Miller] testified and placed the blame on the victim,
       inferring that the victim enticed him. He testified that [the
       victim] was “always playing with himself and being naked.” On
       one occasion, [Miller] dried [the victim] off when he “came out
       of the shower and he didn’t dry off.” He admitted that during
       this incident, it was “a possibility” that he touched [the victim’s]
       penis. On other occasions, [Miller] “had to go ahead and wipe
       [the victim’s butt]” because [the victim] “insisted”. He agreed
       that he thought these actions were a bad idea, but claimed [the
       victim] had contact with him when [the victim] crawled into bed
       naked.

PCRA Court Opinion, 1/31/2014, at 3-4 (record citations omitted).              On

August 10, 2011, a jury returned a verdict of guilty on all charges.          That

same day, the trial court ordered Miller to undergo an assessment by the

Sexual Offenders’ Assessment Board to determine if he was a sexually

violent predator (SVP) under the former Megan’s Law.          See 42 PaC.S. §

9795.4.3

       Following a hearing on November 22, 2011, the trial court determined

that Miller met the criteria for classification as an SVP.            See N.T.,

11/22/2011, at 12.          The court proceeded immediately to sentencing,




____________________________________________


3
  Pennsylvania’s Megan’s Law expired on December 20, 2012, and was
replaced by the Sexual Offenders Registration and Notification Act (SORNA),
42 Pa.C.S. §§ 9799.10-9799.41. Section 9799.24 replaced Section 9795.4
with regard to an order for an SVP assessment.




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imposing an aggregate term of 15 to 30 years’ imprisonment. 4            No direct

appeal was filed.

       On October 29, 2012, Miller filed a pro se PCRA petition raising, inter

alia, numerous allegations of trial counsel’s ineffectiveness.       Counsel was

appointed, and filed an amended petition on March 1, 2013, asserting one

issue, trial counsel’s ineffectiveness for failing to file a direct appeal. On July

10, 2013, PCRA counsel filed a second amended petition, raising another

allegation of trial counsel’s ineffectiveness, that is, failing to cross-examine

the Commonwealth’s witness, Dr. Van Brakel, regarding his notation on an

evaluation form which listed the alleged perpetrator of the sexual abuse as

“Is[h]mael” and the address of where the incident occurred as Ishmael’s

residence. The PCRA court conducted an evidentiary hearing on September

17, 2013, which was continued until November 12, 2013. At the conclusion

of the second hearing, the PCRA court entered an order denying Miller relief.

This timely appeal followed.5
____________________________________________


4
  Specifically, the court imposed a mandatory minimum sentence, pursuant
to 42 Pa.C.S. § 9718(a)(1), of 10 to 20 years’ imprisonment for Miller’s
conviction of IDSI, a term of 60 to 120 months for aggravated indecent
assault, a term of 12 to 36 months for indecent assault, and a term of 12 to
36 months for corruption of minors. The trial court ordered the sentences
for aggravated indecent assault, indecent assault and corruption of minors to
run concurrently to each other, but consecutively to the IDSI sentence.
5
   On December 13, 2013, the PCRA court ordered Miller to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Both PCRA counsel and Miller, himself, complied with the court’s directive,
filing a counseled concise statement on January 2, 2014, and a pro se
(Footnote Continued Next Page)


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      Prior to addressing the merits of this appeal, we must first consider

whether counsel has fulfilled the procedural requirements for withdrawal as

outlined in Turner/Finley:

      Counsel petitioning to withdraw from PCRA representation must
      … review the case zealously. Turner/Finley counsel must then
      submit a “no-merit” letter to the trial court, or brief on appeal to
      this Court, detailing the nature and extent of counsel’s diligent
      review of the case, listing the issues which petitioner wants to
      have reviewed, explaining why and how those issues lack merit,
      and requesting permission to withdraw. Counsel must also send
      to the petitioner: (1) a copy of the “no merit” letter/brief; (2) a
      copy of counsel’s petition to withdraw; and (3) a statement
      advising petitioner of the right to proceed pro se or by new
      counsel.

                                           ***

      [W]here counsel submits a petition and no-merit letter that …
      satisfy the technical demands of Turner/Finley, the court —
      trial court or this Court — must then conduct its own review of
      the merits of the case. If the court agrees with counsel that the
      claims are without merit, the court will permit counsel to
      withdraw and deny relief.


Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citation

omitted). See also Commonwealth v. Freeland, 106 A.3d 768, 774-775

(Pa. Super. 2014).

      Here,    counsel       has   complied      with   the   procedural   aspects   of

Turner/Finley by filing a “no-merit” letter, providing Miller with a copy of

                       _______________________
(Footnote Continued)

concise statement on January 3, 2014. On January 31, 2014, new counsel
was appointed to represent Miller in this appeal.




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that letter and the petition to withdraw, and advising Miller of his right to

proceed pro se or with private counsel.                      See Motion to Withdraw,

3/28/2014; “No-Merit” Letter, filed 3/28/2014. Miller filed a timely pro se

response to the “no-merit” letter on July 2, 2014.6 Therefore, we proceed to

a consideration of whether the PCRA court erred in dismissing the petition.

See Doty, supra.

       When reviewing an order dismissing a PCRA petition, we must

determine whether the PCRA court’s findings of fact are supported by the

record,     and   whether      its    legal    conclusions        are   free    from     error.

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “Great deference

is granted to the findings of the PCRA court, and these findings will not be

disturbed    unless     they    have     no     support      in   the   certified      record.”

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citation

omitted).

       Where,     as   here,    the    claims       raised   on    appeal      challenge   the

effectiveness of counsel, our review is well-settled:

____________________________________________


6
  In his “no-merit” letter, counsel advised Miller that he could proceed pro se
or with retained counsel “[i]f the Superior Court grants” the request to
withdraw. “No-Merit” Letter, 3/28/2014, at 4. On April 11, 2014, this Court
issued a per curiam Order, specifically advising Miller that “he may file a pro
se response to counsel’s ‘no-merit’ letter or hire private counsel to do so,
within thirty (30) days of the date” the order was filed. Order, 4/11/2014.
After receiving a 60-day extension on May 20, 2014, Miller filed a timely
response on July 2, 2014.




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      We begin our analysis of ineffectiveness claims with the
      presumption that counsel is effective.          To prevail on his
      ineffectiveness claims, Appellant must plead and prove, by a
      preponderance of the evidence, three elements: (1) the
      underlying legal claim has arguable merit; (2) counsel had no
      reasonable basis for his action or inaction; and (3) Appellant
      suffered prejudice because of counsel’s action or inaction. With
      regard to the second, i.e., the “reasonable basis” prong, 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.”       To establish the third, i.e., the
      prejudice prong, Appellant must show that there is a reasonable
      probability that the outcome of the proceedings would have been
      different but for counsel’s action or inaction.

Commonwealth v. Spotz, 18 A.3d 244, 259-260 (Pa. 2011) (internal

citations omitted). “Failure to establish any prong of the test will defeat an

ineffectiveness claim.”   Commonwealth v. Keaton, 45 A.3d 1050, 1061

(Pa. 2012) (citations omitted).

      The only issue addressed in the “no-merit” letter asserts trial counsel’s

ineffectiveness for failing to cross-examine Dr. Van Brakel regarding a

notation on his evaluation form.     On the form, Dr. Van Brakel listed the

“Name    of Alleged Perpetrator”     as “Is[h]mael”   and   the   “Address of

Occurrence” as Ishmael’s address.       Second Amended Petition for Post

Conviction Relief, 7/10/2013, at Exhibit A (“Child Physical/Sexual Abuse

Evaluation Form, dated 9/3/2010). Miller argues counsel’s failure to cross-

examine Dr. Van Brakel about this blatant inconsistency constituted

ineffective assistance of counsel.

      After a review of the certified record, including the transcripts of both

PCRA hearings, the parties’ filings, and the relevant case law, we conclude


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the PCRA court thoroughly addresses and properly disposes of this claim in

its opinion.   See PCRA Court Opinion, 1/31/2014, at 5-8 (finding trial

counsel was not ineffective because (1) counsel had a “reasonable strategic

basis for not cross-examining Dr. Van Brakel regarding the clerical error”

since Ishmael was never a suspect, and Miller’s defense was that he was

“enticed” by the victim; and (2) Miller was not prejudiced by counsel’s

actions because Dr. Van Brakel testified (a) the victim “did not provide him

with the information that made its way on the form,” (b) “[h]e did not recall

where he received that information;” (c) “he simply miscopied it from his

own notes;” and (d) he “made a correction in the original chart, but not until

after copies had already been circulated to counsel.”). Accordingly, we rest

upon its well-reasoned basis.

      In his response to PCRA counsel’s “no-merit” letter, Miller raises four

additional claims for our review. First, he asserts the November 12, 2013,

PCRA hearing “was meaningless as to aid [him] in developing his claims”

because Dr. Van Brakel was permitted to testify over the telephone.

Appellant’s Response to Counsel[’s] Petition to Withdraw Pursuant to This

Court’s April 14, 2014 Order, 7/2/2014, at unnumbered 1. Miller provides

no explanation, aside from his bald allegation, of how he was prejudiced by

Dr. Van Brakel’s remote testimony.        Indeed, PCRA counsel had a full

opportunity to cross-examine Dr. Van Brakel during the hearing. See N.T.,

11/12/2013, at 13-18. Therefore, no relief is warranted on this claim.




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      Miller also asserts the ineffectiveness of PCRA counsel for failing to (1)

contact and/or interview a private investigator (PI) Miller had hired after his

trial; (2) obtain “the video tapes” from his apartment complex; and (3)

assert trial counsel’s ineffectiveness for failing to call and/or interview three

witnesses, and for failing to have his personal computer and DVD’s/CD’s

“forensically diagnosed.”      Appellant’s Response to Counsel[’s] Petition to

Withdraw Pursuant to This Court’s April 14, 2014 Order, 7/2/2014, at

unnumbered 2-3.      Preliminarily, we note Miller does not even attempt to

demonstrate    how     these   allegations   meet   the   three-prong   test   for

ineffectiveness claims. For this reason alone, these issues may be deemed

waived.   See Commonwealth v. Spotz, 896 A.2d 1191, 1250 (2006)

(boilerplate, underdeveloped claims of ineffectiveness waives claims for

review; “Claims of ineffective assistance of counsel are not self-proving[.]”).

Nevertheless, even if we were to consider Miller’s claims, we would conclude

that Miller has failed to demonstrate how he was prejudiced by prior

counsel’s omissions.

      First, Miller asserts PCRA counsel’s ineffectiveness for failing to

interview the PI he hired after his trial.    Miller claims the PI “would have

given his findings that Is[h]mael had outstanding-warrants in New York

(charges unknown), [and] that the alleged victim was in Kids Peace, a

delinquent child’s home, for victimizing 6-year-olds when the victim was ten




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years old.”7      Appellant’s Response to Counsel[’s] Petition to Withdraw

Pursuant to This Court’s April 14, 2014 Order, 7/2/2014, at unnumbered 2.

However, even if the PI’s findings were correct, the fact that Ishmael may

have     had   outstanding      warrants       for   unknown    charges   in   another

jurisdiction, or that the victim may have victimized a younger child in the

past would not have been admissible at trial.                  See Pa.R.E. 404(b)(1)

(“Evidence of a crime, wrong, or other act is not admissible to prove a

person's character in order to show that on a particular occasion the person

acted in accordance with the character.”); Pa.R.E. 608(b)(1) (“[T]he

character of a witness for truthfulness may not be attacked … by cross-

examination or extrinsic evidence concerning specific instances of the

witness’ conduct[.]”); 42 Pa.C.S. § 3104(a) (“Evidence of specific instances

of the alleged victim’s past sexual conduct … shall not be admissible in

prosecutions” for sexual offenses).            Accordingly, Miller cannot demonstrate

he was prejudiced by counsel’s omission and no relief is warranted on this

claim.

        Miller also contends PCRA counsel should have obtained the “video

tapes from [his] high-rise” because “these tapes would prove that [he is]

innocent     beyond    any    reasonable        doubt.”    Appellant’s    Response   to

Counsel[’s] Petition to Withdraw Pursuant to This Court’s April 14, 2014

____________________________________________


7
    We note that Ishmael testified for the Commonwealth at Miller’s trial.




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Order, 7/2/2014, at unnumbered 3. However, Miller does not explain what

he expected to see on the videotapes, and how that information would help

prove his innocence.8 Thus, again, no relief is warranted.

       With respect to his allegations of trial counsel’s ineffectiveness, Miller

also fails to demonstrate prejudice.           While Miller contends three purported

witnesses “accompanied the complainant to the accused (sic) apartment

during one of the alleged incidents[,]”9 he fails to state what their proposed

testimony would be and how it would have supported his defense at trial.

See Commonwealth v. Pander, 100 A.3d 626, 639 (Pa. Super. 2014) (en

banc) (In order to demonstrate ineffectiveness for failing to interview or

present a witness, appellant must show prejudice), appeal denied, 2015 WL

669844 (Pa. February 4, 2015).

       Further, with regard to the computer, DVD’s and CD’s seized from his

apartment, Miller ignores the testimony of Detective Murray that the

Commonwealth did conduct “a full examination on the computer and discs,

and there was nothing found.”           N.T., 8/10/2011, at 21.      Miller does not

explain what exculpatory evidence he believed would be found on the

computer or discs had trial counsel sought to have the items “forensically
____________________________________________


8
  We note that the sexual assault occurred inside Miller’s apartment, not
in the hallway or lobby of his “high rise.”
9
 Appellant’s Response to Counsel[’s] Petition to Withdraw Pursuant to This
Court’s April 14, 2014 Order, 7/2/2014, at unnumbered 3.




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diagnosed.”      Appellant’s Response to Counsel[’s] Petition to Withdraw

Pursuant to This Court’s April 14, 2014 Order, 7/2/2014, at unnumbered 3.

Accordingly, these claims, too, are meritless.

       As mandated by law, we have independently reviewed the record and

agree with counsel that the current appeal has no merit.10            See Doty,

supra, 48 A.3d at 457. Therefore, we affirm the order dismissing Miller’s

petition for PCRA relief, and grant counsel’s petition to withdraw.

       Order affirmed. Application for leave to withdraw as counsel granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/1/2015
____________________________________________


10
   We note the 10-year mandatory minimum sentencing provision in 42
Pa.C.S. § 9718(a)(1), imposed for Miller’s conviction of IDSI, has been found
to be unconstitutional in light of the United States Supreme Court’s decision
in Alleyne v. United States, 133 S.Ct. 2151 (U.S. 2013).                   See
Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super. 2014). However, an
en banc panel of this Court in Commonwealth v. Newman, 99 A.3d 86
(Pa. Super. 2014) (en banc), determined that the Alleyne decision had only
limited retroactivity, that is, it applied only to criminal cases that were still
pending on direct review at the time it was filed. Id. at 90. In the present
case, Miller’s judgment of sentence became final on December 22, 2011, 30
days after he was sentenced and he failed to file a direct appeal. Because
Alleyne was not decided until June 17, 2013, it does not provide Miller with
the opportunity for relief.




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