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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                           Appellee

                      v.

JOHN W. LYNN,

                           Appellant                  No. 641 EDA 2014


             Appeal from the PCRA Order entered February 6, 2014,
                 in the Court of Common Pleas of Wayne County,
              Criminal Division, at No(s): CP-64-CR-0000375-2010.


BEFORE: ALLEN, OLSON, and OTT, JJ.

MEMORANDUM BY ALLEN, J.:                          FILED OCTOBER 08, 2014

      John W. Lynn (“Appellant”) appeals pro se from the order denying his

petition for relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

sections 9541-46. We affirm.

      This    Court   previously   summarized   the   factual   and   procedural

background as follows:

            Appellant’s wife found a picture of two naked bodies
         engaged in sexual intercourse on her computer. [She]
         contacted the police believing that the two bodies in the
         picture were those of her minor daughter (“Complainant”)
         and her husband, Complainant’s stepfather. [Complainant
         was born in November of 1993.] The police questioned
         Complainant, during which she disclosed that she and
         Appellant had been engaged in a three-year-long sexual
         relationship, and that she had placed the picture on her
         mother’s computer knowing her mother would find it.

            Appellant was arrested and charged with, inter alia,
         Corruption of a Minor, Statutory Sexual Assault, and
         Involuntary Deviate Sexual Intercourse. Prior to trial,
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        Complainant recanted her initial statements to the police,
        and later, she recanted her recantation. As a result, the
        Commonwealth submitted a memorandum informing the
        trial court that the Commonwealth anticipated that
        Complainant may deny her allegations against Appellant at
        trial and that it intended to impeach Complainant’s
        testimony if she contradicted her initial statements to
        police. At trial, Complainant denied the sexual relations
        with Appellant, saying she fabricated the allegations. The
        Commonwealth proceeded to impeach Complainant,
        confronting her with prior statements wherein she stated
        she and Appellant had been engaged in sexual relations,
        including both vaginal and anal intercourse.

Commonwealth v. Lynn, 60 A.3d 555 (Pa. Super. 2012), unpublished

memorandum at 1-2 (footnote omitted).         As part of its case against

Appellant, the Commonwealth also introduced forensic analysis of items

seized from the Complainant’s bedroom, which matched Appellant’s DNA.

     On July 20, 2011, a jury convicted Appellant of the above charges. On

November 23, 2011, the trial court sentenced him to an aggregate sentence

of ten to twenty years of imprisonment. Thereafter, the trial court denied

Appellant’s post-sentence motion.    Appellant filed a timely appeal to this

Court. On August 2, 2012, we affirmed Appellant’s judgment of sentence.

Lynn, supra. On January 18, 2013, our Supreme Court denied Appellant’s

petition for allowance of appeal.   Commonwealth v. Lynn, 62 A.3d 379

(Pa. 2013).

     Appellant filed a pro se PCRA petition on July 15, 2013, and the PCRA

court appointed counsel.   On October 17, 2013, PCRA counsel filed a “no-

merit” letter and motion to withdraw pursuant to Commonwealth v.

Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550

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A.2d 213 (Pa. Super. 1988) (en banc). On January 3, 2014, the PCRA court

issued Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s petition

without a hearing. That same day, the PCRA court granted PCRA counsel’s

motion to withdraw.     On January 14, 2014, Appellant filed a response in

which he sought to amend his PCRA petition to include a claim that PCRA

counsel was ineffective in his assessment of Appellant’s claims.     By order

entered February 6, 2014, the PCRA court dismissed Appellant’s PCRA

petition.    In so doing, the PCRA court specifically noted that, although

Appellant preserved his claim of PCRA counsel’s ineffectiveness, this

allegation did “not alter the fact that the PCRA claims are frivolous and there

are no genuine issues of fact in dispute.” Order, 2/6/14, at n.1. This timely

appeal followed.    Both Appellant and the PCRA court have complied with

Pa.R.A.P. 1925.

      Appellant raises the following issues:

            I. IS [PCRA] COUNSEL INEFFECTIVE IN FILING A NO
            MERIT LETTER WHEN THERE ARE ISSUES OF EX PARTE
            COMMUNICATION BETWEEN AN ARRESTING OFFICER AND
            A SITTING JURY MEMBER?

            II. IS PCRA COUNSEL INEFFECTIVE IN HIS ASSESSMENT
            WHEN PCRA [COUNSEL] STATED, INEFFECTIVENESS OF
            TRIAL COUNSEL SHOULD HAVE BEEN RAISED DURING
            DIRECT APPEAL?

            III. IS PCRA COUNSEL INEFFECTIVE IN HIS ASSESSMENT
            OF TRIAL COUNSEL[‘S] APPROACH TO A MEDICAL EXPERT
            IN THE FIELD OF THE DEVELOPMENTAL PROCESS OF A
            CHILD?

            IV. IS PCRA COUNSEL INEFFECTIVE IN HIS ASSESSMENT
            OF TRIAL COUNSEL[‘S] HANDLING OF THE PLEA OFFER,

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         WHERE TRIAL COUNSEL STATES HE ADVISED APPELLANT
         OF THE PLEA, WHERE NO RECORD EXISTS?

         V. IS PCRA COUNSEL INEFFECTIVE IN HIS ASSESSMENT
         OF [APPELLATE COUNSEL] STATING THIS CLAIM LACKS
         MERIT, BECAUSE IT SHOULD HAVE BEEN RAISED ON
         DIRECT APPEAL?

         VI. IS PCRA COUNSEL INEFFECTIVE IN HIS ASSESSMENT
         OF     THE    CLAIMS    OF    TRIAL    COUNSEL[‘S]
         INEFFECTIVENESS?

         VII. DOES THE “NO-MERIT” LETTER REQUIREMENT OF THE
         [PCRA]   PROCESS    RENDER    THE   PCRA   [ITSELF]
         INEFFECTIVE?

         VIII. IS PCRA COUNSEL INEFFECTIVE IN HIS ASSESSMENT
         OF APPELLANT’S CASE?

Appellant’s Brief at 4-5.

      In its Pa.R.A.P. 1925(a) opinion, the PCRA court incorporated its prior

memorandum filed with its Pa.R.A.P. 907 notice. In addition, the PCRA court

concluded that PCRA counsel fully complied with the Turner/Finley

requirements, and agreed with PCRA counsel’s assessment of Appellant’s

claims, determining that Appellant’s appeal “lacks merit.”       PCRA Court

Opinion, 4/15/14, at 2.     Although some of Appellant’s claims overlap, we

address them separately.

      In reviewing the propriety of an order granting or denying PCRA relief,

an appellate court is limited to ascertaining whether the record supports the

determination of the PCRA court and whether the ruling is free of legal error.

Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). We pay great

deference to the findings of the PCRA court, “but its legal determinations are



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subject to our plenary review.” Id. Moreover, a PCRA court may decline to

hold a hearing on the petition if the PCRA court determines that petitioner’s

claim is patently frivolous and is without a trace of support in either the

record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011,

1014 (Pa. Super. 2001).     Before an evidentiary hearing will be granted, a

PCRA petitioner “must set forth an offer to prove at an appropriate hearing

sufficient facts upon which a reviewing court can conclude that trial counsel

may have, in fact, been ineffective.” Commonwealth v. Begley, 780 A.2d

605, 635 (Pa. 2001) (quoting Commonwealth v. Pettus, 424 A.2d 1332,

1335 (Pa. 1981)).

      To be eligible for post-conviction relief, a petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

resulted from one or more of the enumerated errors or defects in 42

Pa.C.S.A. section 9543(a)(2), and that the issues he raises have not been

previously litigated.   Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa.

2012).   An issue has been "previously litigated" if “the highest appellate

court in which the petitioner could have had review as a matter of right has

ruled on the merits of the issue, or if the issue has been raised and decided

in a proceeding collaterally attacking the conviction or sentence.” Koehler,

36 A.3d at 131-132; 42 Pa.C.S.A. § 9544(a)(2).       If a claim has not been

previously litigated, the petitioner must prove that the issue was not waived.

An issue will be deemed waived under the PCRA “if the petitioner could have


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raised it but failed to do so before trial, at trial, during unitary review, on

appeal, or in a prior state post[-]conviction proceeding.”    Id. at 132; 42

Pa.C.S.A. § 9544(b).

      Appellant raises claims of PCRA counsel’s ineffectiveness.     To obtain

relief under the PCRA premised on a claim that counsel was ineffective, a

petitioner must establish by a preponderance of the evidence that counsel's

ineffectiveness so undermined the truth-determining process that no reliable

adjudication of guilt or innocence could have taken place. Id. “Generally,

counsel’s performance is presumed to be constitutionally adequate, and

counsel will only be deemed ineffective upon a sufficient showing by the

petitioner.” Id. This requires the petitioner to demonstrate that: (1) the

underlying claim is of arguable merit; (2) counsel had no reasonable

strategic basis for his or her action or inaction; and (3) petitioner was

prejudiced by counsel's act or omission. Id. at 533. A finding of "prejudice"

requires the petitioner to show "that there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would

have been different." Id. In assessing a claim of ineffectiveness, when it is

clear that appellant has failed to meet the prejudice prong, the court may

dispose of the claim on that basis alone, without a determination of whether

the first two prongs have been met.     Commonwealth v. Travaglia, 661

A.2d 352, 357 (Pa. 1995). Counsel cannot be deemed ineffective for failing




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to pursue a meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132

(Pa. Super. 2003) (en banc), appeal denied, 852 A.2d 311 (Pa. 2004).

      Appellant first claims that PCRA counsel was ineffective for filing a “no-

merit” letter when Appellant raised a meritorious issue regarding an instance

during his trial where “a jury member had contact & conversation with one

of the arresting, Pennsylvania State Police, (hereinafter) (PSP) Officers, who

was   also   a   Commonwealth      witness   testifying   at   Appellant’s   trial.”

Appellant’s Brief at 8. According to Appellant, PCRA counsel was ineffective

“in attempting to interview this officer as to the nature of the contact.” Id.

Appellant avers that PCRA counsel should have amended his pro se petition,

and should have “requested a hearing to develop a record on this claim and

a new trial in this matter.” Id.

      The PCRA court found this claim of PCRA counsel’s ineffectiveness

failed because Appellant did not establish the merit of the underlying claim.

As part of its Pa.R.Crim.P. 907 notice, the PCRA court explained:

             [Appellant’s] PCRA contains a statement from Barbara
         Widmark. Ms. Widmark’s statement indicates that she saw
         a Trooper speaking with a woman who had walked out of
         the courthouse. Ms. Widmark’s statement indicates that
         [A.B., the Complainant’s] mother, informed Ms. Widmark
         that the woman was a juror on the trial. [Appellant’s]
         PCRA alleges that the arresting officer was the Trooper
         who spoke with a juror. Ms. Widmark’s sworn statement
         indicates that she saw a Trooper speak with a woman. Ms.
         Widmark’s statement does not indicate that the Trooper
         was the arresting officer. Furthermore, Ms. Widmark’s
         statement that the woman was a juror was based upon
         hearsay. No credible evidence was presented to the Court
         that a juror was speaking with the arresting officer.

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          Additionally, this issue is waived as [Appellant] failed to
          preserve this issue by objecting at trial, and [Appellant]
          has not asserted that Ms. Widmark’s statement was newly
          discovered evidence.

Opinion Order and Pa.R.A.P. Notice 907, 1/3/14, at 5-6.

      Our review of the record supports the PCRA court’s conclusion.

Initially, Appellant does not present a layered claim of ineffectiveness

regarding trial counsel’s failure to raise an objection to the alleged improper

communication. Thus, the claim is waived. See Koehler, supra. Appellant

baldly asserts “that the encounter occurred, & that thats [sic] all the law

requires, as it is so hard to prove what was discussed, if a new trial isn’t

granted, it would be a miscarriage of justice.”         Appellant’s Brief at 10.

Appellant cites no relevant case authority for his proposition. Our review of

the affidavits attached to his PCRA petition reveals, as found by the PCRA

court, that Ms. Widmark’s vague description of the encounter is supported

by hearsay, and that A.B.’s affidavit does not mention the incident. Thus,

Appellant’s first issue fails.

      Appellant next claims that PCRA counsel was ineffective “in his

assessment of, when, [sic] [he] should have raised trial [counsel’s]

ineffective assistance[.]” Id. According to Appellant, PCRA counsel erred in

stating   that   Appellant   should   have   raised   claims   of   trial   counsel’s

ineffectiveness on direct appeal rather than in a PCRA petition. While our

review indicates that PCRA counsel mistakenly made such a statement in his

Turner/Finley letter, PCRA counsel nevertheless explained why Appellant’s



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ineffectiveness claims were meritless. Appellant’s second issue entitles him

to no relief.

      In his third issue, Appellant asserts that PCRA counsel was ineffective

in his assessment of Appellant’s claim that trial counsel should have called

an expert witness. Our standard of review is well settled:

          [W]hen raising a claim of ineffectiveness for failure to call
          a potential witness at trial, our Supreme Court has
          instructed that the PCRA petitioner must establish that:
          (1) the witness existed; (2) the witness was available to
          testify for the defense; (3) counsel knew, or should have
          known, of the existence of the witness; (4) the witness
          was willing to testify for the defense; and (5) the absence
          of the testimony of the witness was so prejudicial as to
          have denied the defendant a fair trial.

Commonwealth v. Wantz, 84 A.3d 324 (Pa. Super. 2014). Within his pro

se PCRA petition, Appellant does not identify in what regard trial counsel

should have called an expert witness. In his Pa.R.A.P. 1925(b) statement,

Appellant avers that “trial counsel is not an expert in the medical field of the

development of a child as they grow and an expert in this field could have

contradicted the findings of the [Commonwealth’s] expert on this issue.”

      Our review of the record reveals that the Commonwealth did not call

an expert to testify regarding child development.      In rejecting Appellant’s

claim, the PCRA court discussed Appellant’s failure to call a rebuttal expert

to contradict the experts presented by the Commonwealth, who testified

how DNA evidence connected Appellant to the crimes charged.          Given the




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foregoing, Appellant’s claim is inadequate and therefore waived.                See

generally, In re A.B., 63 A.3d 345 (Pa. Super. 2013).

      Absent waiver, Appellant has failed to meet his burden of proof

regarding this claim.      Wantz, supra.       According to Appellant, “[trial

counsel] could have contacted any local pediatrician to review the

photograph & evaluate whether the female depicted in the photograph was

in fact that of a minor female or an adult female, and/or if it was the

[Complainant], as a pediatrician would be an expert in the developmental

stages of a minor as they grow & who also could have testified at trial as to

the picture.”   Appellant’s Brief at 12.   This assertion is lacking.      Appellant

fails to identify any “local pediatrician” or other expert who was available

and willing to testify regarding the characteristics of the female depicted in

the picture.    More importantly, in light of the abundance of DNA evidence

linking Appellant to the crimes, as well as A.B. and the Complainant’s

identification of the individuals in the picture, Appellant utterly fails to

establish prejudice. Again, Appellant’s claim is meritless.

      Appellant next claims that PCRA counsel was ineffective in his

assessment      of   Appellant’s   claim   involving   trial   counsel’s     alleged

shortcomings regarding a plea bargain offered by the Commonwealth. The

PCRA court dismissed this claim, noting that Appellant’s “bald assertion that

[trial counsel] denied a negotiated plea without discussing it with [Appellant]

has not been developed by [Appellant] in [his] PCRA.” Opinion Order and

Pa.R.A.P. 907 Notice, 1/3/14, at 8.

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      In his Turner/Finley letter, PCRA counsel explained:

            From my discussion with [trial counsel], I understand
         that [Appellant] chose to decline the District Attorney’s
         plea offer despite [trial counsel’s] strong recommendation
         that he accept it. [Appellant] cannot now claim ineffective
         counsel where he had the opportunity, and advice, to
         accept a plea bargain but instead chose to reject it.

Turner/Finley Letter, 10/17/013, at 3.           Appellant faults PCRA counsel for

this assessment, when no evidence of record exists to support trial counsel’s

statements.     Although Appellant acknowledges that he was offered a

sentence of two and one-half to five years of incarceration in return for a

guilty plea, Appellant’s Brief at 15, he otherwise fails to develop his claim.

Thus, we will not consider it further. See Commonwealth v. Tielsch, 934

A.2d 81, 93 (Pa. Super. 2007) (holding that undeveloped claims will not be

considered on appeal).

      In his next issue, Appellant asserts that appellate counsel was

ineffective   for   failing   to   properly     raise   claims   of   trial   counsel’s

ineffectiveness.    As Appellant himself noted in his second issue, claims of

ineffectiveness are generally not raised on direct appeal.            See generally

Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), and its progeny.

Thus, this issue is without merit.

      In his sixth issue, Appellant repeats his claim that PCRA counsel was

ineffective in his assessment of Appellant’s allegations of trial counsel’s

ineffectiveness. As we have already determined that the record supports the



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PCRA       court’s   conclusions    that   Appellant’s   claims   of        trial   counsel’s

ineffectiveness are meritless, we need not discuss this issue further.

          In his seventh issue, Appellant avers that the Turner/Finley process

is “itself ineffective, in that it denies [him] meaningful review.” Appellant’s

Brief at 18 (capitalization omitted).         Because Appellant did not raise this

claim in his Pa.R.A.P. 1925(b) statement, the PCRA court did not address it.

Accordingly, Appellant is raising this issue for the first time on appeal, and it

is waived. See generally, Pa.R.A.P. 302; Commonwealth v. Rolan, 964

A.2d 398 (Pa. Super. 2008).

          In his final issue, Appellant asserts that PCRA counsel was ineffective

in his assessment of the sentence imposed upon him by the trial court.

Again, Appellant failed to raise this claim in his Pa.R.A.P. 1925(b) statement,

such that it is waived. Id. To the extent that Appellant claims his sentence

is   illegal   because      the   mandatory    minimum    statute      is     “ambiguous,”

Appellant’s Brief at 20, his argument is undeveloped. Tielsch, supra.

          In sum, our review of the record supports the conclusions of PCRA

counsel and the PCRA court that Appellant’s claims of prior counsels’

ineffectiveness are without merit. Thus, the PCRA court properly dismissed

Appellant’s PCRA petition and permitted PCRA counsel to withdraw.                        We

therefore affirm the PCRA court’s order denying Appellant post-conviction

relief.


          Order affirmed.


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     Judge Ott joins the disposition.

     Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/8/2014




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