J-S49003-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 WALTER SAWYER                            :
                                          :
                    Appellant             :   No. 433 MDA 2018

              Appeal from the PCRA Order February 16, 2018
   In the Court of Common Pleas of Dauphin County Criminal Division at
                     No(s): CP-22-CR-0004317-2013


BEFORE:    SHOGAN, J., STABILE, J., and STEVENS*, P.J.E.

MEMORANDUM BY SHOGAN, J.:                        FILED OCTOBER 16, 2018

      Appellant, Walter Sawyer, appeals from the order denying his petition

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

9546. We affirm.

      This Court previously summarized the factual and procedural history of

this case as follows:

      On December 15, 2012, a sixteen-year-old girl, B.B., was
      traveling by bus from Indianapolis to Hazleton. During a stop in
      Harrisburg, B.B. left the bus station to smoke a cigarette.
      [Appellant] approached B.B. and started a conversation. B.B. told
      [Appellant] that she was hungry, and [Appellant] offered to drive
      B.B. to a gas station so that she could buy food. B.B. accepted
      the offer and entered [Appellant’s] vehicle.

            [Appellant] subsequently drove B.B. to a secluded parking
      lot under a nearby bridge. [Appellant] told B.B. to have sex with
      him, or else he would not drive her back to the station in time for
      her to catch the bus to Hazleton. As [Appellant] began to pull
      down B.B.’s pants, State Capitol Police Sergeant Michael Schmidt,
      who was on routine patrol at the time, arrived at the scene.
____________________________________
* Former Justice specially assigned to the Superior Court.
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     [Appellant] provided the birth certificate and Social Security card
     of another individual as his own identification.

           A jury convicted [Appellant] of kidnapping, unlawful contact
     with a minor, and false identification. Prior to sentencing, the
     Commonwealth provided notice of its intent to seek a mandatory
     minimum sentence under the “three strikes” provision of 42
     Pa.C.S.A. § 9714(a)(2). Thereafter, the trial court imposed an
     aggregate sentence of 25 to 50 years’ imprisonment, consisting
     of 25 to 50 years’ imprisonment for kidnapping, 5 to 10 years’
     concurrent imprisonment for unlawful contact with a minor, and 1
     to 2 years’ concurrent imprisonment for false identification. The
     court imposed the kidnapping conviction pursuant to
     § 9714(a)(2).

           [Appellant] timely filed counseled post-sentence motions,
     arguing that the court imposed an illegal sentence above the
     statutory maximum for the false identification conviction.
     [Appellant] also claimed the verdict was against the weight of the
     evidence. Before the court ruled on the counseled post-sentence
     motions, [Appellant] filed a request to proceed pro se. The court
     conducted a hearing, pursuant to Commonwealth v. Grazier,
     713 A.2d 81 (Pa. 1998).         Following the hearing, the court
     determined that [Appellant’s] waiver of counsel was knowing,
     voluntary, and intelligent, and it permitted trial counsel to
     withdraw. On the same day of the Grazier hearing, the court
     issued an amended sentencing order, modifying [Appellant’s]
     sentence for the false identification conviction to 6 to 12 months’
     imprisonment. The court did not alter [Appellant’s] remaining
     sentences, and it did not rule on the weight claim from the
     counseled post-sentence motions.

           Thereafter, [Appellant] filed a pro se amendment to his
     counseled post-sentence motions. In the pro se amendment,
     [Appellant] included claims regarding subject matter jurisdiction,
     due process violations, defects in the pretrial proceedings and
     charging instruments, Rule 600, the legality of the mandatory
     minimum sentence, and the sufficiency of the evidence supporting
     the convictions. The court subsequently granted [Appellant’s]
     post-sentence motions in part. Specifically, the court determined
     that [Appellant] had not committed two prior crimes of violence
     to support the imposition of a “third strike” sentence under
     § 9714(a)(2); instead, [Appellant] had committed only one prior
     crime of violence. Thus, the court vacated [Appellant’s] sentence

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     for kidnapping and resentenced him to a mandatory term of 120
     months’ imprisonment, pursuant to § 9714(a)(1).1 The court did
     not alter [Appellant’s] remaining sentences, and it denied relief on
     all other claims raised in the counseled and pro se post-sentence
     motions.

           1  In the trial court’s opinion and order granting the
           post-sentence motions in part, the court initially
           states that it had resentenced [Appellant] “pursuant
           to § 9714(a) to a term of 120-240 months of
           incarceration in a State Correctional Institute at Count
           1.” (Trial Court Memorandum Opinion and Order, filed
           August 6, 2014, at 13) (emphasis added).
           Nevertheless, the court later states that it
           resentenced [Appellant] “to a term of 120-140
           months of incarceration in a State Correctional
           Institute at Count 1.” Id., at 14 (emphasis added).
           Further, the relevant docket entry states: “The court
           ... resentences [Appellant] to a term of 120-140
           months of incarceration in a State Correctional
           Institute at Count 1.”       (Criminal Docket Entries,
           printed 1/13/16, at 10) (emphasis added).

           [Appellant] subsequently filed a timely direct appeal. In his
     appeal, [Appellant] included claims regarding weight of the
     evidence, subject matter jurisdiction, due process violations, Rule
     600, defects in the pretrial proceedings and charging instruments,
     and the legality of the mandatory minimum sentence imposed
     pursuant to § 9714(a)(1). This Court, in its memorandum
     decision at Commonwealth v. Sawyer, [121 A.3d 1138,] 1530
     MDA 2014, at 13-14 (Pa. Super. filed April 22, 2015) (unpublished
     memorandum), affirmed the convictions, but vacated the
     judgment of sentence based on the fact that it was illegal, since
     the maximum sentence of 140 months did not equal twice the
     minimum sentence of 120 months, and remanded for
     resentencing.     [Appellant] subsequently filed a motion for
     reconsideration, which this Court denied. Thereafter, pursuant to
     this Court’s directive, the trial court resentenced [Appellant] to
     120 to 240 months’ imprisonment.

Commonwealth v. Sawyer, 154 A.3d 861, 1981 MDA 2015 (Pa. Super. filed

July 19, 2016 (unpublished memorandum at *1–2).


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        Appellant filed a direct appeal “following remand for the limited purpose

of correcting an illegal sentence . . . .” Sawyer, 1981 MDA 2015 (unpublished

memorandum at *2). We determined that none of Appellant’s issues merited

relief, and we affirmed the judgment of sentence. Id. Our Supreme Court

denied Appellant’s petition for allowance of appeal.         Commonwealth v.

Sawyer, 164 A.3d 477, 607 MAL 2016 (Pa. filed December 28, 2016).

        Appellant filed the instant, timely, pro se PCRA petition on January 25,

2017.    The PCRA court appointed counsel, who filed a supplemental PCRA

petition on April 18, 2017. The PCRA court held an evidentiary hearing on

July 25, 2017. On January 18, 2018, the PCRA court entered notice of intent

to dismiss the petition.     On February 16, 2018, the PCRA court dismissed

Appellant’s PCRA petition. Appellant filed a timely notice of appeal to this

Court on March 7, 2018. Both Appellant and the PCRA court complied with

Pa.R.A.P. 1925.

        On appeal, Appellant raises two issues of trial counsel’s ineffective

assistance, arguing counsel permitted the jury to believe the age of consent

was eighteen years old and failed to object to jury instructions to that effect.

Appellant also assails the trial court’s jury instructions, as follows:

        A. Whether the trial Court erred by determining that trial counsel
        was not ineffective, and that no prejudice resulted from the
        repeated references to the age of consent being 18, and the failure
        of trial counsel to seek instructions and/or clarification concerning
        the age of consent during the trial, when the admitted case
        strategy defending the case was that of consent?




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      B. Whether the trial Court erred in determining that trial counsel
      was not ineffective for failing to object to the erroneous jury
      instructions which made the threshold for conviction easier?

      C. Whether the trial Court erred when it determined that the jury
      instructions provided were the standard jury instructions and thus
      no objection by trial counsel was necessary?

      D. Whether the trial Court erred when it determined that the
      cumulative errors of counsel did not prejudice the Appellant?

      E. Whether the trial court erred in failing to provide the correct
      analysis concerning erroneous jury instructions?

Appellant’s Brief at 3.

      When reviewing the propriety of an order denying PCRA relief, this Court

is limited to determining whether the evidence of record supports the

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

Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016). The PCRA

court’s findings will not be disturbed unless there is no support for them in the

certified record. Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa. Super.

2014). Moreover, we consider the record in the light most favorable to the

prevailing party at the PCRA level.    Commonwealth v. Mason, 130 A.3d

601, 617 (Pa. 2015); Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.

2014) (en banc). Where there are allegations of ineffectiveness of counsel,

as here, the claims alleged must have “so undermined the truth-determining

process that no reliable adjudication of guilt or innocence could have taken

place.”   Commonwealth v. Cousar, 154 A.3d 287, 296 (Pa. 2017); 42

Pa.C.S. § 9543(a)(2).     In addition, a PCRA petitioner must show that the


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claims of error have not been previously waived. 42 Pa.C.S. § 9543(a)(3).

Commonwealth v. Blakeney, 108 A.3d 739, 749 (Pa. 2014). “An issue has

been waived ‘if the petitioner could have raised it but failed to do so before

trial, at trial, on appeal or in a prior state post conviction proceeding.’” 42

Pa.C.S. § 9544(b); Blakeney, 108 A.3d at 749. The PCRA court’s findings

will not be disturbed unless there is no support for them in the certified record.

Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa. Super. 2014).

      We address Appellant’s issues out of order. Regarding issues C and E

assailing the jury instructions, the issues have been waived. Under the PCRA,

an issue is waived “if the petitioner could have raised it but failed to do so

before trial, at trial, during unitary review, on appeal or in a prior state

postconviction proceeding.” 42 Pa.C.S. § 9544(b). Appellant’s brief makes

clear that issues C and E are not raised in the context of ineffective assistance

of counsel. Appellant’s Brief at 28–29, 30–38. As Appellant could have raised

the propriety of the trial court’s jury instructions in his direct appeal, but he

failed to do so, the claims are waived. Commonwealth v. Lambert, 797

A.2d 232, 240 (Pa. 2001) (PCRA petitioner’s issues that could have been

raised on direct appeal but were not, are waived under 42 Pa.C.S. § 9544(b));

42 Pa.C.S. § 9543(a)(3) (instructing that, to be entitled to PCRA relief, an

appellant must establish, inter alia, that his claims have not been waived).

      Appellant’s issues A and B aver that trial counsel provided ineffective

assistance by permitting the jury to believe the age of consent was eighteen


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years old and by failing to object to jury instructions to that effect. When

considering an allegation of ineffective assistance of counsel, we presume that

counsel provided effective representation unless the PCRA petitioner pleads

and proves that: (1) the underlying claim is of arguable merit; (2) counsel

had no reasonable basis for his action or inaction; and (3) petitioner was

prejudiced by counsel’s action or omission. Commonwealth v. Johnson,

179 A.3d 1105, 1114 (Pa. Super. 2018) (citing Commonwealth v. Pierce,

527 A.2d 973, 975–976 (Pa. 1987)). “An [ineffective-assistance-of-counsel]

claim will fail if the petitioner’s evidence fails to meet any one of the three

prongs.”   Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013).

Because courts must presume that counsel was effective, the burden of

proving ineffectiveness rests with the petitioner.        Commonwealth v.

Montalvo, 114 A.3d 401, 410 (Pa. 2015). Moreover:

      Regarding the prejudice prong, a petitioner must demonstrate
      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. Dennis, 597 Pa. 159, 950 A.2d
      945, 954 (2008).       Counsel is presumed to be effective;
      accordingly, to succeed on a claim of ineffectiveness the petitioner
      must advance sufficient evidence to overcome this presumption.
      [Commonwealth v.] Sepulveda, 55 A.3d [1108] at 1117 [(Pa.
      2012)].

            We need not analyze the prongs of an ineffectiveness claim
      in any particular order. Rather, we may discuss first any prong
      that an appellant cannot satisfy under the prevailing law and the
      applicable facts and circumstances of the case. Id. at 1117–18;
      Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 701
      (1998). Finally, counsel cannot be deemed ineffective for failing
      to raise a meritless claim. Commonwealth v. Jones, 590 Pa.
      202, 912 A.2d 268, 278 (2006).

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Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016).

      The PCRA court summarized the PCRA evidentiary hearing, wherein trial

counsel testified, as follows:

      The hearing was held July 25, 2017, to address allegations of
      ineffective assistance of counsel. [Defense Counsel] recalled the
      defense in the case was that the victim consented to the
      encounter, but that Appellant also told her that B.B. (the victim)
      said she was of age. (Notes of Testimony, PCRA Evidentiary
      Hearing 7/25/17 p. 4-5, 21).

            [PCRA Counsel] alleged ineffective assistance of counsel by
      allowing the jury to hear during trial that the age of consent for
      sex was 18, by failing to object to the inaccurate jury instructions
      (which included multiple incorrect instructions concerning the age
      of consent), and in failing to request that the court properly
      instruct the jury on the crimes of indecent assault, unlawful
      contact and kidnapping.

            [Defense Counsel] reviewed the transcript during her
      testimony. She conceded that she did say “as long as she’s legal,
      legal meaning 18[] at one point. She testified that the age of 18
      was not related to the attempted indecent assault charge, but
      related to the felony charges as being under 18 increased the
      grading of the offenses to felonies. Appellant’s subjective belief
      regarding her age would not have been a defense to any charges.
      [Defense Counsel] admitted she could not recall why she did not
      object to jury instructions which used 18 in the context of indecent
      assault when the [c]ourt was instructing the jury on unlawful
      contact with a minor.

Pa.R.A.P. 1925(a) Opinion, 5/2/18, at 4–5 (footnote and internal citations to

the record omitted).

      The PCRA court concluded that even if there was jury confusion

regarding the age of consent, and thus, arguable merit to Appellant’s claims,

prejudice could not be shown. Pa.R.A.P. 1925(a) Opinion, 5/2/18, at 6. The


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PCRA court acknowledged that it utilized the standard jury instructions and

referenced not the age of consent, but the age of minority. Id. at 5. The

PCRA court stated:

           The crux of [PCRA Counsel’s] argument is that because of
     confusion about the age of consent, it is possible that the jury
     could have found Appellant not guilty on kidnapping and unlawful
     contact with a minor if they had known the age of consent for
     sexual contact is 16 in Pennsylvania and believed that B.B.
     consented. However, B.B. testified at trial that she did not
     consent. [Defense counsel] admitted at the PCRA hearing that
     the defense was consent; thus if there was jury confusion
     regarding the age of consent, it did not cause prejudice. However,
     the jury asked whether being guilty of unlawful contact with a
     minor automatically meant guilty of criminal attempt indecent
     assault because she was a minor. The [c]ourt re-read instructions
     and the jury found him not guilty of criminal attempt indecent
     assault indicating that the jury did understand the difference
     between the issue of being a minor and the issue of consent. No
     prejudice resulted from the passing references to 18 being “legal”
     nor was there reason for trial counsel to challenge standard jury
     instructions.

Pa.R.A.P. 1925(a) Opinion, 5/2/18, at 6.

     Initially,   we   are   compelled    to   observe   that   Appellant’s   vague

presentation of issues A and B impedes our ability to address his claims.

Regarding issue A, Appellant asserts that the jury was never informed of the

correct legal age of consent in Pennsylvania.       Appellant’s Brief at 15.    He

suggests that the jury:

     repeatedly either heard or was instructed that because the
     complaining witness was 16 at the time of the episode, unless the
     Appellant reasonably believed that the complaining witness was
     over 18, he was guilty of criminal conduct. Thus, the repeated
     failure to correct this false legal narrative allowed the Appellant to
     be convicted of crimes for lawful behavior.


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Id. at 16. However, Appellant does not cite any law regarding the age of

consent, he cites no case law in support of his claim, and he does not explain

the nexus between his assertion of error and the law. Id. at 15–22.

      Likewise, in issue B, Appellant fails to cite to any case law in support of

his claim that the PCRA Court erred in determining that defense counsel was

not ineffective for failing to object to “erroneous” jury instructions. Appellant’s

Brief at 22–28. Appellant’s first two arguments in his brief are vague and

conclusory, and the claims are undeveloped.         Appellant’s Brief at 15–28.

Appellant wholly fails to refer to relevant and controlling case law. Therefore,

we find issues A and B waived. See Commonwealth v. Woodard, 129 A.3d

480, 509 (Pa. 2015) (quoting Wirth v. Commonwealth, 95 A.3d 822, 837

(Pa. 2013), which stated that “where an appellate brief fails to . . . develop

an issue in any other meaningful fashion capable of review, that claim is

waived.   It is not the obligation of an appellate court to formulate [the]

appellant’s arguments for him.”) (internal quotations omitted)).

      If not waived, however, we conclude, as did the PCRA court, that even

if Appellant’s claims of ineffective assistance have arguable merit, Appellant

cannot prove the prejudice prong of the relevant ineffectiveness test. The

victim, sixteen-year-old B.B., tearfully testified that during a Greyhound Bus

layover in Harrisburg, while on her way from her sister’s home in Indianapolis

to B.B.’s home in Hazelton, Appellant drove B.B. to a secluded location “under

a bridge” and proceeded to force her to have sexual intercourse. N.T., 4/21–


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22/14, at 69–79.    As Appellant unbuttoned and pulled down B.B.’s pants,

Sergeant Michael C. Schmidt of the State Capitol Police arrived while he was

completing patrol duty around the State Street Bridge. Id. at 21–23. B.B.

told Sergeant Schmidt that Appellant had forced her to engage in sex; the

officer described B.B.’s demeanor as crying, very upset, and scared. Id. at

34–35.    B.B. herself testified that she was “afraid, frantic, crying, and

hysterical.” Id. at 83. This Court has stated, to satisfy the prejudice prong

of the ineffective-assistance-of-counsel test:

      it must be demonstrated that, absent counsel’s conduct, there is
      a reasonable probability that the outcome of the proceedings
      would have been different. Commonwealth v. Charleston, 94
      A.3d 1012, 1019 (Pa. Super. 2014).          If it has not been
      demonstrated that counsel’s act or omission adversely affected
      the outcome of the proceedings, the claim may be dismissed on
      that basis alone, and the court need not first decide whether the
      first and second prongs have been met.

Commonwealth v. Perez, 103 A.3d 344, 348 (Pa. Super. 2014).

      Thus, we reject Appellant’s claims of ineffective assistance of counsel

because there is no reasonable probability that the outcome of the

proceedings would have been different. There was no testimony that B.B. was

engaging in consensual sex; thus it strains credulity that the jury could have

concluded her encounter with Appellant was consensual. Appellant has not

established that but-for the alleged error of counsel, there is a reasonable

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

This is especially true when considered in the context of the ample and credible

Commonwealth evidence in support of Appellant’s conviction.          Therefore,

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Appellant cannot establish the necessary prejudice from trial counsel’s failure

to act.

      Finally, we reject Appellant’s issue D, i.e., that the PCRA court erred

when it determined that “cumulative errors of counsel” did not prejudice

Appellant. Appellant’s Brief at 29. First, we have not found cumulative errors.

Second, we have stated that no number of failed ineffectiveness-of-counsel

claims may collectively warrant relief if they do not do so individually.

Commonwealth v. Elliott, 80 A.3d 415, 450 (Pa. 2013).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/16/2018




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