J-S03032-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

JOSE A. CRESPO

                        Appellant                  No. 1308 EDA 2015


                Appeal from the PCRA Order April 22, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0702271-2006


BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                            FILED MAY 20, 2016

      Jose Crespo appeals from an order dismissing his petition for relief

under the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq., without a

hearing. We affirm.

      In Crespo’s direct appeal, we summarized the factual history of this

case as follows:

      In September of 2005, Crespo, his girlfriend, [J.R.], and her two
      daughters [C.V. (hereinafter ‘the victim’)], 6 years old, and
      [K.C.], 2 years old, lived at 2820 North Howard Street in
      Philadelphia. [The victim] testified that Crespo would pull down
      her pants, grasp his penis with his left hand, and rub it against
      her ‘private part.’ She described Crespo’s penis as being ‘sticky
      and wet’ during these encounters. [The victim] also stated that
      Crespo would kiss her on the mouth and told her not to tell
      [J.R.] about it.

      [J.R.] testified that on the evening of June 12, 2006, she went
      into the bathroom to help [the victim] take a shower. As [the
      victim] undressed, [J.R.] noticed a white sticky substance on
      [the victim’s] underpants and asked her where it came from.
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      [The victim] first told [J.R.] that she had wet her pants.
      However, she started to cry and told [J.R.] that Crespo ‘had
      touched … [her] in a bad way.’       [J.R.] confronted Crespo,
      grabbed two knives, and chased him out of the house. She took
      [the victim] to Saint Christopher's Hospital for Children for an
      examination. [The victim] was interviewed by the police on June
      12, 2006, and June 19, 2006, respectively.

      Dr. Laura Brennan, an expert in the field of evaluation and
      treatment of children who report abuse, testified that [the
      victim’s] medical report stated that there was no injury to her
      genitalia or hymen. This finding was consistent with a fondling
      or rubbing of the victim’s genitalia. Stained underpants worn by
      [the victim] on the evening of June 12, 2006, and two other
      pairs of stained underpants that were turned over by [J.R.] to
      the police on June 19, 2006, were submitted to the Philadelphia
      Police Criminalistics Lab for analysis. Connie Li, a Criminal
      Forensic Scientist employed by the Police Criminalistics Lab,
      testified that the stained areas of the underpants were tested for
      the presence of sperm, protein, and acid phosphatase. Two pairs
      of underpants tested negative for sperm and acid phosphatase.
      One pair of underpants submitted on June 19, 2006 tested
      negative for sperm but gave an inconclusive result for the
      presence of acid phosphatase. The inconclusive result for acid
      phosphatase could have been caused by the presence of semen,
      [the victim’s] own vaginal discharge, or some other biological
      material.

Commonwealth v. Crespo, 593 EDA 2008 (Pa.Super., 12/31/09), at 1-2

(citations omitted).

      On June 13, 2006, Crespo was charged with various sexual offenses

against the victim.    Prior to trial, Crespo moved to admit evidence of an

assault against the victim by a third person, Juan Carrero. The trial court

ruled that this evidence was inadmissible.




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        A jury found Crespo guilty of indecent assault and corruption of a

minor1 but was unable to reach a verdict on the charge of rape. Crespo was

retried and acquitted on the rape charge.             On February 8, 2008, the trial

court    sentenced     Crespo    to    an      aggregate   term   of   33-108   months’

imprisonment.

        On December 31, 2009, this Court affirmed Crespo’s judgment of

sentence at 593 EDA 2008.             On July 7, 2010, our Supreme Court denied

Crespo’s petition for allowance of appeal.

        On February 25, 2011, Crespo filed a pro se PCRA petition. Through

counsel, he filed an amended petition on April 14, 2014 raising two claims of

ineffective assistance of counsel. In his first claim, Crespo alleged that while

trial counsel moved to admit evidence of Carrero’s assault, trial counsel

failed to raise the correct reason why this evidence was admissible, viz., to

show how the seven-year-old victim could have vaginal discharge on her

panties.     In his second claim, Crespo alleged that trial counsel was

ineffective for allowing the Commonwealth to present evidence that the

substance on the victim’s panties “could be” consistent with vaginal

discharge, because the risk of prejudice caused by this evidence far

outweighed its probative value.




____________________________________________


1
    18 Pa.C.S. §§ 3126(a)(2) and 6301(a), respectively.



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      On March 17, 2015, the PCRA court filed a notice of intent to dismiss

Crespo’s amended PCRA petition without a hearing. On April 22, 2015, the

court dismissed Crespo’s PCRA petition. On April 29, 2015, Crespo filed a

timely notice of appeal. On May 28, 2015, without ordering Crespo to file a

Pa.R.A.P. 1925(b) statement, the court filed a Pa.R.A.P. 1925 opinion.

      Crespo raises the following issues in this appeal:

      Did the PCRA court err in determining that the issue of
      ineffective [assistance] of counsel, relating to the admission of
      [Carrero’s] third party sexual assault, raised by [Crespo] in his
      PCRA petition[,] was previously litigated[,] when the trial court
      previously opined the issue was waived for purposes of appeal
      due to the failure to raise it in the initial motion in limine?

      Did the PCRA court err in determining that [Carrero’s] third party
      sexual assault was irrelevant for purposes of showing the likely
      source of physical evidence that was presented at trial, thereby
      causing the claim of ineffectiveness of counsel lack merit?

      Did the PCRA Court err in failing to prevent the admission of
      stains on the [victim’s] underwear when the probative value of
      this evidence was outweighed by the prejudice?

Brief For Appellant, at 7.

      In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.2014).              “The scope of

review is limited to the findings of the PCRA court and the evidence of

record, viewed in the light most favorable to the prevailing party at the trial

level.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa.2014).




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      All of Crespo’s arguments accuse trial counsel of ineffective assistance.

We presume that trial counsel was effective unless the PCRA petitioner

proves otherwise.      Commonwealth v. Williams, 732 A.2d 1167, 1177

(Pa.1999).    To succeed on a claim of ineffective assistance, the petitioner

must plead and prove that (1) the underlying claim is of arguable merit; (2)

counsel’s performance lacked a reasonable basis; and (3) counsel’s

ineffectiveness caused the petitioner prejudice. 42 Pa.C.S. § 9543(a)(2)(ii);

Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa.2003). The petitioner

bears the burden of proving each of these elements, and his “failure to

satisfy any prong of the ineffectiveness test requires rejection of the claim of

ineffectiveness.”     Commonwealth v. Daniels,             963    A.2d   409,   419

(Pa.2009).

      Crespo has waived all arguments he attempts to raise in this appeal.

As the appellant, Crespo has the duty to ensure that the certified record is

complete for purposes of appellate review.             See Commonwealth v.

Gonzalez, 109 A.3d 711, 725 (Pa.Super.2015). The record in this case is

woefully incomplete.        There are no transcripts from trial or pre-trial

hearings; nor are there any court filings prior to Crespo’s initial PCRA

petition.    These many omissions impede effective appellate review of

Crespo’s     claims   of   ineffectiveness,   thus   resulting   in   waiver.   See

Commonwealth v. Powell, 956 A.2d 406, 422–23 (Pa.2008) (defendant

waived appellate review of claim that trial court erred in admitting autopsy


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photograph during capital murder trial; photograph was not contained in

certified record, leaving appellate court unable to assess defendant’s claim

that photograph was gruesome and was likely to inflame jury’s passions);

Gonzalez, 121 A.3d at 724-25 (appellant waived argument that trial court

erred in admitting victim’s audiotaped statement to police into evidence,

which he claimed inflamed the jury against him due to victim’s sobbing

voice, where certified record did not include audiotape).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/20/2016




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