J-S55038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

RAHUL HARRIS,

                            Appellant                No. 1442 EDA 2015


          Appeal from the Judgment of Sentence November 30, 2011
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0004909-2009

BEFORE: LAZARUS, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                     FILED AUGUST 03, 2016

        This is an appeal from the judgment of sentence entered by the Court

of Common Pleas of Philadelphia County after the trial court convicted

Appellant Rahul Harris of Involuntary Deviate Sexual Intercourse (IDSI),1

Sexual Assault,2 and Indecent Assault.3 Appellant challenges the sufficiency

of the evidence and raises two claims of ineffectiveness of counsel.     After

careful review, we affirm.

        Appellant’s convictions are based on the following factual background.

On November 28, 2008, Ms. Toi Williams (“the complainant”) was residing at

512 Adams Avenue in Philadelphia with her son along with Ms. Tracie Branch

____________________________________________


1
    18 Pa.C.S. § 3123(a)(3).
2
    18 Pa.C.S. § 3124.1.
3
    18 Pa.C.S. § 3126.



*Former Justice specially assigned to the Superior Court.
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and her son. On the night in question, Appellant was spending the night in

the basement of home with Ms. Branch.

     The complainant testified that she was sleeping in her bedroom on the

second floor of the home when she awoke at approximately 6:00 a.m. to

find her bedsheets pulled back and her underwear being pulled to the side.

She observed Appellant’s head between her legs and felt his tongue in her

vagina.   The complainant could clearly see Appellant’s face as there was

sufficient lighting from the bathroom across the hall.        Although the

complainant admitted she was on prescription pain medication for her

recovery from an automobile accident, she averred that the drugs did not

impair her awareness of what was happening that morning.

     Asserting that she had not given Appellant permission to perform oral

sex, the complainant told Appellant to get out of her bedroom “before Tracie

kills you.” Notes of Testimony (N.T.), 7/15/11, at 23. After Appellant left

her bedroom, he returned a few moments later and asked the complainant

not to tell Ms. Branch. The complainant took a shower, left the house with

her son, and went to her neighbor’s home. She called her “godbrother” to

tell him what happened and asked that he come to the house to ensure

Appellant had left.   Later that afternoon, the complainant told her mother

and Ms. Branch what had happened.       At their insistence, the complainant

called 911 to report the assault. After the police investigated the scene of

the assault, they tested the complainant’s clothing for DNA evidence and

found her underwear contained traces of Appellant’s saliva.

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        Ms. Branch claimed that on the early morning in question, she awoke

and found Appellant was not in bed with her. When she went to go look for

him, she observed him coming down the stairs. Ms. Branch went back to

bed, but she awoke a second time and again found Appellant was missing.

She then went to look for him and saw him run from the complainant’s room

into the bathroom.        Ms. Branch noted the complainant was acting “very

weird.” N.T., 7/15/11, at 56. She immediately knew something was wrong,

but did not understand why the complainant was upset. After Ms. Branch

returned to the basement with Appellant, she attempted to return to talk

with the victim but was physically restrained by Appellant. Ms. Branch then

returned to sleep.

        Appellant was charged with IDSI, Sexual Assault, Indecent Assault,

Simple Assault,4 and Recklessly Endangering Another Person (REAP).5

Appellant proceeded to a bench trial, after which the trial court convicted

him of IDSI, Sexual Assault, and Indecent Assault while acquitting him of

the remaining two charges.             On November 20, 2011, the trial court

sentenced Appellant to two concurrent terms of three to ten years

imprisonment for the IDSI and Sexual Assault convictions.       No additional

penalty was imposed on the Indecent Assault conviction.



____________________________________________


4
    18 Pa.C.S. § 2701(a).
5
    18 Pa.C.S. § 2705(a).



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      On the day Appellant was sentenced, Appellant attempted to file a pro

se petition pursuant to the Post Conviction Relief Act (PCRA), raising

sufficiency and weight of the evidence claims as well as contending his trial

counsel was ineffective. On March 12, 2012, Emily Beth Cherniak, Esq. was

appointed to represent Appellant.      On January 21, 2014, Appellant filed a

counseled PCRA petition asking for the reinstatement of his direct appeal

rights nunc pro tunc.      On April 30, 2015, the lower court reinstated

Appellant’s direct appellate rights.   This timely appeal followed.   Appellant

complied with the trial court’s direction to file a concise statement of matters

complained of on appeal pursuant to Pa.R.A.P. 1925(b).

      In his appellate brief, Appellant raises the following claims for our

review:

      A. Whether the verdict was insufficient as a matter of law to
         convict the Appellant of the IDSI, sexual assault and related
         charges where the testimony of the complaint [sic] was so
         inconsistent it did not make out the elements of the crimes?

      B. Whether Counsel was ineffective for failing to challenge the
         DNA evidence in this case or requesting a continuance so that
         he could hire an independent investigator to evaluate the DNA
         evidence in this case?

      C. Whether Counsel was ineffective for misadvising [Appellant]
         on his right to testify on his own behalf and for failing to call
         [Appellant] to testify?

Appellant’s Brief, at 5.

      We begin by reviewing Appellant’s challenge to the sufficiency of the

evidence supporting his convictions. Our standard of review is as follows:



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        The standard we apply in reviewing the sufficiency of the
        evidence is whether viewing all the evidence admitted at trial
        in the light most favorable to the verdict winner, there is
        sufficient evidence to enable the fact-finder to find every
        element of the crime beyond a reasonable doubt. In applying
        the above test, we may not weigh the evidence and substitute
        our judgment for the fact-finder. In addition, we note that
        the     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.                   The
        Commonwealth may sustain its burden of proving every
        element of the crime beyond a reasonable doubt by means of
        wholly circumstantial evidence. 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. Britton, 134 A.3d 83, 86 (Pa. Super. 2016).

     In claiming there was insufficient evidence to support his convictions

for IDSI, Sexual Assault, and Indecent Assault, Appellant does not challenge

any specific element of any of the offenses. Appellant takes issue with the

fact that the complainant did not immediately call the police after the

assault, but waited several hours to report the crime. In addition, Appellant

also points out that the complainant “had recently been in a car accident and

that she had taken pain medication.”      Appellant’s Brief, at 10.   Besides

stating these two facts, Appellant makes no argument, offers no analysis

and cites no authority to support his claim. As Appellant offers inadequate

advocacy, we find Appellant’s claim to be waived for lack of development.

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See Commonwealth v. Johnson, 604 Pa. 176, 985 A.2d 915, 924 (2009)

(finding “where an appellate brief fails to provide any discussion of a claim

with citation to relevant authority or fails to develop the issue in any other

meaningful fashion capable of review, that claim is waived”) (citations

omitted)).

      Appellant’s remaining two claims suggest that trial counsel rendered

ineffective assistance. Our Supreme Court has held that, “as a general rule,

a petitioner should wait to raise claims of ineffective assistance of trial

counsel until collateral review.” Commonwealth v. Grant, 572 Pa. 48, 67,

813 A.2d 726, 738 (2002). The Supreme Court subsequently held,

      Grant's general rule of deferral to PCRA review remains the
      pertinent law on the appropriate timing for review of claims of
      ineffective assistance of counsel. … We recognize two
      exceptions, however, both falling within the discretion of the trial
      judge. First, we appreciate that there may be extraordinary
      circumstances where a discrete claim (or claims) of trial counsel
      ineffectiveness is apparent from the record and meritorious to
      the extent that immediate consideration best serves the
      interests of justice; and we hold that trial courts retain their
      discretion to entertain such claims. [ ]

      Second ... where the defendant seeks to litigate multiple or
      prolix claims of counsel ineffectiveness, including non-record-
      based claims, on post-verdict motions and direct appeal, we
      repose discretion in the trial courts to entertain such claims, but
      only if (1) there is good cause shown, and (2) the unitary review
      so indulged is preceded by the defendant's knowing and express
      waiver of his entitlement to seek PCRA review from his
      conviction and sentence, including an express recognition that
      the waiver subjects further collateral review to the time and
      serial petition restrictions of the PCRA.




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Commonwealth v. Stollar, 624 Pa. 107, 135-36, 84 A.3d 635, 652 (Pa.

2014), cert. denied, ––– U.S.–––, 134 S.Ct. 1798 (2014) (quoting

Commonwealth v. Holmes, 621 Pa. 595, 598, 79 A.3d 562, 563–564 (Pa.

2013)).

      In the instant appeal, Appellant has neither raised a claim where trial

counsel ineffectiveness is apparent from the record nor has knowingly and

expressly waived his collateral review rights. Therefore, we dismiss

Appellant's claims as they relate to the ineffective assistance of trial counsel

without prejudice for him to raise them on collateral review.

     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/3/2016




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