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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                    v.                   :
                                         :
MELVIN R. CLARK,                         :          No. 177 WDA 2014
                                         :
                         Appellant       :


                  Appeal from the PCRA Order, January 3, 2014,
              in the Court of Common Pleas of Washington County
               Criminal Division at Nos. CP-63-CR-0000904-2008,
               CP-63-CR-0000905-2008, CP-63-CR-0000906-2008


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND STRASSBURGER, J.*


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED NOVEMBER 13, 2015

        Melvin R. Clark appeals from the order entered January 3, 2014,

denying his PCRA1 petition. We affirm.

        The trial court summarized the pertinent facts and procedural history

as follows:

                    [Appellant]   was    charged   with   sexually
              assaulting three minor victims, his two adopted
              daughters and the minor sister of their mother over
              a period of several years. [Appellant] married the
              victims’ Mother in October of 2001. Thereafter, [he]
              began to sexually molest his adopted daughter,
              [A.C.], in June of 2002, when she was 11 years old.
              It began with [Appellant] sexually touching the
              victim and progressed to digital penetration of her
              vagina and oral sex. This continued from age 11

* Retired Senior Judge assigned to the Superior Court.
1
    Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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          until the victim was 18 when she finally disclosed to
          her mother. The sexual abuse by [Appellant] of his
          youngest      adopted   daughter    was     occurring
          simultaneously, beginning when R.C. was 14 until
          she was 16. As with the other victim, the assault
          began with sexual touching of her breasts and
          progressed to the victim’s vagina.

                [Appellant’s] sister-in-law, [C.S.], testified that
          [Appellant] sexually assaulted her beginning at
          age 15, including an incident when [Appellant]
          sexually assaulted both her and [A.C.] at the same
          time, which [A.C.] corroborated. However, the jury
          found [Appellant] guilty only of Endangering the
          Welfare of a Child and Corruption of Minors.
          [Appellant] was acquitted of the sexual charges
          regarding [C.S.]

                Following      a jury trial, [Appellant] was
          convicted of the following offenses: Rape by forcible
          compulsion, Felony 1; Rape by threat of forcible
          compulsion, Felony 1; Rape of a Child, Felony 1;
          Sexual Assault (3 counts), Felony 2; Aggravated
          Indecent Assault, Felony 2; Aggravated Indecent
          Assault    by   Forcible   Compulsion,   Felony    2;
          Aggravated Indecent Assault of a Child, Felony 1;
          Aggravated Indecent Assault, person less than
          16 years of age, Felony 2; Indecent [Assault]
          without consent (3 counts), Misdemeanor 2;
          Indecent Assault-person less than 13 years of age
          (3 counts), Misdemeanor 1; Statutory Sexual Assault
          (2 counts), Felony 2; Involuntary Deviate Sexual
          Intercourse by threat of forcible compulsion
          (2 counts), Felony 1; Involuntary Deviate Sexual
          Intercourse by forcible compulsion (2 counts),
          Felony 1; Involuntary Deviate Sexual Intercourse-
          person less than 16 years of age; Felony 1;
          Involuntary Deviate Sexual Intercourse with a child
          (2 counts), Felony 1; Endangering the welfare of
          children (3 counts), Misdemeanor 1; Corruption of
          Minors (3 counts) Misdemeanor 1; and Incest,
          Felony 1.




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                  On January 11, 2010, following a presentence
            investigation and assessment by the Pennsylvania
            Sexual Offenders Assessment Board, [Appellant] was
            sentenced to serve an aggregate sentence of
            imprisonment of not less than 56 years and not more
            than 112 years in a state correctional institution.
            Moreover, the Court found [Appellant] to be a
            sexually violent predator and subject to a lifetime
            reporting requirement upon his release from
            incarceration. On January 19, 2010, [Appellant] filed
            his [] post-sentence motion, which was denied on
            June 16, 2010.

Commonwealth v. Clark, 38 A.3d 919 (Pa.Super. 2011) (unpublished

memorandum at 1-3).

      This court affirmed appellant’s judgment of sentence on direct appeal,

and   our   supreme    court   denied     allocatur   on     May    23,   2012.

Commonwealth v. Clark, 46 A.3d 715 (Pa. 2012).             On March 13, 2013,

appellant filed a timely counseled PCRA petition.     On July 12, 2013, the

PCRA court ordered the Commonwealth to file a written response within

60 days, and issued a rule upon the Commonwealth to show cause why the

petition should not be     disposed of without an evidentiary hearing.

(Docket #44.)    Following the Commonwealth’s answer, the petition was

denied without an evidentiary hearing on January 3, 2014.          (Opinion and




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Order, 1/3/14; docket #46.)2    Appellant filed a timely notice of appeal on

January 29, 2014.    On March 25, 2014, appellant was ordered to file a

concise statement of errors complained of on appeal within 21 days pursuant

to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A.    (Docket #50.)    Appellant timely

complied with the PCRA court’s Rule 1925 order on April 14, 2014; and on

January 6, 2015, the PCRA court filed an opinion.

     Appellant has raised the following issue for this court’s review:

           I.    WHETHER THE [PCRA] COURT ERRED IN
                 DENYING [APPELLANT]’S REQUEST FOR AN
                 EVIDENTIARY      HEARING     FOR      A
                 DETERMINATION AS TO WHETHER HIS TRIAL
                 COUNSEL       PROVIDED      INEFFECTIVE
                 ASSISTANCE OF COUNSEL, IN FAILING TO
                 PROPERLY OBJECT TO A PATENTLY IMPROPER
                 JURY CHARGE, INSTRUCTING THE JURY TO
                 CONSIDER [APPELLANT]’S TWENTY-FIVE YEAR
                 OLD SUMMARY CONVICTION FOR RETAIL
                 THEFT IN EVALUATING HIS TESTIMONY AT
                 TRIAL DENYING GUILT[?]


2
           A review of the record reveals that the PCRA court
           failed to issue notice of its intent to deny the PCRA
           petition as is required by Pa.R.Crim.P. 907.
           Although the notice requirement set forth in
           Rule 907 has been held to be mandatory, see
           Commonwealth v. Feighery, 443 Pa.Super. 327,
           661 A.2d 437 (1995) (Feighery discussed
           Pa.R.Crim.P. 1507, which was renumbered as
           Rule 907 as of April 1, 2001), Appellant has not
           objected to its omission and thereby has waived the
           issue.

Commonwealth v. Boyd, 923 A.2d 513, 514 n.1 (Pa.Super. 2007), appeal
denied, 932 A.2d 74 (Pa. 2007), citing Commonwealth v. Williams, 909
A.2d 383 (Pa.Super. 2006); Commonwealth v. Guthrie, 749 A.2d 502
(Pa.Super. 2000).


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Appellant’s brief at 4.

            This Court’s standard of review regarding an order
            denying a petition under the PCRA is whether the
            determination of the PCRA court is supported by the
            evidence of record and is free of legal error.
            Commonwealth v. Halley, 582 Pa. 164, 870 A.2d
            795, 799 n. 2 (2005). The PCRA court’s findings will
            not be disturbed unless there is no support for the
            findings in the certified record. Commonwealth v.
            Carr, 768 A.2d 1164, 1166 (Pa.Super.2001).

Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007),

appeal denied, 940 A.2d 365 (Pa. 2007).

            [T]he right to an evidentiary hearing on a
            post-conviction     petition   is    not    absolute.
            Commonwealth v. Jordan, 772 A.2d 1011, 1014
            (Pa.Super.2001).     It is within the PCRA court’s
            discretion to decline to hold a hearing if the
            petitioner’s claim is patently frivolous and has no
            support either in the record or other evidence. Id.
            It is the responsibility of the reviewing court on
            appeal to examine each issue raised in the PCRA
            petition in light of the record certified before it in
            order to determine if the PCRA court erred in its
            determination that there were no genuine issues of
            material fact in controversy and in denying relief
            without     conducting    an   evidentiary   hearing.
            Commonwealth v. Hardcastle, 549 Pa. 450, 454,
            701 A.2d 541, 542-543 (1997).

Id. at 882, quoting Commonwealth v. Khalifah, 852 A.2d 1238,

1239-1240 (Pa.Super. 2004).

            To    prevail  on     a    claim   alleging  counsel’s
            ineffectiveness under the PCRA, Appellant must
            demonstrate (1) that the underlying claim is of
            arguable merit; (2) that counsel’s course of conduct
            was without a reasonable basis designed to
            effectuate his client’s interest; and (3) that he was
            prejudiced by counsel’s ineffectiveness, i.e. there is


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            a reasonable probability that but for the act or
            omission in question the outcome of the proceeding
            would have been different.     Commonwealth v.
            Kimball, 555 Pa. 299, 724 A.2d 326, 333 (1999);
            Commonwealth v. Douglas, 537 Pa. 588, 645
            A.2d 226, 230 (1994).

Commonwealth v. Bracey, 795 A.2d 935, 942 (Pa. 2001).                   “The law

presumes that counsel has rendered effective assistance.” Commonwealth

v. Harris, 852 A.2d 1168, 1173 (Pa. 2004), citing Commonwealth v.

Balodis, 747 A.2d 341, 343 (Pa. 2000). “Trial counsel cannot be deemed

ineffective for failing to raise a meritless claim.      In addition, where an

appellant has not met the prejudice prong of the ineffectiveness standard,

the claim may be dismissed on that basis alone.” Id. (citations omitted).

      Appellant argues that trial counsel was ineffective for failing to object

to the trial court’s instruction to the jury that they could consider his

1983 conviction for retail theft in assessing his credibility. At trial, appellant

presented    the     testimony   of   a   character   witness,   the    Reverend

Gary Schneider.      On cross-examination, the Commonwealth questioned

Reverend Schneider regarding appellant’s 1983 conviction of the summary

offense of retail theft.   On direct appeal, we held such questioning was

proper under Pa.R.E. 405(a), allowing cross-examination of a reputation

witness concerning specific instances of conduct probative of the character

trait in question.   Clark, supra at 5.     This court also rejected appellant’s

argument that the 1983 conviction was stale, and therefore, any probative

value was outweighed by its prejudicial impact, finding that, at most, it was


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harmless error:    “Given the overwhelming evidence of guilt in this case,

including Appellant’s confessions in his various communications to his wife

and the victims, any error in permitting the brief reference to the summary

conviction was harmless.” Id. at 6 (citation omitted).

      On direct appeal, appellant also raised the claim that the trial court

erred by instructing the jury that his 25-year-old retail theft conviction could

be used to help determine his credibility and the weight to be assigned his

testimony.   Id.   We found the matter waived because trial counsel never

objected to the trial court’s jury instructions. Id. at 6-7. We further opined

that, given the overwhelming evidence of guilt including appellant’s

confessions, any error was harmless.      Id. at 7.   Appellant now brings the

identical issue on collateral review, framed as a trial counsel ineffectiveness

claim.

      The trial court’s instruction to the jury was as follows:

             There      was   also   evidence     offered   during
             cross-examination of a character witness that tended
             to show that the Defendant had a prior conviction.
             I’m talking about the questioning of Pastor Schneider
             in regard to the prior summary offense of Retail
             Theft. The District Attorney asked this question in
             cross-examination tending to show that the
             Defendant’s reputation for honestly [sic] was not as
             good as suggested. This evidence is not evidence of
             the Defendant’s guilt.       The evidence may be
             considered by you for only one purpose and one
             purpose only; that is, to help you judge the
             credibility and weight of the testimony given by the
             Defendant as a witness in this trial. In considering
             the prior conviction, you may also consider the type
             of crime committed and how long ago it was


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            committed and how it may affect the likelihood that
            he testified truthfully or not truthfully in this case.

Notes of testimony, 3/9-12/09 at 368-369.

      Appellant argues that this instruction was in error because under

Pa.R.E. 609, crimen falsi offenses are generally inadmissible to attack the

credibility of a witness after ten years. In addition, under Pa.R.E. 608, while

the credibility of a witness who testifies as to the reputation of another

witness   for   truthfulness   or   untruthfulness   may    be   attacked   by

cross-examination concerning specific instances of conduct (not including

arrests) of the other witness, if they are probative of truthfulness or

untruthfulness, that evidence affects the credibility of the character witness

only, not the principal witness.        Pa.R.E. 608, Comment; see also

Commonwealth v. Adams, 626 A.2d 1231, 1233 (Pa.Super. 1993) (where

the purpose of the examination is to test the accuracy of the testimony by

showing either that the witness is not familiar with the reputation concerning

which he has testified or that his standard of what constitutes good repute is

unsound, the evidence is admissible provided the actual purpose of the

cross-examination is not to show commission by the defendant of a specific

crime of which he or she is not now accused, but to test only the credibility

of the character witness), appeal denied, 636 A.2d 631 (Pa. 1993).

Appellant argues that trial counsel had no reasonable basis for failing to

object to this clearly improper instruction, and that he was undeniably

prejudiced where his entire defense rested on his testimony.


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      First, we observe that this precise issue was raised on direct appeal,

and we determined that to the extent the trial court erred, any such error

was harmless in light of the overwhelming evidence of appellant’s guilt.

Therefore, the issue could be considered previously litigated. 42 Pa.C.S.A.

§ 9544(a)(2).   It is true that we initially found the matter waived for trial

counsel’s failure to object to the trial court’s jury instructions; however, the

harmless error analysis could be considered an alternative, but equally valid,

holding supporting the result reached. See Commonwealth v. Markman,

916 A.2d 586, 606 (Pa. 2007) (“Where a decision rests on two or more

grounds equally valid, none may be relegated to the inferior status of obiter

dictum.”), quoting Commonwealth v. Swing, 186 A.2d 24, 26 (Pa. 1962).

See also Markman, supra, 916 A.2d at 606 n.15, citing Reynolds-

Penland Co. v. Hexter & Lobello, 567 S.W.2d 237, 241 (Tex.Civ.App.

1978) (“explaining that an ‘alternative holding’ exists where the appellate

court ‘rests its decision under the facts presented on two separate, but

equally valid, grounds’”).    Accord Commonwealth v. Reed, 971 A.2d

1216, 1220 (Pa. 2009) (where this court determined that Reed’s claims were

waived, and even if the claims had not been waived, they were without

merit, and explained the basis for our conclusions, our holding that Reed’s

claim regarding the admission of prior bad acts testimony was meritless was

a valid holding that constituted the law of the case).




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      At any rate, while the underlying issue has arguable merit and trial

counsel had no apparent reasonable strategic basis for failing to object to

the trial court’s erroneous jury instruction, appellant cannot meet the third

prong of the ineffectiveness test, i.e., prejudice.     As stated above, the

evidence in this case was overwhelming, including appellant’s inculpatory

statements to his wife and the victims. Appellant left several messages on

the home answering machine which were played for the jury, in which he

expressed regret for his actions. In the face of this evidence, as well as the

testimony of the victims which the jury apparently found to be credible, it is

doubtful that a 25-year-old summary conviction for retail theft was the

deciding factor in appellant’s guilt.   Appellant could not possibly establish

how the trial court’s instruction changed the outcome of the trial, and the

PCRA court did not err in denying appellant’s petition without an evidentiary

hearing.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/13/2015




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