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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                        :
DOUGLASS WILLIAMS,                      :          No. 367 WDA 2014
                                        :
                       Appellant        :


               Appeal from the PCRA Order, February 13, 2014
             in the Court of Common Pleas of Allegheny County
              Criminal Division at No. CP-02-CR-0009620-2009


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND WECHT, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED JUNE 09, 2015

      Appellant appeals from the order denying his first petition filed

pursuant to the Post Conviction Relief Act (“PCRA”). We dismiss this appeal.

      This court summarized the factual background of this case during

direct appeal:

            Appellant, his wife (the victim’s mother), and the
            victim were living at 1108 Mella Street in Pittsburgh
            along with their son. (Notes of testimony, 2/28/11
            at 8.) In the fall of 2009, when the victim was
            12 years old, appellant would lift up her shirt, touch
            her breasts and pull on them in what he claimed was
            an attempt to make them larger. Appellant told the
            victim, “[your breasts] are going to get bigger over
            time, just wait and see.” (Id. at 10.) The victim
            testified that appellant stated that this was
            something that people “did in the South.” (Id. at 9.)
            Appellant touched her breasts underneath the
            victim’s clothing three to five times during this time
            period, and also touched her several more times on
            the top of her clothes. (Id. at 10.) The victim
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           stated that in some instances appellant touched her
           over her clothing in the presence of her mother and
           brother, but explained that no one was present on
           the occasions when he fondled her breasts after
           having pulled up her shirt.

                  The victim explained that she became upset
           and insecure when appellant touched her breast.
           (Id. at 13, 21.)         The victim explained that
           appellant’s behavior stopped as a result of her
           mother catching him in the act and that it was not
           until that point that she realized what appellant had
           been doing to her was wrong. (Id. at 13-14, 23.)
           The victim was initially afraid to speak to authorities
           but eventually told a representative from CYF. (Id.
           at 13.)

                  The victim’s mother corroborated the victim’s
           version of events and testified that she had
           witnessed      appellant   touching     the     victim
           inappropriately. (Id. at 46.) “[Appellant] would
           start tickling but then he would touch her breasts.”
           (Id.) “I physically saw a tickle turn into his hands
           on her breasts . . . over her clothing . . . at least
           twice.” (Id. at 47.) The victim’s mother instructed
           appellant not to touch their daughter, however, she
           testified that he “tried to just laugh as if it’s just
           playful.” (Id. at 47, 52-53.)

                 Appellant testified at trial and acknowledged
           touching the victim’s breasts at times in the past but
           claimed that it only occurred “accidently” during
           “horseplay.” (Id. at 82-83, 85-86.) Appellant also
           admitted that he made the statement about pulling
           on her breasts to make them grow, but averred that
           he was just “joking, kidding.” (Id. at 87, 91-92.)

Commonwealth       v.   Williams,    No.   544   WDA     2011,   unpublished

memorandum at 1-3 (Pa.Super. filed June 5, 2012).




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        On February 28, 2011, appellant was convicted of one count of

indecent assault of a person less than 13 years of age.1           Immediately

thereafter, appellant was sentenced to three years’ probation.2 On June 5,

2012, this court affirmed the judgment of sentence, and on February 14,

2013, our supreme court denied appeal. Commonwealth v. Williams, 53

A.3d 924 (Pa.Super. 2012) (unpublished memorandum), appeal denied, 63

A.3d 777 (Pa. 2013).

        On August 19, 2013, appellant filed the instant PCRA petition pro se.

Counsel was appointed, an amended petition was filed, and an evidentiary

hearing was held on January 12, 2014. At issue was the victim’s recantation

of her trial testimony. The victim’s mother also testified, reiterating her trial

testimony.    Appellant’s petition was denied by order entered February 13,

2014. This timely appeal followed.

        Appellant raises two issues on appeal:

              A.    The lower court abandoned its role as
                    “impartial arbiter” and engage[d] in protracted
                    examination of Williams’s witnesses.

              B.    The lower court denied post-conviction relief
                    based upon inadmissible and unsubstantiated
                    evidence.

Appellant’s brief at i.

              In reviewing the denial of PCRA relief, we examine
              whether the PCRA court’s determinations are

1
    18 Pa.C.S.A. § 3126(a)(7).
2
    Appellant was also subject to ten years of reporting under Megan’s Law.


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               supported by the record and are free of legal error.
               Commonwealth v. Roney, 622 Pa. 1, 79 A.3d 595,
               603 (2013).        The PCRA court’s credibility
               determinations, when supported by the record, are
               binding on this Court; however, we apply a de novo
               standard of review to the PCRA court’s legal
               conclusions. Id.

Commonwealth v. Watkins, 108 A.3d 692, 701 (Pa. 2014).

       We find we are no longer able to review appellant’s issues. Even if we

were to find error, we could not remand the case to the PCRA court for

further resolution because appellant is no longer eligible for relief under the

PCRA.      The record indicates that appellant has completed serving his

sentence.       The   sentencing   order   specifically   states   that   appellant’s

three-year probationary term was to commence on February 28, 2011.

Consequently, that sentence expired on February 28, 2014.

       The PCRA requires that a defendant be currently serving or awaiting a

sentence of death, imprisonment, probation, or parole in order to be eligible

for relief. 42 Pa.C.S.A. § 9543(a)(1). Case law has further ruled that not

only must a defendant be serving a sentence when the petition is filed, but

also when the order is entered resolving the petition. Commonwealth v.

Ahlborn, 699 A.2d 718 (Pa. 1997).          Finally, this court has held that the

reporting requirements of Megan’s Law are a collateral consequence of

appellant’s conviction and do not qualify as a sentence for purposes of PCRA

eligibility.   Commonwealth v. Williams, 977 A.2d 1174, 1176-1177

(Pa.Super. 2009), appeal denied, 990 A.2d 730 (Pa. 2010).



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      Accordingly, having found that appellant is no longer eligible for relief

under the PCRA, we will dismiss this appeal.3

      Appeal dismissed.    Application to stay appeal and remand for an

evidentiary hearing is denied. Motion seeking certificate of transmittal of the

record is quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/9/2015




3
  We note that there are two outstanding motions. On October 8, 2014,
counsel for appellant filed an application to stay appeal and remand for an
evidentiary hearing. Since the PCRA hearing, the victim’s mother has also
expressed a desire to recant her trial and PCRA testimony. We will decline
to grant a new evidentiary hearing as this matter likewise can no longer be
addressed. As for the other motion, it is a pro se motion filed on April 13,
2015, seeking a certificate of transmittal of the record. This motion will be
dismissed    under     the    rule    prohibiting    hybrid   representation.
Commonwealth v. Padilla, 80 A.3d 1238, 1259 (Pa. 2013), cert. denied,
Padilla v. Pennsylvania, 134 S.Ct. 2725 (2014).


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