Opinion
586 WDA 2021
04-19-2022
COMMONWEALTH OF PENNSYLVANIA v. DAVID ALLEN BRICKER Appellant
Joseph D. Seletyn, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered February 3, 2021 In the Court of Common Pleas of Fayette County Criminal Division at No(s): CP-26-CR-0000835-2014
Joseph D. Seletyn, Esq.
BEFORE: BENDER, P.J.E., DUBOW, J., and COLINS, J. [*]
MEMORANDUM
COLINS, J.
Appellant, David Allen Bricker, appeals from the order of the Court of Common Pleas of Fayette County (trial court) that denied his first petition filed under the Post Conviction Relief Act (PCRA). After careful review, we affirm.
This case arises out of internet communications between Appellant, who was 51 years old at the time and was living under an assumed name, and a 15-year-old girl (Minor) beginning in October 2013 and Appellant's grabbing Minor's buttocks and kissing her in November 2013. Commonwealth v. Bricker, 198 A.3d 371, 372 (Pa. Super. 2018). On February 5, 2015, Appellant was convicted by a jury of unlawful contact with a minor and indecent assault and was found guilty of harassment by the trial court. N.T. Trial at 60; Jury Verdict Forms; Trial Court Non-Jury Verdict Order. Following these convictions and an assessment by the Sexual Offenders Assessment Board, the trial court deemed Appellant to be a sexually violent predator (SVP). Bricker, 198 A.3d at 373; 5/13/15 Unlawful Contact with Minor Sentencing Order ¶13. On May 13, 2015, the trial court sentenced Appellant to 31/2 to 7 years' imprisonment and lifetime registration under the Sex Offender Registration and Notification Act (SORNA) for the unlawful contact with a minor conviction. 5/13/15 Unlawful Contact with Minor Sentencing Order ¶¶4, 11-20. The trial court imposed no further penalty for the indecent assault and harassment convictions. 5/13/15 Indecent Assault Sentencing Order; 5/13/15 Harassment Sentencing Order.
18 Pa.C.S. §§ 6318(a)(1) and 3126(a)(8), respectively.
42 Pa.C.S. §§ 9799.10-9799.41.
On December 29, 2015, this Court affirmed Appellant's judgment of sentence. Commonwealth v. Bricker, 135 A.3d 669 (Pa. Super. 2015). Appellant timely filed a petition for allowance of appeal with the Pennsylvania Supreme Court, and on January 3, 2018, the Supreme Court granted the petition for allowance of appeal limited to Appellant's challenge to his sentence, vacated his judgment of sentence, and remanded the case to this Court for reconsideration in light of Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017). Commonwealth v. Bricker, 177 A.3d 823 (Pa. 2018). This Court on remand from the Supreme Court held that Appellant's designation as an SVP was vacated by the Supreme Court's order, but concluded that Appellant was subject to SORNA registration requirements because he committed the crimes after SORNA's effective date. Commonwealth v. Bricker, No. 849 WDA 2015, at 10-12 (Pa. Super. filed March 23, 2018) (unpublished memorandum). This Court remanded the case to the trial court for resentencing based on the provisions of SORNA in effect at the time of his offenses that were applicable to his convictions and directed that Appellant "shall have the appropriate full and fair opportunity to raise, develop, argue, and preserve his constitutional challenges to his new [SORNA] reporting requirements." Id. at 12-14.
On remand, the trial court held a new sentencing hearing on April 12, 2018, and resentenced Appellant to 31/2 to 7 years' imprisonment and 25-year registration under SORNA based on Appellant's status as a person convicted of a Tier II sexual offense. N.T. Sentencing, 4/12/18; 4/12/18 Unlawful Contact with Minor Sentencing Order ¶¶4, 11-13. Appellant filed an appeal from this judgment of sentence in which he argued that SORNA could not apply to him and that his 25-year SORNA reporting sentence was illegal and unconstitutional because it exceeded the statutory maximum sentence for his offense. Bricker, 198 A.3d at 374-77. On October 19, 2018, this Court affirmed Appellant's new judgment of sentence. Id. at 377. Appellant filed a timely petition for allowance of appeal, which the Pennsylvania Supreme Court denied on April 16, 2019. Commonwealth v. Bricker, 206 A.3d 1026 (Pa. 2019).
The trial court again imposed no further penalty for the indecent assault and harassment convictions. 4/12/18 Indecent Assault and Harassment Sentencing Order.
On March 31, 2020, Appellant filed a timely pro se first PCRA petition. The trial court appointed counsel to represent Appellant with respect to his PCRA petition and PCRA counsel filed an amended PCRA petition asserting four claims: 1) that trial counsel was ineffective for failing to call Appellant's sister Sandy Kennedy as a witness at trial, 2) that trial counsel was ineffective for failing to communicate with Appellant in preparation for and during trial, 3) that Appellant's imprisonment sentence was an illegal sentence because it was the statutory maximum and Appellant was not given credit for 98 days that he was incarcerated between his conviction and 2015 sentencing, and 4) that the Subchapter H SORNA requirements imposed on Appellant are unconstitutional because SORNA's irrebuttable presumption of recidivism and tier-based system are invalid. Third Amended PCRA Petition ¶¶19-35. The only witnesses that Appellant stated that he would call at an evidentiary hearing on his PCRA petition were himself and Kennedy. Id., Certificate of Intended Witnesses.
On January 28, 2021, the trial court held a hearing on this amended PCRA petition at which Appellant, Kennedy, and Appellant's trial counsel testified. Appellant testified that trial counsel, who was an attorney with the Public Defender's Office, did not speak to him until the day of trial. N.T. PCRA at 8, 18. Appellant admitted, however, that he spoke to other attorneys at the Public Defender's Office concerning his case before trial. Id. at 6, 16-17, 19-20. Appellant testified that he told the Public Defender's Office before trial that he wanted to call Kennedy as a witness and that trial counsel did not call her or call any other witness at trial. Id. at 6-9, 17.
Kennedy testified that she saw interactions between Appellant and Minor, that Minor acted like she had a crush on Appellant and "s[a]t on his lap all the time," and that she told Appellant to stay away from Minor. N.T. PCRA at 23-25, 27-28, 31. Kennedy testified, however, that Minor never told her that Minor was making up the allegations against Appellant and testified that she was not present when the indecent assault was alleged to have occurred. Id. at 25, 28. Kennedy also testified that Appellant was using an assumed name in 2013 on her advice because he was trying to start his life over and it was hard for someone on a sex offender registry to start over. Id. at 24, 30-31. Kennedy testified that she would have been available to testify at trial, but that neither trial counsel nor the Public Defender's Office contacted her. Id. at 25-27.
Trial counsel testified that the Public Defender's Office was given Kennedy's name as a witness and spoke to her by telephone before trial. N.T. PCRA at 39-41. Trial counsel testified that Kennedy told them that Minor had a crush on Appellant and would sit on his lap and that he decided not to call her as a witness because her testimony would be harmful to Appellant's case. Id. at 41-42, 44, 49-50. Trial counsel admitted that he did not meet in person with Appellant until the day of trial, but testified that he spoke with Appellant two or three times before trial. Id. at 44-45. Trial counsel also testified that during trial, he discussed strategy with Appellant and explained to Appellant why witnesses that Appellant had proposed were not being called. Id. at 43-44.
Appellant also introduced evidence that he was not given credit for 98 days of incarceration in his 2018 sentence and the probation office agreed that Appellant had not been given credit for that period of incarceration. N.T. PCRA at 11-13. Appellant did not seek to introduce evidence at the PCRA hearing concerning his challenge to SORNA and PCRA counsel stated that he was simply preserving the issue in the event that a court in another case held the SORNA Subchapter H registration provisions unconstitutional. Id. at 14-15, 34-37.
On February 3, 2021, the trial court entered an order amending Appellant's 2018 sentence to give Appellant credit for an additional 98 days of incarceration and denying Appellant's PCRA petition in all other respects. Trial
Court Order, 2/3/21. Appellant appealed this order to this Court and following Appellant's filing of a concise statement of issues on appeal, the trial court filed its opinion in this matter. In its opinion, the trial court stated that it found trial counsel's testimony credible and found that trial counsel had a reasonable bass for deciding not to call Kennedy as a witness. Trial Court Opinion, 7/15/21, at 5. The trial court rejected Appellant's other claim of ineffective assistance of counsel on the ground that the evidence showed that trial counsel and his office communicated regularly and sufficiently with Appellant. Id. at 5-6. The trial court held that Appellant's SORNA claim was barred because it had been previously litigated. Id. at 6.
Appellant presents the following three issues for our review in this appeal:
1. Whether Appellant's [trial] counsel, Shane Gannon, Esq., was ineffective for failing to call Sandy Kennedy as a witness?
2. Whether Attorney Gannon was ineffective for refusing to communicate with Appellant prior to and during the trial?
3.Whether Appellant's reporting requirements under [SORNA] are unconstitutional?Appellant's Brief at 3.
Our review of an order denying a PCRA petition is limited to determining whether the record supports the PCRA court's findings and whether its decision is free of legal error. Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015); Commonwealth v. Johnson, 236 A.3d 63, 68 (Pa. Super. 2020) (en banc); Commonwealth v. Smith, 181 A.3d 1168, 1174 (Pa. Super. 2018). We must view the findings of the PCRA court and the evidence of record in a light most favorable to the prevailing party. Mason, 130 A.3d at 617; Johnson, 236 A.3d at 68; Commonwealth v. Stewart, 84 A.3d 701, 706 (Pa. Super. 2013) (en banc). The PCRA court's credibility determinations, if supported by the record, are binding on this Court. Mason, 130 A.3d at 617; Johnson, 236 A.3d at 68; Commonwealth v. Widgins, 29 A.3d 816, 820 (Pa. Super. 2011).
Appellant's first two issues are claims that trial counsel was ineffective. To be entitled to relief under the PCRA on a claim of ineffective assistance of counsel, the defendant must prove: (1) that the underlying claim is of arguable merit; (2) that counsel's action or inaction had no reasonable basis designed to effectuate his client's interest; and (3) that he suffered prejudice as a result of counsel's action or inaction. Mason, 130 A.3d at 618; Commonwealth v. Selenski, 228 A.3d 8, 15 (Pa. Super. 2020); Commonwealth v. Wantz, 84 A.3d 324, 331 (Pa. Super. 2014). The defendant must satisfy all three prongs of this test to obtain relief under the PCRA. Mason, 130 A.3d at 618; Selenski, 228 A.3d at 15; Smith, 181 A.3d at 1175.
Appellant's first issue fails both because he did not show that counsel lacked a reasonable basis for failing to call Kennedy as a witness and because the absence of her testimony did not prejudice him. Failure to call a witness can constitute ineffective assistance of counsel only where the defendant shows that the witness existed, was available, and was willing to testify on the defendant's behalf; that trial counsel knew or should have known of witness's existence; and that the absence of the witness's testimony prejudiced the defendant. Commonwealth v. Sneed, 45 A.3d 1096, 1108- 09 (Pa. 2012); Commonwealth v. Orner, 251 A.3d 819, 825 (Pa. Super. 2021) (en banc); Selenski, 228 A.3d at 16. Counsel is not ineffective for failure to call a witness where counsel made a decision not to call the witness based on a reasonable strategic judgment. Commonwealth v. Ervin, 766 A.2d 859, 866 (Pa. Super. 2000). To show prejudice, the defendant must show that the witness's testimony would be sufficiently beneficial to his defense that there was a reasonable probability of a different outcome at trial if she had testified. Sneed, 45 A.3d at 1109; Wantz, 84 A.3d at 332-33.
Here, the trial court found that trial counsel spoke with Kennedy before trial and made a reasonable strategic judgment not to call her because he concluded that her testimony would be harmful, not beneficial to Appellant. Trial Court Opinion, 7/15/21, at 5. That determination is amply supported by the record. Trial counsel testified that Kennedy was interviewed and that, based on what Kennedy said, he did not call her because her testimony would not be helpful to Appellant's defense. N.T. PCRA at 40-42, 44, 49-50. Moreover, Kennedy's testimony at the PCRA hearing confirmed the reasonableness of trial counsel's judgment.
The testimony that Kennedy asserted that she could have given at trial was that Minor had a crush on Appellant and sat on his lap, that she told Appellant to stay away from Minor, and that Appellant's use of an assumed name was on her recommendation. N.T. PCRA at 23-25, 27-28, 30-31. Evidence that Minor sought physical contact and romantic attention from Appellant would not defeat the unlawful contact with a minor or indecent assault charges against Appellant. The indecent assault charge against Appellant was under subsection (a)(8) of the indecent assault statute, which requires only proof that the defendant had indecent contact with the complainant, that the complainant was less than 16 years old, and that the defendant was four or more years older than the complainant and not married to the complainant, and consent is not a defense to this charge. 18 Pa.C.S. § 3126(a)(8); Commonwealth v. Castelhun, 889 A.2d 1228, 1233-34 & n.8 (Pa. Super. 2005); Commonwealth v. Warrington, No. 1925 MDA 2018, at 5 n.5 (Pa. Super. July 12, 2019) (unpublished memorandum). Consent was likewise irrelevant to the unlawful contact with a minor charge, as the elements of this offense are intentional contact with a minor for the purpose of a sexual offense, 18 Pa.C.S. § 6318(a)(1), and the underlying sexual offense of indecent assault of a minor under age 16 did not require proof of consent. Kennedy's testimony concerning Minor's interactions with Appellant would have showed that he engaged in questionable physical contact with Minor and her testimony concerning Appellant's use of an assumed name would have brought to the jury's attention that Appellant was on a sex offender registry. N.T. PCRA at 24, 31. Given the lack of significant benefit from Kennedy's testimony and these detrimental aspects of her testimony, trial counsel's judgment not to call her as a witness was plainly reasonable.
In addition, Appellant did not show that the absence of Kennedy's testimony caused him prejudice. Her testimony not only would not have provided a defense to the charges against him, but any marginal benefit from her testimony that Minor had crush on Appellant would have been cumulative, as trial counsel brought out testimony that Minor had a crush on Appellant in his cross-examination of one of the Commonwealth's witnesses. N.T. Trial at 37. Kennedy's testimony therefore would not be so beneficial to his defense that there was a reasonable probability of a different outcome at trial if she had testified.
Appellant's second claim of ineffective assistance of counsel fails because the factual premise on which it is based was rejected by the trial court. The trial court found that trial counsel and his office sufficiently communicated with Appellant before and during trial. Trial Court Opinion, 7/15/21, at 5-6. That finding is likewise supported by the evidence. Trial counsel, whom the trial court found credible, testified that he communicated with Appellant before trial and throughout the trial. N.T. PCRA at 43-45. In addition, Appellant admitted that he spoke to and met with other attorneys in trial counsel's office concerning his defense in preparation for trial. Id. at 6, 16-17, 19-20. Indeed, Appellant at trial expressed no dissatisfaction with counsel and did not claim that counsel was not adequately consulting with him. N.T. Trial at 44. As the record supports the trial court's determination that trial counsel adequately communicated with Appellant in preparation for and during trial, Appellant is entitled to no relief on this issue. Widgins, 29 A.3d at 820.
In his remaining, third issue, Appellant argues that the Subchapter H SORNA reporting requirements imposed on him are unconstitutional because SORNA's irrebuttable presumption of recidivism and tier-based system are invalid and the trial court therefore erred in failing to vacate the SORNA portion of his sentence. The trial court rejected this claim on the ground that it was barred by the PCRA because it was previously litigated in Appellant's direct appeals. Trial Court Opinion, 7/15/21, at 6; see 42 Pa.C.S. § 9543(a)(3). We do not agree.
While Appellant raised constitutional challenges to his SORNA reporting requirements in his 2015 and 2018 appeals, this Court did not rule on the merits of those challenges in the 2015 appeal and Appellant in his 2018 appeal asserted only that SORNA was not applicable to him and that it was invalid because it exceeded the statutory maximum sentence. Bricker, No. 849 WDA 2015, at 12-13; Bricker, 198 A.3d at 374-77. The SORNA issue that Appellant presents here was thus not raised and decided on the merits in those appeals, and he is not barred from asserting it as a ground for PCRA relief. 42 Pa.C.S. § 9544(a).
We also reject the Commonwealth's contention that Appellant lacks standing to challenge the constitutionality of Subchapter H of SORNA because Appellant is allegedly subject to SORNA's reporting requirements as an SVP. Contrary to the Commonwealth's contention, it appears from the record that Appellant is not presently designated as an SVP. Although the trial court deemed Appellant an SVP in its initial sentencing order, 5/13/15 Unlawful Contact with Minor Sentencing Order ¶13, this Court held in its March 2018 decision on remand from the Supreme Court held that "Appellant's SVP designation is part of the sentence the Supreme Court has already vacated," Bricker, No. 849 WDA 2015, at 12, and the trial court, when it resentenced Appellant in April 2018, did not deem him to be an SVP. 4/12/18 Unlawful Contact with Minor Sentencing Order; 4/12/18 Indecent Assault and Harassment Sentencing Order.
Appellant's third issue, however, fails because he introduced no evidence to support his constitutional challenge. The constitutional challenge that Appellant raised in his PCRA petition and argues on appeal requires evidence that the legislature's determinations are refuted by the consensus of scientific opinion. Commonwealth v. Torsilieri, 232 A.3d 567, 594-96 (Pa. 2020); Commonwealth v. Asher, 244 A.3d 27, 31-33 (Pa. Super. 2020). Appellant, however, did not introduce any evidence concerning his constitutional challenge to SORNA at the PCRA hearing or seek to introduce such evidence. N.T. PCRA at 14-15, 34-37. The trial court therefore did not err in denying Appellant's SORNA claim.
We may affirm the trial court's decision on any valid basis. Commonwealth v. Janda, 14 A.3d 147, 161 n.8 (Pa. Super. 2011).
Moreover, there is no basis for remand for a further hearing on this issue. It was clear well before Appellant's PCRA hearing that he was required to introduce evidence challenging the legislature's determinations in order to prevail on his SORNA challenge, as Torsilieri was decided in June 2020 and the PCRA hearing in this case was held on January 28, 2021. Where, as here, the law was clear that the defendant was required to introduce scientific evidence in support of his challenge to SORNA's constitutionality when he raised the issue and the defendant chose not to introduce evidence, the constitutional challenge is properly rejected and the defendant is not entitled to a further hearing or opportunity to develop a record in support of his challenge. Commonwealth v. Goldstein, No. 2095 EDA 2020, at 33-39 (Pa. Super. December 22, 2021) (unpublished memorandum).
Because the trial court's findings on Appellant's ineffective assistance of counsel claims are supported by the record and Appellant failed to introduce evidence to support his challenge to the constitutionality of his SORNA reporting requirements, the trial court properly denied Appellant's PCRA petition. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
[*] Retired Senior Judge assigned to the Superior Court.