Opinion
J-A21023-17 No. 1194 WDA 2016
10-12-2017
COMMONWEALTH OF PENNSYLVANIA, Appellee v. PAUL R. GRAHAM, JR., Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order July 21, 2016
In the Court of Common Pleas of Washington County
Criminal Division at No(s): CP-63-CR-0001468-2012 BEFORE: BENDER, P.J.E., OLSON, J., and STABILE, J. MEMORANDUM BY OLSON, J.:
Appellant, Paul R. Graham, Jr., appeals pro se from the order entered on July 21, 2016, dismissing Appellant's petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
In a prior memorandum, this Court summarized the underlying facts of this case, as well as some of the procedural posture. We explained:
Appellant was charged with, inter alia, rape, four counts of involuntary deviate sexual intercourse, two counts of aggravated indecent assault, three counts of statutory sexual assault, three counts of indecent assault, and two counts of corruption of the morals of minors. The charges arose from allegations he molested his then nine-year-old niece ("the victim") between 2003 and 2005.
The trial court summarized the trial evidence as follows:
A two-day jury trial began on September 16, 2013. . . . At trial, the Commonwealth offered the testimony of the victim, her mother, and the arresting officer.
At the time of trial, the victim was [19] years old. [Appellant] married the victim's aunt when the victim was approximately nine years old. The victim's and Appellant's families were close, and [Appellant] acted as the victim's babysitter while her parents worked. [Appellant] babysat the victim and her brother "pretty much every day." Sometimes she would stay the night at [Appellant's] residence and he would assist her with getting ready for school the next morning. The victim enjoyed spending time with her uncle, because he would play games with her and "pretty much did whatever [the victim] wanted to do all the time."
However, in February [] 2003, when the victim was nine years old, [Appellant] began to sexually abuse the child. While wrestling, the victim stuck her tongue out at [Appellant], and he warned her not to do it again. When she did, [Appellant] licked the inside of the victim's mouth and her tongue. In another episode, [Appellant] stuck his fingers in the victim's mouth and made her suck on them. He also made the victim lift up her shirt while he touched and licked her nipples. Similar events happened multiple times.
[Appellant's] family eventually moved into the victim's prior home, while the victim and her family resided three blocks away. The victim was close to ten years old at the time. The two residences were in walking distance to each other, and [Appellant] continued to babysit the victim.
The two often spent time in [Appellant's] bedroom. The victim testified that Appellant once removed two vibrators from a dresser drawer. He placed them on the victim's legs and explained that it was supposed to make her feel good. He then removed the victim's pants and rubbed the objects between her vagina and pushed them on her clitoris. When asked if the objects penetrated her vagina, the victim responded, "they went in between the lips."
[Appellant] would regularly remove the victim's pants. In one episode he made the victim sit on top of his face and then placed his tongue in her vagina. Once,
[Appellant] made the victim bend over on all fours while he removed her pants. He then placed his finger into the victim's anus. The act was extremely painful for the victim, who pulled away and ran to the bathroom. The victim was frightened when the event caused a "mucousy" discharge. [Appellant] laughed and told the victim that it would be "okay."
[Appellant] also forced the victim to perform oral sex on him. The victim recalled gagging and pulling away. These sexual assaults occurred almost every time the victim was at [Appellant's] residence. On another occasion, [Appellant] made the victim [lie] down on the bed, while he put his penis in between her thighs and then ejaculated. [Appellant's] semen contacted the victim's pants and thighs. Once, while sitting by the pool, [Appellant] placed his fingers in the victim's vagina. The victim recalled occasions where [she] and Appellant would be sitting on the couch while he would touch her vagina above her clothes or pinch her nipples.
The victim also testified that on one occasion [Appellant] removed the victim's pants, forced her to lie on the bed, and placed his penis between the lips of her vagina. [Appellant] ejaculated on the victim's legs and vagina. [Appellant] once inserted his penis into the victim's anus. The victim was subjected to extreme pain and stated that it "felt like I had been ripped." She ran to the bathroom and observed spots of blood on the toilet paper used to wipe the area.
Because of the continuous systemic abuse, the victim testified that the acts were "kind of like a normal thing, like I was kind of used to it by then. [Appellant] always told me if I would ever tell anybody, he would go to jail for a long time. He was like my best friend, so I didn't really want him to leave."
The victim also explained that [Appellant] would tell her stories of his previous sexual encounters. She recalled that he once took her to a video rental business and rented a pornographic video tape. The victim waited in the vehicle, while [Appellant] "ran" into the store, acquired the tape, and then ran back to the vehicle. At
his residence, he and the victim watched the video. He provided wine to the victim and encouraged her to drink it, which she did on one occasion. He also provided cigarettes to the victim and encouraged her to smoke them.
After a family dispute in 2005, [Appellant] and his family moved out of the residence when the victim was around [12] years old. Because the two families no longer interacted, the abuse ceased. The victim did not come forward at that time, because she did not want to cause more problems or fighting.
However, the victim ultimately came forward with her abuse in the summer of 2012. She had spoken with a close friend who encouraged her to disclose the abuse. The victim was concerned, because her cousin had two young children, which she believed resided in the same home as [Appellant]. With the encouragement from her friends, the victim told her mother. She later went to the Charleroi Police Department to report her abuse.
The victim's mother corroborated that between the years of 2003 and 2005 [she] and her husband had busy employment schedules and relied on [Appellant] and his wife to babysit their children. The victim had explained to her mother that she had been sexually assaulted for a period of time between the ages of nine and [12] years old. During that time, the victim's temper tantrums prompted mother and child to visit a medical doctor. Near the end of the two families' relationship, the victim told her mother that she no longer wanted to go to [Appellant's] home, but she did not expand on her reasons.
The final witness was Detective Lieutenant Eric Porter. [Lieutenant] Porter had been a member of the Charleroi Police Department for over [15] years. The victim was interviewed by [Lieutenant] Porter and a criminal complaint was prepared. Due to the length of time between the abuse and its reporting, there was no attempt to collect any physical evidence by means of a rape kit or other physical medical examination. He
testified that it was common for minor children to not come forward for a long period of time.
Commonwealth v. Graham , 122 A.3d 1134 (Pa. Super. 2015) (unpublished memorandum) at 1-5 (internal footnotes omitted) (some internal quotations, citations, and corrections omitted).
[Trial Court Opinion, 6/6/14, at 2-5].
Appellant did not testify or present any exhibits or witnesses on his behalf. On September 17, 2013, the jury found Appellant guilty on all counts.
The trial court sentenced Appellant in December 2013. However, on June 16, 2015, this Court vacated Appellant's judgment of sentence and remanded for resentencing. Id. at 16.
The trial court resentenced Appellant on July 28, 2015; it ordered that Appellant serve an aggregate term of 46 to 92 years in prison for his convictions and register, for 15 years, in accordance with the Sexual Offender Registration and Notification Act ("SORNA"), 42 Pa.C.S.A. §§ 9799.10-9799.41.
Appellant did not file a direct appeal from his judgment of sentence. Instead, Appellant filed the current PCRA petition on September 24, 2015. Appellant raised numerous claims in his pro se PCRA petition, including: trial counsel was ineffective for failing to object to prosecutorial misconduct during the Commonwealth's opening statement, where the Commonwealth made "improper remarks regarding the credibility of the complaining witness" and declared that Appellant "was a laborer" and had been "laid off quite a bit;" trial counsel was ineffective for failing to object to prosecutorial misconduct during the Commonwealth's closing argument, where the Commonwealth made remarks that were not supported by the evidence; trial counsel was ineffective for failing to investigate and prepare a defense; trial counsel was ineffective for failing to impeach the credibility of the complaining witness; and, prior counsel were ineffective for failing to challenge the sufficiency of Appellant's rape conviction. Appellant's Pro Se PCRA Petition, 9/24/15, at 1-18.
The PCRA court appointed counsel to represent Appellant during the post-conviction proceedings. See Trial Court Order, 10/21/15, at 1. However, on January 21, 2016, appointed counsel filed a no-merit letter and a request to withdraw as counsel, pursuant to Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) (en banc).
After reviewing counsel's Turner / Finley letter, and an objection filed by Appellant, the PCRA court entered an order that granted counsel's petition to withdraw and notified Appellant that it intended to dismiss the PCRA petition in 20 days, without holding a hearing. See PCRA Court Order, 6/1/16, at 1; Pa.R.Crim.P. 907(1). The PCRA court finally dismissed Appellant's PCRA petition on July 21, 2016. PCRA Court Order, 7/21/16, at 1-2.
Appellant filed a timely notice of appeal and now raises two claims to this Court:
[1.] Failure of trial counsel [to] investigate and prepare a defense.Appellant's Brief at 4 (some internal capitalization omitted).
[2.] Failure of trial counsel to object to the prosecutor's argument, remarks and alleged expert opinion during her opening statement and closing argument.
We have reviewed Appellant's brief, the relevant law, the certified record, the notes of testimony, and the opinion of the able PCRA court judge, President Judge Katherine B. Emery. We conclude that President Judge Emery's opinion, entered on December 27, 2016, meticulously and accurately disposes of Appellant's meritless claims on appeal. Therefore, we affirm on the basis of President Judge Emery's thorough opinion and adopt it as our own. In any future filing with this or any other court addressing this ruling, the filing party shall attach a copy of President Judge Emery's opinion with the name of the victim redacted.
The Commonwealth did not file a brief in this case.
On August 14, 2017, Appellant filed, in this Court, a "Motion for Relief Pursuant to Pa.R.A.P. 123 Request to Expand the Record Due to Newly Announced Rule of Law" (hereinafter "Appellant's Motion for Relief"). Within Appellant's Motion for Relief, Appellant cited the Pennsylvania Supreme Court's recent opinion in Commonwealth v. Muniz , ___ A.3d ___, 2017 WL 3173066 (Pa. 2017), where the Supreme Court held that the registration requirements of SORNA constitute punishment for purposes of the federal and state constitutions. In accordance with Muniz , Appellant requested that this Court "vacate all portions of the sentence issued in this matter pertaining to SORNA registration and notification." Appellant's Motion for Relief, 8/14/17, at 1 (some internal capitalization omitted). Since Muniz was not filed until July 19, 2017, Appellant (obviously) did not include the claim in his PCRA petition. Therefore, Appellant is not entitled to relief on his claim. See 42 Pa.C.S.A. § 9543(a) ("[t]o be eligible for relief under th[e PCRA], the petitioner must plead and prove by a preponderance of the evidence all of the following. . .") (emphasis added); Pa.R.A.P 302(a) ("[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal"). Further, to the extent Appellant views his current motion as a subsequent PCRA petition, we note:
when an appellant's PCRA appeal is pending before a court, a subsequent PCRA petition cannot be filed until the resolution of review of the pending PCRA petition by the highest state court in which review is sought, or upon the expiration of the time for seeking such review. If the subsequent petition is not filed within one year of the date when the judgment became final, then the petitioner must plead and prove that one of the three exceptions to the time bar under 42 Pa.C.S. § 9545(b)(1) applies. The subsequent petition must also be filed within sixty days of the date of the order which finally resolves the previous PCRA petition, because this is the first "date the claim could have been presented." 42 Pa.C.S. § 9545(b)(2).Commonwealth v. Lark , 746 A.2d 585, 588 (Pa. 2000) (internal footnote omitted).
Appellant's "Motion for Relief Pursuant to Pa.R.A.P. 123 Request to Expand the Record Due to Newly Announced Rule of Law" denied. Order affirmed. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/12/2017
Image materials not available for display.