Opinion
819 WDA 2021
09-12-2022
COMMONWEALTH OF PENNSYLVANIA v. CHRISTOPHER W. BLAKE Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered April 10, 2019 In the Court of Common Pleas of Mercer County Criminal Division at CP-43-CR-0001506-2013
BEFORE: PANELLA, P.J., MURRAY, J., and COLINS, J. [*]
MEMORANDUM
MURRAY, J.
Christopher W. Blake (Appellant) appeals nunc pro tunc from the order denying her first petition for relief filed pursuant to the Post Conviction Relief Act ("PCRA"), following this Court's reinstatement of her PCRA appeal rights. See Commonwealth v. Blake, 258 A.3d 528 (Pa. Super. 2021) (unpublished memorandum at *9) (determining Appellant's allegations fall within the "narrow ambit of cases involving attorney abandonment ... to satisfy the timebar exception" for filing an appeal). Appellant's counsel, Michael T. Muha, Esquire (Attorney Muha), has filed a petition to withdraw from representation and a brief purportedly in accordance with Anders v. California, 386 U.S. 738 (1967). After careful review, we grant counsel's petition to withdraw and affirm the PCRA court's order.
Appellant submitted a letter to the trial court dated December 29, 2019, indicating that Appellant now identifies as transgender. Appellant's preferred gender pronouns are "her, she, mam, Ms." (Letter, dated 12/29/19, at 1 unpaginated).
Counsel seeking to withdraw on collateral appeal must comply with the dictates of Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). However, as we discuss below, Anders imposes stricter requirements than the Turner/Finley structure. See Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super. 2004). Accordingly, we accept Attorney Muha's Anders brief in support of his petition to withdraw.
We previously summarized the history of this case as follows:
On September 17, 2014, a jury found [Appellant] guilty of two (2) counts of each of the following: Rape of a Child, [Involuntary Deviate Sexual Intercourse (IDSI)] with a Child, Aggravated Indecent Assault of a Child, Unlawful Contract with a Minor- Sexual Offenses, Unlawful Contact with a Minor-Obscene and other explicit sexual materials, Corruption of a Minor, and Indecent Assault. [See 18 Pa.C.S.A. §§ 3121(c), 3123(b), 6318(a)(1), 6318(a)(4), 6301(a)(1), 3126(a)(7).] The basis of these charges is that from approximately June 2008 to October 2009, [Appellant] performed numerous sexual acts on two minor children who were under his care at the time. These acts included [Appellant] penetrating the child victims' genitals and anuses (both with his penis and digitally), [Appellant] performing oral sex on the children, [Appellant] forcing the children to perform oral sex on [Appellant], and [Appellant] showing the children sexually explicit materials. The two children were approximately 5 and 6 years old during this period.
... [Following a hearing, the trial c]ourt found that the Commonwealth met its burden of proving [Appellant to be] a [sexually violent predator] by clear and convincing evidence. The [c]ourt sentenced [Appellant] to a total of 67 to 134 years of incarceration the same day.1 The [c]ourt sentenced [Appellant] within the standard range for each offense and ran consecutively
the two sentences each of Rape of a Child, [IDSI], and Aggravated Indecent Assault of a child.
1 The sentences for the remaining offenses were also within the standard guidelines and ran concurrently to the other sentences imposed. [The record reflects the trial court did not impose mandatory minimum sentences for any of Appellant's convictions.]
Before and during trial, [the trial c]ourt denied several of [Appellant's] motions that formed the basis of his Post-Sentence Motion....
[A]t the initiation of trial, the [c]ourt overruled [Appellant's] objection to permitting the Commonwealth to provide evidence of [Appellant's] 2011 Theft by Unlawful Taking conviction should [Appellant] testify at trial. The [c]ourt overruled the objection because it found that the conviction was per se admissible under Pa.R.E. 609(a) because it was crimen falsi and was less than 10 years old. Further, the [c]ourt took care to instruct the jury in this case to consider the conviction solely for impeachment purposes.
Finally, during the trial, [the c]ourt permitted the Commonwealth to introduce expert testimony from Kimberly Duffy [(Ms. Duffy)], a Program Development Specialist within the Department of Social Work at the University of Pittsburgh.2 After a brief hearing regarding Ms. Duffy's qualifications, training, education, and experience, the [c]ourt found that she was an expert with respect to behavioral response patterns of child victims in sexual assault cases. In so finding, the [c]ourt ruled that this testimony involved an area that would be beyond the normal understanding of the general public, especially because the General Assembly has specifically permitted this type of expert testimony. The [c]ourt also found that a Frye hearing was not necessary in this case because the General Assembly has said that this type of testimony is proper and because the testimony given is not "novel" science. Finally, in an abundance of caution, the [c]ourt did hold a brief Frye hearing and determined that the methodology used sentence. Commonwealth v. Blake, 134 A.3d 479 (Pa. Super. 2015)
by Ms. Duffy is generally accepted by practitioners in the relevant field.
2 [See Frye v. United States, 293 F. 1013 (D.C. 1923).] Ms. Duffy also testified that she has over 17 years of experience in the Child Welfare System, including working with the Adams County and York County Children's Advocacy Centers.
Ms. Duffy was not provided any background information on the case, and she was instructed to testify only as to her general experience with child responses (including reasons why children may delay in reporting) in sexual assault cases. Counsel for [Appellant] took part in the questioning of Ms. Duffy's credentials.Commonwealth v. Blake, 134 A.3d 479 (Pa. Super. 2015) (unpublished memorandum at *2-4) (several footnotes omitted, remaining two footnotes in original, citation omitted).
Appellant filed post-sentence motions, which the trial court denied. Appellant timely filed a direct appeal. Relevant to this appeal, Appellant raised five (5) issues in her Pa.R.A.P. 1925(b) statement of errors. Appellant claimed the trial court erred in (1) denying Appellant's Pa.R.Crim.P. 600 motion to dismiss all charges; (2) allowing the Commonwealth to offer at trial evidence of Appellant's prior conviction for theft; (3) allowing the Commonwealth to amend the criminal information on the eve of trial; (4) allowing Ms. Duffy to testify as an expert witness; and (5) imposing a manifestly excessive aggregate sentence. See Statement of Errors, 9/1/20, at 1.
On November 4, 2015, this Court affirmed Appellant's judgment of (unpublished memorandum). This Court adopted the trial court's conclusion that Appellant's prior theft conviction was admissible. See id. (unpublished memorandum at 5) (adopting the trial court's finding, in part, that "Appellant's prior theft conviction is less than ten years old; crimen falsi convictions which are less than 10 years old are per se admissible; [and the] court was not required to perform a test in considering admission of the conviction[.]"). We further concluded Appellant waived her undeveloped challenge to Ms. Duffy's testimony. Id. (unpublished memorandum at *6). The Pennsylvania Supreme Court denied allowance of appeal. Commonwealth v. Blake, 135 A.3d 582 (Pa. 2016).
Thereafter:
On April 6, 2017, Appellant [timely] filed her initial PCRA Petition challenging the effectiveness of [direct appeal counsel] for failing to pursue the above-noted issues of Appellant's appeal. Melissa Merchant-Calvert ("Attorney Calvert") was appointed to represent Appellant in her initial PCRA Petition. After a conference, the issues were reduced to whether [direct appeal counsel] was ineffective for failing to pursue the issues relative to Rule 600, the Commonwealth's amendment of the Information, whether Appellant should have been classified as a sexually violent predator, and merger of the offenses for sentencing purposes.
Both the Commonwealth and Appellant submitted briefs to the [PCRA] court. On April 10, 2019, the [c]ourt denied Appellant's initial PCRA Petition. Appellant sent Attorney Calvert a letter dated May 20, 2019 requesting Attorney Calvert file a notice of appeal on Appellant's behalf. ... [Attorney Calvert responded to Appellant's letter on June 6, 2019, explaining that Appellant's request was untimely and, even if it was not, Appellant failed to provide a basis for an appeal.] Attorney Calvert never filed a notice of appeal on behalf of Appellant. Appellant then filed a second PCRA Petition on June 27, 2019 alleging ineffective assistance of counsel due to Attorney Calvert's failure to file a
notice of appeal to the Superior Court following the [c]ourt's denial of Appellant's initial PCRA Petition.
[The PCRA c]ourt appointed Attorney Dustin Cole ("Attorney Cole") to serve as Appellant's counsel. Attorney Cole understood Appellant's Second Petition to raise a single issue for PCRA review: (1) Attorney Calvert was ineffective in failing to file a notice of appeal to the Superior Court following the [c]ourt's denial of Appellant's initial PCRA Petition. On January 27, 2020, Attorney Cole filed a Motion to Withdraw as Counsel along with a Turner/[Finley] no merit letter. Attorney Cole's Motion to Withdraw as Counsel was granted by Order dated January 30, 2020 and filed on February 4, 2020.
On February 24, 2020, Appellant filed a Notice of Appeal to appeal the Order entered in this matter on the "30th day of January, 2020 by the Honorable Robert G. Yeatts, denying Post-Conviction Relief in the above-captioned matter." However, [the PCRA c]ourt did not enter an Order denying Appellant's Second Post-Conviction Relief Petition on January 30, 2020. Instead, [the court] entered an Order granting ... [Attorney] Cole's Motion to Withdraw as Counsel dated January 30, 2020 and filed on February 4, 2020.
... [On June 8, 2020], the Superior Court of Pennsylvania issued an Order quashing [Appellant's] appeal for being premature because no final order had been issued by the [PCRA] court. . [The PCRA court] filed the PCRA Opinion and Notice of Intent to Dismiss on June 29, 2020.
On July 20, 2020, Appellant filed a response to [the PCRA court's] Notice of Intent to Dismiss. . [The c]ourt . ultimately dismissed Appellant's second PCRA Petition filed on June 27, 2019.Commonwealth v. Blake, 258 A.3d 528 (Pa. Super. 2021) (unpublished memorandum at *3-4) (footnote omitted). Appellant timely appealed.
On June 15, 2021, this Court vacated the PCRA court's order and remanded for further proceedings. See id. (unpublished memorandum at *9). We concluded the PCRA court erred by not conducting an evidentiary hearing on Appellant's claim of abandonment by counsel for not filing a requested appeal from the denial of Appellant's first PCRA petition. See id. ("Nevertheless, whether Appellant can succeed on the merits of her claim (namely, whether Appellant verbally requested counsel to file an appeal on her behalf or whether counsel had a duty to consult with Appellant about filing an appeal) are questions that require further fact-finding by the PCRA court.").
On remand and following an evidentiary hearing, the PCRA court granted Appellant's second PCRA petition and reinstated her right to appeal the denial of her first PCRA petition, nunc pro tunc. PCRA Court Order, 7/2/21. Appellant timely filed her nunc pro tunc appeal of the PCRA court's April 10, 2019, order denying her first PCRA petition. Appellant and the PCRA court have complied with Pa.R.A.P. 1925.
On June 30, 2022, Attorney Muha filed with this Court an application to withdraw and Anders brief. As stated previously, the procedure set forth in Anders is not appropriate for withdrawing from PCRA representation, as counsel seeking to withdraw on collateral appeal must follow the procedure outlined in Turner/Finley. Pertinently:
Appellant has not filed a pro se brief or retained new counsel.
Turner/Finley counsel must review the case zealously. Turner/Finley counsel must then submit a "no-merit" letter to the trial court, or brief on appeal to this Court, detailing the nature and extent of counsel's diligent review of the case, listing the issues which the petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the "nomerit" letter/brief; (2) a copy of counsel's petition to withdraw; and (3) a statement advising petitioner of the right to proceed pro se or by new counsel.
... [W]here counsel submits a petition and "no-merit" letter that do satisfy the technical demands of Turner/Finley, the court - [PCRA] court or this Court - must then conduct its own review of the merits of the case. If the court agrees with counsel that the claims are without merit, the court will permit counsel to withdraw and deny relief. By contrast, if the claims appear to have merit, the court will deny counsel's request and grant relief, or at least instruct counsel to file an advocate's brief.Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (citations omitted). Because an Anders brief provides greater protection to a defendant, we may accept Attorney Muha's Anders brief in lieu of a Turner/Finley letter. See Commonwealth v. Daniels, 947 A.2d 795, 798 (Pa. Super. 2008) (stating an Anders brief which complies substantially with the requirements of Turner/Finley is sufficient to permit withdrawal of counsel).
Upon review, Attorney Muha has satisfied the requirements of Turner/Finley. Attorney Muha (1) set forth the issues Appellant wished to raise; (2) stated he has conducted a thorough review of the record and applicable law; (3) determined there are no non-frivolous claims Appellant can raise; and (4) explained why Appellant's claims lack merit. Attorney Muha has notified Appellant by letter of his intention to seek permission to withdraw from representation, and Appellant's rights in lieu of representation. Application to Withdraw, 6/30/22, at 3 (unnumbered). Since counsel has complied with Turner/Finley, we independently review Appellant's appeal.
Appellant's brief identifies the following issues for review:
Was [Appellant's] prior counsel ineffective on appeal for failing to pursue particular issues in [Appellant's] direct appeal?
i. [Whether] there are no non-frivolous issues regarding [Appellant's] Rule 600 rights[?]
ii. [Whether] there are no non-frivolous issues regarding [Appellant's] criminal information being amended[?]
iii. [Whether] there are no non-frivolous issues regarding an expert witness testifying during [Appellant's] trial[?]Appellant's Brief at 11 (unnecessary capitalization omitted).
In reviewing an order denying a PCRA petition, our standard of review "is limited to examining whether the PCRA court's determination is supported by the evidence of record and whether it is free of legal error." Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa. Super. 2019) (citation and internal quotation marks omitted). "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." Commonwealth v. Mitchell, 105 A.3d 1257, 1265 (Pa. 2014) (citation omitted).
Appellant claims ineffective assistance of prior counsel. We presume counsel was effective and a petitioner bears the burden of proving otherwise. Commonwealth v. Brown, 161 A.3d 960, 965 (Pa. Super.2017). A petitioner may overcome the presumption by pleading and proving all of the following: "(1) the underlying legal claim has arguable merit; (2) counsel had no reasonable basis for his or her action or inaction; and (3) the petitioner suffered prejudice because of counsel's ineffectiveness." Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011). A petitioner's failure to prove any one of these elements defeats the ineffectiveness claim. Commonwealth v. Dennis, 950 A.2d 945, 954 (Pa. 2008).
In her first issue, Appellant claims direct appeal counsel rendered ineffective assistance by not adequately developing her claim of a Pa.R.Crim.P. 600 violation. See Appellant's Brief at 17 (inquiring whether there are non-frivolous issues regarding counsel's failure to pursue a Rule 600 issue and concluding that appellate counsel had a reasonable basis for not raising this claim).
We recognize:
Our standard of review relating to the application of Rule 600 is whether the trial court abused its discretion. Our scope of review is limited to the evidence on the record of the Rule 600 evidentiary hearing and the findings of the trial court. We must view the facts in the light most favorable to the prevailing party.Commonwealth v. Robbins, 900 A.2d 413, 415 (Pa. Super. 2006) (citation omitted).
Pennsylvania Rule of Criminal Procedure 600 provides that "[t]rial in a court case in which a written complaint is filed against the defendant shall commence within 365 days from the date on which the complaint is filed." Pa.R.Crim.P. 600(A)(2)(a). In computing the Rule 600 deadline, we do not necessarily count all time following the filing of the complaint. Rather,
periods of delay at any stage of the proceedings caused by the Commonwealth when the Commonwealth has failed to exercise due diligence shall be included in the computation of the time within which trial must commence. Any other periods of delay shall be excluded from the computation.Pa.R.Crim.P. 600(C)(1). The Commonwealth has the burden of demonstrating by a preponderance of the evidence that it exercised due diligence. Commonwealth v. Bradford, 46 A.3d 693, 701 (Pa. 2012). "[D]ue diligence is fact-specific, to be determined case-by-case; it does not require perfect vigilance and punctilious care, but merely a showing the Commonwealth has put forth a reasonable effort." Id. at 701-02.
Our review of the record discloses the Commonwealth filed its criminal complaint against Appellant on August 8, 2013. Complaint, 9/8/13. At the Rule 600 hearing, the parties agreed to a mechanical run date of August 8, 2014. N.T., 9/12/14, at 5. The record further reflects the trial court scheduled a preliminary hearing for August 29, 2013. Id. at 6. The hearing was continued until October 15, 2013. Id. at 7. At a hearing on Appellant's Rule 600 motion to reduce bond, defense counsel admitted this time was excluded for Rule 600 purposes. Id. Notwithstanding, at the September 12, 2014, Rule 600 hearing, defense counsel disputed the party responsible for that delay. Id. at 7-8. The trial court responded:
THE COURT: Well, at the April 3rd hearing on your motion under Rule 600, ... [you] did not present much argument at all against
it, and relied on your motion, and the Court made a finding that that was excludable time. So I think that would shift the burden to you to change the ruling on that period of time.Id. at 8. The court explained:
There were really no facts developed by evidence at the April 3, 2014 hearing. It was pretty much argument between the lawyers, and also looking at the transcript of the record from the Clerk's office, there is a notation on there that the original preliminary hearing on August 29th was continued at the request of [Appellant]; that is what came over on the record from the Magistrate.
So on the face of the record and on the representations of defense counsel and my reading of the motion, that is how the determination was made it was excludable. So now [Appellant's counsel] wants to present evidence to the contrary. ... I am going to give you an opportunity to develop a record for yourself.Id. at 9-10.
Nicole Howard (Attorney Howard), Appellant's counsel at the time of the continuance, explained that prior to the August 29, 2013, hearing, she and the Commonwealth discussed a continuance. Id. at 19. According to Attorney Howard, the Commonwealth sought a continuance to prepare a motion to record the victims' testimony. Id. Attorney Howard testified that she, too, wanted a continuance, because a continuance would benefit Appellant. Id. at 19-20. Attorney Howard further confirmed she had discussed with Appellant the Rule 600 waiver. Id. at 20. Appellant presented no further witnesses at the Rule 600 hearing. On this basis, the trial court deemed the disputed time period "excludable." Id. at 21-22.
Based on the foregoing, Appellant failed to establish arguable merit to her Rule 600 issue, which was necessary for her claim of ineffective assistance of counsel. See Paddy, 15 A.3d at 442. Therefore, we agree with Attorney Muha's conclusion that the claim lacks merit and is frivolous. See Appellant's Brief at 18-19.
Appellant next claims direct appeal counsel rendered ineffective assistance by not pursuing her challenge to the Commonwealth's amendment of the criminal information. See id. at 21. As Attorney Muha points out, the original criminal information charged Appellant with six counts of aggravated indecent assault and two counts of aggravated indecent assault of a child. Id. at 19. On September 16, 2014, the day before trial, the Commonwealth moved to amend the information to include two counts each of rape of a child and involuntary deviate sexual intercourse with a child. N.T., 9/16/14, at 4. Appellant had claimed undue prejudice caused by late filing of the amendment, and because "the new charges would increase the potential sentence exponentially due to their severity in nature ...."" Appellant's Brief at 20. There is no arguable merit to Appellant's claim.
Pennsylvania Rule of Criminal Procedure 564 governs the amendment of a criminal information:
The Court may allow an information to be amended, provided that the information as amended does not charge offenses arising from a different set of events and that the amended charges are not so materially different from the original charge that the defendant would be unfairly prejudiced. Upon amendment, the
court may grant such postponement of trial or other relief as is necessary in the interests of justice.Pa.R.Crim.P. 564. When considering a Pa.R.Crim.P. 564 amendment,
the court will look to whether the appellant was fully appraised of the factual scenario which supports the charges against him [or her]. Where the crimes specified in the original information involved the same basic elements and arose out of the same factual situation as the crime added by the amendment, the appellant is deemed to have been placed on notice regarding his [or her] alleged criminal conduct and no prejudice to defendant results.Commonwealth v. Beck, 78 A.3d 656, 660 (Pa. Super. 2013) (citations omitted). The Commonwealth may amend the information, even on the day of trial, so long as it does not prejudice the defendant. Commonwealth v. Sinclair, 897 A.2d 1218, 1224 (Pa. Super. 2006).
As the PCRA court explained:
The original information in this case contained six counts of Aggravated Indecent Assault and two counts of Aggravated Indecent Assault of a Child. In the Aggravated Indecent Assault charges listed in the original information, the Commonwealth averred facts that [Appellant] placed his penis in the mouth and/or anus of each child, that he penetrated the genitals or anus of each child and that this was not done for good faith, medical, hygienic or law enforcement purposes. Rape of a Child requires the Commonwealth to prove that the defendant "engaged in sexual intercourse with a complainant who is less than 13 years of age." 18 Pa.C.S. § 3121(c). To prove Involuntary Deviate Sexual Intercourse, the Commonwealth must prove that the defendant "engaged in deviate sexual intercourse with a complainant who is less than 13 years of age." 18 Pa.C.S. § 3123(b). "Deviate sexual intercourse" encompasses oral and anal penetration and sexual intercourse." 18 Pa.C.S. § 3101.
[Appellant] was put on notice by the original information of the factual scenario and potential Rape and IDSI charges that could be brought against him. No new facts were alleged in
amending the information as the facts used for the original charges also apply to the new charges. [Appellant] was still on notice of the potential charges that could be brought against him and this would not have any effect on [Appellant's] trial strategy, which was to deny any crimes were committed. [Appellant's] counsel had a reasonable basis not to pursue this claim on appeal, as it had no arguable merit and would not have resulted in a different outcome; therefore, appellate counsel was not ineffective in failing to pursue this claim on appeal.PCRA Court Opinion, 4/10/19, at 8-9. We agree with the PCRA court's reasoning regarding Appellant's challenge to the information amendment. See id. Thus, we further conclude Appellant's related ineffectiveness claim lacks merit and is frivolous. See id.; see also Beck, 78 A.3d at 660; Paddy, 15 A.3d at 442.
Finally, Appellant argues direct appeal counsel rendered ineffective assistance by not challenging the expert testimony of Ms. Duffy. Appellant's Brief at 22. Appellant argues:
Ms. Duffy's testimony did not provide any information or beliefs beyond that possessed by the average lay person, was not shown to be anything but personal opinions, beliefs and claims of Ms. Duffy, was not supported or based on specialized knowledge based on general acceptance in the fields of child development, child psychology, or child behavioral science.Id. (quoting Appellant's Post-Sentence Motion, 1/30/15, at 3).
Our review confirms Attorney Muha's representation that this Court addressed Appellant's claim, in the alternative, on direct appeal. Appellant's Brief at 22; see Commonwealth v. Blake, 134 A.3d 479, 2015 Pa. Super. Unpub. LEXIS 4007, *7-8 (Pa. Super. 2015). After finding waiver, we recognized that the trial court properly admitted Ms. Duffy's testimony pursuant to 42 Pa.C.S.A. § 5920 (Expert testimony in certain criminal proceedings). Id., 2015 Pa. Super. Unpub. LEXIS 4007, *7-8. We agreed with and adopted the analysis and conclusion stated in the trial court's June 6, 2015, Opinion with regard to Appellant's claim, stating:
Section 5920 specifically governs scope of expert testimony permitted in sex abuse cases; Ms. Duffy testified only generally about her experience with children's responses in sexual assault cases; Ms. Duffy was not privy to facts of this particular case, and she did not testify regarding either specific victim in this case; Ms. Duffy's testimony regarding general child victim responses and behavior following sexual assault was admissible under Section 5920; Appellant's claim implicating [Commonwealth v.] Olivo[, 106 Berks Co. 106 Berks Co. 429 (August 27, 2013),] (Berks County Court of Common Pleas case holding Section 5920 is unconstitutional because it violates separation of powers doctrine and rulemaking authority of Pennsylvania Supreme Court) is waived because Appellant raised this claim for the first time in [her] post-sentence motion and failed to cite to Olivo during or before trial; moreover, Olivo relied on pre-Section 5920 case law; Olivo is currently pending before [the] Pennsylvania Supreme Court; in Commonwealth v. Carter, 111 A.3d 1221, 1224 (Pa. Super. 2015)], this Court expressly held expert testimony is permissible under Section 5920, and Section 5920 does not violate separation of powers doctrine).Id. at *10-11.
When this Court finds waiver, but also determines, in the alternative, that the issue lacks merit and explains the basis for its conclusions, the alternative conclusion is "a valid holding that constitutes the law of the case." Commonwealth v. Reed, 971 A.2d 1216, 1220 (Pa. 2009). Consequently, Appellant's underlying challenge to Ms. Duffy's testimony lacks merit, and her corresponding ineffectiveness claim is frivolous. See Paddy, 15 A.3d at 442.
Because we agree Appellant's claims lack merit and are frivolous, we grant Attorney Muha's Application to withdraw and affirm the PCRA court's order.
Application to withdraw granted. Order affirmed.
Judgment Entered.
[*] Retired Senior Judge assigned to the Superior Court.