Opinion
J-S96042-16 No. 1060 WDA 2016
04-05-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. FRED AUGUSTA MITCHELL Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Dated July 13, 2016
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0001539-2013 BEFORE: BENDER, P.J.E., BOWES, J., and SOLANO, J. MEMORANDUM BY SOLANO, J.:
Appellant Fred Augusta Mitchell appeals from the order denying his petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
The following facts and procedural history are set forth in the PCRA court's opinion.
On January 8, 2014, a three-day jury trial commenced against Appellant for charges of rape by forcible compulsion, rape of a child, involuntary deviate sexual intercourse (IDSI) by forcible compulsion, IDSI with a complainant who is less than sixteen years of age, aggravated indecent assault by forcible compulsion, aggravated indecent assault against a complainant who is less than thirteen years of age, indecent assault by forcible compulsion, and indecent assault against a complainant who is less than thirteen years of age. At trial, the Commonwealth presented testimony by the minor victim, her mother, her paternal grandmother, a forensic interviewer, and an expert in pediatric child abuse. The Commonwealth also introduced into evidence a video
recording of the interview between the minor victim and the forensic interviewer. After the Commonwealth rested, two defense witnesses testified.
On January 10, 2014, the jury found Appellant guilty of all charged offenses. Thereafter, the Commonwealth filed a notice of intention to seek a mandatory minimum sentence pursuant to 42 Pa.C.S. § 9718(a). On April 3, 2014, the trial court held a sentencing hearing. The court imposed an aggregate sentence of forty (40) to eighty (80) years of imprisonment. Additionally, the court found Appellant to be a sexually violent predator (SVP) and required him to register for life pursuant to Pennsylvania's Sexual Offender Registration and Notification Act (SORNA).
Appellant filed a timely appeal to the appellate court. On January 22, 2015, the Superior Court affirmed the convictions and denied all five of Appellant's concise issues. However, the Superior Court addressed Appellant's sentence sua sponte. The Superior Court vacated Appellant's sentence and remanded to this Court, instructing that Appellant be resentenced without considering the mandatory minimum at Section 9718.
This Court resentenced Appellant on March 6, 2015, pursuant to the Superior Court's instructions and without contemplating the mandatory minimum at Section 9718. Appellant was sentenced to a term of imprisonment of not less than thirty-nine (39) years nor more than seventy-eight (78) years. Appellant filed a post-sentence modification of sentence; it was denied on March 11, 2015. Appellant again filed a timely appeal to the Superior Court. Since "Appellant merely reproduce[d] verbatim the arguments presented in his prior appellate brief[, the Superior Court did] not consider those arguments a second time." Commonwealth v. Mitchell , 438 WDA 2015, unpublished memorandum at 7.
On December 28, 2015, Appellant filed a pro se Petition for Post-Conviction Collateral Relief. On January 4, 2016, this Court appointed James V. Natale, Esquire, who subsequently filed an amended petition. Appellant asserted his counsel from the Fayette County Public Defender's Office was ineffective for failing to request a court-appointed psychological expert for his hearing to
determine whether he was a SVP and ineffective for waiting until the day of trial to view video evidence of the minor victim's interview with the forensic interviewer. A hearing on the PCRA petition was held on July 12, 2016.
Appellant testified at the PCRA hearing. On the issue of the determination of his status as a SVP, Appellant testified that:
(1) He was not aware of the consequences of being deemed a SVP;
(2) He was not aware of his rights during a SVP hearing;
(3) He did not know if he requested his attorney to have his own expert at the SVP hearing;
(4) A SVP hearing was not held; and
(5) He did not stipulate to the conclusions from the expert's report on behalf of the Commonwealth that he was a SVP.
Appellant also testified on the issue of his trial counsel being ineffective. He testified that he was not aware of the drawings made by the minor victim and the videotaped statements of the minor victim until the day of trial. However, he did not know when his trial counsel became aware and viewed this evidence.
On the other hand, the Commonwealth presented testimony from Appellant's trial counsel, Attorney Deanna Liptak, Esquire. Attorney Liptak stated that she received and personally reviewed the file a week before trial, including drawings attached to the discovery packet. She also testified that while she viewed the videotape of the minor victim's interview the morning of trial, the video was entirely consistent with the discovery she previously reviewed and corroborated the other evidence presented at trial by the Commonwealth.
The Commonwealth also presented testimony from Appellant's sentencing counsel, Attorney Charity Grimm Krupa, Esquire. Attorney Krupa testified that a full SVP hearing at the time of sentencing did not take place because Appellant narrowly stipulated, without agreeing to
the conclusion that Appellant was a SVP, that the Commonwealth's expert would testify to the contents of his report. Attorney Krupa further testified that she would have told Appellant that he had a right to call an expert witness on his behalf. After the hearing, this Court denied Appellant's Amended PCRA Petition.PCRA Ct. Op., 9/9/16, at 2-5 (footnotes omitted). The PCRA court denied Appellant's petition on July 13, 2016. Appellant filed a timely Notice of Appeal.
In this appeal, Appellant raises the following issues:
Whether the PCRA court erred in not finding defense counsel ineffective for failing to inform defendant of his right to a court-appointed psychological expert?Appellant's Brief at 3.
Whether the PCRA court erred in not finding defense counsel ineffective for failing to watch the alleged victim's videotaped statement until the day of the trial?
In reviewing the propriety of an order granting or denying PCRA relief, this Court is limited to ascertaining whether the evidence supports the determination of the PCRA court and whether the ruling is free of legal error. Commonwealth v. Payne , 794 A.2d 902, 905 (Pa. Super.), appeal denied , 808 A.2d 571 (Pa. 2002). This Court defers to the findings of the PCRA court, which will not be disturbed unless they have no support in the certified record. Id. "Further, the PCRA court's credibility determinations are binding on this Court, where there is record support for those determinations." Commonwealth v. Anderson , 995 A.2d 1184, 1189 (Pa. Super.), appeal denied , 9 A.3d 626 (Pa. 2010).
To obtain relief under the PCRA premised on a claim that counsel was ineffective, a petitioner must demonstrate that: "(1) the underlying claim is of arguable merit; (2) counsel had no reasonable strategic basis for his or her action or inaction; and (3) petitioner was prejudiced by counsel's act or omission." Payne , 794 A.2d at 905-06. A claim of ineffectiveness will be denied if the petitioner's evidence fails to meet any of these prongs. Commonwealth v. Keaton , 45 A.3d 1050, 1061 (Pa. 2012).
After careful review of the record, the parties' briefs, and the opinion of the Honorable Joseph M. George, Jr., we affirm on the basis of the PCRA court's opinion. See PCRA Ct. Op. at 7-9 (holding (1) Appellant failed to prove arguable merit of claim that his counsel failed to inform him of his right to a court-appointed psychological expert, where counsel testified credibly at PCRA hearing that she informed Appellant of that right and Appellant was uncertain about their discussion; and (2) Appellant failed to prove prejudice with respect to claim that counsel did not watch videotaped interview of victim until the morning of trial, where video was entirely consistent with other evidence). Having determined that the evidence supports the PCRA court's ruling and that the ruling is free of legal error, see Payne , 794 A.2d at 905, we affirm the PCRA court's order. The parties are instructed to attach a copy of the PCRA court's opinion of September 9, 2016, to all future filings that reference this Court's decision.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/5/2017
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