Opinion
J-S69003-18 No. 766 MDA 2018
12-28-2018
COMMONWEALTH OF PENNSYLVANIA, Appellee v. DENNIS LEE WALLS, SR., Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered April 4, 2018
In the Court of Common Pleas of Adams County
Criminal Division at No(s): CP-01-CR-0000288-2015 BEFORE: BENDER, P.J.E., LAZARUS, J., and MURRAY, J. MEMORANDUM BY BENDER, P.J.E.:
Appellant, Dennis Lee Walls, Sr., appeals from the post-conviction court's April 4, 2018 order denying his first, timely petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.
In December of 2015, Appellant was tried before a jury for various offenses, including rape. The testimony of the victim in this case, J.D., can be summarized as follows. J.D. testified that she was in a relationship with Appellant for approximately two years, but they had broken up on March 2, 2015. N.T. Trial, 12/8/15, at 36, 37. Nevertheless, Appellant was still living with J.D. on March 7th of that year. Id. at 37. That day, J.D. went to work and when she got home, she lay in bed with Appellant, who was watching a movie. Id. at 38, 39. J.D. testified that Appellant began rubbing her stomach and she told him to stop. Id. at 39. At that point, Appellant got up and walked out of the room, and J.D. went to sleep. Id.
J.D. claimed that she awoke a short time later and saw Appellant "sitting ... oddly" on the bed like he was "lost." Id. at 40. J.D. asked Appellant what he was doing, and Appellant "got angry. He leaned down and came up with a gun[,]" which he "put ... to the side of [J.D.'s] head." Id. Appellant cocked the gun and repeatedly said, "didn't I tell you not to fuck with me[?]" Id. at 42. J.D. testified that she was terrified for her life. Id. Appellant then "told [J.D.] that [she] had a choice to be with him or to be dead[,]" at which point she "started to cry, but [she] told him that [she] would be with him." Id. at 43.
Appellant then "put the gun in his own mouth and said that he was going to kill himself." Id. J.D. tried to calm Appellant down, but she "started crying bad." Id. at 44. Appellant put the gun on his lap and tried to comfort J.D. Id. J.D. claimed that Appellant eventually put the gun on the floor, hugged her, and told her that "his boys" - whom J.D. believed meant members of a gang to which Appellant belonged - "knew who [J.D.] was, where [she] lived, who [her] son was, where [her] parents lived, and that if [she] told someone, that they'd come after [her], that they were going to be calling and checking in on him and if he didn't answer his phone, then they would know [J.D.] called the cops and they'd come after [her]." Id. at 45.
J.D. testified that Appellant then moved the gun underneath the nightstand about three to four feet away from her and told her "that he wanted to have sex." Id. at 48. J.D. told Appellant that she did not want to have sex, but he continued his advances by "trying to take her pants off." Id. at 49. J.D. then "told [Appellant] to just get it over with." Id. J.D. testified that she relented because she "was scared," based on Appellant's having put a gun to her head, and she was "not going to fight him." Id. at 50. Appellant and J.D. had intercourse, during which J.D. "had [her] hands over [her] eyes crying." Id. at 51. J.D. claimed that she did not consent to the sexual encounter with Appellant. Id. at 52. After intercourse, J.D. testified that Appellant received "two phone calls" that "[h]e said ... were from his boys." Id. at 54. Appellant told J.D. that he was "going to meet one of them to give the gun back" at a Sheetz gas station. Id. at 54, 55. Appellant "got the gun and put it in a plastic bag," after which he took J.D.'s phone "so [she] wouldn't try anything stupid like calling the police." Id. at 55.
The next day at work, J.D. told a coworker, Brittany Eline, about the incident, and the coworker called the police. Id. at 61. Littlestown Police Officer Gary Gearhart responded to the report. Id. J.D. gave Officer Gearhart consent to search a truck that was owned by both J.D. and Appellant, and in the truck, the officer "found the gun in the plastic bag under the driver's seat...." Id. at 64, 85. J.D. testified that it was the same gun that Appellant had pointed at her head. Id. Upon further inspection of the gun, Officer Gearhart determined that it "was more of a toy gun" that would "shoot little white BBs out." Id. at 86. However, the officer testified that the gun looked like a real handgun. Id.
Additionally, on March 9, 2015, J.D. reported to police that she was "clearing out possessions in [her] apartment and in the nightstand drawer in a common used bedroom she had discovered a small cloth bag that she thought may have contained drug paraphernalia and some controlled substance." Id. at 95. J.D. informed police that the drawer where she discovered the contraband was exclusively used by Appellant. Id. at 96. Police ultimately retrieved the bag from J.D., and later testing of several "clear capsules" discovered in the bag revealed that they "contained Fentanyl, a Schedule II controlled substance...." Id. at 97, 104. Based on these facts, Appellant was arrested and charged with various offenses.
On December 8, 2015, Appellant's jury trial was conducted. At the close thereof, Appellant was convicted of rape by forcible compulsion, 18 Pa.C.S. § 3121(a)(1); sexual assault, 18 Pa.C.S. § 3124.1; intimidation of a witness, 18 Pa.C.S. § 4952(a)(1); terroristic threats, 18 Pa.C.S. § 2706(a)(1); indecent assault, 18 Pa.C.S. § 3126(a)(1); and simple assault, 18 Pa.C.S. § 2701(a)(3). Appellant was sentenced on April 18, 2016, to an aggregate term of 16 to 34 years' incarceration.
Appellant was acquitted of possession of a controlled substance, 35 P.S. § 780-113(a)(16), and possession of drug paraphernalia, 35 P.S. § 780-113(a)(32).
Appellant did not file a direct appeal. Instead, on April 13, 2017, he filed a timely, counseled PCRA petition raising various claims of ineffective assistance of counsel (IAC). On October 23, 2017, the PCRA court conducted an evidentiary hearing. On April 4, 2018, the court issued an order and opinion denying Appellant's petition. Appellant filed a timely notice of appeal, however he failed to timely comply with the PCRA court's subsequent order to file a Pa.R.A.P. 1925(b) statement. Accordingly, on May 30, 2018, the PCRA court issued a Rule 1925(a) opinion concluding that Appellant's issues were waived, but noting that its reasons for denying his petition were fully set forth in its April 4, 2018 opinion. See Trial Court Opinion, 5/30/18, at 1.
On June 7, 2018, Appellant filed a "nunc pro tunc" Rule 1925(b) statement. Therein, he claimed that he never received the order directing him to file a concise statement. He then reiterated the same IAC claims raised in his PCRA petition, and which were addressed by the court in its April 4, 2018 opinion. Given this record, we decline to remand under Rule 1925(c)(3); instead, we will address the merits of Appellant's claims. See Commonwealth v. Burton , 973 A.2d 428, 433 (Pa. Super. 2009) (holding that, "if there has been an untimely filing, this Court may decide the appeal on the merits if the trial court had adequate opportunity to prepare an opinion addressing the issues being raised on appeal").
Herein, while Appellant sets forth one IAC issue in his Statement of the Questions, in his Argument section, he divides that issue into fourteen sub- claims of trial counsel's ineffectiveness. Initially, "we note that it has been held that when an appellant raises an extraordinary number of issues on appeal, as in this case, a presumption arises that there is no merit to any of them." Estate of Lakatosh , 656 A.2d 1378, 1380 n.1 (Pa. Super. 1995). "Appellate advocacy is measured by effectiveness, not loquaciousness." Id.
Specifically, Appellant states:
Whether the trial court erred in refusing to grant [Appellant's] request for PCRA relief on the basis of ineffective assistance of [Appellant's] prior counsel, where prior counsel's multiple failures and deficiencies so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.Appellant's Brief at 2.
We also observe that, aside from citing the general legal principles concerning IAC claims at the start of his Argument, Appellant does not cite or discuss any legal authority to support his fourteen claims of counsel's ineffectiveness. We remind Appellant that,
[w]hen briefing the various issues that have been preserved, it is an appellant's duty to present arguments that are sufficiently developed for our review. The brief must support the claims with pertinent discussion, with references to the record and with citations to legal authorities. Citations to authorities must articulate the principles for which they are cited.Commonwealth v. Hardy , 918 A.2d 766, 771 (Pa. Super. 2007) (citations omitted; emphasis added).
This Court will not act as counsel and will not develop arguments on behalf of an appellant. Moreover, when defects in a brief impede our ability to conduct meaningful appellate review, we may dismiss the appeal entirely or find certain issues to be waived.
Notwithstanding the inadequacy of Appellant's brief, we were able to conduct a meaningful review of his appellate claims. We have also reviewed the Commonwealth's brief, the certified record, the applicable legal authority, and the well-reasoned decision of the Honorable Thomas R. Campbell of the Court of Common Pleas of Adams County that was filed on April 4, 2018. We conclude that Judge Campbell's rationale for rejecting Appellant's ineffectiveness claims is supported by the record, and Appellant's legally-unsupported arguments do not demonstrate any error by Judge Campbell in denying his petition. Commonwealth v. Morales , 701 A.2d 516, 520 (Pa. 1997) (citing Commonwealth v. Travaglia , 661 A.2d 352, 356 n.4 (Pa. 1995)) ("This Court's standard of review from the grant or denial of post-conviction relief is limited to examining whether the lower court's determination is supported by the evidence of record and whether it is free of legal error."). Accordingly, we adopt Judge Campbell's decision as our own, and affirm the order denying Appellant's PCRA petition on that basis.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/28/2018
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