Opinion
1942 EDA 2021 J-S12042-22
07-11-2022
COMMONWEALTH OF PENNSYLVANIA v. ROY WINDOM Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered August 30, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005594-2017
BEFORE: BENDER, P.J.E., BOWES, J., and DUBOW, J.
MEMORANDUM
DUBOW, J.
Appellant, Roy Windom, appeals pro se from the August 30, 2021 Order, entered in the Philadelphia County Court of Common Pleas, dismissing his Petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-46. After careful review, we affirm.
We adopt the facts as set forth by the PCRA court. See PCRA Ct. Op., 11/9/21, at 1-3. In summary, on May 17, 2017, police arrested Appellant after his younger sister, D.J., reported that Appellant had been physically and sexually abusing her for years. At the time the abuse began, D.J. was 9 years old and Appellant was 24 years old.
The Commonwealth charged Appellant with numerous offenses arising from these allegations. On June 7, 2019, a jury convicted Appellant of Rape of a Child, Unlawful Contact with a Minor, Endangering the Welfare of a Child, and Indecent Assault of a Person Less than 13.
On January 13, 2020, the trial court sentenced Appellant to an aggregate term of 12½ to 25 years of incarceration followed by 12 years of probation. This Court affirmed Appellant's Judgment of Sentence. Commonwealth v. Windom, 256 A.3d 31 (Pa. Super. filed May 13, 2021) (unpublished memorandum). Appellant did not seek further review.
On May 7, 2021, Appellant pro se filed the instant PCRA petition raising claims that his trial counsel, Richard J. Giuliani, Esquire, had been ineffective by, inter alia, failing to investigate the victim's alleged motive to fabricate the allegations against him. Appellant further asserted that his trial counsel was ineffective for failing to object to the Commonwealth's closing arguments, which Appellant characterized as constituting prosecutorial misconduct, and by not ensuring that Appellant was in the courtroom for the presentation of the jury's questions to the court during the jury's deliberation. The PCRA court appointed counsel, who, on June 23, 2021, filed a Letter of No Merit pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), and a Motion to Withdraw as Counsel.
On July 6, 2021, in response to counsel's "no-merit" letter, Appellant pro se filed an Amended PCRA Petition.
On July 29, 2021, the PCRA court notified Appellant of its intent to dismiss his Petition without a hearing pursuant to Pa.R.Crim.P. 907. Appellant did not file a response to the court's Rule 907 Notice.
On August 30, 2021, the PCRA court dismissed Appellant's Petition as meritless. Appellant filed a timely pro se appeal from the court's dismissal order and complied with the court's order to file a Pa.R.A.P. 1925(b) Statement. In addition to asserting that the PCRA court had erred in its determination that the issues Appellant raised in his PCRA Petition lacked merit, in the Rule 1925(b) Statement, Appellant also claimed that his PCRA counsel had been ineffective in reaching the same conclusion and in filing a "no-merit" letter. The PCRA court filed a responsive Rule 1925(a) Opinion.
The PCRA court granted counsel's Motion to Withdraw on September 15, 2021.
Appellant raises the following issues on appeal:
1. Whether the PCRA court erred in deny[ing] Appellant['s P]etition[?]
2. Whether PCRA counsel was ineffective for filing his no merit letter on the above issues[?] 3. Whether [A]ppellant is entitled to relief[?]
Appellant's Brief at 6.
We review an order denying a petition for collateral relief to determine whether the PCRA court's decision is supported by the evidence of record and free of legal error. Commonwealth v. Jarosz, 152 A.3d 344, 350 (Pa. Super. 2016) (citing Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014)). "This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings." Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010). "Further, the PCRA court's credibility determinations are binding on this Court, where there is record support for those determinations." Id.
To be eligible for relief under the PCRA, a petitioner must establish that his conviction or sentence resulted from one or more of the enumerated errors or defects found in 42 Pa.C.S. § 9543(a)(2): a constitutional violation; ineffective assistance of counsel; an unlawfully induced plea; improper obstruction by governmental officials; a case where exculpatory evidence has been discovered; an illegal sentence has been imposed; or the tribunal conducting the proceeding lacked jurisdiction. See 42 Pa.C.S. §§ 9543(a)(2)(i)-(viii). In addition, a petitioner must establish that the issues raised in the PCRA petition have not been previously litigated or waived, and that "the failure to litigate the issue prior to or during trial, during unitary review or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel." Id. at § 9543(a)(3), (a)(4).
We presume that counsel has rendered effective assistance. Commonwealth v. Bickerstaff, 204 A.3d 988, 992 (Pa. Super. 2019). In order to overcome the presumption that counsel has provided effective assistance, a petitioner must establish that: (1) the underlying claim has arguable merit; (2) counsel lacked a reasonable basis for his act or omission; and (3) petitioner suffered actual prejudice. Commonwealth v. Bradley, 261 A.3d 381, 390 (Pa. 2021). A petitioner must plead and prove by a preponderance of the evidence each of these elements. 42 Pa.C.S. § 9543(a). A claim will be denied if the petitioner fails to meet any one of these prongs. See Jarosz, 152 A.3d at 350 (citing Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 2009)).
In his Brief, Appellant argues that his PCRA counsel was ineffective for filing a "no-merit" letter because his underlying claims of trial counsel's ineffectiveness are meritorious. In particular, Appellant emphasizes the meritoriousness of the claims he raised in his PCRA Petition, i.e., that his trial counsel was ineffective for not objecting to the Commonwealth's statements during closing argument, which he characterizes as prosecutorial misconduct, and for not insisting that Appellant be present in the courtroom during the presentation of the jury's questions to the court.
Although issues not raised within a PCRA petition may generally not be raised for the first time on appeal, in Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021), our Supreme Court held that a "PCRA petitioner may, after a PCRA court denies relief, and after obtaining new counsel or acting pro se, raise claims of PCRA counsel's ineffectiveness at the first opportunity to do so, even if on appeal."
The Honorable Timika R. Lane, who presided over Appellant's trial and PCRA proceedings, has authored a comprehensive, thorough, and well-reasoned opinion, citing to the record and relevant case law in addressing Appellant's challenge to the effectiveness of both his PCRA and trial counsel. After a careful review of the parties' arguments and the record, we affirm on the basis of the PCRA court's Opinion. See PCRA Ct. Op at 7-15 (concluding that Appellant's claims of ineffective assistance of trial counsel lacked merit because: (1) Appellant's trial counsel had no reasonable basis to object to statements made by the Commonwealth during closing arguments as the statements were "derived directly from the evidence presented at trial"; (2) the Commonwealth's statements did not constitute prosecutorial misconduct for the same reason; and (3) Appellant was present when the trial court addressed the jury's questions, and that because Appellant's claims of trial counsel's ineffectiveness lacked merit, PCRA counsel was not ineffective for filing a "no-merit" letter).
Order affirmed. The parties are instructed to attach a copy of the PCRA court's November 9, 2021 Opinion to all future filings.
Judgment Entered.
IN THE COURT OF COMMON PLEAS FIRST JUDICIAL DISTRICT OF PENNSYLVANIA TRIAL DIVISION - CRIMINAL SECTION
COMMONWEAL TH OF PENNSYLVANIA
v.
ROY WINDOM
November 9, 2021
OPINION
Lane, J.
OVERVIEW AND FACTS
Roy Windom ("Appellant") appeals pro se from this court's order dismissing his petition filed under the Post Conviction Relief Act. For the reasons discussed below, no relief is due.
42Pa.C.S.A. §9541 et. seq.
Appellant's convictions stem from his protracted physical and sexual abuse of his younger sister, D.J. The abuse began when D.J. was nine years old and continued until she was thirteen. (N.T. 6/5/19 at 42, 61). At trial, D.J. testified to the following facts.
D.J. grew up and lived in Philadelphia with her mother (T. Lyons, herein "Lyons"), Appellant, her younger brother ("J.J."), and two of Lyons's grandchildren. (Id. at 40,113-14). The home had three bedrooms on the second floor. (Id. at 41). D.J. and J.J. each had their own room (Id.); Lyons occupied the third bedroom, which she typically shared with her grandchildren; and Appellant, who did not have a bedroom, slept downstairs on the couch. (Id. at 41, 115). Occasionally, D.J.'s sisters visited Lyons's home and stayed in D.J.'s room, but D.J. generally did not share her room with anyone. (Id. at 41, 63, 115).
D.J. testified that when she was seven years old, Appellant started to physically abuse several members of her household. (Id. at 42,117-18). Both D.J. and Lyons testified that Appellant frequently "hit" Lyons, D.J., and D.J.'s siblings. (Id. at 45, 117-18). Lyons further testified that Appellant often had violent fits of rage and that the members of her household were "afraid" of him. (Id. at 124, 126).
D.J. also described several incidents of sexual abuse by Appellant. One night when D.J. was nine years old, he entered the minor's bedroom and touched her breasts and "private area" under her clothes. (N.T. 6/5/19 at 43). Appellant digitally penetrated D.J.'s vagina and moved his fingers in a "circular" motion. (Id. at 43-44). He then engaged in vaginal intercourse with D.J., which caused her to bleed and feel pain. (Id. at 44). Appellant abused D.J. in a similar fashion on several occasions. (Id. at 45). D.J. explained that Appellant typically positioned her on her "back or [her] side," and that the abuse always occurred in her bedroom. (Id. at 57, 45). D.J. further testified that Appellant threatened to hurt their mother if D.J. ever disclosed his misconduct. (Id. at 45). D.J. took Appellant's words as a "valid threat," and she was effectively deterred from telling anyone about the abuse. (Id. at 45-46, 56).
When D.J. was eleven or twelve years old, the family moved to a different home in Philadelphia, where Appellant continued to vaginally rape D.J. on a regular basis. (N.T. 6/5/19 at 46, 50). The last incident occurred at some point in 2014, when D.J. was thirteen years old. (Id. at 61, 68). Appellant became intoxicated and instigated a physical fight with Lyons. (Id. at 49). Following the altercation, Appellant went to D.J.'s bedroom. (Id.). When the child saw him, she started to cry and told him "no." (Id. at 49-50). Appellant laid on D.J.'s bed as she repeatedly hit him and tried to push him away. (Id. at 50). Despite her efforts, Appellant held her hands "back" and forced her to engage in vaginal intercourse. (Id. at 47-51).
The following morning before D.J. went to school, Appellant violently attacked D.J., Lyons, and J.J. (Id. at 47). During his outburst, Appellant punched D.J. in her face, which caused her to sustain a black eye. (Id. at 47, 66). D.J. disclosed Appellant's violent behavior to her school principal, who contacted the Department of Human Services ("DHS"). (hi at 51-52, 66, 69). D.J. did not disclose any details of Appellant's sexual malfeasance on that date. (Id. at 47, 66). That same day, DHS removed D.J. and J.J. from Lyons' home (Id. at 51-52), and the two children were later placed in their father's care in Delaware. (Id. at 69-70); (Comm. Ex. 4 at 6).
D.J. explicitly testified that Appellant blacked her eye in February of 2015 (N.T. 6/5/19 at 68). However, the record as a whole establishes that this particular incident occurred at some point before D.J.'s October 29, 2014 DHS interview. See (N.T. 6/5/19 at 66); (Comm. Ex. 3 at 2) ("Per initial referral information, in June 2014, [D.J.] was living with [her] mom ... and [Appellant]... and was punched in the face by [Appellant][.]"); (Comm. Ex. 4 at 9) ("[D.J.] reports that in June, her 27 yo brother punched her in the eye and DHS sent her and her 11 yo b[r]other to live with her father in DE.").
On August 25, 2014, D.J. disclosed aspects of Appellant's sexual abuse to healthcare professionals at Children's Hospital of Philadelphia. (N.T. 6/5/19 at 53-54); (Comm. Ex. 4 at 3, 9). On that same date, Officer Timothy Mclntyre from the Special Victims Unit authored a report and referred the case to Philadelphia Children's Alliance ("PCA"). (Comm. Ex. 3 at 2). PC A conducted interviews on October 29,2014 and November 19,2015, wherein D.J. disclosed various instances of sexual abuse by Appellant. (N.T. 6/5/19 at 54-57); (Comm. Exs. 2, 3). Following these interviews, the case was again referred to the SVU, where Officer Tyrone Green investigation the allegations and authored a corresponding report. (N.T. 6/5/19 at 165); (Comm. Ex. 6 at 1). Appellant was eventually arrested on May 17, 2017. (Comm. Ex. 7 at 1).
PROCEDURAL HISTORY
Based on the aforementioned facts, on June 7, 2019, a jury found Appellant guilty of rape of a child, unlawful contact with a minor, endangering the welfare of a child ("EWOC"), and indecent assault of a person less than thirteen. Appellant filed a pro se interlocutory appeal on June 15, 2019, which the Superior Court quashed on September 24, 2019.
18 Pa.C.S.A. § 3121(c), 18 Pa.C.S.A. § 6318(a)(1), 18 Pa.C.S.A. § 4304(a)(1), and 18 Pa.C.S.A. § 3126(a)(7), respectively.
See Superior Court Order 1732 EDA 2019.
On January 13, 2020, this court sentenced Appellant to an aggregate 121/2 to 25 years' incarceration, followed by 12 years of probation. This court sentenced Appellant to 10 to 20 years' imprisonment for rape of a child and a consecutive 2Vz to 5 years' imprisonment for EWOC, followed by 7 years' probation for unlawful contact with a minor and a consecutive 5 years' probation for indecent assault. Appellant was further ordered to undergo sex offender treatment, mental health treatment, and to comply with all Tier III registration and notification requirements under SORNA.
Appellant filed a second notice of appeal on February 11, 2020. On March 9, 2020, Appellant timely submitted a Pa.R. A.P. 1925(b) statement challenging, inter alia, the discretionary aspects of his sentence. This court issued an opinion on November 9, 2020, finding that Appellant was not entitled to relief. The Superior Court agreed and affirmed the judgment of sentence on April 15, 2021. Commonwealth v. Windom, No. 607 EDA 2020, 2021 WL 1424245 (Pa. Super. Ct. Apr. 15, 2021), opinion withdrawn (Apr. 19, 2021), superseded subtiom. Commonwealth v. Windom, 256 A.3d 31 (Pa. Super. Ct. 2021) (unpublished disposition). However, on April 19, 2021, the Superior Court withdrew its original memorandum and issued a new memorandum on May 13, 2021, stating, "[W]e discern no abuse of discretion in the trial court's sentence, and we decline to disturb it. Therefore, we find that Windom's appeal merits no relief." Windom, 256 A.3d 31. Appellant did not seek discretionary review with the Supreme Court of Pennsylvania.
In the interim, on May 7, 2021, Appellant filed a pro se PCRA petition. Stephen O'Hanlon, Esquire entered his appearance on Appellant's behalf on May 25, 2021. On June 23, 2021, Attorney O'Hanlon filed a "no merit" Finlev letter, wherein he addressed fifteen discrete issues asserted within Appellant's pro se petition. Upon counsel's review, he determined, "[Appellant] is not entitled to relief because [his] claims are without merit[,] and [Appellant] cannot show prejudice relating to prior counsel's performance." On July 6, 2021, Appellant filed a pro se amended petition entitled "Issues to be Asserted on Appeal," in response to counsel's Finley letter.
Notably, Appellant filed his PCRA petition on May 7, 2021-before the Superior Court issued its second memorandum on May 13, 2021. It is well settled that "[a] PCRA petition may only be filed after an appellant has waived or exhausted his direct appeal rights." Commonwealth v. Smith, 244 A.3d 13, 16 (2020). Moreover, "[i]f a petition is filed while a direct appeal is pending, the PCRA court should dismiss it without prejudice towards the petitioner's right to file a petition once his direct appeal rights have been exhausted." Id. at 16-17. However, this court determined that Appellant's petition was not improperly filed during the pendency of direct appeal, as the Superior Court had already affirmed Appellant's judgment of sentence in its initial memorandum on April 15, 2021, and Appellant did not seek discretionary review with the Supreme Court of Pennsylvania. See Superior Court Docket No. 607 EDA 2020 at 4.
Commonwealth v. Finlev, 550 A.2d 213, (Pa. Super. 1988).
On July 29, 2021, this court issued an order informing Appellant that his petition would be summarily dismissed, pursuant to Pa.R.Crim.P. 907, and Appellant's petition was formally dismissed on August 30, 2021. Attorney O'Hanlon was permitted to withdraw.
On September 9, 2021, Appellant filed the instant pro se notice of appeal. This court ordered Appellant to file a 1925(b) statement on September 15, 2021. On September 29, 2021, Appellant filed a "Tentative and Preliminary concise statements' of matters complained of on appeal." He filed a nearly identical, amended 1925(b) statement on October 1, 2021, raising the following issues:
Appellant's 1925(b) statements are identical in nearly every aspect. However, the amended statement includes (1) specific citations to the record that supplement Appellant's claim relating to the Commonwealth's closing statements and (2) a corrected date relating to Appellant's third claim. This court's opinion solely references Appellant's amended 1925(b) statement.
1. PCRA counsel was ineffective for determining [A]ppellant[']s claims raised in his pro se PCRA petition were without merit. With special attention to the claims of prosecutorial misconduct in the Commonwealth[']s closing arguments, trial counsel[']s failure to object to the Commonwealth[']s closing arguments. [See N.T. 6/6/19 at 43, 50-53]. As well as the claim involving not having [A]ppellant present during the jury question ([A]ppellant understands the court position on this issue but being this was a pivotal moment in [A]ppellant[']s trial[,] PCRA counsel could have amended this to better suit a claim on trial counsel[']s failure to act). Both the record and the evidence support these claims so [A]ppellant request[s] to present[] the following questions to this court:
a. Do these claims contain arguable merit proving PCRA counsel did not conduct an extensive review?
b. Is [A]ppellant entitled to relief or remand for further review on the merits of these claims?
c. Did PCRA counsel[']s decision to file a no-merit letter on these claims deny [A]ppellant an opportunity at a meaningful review? d. Did the accumulation of these errors deny [A]ppellant a fair trial combined with the later claim of trial counsel[']s failure to conduct a thorough investigation?
2. PCRA counsel was ineffective for not communicating issues with [A]ppellant[']s claims raised in his PCRA petition, or requesting other forms of supporting information or documentation such as the PCA reports (which [A]ppellant believes PCRA counsel could not have based on some of his conclusions). Prior to filing his Turner/Finley letter denying [A]ppellant a chance at a meaningful review.
3. PCRA counsel was ineffective for determining [A]ppellant's claims of trial counsel[']s failure to conduct a proper a[nd] thorough investigation of the following dates are without merit: 10-1-14, 10-2-14,10-6-14, 10-29-15,11-18-15, 11-19-15, this also includes claims involving the in camera hearing involving the psychiatric reports from 11-19-15 and the correspondence that accompanied the original PCRA petition. In addition[,j trial counsel [']s failure to investigate the motive behind the 2015 and 2014 allegations.
4. PCRA counsel was ineffective for not communicating the need for more information to further the claims involving trial counsel's deletions of evidence in the form of text messages prior to trial. Denying [A]ppellant the ability to produce rebuttal evidence, and exculpatory evidence as well as character evidence for review.
5. Did the PCRA court err in denying [A]ppellant[']s PCRA petition after [A]ppellant made the court aware of issues involving communication and the lack of available information in the form of the PCA reports for PCRA counsel to make an adequate decision in filing his no-merit letter.
6. Did the PCRA court err in denying [A]ppellant's PCRA petition after making the court aware of issues, which involved trial counsel deleting the text messages and violating the Rules of Professional Conduct?(Am. 1925(b) Statement) (unnecessary capitalization omitted) (some formatting altered).
DISCUSSION
As an initial matter, issues that are not raised within a PCRA petition generally may not be raised for the first time on appeal. Commonwealth v. Santiago, 855 A.2d 682, 691 (Pa. Super. 2004) ("We have stressed that a claim not raised in a PCRA petition cannot be raised for the first time on appeal"). Prior to the Supreme Court of Pennsylvania's ruling in Commonwealth v. Bradley, this rule applied equally to PCRA appeals where a pro se petitioner-appellant claimed (for the first time on appeal) that PCRA counsel was ineffective. No. 37 EAP 2020, 2021 WL 4877232 (Pa. Oct. 20, 2021). However, our Supreme Court recently held that a "PCRA petitioner may, after a PCRA court denies relief, and after obtaining new counsel or acting pro se, raise claims of PCRA counsel's ineffectiveness at the first opportunity to do so, even if on appeal." Id.
Here, Appellant raises allegations of ineffectiveness against PCRA counsel for the first time on appeal. Under Bradley, Appellant's claims against PCRA counsel are ripe for appellate review, despite being debuted for the first time in his 1925(b) statement. Nonetheless, Appellant is not entitled to PCRA relief, and this court's order dismissing his petition should be affirmed.
In reviewing a PCRA court's dismissal of a petition, the standard of review is well settled: "The standard of review of an order dismissing a PCRA petition is whether that determination is supported by the evidence of record and is free of legal error. The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record." Commonwealth v. Williams, 244 A.3d 1281, 1286-87 (Pa. Super. 2021) (citation omitted).
Moreover, a PCRA court may dismiss a petition without a hearing if the petition raises no genuine issue of material fact and no legitimate purpose would be served by further proceedings. Commonwealth v. Barbosa, 819 A.2d 81, 85 (Pa. Super. 2003) (citing Pa.R.Crim.P. 907). "To obtain reversal of a PCRA court's decision to dismiss a petition without a hearing, an appellant must show that he raised a genuine issue of fact which, if resolved in his favor, would have entitled him to relief, or that the court otherwise abused its discretion in denying a hearing." Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014) (citation omitted).
To be eligible for PCRA relief under a theory of ineffective assistance of counsel, a petitioner must establish that counsel's ineffectiveness "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009) (quoting 42 Pa.C.S.A. § 9543(a)(2)(h)). Counsel is presumed to have rendered effective assistance, and the petitioner has the burden of proving otherwise. Id. A petitioner can only satisfy his burden by pleading and proving each of the following elements by a preponderance of the evidence: (1) the underlying claim has arguable merit, (2) the strategic tactics employed by counsel had no reasonable basis designed to effectuate the petitioner's interest, and (3) the petitioner suffered actual prejudice, and, but for counsel's act or omission, the outcome of the proceeding likely would have been different. Id. at 532-33. The ineffectiveness test is conjunctive; if a petitioner fails to satisfy a single prong, his ineffectiveness claim will fail. Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010). Finally, "a claim of PCRA counsel's ineffectiveness is subject to the traditional test of ineffective assistance set forth above." Commonwealth v. Lauro, 819 A.2d 100, 109 (Pa. Super. 2003) (emphasis added).
"The three-factor approach utilized in Pennsylvania derives from our application in Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975 (1987), of the 'performance and prejudice' test articulated by the United States Supreme Court in Strickland v. Washington. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)." Commonwealth v. Dennis. 950 A.2d 945, 954 (Pa. 2008).
I. PCRA counsel was not ineffective for concluding that Appellant's pro se claims lacked merit.
In his first issue on appeal, Appellant argues that trial counsel was ineffective by (a) failing to object to the Commonwealth's closing arguments and (b) failing to ensure that Appellant was "present during the jury question." (Am. 1925(b) Statement at 1; see also, PCRA Pet. at 13, 18-19, 27). He further claims PCRA counsel was ineffective for determining that these claims lack merit.
Appellant's PCRA petition has been repaginated for clarity. See Trial Court Attachment A.
Appellant is not entitled to relief. His underlying issues relating to the Commonwealth's closing remarks and his presence during jury questions are contradicted by the record. Thus, neither trial counsel nor PCRA counsel may be deemed ineffective on either basis.
a. Trial counsel was not ineffective for failing to object to the Commonwealth's closing arguments.
By way of background, Appellant testified that he and Lyons had a "dispute" in October of 2015, and Lyons lost her job a "couple of weeks later." (N.T. 6/5/19 at 187-88, 191-93). According to Appellant, D.J. learned of the dispute when Lyons visited her at The Bridge on November 18, 2015. (PCRA Pet. at 13, 27). Throughout his PCRA petition, Appellant fervently highlights the fact that Lyons's visit occurred just one day before D.J.'s November 19 PCA interview, during which she reported that Appellant "sexually abused" her and "put his private between her legs." (PCRA Pet. at 13, 27; Comm. Ex. 2 at 2). Appellant theorizes, "[D.J.] was angered over her mother losing her job and became overwhelmed with the situation and held me responsible. I believe because of this she made the allegations." (PCRA Pet. at 9-10, 13; see also, Am. PCRA Pet. at 13-14, 16).
According to the November 19, 2015 PCA interview summary, DJ. had been "in DHS's care and inpatient at The Bridge .... since June of 2015." (Comm. Ex. 2 at 1, 3). The Bridge is "a nonprofit behavioral health treatment and youth opportunity program for adolescents and their families seeking to overcome substance abuse, mental health issues, truancy and other challenges." Mission & Overview, The Bridge, https://thebridge.phmc.org/mission-aoverview (last visited Nov. 3, 2021).
During closing arguments, the Commonwealth mentioned Appellant's theory "that the mom made it up to get back at [him]" and countered, "[r]emember where [D.J.] was when she made that allegation, when she finally told her story. She was at [T]he Bridge, she didn't have contact with the mom." (N.T. 6/6/19 at 43). The prosecutor elaborated on this argument with the following remarks, each of which Appellant challenges on appeal:
Now, there are some important things about that because there's been through the defendant's testimony and through the argument there's been some allegations that the mom made it up to get back at Mr. Windom. Remember where she was when she made that allegation, when she finally told her story. She was at [T]he Bridge, she didn't have contact with the mom. She's taken immediately to the Philadelphia Children's Alliance, and she tells what happened to her. There's no way that she's told what to say.
Now he tells you that there is something going on with [T.] Lyons, and that's the reason this is up, right, that this is revenge, that [T.] Lyons stole from him, something happened, it was getting resolved, and she's after him. He says it was resolved on the 18th of November, and all of a sudden when this has happened on the 19th of November, there's your timeline for you, right? Amazing because again remember [T.] Lyons didn't have access to [D.J.], didn't find somehow on the 18th and say, hey, you better go make this report, let's get him in trouble. [D.J.] is in the Bridge, away from the mom, in therapy. But [Appellant] got to shape his story because he knows it was disclosed on the 19th, and I'll come up with something on the 18th that gives a reason for it, no evidence of that besides his testimony. So where does that leave us?
Very interesting and Mr. Windom noted it on the stand. He makes his accusation. Now [T.] Lyons testified on the stand, and you saw the cross-
examination by the defense attorney, [Appellant] 's attorney. He wasn't gentle with [T.] Lyons. He was aggressive as he's allowed to be. He pressed her on many issues. Not once did he ask her about that. He didn't say, now did you steal from [Appellant]? He didn't mention that because it didn't happen and he knew what her answer would be. He can't trap in something that didn't happen, so he didn't ask about it.
He had [D. J.] on the stand and he was pressing that young woman, as is his right to do. He cross-examined her on many, many issues. Did he say, Did your mom steal from him? Did your mom put you up to this and tell you to make something up to get him in trouble and get revenge? No, he didn't ask her any questions about that. He asked lots of questions, forceful but he didn't ask her questions about that because it didn't happen and he knew what the answer would be, so it doesn't give him an opportunity to address it, and then [Appellant] gets on the stand and says, by the way, my mom stole from me. It was resolved on the 18thof November. Then she got back at me on the 19th. It doesn't make any sense.
The Commonwealth will submit it was untruthful and you should weigh that against bias. Again, [Appellant] is not going to admit he did it, but ladies and gentlemen, the evidence shows he did do it.(N.T. 6/6/19 at 43, 50-53).
Appellant argues that the prosecutor's statements constitute "prosecutorial misconduct," as the statements are "untrue according to the evidence on record," "improper," and "did not relate back to the evidence." (PCRA Pet. at 13, 19, 27). On appeal, Appellant derivatively claims that trial counsel was ineffective for failing to object to these remarks, and PCRA counsel was ineffective for determining that trial counsel was not ineffective. (Am. 1925(b) Statement at ¶ 1). However, as the Commonwealth's statements are clearly supported by the evidence, Appellant's underlying claim has no merit. Thus, both ineffectiveness claims must fail.
It is well settled that prosecutors "must have reasonable latitude in presenting a case to the jury, and must be free to present arguments with logical force and vigor." Commonwealth v. Chamberlain, 30 A.3d 381, 408 (Pa. 2011) (citation omitted). During closing arguments, prosecutors may "argue all reasonable inferences from the evidence in the record" and "respond fairly to arguments made in the defense closing argument." Commonwealth v. Clancy, 192 A.3d 44, 62 (Pa. 2018). Moreover, Pennsylvania Rules of Professional Conduct "simultaneously impose heightened ethical obligations upon prosecutors, while recognizing that prosecutors nonetheless function as advocates for the Commonwealth." Id. (emphasis added). As part of a prosecutor's role as an advocate, he or she may argue that the evidence establishes the accused's guilt. Chamberlain, 30 A.3d at 408. Consequently, "the underlying issues and elements at trial dictate the bounds of permissible argument." Clancy, 192 A.3d at 62.
Applying these principles, the Supreme Court of Pennsylvania utilizes the following two-part test to evaluate a prosecutor's closing statements: "[W]e have required Pennsylvania courts to evaluate both the substance of the challenged remark and its effect upon the jury." Id. Further,
[t]he substance prong requires a court to examine the challenged remark in the context of the issues presented at trial. The court first must determine whether the remark reasonably relates to the facts of the case. A statement is impermissible where the language and inferences of the summation no longer relate back to the evidence on the record. Upon finding that the statement at issue has a reasonable evidentiary foundation, the court next must determine whether the statement facilitates "the trier's duty to decide the case on the evidence. The remark not only must be based upon the evidence; it also must bear relevance to the crimes at issue. Merely derogatory, ad hominem characterizations of the defendant or defense counsel are beyond the bounds of permissible advocacy; the prosecutor's comments must be tethered to the elements of the charged offenses and the evidence offered to prove those elements, and also should be tailored to a fair and reasonable rebuttal of the arguments advanced by the defense.Id. at 62-63 (emphasis added) (internal citations and quotation marks omitted).
Finally, even if a prosecutor's statements are improper, they "do not amount to reversible error unless the 'unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict.'" Chamberlain, 30 A.3d at 408 (citing Commonwealth v. D'Amato, 526 A.2d 300, 309 (Pa. 1987)).
Here, contrary to Appellant's claim, the Commonwealth's closing remarks were derived directly from the evidence presented at trial. D.J.'s November 19, 2015 PCA summary indicates that D.J. had been "in DHS's care and inpatient at The Bridge" since June of 2015. (Comm. Ex. 2 at 1, 3; see also, N.T. 6/5/19 at 156-61). The report further indicates that about "one month" before D.J.'s November 19 interview, she "started disclosing about the current allegations . .. and recently ha[d] started becoming more descriptive." (Comm. Ex. 2 at 3). Finally, the report notes, "[D.J.] saw [Lyons] for the first time in a long time yesterday (11/18/15)." (Comm. Ex. 2 at 4) (emphasis added).
Carolina Castano, a forensic interviewer torn PCA, testified that child complainants "typically" disclose sexual abuse "in a very gradual nature which is they tell a little bit at first, see how people react, then tell a little bit more." (N.T. 6/5/19 at 160).
Accordingly, even if D.J. had learned of Appellant's and Lyons's "dispute" one day before her PCA interview, it does not follow that the dispute prompted her to fabricate allegations against Appellant (as he repeatedly asserts in his PCRA petitions). (See PCRA Pet. at 9-10, 13; Am. PCRA Pet. at 13-14, 16). The evidence plainly establishes that D.J. had been slowly disclosing aspects of the underlying abuse for "approximately one month" before she supposedly learned about the issue between Appellant and Lyons. (Comm. Ex. 2 at 3). Thus, Appellant's stated grievance with the Commonwealth's closing arguments-i.e., that they were "untrue according to the evidence on record"-is simply incorrect.
Moreover, the Commonwealth's remarks did not include ad hominem attacks, improper personal opinions about Appellant's guilt, or any statement that created "fixed bias and hostility" toward Appellant. See Chamberlain, 30 A.3d at 408. Rather, the statements were a perfectly fair rebuttal to Appellant's testimony. Thus, trial counsel had no reasonable basis on which to lodge an objection, and Appellant's ineffectiveness claims must fail.
b. Appellant was present when this court addressed the jury questions; thus, his claim fails.
In his next claim, Appellant alleges that he was not present "during the jury questions." (Am. 1925(b) Statement at ¶ 1). He further claims that trial counsel was ineffective for failing to lodge an objection on this ground, and PCRA was ineffective for concluding that the claim lacks merit. As this allegation is based on a misstatement of fact, no relief is due.
The Confrontation Clause of the Sixth Amendment and in the Due Process Clauses of the Fifth and Fourteenth Amendments provide a criminal defendant with the right to be present at his or her trial. Commonwealth v. Hunsberger, 58 A.3d 32, 37 (Pa. 2012) (citation omitted). Moreover,
the High Court "has assumed that, even in situations where the defendant is not actually confronting witnesses or evidence against him, he has a due process right to be present in his own person whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge. Thus, a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure.Id. (ellipsis omitted) (citation omitted).
Pennsylvania Rule of Criminal Procedure 602(A) further provides, "[t]he defendant shall be present at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence." Pa.R.Crim.P. 602(A). A defendant's right to be present at "every stage" of his trial includes a right to be present during a trial court's ruling(s) on questions from the jury. See Commonwealth v. Williams, 959 A.2d 1272, 1282-83 (Pa. Super. 2008) (concluding that the trial court violated Rule 602(A) in ruling on the jury's request to review an exhibit where the defendant was not present).
Here, the jury began deliberation on June 6, 2019 at 11:49 a.m. (N.T. 6/6/19 at 80). At some point, the jury submitted two questions: "Question No. 1. Can we see the PFA report No. 2 from November 15. . . . Question No. 2. We are close to reaching an agreement, but not all people are in agreement." (N.T. 6/7/19 at 4). This court could not immediately rule on the jury's questions, as this court was sitting for an unrelated matter. (Id.).
By the time the questions were presented to this court on June 7, 2019, the parties had "agree[d] to tell [the jury] to rely on their own recollection," and the jury had already arrived at a unanimous verdict. (Id. at 4-10). Thus, the jury questions were never ruled upon, either within or outside of Appellant's presence. Moreover, Appellant was present when this court read the jury's questions aloud in open court. (Id. at 4-5). Accordingly, Appellant's claim that he was not "present during the jury question" has no merit, and neither trial counsel nor PCRA counsel may be deemed ineffective on this ground.
II. Appellant's remaining claims are waived for lack of specificity.
Each of Appellant's remaining claims is too imprecise to enable meaningful review. Thus, the remaining issues are waived.
Pennsylvania Rules of Appellate Procedure require a 1925(b) statement to "concisely identify each error that the appellant intends to assert with sufficient detail to identify the issue to be raised for the judge." Pa.R.A.P. 1925(b)(4)(h). It is well settled that a statement "which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent of no Concise Statement at all." Commonwealth v. Reeves, 907 A.2d 1, 2 (Pa. Super. 2006) (citation omitted). The trial court's "review and legal analysis can be fatally impaired when the court has to guess at the issues raised. Thus, if a concise statement is too vague, the court may find waiver." Commonwealth v. Scott, 212 A.3d 1094,1112 (Pa. Super. 2019) (citation omitted), appeal denied, 222 A.3d 383 (Pa. 2019). Further, a litigant appealing the denial of PCRA relief must strictly comply with the requirements of Rule 1925(b), or his appellate issues will be waived. Commonwealth v. Parrish, 224 A.3d 682, 700 (Pa. 2020). Even if the trial court "correctly guesses the issues appellants raise on appeal and writes an opinion pursuant to that supposition the issues are still waived." Commonwealth v. Vurimindt 200 A.3d 1031, 1038 (Pa. Super. 2018) (citation and punctuation omitted), reargument denied (Feb. 6, 2019).
Moreover, pro se defendants are subject to the same rules of procedure as are represented defendants. Commonwealth v. Blakeney, 108 A.3d 739, 766 (Pa. 2014). Courts may "liberally construe materials filed by a pro se litigant," however, "pro se status confers no special benefit upon a litigant, and a court cannot be expected to become a litigant's counsel or find more in a written pro se submission than is fairly conveyed in the pleading." Commonwealth v. Blakeney, 108 A.3d 739, 766 (Pa. 2014) (emphasis added) (citation omitted).
Here, in his second claim, Appellant states,
2) PCRA counsel was ineffective for not communicating issues with [A]ppellant[']s claims raised in his PCRA petition, or requesting other forms of supporting information or documentation such as the PCA reports (which [A]ppellant believes PCRA counsel could not have based on some of his conclusions). Prior to filing his Turner/Finley letter denying [A]ppellant a chance at a meaningful review.(Am. 1925(b) Statement at ¶ 2). Appellant's fifth claim is similarly worded, but the issue is framed in terms of trial court error:
5) Did the PCRA court err in denying [A]ppellant[']s PCRA petition after [A]ppellant made the court aware of issues involving communication and the lack of available information in the form of the PCA reports for PCRA counsel to make an adequate decision in filing his no-merit letter.(Am. 1925(b) Statement at ¶ 5).
Appellant's second and fifth claims are both waived, as this court is unable to discern which issue(s) Appellant seeks to pursue on appeal. First, it is not clear whether he asserts that PCRA counsel failed to adequately communicate with him or whether counsel failed to adequately communicate Appellant's PCRA claims to this court. Second, Appellant seemingly argues that "some of PCRA counsel's "conclusions" indicate that counsel did not have enough "information" to "adequate[ly]" review Appellant's PCRA claims. Aside from his "belief that counsel did not review the underlying "PCA reports," Appellant offers no support for this extremely vague claim. Nor does he indicate how the outcome of the proceeding would have been different, had counsel obtained more "information." Finally, Appellant takes issue with PCRA counsel's "conclusions," but those "conclusions" (i.e., counsel's Finley letter) include analyses of fifteen different issues. (See Finley Letter). Appellant fails to specify which "conclusion" or "conclusions" for which he seeks appellate review. Thus, Appellant's second and fifth issues are waived.
Similarly, in Appellant's third claim, he argues that trial counsel was ineffective for failing to conduct a "thorough investigation" of the underlying events and "fail[ing] to investigate the motive behind the 2015 and 2014 allegations." (1925(b) Statement at ¶ 3). The entire claim reads,
trial counsel[] fail[ed] to conduct a proper a[nd] thorough investigation of the following dates .. . 10-1-14, 10-2-14, 10-6-14, 10-29-15, 11-18-15, 11-19-15, this also includes claims involving the in camera hearing involving the psychiatric reports from 11-19-15 and the correspondence that accompanied the original PCRA petition. In addition[,] trial counsel[] fail[ed] to investigate the motive behind the 2015 and 2014 allegations.(Am. 1925(b) Statement at ¶ 3).
Appellant's statement does not identify any specific fact, theory, or witness that trial counsel supposedly failed to investigate or how counsel's investigation was not "proper." Moreover, the dates cited within Appellant's statement span the course of two years and refer to events involving nearly every witness in this case. Appellant's third claim effectively encompasses every conceivable claim contained within his PCRA petition. It is far too broad to enable meaningful review. See Parrish, 224 A.3d at 700. Further, this court is not obligated to assume the burden of "identify[ing] potential appellate issues and fram[ing] them" for Appellant. See id. Thus, Appellant's third issue is waived.
Appellant's fourth claim is also waived. Appellant asserts,
4) PCRA counsel was ineffective for not communicating the need for more information to further the claims involving trial counsel's deletions of evidence in the form of text messages prior to trial. Denying [A]ppellant the ability to produce rebuttal evidence, and exculpatory evidence as well as character evidence for review.(Am. 1925(b) Statement at ¶ 4).
Again, this court is unable to parse Appellant's incoherent claim. Appellant seemingly implies that if PCRA counsel had obtained "more information," then Appellant would have been able to "produce rebuttal evidence, and exculpatory evidence as well as character evidence for review." However, he does not specify what "information" counsel should have or could have obtained. Appellant also fails to explain how counsel's alleged failure prevented Appellant from "producing] rebuttal evidence, and exculpatory evidence as well as character evidence for review." Nor does he specify what "evidence" he would have been able to present, had counsel obtained "more information." Accordingly, Appellant's fourth issue is also waived.
Finally, in Appellant's last allegation of error, he asserts the PCRA court erred "in denying [A]ppellant's PCRA petition after making the court aware of issues, which involved trial counsel deleting the text messages and violating the Rules of Professional Conduct." (Am. 1925(b) Statement at ¶ 6). This claim is waived for lack of specificity. In his PCRA petitions, Appellant asserts numerous claims relating to the allegedly "deleted" text messages and the evidence supposedly contained within the same. Appellant's 1925(b) statement fails to identify which of these underlying claims he seeks to pursue on appeal. Thus, the issue is waived.
For example, Appellant posits that the text messages would have proved, inter alia, D.J. was being "bullied" at school because she sent sexually explicit photos to a peer on Facebook, (Am. PCRA Pet. at 4, 8); Appellant "enforce[ed] structure and discipline" in Lyons's home, (hi at 5, 8); Lyons "constantly" lied to Appellant about D.J.'s "whereabouts," (Id. at 5); D.J.'s sister reported sexual abuse by their uncle, which D.J. may have overheard, (hi at 10); and D.J. knew about the dispute between Appellant and Lyons prior to disclosing the underlying incidents to PCA on November 19, 2015. (Id. at 18).
Moreover, Appellant's claim that trial counsel deleted text messages from Appellant's phone is unfounded. See (PCRA Pet. at 10-12,18; Am. PCRA Pet. at 4-8). The only proof offered in support of this claim is Appellant's "belie[f]" that trial counsel "deleted evidence" (i.e., Appellant's text messages) so that counsel could "proceed with his own flawed defense, against [Appellant]'s interest." (Id. at 4, 6). This wholly unsubstantiated accusation is not a sufficient basis on which to deem trial counsel ineffective.
CONCLUSION
This court has undertaken careful review of the record and finds no harmful, prejudicial, or reversible errors, and its order dismissing Appellant's PCRA petition should be affirmed.
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