Com. v. Dixon, D. (memorandum)

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J. S55012/13 NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA v. DAVID LAWRENCE DIXON, Appellant : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1757 WDA 2012 Appeal from the PCRA Order, October 18, 2012, in the Court of Common Pleas of Allegheny County Criminal Division at No. CP-02-CR-0005571-2007, CP-02-CR-0006620-2007, CP-02-CR-0008288-2008 BEFORE: FORD ELLIOTT, P.J.E., GANTMAN AND SHOGAN, JJ. MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED: December 4, 2013 David Lawrence Dixon appeals from the order of the Court of Common Pleas of Allegheny County dated October 18, 2012, denying his first petition brought pursuant to the Post Conviction Relief Act ( PCRA ), 42 Pa.C.S.A. ยงยง 9541-9546. Finding no error, we affirm. The facts of this case, as previously summarized, are as follows. In February 2006, Appellant took six-year-old A.P. to a remote area in West Deer Township and represented to the boy that they were going fishing. A.P. was B.P. s son, and B.P. and her four children lived in the same apartment building where Appellant resided. Instead of fishing with A.P., Appellant pulled down A.P. s pants and underwear, touched the boy s buttocks, and stuck his finger inside A.P. s rectum. After sexually abusing the boy, Appellant took him home. J. S55012/13 Appellant returned to B.P. s home a couple of days after this incident and asked B.P. if he could take A.P. somewhere. A.P. became visibly upset and told his mother that he did not want to accompany Appellant anywhere. Then, A.P. informed his mother that Appellant had touched his private area, and she immediately contacted police. Following an investigation, Appellant was charged at criminal action number CP-02-CR-0006620-2007 with one count each of indecent assault of a person less than thirteen years of age, corruption of a minor, and endangering the welfare of a child. In March 2006, Appellant met another woman, C.J., and began to spend a significant amount of time with her two children, including C.J. s five-yearold daughter, S.J. On February 23, 2007, Appellant took S.J. to the North Park Lounge Clubhouse near Pittsburgh. At around 10:00 p.m., S.J. entered the girl s bathroom because she had injured her finger, which was bleeding. Heather Henzler was in the bathroom and asked S.J. if her mother or father was present, and the child replied that she was with a friend whose first name was Dave. Ms. Henzler began to question S.J., and the child related to Ms. Henzler that Dave would often kiss her on the mouth. As a result, C.J. and police were contacted. While seated in a police car with Ms. Henzler waiting for her mother to arrive, S.J. told Ms. Henzler that Dave would also kiss her vagina. For his conduct involving S.J., Appellant was charged at CP-02-CR0005571-2007 with involuntary deviate sexual intercourse ( IDSI ) with a child, aggravated indecent assault of a child, endangering the welfare of a child, indecent assault of a person less than thirteen years old, corruption of a minor, and a charge that was later nol prossed by the Commonwealth. A charge of criminal solicitation to commit a crime was filed against Appellant at criminal action number CP-02-CR-0008288-2008 after Appellant attempted to bribe A.P. s mother, B.P., into -2- J. S55012/13 withdrawing the 0006620-2007. criminal charges at CP-02-CR- Commonwealth v. Dixon, No. 1206 WDA 2009, unpublished memorandum at 1-3 (Pa.Super. filed August 6, 2010). All three cases proceeded to a jury trial on November 12, 2008. Therein, S.J. and A.P. each testified regarding the abuse. Henzler also testified as to her encounter with S.J. at the North Park Clubhouse. In addition, police related that when appellant was arrested on March 20, 2007, he was hiding under a bed, fought with police, and had to be subdued with a Taser. When appellant was given a copy of the criminal complaint relating his sexual abuse of S.J., he stated that he was sorry for what he had done. Finally, Shawn Burns, a fellow inmate of appellant at the Allegheny County Jail, testified that appellant admitted that he had removed a boy s pants and placed his finger inside of his buttocks and that he had licked the vagina of a little girl. In support of the criminal solicitation charge, B.P. testified as follows. After A.P. revealed appellant s activities to her, B.P. warned Lilu Miah about appellant; Miah was a friend of appellant and had young children about the same age as her son. Miah subsequently approached B.P. and asked her to listen to a message that was on her cellular telephone. The message was from appellant, was addressed to B.P., and offered B.P. $600 to either drop the charges or call police and inform them that A.P. was fabricating his accusations. Miah continued to relay offers from appellant to give B.P. -3- J. S55012/13 money if she would stop the criminal prosecution relating to appellant s abuse of A.P. Appellant was convicted of all charges at the three criminal actions with the exception of the charge of aggravated indecent assault of a child with S.J. as the victim. On January 26, 2009, appellant was sentenced to an aggregate term of incarceration of 22 to 44 years imprisonment.1 After post-sentence motions were filed, Attorney Brestensky was permitted to withdraw and Thomas Farrell, Esq., was appointed. On May 14, 2009, a hearing was conducted and appellant was determined to be a sexually violent predator. A timely notice of appeal was filed, and the sole issue presented was whether the evidence was sufficient to sustain appellant s conviction of IDSI as he did not penetrate S.J. s vagina with his tongue. A panel of this court affirmed judgment of sentence on August 6, 2010 and denied his petition for reargument on October 8, 2010. Commonwealth v. Dixon, 11 A.3d 1015 (Pa.Super. 2010), reargument denied. A timely petition for allowance of appeal to the Pennsylvania Supreme Court was filed and subsequently denied on April 7, 2011. Commonwealth v. Dixon, 610 Pa. 605, 20 A.3d 1210 (2011). On September 28, 2011, appellant filed the instant PCRA petition. Counsel was appointed and an amended petition was filed. On August 27, 1 At trial, appellant was represented by Veronica Brestensky, Esq. -4- J. S55012/13 2012, the Honorable Anthony Mariani filed a notice of intent to dismiss all of appellant s issues with the exception of one. Appellant filed a response to the notice of intent to dismiss on September 7, 2012. A PCRA hearing was scheduled for October 2, 2012. ordered briefs to be filed. the PCRA petition. Following the hearing, the PCRA court On October 18, 2012, Judge Mariani dismissed A timely notice of appeal was filed, and appellant complied with the PCRA court s order to file a concise statement of errors complained of on appeal within 21 days pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the PCRA court has filed an opinion. The following issues have been presented for our review: 1. DID THE TRIAL COURT ERR IN DENYING APPELLANT S PCRA PETITION SINCE TRIAL COUNSEL BRESTENSKY WAS INEFFECTIVE FOR FAILING TO OBJECT TO COMMONWEALTH WITNESS SHAWN BURNS, WHO WAS THE MOST DAMAGING COMMONWEALTH WITNESS, TESTIFYING BEFORE THE JURY VIA VIDEO RATHER THAN IN PERSON, WHICH VIOLATED APPELLANT S CONFRONTATION CLAUSE RIGHTS? 2. DID THE TRIAL COURT ERR IN DENYING APPELLANT S PCRA PETITION SINCE TRIAL COUNSEL WAS INEFFECTIVE FOR STIPULATING TO WHAT VICTIM S.J. S MOTHER, COMMONWEALTH WITNESS [C.J.], WHO WAS INCARCERATED AT SCI-MUNCY, WOULD TESTIFY TO, AND FOR FAILING TO CROSS EXAMINE [C.J.] OR ASK IF SHE HOPED FOR OR RECEIVED ANY DEAL FROM THE COMMONWEALTH FOR TESTIFYING AGAINST APPELLANT? -5- J. S55012/13 3. DID THE TRIAL COURT ERR IN DENYING APPELLANT S PCRA PETITION SINCE TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE DAMAGING HEARSAY TESTIMONY FROM [MS. HENZLER] AND [S.S.] REGARDING WHAT [S.J.] ALLEGEDLY TOLD THEM AT THE NORTH PARK CLUBHOUSE LOUNGE? 4. DID THE TRIAL COURT ERR IN DENYING APPELLANT S PCRA PETITION SINCE TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO FILE A SUPPRESSION MOTION REGARDING APPELLANT S ALLEGED STATEMENT IN THE POLICE CAR, AND THE DRAWING BY S.J.? 5. DID THE TRIAL COURT ERR IN DENYING APPELLANT S PCRA PETITION SINCE POST SENTENCING/APPEAL COUNSEL FARRELL WAS INEFFECTIVE FOR FAILING TO RAISE A LACK OF JURISDICTION ISSUE REGARDING VICTIM S.J. AT CC NO. 5571-2007? Appellant s brief at 3-4. Our standard of review for an order denying post-conviction relief is whether the record supports the PCRA court s determination, and whether the PCRA court s determination is free of legal error. Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court s findings will not be disturbed unless there is no support for the findings in the certified record. Id. We find no error with the PCRA court s ruling. After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the PCRA court, it is our determination that there is no merit to the questions raised on appeal. The PCRA court s opinion, filed -6- J. S55012/13 on April 26, 2013, comprehensively discusses and properly disposes of the questions presented. We will adopt it as our own and affirm on that basis. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/4/2013 -7-

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