Com. v. Durbin, J. (memorandum)

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J.S24031/14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. JOSEPH DURBIN, Appellant : : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1713 WDA 2013 Appeal from the PCRA Order October 2, 2013 In the Court of Common Pleas of Washington County Criminal Division No(s).: CP-63-CR-0000384-2002 CP-63-CR-0001249-2001 BEFORE: BOWES, JENKINS, and FITZGERALD,* JJ. MEMORANDUM BY FITZGERALD, J.: FILED: June 4, 2014 Appellant, Joseph Durbin, appeals from the order entered in the Washington County Court of Common Pleas denying his first Post Conviction Relief Act1 2002 sentence of eleven to twenty-two y conviction of indecent assault,2 aggravated indecent assault,3 involuntary deviate sexual intercourse,4 and corruption of minors.5 We affirm. * Former Justice specially assigned to the Superior Court. 1 42 Pa.C.S. §§ 9541-9546. 2 18 Pa.C.S. § 3126(a)(7). J. S24031/14 Following a jury trial on July 15, 2002, Appellant was convicted of the aforementioned crimes. On August 20, 2002, Appellant filed an application provided ineffective assistance of counsel. The court conducted a sentencing hearing on October 28, 2002, after which it sentenced Appellant to the court-appointed counsel. On November 7, 2002, Appellant filed post- sentence motions. At the hearing on the motions, Appellant requested, and was granted, permission to withdraw his claim of ineffective assistance of support the jury verdict. Thereafter, the court entered an order denying -sentence motions. Appellant timely filed an appeal to this Court. This Court affirmed the judgment of sentence on November 10, 2003. Commonwealth v. Durbin, 382 WDA 2003 (Pa. Super. Nov. 10, 2003) (unpublished memorandum). Appellant subsequently filed a petition for allowance of appeal to the Pennsylvania Supreme Court on November 26, 2003; it was denied on April 14, 2004. A.2d 927 (Pa. 2004). 3 18 Pa.C.S. § 3125(a)(1). 4 18 Pa.C.S. § 3123(a)(6). 5 18 Pa.C.S. § 6301(a). -2- Commonwealth v. Durbin, 848 J. S24031/14 On May 31, 2005, Appellant filed a PCRA petition. Appellant was appointed counsel and an amended PCRA petition was filed on October 11, 2007.6 On November 29, 2007, the petition was dismissed as untimely.7 Appellant filed an appeal from this order on December 17, 2007. On August e petition. Commonwealth v. Durbin, 961 A.2d 1273 (Pa. Super. 2008) (unpublished memorandum). Pursuant to the remand, the PCRA court ordered Appellant to file an amended PCRA petition on June 22, 2009. Almost one year later, on June 16, 2010, Appellant complied. The Commonwealth filed a response to the petition on November 7, 2011. On December 17, 2012, the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss Appella without a hearing. 8 The court ultimately dismissed the petition on October 2, 2013. This timely appeal followed.9 6 The trial court docket reflects that the attorney initially appointed by the PCRA court was replaced. The attorney subsequently appointed filed the amended PCRA petition on behalf of Appellant on October 11, 2007. 7 It does not appear that the PCRA court issued a Pa.R.Crim.P 907 notice petition without a hearing. 8 The judge assigned to this matter retired on June 30, 2012, leaving Appellant on October 27, 2012, inquiring as to the status of his petition. -3- J. S24031/14 Appellant raises four issues on appeal: Whether trial counsel was ineffective for failure to call alibi witness[es]? Whether trial counsel was ineffective for failure to present [a] character witness[es]? Whether counsel was ineffective for failure to question the competence of a [thirteen] year old witness who was the accuser in a sexual abuse case? onstitutional rights were violation 600? 10, 11 For his first two issues, Appellant claims his trial counsel was ineffective by failing to call witnesses to testify that Ap schedule would require him to be at work during the time of the incidents counsel was ineffective by failing to challenge the competency of the thirteen-year-old victim to testify. Id. at 10, 12, 15. For his last issue, Upon re petition was outstanding. 9 The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b) statement. 10 The Commonwealth did not file a brief. 11 We observe that, in his brief, Appellant fails to fully develop arguments in of the issues raised therein. -4- J. S24031/14 Appellant claims that his right to a speedy trial, pursuant to Pa.R.Crim.P. 600, was violated when the trial court granted him nominal bail at his Rule 600 hearing rather than dismissing the case outright. Id. at 17. He further claims that appellate counsel was ineffective for failing to raise this matter on direct appeal. Id. We hold Appellant is not entitled to relief. On appeal from the denial of PCRA relief, our standard and scope of review is limited to determining whether the PCRA court s findings are supported by the record and without legal error. Commonwealth v. Abu- Jamal, 941 A.2d 1263, 1267 (Pa. 2008). [C]ounsel is presumed to have provided effective representation unless the PCRA petitioner pleads and proves that: (1) the underlying claim is of arguable merit; (2) counsel had no reasonable basis for his or her conduct; and (3) Appellant was prejudiced by counsel s action or omission. To demonstrate prejudice, an appellant must prove that a reasonable probability of acquittal existed but for the action or omission of trial counsel. A claim of ineffective assistance of counsel will fail if the petitioner does not meet any of the three prongs. Further, a PCRA petitioner must exhibit a concerted effort to develop his ineffectiveness claim and may not rely on boilerplate allegations of ineffectiveness. Commonwealth v. Perry, 959 A.2d 932, 936 (Pa. Super. 2008) (punctuation marks and citations omitted). The standard for proving the ineffectiveness of counsel based on a failure to call witnesses is as follows: When raising a failure to call a potential witness claim, the PCRA petitioner satisfies the performance and prejudice requirements . . . by establishing that: (1) the witness existed; (2) the witness was available to testify for the -5- J. S24031/14 defense; (3) counsel knew of, or should have known of, the existence of the witness; (4) the witness was willing to testify for the defense; and (5) the absence of the testimony of the witness was so prejudicial as to have denied the defendant a fair trial. Commonwealth v. Johnson, 966 A.2d 523, 536 (Pa. 2009) (citations omitted). With respect to the competency of witnesses, our Supreme Court recently stated: Although competency of a witness is generally presumed, Pennsylvania law requires that a child witness be examined for competency. As we have recently reiterated this Court historically has required that witnesses under the age of fourteen be subject to judicial inquiry into their testimonial capacity. A competency hearing of a minor witness is directed to the mental capacity of that witness to perceive the nature of the events about which he or she is called to testify, to understand questions about that subject matter, to communicate about the subject at issue, to recall information, to distinguish fact from fantasy, and to tell the truth. In Pennsylvania, competency is a threshold legal issue, to be decided by the trial court. Commonwealth v. Huchinson, 25 A.3d 277, 289-90 (Pa. 2011) (citations, footnotes, and quotations omitted). A party who challenges the competency of a minor witness must prove by clear and convincing evidence that the witness lacks the minimal capacity . . . (1) to communicate, (2) to observe an event and accurately recall that observation, and (3) to understand the necessity to speak the truth. Commonwealth v. Pena, 31 A.3d 704, 707 (Pa. Super. 2011) (quotation -6- J. S24031/14 competency is for an abuse Commonwealth v. Delbridge, 859 A.2d 1254, 1257 (Pa. 2004). which provides, in relevant part: (2) Trial shall commence within the following time periods. (a) Trial in a court case in which a written complaint is filed against the defendant, when the defendant is incarcerated on that case, shall commence no later than 180 days from the date on which the complaint is filed. Pa.R.Crim.P. 600(2)(a). Appellant claims that his trial counsel was ineffective by failing to call he PCRA court grant him an evidentiary hearing. Amended PCRA Pet., 6/16/10, at 10 (unpaginated). evidentiary hearing, the petition shall include a signed certification as to each intended witness sta substance of testimony and shall include any documents material to that see generally Commonwealth v. Faulk, 21 A.3d 1196, 1203 (Pa. Super. 2011) (affirming dismissal of PCRA petition because defendant filed only a witness list). Similar to the defendant in Faulk, Appellant did not include such a signed -7- J. S24031/14 certification with his petition or amended petitions. 12 See Faulk, 21 A.3d at 1203. Therefore, Appellant failed to plead and prove the ineffectiveness of his trial counsel.13 Accordingly, his first two issues are meritless. fter ef, the record, and the well- -Seneca, we See PCRA Ct. Op., 10/2/13, at 9-20 (holding, inter alia, that (1) Appellant failed to establish that trial counsel had no reasonable basis for declining to call character ineffective; (2) Appellant failed to establish that trial counsel had no reasonable basis for declining to call alibi witnesse to call alibi witnesses was not ineffective; (3) record confirms that thirteenyear-old victim fulfilled the three requirements of competency; and (4) there was no violation of Rule 600, trial counsel petitioned for and received nominal bail under Rule 600, and Appellant entered a plea within 365 days from the filing of the criminal complaint). Order affirmed. 12 unsigned proposed witness list substance of their testimony. Amended PCRA Petition at 8-9. 13 Moreover, even if Appellant had included the requisite signed certification, we would affirm this issue on the basis of the trial court opinion, as discussed infra. -8- J. S24031/14 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/4/2014 -9-

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