Com. v. Mickens, B. (memorandum)

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J-S41032-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. BERNARD MICKENS Appellant No. 2241 EDA 2013 Appeal from the Order Entered June 28, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-1303644-2006 BEFORE: BOWES, J., DONOHUE, J., and MUNDY, J. MEMORANDUM BY MUNDY, J.: FILED JULY 15, 2014 Appellant, Bernard Mickens, appeals from the June 28, 2013 order dismissing his petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm. This Court on direct appeal summarized the underlying facts of this case as follows. [T]he victim, L.H., who was fourteen years old at the time of the incident, testified that the thirtysix year old Appellant is her cousin. During the fall and winter of 2006, L.H. was living with her mother, 39th and Wyalusing Streets, and she saw Appellant nearly every day when he would visit her house. During this time, L.H. never had any arguments or problems with Appellant and she felt very close to him; however, L.H. was not getting along with her mother. J-S41032-14 On Friday, December 8, 2006, as L.H. was in the bathtub washing for school, Appellant unexpectedly walked into the bathroom without knocking on the door. L.H. covered herself with a towel and asked him to leave. Appellant left the bathroom and went downstairs, where he was herself, went into her bedroom, put on her school uniform, and went downstairs. Appellant mentioned that L.H. was going to be late for school and suggested that, since it was a Friday, she should stay home. L.H. and her older sister got into r asked to be taken back to the house because she was waiting for children. Later in the evening, L.H. went into one of the rooms, and Appellant indicated he was going to bottle of alcohol, poured some into a plastic cup, and handed it to L.H. Appellant wanted to know if L.H. alcohol in the plastic cup. Appellant filled the cup drank the second cup of alcohol, and Appellant handed her alcohol, and L.H. went back to playing with [A.] and the other children. L.H., [A.], and the other children went downstairs for dinner, and L.H. began to feel dizzy and had difficulty standing. After taking a shower, Appellant agreed to drive L.H. back to her house to one would know that she had been drinking alcohol. Once at her home, L.H. was unable to walk up the steps to retrieve her clothes, -2- J-S41032-14 Appellant if she could stay with her boyfriend in West Philly, and Appellant yelled at L.H. and told her to get back into the car. beds while still wearing her coat, shirt, pants, socks, bra, and underwear. L.H. went to sleep, and Appellant left the room. The next thing L.H. remembers is that she awoke to her pants being being on her vagina. L.H. was still wearing her jacket, shirt, and bra. L.H. attempted to kick Appellant off of her but she was unable to do so. L.H. told Appellant to get off of her because she was his cousin, and he pinned down both of her arms [that she] wanted L.H. told him to stop, L.H. reminded Appellant that she was his little cousin, and L.H. began to cry. ---y in a large bruise, and he held her down for five to vagina and ejaculated on the outside of her vagina. Almost immediately after Appellant had ejaculated, while Appellant was still on top of L.H., [A.] turned on a light in a different bedroom and went straight into the bathroom. Appellant got off of L.H., walked out of the bedroom, and walked down the hall. L.H. remained in the bed, and approximately three minutes later, Appellant returned, threw an unlit cigarette at L.H., and left the room. L.H. went into the bathroom and washed herself repeatedly. L.H. then went back to the bedroom where she had been sleeping and sat on the bed until morning arrived. L.H. went into the room where [A.] had been sleeping and, based on a conversation between the two of them, it was apparent to L.H. that [A.] knew what had happened -3- J-S41032-14 and did not help her during the rape. L.H. then went houses. She called her boyfriend, and when he came for her, while walking to the bus stop, L.H. told house, where L.H. told her older sister about the sexual intercourse with her boyfriend that evening because she felt she needed to prove to him that she still loved him. The next day, L.H. went to a clinic. The nurse called the police and a rape kit was house and she was placed with social services. Commonwealth v. Mickens, 987 A.2d 820 (Pa. Super. 2009) (unpublished memorandum at 2-6) (citations to notes of testimony omitted; internal quotation marks in original), appeal denied, 997 A.2d 1176 (Pa. 2010). Appellant was subsequently arrested, and on December 21, 2006, was charged with multiple offenses in connection with this incident. Appellant waived his right to a jury trial and proceeded to bench trial on October 17, 2007.1 At the conclusion of the bench trial, Appellant was found guilty of rape, involuntary deviate sexual intercourse (IDSI), unlawful restraint, statutory sexual assault, sexual assault, indecent assault, endangering the welfare of a child, and corrupting the morals of a minor.2 On January 23, ____________________________________________ 1 Appellant was represented at trial and during sentencing by Lenora R. Clayton, Esquire (Attorney Clayton). 2 18 Pa.C.S.A. §§ 3121, 3123, 2902, 3122.1, 3124.1, 3126, 4304, and 6301, respectively. -4- J-S41032-14 a minor.3 The trial court imposed no further sentence for the remaining convictions. The record reflects that Attorney Clayton raised an oral motion for extraordinary relief at the initial January 17, 2008 sentencing hearing, arguing, inter alia, that the verdict was against the weight of the evidence. See N.T., 1/17/08, at 5.4 ____________________________________________ 3 Appellant was initially sentenced on January 17, 2008, but his judgment of sentence was deemed illegal by the trial court and vacated on January 23, 2008. See N.T., 1/23/08, at 4-5, 9. 4 We note that, although effect on the preservation or waiver of issues for governed by Pennsylvania Rule of Criminal Procedure 607. 704(B)(3). Rule 607 states as follows. post-sentence Pa.R.Crim.P. Rule 607. Challenges to the Weight of the Evidence (A) A claim that the verdict was against the weight of the evidence shall be raised with the trial judge in a motion for a new trial: (1) orally, on the record, at any time before sentencing; (2) by written motion at any time before sentencing; or (3) in a post-sentence motion. (B)(1) If the claim is raised before sentencing, the judge shall decide the motion before imposing (Footnote Continued Next Page) -5- J-S41032-14 On February 19, 2008, Appellant filed a timely notice of appeal, raising multiple allegations of trial court error.5 judgment of sentence on October 15, 2009. See Mickens, supra. Appellant subsequently filed a petition for allowance of appeal, which was denied by our Supreme Court on June 22, 2010. Id.6 (Footnote Continued) _______________________ sentence, and shall not extend the date for sentencing or otherwise delay the sentencing proceeding in order to dispose of the motion. (2) An appeal from a disposition pursuant to this paragraph shall be governed by the timing requirements of Rule 720(A)(2) or (3), whichever applies. Comment: The purpose of this rule is to make it clear that a challenge to the weight of the evidence must be raised with the trial judge or it will be waived. Appellate review of a weight of the evidence claim is limited to a review of the judge's exercise of discretion. When a claim is raised before sentencing, the defendant may, but need not, raise the issue again in a post-sentence motion. See Rule 720(B)(1)(a)(iv). Pa.R.Crim.P. Rule 607 (emphasis added; internal case citations omitted). Appellant. See N.T., 1/17/08, at 5. 5 The record reflects that Appellant and the trial court complied with Pennsylvania Rule of Appellate Procedure 1925. 6 Appellant was represented on direct appeal by Victor Rauch, Esquire and Karl Baker, Esquire (collectively, appellate counsel). -6- J-S41032-14 On July 19, 2010, Appellant filed a timely pro se PCRA petition. The PCRA court appointed Gary S. Silver, Esquire (Attorney Silver) to represent Appellant. Thereafter, on January 25, 2012, the PCRA court removed Attorney Silver as counsel of record and appointed J. Matthew Wolfe, Esquire (Attorney Wolfe), to represent Appellant. On October 16, 2012, Attorney appellate counsel was ineffective for failing to challenge the weight of the evidence on appeal. See Amended PCRA Petition, 10/16/12, at ¶ 7. The Commonwealth, in turn, file petition on April 19, 2013. On April 26, 2013, the PCRA court provided Appellant with notice of its intent to dismiss his petition without a hearing, pursuant to Pa.R.Crim.P. 907. On May 9, 2013, Appellant filed a pro se pro se response, at This timely appeal followed on July 26, 2013.7 On appeal, Appellant raises the following issue for our review. 1. Was the fact that the DNA evidence proved the complaining witness render the verdict against the weight of the evi[d]ence? A ____________________________________________ 7 Appellant and the PCRA court have complied with Pa.R.A.P. 1925. -7- J-S41032-14 On appeal from the denial of PCRA relief, our standard and scope of supported by the record and without legal error. Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted), cert. denied, Edmiston v. Pennsylvania is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the prevailing party at the PCRA court Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation de novo standard of review to the PCRA Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011) evidentiary hearing on a post-conviction petition is not absolute. It is within claim is patently frivolous and has no support either in the record or other Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (internal citations omitted). his appellate counsel rendered ineffective assistance by failing to pursue a weight of the -15; see also Amended PCRA Petition, 10/16/12, at ¶ 7(2). To prevail on a claim of ineffective assistance of counsel under the PCRA, a petitioner must plead and prove by a preponderance of the evidence -8- J-S41032-14 -determining process 42 Pa.C.S.A. § 9543(a)(2)(ii). A petitioner must establish (1) the Koehler, supra at 132, citing Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987). ounsel is presumed effective, and to rebut that presumption, the PCRA petitioner must demonstrate that Koehler, supra at 131 (citation omitted). Furthermore, appellant fails to prove by a preponderance of the evidence any of the Commonwealth v. Fitzgerald, 979 A.2d 908, 911 (Pa. Super. 2009), appeal denied, 990 A.2d 727 (Pa. 2010). Upon careful of review, we discern no error on the part of the PCRA court in concluding that Appella he record establishes that Appellant has failed to satisfy the first prong of the underlying [weight of See Koehler, supra. -9- J-S41032-14 As discussed, appellate counsel initially raised a weight of the evidence behalf, but later abandoned said claim on direct appeal to this Court. The trial court, howe opinion, concluding that it was devoid of merit. Specifically, the trial court reasoned as follows. Appellant contends that there were and the physical evidence, as well as the lack of any events. Assessing the credibility of witnesses at trial is within the sole discretion of the factfinder. The finder of fact is free to believe all, part, or none of the evidence and to determine the credibility of witnesses. In the instant case [the complainant/victim] was cross-examined extensively on the events that took place on December 8, 2006. Inconsistent witness statements were argued by trial counsel during trial and properly weighed by the [trial] court before reaching its verdict. A -finder to determine. The [trial] court determined that the [complainant/victim] was credible. Therefore, the verdict does not shock the conscience. Trial Court Opinion, 7/25/08, at 5-6. The PCRA court, in turn, indicated that request for post-conviction relief. See PCRA Court Opinion, 11/27/13, at 5. Upon review, we agree with the conclusions of the trial court, which were adopted by the PCRA court, and decline to disturb these credibility ight of the - 10 - J-S41032-14 evidence is predicated on the credibility of trial testimony, our review of the Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009), appeal denied, 3 A.3d 670 (Pa. 2010). credibility determinations, when supported by the record, Spotz, supra. Accordingly, we conclude that appellate counsel was not ineffective in failing to raise this meritless weight claim on direct appeal. See Commonwealth v. Philistin, 53 A.3d 1, 10 Pierce] test will (citation omitted).8 Based on the foregoing, we conclude that the PCRA court properly June 28, 2013 order of the PCRA court. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/15/2014 ____________________________________________ 8 weight of the evidence, this claim is not cognizable under the PCRA. Pa.C.S.A. § 9543(a)(2)-(3). - 11 - 42

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