Com. v. Hock, J. (memorandum)

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J-S72025-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. JOSEPH BENJAMIN HOCK, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 570 MDA 2013 Appeal from the Order Entered February 28, 2013, In the Court of Common Pleas of Lancaster County, Criminal Division, at No. CP-36-CR-0002818-2009. BEFORE: DONOHUE, SHOGAN and MUSMANNO, JJ. MEMORANDUM BY SHOGAN, J.: Appellant, Joseph Benjamin FILED MARCH 27, 2014 Hock, appeals pro se from the February 28, 2013 order denying his first petition filed pursuant to the Post 9546. After careful review, we affirm. Appellant was arrested in May 2009 and charged with involuntary age, indecent assault of a person less than sixteen years of age, and corruption of minors, related to incidents involving the thirteen-year-old child of his live-in girlfriend. N.T., 3/10/11, at 70 76. A suppression motion was filed and denied after a hearing. In the days preceding March 9, 2011, Appellant failed to appear for trial, and a bench warrant was issued for his J-S72025-13 arrest. struggle. Id. at 120. When officers eventually located Appellant at his Id. at 120 124. He was tried before a jury beginning on March 10, 2011, and on March 11, 2011, the jury convicted thirty-six-yearold Appellant of all charges. The trial court sentenced him on June 1, 2011, to ten to twenty years of imprisonment. Appellant filed a timely counseled direct appeal, and we affirmed the judgment of sentence on February 21, 2012. Commonwealth v. Hock, 46 A.3d 822 (Pa. Super. 2012) (unpublished memorandum). Our Supreme e of appeal on July 18, 2012. Commonwealth v. Hock, 48 A.3d 1247 (Pa. 2012). Appellant filed a timely pro se PCRA petition on November 2, 2012, raising issues of ineffective assistance of counsel, and the PCRA court appointed counsel. On January 4, 2013, counsel filed a no-merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). The pursuant dated February 20, 2013, was filed on February 26, 2013, again asserting February 28, 2013, and -2- J-S72025-13 PCRA court did not order the filing of a statement pursuant to Pa.R.A.P. 1925. In his PCRA petition, Appellant stated all of his pro se allegations under the rubric of ineffective assistance of counsel. He raises two of those issues in his pro se brief to this Court: 1. Miranda, during a station-house interview by Detective Vance, on or about May 9, 2009. 2. prior to trial. 1 When reviewing the propriety of an order granting or denying PCRA relief, this Court is limited to determining whether the evidence of record supports the conclusions of the PCRA court and whether the ruling is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. findings that are supported in the record and will not disturb them unless they have no 1 non-responsive to the issues Appellant seeks to raise. The Commonwealth, petition to withdraw, an issue that is not before us. Appellant does not assert error by the PCRA court in this regard. Moreover, it clearly is improper for an appellate court to sua sponte address the sufficiency of a no-merit letter filed before the PCRA court. Commonwealth v. Rykard, 55 A.3d 1177, 1184 n.2 (Pa. Super. 2012) (citing Commonwealth v. Pitts, 981 A.2d 875, 880 (Pa. 2009)). -3- J-S72025-13 support in the certified record. Commonwealth v. Rigg, ___ A.3d ___, 2014 PA Super 11 (Pa. Super. filed January 27, 2014). As a prefatory matter, we note that the failure to adequately develop arguments and support bald assertions with sufficient citation impedes meaningful judicial review. Commonwealth v. Rompilla, 983 A.2d 1207 (Pa. 2009). We have stated: [A]lthough this Court is willing to construe liberally materials filed by a pro se litigant, pro se status generally confers no special benefit upon an appellant. Commonwealth v. Maris, 427 Pa. Super. 566, 629 A.2d 1014, 1017 n.1 (1993). Accordingly, a pro se litigant must comply with the procedural rules set forth in the Pennsylvania Rules of the Court. Id. This Court may quash or dismiss an appeal if an appellant fails to conform with the requirements set forth in the Pennsylvania Rules of Appellate Procedure . . . . * * * [I]n the interest of justice we address the arguments that can reasonably be discerned from this defective brief. Commonwealth v. Lyons, 833 A.2d 245, 252 (Pa. Super. 2003). Although Appellant, to varying degrees, has violated the rules regarding the content of appellate briefs, the defect preclude effective appellate review; thus, we have elected to address the merits. Commonwealth v. Dupre, 866 A.2d 1089 (Pa. Super. 2005). In order to obtain collateral relief, a PCRA petitioner must establish by a preponderance of the evidence that his conviction or sentence resulted from one or more of the circumstances enumerated in 42 Pa.C.S.A. -4- J-S72025-13 § 9543(a)(2). Instantly, Appellant asserted in his PCRA petition the existence of ineffective assistance of counsel pursuant to 42 Pa.C.S.A. § 9543(a)(2)(ii). To plead and prove ineffective assistance of counsel a petitioner must actions lacked an objective reasonable basis; and (3) actual prejudice Rykard, 55 A.3d 1177, 1189 1190 (Pa. Super. 2012). A claim of ineffectiveness will be denied if the Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010). We reiterate that petitioner proves otherwise. Commonwealth v. Williams, 732 A.2d 1167, 1177 (Pa. 1999). We have explained that trial counsel cannot be deemed ineffective for failing to pursue a meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc). The issue, as stated in the PCRA petition and as addressed by the PCRA Miranda 1/2/12, at ¶ 7; PCRA Court Opinion, 2/8/13, at unnumbered 5. The PCRA court disposed of the issue as follows: -5- J-S72025-13 [Appellant] argues that trial counsel was ineffective for failing to challenge the Miranda Once again, [Appellant] has failed to plead and prove his case. No evidence has been presented of a lack of mental capability Miranda warnings. Furthermore, testimony presented at the suppression hearing indicated [Appellant] came to the police station voluntarily and his admissions occurred during non-custodial questioning. . . . [Appellant] did not make any confessions subsequent to being PCRA Court Opinion, 2/8/13, at unnumbered 5. Now, on appeal, Appellant is contending that when he was interviewed by Lancaster County Detective Michael Vance, he believed that he was not Miranda v. Arizona, 384 U.S. 436 (1966), were required. The issue, as presented herein, was never presented to the trial court and, therefore, is waived. Rigg, ___ A.3d at ___, 2014 PA Super 11 at *3. police station voluntarily and his admissions occurred during non-custodial Opinion, 2/8/13, at unnumbered 5. Examining the merits of the collateral ivative ineffectiveness assertion fails. Police detentions become custodial when, under the totality of the -6- J-S72025-13 Commonwealth v. Baker focuses on whether the individual being interrogated reasonably believes his Commonwealth v. Snyder, 60 A.3d the individual being questioned or that the interviewer believes the Commonwealth v. Page, 965 A.2d 1212, 1218 (Pa. Super. 2009). Testimony at the suppression hearing revealed that Appellant was not transported to the police station against his will; he went there voluntarily on May 9, 2009, where he met with Detective Vance at a prearranged time. N.T., 1/4/11, at 4, 31. The detective told Appellant that he was free to leave at any time. Id. at 5. The door to the room where they met remained open at all times. restrained. Id. Appellant was not handcuffed or otherwise The interview was not lengthy, lasting only one and one-half hours and including two breaks. Id. at 7, 9. The detective never raised his voice. Id. at 37. Appellant was given two breaks. Id. at 7, 37. When Appellant admitted assaulting the child victim, he was given his Miranda warnings. Id. at 11, 17. -serving statement that he told Detective Vance -7- J-S72025-13 afraid that [the officer] might have kept on asking me questions or he would telling: Q. [By the prosecutor]: And you understood the question, did [the victim] suck your penis and your answer of yes? A he wanted. Q. Did you come up with where this happened? A. Excuse me? Q. You said that you were telling him you were answering the questions with answers he wanted to hear. So how did you come up with it happened two times? A. Because I just answered because he kept on asking me. And he asked me, then later, did it happen more than twice, and my mind, I just said yes. Q. You said yes two times? A. Q. So he asked you if it happened more than twice and you said it happened two times, right? A. Yes. Q. And you said that it happened in the summer of 2006, right? A. Yes. Q. And you said that her mom was at the fire company when this happened, right? A. I just said that to him. Q. But you said that? -8- J-S72025-13 A. Yeah. Q. And you described where [the victim] was when she performed oral sex on you, right? A. Yes. Q. And you describe[d] that you had to jerk yourself off and that it got on her because she was in front of you, right? A. Yes. Q. And you described that they were about a week apart? A. I just said that. Q. And you said she was about 13 or 14 when this happened, right? A. Q. But you said you thought she was 13 or 14, right? A. Yes. N.T., 1/4/11, at 36, 43 45. police was not the functional equivalent of an arrest. He voluntarily went to the police station, he was free to leave at any time, the door to the interview room remained open, Appellant was not restrained, the interview was not normal conversation. See Baker, 963 A.2d at 501 (under totality of the circumstances, police interview was not functional equivalent of arrest where the defendant agreed to meet with investigators, was free to leave, was not restrained, the interview lasted only one hour and forty minutes, and no threats were -9- J-S72025-13 made); Page, 965 A.2d at 1218 (interview did not constitute custodial not placed in restraints, he was advised he could terminate the interview at any point, he was allowed breaks, and the three and one-half hour interview was not excessively long). When Appellant admitted assaulting the child victim, he was given his Miranda rights. Thus, Appellant was not in custody thereby requiring the admission of Miranda warnings before he admitted assaulting the victim. Baker, 963 A.2d at 501. As the underlying issue lacked arguable merit, counsel cannot be deemed ineffective for failing to raise a baseless claim. Commonwealth v. Hanible, 30 A.3d 426 (Pa. 2011). issue asserted in the PCRA petition. The issue, as raised in the PCRA disposing of this issue, the PCRA court stated the following: The claim is meritless. [Appellant] did not indicate in his petition what information trial counsel should have presented and how such information would have changed the outcome of his trial. It is clear that [Appellant] did not plead a claim of arguable merit and failed to prove how he was prejudiced. Additionally, at trial [Appellant] claimed he did not perform the acts he was accused -10- J-S72025-13 crimes contradicts any claim that he was suffering from a mental infirmity or insanity at the time the acts occurred. Therefore, PCRA Court Opinion, 2/8/13, at unnumbered 4 5. Appellant has now appended to his brief a neuropsychological report that was generated when Appellant was in high school, fifteen years before success upon grad intelligence testing when he was ten years old, a report of developmental functioning that was prepared when Appellant was in first grade, and a statement from an early childhood educator dated June 21, 1978, when All of the reports, which were not presented to the PCRA court, concerned As noted by the PCRA court, Appellant failed to indicate what evidence trial counsel could have proffered at trial and failed to suggest how the evidence would have changed the outcome of his case. Indeed, Appellant ven presented to trial counsel. Moreover, trial counsel obviously made a strategic decision to seek a verdict of not guilty, rather than pursue a mental infirmity defense, because Appellant took the stand at -11- J-S72025-13 trial and denied the charges. See Wood v. Allen, ___ U.S. ___, 130 S.Ct. to focus on other defenses). Thus, we conclude that Appellant has failed to prove ineffectiveness. See Commonwealth v. Rega, 933 A.2d 997 (Pa. 2007) (ineffectiveness not shown where petitioner failed to prove strategy employed by trial counsel was so unreasonable that no competent lawyer would have chosen that course of conduct). Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 3/27/2014 -12-

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