Commonwealth v. Adams-Smith

209 A.3d 1011

COMMONWEALTH of Pennsylvania, Appellee

v.Rasheed ADAMS-SMITH, Appellant

No. 4080 EDA 2017

Superior Court of Pennsylvania.

Submitted January 14, 2019

Filed May 7, 2019

Reargument Denied July 16, 2019

Rasheed Adams-Smith, appellant, pro se.

Kevin R. Steele, District Attorney, Robert M. Falin, Assistant District Attorney, and Adrienne D. Jappe, Assistant District Attorney, Norristown, for Commonwealth, appellee.

BEFORE: GANTMAN, P.J.E., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

OPINION BY GANTMAN, P.J.E.:

Appellant, Rasheed Adams-Smith, appeals from the order entered in the Montgomery County Court of Common Pleas, which denied his first petition brought pursuant to the Post-Conviction Relief Act ("PCRA"), at 42 Pa.C.S.A. §§ 9541 - 9546. We affirm in part, vacate in part, and remand with instructions.

The trial court and this Court set forth the relevant facts and previous procedural history of this case as follows.

On April [4], 2014, following trial before the [trial court] and a jury, [Appellant]–then represented by William E. Moore, Esquire–was convicted of rape of a child under the age of thirteen, involuntary deviate sexual intercourse [ ("IDSI") ] with a child under the age of thirteen, indecent assault of a child under the age of thirteen, and indecent exposure.

At trial, the Commonwealth presented evidence that [Appellant]-a close friend of the victim's family-began improperly touching the victim (A.G.) at a time when A.G. was approximately five (5) years old and [Appellant] was a teenager.⁵ This improper contact continued over a period of years, beginning with repeated touching by [Appellant] of A.G.'s bare buttocks and ultimately escalating to, inter alia , [Appellant] exposing himself and masturbating to ejaculation in front of A.G. and repeatedly penetrating A.G.'s anus with [Appellant's] penis. A.G. testified that these anal penetrations occurred "too many times to count."

⁵ At the time of trial, A.G. was ten (10) years old and [Appellant] was twenty (20).

[Appellant] was charged with and convicted of crimes he committed after his eighteenth birthday, specifically the period between July 2011 and September 2012. Evidence of [Appellant's] earlier improper conduct with [Victim] was admitted–upon the Commonwealth's motion–solely to provide the jurors with the complete background and history of the case.

On August 1, 2014, [Appellant] appeared before the [trial court] for a hearing to determine whether [Appellant] would be classified as a sexually violent predator [ ("SVP") ]. Following hearing, the [trial court] accepted the recommendation of the Pennsylvania Sexual Offenders Assessment Board and determined that [Appellant] was, in fact, [an SVP].

The case then proceeded immediately to sentencing. Following hearing, the [trial court] imposed a standard range sentence of not less than ten (10) nor more than twenty (20) years['] imprisonment on [Appellant's] conviction for rape of a child. The [trial court] imposed a consecutive standard range sentence of not less than ten (10) and not more than twenty (20) years['] imprisonment on [Appellant's] conviction for [IDSI] with a child. The [trial court] further imposed a concurrent sentence of not less than one (1) nor more than two (2) years['] imprisonment on [Appellant's] conviction for indecent assault, and a sentence of two (2) years['] probation on his conviction for indecent exposure.

[Appellant] thus received an aggregate sentence of not less than twenty (20) nor more than forty (40) years['] imprisonment, with the [trial court] explaining the reasons for the sentences imposed at some length on the record.

Commonwealth v. Adams-Smith , No. 85 EDA 2015, 2015 WL 7571762, unpublished memorandum at 2-3 (Pa.Super. filed November 24, 2015) (quoting Trial Court Opinion, filed March 12, 2015, at 1-2) (internal citations to record and some footnotes omitted). Additionally at sentencing, the court notified Appellant of his requirement to register and report for life as a Tier III sexual offender and SVP under the Sexual Offender Registration and Notification Act ("SORNA"). Appellant timely filed a notice of appeal on January 5, 2015. This Court affirmed the judgment of sentence on November 24, 2015. See id. Appellant did not file a petition for allowance of appeal with our Supreme Court, so the judgment of sentence became final on or about December 24, 2015.

Appellant timely filed pro se his first PCRA petition on November 18, 2016.

[The PCRA] court granted [Appellant's] request for court-appointed PCRA counsel by order dated May 1, 2017, and filed of record on May 2, 2017, after an evidentiary hearing regarding [Appellant's] indigency. Court-appointed PCRA counsel filed a "Petition for Permission to Withdraw as Counsel" on July 7, 2017, to which he attached a "no-merit" letter [pursuant to Commonwealth v. Turner , 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley , , 550 A.2d 213 ( [Pa.Super.] 1988) (en banc ) ] dated July 5, 2017. [Appellant] responded by filing a pro se document entitled "Petitioner's Response to Finley Letter" on July 20, 2017.

On October 23, 2017, [the PCRA] court filed of record its "Notice of Intention to Dismiss," which also granted court-appointed counsel's request for permission to withdraw. That notice was based upon [Appellant's] pro se PCRA petition, court-appointed PCRA counsel's "no-merit" letter, [Appellant's] pro se response thereto, and [the PCRA] court's independent review of the record and legal research. On November 13, 2017, [Appellant] acting pro se filed "Petitioner's Response to Notice of Intent to Dismiss." Review and consideration of [Appellant's] response failed to persuade [the PCRA] court that [Appellant] was entitled to a hearing on his PCRA petition or entitled to any form of PCRA relief. Accordingly, [the PCRA] court by order entered November 22, 2017, dismissed [Appellant's] "Petition for Post-Conviction Relief (PCRA)" filed November 18, 2016, without [a] hearing.

[Appellant] filed a notice of appeal on December 18, 2017. [The PCRA] court directed [Appellant] to file a concise statement of errors complained of on appeal by order dated and entered [December 21, 2017]. [Appellant] complied by filing his concise statement on January 5, 2018.

(PCRA Court Opinion, filed February 21, 2018, at 2).

Appellant raises the following issues for our review:

1. WHETHER THE PCRA COURT ERRED AS A MATTER OF LAW, WHEN IT DISMISSED THE PCRA PETITION WITHOUT A HEARING[?]

2. WHETHER APPELLANT IS ENTITLED TO A NEW TRIAL OR DISMISSAL OF THE CHARGES WHERE TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO PRESENT ANY COUNTER ARGUMENTS PRIOR TO OR DURING, OR FAILING TO OBJECT TO THE COMMONWEALTH'S INTRODUCTION AT TRIAL OF PRIOR BAD ACTS[?]

3. WHETHER APPELLANT IS ENTITLED TO A NEW TRIAL OR DISMISSAL OF THE CHARGES WHERE TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO PURSUE [A] PRETRIAL INTERVIEW TO EXPLORE TAINT OF MINOR VICTIM IN ACCORDANCE WITH 42 PA.C.S.A. § 5985.1 & PA.R.E. 601 [?]

4. WHETHER APPELLANT IS ENTITLED TO A NEW TRIAL OR DISMISSAL OF CHARGES WHERE, TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO CONDUCT A PROPER CROSS-EXAMINATION OF COMMONWEALTH WITNESS DR. SCRIBANO & MOVE TO STRIKE HIS TESTIMONY AS NON-RELEVANT PURSUANT TO [PENNSYLVANIA RULES OF EVIDENCE?]

5. APPELLANT IS ENTITLED TO A NEW TRIAL OR DISMISSAL OF THE CHARGES DUE TO THE CUMULATIVE NATURE OF THE ERRORS IN THIS CASE[?]

(Appellant's Brief at 2).

Preliminarily, we observe that appellate briefs must conform in all material respects to the briefing requirements set forth in the Pennsylvania Rules of Appellate Procedure. Pa.R.A.P. 2101. See also Pa.R.A.P. 2114 - 2119 (addressing specific requirements of each subsection of brief on appeal). Regarding the argument section of an appellate brief, Rule 2119(a) provides:

Rule 2119. Argument

(a) General rule. —The argument shall be divided into as many parts as there are questions to be argued; and shall have at the head of each part—in distinctive type or in type distinctively displayed—the particular point treated therein, followed by such discussion and citation of authorities as are deemed pertinent.

Pa.R.A.P. 2119(a). "[I]t is an appellant's duty to present arguments that are sufficiently developed for our review. The brief must support the claims with pertinent discussion, with references to the record and with citations to legal authorities." Commonwealth v. Hardy , 918 A.2d 766, 771 (Pa.Super. 2007), appeal denied, 596 Pa. 703, 940 A.2d 362 (2008) (internal citations omitted). "This Court will not act as counsel and will not develop arguments on behalf of an appellant." Id. If a deficient brief hinders this Court's ability to address any issue on review, we shall consider the issue waived. Commonwealth v. Gould, 912 A.2d 869, 873 (Pa.Super. 2006) (holding appellant waived issue on appeal where he failed to support claim with relevant citations to case law and record). See also In re R.D. , 44 A.3d 657 (Pa.Super. 2012), appeal denied , 618 Pa. 677, 56 A.3d 398 (2012) (holding appellant waived issue, where argument portion of appellant's brief lacked meaningful discussion of, or citation to, relevant legal authority regarding issue generally or specifically; appellant's lack of analysis precluded meaningful appellate review).

Instantly, Appellant did not properly develop his argument section for his fourth appellate issue, concerning the Commonwealth's expert witness, Dr. Scribano. Appellant notes several reasons why he thinks Dr. Scribano was an unreliable witness, but Appellant does not discuss how this relates to ineffective assistance of counsel or cite to relevant law. See Pa.R.A.P. 2119(a). We decline to make Appellant's argument for him. See Hardy, supra . Accordingly, Appellant waived his fourth appellate issue regarding Dr. Scribano's testimony. See In re R.D., supra ; Gould, supra .

In his remaining issues combined, Appellant announces the PCRA court improperly relied on counsel's Turner / Finley no-merit letter when the...