Commonwealth v. Holmes

1

COMMONWEALTH OF PENNSYLVANIA v. JAMES F. HOLMES Appellant

No. 441 MDA 2022

No. J-S02027-23

Superior Court of Pennsylvania

May 8, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered February 18, 2022 In the Court of Common Pleas of Lycoming County Criminal Division at No(s) CP-41-CR-0002155-2015

BEFORE: PANELLA, P.J., OLSON, J., and DUBOW, J.

MEMORANDUM

OLSON J.

Appellant, James F. Holmes, appeals pro se from the February 17, 2022 order dismissing his petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

A panel of this Court previously summarized the relevant facts of this case as follows:

Following his arrest, Appellant, who was represented by counsel, proceeded to a jury trial on June 1, 2017. At trial, M.H. testified [that in November and December 2014, she posted photos of her infant daughter, who was born in November 2014, on Facebook]. M.H. indicated that, on December 13, 2014, she began having a conversation on Facebook with a person who identified himself as "Craig Jones." The parties stipulated at trial that "Craig Jones" was actually Appellant. M.H. testified that she later permitted the Pennsylvania State Police to access her Facebook account and download the messages.

At trial, M.H. read the messages into evidence. The transcript contains numerous references to obscene messages from Appellant relating to inappropriate sexual contacts with a baby.

***

[In addition,] M.H. testified that, at some point in 2015, after making plans to meet Appellant, who believed M.H. was going to bring her [infant] daughter, M.H. traveled on a bus with law enforcement officers. Upon arrival at the bus station where she was supposed to meet Appellant, M.H. watched as the police arrested Appellant.

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[Similarly,] Pennsylvania State Police Corporal Jeffrey Vilello, who has been in law enforcement for [21] years and is certified to conduct interceptions/electronic surveillance, testified that, in December [] 2014, he interviewed M.H. in connection with an investigation unrelated to the instant case. Thereafter, in early November [] 2015, M.H. showed Corporal Vilello her Facebook communications, which M.H. had with "Craig Jones" in December [] 2014. Believing "Craig Jones" was soliciting sexual activity with children, Corporal Vilello asked M.H. to work as an informant and assist the State Police in identifying "Craig Jones." M.H. agreed.

Corporal Vilello indicated that, posing as M.H., he began communicating with "Craig Jones" (later identified as Appellant) via Facebook. Also, "[M.H.'s] phone was . . . used under [the corporal's] direction and use[d] to communicate with the individual who was portraying himself through Facebook as Craig Jones." Specifically, Corporal Vilello testified that, on November 4, 5, and 6, 2015, posing as M.H., he used M.H.'s [cellular telephone] to communicate with Appellant via text. He noted the police computer unit extracted the text messages from M.H.'s [cellular telephone] and saved them.

* * *

[Specifically, Corporal] Vilello testified that, posing as M.H., he communicated with Appellant via text for approximately a month, and at some point, they made arrangements for M.H., as well as her [infant] daughter, to travel by bus to visit Appellant. [Corporal] Vilello indicated Appellant "was pretty insistent that [M.H.] bring the child." Also, in a telephone conversation between Appellant and M.H. regarding the upcoming visit, Appellant asked M.H. if he could adopt M.H.'s daughter if M.H. decided not to live with Appellant.

[Corporal] Vilello testified that he accompanied M.H., who carried a doll that looked like a baby, on the bus to visit Appellant on December 4, 2015. [Corporal Vilello] indicated that, after M.H. exited the bus, Appellant approached, grabbed her by the arm, and said, "let's go [M.H.]."

At this point, Appellant was arrested, and his iPhone 4, which contained the messages indicated supra, was seized from his person. [Corporal] Vilello noted that, during the bus ride, posing as M.H., he sent messages to Appellant, and the last message he had sent was "pictured on [Appellant's] iPhone 4." He testified the police executed a search warrant on Appellant's iPhone 4 and extracted the communication, including text messages and photographs, between Appellant and M.H.'s phone. [Corporal] Vilello noted that, during the Facebook communication and text messages, Appellant never revealed his true identity and, when asked, he refused to send a picture of himself.

Commonwealth v. Holmes, 2019 WL 3205784, at *1-4 (Pa. Super. July 16, 2019) (internal citations and footnotes omitted).

Ultimately, the jury convicted Appellant of six counts of criminal solicitation (to commit involuntary deviate sexual intercourse with a child, sexual assault, sexual exploitation of children, aggravated indecent assault on a child, sexual abuse of children, and indecent assault on a person less than 13 years of age), one count of trafficking in minors, and one count of criminal use of a communication facility. Id. at *1. Appellant was sentenced to an aggregate term of 13 to 26 years' imprisonment, followed by one year probation. Id. at n.4. Appellant filed a timely, counseled post-sentence motion, which was denied by operation of law. Id. at *4. This Court affirmed Appellant's judgment of sentence on July 16, 2019. Id. at *12. On February 12, 2020, our Supreme Court denied Appellant's petition for allowance to appeal. Commonwealth v. Holmes, 224 A.3d 1266 (Pa. 2020). Therefore, Appellant's judgment of sentence became final on May 12, 2020. See 42 Pa.C.S.A. § 9545(b)(3) (stating, "[a] judgment becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of the time for seeking a review"); see also U.S. Sup. Ct. R. 13(1) (stating, "[a] petition for a writ of certiorari seeking review of a judgment of a lower state court that is subject to discretionary review by the state court of last resort is timely when it is filed with the Clerk within 90 days after entry of the order denying discretionary review"); see also 42 Pa.C.S.A. § 9545(b)(3).

On June 15, 2020, Appellant filed a pro se petition for habeas corpus relief, which was treated as a PCRA petition. See PCRA Court Opinion and Order, 2/17/22, at 6. On June 22, 2022, the PCRA court appointed counsel but, because "that attorney later terminated his PCRA contract with Lycoming County," the PCRA court subsequently appointed Trisha Hoover Jasper, Esq., as Appellant's new PCRA counsel. Id.; see also PCRA Court Order, 8/26/20, at 1.

On October 20, 2020, Appellant, through counsel, sought leave to withdraw the June 15, 2020 petition. On October 29, 2020, Appellant "was granted leave to withdraw his petition in order to later 'file a more comprehensive PCRA that raise[d] all of his issues.'" PCRA Court Opinion and Order, 2/17/22, at 6. Appellant filed a subsequent pro se PCRA petition on February 16, 2021. On February 24, 2021, the PCRA Court again appointed Attorney Jasper to serve as Appellant's PCRA counsel. On July 9, 2021, however, Attorney Jasper filed a motion to withdraw, as well as a Turner/Finley "no merit" letter.^[1] Appellant filed a pro se response on December 29, 2021.^[2]

On January 6, 2022, the PCRA court held a hearing on Appellant's petition, as well as Attorney Jasper's Turner/Finley letter. At the hearing, Attorney Jasper conveyed her opinion regarding the merits of Appellant's claims and Appellant offered argument in support of his petition. On February 17, 2022, the PCRA court entered an order granting Attorney Jasper leave to withdraw and denying Appellant's petition. PCRA Court Opinion and Order, 2/17/22, at 1-40. This appeal followed.^[3]

Appellant raises the following issues on appeal:

1. Did the PCRA [c]ourt err in finding "no merit" to the claim of actual innocence?

2. Did the PCRA [c]ourt err in finding "no merit" to the claim that the arrest warrant affidavit contained material omission[s] that denied the determinat[ion] of due process?

3. Did the PCRA [c]ourt err in finding "no merit" to the claim that [] Appellant was unlawfully arrested and his iPhone[] 4 [was] illegally seized?

4. Did the PCRA [c]ourt err in finding "no merit" [to Appellant's] claim that the trial court denied [] Appellant [his] right to counsel?

5. Did the PCRA [c]ourt err in finding "no merit" [to Appellant's] claim that the venue for the charges and trial took place in an unlawful jurisdiction and was unconstitutional?

6. Did the PCRA [c]ourt err in finding "no merit" [to Appellant's] claim that [trial] counsel was ineffective during the pretrial and trial phases of the judicial process?

7. Did the PCRA [c]ourt err in finding "no merit" [to Appellant's] claim that direct appeal counsel was ineffective?

8. Did the PCRA [c]ourt err in finding "no merit" to the claim that PCRA counsel was ineffective and the court erred in [failing to] appoint substitute counsel after this claim was filed?

Appellant's Brief at 2.^[4]

Our standard of review for challenges to the denial and dismissal of petitions filed pursuant to the PCRA is well-settled.

We must determine whether the findings of the PCRA court are supported by the record and whether the court's legal conclusions are free from error. The findings of the PCRA court and the evidence of record are viewed in a light most favorable to the prevailing party. The PCRA court's credibility determinations, when supported by the record, are binding; however, this [C]ourt applies a de novo standard of review to the PCRA court's legal conclusions. We must keep in mind that the petitioner has the

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