Commonwealth v. Lawson

1

COMMONWEALTH OF PENNSYLVANIA v. JAMES A. LAWSON Appellant

No. 1727 EDA 2022

No. J-A10042-23

Superior Court of Pennsylvania

June 6, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

Appeal from the PCRA Order Entered June 24, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-CR-0000834-2015

Joseph D. Seletyn, Esq.

BEFORE: PANELLA, P.J., KING, J., and STEVENS, P.J.E ^[*]

MEMORANDUM

STEVENS, P.J.E.

James A. Lawson ("Appellant") appeals from the order entered by the Court of Common Pleas of Philadelphia County dismissing without an evidentiary hearing his first petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. Herein, Appellant alleges that prior counsel provided ineffective assistance by failing to file a post-sentence motion asserting that the verdict was against the weight of the evidence and by failing to raise an issue on direct appeal challenging the discretionary aspects of his sentence. After careful review, we affirm.

This Court's memorandum decision in Commonwealth v Lawson, No. 2832 EDA 2019, (unpublished memorandum) (Pa. Super. filed February 9, 2021), in which we affirmed judgment of sentence, summarized the facts and the procedural history associated with Appellant's trial and direct appeal, as follows:

In January of 2015, [the] complainant . . . 19 years-old was dating Appellant's son . . . . On January 5, 2015, [the complainant] and [Appellant's son] started the evening at [the complainant's] mother's house, before leaving for Appellant's house. At Appellant's, [the complainant] and [Appellant's son] watched television and ate dinner, while Appellant was in his room.

After dinner, [the complainant] was in the kitchen with [Appellant's] son, who was doing dishes, listening to music with his headphones in. Appellant called [the complainant] to his room and she went to see what he wanted.

When [the complainant] entered the bedroom, Appellant said he wanted to talk and told her to sit on the couch in the bedroom. He then closed the door, locked it, and put something under the door. [The complainant] got up and tried to leave the room, but Appellant stood between [her] and the door and pushed her back. Appellant then pushed [the complainant] on to the bed, pinned her down with his legs and attempted to put his penis in her mouth, whereupon she bit his penis.

At that point, Appellant pulled off [the complainant]'s pants and underwear and inserted his penis in her vagina. [The complainant] tried to scream, but Appellant was covering her mouth with his hand. The radio was on in the room, and [the complainant] could hear [Appellant's son] in the kitchen doing the dishes.

At some point[,] there was a knock at the door, which Appellant ignored. Upon a second knock, Appellant got up and opened the door to [Appellant's son]. [The complainant] told [Appellant's son] what happened, [Appellant and his son argued], then [the complainant] and [Appellant's son] returned to [the complainant]'s mother's home. Once at her mother's house, [the complainant] told her mother what had happened and her mother called the police.

While on patrol on January 6, 2015, at approximately 2:01 AM, police officers [Thomas] Dempsey and [Shawn] Bossert received a radio call for a rape in progress . . . . Upon arrival, the officers were met by [the complainant's] mother. The officers observed [the complainant] sitting on the couch crying. [The complainant] told the officers that Appellant . . . had raped her, and [she] described the events. Also present in the room was [Appellant's son]. Officer Dempsey memorialized the information provided by [the complainant].

The officers then transported [the complainant] to Appellant's home, where she waited while he was brought out by police. [The complainant] was then taken to the Special Victim's Unit, where she was examined, and she gave a statement to Detective [Thomas] Martinka. DNA from Appellant was found in [the complainant]'s vagina and on her vulva.

Trial Ct. Op., 1/29/20, at 2-3 (record citations omitted).

. . . .

Appellant's first trial ended in a mistrial on August 3, 2018, after a jury was unable to reach a unanimous verdict. Following a second trial, the jury found Appellant guilty of rape by forcible compulsion and sexual assault but acquitted him of involuntary deviate sexual intercourse (IDSI) on October 18, 2018.^[] The trial court sentenced Appellant to [an aggravated guideline range sentence of seven to fourteen years' confinement plus 4 years' probation on the rape by forcible compulsion charge and to an aggravated guideline range sentence of five to 10 years' confinement on the sexual assault charge, with both sentences ordered to run concurrently].^[]

Appellant timely filed a post-sentence motion on September 5, 2019, seeking modification of his sentence. The trial court denied the motion on September 23, 2019.

Appellant timely filed a notice of appeal and a court-ordered Pa.R.A.P. 1925(b) statement challenging the weight of the evidence and the Commonwealth's failure to prove the complainant's lack of consent beyond a reasonable doubt. In a timely supplemental Rule 1925(b) statement, Appellant added a claim that the trial court erred in denying his pro se Rule 600 motion to dismiss.

The trial court filed a responsive opinion concluding that: (1) the verdicts were not against the weight of the evidence; (2) the trial court was under no obligation to consider Appellant's pro se motions, nor would the court have granted the motion even if properly raised; and (3) the evidence was sufficient to establish the complainant's lack of consent. The trial court concluded that the judgment of sentence should be affirmed.

Lawson, supra.

In Appellant's direct appeal to this Court, we agreed with the trial court's analysis and opinion on all issues and affirmed judgment of sentence. Id. at *7. Relevant for present purposes was our disposition of Appellant's weight of the evidence issue, where we determined that he had failed to preserve it before the trial court with either a written or oral motion seeking a new trial on this basis. Id. at *3 (citing Commonwealth v. Roche, 153 A.3d 1063, 1071 (Pa. Super. 2017) (recognizing Rule 607(A) of the Pennsylvania Rules of Criminal Procedure requires an appellant to preserve a weight of the evidence challenge in a timely motion either prior to or post-sentence). Appellant filed no petition for allowance of appeal with the Pennsylvania Supreme Court.

On September 23, 2021, Appellant timely filed a first PCRA petition. The PCRA court appointed counsel who filed an amended PCRA petition on February 9, 2022, raising issues alleging that trial counsel had ineffectively failed to preserve on direct appeal claims challenging the weight of the evidence and the discretionary aspects of his sentence. On June 24, 2022, the PCRA denied relief without a hearing. Appellant filed a timely notice of appeal on June 29, 2022.

Appellant raises the following issues for this Court's consideration:

1. Whether the PCRA court erred in denying Appellant's PCRA petition without an evidentiary hearing on the issues raised in the amended PCRA petition?

2. Whether the PCRA court was in error in not granting relief on the issue that counsel was ineffective for the following reasons[:] Counsel was ineffective for failure to file a motion for reconsideration of sentence[;] . . . and Counsel was ineffective for failing to file a post-verdict motion that the verdict was against the weight of the evidence.

Brief for Appellant, at 8. ^[1]

We review the PCRA court's denial of relief by "examining whether the PCRA court's findings of fact are supported by the record, and whether its conclusions of law are free from legal error." Commonwealth v. Busanet, 54 A.3d 35, 45 (Pa. 2012). We will not disturb the court's decision "unless there is no support for the findings in the certified record." Id. (quoting Commonwealth v. Larkin, 235 A.3d 350, 355 (Pa. Super. 2020) (en banc)). "Our scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the party who prevailed in the PCRA court proceeding." Id.

[T]he PCRA court has the discretion to dismiss a petition without a hearing when the court is satisfied "that there are no genuine issues concerning any material fact, the defendant is not entitled to post-conviction collateral relief, and no legitimate purpose would be served by any further proceedings." Pa.R.Crim.P. 909(B)(2). "[T]o obtain reversal of a PCRA court's decision to dismiss a petition without a hearing, an appellant must show that he raised a genuine issue of fact which, if resolved in his favor, would have entitled him to relief, or that the court otherwise abused its discretion in denying a hearing." Commonwealth v. D'Amato, 856 A.2d 806, 820 (Pa. 2004).

Commonwealth v. Hanible, 30 A.3d 426, 452 (Pa. 2011).

Appellant raises claims of ineffective assistance of counsel. The Pennsylvania Supreme Court has explained:

[A] PCRA petitioner will be granted relief [for ineffective assistance of counsel] only when he proves, by a preponderance of the evidence, that his conviction or sentence resulted from the "[i]neffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." 42 Pa.C.S.[A.] § 9543(a)(2)(ii). "Counsel is presumed effective, and to rebut that presumption, the PCRA petitioner must demonstrate that counsel's performance was deficient and that such deficiency prejudiced him." Commonwealth v. Colavita, 993 A.2d 874, 886 (Pa. 2010) (citing Strickland v.

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