Commonwealth v. Lind

1

COMMONWEALTH OF PENNSYLVANIA Appellee v. JANICE LIND Appellant COMMONWEALTH OF PENNSYLVANIA Appellee v. JANICE LIND Appellant

Nos. 927 EDA 2022, 928 EDA 2022

No. J-S40039-22

Superior Court of Pennsylvania

April 5, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered March 17, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006458-2017, CP-51-CR-0006459-2017

BEFORE: PANELLA, P.J., STABILE, J., and KING, J.

MEMORANDUM

KING J.

Appellant Janice Lind, appeals from the order entered in the Philadelphia County Court of Common Pleas, which dismissed her first petition filed under the Post Conviction Relief Act ("PCRA"), at 42 Pa.C.S.A. §§ 9541-9546. We vacate and remand for further proceedings.

The PCRA court set forth the relevant facts of this appeal as follows:

Appellant had been charged with the systematic sexual abuse of two of her minor biological children, her only son and eldest of three daughters, committed in concert and independently with her husband, the children's biological father. Charges [were] not brought against Appellant for the sexual abuse of her two younger daughters who had also been reported as similarly abused per their siblings. The biological father of the children who had also participated in the sexual abuse, however, had died before the authorities learned of the crimes. The abuse of these children had occurred between 2011 and 2013, inside the home where Appellant and the father had resided together with their minor children, who had ranged under eight years to approximately eighteen months…. All children had been removed from this residence by the City of Philadelphia Department of Human Services due to [uninhabitable] conditions in the home and reported narcotics abuse of both parents before any information was [conveyed] concerning sexual and physical abuse.

The eldest daughter, who was 12 years old when she testified at trial, had reported being repeatedly sexually abused by both of her parents, particularly when she was six or seven years old. She stated in summary that she and her brother were often abused in Appellant's bedroom. Appellant had played pornographic movies on the television. Appellant directed the eldest daughter and son to mimic the sexual acts portrayed on the television. She had directed them to touch each other's private parts. This child recalled that Appellant had touched her front private parts and put "burning powder" on her front private parts. She testified that her father had touched her private parts in concert with Appellant. Appellant had put the father's private part into her eldest daughter's private part. She testified that Appellant had been laughing while the sexual activity was occurring.

The son was 10 years old when he testified. He recalled frequent instances when Appellant had ordered all four children to enter her bedroom when his father was in the bedroom only to be subjected to myriad forms of abuse. He reported that Appellant had touched his front and rear private parts. The father inserted his front private part into the son's back private part. He said that Appellant had watched this activity. The son said that Appellant had touched and performed sexual acts on all three of his sisters including a time when the youngest was just a baby. As to the second oldest sister, he said that Appellant had touched her back part while the father touched her front part. He recalled that his father had put his private part into the eldest daughter's private part.

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Christopher Li, social worker for the Department of Human Services, testified that as the initial intake responder, he had conducted minimal fact interviews with the son and the eldest daughter. The interviews were "minimal" so as not to re-traumatize the children. The son reported to him [and] said that he remembered being brought into his parents' bedroom, forced to watch pornographic movies, forced to perform oral sex on his father and forced to engage in sexual activities with his parents and sisters who at that time ranged in ages from six or seven to less than two years old. The eldest daughter also said that she had to do "stuff" with her parents and siblings. Mr. Li then referred the case to the Philadelphia Children's Alliance, an agency tasked with interviewing children who suffered sexual abuse.

Michelle Kline, a forensic interview specialist with the Philadelphia Children's Alliance, testified that she interviewed the four children separately. Videotapes of the interviews were shown to the jury. The videotape recordings depicted each of the two named victims credible separate reporting of long-term penetrating sexual abuse committed by both of their biological parents in response to non-confrontational and nonsuggestive questions posed by the Child Alliance forensic interview specialist.

It was stipulated at trial that when the third oldest child had been interviewed by the Department of Human Services, she did not disclose sexual abuse. It was also stipulated that Appellant was born [in] December … 1975. The respective dates of birth of each of Appellant's four biological children including the listed victims were entered by way of stipulation as well. Appellant's brother, John Lind, testified that Appellant had a reputation as being a peaceful and nonviolent citizen.

Appellant testified, without any presented emotional affect, at trial that her four biological children had never even entered the bedroom that she had shared with her now deceased husband who was each child's biological father. She calmly denied playing any pornographic videos. She denied sexually abusing her son and eldest daughter. She denied witnessing any sexual abuse from the children's father. She claimed to have no idea why the children had accused her. She had also claimed that her home had been quite suitable for habitation for her family that had also included her disabled mother.

(PCRA Court Opinion, filed 7/13/22, at 1-4) (quoting Trial Court Opinion, filed 1/10/19, at 2-7) (internal record citations omitted).

Following trial, a jury found Appellant guilty of multiple offenses at two different docket numbers.^[1] On May 18, 2018, the court imposed an aggregate sentence of forty-four (44) to eighty-eight (88) years' imprisonment. This Court affirmed the judgment of sentence on August 1, 2019, and our Supreme Court denied Appellant's petitions for allowance of appeal on February 4, 2020. See Commonwealth v. Lind, 221 A.3d 233 (Pa.Super. 2019), appeals denied, 657 Pa. 92, 224 A.3d 364 (2020) and 657 Pa. 96, 224 A.3d 365 (2020).

On December 11, 2020, Appellant timely filed a pro se PCRA petition listing both underlying docket numbers. In it, Appellant raised bald assertions of 1) actual innocence; 2) unfair trial; and 3) ineffective assistance of all prior counsel. The court appointed counsel ("first PCRA counsel"), who filed a "no-merit" letter on June 11, 2021. First PCRA counsel concluded that Appellant was not entitled to relief based upon any of her bald assertions of error. Further, first PCRA counsel opined that Appellant possessed "no valid claims for relief" under the PCRA. (No-Merit Letter, filed 6/11/21, at 3) (unnumbered).

On August 24, 2021, the court issued Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant's PCRA petition without a hearing. Appellant did not respond to the Rule 907 notice, and the court dismissed the PCRA petition on September 30, 2021. In the docket entry memorializing the dismissal order, the court also noted that first PCRA counsel would continue to represent Appellant during the appeal period. Despite this directive, first PCRA counsel filed a motion to withdraw on October 1, 2021.

The court permitted first PCRA counsel to withdraw on November 18, 2021. That same day, the court observed that first PCRA counsel had failed to file a timely notice of appeal on Appellant's behalf. Consequently, the court appointed current counsel, and it directed first PCRA counsel to pass information about the case to current counsel. Thereafter, current counsel filed identical petitions seeking reinstatement of Appellant's right to appeal from the September 30, 2021 order nunc pro tunc.^[2] The court granted Appellant's petitions on January 12, 2022. Further, the court vacated its prior order denying PCRA relief "to permit current … counsel additional time and opportunity to independently review the trial record." (Order, filed 1/12/22, at 1).

Following a status hearing, the court entered a new order denying PCRA relief on March 17, 2022. Appellant timely filed separate notices of appeal at each underlying docket number on March 31, 2022. On April 11, 2022, the court ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Appellant timely filed her Rule 1925(b) statement on April 14, 2022. On May 11, 2022, this Court consolidated the appeals sua sponte.

Appellant now raises the following issues for this Court's review:

Whether the [PCRA] court erred in denying [Appellant's] petition for … collateral relief pursuant to the [PCRA] without affording her an evidentiary hearing since [Appellant's] conviction and sentence resulted from the ineffective 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?

Whether the [PCRA] court erred in denying [Appellant's] petition for … collateral relief pursuant to the [PCRA] without affording her an evidentiary hearing since under the totality of circumstances, there are genuine issues concerning material facts and legitimate purposes would be served

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