Commonwealth v. Thompson

1

COMMONWEALTH OF PENNSYLVANIA v. CARLOS THOMPSON Appellant

No. 2691 EDA 2022

No. J-S38014-23

Superior Court of Pennsylvania

November 7, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the PCRA Order Entered October 6, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001420-2012

BEFORE: LAZARUS, J., KUNSELMAN, J., and PELLEGRINI, J. ^[*]

MEMORANDUM

LAZARUS, J.

Carlos Thompson appeals from the order, entered in the Court of Common Pleas of Philadelphia County, dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After review, we affirm on the opinion authored by the Honorable Donna Woelpper.

We adopt the factual summary provided by the PCRA court and provide a truncated summary here. In June 2011, Thompson with his penis exposed, approached an eleven-year-old girl and grabbed her by the arm. Thompson told the girl, "You're going to do it [to] me, darling." PCRA Court Opinion, 2/7/23, at 1. The girl managed to get away from Thompson and tell her family members, who immediately located Thompson and called police. Police arrived on scene and arrested Thompson. See id. at 1-2.

Thompson was charged and, on December 16, 2015, a jury convicted him of unlawful contact with a minor,^[1] corruption of minors,^[2] and indecent exposure.^[3] The trial court deferred sentencing and ordered the preparation of a pre-sentence investigation report, a mental health evaluation, and an evaluation by the Sexual Offenders Assessment Board (SOAB). On March 15, 2016, the SOAB determined that Thompson met the criteria for a Sexually Violation Predator (SVP).

On May 23, 2016, the trial court conducted a sentencing hearing and sentenced Thompson to an aggregate period of 10 years' probation. Additionally, the trial court agreed with the SOAB's assessment and found Thompson to be an SVP, requiring lifetime registration with the Pennsylvania State Police (PSP). After appealing to this Court, Thompson's SVP designation was vacated and he was ordered to 10 years of reporting to the PSP.^[4] See Commonwealth v. Thompson, 221 A.3d 257 (Pa. Super. 2019) (Table).

On November 3, 2021, Thompson filed a pro se PCRA petition, his first. The PCRA court appointed counsel, who filed an amended PCRA petition on March 25, 2022, raising numerous claims of ineffectiveness of both trial and appellate counsel. On October 6, 2022, the PCRA court conducted an evidentiary hearing, after which it concluded that Thompson's prior counsel were not ineffective and dismissed Thompson's PCRA petition.

Thompson filed a timely notice of appeal and a court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Thompson now raises the following claims for our review:

[1.] Whether the PCRA court [erred] in not granting relief on the issue that counsel was ineffective.

A. Whether appellate counsel was ineffective for failing to appeal the following issues:

[i.] [T]he denial of [Thompson]'s post[-]trial motion that the verdict was against the weight of the evidence[.]

[ii.] [T]he judge's decision to prohibit [Thompson] from testifying with notes and exhibits[.]

[iii.] [T]he addition of two uncertified[,] illegally[-]added charges at [Thompson]'s preliminary hearing[.]

[2.] Whether trial counsel was ineffective for failing to file a [Pa.R.Crim.P.] 600 motion[.]

[3.] Whether trial counsel was ineffective for failing to effectively cross[-]examine Commonwealth witnesses[.]

Brief for Appellant, at 8.

When reviewing the [dismissal] of a PCRA petition, our scope of review is limited by the parameters of the [PCRA]. Our standard of review permits us to consider only whether the PCRA court's determination is supported by the evidence of record and whether it is free from legal error. Moreover, in general[,] we may affirm the decision of the [PCRA] court if there is any basis on the record to support the [PCRA] court's action; this is so even if we rely on a different basis in our decision to affirm.

Commonwealth v. Heilman, 867 A.2d 542, 544 (Pa. Super. 2005) (quotations and citations omitted).

All of Thompson's claims challenge the effectiveness of his prior counsel. Generally, counsel is presumed to be effective and "the burden of demonstrating ineffectiveness rests on [the] appellant." Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010).

To satisfy this burden, an appellant must plead and prove by a preponderance of the evidence that[:] (1) his underlying claim is of arguable merit; (2) the particular course of conduct pursued by counsel did not have some reasonable basis designed to effectuate his interests; and, (3) but for counsel's ineffectiveness there is a reasonable probability that the outcome of the challenged proceeding would have been different. Failure to satisfy any prong of the test will result in rejection of the appellant's ineffective assistance of counsel claim.

Commonwealth v. Holt, 175 A.3d 1014, 1018 (Pa. Super. 2017) (internal citations omitted).

After consideration of Thompson's arguments on appeal, the certified record, and the relevant law, we conclude these issues have been correctly and comprehensively addressed by Judge Woelpper. We, therefore, rely on her opinion to affirm the order dismissing Thompson's PCRA petition. See Trial Court Opinion, 2/7/23, at 1-18. The parties are directed to attach a copy of Judge Woelpper's opinion in the event of further proceedings.

Order affirmed.

Judgment Entered.

PCRA OPINION

WOELPPER, DONNA, J.

Carlos Thompson has appealed the Court's Order dismissing his petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq, The Court submits the following Opinion in accordance with the requirements of Pa.R.A.P. 1925, and for the reasons set forth herein, recommends that its Order be affirmed.

I. PROCEDURAL & FACTUAL HISTORY

On December 16, 2015, following a jury trial before this Court, Defendant was found guilty of unlawful contact with a minor,^[1] corruption of minors,^[2] and indecent exposure.^[3] A summary of the factual evidence supporting Defendant's convictions is as follows.

On June 27, 2011, the complainant ("M.D."), then 11 years old, walked from her grandmother's house on East Rittenhouse Street in Philadelphia to a doughnut shop around the corner. As M.D. was walking back to her grandmother's house, Defendant approached her with his penis exposed. He grabbed her by the arm and said, "You're gonna do it [to] me, darling." M.D. pulled away from him and ran to her mother, grandmother, and adult cousin. Immediately after hearing what had happened, M.D.'s mother and cousin ran outside to find Defendant. M.D. identified him to her family members, who, along with others in the area, held Defendant until police arrived. Police officers placed Defendant in custody and transported him and M.D. to the Special Victims Unit, Although Defendant initially was released that same day,^[4] he subsequently was arrested and charged. (N.T. 12/16/15 at 31-38,45, 47, 49, 68, 72, 112-113).

The Commonwealth also presented the testimony of S.D. at trial. S.D. testified that on May 24, 2011, she had a similar encounter with Defendant. Her testimony was admitted under Pa.R.E. 404(b) to show a common scheme or plan. S.D. testified that when she was 13, while walking to school alone on Tulpehocken Street in Philadelphia, Defendant walked toward her, talking to himself After seeing Defendant, S.D. decided to cross the street for safety. Defendant then tried to grab her. S.D. evaded Defendant and ran to school. There, she immediately informed a teacher about the incident. The teacher summoned police, who transported S.D. to the Special Victims Unit. While she was being transported, S.D. saw Defendant walking on the street. Police exited the vehicle and took Defendant into custody. (Id. at 77-84).

After the jury rendered its verdict, the Court deferred sentencing pending the completion of a presentence investigation, mental health evaluation and an evaluation by the Sexual Offenders Assessment Board ("SOAB"), On March 15, 2016, upon conducting an assessment of Defendant, the SOAB determined that Defendant met the criteria for a Sexually Violent Predator ("SVP"). On May 23, 2016, the Court conducted a hearing and determined that the Commonwealth proved by clear and convincing evidence that Defendant met the criteria for an SVP and found him to be an SVP, subjecting him to lifetime registration with the Pennsylvania State Police. The Court then sentenced Defendant to an aggregate term often years' probation and ordered him to comply with lifetime sexual offender registration.

On May 25, 2016, Defendant filed a post-sentence motion, which the Court denied on August 26, 2016. Defendant timely filed a pro se notice of appeal and Rule 1925(b) Statement. On April 5, 2017, the Court issued its Rule 1925(a) Opinion, finding Defendant's pro se claims to be both waived and meritless. Nonetheless, following various miscellaneous motions and remands on appeal, appellate counsel ultimately was appointed. On May 14, 2018, counsel filed a Rule 1925(b) Statement, asserting that the Court erred in admitting other acts evidence pursuant to Pa.R.E. 404(b) and that there was insufficient evidence to deem Defendant an SVP.

On August 10, 2018, the Court filed its Rule 1925(a) Opinion finding Defendant's evidentiary claim to be meritless, but deeming his SVP designation, resulting in lifetime registration, to be illegal pursuant to Commonwealth v Muniz, 164 A.3d 1189 (Pa. 2017) and Commonwealth v. Butler. 173 A.3d 1212 (Pa. Super. 2017) ("Butler I"), appeal granted. 190 A.3d 581 (Pa. 2018). On August 12, 2019, the Superior Court vacated Defendant's...