Commonwealth v. Zepprinans

COMMONWEALTH OF PENNSYLVANIA v. DALONZO ZEPPRINANS Appellant

No. 1815 EDA 2020

Superior Court of Pennsylvania

January 11, 2022

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered August 26, 2020 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0015788-2008

BEFORE: BOWES, J., OLSON, J., and COLINS, J. ^[*]

MEMORANDUM

OLSON J.

Appellant Dalonzo Zepprinans, appeals from the August 26, 2020 order dismissing his petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. § 9541-9546. We affirm.

The PCRA court summarized the procedural history as follows:

Appellant was arrested on October 7, 2008[, ] and charged with rape, involuntary deviate sexual intercourse[, ] and related offenses. On July 23, 2012, following a bench trial[ ] Appellant was found guilty of endangering the welfare of a child, indecent assault [of a person less than 13 years of age], corruption of minors, unlawful contact with a minor [- relating to sexual offenses, ] and terroristic threats.^[1] Appellant was found not guilty of all other charges.^[2] Sentencing was deferred while a presentence report, psychiatric evaluation[, ] and Megan's Law [II^[3] assessment were completed. On November 22, 2013, [the trial] court found Appellant to be a sexually violent predator [("SVP"), in accordance with a stipulation reached between the parties, ] and he was sentenced to two to four years['] incarceration, followed by ten years['] probation. [The trial court also imposed lifetime registration, notification, and counseling requirements applicable to designated SVPs.] No direct appeal was taken.

On January 29, 2014, Appellant filed a [PCRA] petition. On January 4, 2017, the PCRA petition was granted[, ] and Appellant's appeal rights were reinstated nunc pro tunc. On January 13, 2017, [a] notice of appeal [] was filed. On July 24, 2018, [Appellant's] judgment of sentence was affirmed by [this] Court. [See Commonwealth v. Zepprinans, 2018 WL 3554863 (Pa. Super. Filed July 24, 2018) (unpublished memorandum).] On August 15, 2018, [a] petition for allowance of appeal to [our] Supreme Court [] was filed. On January 23, 2019, [the] petition for allowance of appeal was denied[.^[4] The instant PCRA petition was filed on July 19, 2019.^[5] [A] notice of intent to dismiss [pursuant to Pa.R.Crim.P.] 907 was filed on July 15, 2020[, ] and on August 2[6], 2020[, ^[6] the PCRA petition was formally dismissed. [The instant] appeal was filed on September 24, 2020.^[7]

PCRA Court Opinion, 1/14/21, at 1-2 (extraneous capitalization omitted).

Appellant raises the following issues for our review:

1. Whether the PCRA court erred by dismissing the PCRA petition when clear and convincing evidence^[8] was presented that trial counsel was ineffective for refusing to investigate and present an available alibi defense, as well as failing to file and litigate appropriate pre-trial motions[?]

2. Whether the PCRA court erred by dismissing the PCRA petition when clear and convincing evidence was presented of [after-]discovered evidence that firmly established an alibi defense and would have exonerated [A]ppellant had it been available to be introduced at trial[?^[9]

3. Whether the PCRA court erred by dismissing [A]ppellant's PCRA petition because the trial court issued an illegal sentence by imposing a punitive registration requirement [under Pennsylvania's Sexual Offender Registration and Notification Act ("SORNA"), 42 Pa.C.S.A. §§ 9799-10 to 9799.41, ] which violated [A]ppellant's due process rights and extended the length of [his] sentence beyond the statutory maximum[?]

4. Whether the PCRA court erred by failing to grant an evidentiary hearing[?]

Appellant's Brief at 8.^[10]

In addressing Appellant's issues, we are mindful of our well-settled standard and scope of review of a PCRA court's dismissal of a PCRA petition. Proper appellate review of a PCRA court's dismissal of a petition is limited to the examination of "whether the PCRA court's determination is supported by the record and free of legal error." Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citation omitted). "The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record." Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citations omitted). "This Court grants great deference to the findings of the PCRA court, and we will not disturb those findings merely because the record could support a contrary holding." Commonwealth v. Hickman, 799 A.2d 136, 140 (Pa. Super. 2002) (citation omitted). In contrast, we review the PCRA court's legal conclusions de novo. Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) (en banc), appeal denied, 101 A.3d 785 (Pa. 2014).

Appellant's first issue alleges that trial counsel was ineffective in failing to investigate and to call, at trial, potential alibi witnesses and in failing to file a pre-trial motion to introduce the minor victim's^[11] diary that purportedly "documented evidence of [the minor victim's] current sexual activity with another male." Appellant's Brief at 13-15.

To be eligible for relief based on a claim of ineffective assistance of counsel, a PCRA petitioner must demonstrate, by a preponderance of the evidence, that (1) the underlying claim is of arguable merit; (2) no reasonable basis existed for counsel's action or omission; and (3) there is a reasonable probability that the result of the proceeding would have been different absent such error. Commonwealth v. Steele, 961 A.2d 786, 796 (Pa. 2008). With regard to the second, i.e., the "reasonable basis" prong, this Court will conclude that counsel's chosen strategy lacked a reasonable basis only if the appellant proves that "an alternative not chosen offered a potential for success substantially greater than the course actually pursued." Commonwealth v. Williams, 899 A.2d 1060, 1064 (Pa. 2006) (citation omitted). To establish the third prong, i.e., prejudice, the appellant must show that there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel's action or inaction. Commonwealth v. Dennis, 950 A.2d 945, 954 (Pa. 2008).

Commonwealth v. Matias, 63 A.3d 807, 810 (Pa. Super. 2013) (emphasis added), appeal denied, 74 A.3d 1030 (Pa. 2013).

"Neglecting to call a witness differs from failing to investigate a witness in a subtle but important way." Commonwealth v. Stewart, 84 A.3d 701, 712 (Pa. Super. 2013), appeal denied, 93 A.3d 463 (Pa. 2014). "A claim that trial counsel did not conduct an investigation or interview known witnesses presents an issue of arguable merit where the record demonstrates that counsel did not perform an investigation." Stewart, 84 A.3d at 712. "[I]t can be per se unreasonable for [a] defense attorney to conduct no investigation into known witnesses[.]" Commonwealth v. Maldonodo, 173 A.3d 769, 783 (Pa. Super. 2017) (en banc), appeal denied, 182 A.3d 991 (Pa. 2018); see also Stewart, 84 A.3d at 712 (stating, "failure to prepare is not an example of forgoing one possible avenue to pursue another approach; it is simply an abdication of the minimum performance required of defense counsel" (citations, original quotation marks, and brackets omitted)).

[T]he value of [an] interview [of a potential alibi witness] is to inform [trial] counsel of the facts of the case so that he[, or she, ] may formulate strategy. Perhaps, after questioning these [potential] witnesses, [trial] counsel may have concluded that the best strategy was not to call them[.] However, no such claim of strategy can be attached to a decision not to interview or make an attempt to interview [potential alibi witnesses] prior to trial.

Stewart, 84 A.3d at 713, quoting Commonwealth v. Mabie, 359 A.2d 369, 374-375 (Pa. 1976). When examining the reasonable basis prong of the three-part test for ineffectiveness, an appellate court is concerned with "the decision not to interview the witnesses, not the decision to refrain from calling them at trial[.]" Stewart, 84 A.3d at 713. As for the final element of the three-part test for ineffectiveness, Appellant is required to show prejudice. Id. at 712

In contrast, "[a] failure to call a witness is not per se ineffective assistance of counsel for such [a] decision usually involves matters of trial strategy." Matias, 63 A.3d at 811 (citation omitted). To establish ineffectiveness for failing to call a potential witness to testify at trial, the petitioner must prove that:

(1) the witness existed; (2) the witness was available to testify for the defense; (3) counsel knew of, or should have known of, the existence of the witness; (4) the witness was willing to testify for the defense; and (5) the absence of the testimony of the witness was so prejudicial as to have denied the defendant a fair trial

Id. at 810-811 (citations omitted). To establish prejudice, the petitioner "must show how the [potential witness's] testimony would have been beneficial under the circumstances of the case" and "helpful to the defense" such that the absence of the testimony denied the petitioner a fair trial. Id. at 811 (citation omitted); see also Commonwealth v. Chmiel, 889 A.2d 501, 546 (Pa. 2005) (holding, "[t]rial counsel's failure to call a [potential witness] does not constitute ineffective assistance without some showing that the [potential] witness'[s] testimony would have been beneficial or helpful in establishing the asserted defense"), cert. denied, 549 U.S. 848 (2006).

Here Appellant asserts that, for the period during which the sexual assaults occurred, he provided trial counsel with the names and addresses of both a representative of an employer for which Appellant worked and a...