NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P Appellant No. 482 MDA 2013

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1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P COMMONWEALTH OF PENNSYLVANIA, Appellee IN THE SUPERIOR COURT OF PENNSYLVANIA v. TERRY SIMONTON, JR., Appellant No. 482 MDA 2013 Appeal from the Order February 22, 2013 in the Court of Common Pleas of Lebanon County Criminal Division at No.: CP-38-CR BEFORE: PANELLA, J., MUNDY, J., and PLATT, J. * MEMORANDUM BY PLATT, J. FILED FEBRUARY 11, 2014 Appellant, Terry Simonton, Jr., appeals from the order of the Court of Common Pleas of Lebanon County denying his petition for relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A Appellant * Retired Senior Judge assigned to the Superior Court. 1 In this procedurally complex case, extending over years, there are a variety of orders, untimely claims, changes of counsel, ineffectiveness claims, etc. Many of the orders overlap, supplement each other, or cumulatively address Appellant s numerous claims. Appellant nominally appeals from the original order of October 12, (See Appellant s Brief, at 2). Such an appeal would be appear to be untimely on its face. In the interest of judicial economy, and for clarity of comprehension, we give Appellant the benefit of the doubt, and treat the PCRA court s order of February 22, 2013, from which Appellant actually appealed, by express leave of court, as the final appealable order. (See PCRA Court Opinion in support of Order, April 18, 2013, at 2). We have amended the caption accordingly.

2 asserts the ineffectiveness of prior counsel. 2 We affirm on the basis of the PCRA court s opinions. The PCRA court notes that this case has had a rather confusing and extensive procedural history[.] (Order, 4/26/13, at 2). 3 We summarize only the portions of this history most relevant to our review. Appellant was convicted in two separate jury trials for numerous sexual offenses against his then thirteen years old stepson. (See PCRA Court Opinion, 10/12/11, at 2). The charges arose from events which occurred in 2003 or The victim testified that when his mother was not home, his stepfather, Appellant, would take him to the third floor attic bedroom where he would engage in anal intercourse with the victim and have the victim perform oral intercourse on him. Appellant would also perform oral intercourse on the victim, and make the victim perform anal intercourse on him. Appellant would lock the door to the attic. When the victim s sister tried to find out what was going on, Appellant shooed her away. 2 For completeness, we note that Appellant has also attempted to assert the ineffectiveness of present appellate counsel. (See Appellant s Brief, at 11). The PCRA court denied counsel s motion to withdraw, on April 23, 2013, by order of April 26, 2013, and according to counsel, by another order, of May 3, (See id.; see also Order, 4/26/13, at 3). 3 Nine attorneys have either entered their appearance or been appointed to represent [Appellant]. (Order, 4/26/13, at 1 A)

3 Brian L. Deiderick, Esq., of the Public Defender s office, represented Appellant at the preliminary hearing, pre-trial hearing, and the first trial. 4 In the first trial, the jury convicted Appellant of indecent assault and corruption of minors, but was unable to reach a unanimous verdict on the other charges. After the first trial, Appellant retained private counsel, Erin Zimmerer, Esq. The Commonwealth prosecuted Appellant again on the remaining charges. In the second trial, the jury convicted him of rape, involuntary deviate sexual intercourse, statutory sexual assault and endangering the welfare of children. (See PCRA Ct. Op., 10/12/11, at 2). On October 24, 2007, Appellant received an aggregate sentence of not less than eight nor more than twenty-two years imprisonment in a state correctional institution. (See N.T. Sentencing, 10/24/07, at 13). The trial court denied post-sentence motions. (See Order and Opinion, 3/11/08; PCRA Ct. Op., 10/12/11, at 2). Counsel did not file a direct appeal. On September 10, 2008, Appellant filed a pro se petition seeking PCRA relief. The PCRA court appointed John Gragson, Esq. to represent him. As a 4 On May 10, 2007, after a competency hearing, the trial court determined that the victim, J.S., then fifteen, was competent to testify. (See N.T. Hearing, 5/10/07, at 17 [partial transcript]). The trial court also ruled that the victims sister, M.S., was competent to testify. (See id. at 18-20)

4 result of the PCRA petition, Appellant s direct appeal rights were reinstated. 5 He then filed a direct appeal, challenging the weight of the evidence and other issues. This Court rejected the claims, affirming the judgment of sentence on the basis of the trial court s opinions. (See Commonwealth v. Simonton, No MDA 2009, unpublished memorandum at 3 (Pa. Super. filed July 29, 2010)). Appellant filed a pro se PCRA petition on March 24, The PCRA court appointed counsel, David R. Warner, Jr., Esq., who filed an amended petition. The court denied the petition, on October 12, 2011, after a hearing on August 11, 2011, with an opinion. As a result of several procedural problems not at issue in this appeal, except as otherwise noted, on February 22, 2013, the PCRA court reinstated Appellant s right to appeal from the order of October 12, 2011, as to all issues properly before the court at the time of the August 11, 2011 PCRA hearing. The PCRA court excluded issues not presented on August 11, This timely appeal followed on March 8, Appellant s original appeal was quashed for failure of his previous counsel, Mark Schappell, Esq., to file a brief. (See PCRA Ct. Op., 4/18/13, at 1). 6 Appellant contends that he should be allowed to raise additional claims not presented at the August hearing, and asserts that present appellate counsel is ineffective for not presenting them. The PCRA court vigorously rejects this claim, noting that counsel had continued to raise the issue even after the court decided to the contrary. (See Order, 4/26/13, at 2 D, E; see also PCRA Ct. Op., 4/18/13, at 2)

5 Appellant presents nine questions for our review. A. Did the [t]rial [c]ourt err in determining that Attorney Deiderick was not ineffective for failing to identify and call expert witnesses to mitigate the Commonwealth s testimony presented by Officer Grumbine? B. Did the [t]rial [c]ourt err in determining that Attorney Deiderick was not ineffective for failing to prepare for trial and provide Appellant with discovery prior to trial? C. Did the [t]rial [c]ourt err in determining that Attorney Zimmerer was not ineffective for failing to identify and call expert witnesses to mitigate the Commonwealth s testimony presented by Officer Grumbine? D. Did the [t]rial [c]ourt err in determining that Attorney Zimmerer was not ineffective for failing to identify and call witnesses that were requested by Appellant? E. Did the [t]rial [c]ourt err in determining that Attorney Zimmerer was not ineffective for failing to meet with Appellant and prepare for trial? F. Did the [t]rial [c]ourt err in determining that Attorney Gragson was not ineffective for failing to file a direct appeal to the Pennsylvania Supreme Court? G. Did the [t]rial [c]ourt err in denying Appellant the opportunity to file an Amended PCRA Petition for the purpose of raising ineffectiveness claims against PCRA counsel, Attorney Warner? H. Was PCRA counsel, Attorney Warner, ineffective in failing to raise all issues of trial counsel ineffectiveness requested by Appellant? (Footnote Continued) 7 New counsel for Appellant, Amy B. Leonard, Esq., filed a statement of errors on April 4, See Pa.R.A.P. 1925(b). The PCRA court filed a supplemental opinion on April 18, See Pa.R.A.P. 1925(a)

6 I. Was PCRA counsel, Attorney Warner, ineffective for failing to subpoena witnesses requested by Appellant for the PCRA hearing? (Appellant s Brief, at 4-5). Our standard of review of the denial of a PCRA petition is limited to examining whether the court s determination is supported by the evidence of record and free of legal error. Commonwealth v. Ousley, 21 A.3d 1238 (Pa. Super. 2011), appeal denied, 612 Pa. 698, 30 A.3d 487 (2011). This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa. Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). Commonwealth v. Lane, 2013 WL , at *2 (Pa. Super. filed December 4, 2013). Id. at *3. The law presumes counsel has rendered effective assistance. Commonwealth v. Gonzalez, 858 A.2d 1219, 1222 (Pa. Super. 2004), appeal denied, 582 Pa. 695, 871 A.2d 189 (2005). Generally, when asserting a claim of ineffective assistance of counsel, the petitioner is required to show: (1) the underlying claim is of arguable merit; (2) counsel had no reasonable strategic basis for his action or inaction; and, (3) but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326 (1999). The failure to satisfy any prong of the test for ineffectiveness will cause the claim to fail. Gonzalez, supra. Actual or constructive denial of the assistance of counsel, however, falls within a narrow category of circumstances in which prejudice is legally presumed. Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564 (1999) (holding where there is unjustified failure to file requested direct appeal, conduct of counsel falls beneath range of competence demanded of attorneys in criminal cases and denies appellant effective assistance of counsel; in such circumstances, prejudice is presumed and PCRA petitioner need not establish prejudice under general ineffectiveness test)

7 Preliminarily, we are reminded of the observation by the Honorable Ruggero J. Aldisert, Senior Circuit Judge of the United States Court of Appeals for the Third Circuit, that this Court has previously cited in Kenis v. Perini Corp., 452 Pa. Super. 634, 682 A.2d 845 (1996), as well as other cases: When I read an appellant s brief that contains ten or twelve points, a presumption arises that there is no merit to any of them. I do not say that it is an irrebuttable presumption, but it is a presumption that reduces the effectiveness of appellate advocacy. Appellate advocacy is measured by effectiveness, not loquaciousness. Id. at 847 n. 3 (citations omitted); see also Commonwealth v. Snyder, 870 A.2d 336, 340 (Pa. Super. 2005) ( [T]he effectiveness of appellate advocacy may suffer when counsel raises numerous issues, to the point where a presumption arises that there is no merit to any of them. ) (citations omitted). J.J. DeLuca Co., Inc. v. Toll Naval Assocs., 56 A.3d 402, (Pa. Super. 2012). After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinions of the PCRA court, we conclude that there is no merit to any of the issues Appellant has raised on appeal. The PCRA court opinions properly dispose of the questions presented. (See PCRA Ct. Op., 10/12/11, at 6-14, and PCRA Ct. Op., 4/18/13, [incorporating PCRA Ct. Op. of 10/12/11 by reference]) (concluding: (1) Attorney Deiderick was not ineffective for purportedly failing to identify and call expert witnesses to mitigate Detective Grumbine s essentially corroborative fact testimony; (2) Attorney Deiderick was not ineffective for purportedly failing to prepare for trial, or purportedly failing to provide Appellant with discovery prior to trial; (3) Attorney Zimmerer was - 7 -

8 not ineffective for purportedly failing to identify and call expert witnesses to mitigate Detective Grumbine s essentially corroborative fact testimony; (4) Attorney Zimmerer was not ineffective for purportedly failing to identify and call witnesses requested by Appellant; (5) Attorney Zimmerer was not ineffective for purportedly failing to meet with Appellant or prepare for trial; (6) Attorney Gragson was not ineffective for failing to file a direct appeal, based on the PCRA court s finding that Attorney Gragson s testimony was more credible than that of Appellant; (7) the PCRA court properly denied Appellant leave to raise additional issues after the PCRA hearing; (8) Attorney Warner was not ineffective for purportedly failing to raise all issues requested by Appellant; and (9) Attorney Warner was not ineffective for purportedly failing to subpoena witnesses requested by Appellant for the PCRA hearing. Accordingly, we affirm on the basis of the PCRA court s opinions. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 2/11/

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