Appeal from the PCRA Order of April 16, 2008, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. CP-51-CR-1007631-2004
The opinion of the court was delivered by: Colville, J.:
BEFORE: BENDER, WECHT and COLVILLE*fn1 , JJ.
This case is an appeal from the order denying Appellant's petition under the Post Conviction Relief Act ("PCRA"). Appellant raises several issues regarding the alleged ineffectiveness of his trial counsel. We affirm the order.
Appellant was convicted of six sex-related offenses involving multiple complainants. On direct appeal, this Court affirmed his judgment of sentence. Commonwealth v. Miner, 927 A.2d 655 (Pa. Super. 2007). Appellant filed a PCRA petition but did not obtain relief in the PCRA court. On appeal to this Court, he filed a pro se petition alleging the ineffectiveness of PCRA counsel based on that counsel's alleged failure to raise various claims Appellant wanted to pursue.
We ordered PCRA counsel to file a petition for remand pursuant to Commonwealth v. Battle, 879 A.2d 266 (Pa. Super. 2005). Counsel did so, but we determined the petition was defective in that it did not detail the nature and extent of counsel's review of the claims Appellant wanted to raise and did not explain why counsel believed Appellant's desired issues were meritless. We also determined counsel's brief, which raised several claims for relief, was defective because it contained undeveloped arguments. Accordingly, we were not satisfied Appellant had had the benefit of effective counsel on what was the appeal of his first PCRA petition. Noting that counsel had been privately retained, we were uncertain whether Appellant was indigent and was entitled to the appointment of counsel. Consequently, we vacated the order dismissing Appellant's petition and remanded for a determination as to whether counsel should be appointed. Commonwealth v. Miner, 988 A.2d 725 (Pa. Super. 2009).
The Pennsylvania Supreme Court granted Appellant allowance of appeal from our decision. After doing so, the court vacated our order and remanded the case to us for reconsideration in light of Commonwealth v. Jette, 23 A.3d 1032 (Pa. 2011). Commonwealth v. Miner, 27 A.3d 986 (Pa. 2011). Thereafter, Appellant filed another pro se petition, one requesting self-representation. The case has now returned to us.
In Jette, the Supreme Court held the correct response to any pro se pleading filed with us by a represented appellant is to refer the pleading to counsel and to take no other action on the issues in the pro se pleading unless counsel forwards us a motion or other document relating to the pro se issues. Jette, 23 A.3d at 1044. The court also noted that, once a counseled brief has been filed on appeal, any right to insist on self- representation has expired. Id. Accordingly, all that remains for this Court to do after forwarding a pro se pleading to counsel is to act on the brief or other documents counsel has filed on the appellant's behalf. Id. at 1045.
In light of Jette, we have forwarded Appellant's latest pro se petition to counsel. Counsel has not filed a motion or other document in response thereto. Therefore, we now turn to the appellate issues counsel has included in the brief filed on Appellant's behalf.
The brief argues the PCRA court should have granted Appellant relief because his trial counsel was ineffective for not filing an alibi notice, for not calling alibi or other witnesses, including the stepfather of two complainants, for not offering various documents in support of an alibi, and for not challenging the rape shield law. For the reasons that follow, these claims fail.
Proceeding under Pa.R.A.P. 907, the trial court issued a notice of its intent to dismiss this case based on its finding that the PCRA petition had no merit. Later, after dismissing the petition without a hearing, the court elaborated on its reasoning. In its opinion, the court explained that, while the PCRA petition claimed trial counsel should have filed an alibi notice, the petition did not name the alibi witnesses Appellant wanted counsel to present. The court did acknowledge Appellant appeared to contend some witnesses would have testified he was at work at the time of one or more the incidents in this case but, again, the petition did not identify those persons.
Along these same lines, the PCRA court observed that the jury had heard evidence of no fewer than eleven incidents in which Appellant was to have molested the complainants. However, the PCRA petition did not make clear to the court whether Appellant contended he had an alibi witness for all or just some of those incidents.
With respect to the alibi-related documents that Appellant contended trial counsel should have introduced, the PCRA court determined the PCRA petition did not include those documents. Accordingly, the court did not have an opportunity to review the documentary evidence Appellant wanted trial counsel to introduce.
The court observed that the PCRA petition indicated counsel should have called Lenny Simmons to testify Appellant was not "home" during the incidents. PCRA Court Opinion, 07/11/08, at 7. The court reasoned that, in light of the fact that the incidents giving rise to this case happened at two different residences and the fact that there was evidence of at least eleven ...