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[U] Commonwealth v. Simonton

Superior Court of Pennsylvania

February 11, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TERRY SIMONTON, JR., Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order February 22, 2013 in the Court of Common Pleas of Lebanon County Criminal Division at No.: CP-38-CR-0002014-2006

BEFORE: PANELLA, J., MUNDY, J., and PLATT, J. [*]

MEMORANDUM

PLATT, J.

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. §§ 9541–9546.[1] Appellant 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 2004. 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.

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 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. 1234 MDA 2009, unpublished memorandum at 3 (Pa.Super. filed July 29, 2010)).

Appellant filed a pro se PCRA petition on March 24, 2011. 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 ...


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