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[U] Commonwealth v. Miller

Superior Court of Pennsylvania

February 27, 2014

COMMONWEALTH OF PENNSYLVANIA
v.
HOWARD MILLER, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order, October 15, 2012, in the Court of Common Pleas of Philadelphia County Criminal Division at No. CP-51-CR-1004711-2004

BEFORE: FORD ELLIOTT, P.J.E., BOWES AND OTT, JJ.

MEMORANDUM

FORD ELLIOTT, P.J.E.

Howard Miller appeals from the order of October 15, 2012, dismissing his PCRA[1] petition. We affirm.

This court summarized the facts of this matter on direct appeal as follows:

Miller was involved in a romantic relationship with the victim's mother that ended in January 2003. He continued to call her for months after the relationship ended, forcing her to change her cell phone number. On October 26, 2003, at approximately 11:30 p.m., Miller called her house and her fifteen-year-old daughter, the victim, answered the phone. The victim explained that her mother was not home and her great-grandmother was asleep. She went on to tell Miller that she wanted to leave the house and stay somewhere else because her mother was angry with her. Miller responded that she could stay with him, and instructed her to pack her things.
About half-an-hour later, Miller arrived at the victim's house to pick her up. Miller waited in the victim's mother's bedroom while the victim showered and got dressed. After she was dressed, the victim went into her mother's bedroom to get some lotion. She saw Miller lying in her mother's bed under the covers. Miller began wrestling with her and eventually pulled her onto the bed. She saw that he was wearing nothing but underwear and asked him to let her up.
Instead of releasing her, Miller got on top of the victim and removed her clothes. He put his fingers in her vagina and told her to kiss him, which she refused to do. Miller then began licking her vagina and told [the] victim that he always "wanted" her and not her mother. N.T., Trial, 2/8/06, at 55. Miller then inserted his penis in the victim's vagina. He told her that he loved her and instructed her to tell him the same. The victim responded that if he loved her, he would not be doing what he was doing. Miller proceeded to punch her on the left side of her face. The victim did not scream because she was afraid of what Miller would do to her and her great-grandmother. When he was done raping her, Miller grabbed the victim by the hair and said, "[Y]ou ain't a snitch, are you?" and "[I]f you tell anyone I will kill you." Id., at 56.
After Miller left the house, the victim called her maternal grandmother, Gail Fordham, and told her that she had been raped by Miller. Ms. Fordham immediately called the police. Subsequently, Miller was arrested and charged with numerous crimes stemming from the incident.
A three-day jury trial commenced on February 7, 2006. The bulk of the Commonwealth's evidence consisted of the victim's testimony and that of her grandmother, Ms. Fordham. On February 9, 2006, Miller was found guilty of rape, involuntary deviate sexual intercourse, aggravated indecent assault, and corruption of minors. This timely appeal followed.

Commonwealth v. Miller, 970 A.2d 472 (Pa.Super. 2009), unpublished memorandum filed February 11, 2009 at 1-3, appeal denied, 602 Pa. 677, 981 A.2d 218 (2009).

Appellant raised a single issue on direct appeal, whether he was entitled to a new trial on the basis of the trial court's questioning of the victim's grandmother, which appellant claimed introduced evidence of appellant's status as an inmate in a correctional facility, and further elicited a direct reference to his general "bad character." Id. at 3-4. This court found the matter waived as appellant did not preserve it in the trial court by requesting a mistrial. Id. at 4-5. However, we went on to state that even if the issue had been properly preserved for our review, we would find it to be meritless. Id. at 5. Fordham merely said that she worked for the Department of Corrections and in no way implied that appellant was an inmate. Id. In addition, she did not directly impugn appellant's character, and the trial court immediately sustained appellant's objections and issued a cautionary instruction to the jury. Id. at 6. Therefore, we found the claim to be meritless. Id.

On April 12, 2010, appellant filed a timely pro se PCRA petition. Counsel was appointed, and filed an amended petition on appellant's behalf, requesting reinstatement of his post-sentence and direct appeal rights nunc pro tunc. On October 15, 2012, following Rule 907[2] notice, appellant's petition was dismissed. This timely appeal followed. Appellant was not directed to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A.; ...


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