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[U] Commonwealth v. Tyger

Superior Court of Pennsylvania

March 5, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
JOSEPH DUANE TYGER Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order of December 4, 2012 In the Court of Common Pleas of Butler County Criminal Division at No.: CP-10-CR-0002077-2009

BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and STRASSBURGER, J. [*]

MEMORANDUM

WECHT, J.

Joseph D. Tyger ("Appellant") appeals from the order entered on December 4, 2012 in the Court of Common Pleas of Butler County denying his petition filed pursuant to the Post-Conviction Relief Act (" PCRA"), 42 Pa.C.S. §§ 9541-46. Counsel for Appellant has filed with this Court an Anders[1] brief and a petition to withdraw as counsel. We grant counsel's petition to withdraw, and we affirm the PCRA court's order.

On June 25, 2009, Appellant began a dialogue in an Internet chat room, specific to Pennsylvania, with an online persona styled "prettyinpa13." I n fact, the person behind that profile was Special Agent David Frattare (hereinafter, "Agent Frattare") of the Pennsylvania Attorney General's Child Predator Unit. Agent Frattare went by the name "Brianna" when using the "prettyinpa13" profile.[2] Agent Frattare used the profile to patrol Pennsylvania chat rooms for predatory activities.

The initial chat between Appellant and "Brianna" discussed various form s of sexual intercourse. Despite " Brianna's" disclosure to Appellant that she was thirteen years old, Appellant continued the conversation. Appellant initiated a second chat with "Brianna" on June 26, 2009. This chat also was sexual in nature and contained another brief conversation regarding the respective ages of both parties. Appellant informed "Brianna" that he wished their conversations to remain secret because he did not want to go to jail. During the second conversation, Appellant arranged a meeting between the two parties at a Sheetz gas station. During that conversation, " Brianna" gave Appellant her phone number. A third conversation on June 28, 2009, confirm ed the details of the meeting.

On June 29, 2009, agents of the Child Predator Unit identified and arrested Appellant at the a for ementioned Sheetz gas station. Appellant signed a waiver of rights form, and consented to a search of his vehicle. Therein, agents found a bag of condoms and the phone number provided to Appellant by "Brianna."

Appellant was charged with unlawful contact with a minor relating to involuntary deviate sexual intercourse; [3] unlawful contact with a minor relating to sexual assault; [4] unlawful contact with a minor relating to indecent assault; [5] attempted unlawful conduct with a minor; [6] and criminal use of a communication facility.[7] On June 23, 2010, a jury found Appellant guilty on all counts. On October 21, 2010, Appellant was sentenced to fifty-four to 108 months' incarceration. Appellant also was subjected to lifetime registration under Megan's Law. 42 Pa.C.S. § 9795.1(b)(1).

Appellant filed a timely post-sentence motion challenging his lifetime registration status under Megan's Law. On January 28, 2011, the trial court dismissed Appellant's motion. Thereafter, Appellant filed a notice of appeal. On September 8, 2011, we rejected Appellant's challenge to his lifetime registration status under Megan's Law on the basis that the plain language of the statute and the controlling case law did not warrant relief. Commonwealth v. Tyger, 34 A.3d 219 (Pa. Super. 2011) (table). Appellant sought allowance of appeal from the Pennsylvania Supreme Court, which was denied on March 23, 2012. See Commonwealth v. Tyger, 40 A.3d 1236 (Pa. 2012) (per curiam).

On September 21, 2012, Appellant timely filed a PCRA petition through appointed counsel, raising various issues regarding the effectiveness of trial counsel. On November 8, 2012, the PCRA court held a hearing on Appellant's petition. On December 4, 2012, the PCRA court issued an opinion and order dismissing Appellant's PCRA petition. On December 31, 2012, Appellant filed a notice of appeal. I n response, the PCRA court directed Appellant to file a concise statement of errors com plained of on appeal pursuant to Pa.R.A.P. 1925(b). On January 2, 2013, Appellant timely filed a Rule 1925(b) statement. On March 18, 2013, the PCRA court entered an opinion pursuant to Rule 1925(a), which referred back to the legal reasoning articulated in its December 4 order.

I n his Anders brief, PCRA counsel has identified three potential issues for our review:

1. Did the PCRA [ c] ourt commit an error of law when it determined that trial counsel was not ineffective for failing to object to the Commonwealth's Exhibit 26, which was the declaration and certification of th[ e photographs of the Florida police officer] . . . concerning the use of her photos for the undercover investigation, thus undermining the truth[ -] determining process [ such that] no reliable adjudication of guilt or innocence could have taken place?
2. Did the PCRA Court commit an error of law when it determined that trial counsel was not ineffective for failing to object to the testimony from [ Agent Frattare] concerning the age of [ the Florida police officer] in various photographs, and regarding the number of arrests made by the Office of the Attorney General using the [ "Brianna"] persona, and the testimony by Special Agent Kelly Roberts regarding the number of cases she has been involved with and the commendation she received for portraying the voice of [ "Brianna, "] thus undermining the truth[ -] determining process [ such that] no reliable adjudication of guilt or innocence could have taken place?
3. Did the PCRA Court commit an error [ of] law when it determined that trial counsel was not ineffective for failing to object and request a cautionary instruction or mistrial when the Commonwealth questioned on several occasions [ Appellant's] right to counsel, right to remain silent and made impermissible comments on Appellant's post[ -] arrest silence, thus undermining the truth[ -] determining process [ such that] no reliable adjudication of guilt or innocence could have taken place?[8]

Anders Brief at 4.

Collectively, these issues allege that trial counsel was ineffective based upon trial counsel's failures to object to the introduction of four specific pieces of testimonial and/ or documentary evidence, as well as trial counsel's failure to object to an allegedly improper statement made by the assistant district attorney. I d. at 4. Although listed as three claim s, there are actually five distinctive issues raised in Appellant's brief. Specifically, the second issue stated in Appellant's brief alleges three separate evidentiary bases for ineffectiveness. Therefore, in this memorandum, we ultimately will address five issues: the single issue raised in Appellant's first claim, the three issues raised in Appellant's second claim, and the single issue raised in Appellant's third claim .

As noted above, PCRA counsel has filed an Anders brief and a motion to withdraw as counsel. Because this is an appeal from a PCRA order, we will treat PCRA counsel's Anders brief as a Turner/ Finley brief. See supra note 1. We first consider whether PCRA counsel has complied with the requirements that our courts have established in order for appointed counsel to be released pursuant to Turner and Finley. We previously have explained this procedure as follows:

Counsel petitioning to withdraw from PCRA representation must proceed under [ Turner/ Finley and] . . . must review the case zealously. Turner/ Finley counsel must then submit a "no-merit" letter to the trial court, or brief on appeal to this Court, detailing the nature and extent of counsel's diligent review of the case, listing the issues which petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the "no merit" letter/ brief; (2) a copy of counsel's petition to withdraw; and (3) a statement advising petitioner of the right to proceed pro se or by new counsel.
Where counsel submits a petition and no-merit letter that satisfy the technical demands of Turner/ Finley, the court - trial court or this Court - must then conduct its own review of the merits of the case. I f the court agrees with counsel that the claim s are without merit, the court will perm it counsel to withdraw and deny relief.

Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citations omitted).

We conclude that PCRA counsel has substantially complied with the technical requirements of Turner/ Finley. I n his brief, PCRA counsel sets forth the issues as to which Appellant seeks our review on appeal. See Anders Brief at 4. It is clear that PCRA counsel has studied the history of Appellant's case thoroughly. I d. at 5-13. PCRA counsel also has reviewed the applicable statutes, case law, and rules of procedure. I d. at 15-19. In articulating his reasoning as to why he believes that Appellant is not entitled to relief, PCRA counsel reviews the legal standards for proving I AC claims. PCRA counsel argues that Appellant is unable to satisfy the elements of the above test with regard to Appellant's ineffectiveness claim s, to wit, that trial counsel was ineffective for not objecting to: (1) the admission of the verification of the photographs of the Florida police officer; (2) the admission of the photographs them selves; (3) the admission of testimony relating to the effectiveness of the Child Predator Unit; (4) the admission of testimony from Special Agent Kelly Roberts regarding her role as the "voice" of "Brianna"; and (5) ...


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