HomeMy WebLinkAbout98-0991 CriminalCOMMONWEALTH
NICHOLAS A. PRACHT
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 98-0991 CRIMINAL TERM
IN RE: PETITION FOR POST CONVICTION RELIEF
OLER, J., December 31, 2003
On October 28, 1998 a jury found Nicholas A. Pracht ("Petitioner") guilty of four
counts of involuntary deviate sexual intercourse and four counts of corruption of minors,~
stemming from a sexual relationship Petitioner had with a young boy.2 On December 8,
1998 Petitioner was sentenced to a total term of imprisonment of six to fifteen years,3 and
the Superior Court affirmed the judgment of the sentence on May 8, 2001.4 This opinion
deals with Petitioner's Motion for Post Conviction Relief. For the reasons stated herein,
Petitioner's Motion for Post Conviction Relief will be denied.
STATEMENT OF FACTS
On May 4, 1998 a criminal complaint was filed by the Commonwealth charging
Petitioner with four counts of statutory sexual assault,5 four counts of involuntary deviate
~ Verdict and Order of Ct., Oct. 28, 1998.
2 See Commonwealth v. Nicholas Albert Pracht, May 4, 1998 Police Criminal
Complaint; Order of Super. Ct., May 8, 2001, 106 MDA 1999.
3 Sentence, Dec. 8, 1998 (Hoffer, P.J.).
4 Order of Super. Ct., May 8, 2001, 106 MDA 1999; Commonwealth v. Pracht, 778 A.2d
1246 (Pa. Super. 2001).
5 Act of March 31, 1995, P.L. 985, § 5, asamended 18 Pa. C.S. § 3122.1.
sexual intercourse,6 and four counts of corruption of minors,7 stemming from an alleged
sexual relationship Petitioner had with a male child.8 Following a preliminary hearing on
May 28, 1998, Petitioner's case was bound over for court.9 The trial began October 26,
1998 and ended October 28, 1998, throughout which Petitioner acted as his own attorney,
and during which the statutory sexual assault charges were dismissed, l0 On the last day
of trial, after deliberations, the jury returned guilty verdicts on the remaining counts.
On direct appeal, Petitioner also represented himself and, after two years of
miscellaneous filings in the Superior Court,~2 on May 8, 2001 the Superior Court
affirmed the judgment of sentence. ~3 On March 25, 2002 Petitioner filed the Motion for
Post Conviction Relief that is the subject of this opinion. 14
The history of counsel appointments in this case is neither brief nor particularly
clear. However, a synopsis is necessary to address some of Petitioner's claims for relief.
6 Act of Dec. 6, 1972, P.L. 1482, {} 1, as amended l8 Pa. C.S. {} 3123.
? Act of July 1, 1978, P.L. 573, {} 1, as amended 18 Pa. C.S. {} 6301.
8 See Commonwealth v. Nicholas Albert Pracht, May 4, 1998 Police Criminal
Complaint.
9 Commonwealth v. Nicholas Albert Pracht, District Justice Transcript, filed June 2,
1998.
l0 Order of Super. Ct., May 8, 2001, 106 MDA 1999; Verdict and Order of Ct., Oct. 28,
1998.
~ Verdict and Order of Ct., Oct. 28, 1998.
~2 See generally, Commonwealth v. Nicholas Albert Pracht, 106 MDA 1999, Docket.
~3 Order of Super. Ct., May 8, 2001, 106 MDA 1999; Commonwealth v. Pracht, 778
A.2d 1246 (Pa. Super. 2001).
14 March 25, 2002 PCRA.
2
Petitioner's first court-appointed counsel, Attorney James K. Jones, was
appointed on May 26, 1998.~5 Following a preliminary hearing, on July 21, 1998
Attorney Jones was excused,16 and in his place Attorney Darrell (2. Dethlefs was
appointed to represent Petitioner. ~? Two months later, on September 22, 1998, Petitioner
filed a motion to waive the right to counsel and represent himself,~8 which the trial court
granted in an October 13, 1998 order, wherein Attorney Dethlefs was appointed standby
counsel.~9 From October 26, 1998 to October 28, 1998, Petitioner proceeded through
trial pro se, after which a jury found him guilty of four counts of involuntary deviate
sexual intercourse and four counts of corruption of minors.2° Petitioner was sentenced by
the trial judge, the Honorable George E. Hoffer, on December 8, 1998 to a six-to-fifteen
year period of imprisonment for each of the involuntary deviate sexual intercourse
counts, all sentences to run concurrently.2~ Judge Hoffer also ordered Petitioner to pay
~5 Order of Ct., May 26, 1998.
~6 Order of Ct., July 21, 1998. There was testimony at the July 23, 2003 PCRA hearing
that Petitioner asked the trial court to remove Attorney Jones. July 23, 2003 PCRA
Hearing at 46 (hereafter "Transcript at __.")
~? Order of Ct., July 21, 1998.
~8 Motion for Waiver of Counsel, filed Sept. 22, 1998.
Order of Ct., Oct. 13, 1998.
20 Verdict and Order of Ct., Oct. 28, 1998.
Sentence and Order of Ct., Dec. 8, 1998.
3
the costs of prosecution for each involuntary deviate sexual intercourse count, and for one
count of corruption of minors. 22
On December 22, 1998 Attorney Dethlefs withdrew from the case, and Attorney
Robert P. Kline was appointed to represent Petitioner on direct appeal.23 On May 26,
1999 Attorney Kline attempted to withdraw from the case by filing an Anders Brief with
the Superior Court.24 On July 23, 1999 Petitioner filed with the trial court a motion to
vacate Attorney Kline's appointment and to proceed pro se.25 This motion was granted
by the trial court four days later.26 However, the Superior Court issued an order on
November 1, 1999 denying Attorney Kline's application to withdraw, deeming the
Anders brief inadequate,27 and ordering that a proper Anders brief be filed within thirty
days.28 Less than thirty days later, on November 24, 1999, Attorney Kline filed a
praecipe to withdraw his appearance in the Superior Court,29 and that same day Attorney
Jason P. Kutulakis entered his appearance in the Superior Court as Petitioner's court-
22 Sentence and Order of Ct., Dec. 8, 1998. The corruption of minors counts were
combined into one charge for sentencing purposes. Id.
23 Order of Ct., Dec. 22, 1998.
24 Application To Withdraw as Counsel and Anders Brief, filed May 26, 1999, 106 MDA
1999.
25 Motion To Vacate Court Appointment, filed July 23, 1999.
26 Order of Ct., July 27, 1999 (Hoffer, P.J.). The court also noted its willingness to
entertain any future requests for the reappointment of counsel. Id.
27 The Superior Court likened Attorney Kline's brief to a "no-merit" letter rather than an
Anders Brief. Memorandum of Super. Ct., Nov. 1, 1999, 106 MDA 1999.
28 Memorandum of Super. Ct., Nov. 1, 1999, 106 MDA 1999.
29 Praecipe for Withdrawal of Appearance, filed Nov. 24, 1999, 106 MDA 1999.
4
appointed counsel.3° A little over two weeks later, on December 9, 1999, Petitioner filed
with the Superior Court several petitions, including a petition to proceed pro se and a
petition for appointment of standby counsel.3~ That same day Petitioner also filed with
the Superior Court his firstpro se appellate brief.32
The Superior Court, understandingly perplexed by this sequence of events, issued
an order on February 8, 2000 noting the failure of Attorney Kline to file an appropriate
Anders brief, the replacement of Attorney Kline by Attorney Kutulakis, and Petitioner's
motion to proceed pro se.33 The Superior Court's order observed that "It]he record does
not clearly indicate how this sequence of events occurred; more specifically, the record
does not indicate whether Mr. Kut[u]lakis was appointed to represent Appellant prior to
or after Appellant's filing of his motion to proceed pro se.''34 Accordingly, the Superior
Court relinquished jurisdiction to the trial court for a determination as to whether
Petitioner had effectively waived his right to counsel.35 Following a hearing, the trial
court (Hoffer, P.J.) determined that Petitioner had intelligently, knowingly, and
3o Praecipe for Appearance, filed Nov. 24, 1999, 106 MDA 1999.
3~ Petition To Proceed Pro Se, filed Dec. 9, 1999, 106 MDA 1999; Petition for Standby
Counsel, filed Dec. 9, 1999, 106 MDA 1999.
32 Pro Se Appellant's Brief, filed Dec. 9, 1999, 106 MDA 1999.
33 Order of Super. Ct., Feb. 8, 2000, 106 MDA 1999.
34 Order of Super. Ct., Feb. 8, 2000, 106 MDA 1999.
35 Order of Super. Ct., Feb. 8, 2000, 106 MDA 1999.
voluntarily waived his right to counsel, granted Petitioner's application to proceed pro se,
and appointed Attorney Kutulakis to serve as standby counsel.36
On November 8, 2000 Petitioner filed his second pro se appellate brief with the
Superior Court,37 and, following the Commonwealth's response,38 filed sixteen other
documents on January 22, 2001,39 among them a Motion To Dismiss Standby Counsel.®
On May 8, 2001 the Superior Court affirmed the judgment of sentence.4~
During the period referred to above, on August 25, 1999, Petitioner filed in this
Court a Motion for Post Conviction Relief ("PCRA petition").42 On November 3, 1999,
Attorney Jason P. Kutulakis was appointed to represent Petitioner on that petition,43 but
after a hearing the court (Oler, J.) determined that Petitioner's direct appeal was still
36 Order of Ct., Oct. 4, 2000.
37 Pro Se Appellant's Brief, filed Nov. 8, 2000, 106 MDA 1999.
38 Appellee's Brief, filed Jan. 10, 2001, 106 MDA 1999.
39 Petitioner's filings included: Motion for Extension of Time To File Reply Brief;
Motion To Amend Docket; Motion for Transcripts; Motion To Strike/Amend Transcripts;
Motion for Stay/Bail; Motion for Single Judge; Motion To Overpaginate Brief; Motion
for Return of Property Seized from Person; Motion for Return of Property Seized from
Premises; Motion To Supplement Record; Motion To Employ Special Investigator;
Motion To Dismiss Standby Counsel; Motion for Preservation of Evidence; Motion for
Extension of Time To File Motions; Motion To Continue in Forma Pauperis; Motion To
Restore Appellant's Briefing Schedule; and various other documents. See Commonwealth
v. Nicholas Albert Pracht, 106 MDA 1999, Docket at January 22, 2001.
40 Motion to Dismiss Standby Counsel, filed Jan. 22, 2001, 106 MDA 1999.
41 Order of Super. Ct., May 8, 2001, 106 MDA 1999; Commonwealth v. Pracht, 778
A.2d 1246 (Pa. Super. 2001).
42 Motion for Post Conviction Relief, Aug. 25, 1999.
43 Order of Ct., Nov. 3, 1999 (Holler, P.J.).
6
pending, and dismissed this first PCRA petition as premature and without prejudice, on
December 13, 1999.44
Petitioner now comes before this Court with a second, timely-filed PCRA
petition,45 the grounds of which may be summarized as follows:
(1)
involuntary deviate sexual intercourse, statutory sexual assault, corruption of
minors, sentences for offenses against infant persons, registration of sexual
offenders, and truth-in-sentencing statutes are unconstitutional;46
(2) addicts are subject to separate, unequal, cruel, and unusual punishment;47
(3) after-discovered evidence would have altered the outcome of the trial;48
(4) mandatory registration under "Megan's Law''49 is unconstitutional,5° and
conviction under the statute subjected Petitioner to double jeopardy;5~
(5) mandatory minimum sentences under 42 Pa.C.S. § 971852 are
unconstitutionally cruel;53
44 Order of Ct., Dec. 13, 1999.
45 This second PCRA petition purports to encompass issues from an unrelated case. To
the extent that Petitioner's conviction in the above-captioned case did not arise from the
unrelated case, this Court cannot entertain the unrelated arguments. See Act of May 13,
1982, P.L. 417, § 2, as amended42 Pa. C.S. § 9543(a)(2).
46 March 25, 2002 PCRA at 8 (hereafter "PCRA at ."); "Appellant's PCRA
Memorandum of Law and Facts," dated July 30, 2003, at 2-4 (hereafter "Brief at .").
47 PCRA at 12.
48 PCRA at 11.
49 Act of Oct. 24, 1995, P.L. 1079, § 1, asamended, 42 Pa. C.S. § 9791 etseq.
50 PCRA at 8; Brief at 5-8.
51 PCRA at 3; Brief at 34.
52 Sentences for offenses against infant persons. Act of Dec. 30, 1982, P.L. 1472, § 1, as
amended 42 Pa. C.S. § 9718.
53 PCRA at 8; Brief at 3.
7
(6) heightened judicial scrutiny is required for four new suspect classes;54
(7) pro se representation is inferior to attorney representation and thus constitutes
a violation of Due Process;55
(8) Megan's Law and the "85% Law''56 are bills of attainder and
unconstitutional,57 and the sentence imposed under these statutes exceeds the
lawful maximum;58
(9) the 85% Law was unconstitutionally imposed on Petitioner;59
(t0) it is "unfair" that diminished capacity is available as a defense for some
crimes but not others;®
(t t) several Amendments to the United States Constitution are unconstitutional;6~
(12) counsel and the courts worked to hide all favorable evidence;62
(t 3) the 8th Amendment prohibits cruel and unusual mental punishment;63
(14) an unintelligible argument regarding the "Colorado Sex Act";64
54 PCRA at 8-9.
55 PCRA at 12; Brief at 18-19.
56 Act of April 26, 1996, P.L. 103-322, § 20104, as amended 42 USC § 13704, etseq.
57 PCRA at 9, 12; Brief at 5-8, 33-24.
58 PCRA at 3; Brief at 33.
59 PCRA at 9; Brief at 5, 33-34.
60 PCRA at t0; Brief at 4-5.
61 PCRA at 9, Brief at 6.
62 PCRA at 10; Brief at 35-36.
63 PCRAat t0.
64 PCRA at 10; Brief at 34.
(15) the District Attorney "altered/tampered with/hid/lost" preliminary hearing
tapes and failed to disclose favorable evidence;65 and
(16) all four court-appointed counsel were ineffective. 66
A hearing was held on the petition on July 23, 2003, by the writer of this opinion.
At the hearing, Petitioner requested that this Court excuse his court-appointed counsel,
Attorney Ellen K. Barry, and allow Petitioner to proceed pro se.67 Petitioner was
informed that he had the right to counsel, and that there were many advantages to
representation.68 Petitioner was told that if he represented himself he would be "bound
by all the normal rules and procedures that apply to any criminal case" before, during,
and after the hearing, that if a matter were not raised in the proceeding it would be
waived, that should errors occur the right to base an appeal upon their occurrence would
be waived unless an objection was made at the appropriate time, and that Petitioner
would not be able to allege ineffectiveness of counsel for any proceedings in which he
represented himself.69 Petitioner testified that he understood this, and that he was
65 PCRA at 3; Brief at 35-36.
66 PCRA at 3; Brief at 9-16, 35-36.
67 Transcript at 3.
68 Transcript at 4. As this Court advised Petitioner:
There are obvious advantages to representation by counsel because of
counsel's familiarity with... [m]otions of many types, cross-examination
of witnesses against you, challenging the admissibility of evidence
presented against you, calling witnesses and presenting evidence on your
behalf, arguing the facts and evidence to the Court, arguing the law and
evidence to the Court, and many, many other advantages to representation
by counsel because of counsel's experience and knowledge of the law.
69 Transcript at 4-5.
9
voluntarily waiving his right to representation.TM The Court then proceeded with the
colloquy in the area of Petitioner's competence, during which Petitioner stated that he:
was 39 years of age; had been an honor student and on the debate team in high school;
attended the University of Georgia for four years, where he was also an honor student and
on the debate team, and where he earned a degree in psychology with minors in both
philosophy and parks and recreation; earned an associate's degree in architectural
drafting from the Harrisburg Area Community College;TM and read and wrote the English
language and considered himself "very literate.''72 Following the colloquy, this Court
granted Petitioner's request to represent himself, and excused Attorney Barry from
further representation of Petitioner in this PCRA case.73 Petitioner was offered Attorney
Barry's services as standby counsel, but Petitioner declined them.TM
During the PCRA hearing Petitioner testified to six of the arguments asserted in
his PCRA petition,75 cross-examined the Commonwealth's only witness, Chief Deputy
7o Transcript at 5.
Transcript at 5-6.
72 Transcript at 6. Indeed, photographs used as exhibits at trial show Petitioner owned
hundreds of books, including books on the Latin, Spanish, and what appears to be French
languages. See Commonwealth Jury Trial Exhibits 2c, 25.
73 Transcript at 8.
74 Transcript at 7-8. Indeed, Petitioner requested that this Court excuse Attorney Barry
from Petitioner's unrelated case then pending before the Superior Court. Id at 8.
75 Transcript at 31. Petitioner testified to, and in a few instances made legal arguments
regarding: the unconstitutionality of various statutes (Id at 32); the ineffectiveness of
counsel (Id at 33); the denial of the right to appeal and obstruction of justice (Id at 34);
the imposition of a sentence greater than the lawful maximum (Id at 36); the conviction
10
District Attorney Jaime M. Keating,76 and requested that the court direct that various
witnesses be summoned to testify.77 Specifically, Petitioner sought to call the following
individuals: the minor victim in the case;TM a sex offender counselor;79 a Deputy District
Attorney;8° the superintendent of the State Correctional Institution at Frackville;8~ a law
enforcement officer;82 several court-appointed attorneys;83 several physicians;84 and one
of three Superior Court Judges involved in the direct appeal of Petitioner's conviction in
the above-captioned matter.85 After listening to Petitioner's offers of proof with respect
to the witnesses, this Court determined that the testimony which Petitioner hoped to elicit
from the proposed witnesses had little bearing on the matter sub judice,86 and that to
was obtained by a violation of double-jeopardy (Id at 38); and the prosecution failed to
disclose favorable evidence (Id at 39).
76 Transcript at 44, 57.
77 Transcript at 8.
78 Transcript at 12.
79 Transcript at 18, 22.
80 Transcript at 10.
8~ Transcript at 13.
82 Transcript at 8.
83 Transcript at 15.
84 Transcript at 24, 26.
85 Transcript at 11.
86 For example, Defendant proffered that the Superior Court Judge would confess to a
conspiracy with the law enforcement officer. Transcript at 11-12. However, nowhere in
the PCRA petition does Defendant argue conspiracy. See generally, Motion for Post
Conviction Collateral Relief, March 25, 2002.
11
allow such testimony would have been to permit a venture into issues outside the scope
of the PCRA petition. Thus, Petitioner's request to have these witnesses summoned for
testimony was denied.
In the form PCRA petition utilized by Petitioner he checked every available box
for relief requested.87 The petition proposed that the Court release him from custody and
discharge him, grant him a new trial, correct his sentence, and dismiss the charges filed
against him. 88
For the reasons stated in this opinion, the Court has concluded that Petitioner's
positions are without merit, and the Petition for Post Conviction Relief will be dismissed.
DISCUSSION
Statement of Law
At the outset it should be noted thatpro se pleadings are subject to a less stringent
standard of review than those filed by attorneys,89 and courts are generally willing to
liberally construe such filings.® However, pro se representation carries with it no special
entitlements,9~ and courts are not required to act as counsel for apro se litigant.92
87
PCRA at 5.
88 PCRA at 5.
89 Bell v. Horn, 762 A.2d 776, 778 (Pa. Cmlth. Ct. 2000).
90 Commonwealth v. Lyons, 833 A.2d 245, 251-52 (Pa. Super. Ct. 2003); Commonwealth
v. 1Vlaris, 427 Pa. Super. 566, 571 n. 1,629 A.2d 1014, 1017 n. 1 (1993).
9~ Commonwealth v. Lyons, 833 A.2d 245, 251-52 (Pa. Super. Ct. 2003); Commonwealth
v. 1Vlaris, 427 Pa. Super. 566, 571 n. 1,629 A.2d 1014, 1017 n. 1 (1993).
92 Commonwealth v. 1Vlaris, 427 Pa. Super. 566, 571,629 A.2d 1014, 1017 (1993).
12
To be eligible for post conviction relief, a PCRA petitioner must "plead and prove
by a preponderance of the evidence":
(1) That the petitioner has been convicted of a crime under the laws of this
Commonwealth and is at the time the relief is granted:
(i)
currently serving a sentence of imprisonment, probation, or
parole for the crime;
(ii) awaiting execution of a sentence of death for the crime; or
(iii)
serving a sentence which must expire before the person
may commence serving the disputed sentence.
(2) That the conviction or sentence resulted from one or more of the
following:
(i)
A violation of the Constitution of this Commonwealth or
the Constitution or laws of the United States which, in the
circumstances of the particular case, so undermined the
truth-determining process that no reliable adjudication of
guilt or innocence could have taken place.
(ii)
Ineffective assistance of counsel which, in the
circumstances of the particular case, so undermined the
truth-determining process that no reliable adjudication of
guilt or innocence could have taken place.
(iii)
A plea of guilty unlawfully induced where the
circumstances make it likely that the inducement caused the
petitioner to plead guilty and the petitioner is innocent.
(iv)
The improper obstruction by government officials of the
petitioner's right of appeal where a meritorious appealable
issue existed and was properly preserved in the trial court...
(vi)
The unavailability at the time of trial of exculpatory
evidence that has subsequently become available and
would have changed the outcome of the trial if it had been
introduced.
a. The imposition of a sentence greater than the lawful
maximum.
b. A proceeding in a tribunal without jurisdiction.
13
(vii) That the allegation of error has not been previously
litigated or waived.
(4) That the failure to litigate the issue prior to or during trial, during
unitary review or on direct appeal could not have been the result of any
rational, strategic or tactical decision by counsel.93
For the purposes of (3) above, an issue has been waived "if the petitioner could
have raised it but failed to do so before trial, at trial, during unitary review, on
appeal or in a prior state postconviction proceeding.''94 Likewise, an issue has
been "previously litigated" when:
[1] the highest appellate court in which the petitioner could have had
review as a matter of right has ruled on the merits of the issue; or
[2] it has been raised and decided in a proceeding collaterally attacking the
conviction or sentence.95
Application of Law to Facts
For an argument in the present case to succeed, Petitioner must demonstrate that:
1) he is currently serving a sentence for a criminal conviction;% 2) his conviction resulted
from an error of the type enumerated;97 3) his issue has not been previously litigated or
waived;98 and 4) the failure to litigate the issue could not have been the result of
counsel's rational, strategic, or tactical decision.99
93 Act of May
94 Act of May
95 Act of May
96 Act of May
97 Act of May
98 Act of May
99 Act of May
13, 1982, P.L. 417, § 2, as amended42 Pa. C.S. § 9543(a).
13, 1982, P.L. 417, § 2, as amended42 Pa. C. S. § 9544(b).
13, 1982, P.L. 417, § 2, as amended42 Pa. C. S. § 9544(a)(2-3).
13, 1982, P.L. 417, § 2, as amended42 Pa. C.S. § 9543(a)(1).
13, 1982, P.L. 417, § 2, as amended42 Pa. C.S. § 9543(a)(2).
13, 1982, P.L. 417, § 2, as amended42 Pa. C.S. § 9543(a)(3).
13, 1982, P.L. 417, § 2, as amended42 Pa. C.S. § 9543(a)(4).
14
Petitioner meets the first requirement for PCRA relief, as he was convicted of a
crime under the laws of Pennsylvania and is currently serving a sentence of
imprisonment,l°° However, a review of Petitioner's arguments reveals that the majority
were available at the trial and/or appellate levels and have been waived. In addition,
several of Petitioner's arguments were already addressed by the Superior Court. As one
may not rely upon issues in a PCRA petition that have been waived or previously
litigated,l°l these can not support the relief requested by Petitioner.
Petitioner first argues1°2 that statutes governing statutory sexual assault,1°3
involuntary deviate sexual intercourse,1°4 corruption of minors,1°5 sentences for offenses
against infant persons, l°6 and truth-in-sentencing incentive grants,l°? by their "'inherently
unchallengeable statutory starting presumptions' of mens rea," violate due process.
On direct appeal the Superior Court deemed Petitioner's constitutional challenges to the
100 Act of May 13, 1982, P.L. 417, § 2, as amended42 Pa. C.S. § 9543(a)(1)(i).
101 Act of May 13, 1982, P.L. 417, § 2, as amended, 42 Pa. C.S. § 9543(a)(3);
Commonwealth v. Morris, 684 A.2d 1037, 1044, 546 Pa. 296, 310-11 (1996).
102 Petitioner's arguments in his PCRA petition and supporting Brief are not made in any
discernibly logical fashion. For the sake of simplicity they will, for the most part, be
addressed in the order in which Petitioner presents them.
103 Act of March 31, 1995, P.L. 985, § 5, asamended 18 Pa. C.S. § 3122.1.
104 Act of Dec. 6, 1972, P.L. 1482, § 1, as amended l8 Pa. C.S. § 3123.
105 Act of July 1, 1978, P.L. 573, § 1, as amended 18 Pa. C.S. § 6301.
106 Act of Dec. 30, 1982, P.L. 1472, § 1, as amended42 Pa. C.S. § 9718.
10? Act of April 26, 1996, P.L. 103-322, § 20104, as amended 42 USC § 13704, etseq.
108 PCRA at 8; Brief at 2-4.
15
deviate sexual intercourse and corruption of minors statutes waived for failure to include
them in a Pennsylvania Rule of Appellate Procedure 1925(b) statement.~°9 As one may
not litigate in a PCRA petition issues that have been previously decided or waived,
Petitioner is precluded from making these arguments now.~° Likewise, Petitioner's
arguments regarding statutes pertaining to the statutory sexual assault, penalties for
offenses against infant persons, and truth-in-sentencing were available for Petitioner to
make at trial and on direct appeal, and have thus been waived. TM
~09 Compare Order of Super. Ct., May 8, 2001, 106 MDA 1999, at 4-5, 7 (noting issues
not included in appellant's 1925(b) statement are deemed waived) with Order of Super.
Ct., May 8, 2001, 106 MDA 1999, at 9 (dismissing those constitutional arguments not
included in the 1925(b) statement).
il0 Act of May 13, 1982, P.L. 417, § 2, as amended, 42 Pa. C.S. § 9543(a)(3) (to be
eligible for PCRA relief the allegation of error, among other things, must not have been
"previously litigated or waived"); Commonwealth v. Morris, 546 Pa. 296, 310, 684 A.2d
1037, 1044 (1996) (PCRA petitioner barred from litigating issue already addressed on
direct appeal). Even were these arguments presented here for the first time, that they
were available for Petitioner to argue at trial and on direct appeal means that they would
still be waived. Act of May 13, 1982, P.L. 417, § 2, as amended42 Pa. C.S. § 9544(b)
(For purposes of PCRA review, an argument is deemed waived "if the petitioner could
have raised it but failed to do so before trial, at trial, during unitary review, on appeal or
in a prior state postconviction proceeding.")
ill Act of May 13, 1982, P.L. 417, § 2, as amended42 Pa. C.S. § 9544(b) (For purposes
of PCRA review, an argument is deemed waived "if the petitioner could have raised it but
failed to do so before trial, at trial, during unitary review, on appeal or in a prior state
postconviction proceeding.").
Further, if this Court were to address Petitioner's argument it would find no merit
in the contentions. Petitioner fails to demonstrate how 18 Pa. C.S. § 3122.1 (statutory
sexual assault) or 42 USC § 13704 (truth-in-sentencing incentive grants) apply to him.
The only statute that both pertains to Petitioner and contains "inherent... statutory starting
presumptions of mens rea" is the corruption of minors statute, 18 Pa. C.S. § 6301.
Petitioner's assertion that 18 Pa. C.S. § 6301 (corruption of minors) unlawfully
"presumes that all adults interacting with minors intend to sexually harm, seduce or
wrongfully induce or influence minors" is erroneous, as the statute does not include such
presumptions. This statute asserts that "knowledge of the minor's age and of the court's
orders and decrees concerning such minor shall be presumed in the absence of proof to
16
Petitioner next argues that "various 'addicts'... charged with various 'crimes of
violence' are treated separately and unequally even though they are all 'addicts' and their
various crimes have similar O.G.S. scores and severity.''~2 According to Petitioner,
addicts are "being punished for who they are, their thoughts and/or their feelings and not
for their deeds or actions," thus being subjected to cruel and unusual punishment.TM As
these arguments were available for Petitioner to make at trial and on direct appeal, they
are deemed waived for the purposes of PCRA review. 114
the contrary." Act of July 1, 1978, P.L. 573 § 1, as amended 18 Pa. C.S. § 6301(c).
Although the presumption is that Petitioner knew that the victim was a minor, the
presumption is not "inherently unchallengeable" because the statute specifically affords
those charged under it the opportunity to present "proof to the contrary." Id. Regardless,
the statute makes clear that when the minor is under the age of sixteen, "it is no defense
that the actor did not know the age of the minor or reasonably believed the minor to be
older than 18 years." Id. at (d)(1). As the victim in the above captioned case was under
the age of sixteen when the crimes Petitioner was convicted of were committed,
Petitioner's knowledge (or lack thereof) of the victim's age is irrelevant. See also
Commonwealth v. Hall, 275 Pa. Super. 85, 418 A.2d 623 (1980) (even if justified, a
defendant's mistaken belief as to a thirteen year-old victim's age was irrelevant to
charges of corruption of minors).
il2 PCRAat il;Brief at2-3.
il3 PCRA at 12.
114 Act of May 13, 1982, P.L. 417, § 2, as amended 42 Pa. C. S. § 9544(b) (when
dealing with a PCRA petition, "an issue is waived if the petitioner could have raised it
but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state
postconviction proceeding."). Likewise, Petitioner does not argue that the failure to
litigate "could not have been the result of any rational, strategic, or tactical decision by
counsel." Act of May 13, 1982, P.L. 417, § 2, as amended 42 Pa. C.S. § 9543(a)(4).
Indeed, such an argument would fail as Petitioner largely represented himself through the
trial, appellate, and now PCRA processes.
Further, Petitioner's argument is strikingly similar to one the Superior Court
deemed waived. See Order of Super. Ct., May 8, 2001, 106 MDA 1999 at 4-5 (argument
that "sentence was [il]legal based on Offense Gravity Score that contains statutory
starting presumptions that cannot be challenged" deemed waived for failure to develop
argument). When an issue has been litigated, "relitigation may not be achieved by
17
Petitioner next argues that the introduction of after-discovered evidence would
have altered the outcome of the trial.~5
evidence warrants a new trial only if it:
(1)
Under Pennsylvania law, after-discovered
has been discovered after the trial and could not have been obtained at
or prior to the conclusion of the trial by the exercise of reasonable
diligence;
(2) is not merely corroborative or cumulative;
(3) will not be used solely for impeaching [the] credibility of a witness;
and
(4) is of such nature and character that a different verdict will likely result
if a new trial is granted. ~6
Petitioner asserts that the "[i]ntroduction of alleged anal sex evidence impacted
poorly on the jury and strongly swayed them to convict [Petitioner] even though
advancing a different theory in support of the issue." Commonwealth v. Barnes, 248 Pa.
Super. 579, 585-86, 375 A.2d 392 (1977).
Even if this Court were to address this argument it would find it meritless. The
record makes clear that Petitioner was not convicted for his "thoughts and/or feelings,"
but for his actions. In addition, Petitioner fails to point to the particular statute by which
he is allegedly affected, or put forth evidence that would demonstrate that he is within a
"class of addicts" that the statute allegedly discriminates against. As recently reiterated
by our Superior Court, "one who is unharmed by a particular feature of a statute will not
be heard to complain of its alleged unconstitutionality." Commonwealth v. Wildermuth,
347 Pa. Super. 640, 644, 501 A.2d 258, 260 (1985).
Finally, even were this Court to infer that Petitioner's argument was directed at
the "3 strikes law" (Sentences for second and subsequent offenses, Act of March 8, 1982,
P.L. 169, § 3, as amended 42 Pa. C.S. § 9714), Petitioner's argument would still be
without merit. Nothing in this statute classifies persons on the basis of addictions, but
instead on the basis of acts committed. Id.
~5 PCRAat 11.
~6 Commonwealth v. Moore, 534 Pa. 527, 560, 633 A.2d 1119, 1135-36 (1993).
18
[Petitioner] never had anal sex with the victim.''~7 As the evidence Petitioner refers to
was actual testimony made by the victim during trial, it does not meet the first
requirement for after-discovered evidence, and thus Petitioner's argument is without
merit. ~ ~ 8
Petitioner next argues that Pennsylvania's mandatory registration requirements
under "Megan's Law''il9 are void for vagueness.~2° However, Petitioner concedes that
Megan's Law was not applied to him in this case,TM and, as "one who is unharmed by a
particular feature of a statute will not be heard to complain of its alleged
unconstitutionality,"122 he can not be a beneficiary of this argument.
Petitioner next argues that the mandatory minimum sentences applied to him
under Pennsylvania's infant enhancement statute~23 are "unconstitutionally cruel"
because they "inherently punish 'Addicts' continually for their deviant
~7 PCRAat 11.
~8 Again, this argument is similar to one addressed by the Superior Court on direct
appeal. See Order of Super. Ct., May 8, 2001, 106 MDA 1999 at 4 & n.7, 8-9 (after-
discovered evidence could not be used to impeach victim). "[W]hen an issue has been
litigated, relitigation may not be achieved by advancing a different theory in support of
the issue." Commonwealth v. Barnes, 248 Pa. Super. 579, 585-86, 375 A.2d 392, 395
(1977).
il9 Act of Oct. 24, 1995, P.L. 1079, § 1, as amended, 42 Pa. C.S. § 9791 et seq.
Defendant cites 42 Pa. C.S. § 9793 as Pennsylvania's 'Megan's Law.' PCRA at 8.
However, that particular statute was repealed in 2000. See Act of May 10, 2000, P.L. 74,
§3.
12o PCRA at 8; See generally, Brief.
Transcript at 29-30.
122 Commonwealth v. Bonadio, 490 Pa. 91, 94-95 n.2, 415 A.2d 47, 49 n.2 (1980).
123 Act of Dec. 30, 1982, P.L. 1472, § 1, as amended 42 Pa. C.S. § 9718.
19
thoughts/status/mental abnormality/condition[]/expertise.''~24 This is an argument that
could have been made on direct appeal, and thus Petitioner is precluded from litigating it
125
now.
Petitioner next questions whether the following classifications
requirement for heightened judicial scrutiny "by having both a
Discrimination' as well as fitting 'Personhood Triad' criteria:"
(A) involuntarily committed/incarcerated addicts charged with various 'crimes
of violence' and residing in either juvenile/insane/penal/asylums
implicate a
'History of
124 PCRA at 8.
125 Act of May 13, 1982, P.L. 417, § 2, as amended, 42 Pa. C.S. § 9543(a)(3) (to be
eligible for PCRA relief the allegation of error, among other things, must not have been
"previously litigated or waived"); Commonwealth. v. Morris, 546 Pa. 296, 310, 684 A.2d
1037, 1044 (1996) (PCRA petitioner barred from litigating issue already addressed on
direct appeal). Even were these constitutional arguments presented for the first time here,
that they were available to Petitioner to argue on direct appeal means that they would still
be waived. Act of May 13, 1982, P.L. 417, § 2, as amended42 Pa. C.S. § 9544(b) (For
purposes of PCRA review, an argument is deemed waived "if the petitioner could have
raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a
prior state postconviction proceeding."). Further, if this Court reviewed the claim it
would not find any merit in Petitioner's argument. Again, Petitioner was convicted and
sentenced for his actions - not his "deviant thoughts/status/mental abnormality/condition
[]/expertise." In addition, any perceived infirmity that Petitioner possesses as a self-
proclaimed "addict" has no bearing on the punishment the statute provides for.
Commonwealth v. Chmiel, 416 Pa. Super. 235, 610 A.2d 1058 (1992). In Chmiel the
defendant was convicted of involuntary deviate sexual intercourse, corruption of minors,
and possession of obscene or other sexual materials, and argued that because he had a
certified medical illness the mandatory minimums of 42 Pa. C.S. § 9718 (Sentences for
offenses against infant persons) violated his constitutional right to be free from cruel and
unusual punishment. Id at 237-38; 610 A.2d 1059-60. The Superior Court rejected this
argument, holding that the needs of the infirm have no relevance on a constitutional
analysis of a statute's mandatory minimum sentences. Id. at 238-40; 610 A.2d 1060. In
this case, Petitioner is attempting to assert a self-perceived and wholly unsupported
infirmity to challenge the constitutionality of the same statute challenged in Chmiel - 42
Pa. C.S. § 9718. However, as the court in Chmiel held, such infirmities have no bearing
on the constitutionality of the statute.
20
(B)
(C)
(D)
Pro-se vs. Bar Certified Counsel
homo sexual sodomizers vs. bi-sexual sodomizers vs.
sodomizers
'violent predators' vs. 'sexually violent predators' 126
hetero-sexual
This argument was available for Petitioner to make on direct appeal, and thus is now
waived. 127
Petitioner next argues that "[p]ro-se's are incompetent and not fit to compete
against bar-certified attorneys since they have little to no standard training." ~28 Petitioner
likens the state of the pro se system to conditions litigated or depicted in Plessy v.
Ferguson,~29 Brown v. Board of Education,~3° and the film THE OUTSIDERS,TM and asserts
126 PCRA at 8-9.
127 Act of May 13, 1982, P.L. 417, § 2, as amended42 Pa. C.S. § 9544(b) (For purposes
of PCRA review, an argument is deemed waived "if the petitioner could have raised it but
failed to do so before trial, at trial, during unitary review, on appeal or in a prior state
postconviction proceeding."). Likewise, Petitioner does not argue that the failure to
litigate "could not have been the result of any rational, strategic, or tactical decision by
counsel." Act of May 13, 1982, P.L. 417, § 2, as amended 42 Pa. C.S. § 9543(a)(4).
Indeed, such an argument would fail as Petitioner represented himself through the trial,
appellate, and now PCRA processes.
Petitioner's argument lacks merit for two additional reasons. First, Petitioner fails
to disclose his affiliation with any of the groups allegedly discriminated against, and thus
Petitioner lacks standing to make this argument. As has long been recognized, "one who
is unharmed by a particular feature of a statute will not be heard to complain of its
alleged unconstitutionality." Commonwealth v. Bonadio, 490 Pa. 91, 94-95 n.2, 415 A.2d
47, 49 n.2 (1980). Second, Petitioner fails to develop a coherent argument, and
insufficiently developed arguments such as this are deemed waived. Commonwealth v.
Irby, 700 A.2d 463, 464 (Pa. Super. Ct. 1997).
~28 PCRA at 12; Brief at 18-19.
129 163 U.S. 537 (1896), overruled by Brown v. Bd. of Educ., 347 U.S. 483 (1954).
~3o 347 U.S. 483 (1954).
21
that "most pro se's are either negroes or poor whites who are illiterate while most bar-
certified counsel are college graduates." ~32 According to Petitioner, "[t]he pro-se vs.
bar-certified counsel system is seemingly fair on its face but is grossly unfair in its
operations.''~33 Petitioner believes that the "Supreme Court needs to design/establish
minimum pro-se competency standards." 134
The United States Supreme Court has already established the standards a
defendant must meet to proceed pro se.~35 This Court is not in a position to establish a
different set of criteria to be met by a prospective pro se litigant, disregard binding
precedent, or infringe on an individual's Sixth Amendment Constitutional right to self-
representation.~36 Furthermore, Petitioner fails to assert how the allegedly deficient pro
se system "so undermined the truth-determining process that no reliable adjudication of
guilt or innocence could have taken place."~37 As such, this argument lacks merit. ~38
~3~ THE OUTSIDERS (Warner Brothers 1983).
~32 Brief at 18-19.
~33 Brief at 18-19.
134 PCRA at 12; Brief at 18-19.
~3~ Faretta v. California, 422 U.S. 806, 835 (1975) (To proceedpro se a defendant must
demonstrate a knowing and intelligent waiver of the right to counsel.).
136 Faretta v. California, 422 U.S. 806, 819-21 & n. 15 (1975).
137 Act of May 13, 1982, P.L. 417, § 2, as amended42 Pa. C.S. § 9543(a)(2)(i-ii). This
assumes that Petitioner is making a constitutional or ineffective assistance of counsel
argument. In reality, it is doubtful that this argument can be asserted in a PCRA petition,
as it does not come within the confines of the statutorily enumerated grounds for relief.
See Act of May 13, 1982, P.L. 417, § 2, as amended42 Pa. C.S. § 9543(a)(2)(i-viii).
~38 It is difficult to believe that this argument was brought in good faith, as Petitioner
was afforded the opportunity - on numerous occasions - to avoid the pro se morass that
22
Petitioner next argues that "many" laws are bills of attainder because "they
deprive sex offenders of certain liberties.''~39 Specifically, Petitioner asserts that Megan's
Law14° and the 85% LawTM are bills of attainder142 because they "impose capital length
type punishments only upon 'sexually violent offenders' and 'violent offenders' (felons)
in violation of Article I, section 2 of the US Constitution.''~43 Petitioner further argues
that both laws caused the imposition of a sentence "greater than the lawful maximum.''~44
Finally, Petitioner argues that the 85% Law was unconstitutionally applied to him~45
he now complains of. Petitioner waived his right to representation at the trial and
appellate levels, and, having waived the benefits of both court-appointed and standby
counsel at the July 2003 PCRA hearing, is even now appearing pro se. See Order of Ct.,
Oct. 13, 1998; Order of Ct., July 27, 1999; Order of Ct., Oct. 4, 2000; Transcript at 3-8.
Petitioner also airs perceived injustices that he was subjected to by court-
appointed counsel, standby counsel, the Pennsylvania trial, Superior, and Supreme
Courts, the prosecution, and the prison system. Brief at 19-32. However, Petitioner fails
to argue, and much less prove by a preponderance of the evidence, that the truth
determining process was undermined such that "no reliable adjudication of guilt or
innocence could have taken place." Act of May 13, 1982, P.L. 417, § 2, as amended 42
Pa. C.S. § 9543(a)(2)(i-ii). Nor does Petitioner demonstrate that a preserved "meritorious
appealable issue" was obstructed. Act of May 13, 1982, P.L. 417, § 2, as amended42 Pa.
C.S. § 9543(a)(2)(iv). As such these arguments are without merit.
139 PCRA at 12.
140 Act of Oct. 24, 1995, P.L. 1079, § 1, ax amended, 42 Pa. C.S. § 9791 et seq.
141 The 85% Law is a federal statute that provides that certain violent offenders serve
85% of their sentences before release. See Act of April 26, 1996, P.L. 103-322, § 20104,
as amended 42 USC § 13704, et seq. (truth-in-sentencing incentive grants).
142 A bill of attainder is "a legislative enactment which determines guilt and inflicts
punishment upon an identifiable person or group without a judicial trial." Commonwealth
v. Mountain, 711 A.2d 473, 478 (Pa. Super. Ct. 1998).
143 PCRA at 12; Brief at 3-7.
144 PCRA at 3; Brief at 33.
145 PCRA at 9; Brief at 5-7.
23
because it was "'secretly' imposed upon [Petitioner] without notice by the D.A. or Judge
at sentencing." 146
These arguments are without merit. Megan's Law was not applied to Petitioner in
this case,147 and thus Petitioner does not have standing to challenge it.148 Petitioner's
argument regarding the 85% Law is one that was available for Petitioner to make on
direct appeal, and thus has been waived. 149 Finally, Petitioner conceded at the July 23,
146 Briefat 5.
147 Indeed, Petitioner conceded this at the July 23, 2003 PCRA hearing. Transcript at 29-
30. Regardless, as Megan's Law neither adjudicates guilt nor inflicts punishment it is not
a bill of attainder. Commonwealth v. Mountain, 711 A.2d 473,478 (Pa. Super. Ct. 1998);
see also Commonwealth v. Carter, 2003 Pa. Super. 131, 821 A.2d 601, 606 (2003)
(Megan's Law registration requirements serve to ensure public safety, not to punish
offenders); Commonwealth v. Maldonado, 2003 WL 22971140 *5 (Pa. 2003) (restrictions
imposed on an individual deemed a sexually violent predator do not constitute criminal
punishment). Although various portions of Megan's Law have been questioned, and at
times deemed unconstitutional, such provisions are not applicable here. See
Commonwealth v. Maldonado, 2003 WL 22971140 *3 (Pa. 2003) (Megan's Law
community notification and mandatory monthly counseling requirements trigger due
process protections, but clear and convincing evidence standard meets constitutional
challenges); Commonwealth v. Williams, 832 A.2d 962, 985-86 (Pa. 2003) (penalties for
failing to register and verify residence deemed unconstitutionally punitive, but severable
from statute); Commonwealth v. Hayle, 719 A.2d 763, 767-68 (Pa. Super. Ct. 1998)
(provisions requiring defendant to rebut presumption of sexually violent predator status
deemed unconstitutional, but severable from statute); Commonwealth v. Rickabaugh, 41
Pa. D. & C. 4th 16, 23-25 (Blair County, 1998) (sexually violent predator and shifting
burden provisions deemed unconstitutional); Commonwealth v. Werner, 38 Pa. D. & C.
4th 488, 495-96 (Lehigh County, 1997)(punitive and enhanced sentencing provisions
deemed unconstitutional); see also Doe v. Ward, 124 F.Supp. 2d 900 (W.D.Pa. 2000)
(statutory requirement that every out-of-state probationer convicted of sex offense
register for community notification violated interstate compact).
148 Commonwealth v. Bonadio, 490 Pa. 91, 94-95 n.2, 415 A.2d 47, 49 n.2 (1980)
("[O]ne who is unharmed by a particular feature of a statute will not be heard to complain
of its alleged unconstitutionality.)
149 Act of May 13, 1982, P.L. 417, § 2, as amended42 Pa. C.S. § 9544(b) (For purposes
of PCRA review, an argument is deemed waived "if the petitioner could have raised it but
24
2003 PCRA hearing that his sentence in the above-captioned case did not exceed the
lawful maximum.
Petitioner next asks whether it is "fundamentally unfair that only homicidal
maniacs have a presumption of mental infirmity/diminished capacity" and thus are able to
utilize a diminished capacity defense, whereas others, "whose crime involves some other
form of manic behavior, and who are presumed to have a mental abnormality" cannot use
the defense.TM Petitioner fails to prove that he is in a class that has standing to pursue
this issue,~52 and fails to make a coherent argument.~53
failed to do so before trial, at trial, during unitary review, on appeal or in a prior state
postconviction proceeding."). Petitioner does not argue that the failure to litigate "could
not have been the result of any rational, strategic, or tactical decision by counsel." Act of
May 13, 1982, P.L. 417, {} 2, as amended 42 Pa. C.S. {} 9543(4). Indeed, such an
argument would fail as Petitioner represented himself through the trial and appellate
processes.
Further, Petitioner fails to demonstrate that the Pennsylvania Board of Probation
and Parole even adheres to the 85% Law. Indeed, in a recent case before the
Commonwealth Court the Chairman of the Pennsylvania Board of Probation and Parole
filed an affidavit declaring that the Board never had a policy or requirement that violent
offenders serve a minimum of 85% of their sentence. Reynolds v. Pa. Bd. of Prob. and
Parole, 809 A.2d 426, 429 (Pa. Cmlth. Ct. 2002).
~50 Transcript at 37-38. Indeed, this is consistent with the Superior Court's
determination. See Order of Super. Ct., May 8, 2001, 106 MDA 1999, at note 8 ("Were
we to review Appellant's sentence, we would find it to be legal... Appellant's sentence
of seventy-two months (six years) to one hundred eighty months (fifteen years) was not
only legal, but also well within the standard range of the guidelines.").
~5~ PCRAPetition at 10; Brief at 4-5.
~52 "[O]ne who is unharmed by a particular feature of a statute will not be heard to
complain of its alleged unconstitutionality." Commonwealth v. Bonadio, 490 Pa. 91, 94-
95 n.2, 415 A.2d 47, 49 n.2 (1980). Indeed, Petitioner admits that he was determined to
be sane. Brief at 12.
~53 Commonwealth v. Irby, 700 A.2d 463, 464 (Pa. Super. Ct. 1997) (insufficiently
developed arguments are deemed waived). Further, the Superior Court already addressed
Petitioner's diminished capacity arguments on direct appeal. See Order of Super. Ct.,
25
Petitioner next raises several constitutional arguments, asserting that:
Involuntarily committed/incarcerated addicts charged with or convicted of
various 'crimes of violence' or violent offenses and residing in a juvenile
asylum or insane asylum, but not a penal institution, have a presumption
of mental infirmity/diminished capacity; hence, a constitutional right to
treatment, while juveniles and controlled (medicated) insane addicts
residing in penal institutions do not have that same presumption; thus,
have no constitutional right to treatment. 154
Petitioner also asserts that he is a member of a class entitled "Negroes and poor
whites,''~55 and argues that the Thirteenth Amendment to the United States Constitution is
unconstitutional because it "enslaves[s] Negros and poor whites for their genetic or
acquired status or condition.''~56 Finally, Petitioner argues that the Seventh and Twenty-
Fourth Amendments are unconstitutional because they act as "access taxes,''~57 and
invites this Court to determine if the United States Constitution's Eighth Amendment
"prohibition/proscription against cruel and unusual punishment inherently include[s]
May 8, 2001, 106 MDA 1999 at 7. As such Petitioner is precluded from litigating this
argument now. Act of May 13, 1982, P.L. 417, § 2, as amended, 42 Pa. C.S. § 9543(a)(3)
(to be eligible for PCRA relief the allegation of error, among other things, must not have
been "previously litigated or waived"); Commonwealth. v. Morris, 546 Pa. 296, 310, 684
A.2d 1037, 1044 (1996) (PCRA petitioner barred from litigating issue already addressed
on direct appeal). Even were these constitutional arguments presented here for the first
time, that they were available for Petitioner to make on direct appeal means that they
would still be waived Act of May 13, 1982, P.L. 417, § 2, as amended42 Pa. C.S. §
9544(b) (For purposes of PCRA review, an argument is deemed waived "if the petitioner
could have raised it but failed to do so before trial, at trial, during unitary review, on
appeal or in a prior state postconviction proceeding.")
154 PeRm petition at 9; Brief at 4-5.
Presumably, in Petitioner's case, poor whites.
~56 PCRA Petition at 9; Brief at 6.
~57 PCRA at 9; Brief at 6.
26
mentally cruel and unusual, as well as physically cruel and unusual punishment or
conditions." ~ 58
These arguments were available to Petitioner both at trial and on direct appeal,
and as such are waived here.
Petitioner next asks that this Court answer the following question:
Concerning separate and unequal Due Process, is it not fundamentally
unfair for the government; i.e., prison, the prosecutors, court appointed
defense counsel (amici curiae) and appellate judges to work in collusion to
deny pro-se appellant all favorable evidence, so he (pro-se appellant[)]
cannot perfect his appeal? ~60
In support of this question, Petitioner sets forth a large number of allegations that, he
argues, compel one to conclude that the judicial system is a "R.I.C.O .... monopolized
by bar-certified counsel.''~6~ However, nowhere does Petitioner aver: that the truth-
~58 PCRAPetition at 10.
159 Act of May 13, 1982, P.L. 417, § 2, as amended42 Pa. C.S. § 9544(b) (For purposes
of PCRA review, an argument is deemed waived "if the petitioner could have raised it but
failed to do so before trial, at trial, during unitary review, on appeal or in a prior state
postconviction proceeding."). Likewise, Petitioner does not argue that the failure to
litigate "could not have been the result of any rational, strategic, or tactical decision by
counsel." Act of May 13, 1982, P.L. 417, § 2, as amended42 Pa. C.S. § 9543(4). Indeed,
such an argument would fail as Petitioner represented himself through the trial, appellate,
and now PCRA processes. Finally, Petitioner fails to develop a coherent argument, and
such insufficiently developed arguments are deemed waived. Commonwealth v. Irby,
700 A.2d 463,464 (Pa. Super. Ct. 1997).
16o PCRA at 10.
~6~ Brief at 17. For example, Petitioner alleges that: the trial court "manipulated rules
unfairly" by refusing to entertain Petitioner's motions while he was on direct appeal at
the Superior Court (id. at 20); the Pennsylvania Supreme Court did not act on any of
Petitioner's motions for nine months and denied Petitioner's writ of mandamus with no
explanation (id. at 22); the District Attorney would not respond to motions or subpoenas
from Petitioner (id. at 23); his prison cell was "constantly shaken down" and Petitioner
"written up... every time a petty rule was broken," (id. at 24); the prison "staff used peer
pressure" to get Petitioner to conform (id. at 25); he was frisked when going to use the
27
determining process was so undermined "that no reliable adjudication of guilt or
innocence could have taken place;"162 that a meritorious, preserved, and appealable issue
was obstructed by government officials;~63 that after-discovered evidence would have
changed the outcome of trial;~64 that the sentence imposed was greater than the lawful
maximum;~65 that Petitioner was innocent but induced to plead guilty;~66 or that the trial
and/or Superior Court lacked jurisdiction.~67 In short, Petitioner fails to aver any of the
enumerated requirements for PCRA relief, and thus Petitioner's argument is without
merit. ~68
law library (id. at 26); he was "placed in a concrete cell/tomb that resembled a
maus[o]leum" with "no tv/cable/radio/or movies" (id. at 27); the "jailhouse paralegals
[and] library aides were . . . idiots [and] morons" (id. at 28); the restricted housing unit
had only a "mini-law library" resembling "a negro one room school house" (id.); the
"morons/lousy litigators were in population and they had all the good facilities while the
best/most dangerous [and] intelligent pro-se litigators were in the 'hole' and . . . were
handicapped with lousy facilities" (id. at 30); he did not have access to a typewriter, but
had to hand-copy documents (id.); and that he would have succeeded in getting Megan's
Law and the 85% Law struck-down had he not been placed in segregation and denied
computer and cable television access (id. at 32).
Act of May 13, 1982, P.L. 417, § 2, as amended42 Pa. C.S. § 9543(a)(2)(i-ii).
Act of May 13, 1982, P.L. 417, § 2, as amended42 Pa. C.S. § 9543(a)(2)(iv).
164 Act of May 13, 1982, P.L. 417, § 2, as amended42 Pa. C.S. § 9543(a)(2)(vi).
Act of May 13, 1982, P.L. 417, § 2, as amended42 Pa. C.S. § 9543(a)(2)(vii).
Act of May 13, 1982, P.L. 417, § 2, as amended42 Pa. C.S. § 9543(a)(2)(iii).
Act of May 13, 1982, P.L. 417, § 2, as amended42 Pa. C.S. § 9543(a)(2)(viii).
~68 See Act of May 13, 1982, P.L. 417, § 2, as amended42 Pa. C.S. § 9543(a)(2) (to be
eligible for relief, a petitioner must prove that the conviction or sentence stemmed from
an enumerated occurrence). In addition, many of Petitioner's allegations could have been
raised at the trial and appeals levels, and thus are now waived. Act of May 13, 1982, P.L.
417, § 2, as amended 42 Pa. C.S. § 9544(b) (For purposes of PCRA review, an argument
is deemed waived "if the petitioner could have raised it but failed to do so before trial, at
28
Petitioner next makes an argument relating to "the Colorado Sex Act" and states:
1. One is an addict with a predatory drive to fill one's gas tank
2. Thus one is a likely habitual rescidivist/reoffender
3. Hence, one is chronically mentally ill/disabled
4. So, one is incorrigible/untreatable~69
A review of Petitioner's Brief suggests that this argument may be directed at Megan's
Law.~7° As Megan's Law was not applied in this caseTM Petitioner does not have
172
standing to challenge the statute.
Petitioner next argues that the District Attorney "covered up" audio recordings of
Petitioner's preliminary hearing wherein Petitioner was allegedly facing only three
counts, and yet subsequently was prosecuted for, and convicted of, four counts.173
Further, Petitioner alleges that he was never provided a preliminary hearing transcript,
and that the trial transcript was "edited to exclude all favorable defense evidence." 174
The "missing tapes" Petitioner complains of were apparently an attempt by
Petitioner's first court-appointed counsel to record the preliminary hearing. At the July
23, 2003 PCRA hearing Jaime M. Keating, the Chief Deputy District Attorney for
trial, during unitary review, on appeal or in a prior state postconviction proceeding.").
Other arguments are duplicitous and addressed infra.
169
170
171
172
complain of its alleged unconstitutionality." Commonwealth v. Bonadio,
95 n.2, 415 A.2d 47, 49 n.2 (1980).
~73 PCRA at 3; Brief at 35.
PCRA Petition at 10.
Brief at 47.
Transcript at 29-30.
"[O]ne who is unharmed by a particular feature of a statute will not be heard to
490 Pa. 91, 94-
174 Brief at 35.
29
Cumberland County, testified that he was present for the preliminary hearing Petitioner
refers to.~75 Deputy District Attorney Keating testified that the District Attorney's Office
did not routinely tape such hearings at that time, and typically "rel[ied] on the defense
attorneys to tape any proceedings they fe[lt] . . . important.''~% Attorney Keating further
testified that Defense Attorney Jones did attempt to tape the proceeding, but that the tape
was apparently inaudible due, in large part, to an outburst by Petitioner. 177 As the District
Attorney's Office did not record the preliminary hearing, and did not possess any audio
recordings of the preliminary hearing, ~78 it could not have improperly withheld such tapes
from Petitioner, and thus Petitioner's argument lacks merit. 179
Petitioner's argument that he was never provided preliminary hearing transcripts
is also without merit. As Chief Deputy District Attorney Keating testified at the PCRA
hearing, the "preliminary hearing transcript" notation that appears on the docket record in
Transcript at 54.
Transcript at 54.
Transcript at 55-56. The Court found Mr. Keating's testimony entirely credible.
~78 Transcript at 55-56, 60. Mr. Keating testified that he requested copies of the tape
from Defense Attorney Jones, but that before trial Petitioner's next court-appointed
counsel, Attorney Dethlefs, informed Mr. Keating that the tape was inaudible. Transcript
at 60.
~79 Even if the District Attorney were in possession of such a recording, Petitioner has
failed to demonstrate how its lack of production "undermined the truth-determining
process that no reliable adjudication of guilt or innocence could have taken place," or that
it obstructed a meritorious, preserved, and appealable issue. Act of May 13, 1982, P.L.
417, § 2, as amended 42 Pa. C.S. § 9543(a)(2)(i, iv). Petitioner avers that such a
recording would prove that the criminal charges were improperly amended at the
preliminary hearing. PCRA at 3; Brief at 35. However, nothing in the record indicates
that the charges were improperly amended. Indeed, Petitioner was convicted of only the
violations set forth in the Criminal Complaint. See Commonwealth v. Nicholas Albert
Pracht, May 4, 1998 Police Criminal Complaint.
30
the above-captioned case does not indicate the filing of a traditional testimony transcript,
but rather the docketing of a record of the result of the preliminary hearing.~8° As there
was no testimonial transcript to produce to Petitioner,~8~ the District Attorney's Office
could not have improperly withheld it from Petitioner, and thus Petitioner's argument is
without merit.
Petitioner's last argument regarding alleged Commonwealth misconduct - that the
trial transcripts were "edited" to remove favorable defense evidence - is unfounded.
Other than Petitioner's assertion that he has a photographic memory,~82 Petitioner offers
no proof that the transcript he was provided was adulterated. Nor does Petitioner aver
how the allegedly edited transcript obstructed his ability to pursue a preserved,
"meritorious appealable issue.''~83 Thus, this argument is without merit.
Petitioner next argues that he was "buried in the hole" while in prison, and denied
"access to library materials, paper, pens, staples, mailing stuff on time, sensory
stimulation.''~84 At the PCRA hearing Petitioner testified that following the trial, and
~80 Transcript at 60-61.
~8~ Again, even if such a transcript existed and were withheld from Petitioner, Petitioner
failed to demonstrate how its lack of production "undermined the truth-determining
process that no reliable adjudication of guilt or innocence could have taken place," or that
it obstructed a meritorious, preserved, and appealable issue. Act of May 13, 1982, P.L.
417, § 2, as amended 42 Pa. C.S. § 9543(a)(2)(i,iv). Petitioner argues the need for the
preliminary hearing transcript to demonstrate that the information was improperly
amended to reflect additional charges. Brief at 35-36. However, as already noted,
Petitioner was convicted of only the crimes averred in the Criminal Complaint. See
Commonwealth v. Nicholas Albert Pracht, May 4, 1998 Police Criminal Complaint.
~82 Brief at 36.
183 Act of May 13, 1982, P.L. 417, § 2, as amended42 Pa. C.S. § 9543(a)(2)(iv).
184 PCRA at 3; Brief at 17.
31
prior to his direct appeal, he spent much time at the State Correctional Institution at
Frackville in segregation or cell restriction, and thus had limited access to his legal work
for purposes of appeal.~85 At the same hearing, Deputy District Attorney Keating
testified as to his understanding that Petitioner was subjected to disciplinary measures
while in prison for numerous rule infractions. ~86
Petitioner fails to demonstrate how he was prejudiced or to point to issues that he
was prevented from arguing. In short, Petitioner has not met his burden of proving by a
preponderance of the evidence that such disciplinary measures constituted the "improper
obstruction" of a preserved, "meritorious appealable issue.''~87 As such, this argument
lacks merit. ~88
Finally, Petitioner alleges that each of the four attorneys appointed for him was
ineffective.~89 As our Supreme Court recently indicated, ineffective assistance of trial
counsel claims are most conveniently reviewed in collateral proceedings, such as a PCRA
~85 Transcript at 34-36.
~86 Transcript at 50-51. Apparently Petitioner was prone to argue with the prison guards
regarding the state of his cell. Id. Deputy District Attorney Keating also testified that
Petitioner's library privileges were suspended at Cumberland County Prison for
masturbating in the law library. Id.
187 Act of May 13, 1982, P.L. 417, § 2, as amended42 Pa. C.S. § 9543(a)(2)(iv).
~88 Indeed, the docket reflects that Petitioner was able to file two appellate briefs and
numerous other filings while on direct appeal. See Commonwealth v. Pracht, 106 MDA
1999 Docket. In addition, despite Petitioner's oral testimony at the PCRA hearing,
Petitioner's brief argues that the prison disciplinary measures prevented him from filing a
motion for reargument after the Superior Court affirmed the trial court verdict. Brief at
21.
~89 PCRA at 3. Petitioner largely negotiated the trial and appellate proceedings pro se,
with court-appointed standby counsel.
32
hearing, and are generally not deemed waived for failure to pursue them on direct
appeal. ~90 As Petitioner here raises the ineffectiveness of trial counsel claim for the first
time, this Court will review the merits of these arguments.
Pennsylvania has adopted the Strickland test as a general rule to determine
whether counsel was ineffective.~9~ Under this test, a defendant must overcome the
presumption that counsel was effective.192 A court must first review for merit the
"issue/argument/tactic" that counsel is accused of forgoing.~93 Only where arguable
merit is found will the court proceed to a "reasonable basis" test to determine if counsel' s
conduct was intended to effectuate a defendant's interests.~94 If the court determines that
there was no reasonable basis for counsel's action (or inaction), a defendant must then
demonstrate that the conduct was prejudicial by showing that it produced "an adverse
effect on the outcome of the proceedings,''~95 that is, "but-for" counsel's ineffectiveness
"the outcome of the proceedings would have been different.''~96 The Post Conviction
Relief Act codifies this latter element; thus, for PCRA petition purposes, the acts
190 Commonwealth v. Grant, 572 Pa. 48, 67-68, 813 A.2d 726, 738 (2002), clarified in
Commonwealth v. Grant, 573 Pa. 141,821 A.2d 1246 (2003) (asserting the rule "does not
apply to claims of ineffective assistance of counsel where the intermediate appellate court
on direct appeal has rendered a disposition on the merits").
191
192
Commonwealth v. Pierce, 515 Pa. 153, 161-62, 527 A.2d 973,976-77 (1986).
Commonwealth v. Balodis,
193 Commonwealth v. Balodis,
194 Commonwealth v. Balodis,
195 Commonwealth v. Balodis,
196 Commonwealth v. Howard, 2000 Pa. Super. 86, 749 A.2d 941,
560 Pa. 567, 572, 747 A.2d 341,
560 Pa. 567, 572, 747 A.2d 341,
560 Pa. 567, 572, 747 A.2d 341,
560 Pa. 567, 572, 747 A.2d 341,
343 (2000).
343 (2000).
343 (2000).
343-44 (2000).
952 (2000).
33
complained of must "so undermine[] the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place." 197
For Petitioner to succeed on any given ineffectiveness claim he must therefore, in
the usual case, demonstrate that: 1) the claim is arguably meritorious; 2) counsel's
conduct had no "reasonable basis designed to effectuate" Petitioner's interest;~98 and 3)
counsel's conduct prejudiced the truth-determining process to such an extent that "no
reliable adjudication of guilt or innocence could have taken place." 199
Turning to Petitioner's arguments, Petitioner first asserts that his counsel at the
preliminary hearing, Attorney James K. Jones, was ineffective for: 1) refusing to ask the
victim all of Petitioner's prepared questions;2°° 2) failing to have the statutory sexual
assault charge dismissed;2°~ 3) not objecting to the amendment of the "information" at the
preliminary hearing; and 4) failing to give Petitioner an audio recording of the
preliminary hearing to prove the amendment of charges occurred.2°2
As a general rule, arguments regarding the ineffective stewardship of counsel at a
preliminary hearing are not cognizable under a PCRA petition because the truth-
197
Act of May 13, 1982, P.L. 417, § 2, as amended42 Pa. C.S. § 9543(a)(2)(ii).
Commonwealth v. Allen, 2003 Pa. Super. 367, 833 A.2d 800, 802 (2003).
199 Act of May 13, 1982, P.L. 417, § 2, as amended42 Pa. C.S. § 9543(a)(2)(ii).
200 Brief at 10.
Brief at 10.
202 Brief at 11-12.
34
determining process has not yet begun.2°3
merit.2°4
Arguments three and four are also without merit.
the record to
proceedings.2°5
As such, arguments one and two are without
Petitioner points to nothing in
substantiate these allegations, and apparently misunderstands the
The genesis of the Commonwealth's case, the criminal complaint and
supporting affidavit of probable cause, charged Petitioner with the crimes he was
ultimately convicted of: four counts of involuntary deviate sexual intercourse and four
counts of corruption of minors.2°6 As there is nothing to demonstrate the alleged
improper amendment of charges, Petitioner's arguments are without merit.
203 Commonwealth v. Lassen, 442 Pa. Super. 298, 313-14, 659 A.2d 999, 1007 (1995).
204 Further, Attorney Jones was under no obligation to tailor his examination of the
victim to Petitioner's desires. Appointed counsel is "not required to accept a client's
view by asserting points his good conscience would reject." Commonwealth v. McGeth,
347 Pa. Super. 333,345 n. 8, 500 A.2d 860, 866 n.8 (1985). Likewise, whether or not to
dismiss criminal charges is not within the province of a defense attorney. Regardless,
Petitioner fails to realize that the statutory sexual assault charge was dismissed at trial.
See Order of Super. Ct., May 8, 2001, 106 MDA 1999 at 2.
205 PCRA at 3; Brief at 11-12. It should be noted that the "missing tapes" Petitioner
complains of were apparently inaudible. At the July 23, 2003 PCRA hearing Jaime M.
Keating, the Chief Deputy District Attorney for Cumberland County, testified that he was
present for the preliminary hearing Petitioner complains of. Transcript at 54. The District
Attorney's Office did not routinely tape such hearings at that time, and typically "rel[ied]
on the defense attorneys to tape any proceedings they fe[lt] . . . important." Id. Attorney
Keating testified that Petitioner's Counsel at the time, Attorney Jones did attempt to tape
the proceeding, but the tape was apparently inaudible due, in large part, to an outburst of
Petitioner at the hearing. Id. at 55-56.
206 Commonwealth v. Nicholas Albert Pracht, May 4, 1998 Police Criminal Complaint;
Docket. The Criminal Complaint also charges Petitioner with four counts of statutory
sexual assault, but these charges were later dismissed. See Order of Super. Ct., May 8,
2001, 106 MDA 1999 at 1-2.
35
Petitioner next argues that his appointed trial counsel, Attorney Darrell C.
Dethlefs, was ineffective for: 1) failing to file a request for a bill of particulars;2°? 2)
failing to file an omnibus pretrial motion or any pretrial motions;2°8 3) failing to have
Petitioner interviewed under hypnosis by a psychiatrist to fashion an insanity defense;2°9
4) allowing Petitioner to "make a complete fool of himself and totally incriminate
himself;''21° 5) failing to give Petitioner unsolicited advice, and advising Petitioner only
when asked or ordered;2ii and 6) failing to teach Petitioner "how to file motions and
briefs [and] request individual voir dire or witness segregation.''212
These arguments lack merit. As to Petitioner's first two arguments, averring that
Attorney Dethlefs failed to file various documents, Petitioner fails to demonstrate how he
was prejudiced by such inaction. Further, Petitioner does not argue that counsel's
conduct was without reasonable basis,213 or prove by a preponderance of the evidence
that the inactions "so undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place.''214
207 Brief at 12.
208 Brief at 12.
209 Brief at 12-13.
Brief at 13 (emphasis omitted).
Brief at 13.
212 Brief at 14.
Commonwealth v. Allen, 2003 Pa. Super. 367, 833 A.2d 800, 802 (2003).
214 Act of May 13, 1982, P.L. 417, § 2, as amended42 Pa. C.S. § 9543(a)(2)(ii).
36
As to Petitioner's third contention, asserting that Attorney Dethlefs should have
procured a psychiatrist to hypnotize Petitioner, Petitioner does not identify a psychiatrist
who was willing to hypnotize Petitioner or attest to Petitioner's alleged insanity. Quite
the contrary, Petitioner admits that Attorney Dethlefs considered an insanity defense,2~5
but that an expert had opined that Petitioner "was not insane.''2~6 Petitioner has not
identified a witness who was willing to testify that Petitioner was insane,2~? proven that
counsel's decision to forgo the defense had no "reasonable basis designed to effectuate"
Petitioner's interests,2~8 or proven by a preponderance of the evidence that the truth
determining process was so undermined "that no reliable adjudication of guilt or
innocence could have taken place.''219
As to Petitioner's fourth, fifth, and sixth assertions regarding Attorney Dethlefs'
alleged ineffectiveness - allowing Petitioner "to make a complete fool of himself" at trial,
failing to offer Petitioner unsolicited advice, and failing to teach Petitioner the nuances of
the judicial system - these arguments also lack merit. Petitioner waived the right to
counsel and represented himself at trial, and Attorney Dethlefs was merely acting as
2~5 Indeed, a notice of such a defense was filed by Attorney Dethlefs. See Notice of
Insanity or Mental Infirmity Defense, filed Aug. 17, 1998.
216 Brief at 12 (emphasis in original).
217 Commonwealth v. Hanes, 397 Pa. Super. 38, 45-46, 579 A.2d 920, 923-24 (1990)
(ineffective counsel argument failed as petitioner did not identify expert witness that
would have been willing to testify).
218 Commonwealth v. Allen, 2003 Pa. Super. 367, 833 A.2d 800, 802 (2003).
219 Act of May 13, 1982, P.L. 417, § 2, as amended42 Pa. C.S. § 9543(a)(2)(ii).
37
standby counsel.22° As standby counsel, Attorney Dethlefs was under no obligation to
correct Petitioner's only recently realized, and self-perceived, deficiencies, and it is well
settled that, as a general rule, a pro se litigant cannot, via a post conviction motion, be
heard to claim the ineffectiveness of such standby counsel.22~
Petitioner next argues that his first court-appointed appellate counsel failed to file
an appropriate Anders Brief.222 In Anders v. California,223 the United States Supreme
Court determined that court-appointed appellate counsel may withdraw on direct appeal
from what he or she believes is a frivolous appeal only after scrutinizing the record and
briefing all issues a defendant could reasonably rely on:
[Court-appointed counsel's] role as advocate requires that he support his
client's appeal to the best of his ability. Of course, if counsel finds his
case to be wholly frivolous, after a conscientious examination of it, he
should so advise the court and request permission to withdraw. That
request must, however, be accompanied by a brief referring to anything in
the record that might arguably support the appeal. A copy of counsel's
brief should be furnished the indigent and time allowed him to raise any
points that he chooses; the court - not counsel - then proceeds, after a full
examination of all the proceedings, to decide whether the case is wholly
frivolous. If it so finds it may grant counsel's request to withdraw and
dismiss the appeal insofar as federal requirements are concerned, or
proceed to a decision on the merits, if state law so requires. On the other
hand, if it finds any of the legal points arguable on their merits (and
therefore not frivolous) it must, prior to decision, afford the indigent the
assistance of counsel to argue the appeal.TM
22O
Brief at 12-13.
Commonwealth v.
221 Appel, 547 Pa. 171, 197-99, 689 A.2d
Commonwealth v. Simms, 379 Pa. Super. 252, 256-57, 549 A.2d 1280,
222 Brief at 14-15.
223 386 US 738 (1967).
224 Anders v. California, 386 US 738, 744 (1967).
891, 904-05 (1997);
1282 (1988).
38
Following gnders, Pennsylvania law
seeking to withdraw from a criminal appeal:
requires that court-appointed counsel
1) petition the court for leave to withdraw stating that after making a
conscientious examination of the record and interviewing the
defendant, counsel has determined the appeal would be frivolous;
2) file a brief referring to any issues in the record of arguable merit; and
3) furnish a copy of the brief to defendant and advise him of his right to
retain new counsel or to raise any additional points that he deems
worthy of the court' s attention.225
As previously noted, on direct appeal Petitioner's first court-appointed counsel,
Attorney Robert P. Kline, sought to withdraw his representation by filing an Anders Brief
on May 26, 1999.226 In a November 1, 1999 memorandum order the Superior Court
determined that counsel's filing resembled a "no-merit" letter more than an Anders Brief,
and ordered Attorney Kline to refile an appropriate Anders Brief within 30 days.227 Less
than 30 days later, on November 24, 1999, Attorney Kline filed a Praecipe for
Withdrawal of Appearance, and that same day a Praecipe for Appearance was filed by
Petitioner's second court-appointed counsel, Attorney Jason P. Kutulakis.228 Two weeks
later, on December 9, 1999 an appellate brief on the merits was filed by Petitioner pro se,
225 Commonwealth v. Wilson, 396 Pa. Super. 296, 298-299; 578 A.2d 523, 524-525
(1990).
226 May 26, 1999 Application To Withdraw As Counsel and Anders Brief, 106 MDA
1999.
227 Memorandum of Super. Ct., Nov. 1, 1999, 106 MDA 1999 at 2-3.
228 See Praecipe for Withdrawal of Appearance, filed Nov. 24, 1999, 106 MDA 1999;
Praecipe for Appearance, filed Nov. 24, 1999, 106 MDA 1999.
39
as were petitions for appointment of stand-by counsel, for appointment of an investigator,
229
to proceed informa pauperis, and to proceed pro se.
The Superior Court relinquished jurisdiction on February 8, 2000 and remanded
the matter to the trial court to determine whether Petitioner effectively waived his right to
counsel.23° On October 4, 2000 the trial court granted Petitioner's application to proceed
pro se and appointed Attorney Kutulakis as Petitioner's standby counsel.231 Over a
month later, on November 8, 2000, Petitioner filed a second pro se appellate brief on the
merits.232
Although Attorney Kline submitted an inferior Anders Brief, the fact that
Petitioner elected to proceed pro se and had the benefit of Attorney Kutulakis as standby
229 See Appellant's Brief, filed Dec. 9, 1999, 106 MDA 1999; Petition for Appointment
of Stand-by Counsel, filed Dec. 9, 1999, 106 MDA 1999; Petition for Appointment of
Investigator, filed Dec. 9, 1999, 106 MDA 1999; Petition to Proceed in Forma Pauperis,
filed Dec. 9, 1999, 166 MDA 1999; Petition To Proceed Pro Se, filed Dec. 9, 1999, 106
MDA 1999.
230 Memorandum of Super. Ct., Feb. 8, 2000, 106 MDA 1999 at 2. The Superior Court
noted the sequence of events, and determined that "[t]he record does not clearly indicate
how this sequence of events occurred; more specifically, the record does not indicate
whether Mr. Kut[u]lakis was appointed to represent [Petitioner] prior to or after
[Petitioner's] filing of his motion to proceedpro se."Id, at 1-2. The court also noted that
Petitioner's petitions for stand-by counsel, for appointment of an investigator, and to
proceed informapauperis were signed on July 8, 1999 but not filed with the court until
December 9, 1999. Id. at 2 n. 1. This may have been attributable to Petitioner's still-
existent penchant for sending a plethora of petitions, motions, letters, and other
documents to the Judge's Chambers, rather than to the Clerk's office.
231 Order of Ct., Oct. 4, 2000.
232 Appellant's Brief, filed Nov. 8, 2000, 106 MDA 1999.
40
counsel leads to a conclusion that Attorney Kline was not required to file another brief
for Petitioner.233 Accordingly, this argument is without merit.
Finally, Petitioner asserts the ineffectiveness of his second court-appointed
appellate counsel, Attorney Jason P. Kutulakis.TM Specifically, Petitioner avers that
Attorney Kutulakis, as standby counsel, was ineffective for failing to respond to
Petitioner's "long letters" and for "responding to every letter" by requesting that
Petitioner "be more specific.''235 Petitioner also argues that Attorney Kutulakis was
ineffective for "abandoning" Petitioner while Petitioner sought an appeal to the
Pennsylvania Supreme Court.236
Petitioner's arguments lack merit. Petitioner does not aver that he was prejudiced,
and fails to prove that the truth determining process was undermined,237 and that there
was no reasonable basis for Attorney Kutulakis conduct.238 Indeed, it would be wholly
233 See Commonwealth v. Dilbeck, 455 Pa. 113, 115, 314 A.2d 505, 506 (1974) (where
court-appointed counsel submitted inadequate Anders Brief and defendant petitioned to
proceed pro se, court remanded for determination as to whether defendant effectively
waived right to counsel, after which new counsel was to submit brief or defendant to
submit new brief if acting pro se, but not ordering Anders brief). Further, that Petitioner
proceeded pro se means that he cannot complain of the ineffectiveness of counsel.
Commonwealth v. Appel, 547 Pa. 171, 197-99, 689 A.2d 891, 904-05 (1997);
Commonwealth v. Simms, 379 Pa. Super. 252, 256-57, 549 A.2d 1280, 1282 (1988).
234 Brief at 15-16.
235 Brief at 15.
236 Brief at 15-16.
237 Act of May 13, 1982, P.L. 417, § 2, as amended42 Pa. C.S. § 9543(a)(2)(ii).
238 Commonwealth v. Allen, 2003 Pa. Super. 367, 833 A.2d 800, 802 (2003).
41
reasonable for Attorney Kutulakis to seek specificity from Petitioner to better provide
legal advice, given the rambling nature of Petitioner's customary discourse.239
Likewise, Petitioner's claim of abandonment before proceedings could be
instituted in the Pennsylvania Supreme Court is not cognizable. Petitioner represented
himself on direct appeal, with Attorney Kutulakis serving only as standby counsel. It is
well settled that, as a general rule, one who represents her/himself cannot be heard, in a
post conviction proceeding, to complain of ineffectiveness of counsel.24° Thus,
Petitioner's arguments as to Attorney Kutulakis are also without merit.24~
For the foregoing reasons, the following order will be entered:
ORDER OF COURT
AND NOW, this 31st day of December, 2003, after careful consideration of
Petitioner's Motion for Post Conviction Relief, and for the reasons stated in the
accompanying opinion, Petitioner's Motion for Post Conviction Relief is DENIED.
BY THE COURT,
Daniel J. Sodus, Esquire
Senior Assistant District Attorney
s/J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
239 See generally, PCRA and Brief. Petitioner has a history of vagueness; the trial court
ordered Petitioner to be more specific in his Statement of Matters Complained of on
Appeal. See Order of Ct., Jan. 20, 1999.
240 Commonwealth v. Appel, 547 Pa. 171, 197-99, 689 A.2d 891, 904-05 (1997);
Commonwealth v. Simms, 379 Pa. Super. 252, 256-57, 549 A.2d 1280, 1282 (1988).
241 Even if Petitioner's arguments were meritorious, Petitioner has failed to prove by a
preponderance of the evidence that Attorney Kutulakis's actions so undermined the truth
determining process that "no reliable adjudication of guilt or innocence could have taken
place." Act of May 13, 1982, P.L. 417, § 2, as amended42 Pa. C.S. § 9543(a)(2)(ii).
42
Nicholas A. Pracht, DV-0813
SCI-Graterford
P.O. Box 246, Route 29
Collegeville, PA 19428-0246
Petitioner, Pro Se
;rc
43