J-S39041-16

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

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GREGORY A. BARTO,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 329 MDA 2015

Appeal from the Order Entered February 2, 2015

in the Court of Common Pleas of Lycoming County

Criminal Division at No(s): CP-41-CR-0000110-2009, 

CP-41-CR-0000844-2009, CP-41-CR-0000896-2009, 

CP-41-CR-0001079-2008, CP-41-CR-0001606-2009, 

CP-41-CR-0001632-2009

BEFORE: STABILE, PLATT,* and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED JULY 26, 2016

Gregory A. Barto (Appellant) appeals pro se from the order which 

dismissed his petition filed pursuant to the Post Conviction Relief Act (PCRA), 

42 Pa.C.S. §§ 9541-9546.1 Upon review, we affirm.

The PCRA court summarized the background underlying this matter as 

follows.

Following a jury trial in May 2010, Appellant was convicted 

of numerous controlled substance offenses, and sex and 

corruption offenses related to separate female victims. The 

offenses included possession with intent to deliver (PWID) 

cocaine and marijuana, forcible rape, terroristic threats, 

corruption of minors, sexual exploitation of children and sexual 

abuse of children. These offenses were based on a pattern of 

 

1 We note with disapproval that the Commonwealth has failed to file a brief 

in this matter, despite receiving three extensions of time to do so.
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activity in which Appellant provided alcohol and/or controlled 

substances to minor females, and then he, and sometimes his 

wife, would have sexual contact with them. They videotaped 

their sexual activities with some of the females, and they 

showed pornographic videos to other females to encourage them 

to engage in sexual activities. Appellant was sentenced to 

undergo thirty-five to seventy years of incarceration in a state 

correctional institution.

No post[-]sentence motions were filed, but Appellant filed 

a direct appeal. The Pennsylvania Superior Court affirmed 

Appellant’s judgment of sentence, and the Pennsylvania 

Supreme Court denied his petition for allowance of appeal. 

[Commonwealth v. Barto, 32 A.3d 837 (Pa. Super. 2011),

appeal denied, 38 A.3d 822 (Pa. 2012).]

PCRA Court Opinion, 8/12/2015, at 1-2 (repetition of quantities in numerical 

form omitted).

Appellant timely filed pro se a PCRA petition on October 25, 2012. 

Counsel was appointed, and an amended petition was filed. Eventually, a 

“Second Amended PCRA Petition” was filed on July 1, 2014. Therein, 

Appellant raised claims of ineffective assistance of prior counsel for failing to 

file a post-sentence motion or appeal challenging the sufficiency of the 

evidence, the weight of the evidence, and the discretionary aspects of 

Appellant’s sentence. Second Amended PCRA Petition, 7/1/2014, at 

unnumbered pages 5-7. 

On January 2, 2015, the PCRA court issued an opinion concluding that 

Appellant’s three ineffective-assistance-of-counsel claims did not entitle him 

to relief and an order providing notice of its intent to dismiss the petition 

without a hearing pursuant to Pa.R.Crim.P. 907. Opinion and Order, 
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1/2/2015. On February 2, 2015, the PCRA court dismissed the petition. 

Appellant timely filed pro se a notice of appeal to this Court. On March 10, 

2015, Appellant filed a petition requesting a Grazier2 hearing. On April 9, 

2015, the PCRA court issued an order stating that, following a hearing, it 

found Appellant had knowingly, intelligently, and voluntarily waived his right 

to appellate counsel. The PCRA court also issued an order directing 

Appellant to file a concise statement of errors complained of on appeal 

pursuant to Pa.R.A.P. 1925(b). Appellant filed a concise statement, and the 

PCRA court issued its opinion pursuant to Pa.R.A.P. 1925(a).

On appeal, Appellant presents the following issues for our 

consideration:

I. Whether appellate counsel was ineffective for fail[ing] to 

challenge the sufficiency of evidence in regards to N.B. and 

A.W.?

II. Whether Appellant s[h]ould be entitled to an evidentiary 

hearing based on after-discovered evidence which Appellant 

learned that the investigating trooper was arrested for similar 

offenses that occurred prior to Appellant’s trial and a hearing 

is warranted to determine if the Commonwealth violated 

[Brady v. Maryland, 373 U.S. 83 (1963),] because the 

Pennsylvania State Police was part of the arrest and or 

whether this new ... evidence warrants a new trial regardless 

of any Brady violation?

III. Wheth[er] trial counsel was ineffective for fail[ing] to inform 

Appellant that he could have character witnesses to testify for 

his reputation of non-violence denying Appellant his Sixth 

 

2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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Amendment right to effective counsel and Fourteenth 

Amendment right to due process?

IV. Whether Appellant had adequate counsel during the PCRA 

proce[e]ding as appointed counsel did not communicate with 

Appellant and did not inform Appellant that he filed an 

amended petition on Appellant’s behalf pursuant to 

Pa.R.Crim.P. 902(a)(14)?

Appellant’s Brief at 5 (unnecessary capitalization and suggested answers 

omitted; some formatting altered).

“Our standard of review of a trial court order granting or denying relief 

under the PCRA requires us to determine whether the decision of the PCRA 

court is supported by the evidence of record and is free of legal error.” 

Commonwealth v. Perez, 103 A.3d 344, 347 (Pa. Super. 2014).

In his first issue, Appellant argues that his counsel was ineffective for 

failing to challenge the sufficiency of the evidence in regard to victims N.B. 

and A.W. In the argument section of his brief, however, Appellant abandons 

his claim as to A.W. See Appellant’s Brief at 12 (“In regards to A.W[.], after 

reviewing the evidence in light [sic] most favorable to the Commonwealth 

Appellant concedes that the fact finder may have had sufficient evidence to 

determine guilt in regards to the offenses alleged against [A.W.]. Appellant 

will not make any further argument in regards to this matter.”). Thus, we 

need not address this claim further.

With regard to Appellant’s claim as to N.B., we note that

a PCRA petitioner will be granted relief only when he proves, by 

a preponderance of the evidence, that his conviction or sentence 
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resulted from the [i]neffective assistance of counsel which, in the 

circumstances of the particular case, so undermined the truthdetermining process that no reliable adjudication of guilt or 

innocence could have taken place. ...

It is well-established that counsel is presumed to have 

provided effective representation unless the PCRA

petitioner pleads and proves all of the following: (1) the 

underlying legal claim is of arguable merit; (2) counsel’s 

action or inaction lacked any objectively reasonable basis 

designed to effectuate his client’s interest; and (3) 

prejudice, to the effect that there was a reasonable 

probability of a different outcome if not for counsel’s error.

The PCRA court may deny an ineffectiveness claim if the 

petitioner’s evidence fails to meet a single one of these prongs. 

Moreover, a PCRA petitioner bears the burden of demonstrating 

counsel’s ineffectiveness.

Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) 

(internal quotation marks and citations omitted).

Furthermore, “[c]laims of ineffective assistance of counsel are not selfproving.” Commonwealth v. Wharton, 811 A.2d 978, 986 (Pa. 2002). In 

order to be entitled to relief, “a petitioner must set forth and individually 

discuss substantively each prong of the [ineffectiveness] test.” 

Commonwealth v. Steele, 961 A.2d 786, 797 (Pa. 2008). Herein, 

Appellant has failed to do so. With respect to the arguable merit prong, 

Appellant does not set forth and meaningfully discuss the legal principles 

pertaining to his underlying sufficiency claim or the elements of crimes he 

seeks to challenge on that basis. As to the latter two prongs of the 

ineffectiveness test, Appellant baldly asserts that “[s]hould this [C]ourt find 
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the evidence insufficient then [a]ppellate counsel would be ineffective 

pursuant to United States v. Cronic and the Strickland standard would be 

moot, that is determining if counsel had a reasonable basis.”3 Appellant’s 

Brief at 11. Thus, Appellant’s first issue as it pertains to N.B. is waived. 

Steele, 961 A.2d at 797 (finding ineffectiveness claims waived for lack of 

development where the appellant “fail[s] to set forth all three prongs of the 

ineffectiveness test and meaningfully discuss them”).

Turning to Appellant’s remaining claims on appeal, we reject them for 

the following reasons. With respect to Appellant’s second issue, wherein he 

alleges that he is entitled to a hearing based on an alleged Brady violation 

and a hearing or new trial based on after-discovered evidence, we observe 

that the July 1, 2014 amended petition did not include a claim based on 

Brady or after-discovered evidence. Thus, no relief is due. See 

Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008) (“A 

reviewing court must examine the issues raised in the PCRA petition in light 

of the record in order to determine whether the PCRA court erred in 

concluding that there were no genuine issues of material fact and in denying 

 

3

Presumably, Appellant is referring to United States v. Cronic, 466 U.S. 

648 (1984), which “relieves an appellant from the burden of proving 

prejudice where there has been an actual or constructive denial of counsel, 

i.e., when counsel’s failure has been complete and it is as if the right to 

counsel has been denied,” Steele, 961 A.2d at 811, and the three-pronged 

ineffectiveness standard derived from Strickland v. Washington, 466 U.S. 

668 (1984). 
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relief without an evidentiary hearing.”); see also Commonwealth v. 

Washington, 927 A.2d 586, 601 (Pa. 2007) (“Any claim not raised in the 

PCRA petition is waived and not cognizable on appeal.”). Appellant’s third 

issue, wherein he claims that trial counsel was ineffective for failing to 

inform him that he could have character witnesses testify on his behalf, was 

also not raised in his July 1, 2014 amended petition before the PCRA court. 

Thus, it is waived. See Washington, 927 A.2d at 601. Finally, our review 

of the record reveals that Appellant did not raise his fourth issue, wherein he 

alleges PCRA counsel’s ineffectiveness,4 before the PCRA court or in his

1925(b) statement. Therefore, this claim is also waived. Commonwealth 

v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) (en banc) (“[C]laims of PCRA 

counsel’s ineffectiveness may not be raised for the first time on appeal.”); 

Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement and/or not 

raised in accordance with the provisions of this paragraph (b)(4) are 

waived.”).

Appellant has failed to establish that he is entitled to relief on his 

claims herein. Accordingly, we affirm the order of the PCRA court.

Order affirmed.

 

4 Appellant also alludes to PCRA counsel’s ineffectiveness in the context of 

his second and third issues on appeal. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/26/2016