J

- S74011

- 18

NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA

v.

AARON EVANS

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1228 EDA 2018 Appeal from the PCRA Order April 17, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

- 51

- CR

- 0002396

- 2010

BEFORE: LAZARUS, J., STABILE, J., and McLAUGHLIN, J. MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 1 7 , 2018 Aaron Evans appeals from the trial court’s order dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §9541

- 9546. After careful review, we affirm. In 2002 and 2009, 1 Evans committed sexu al offenses against the minor victim, the granddaughter of Evans’ then

- girlfriend. The victim was nine years old in 2002, when Evans forcibly raped her at knifepoint, threatening that he would kill the victim, her sister, mother, and cousins if she told a nyone about the incident. 2 Seven years later, in 2009, Evans cornered the victim in a

_________________ __________ ______ ____ _______ 1 During the 2009 incident, the victim fought back from her attacker, fracturing her wrist in the struggle.

2 After raping the victim by penetrating her vagina, anus and mouth, Evans urinated on the victim.J

- S74011

- 18

- 2

-

bathroom, with his penis exposed, and attempted to rape her at knife point. When the victim refused, Evans threatened to rape the victim’s one

- year - old
cousin. On Mar ch 28, 2011, a jury convicted Evans of one count each of rape of a child under thirteen, 3 involuntary deviate sexual intercourse with a child under thirteen (IDSI/<13), 4 attempted rape, aggravated assault, and two counts each of endangering the welfare of a child, corrupting the morals of a minor, possessing an instrument of crime (PIC), and terroristic threats. At sentencing , the Commonwealth noted that a mandatory minimum sentence of 5

- 10 years of imprisonment applied to the rape of a child and IDS I/<13

c onvictions. 5 However, in its discretion, the court chose to sentence Evans above the mandatory minimum to two concurrent terms of 81⁄2 to 17 years’ imprisonment for the rape and IDSI /<13 convictions; the court imposed an aggregate term of 121⁄2 to 25 years’ incarceration

. 6 Evans filed a timely direct

_________________ __________ ______ ____ _______ 3 18 Pa.C.S. § 3121(a)(6).

4 18 Pa.C.S

. § 3123(a)(6).

5 Evans was not deemed to be a sexually violent predator; however, he is required to register for the remainder of his lifeti me under the Sex Offender Registration and Notification Act (SORNA), 42 Pa.C.S. §§ 9799.10

- 9799.41.

6 No further penalty was imposed on Evans’ endangering the welfare of a child convictions. Moreover, Evans’ terroristic threats convictions merged with h is rape conviction for sentencing purposes. Finally, Evans’ PIC sentence (21⁄2 to 5 years’ imprisonment) was ordered to run concurrent to his corruption conviction (21⁄2 to 5 years’ imprisonment) and other PIC conviction (21⁄2 to 5J

- S74011

- 18

- 3

-

appeal asserting that the trial court improperly admitted “other acts” 7 evidence that was prohibited under Pa.R.E. 404; this Court affirmed his judgment of sentence. Commonwealth v. Evans , No. 2497 EDA 2012 (Pa

. Super. filed Feb. 29, 2016) ( unpublished memorandum decision). On July 19, 2016, the Pen nsylvania Supreme Court denied Evans’ petition for allowance of appeal. On May 27, 2016, Evans filed the instant PCRA petition pro se . Counsel was appointed and fi led an amended petition on his behalf. On February 28, 2018, the trial court gave Evans Pa.R.Crim.P. 907 notice of its intent to dismiss his petition without a hearing. Evans did not file a response. On April 17, 2018, the court dismissed the petition. Evans filed a timely notice of appeal and court

- ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

_________________ __________ ______ ____ _______ years); his corruption convic tions were ordered to run concurrently to each other; his attempted rape sentence (11⁄2 to 3 years’ incarceration) was ordered to run concurrent to his aggravated assault conviction (11⁄2 to 3 years’ imprisonment); one of his corruption convictions was ordered to run consecutive to his aggravated assault conviction; and his aggravated assault conviction was ordered to run consecutive to his rape conviction.

7 Specifically, the Commonwealth introduced notice, two months prior to trial, that that the victim’s minor sister, K.B., would testify about Evans’ inappropriate sexual contact with her in her grandmother’s home when she, herself, was twelve years of age. The C ourt foun d that the “similarities between [Evans’] actions against the victim in this case, and his alleged behavior with the victim’s sister, rendered the sister’s proposed testimony not only relevant, but necessary to enable the Commonwealth to establish [Evans’] common plan, scheme, or design, and his modus operandi

. ” Commonwealth v. Evans , No. 2497 EDA 2012, at 10.J

- S74011

- 18

- 4

-

On appeal, Evans presents one issue for our consideration: “ Was counsel ineffective for failing to raise the issue of [Evans ’] being subject to an illegal mandatory minimum sentence? ” Appellant’s Brief, at 9

. The standard of review of an order denying a PCRA petition is whether that determination is supported by the evidence of record and is free of legal error. The PCRA cour t’s findings will not be disturbed unless there is no support for the findings in the certified record. Commonwealth v. Johnston , 42 A.3d 1120, 1126 (Pa. Super. 2012). With respect to claims of ineffective assistance of counsel, we begin with the presumption that counsel is effective. Commonwealth v. Spotz , 47 A.3d 63, 76 (Pa. 2012). To prevail on an ineffectiveness claim, a petitioner must plead and prove, by a prepon derance of the evidence, three elements: (1) the underlying legal claim has arguable merit; (2) counsel had no reasonable basis for his or her action or inaction; and (3) the petitioner suffer ed prejudice because of counsel’ s action or inaction. Id. (cit ation omitted). Evans claims that trial and appellate counsel were ineffective for failing to challenge his illegal mandatory minimum sentence under Alleyne

. 8 Evans’ claim is meritless; the trial court did not impose a mandatory minimum

_________________ __________ ______ ____ _______ 8 Alleyne v. United States , 570 U.S. 99 (2013) (holding facts that increase mandatory minimum sentence are elements of c rime and are required to be found beyond reasonable doubt by fact finder).J

- S74011

- 18

- 5

-

sentence. See N. T. Sentencing, 7/27/12, at 32 (District Attorney acknowledges mandatory minimum for rape of child and IDSI/<13 is five to ten years’ imprisonment) 9 but see id. at 49 (court stating that on rape of child and IDSI/<13, Evans sentenced “on each bill to eight and a half to seventeen years to run concurrent with each other.”). Rather, at sentenc ing, the court imposed a higher sentence of 81⁄2 to 17 years’ imprisonment on each offense, acknowledging that Evans demonstrated “very predatory type behavior.” Id. at 5 1. Thus , counsel cannot be deemed ineffective. See Commonwealth v. Spotz , 896 A.2d 1191 (Pa. 2006) (counsel not ineffective for failing to raise meritless objection). 10 Order affirmed.

_________________ __________ ______ ____ _______ 9 The Commonwealth correctly noted that this was the mandatory minimum in effect at the time of the commission of the rape and IDSI/<13 in 2002. See 42 Pa.C.S. § 9718 (Amendment Notes) (noting 2006 amendment substituted minimum of “ten years” for “five years” in subsections (a)(1) and (a)(3)).

10 We note that even if the trial court had sentenced Evans to the mandatory minimum sentence for rape of a child under section 9718(a)(3), it would not be deemed an illegal sentence under Alleyne

. See Commonwealth v. Resto , 179 A.3d 18 (Pa. 2018) (plurality opinion) (conviction under section 9718(a)(3) returned by jury , to whic h mandatory minimum sentence directly attached , not same as aggravating fac t that increased mandatory minimum sentence and violates Sixth Amendment rights under Alleyne ). Moreover, because Evans was sentenced in 2012, counsel cannot be deemed ineffective for not objecting to a mandatory minimum sentence, as the Alleyne was not decided until one year later

.J

- S74011

- 18

- 6

-

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/17/18