J-S60028-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DARIN LEE HAUMAN

Appellant No. 439 MDA 2014

Appeal from the PCRA Order of February 25, 2014

In the Court of Common Pleas of Fulton/Franklin Counties

Fulton County Criminal Division at No: CP-29-CR-0000115-2001

BEFORE: OTT, STABILE, and JENKINS, JJ.

MEMORANDUM BY STABILE, J.: FILED JANUARY 16, 2015

Appellant, Darin Lee Hauman, appeals pro se from the February 25, 

2014 order entered in the Court of Common Pleas of the 39th Judicial 

District, Fulton County Branch, reinstating that court’s March 2, 2012 denial 

of collateral relief pursuant to the Post Conviction Relief Act (“PCRA”), 42 

Pa.C.S.A. §§ 9541-9546. Following review, we affirm.

The PCRA court summarized the factual background of this case as 

follows:

[Appellant] was arrested in Allegheny County following his 

attempt to meet with an underage girl. [Appellant], calling 

himself Jake Thomas, had been exchanging e-mails concerning 

sexual topics with a girl named ShyLittleMissy who[m] he 

believed to be 12 or 13 years old. ShyLittleMissy was, in fact, an 

undercover Pennsylvania State Police (PSP) Trooper who was 

given this e-mail account by a private citizen named Ty 

Grabowski who had originally set up the account to help law 

enforcement find child pornographers.
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Following his arrest, [Appellant] was interviewed by PSP and 

admitted that he had been in contact with a girl he believed was 

13 years old and that his intentions were sexual in nature. This 

information was relayed to PSP in Fulton County and a search 

warrant for [Appellant’s] residence was obtained to attempt to 

find evidence of child pornography. The warrant was executed 

and 27 photographs were found under the carpeting of his 

home. As a result [Appellant] was charged with 27 counts of 

Possession of Child Pornography.

PCRA Court Opinion, 3/2/12, at 1.

In a subsequent opinion, the PCRA court provided the following 

procedural history of this case:

[Appellant] was arrested on August 27, 2001 and charged with 

27 counts of possession of child pornography. A bench trial was 

held on October 2, 2003 and the [c]ourt found Appellant guilty 

on 11 counts of possession of child pornography and not guilty 

on the remaining 16 counts. Appellant was sentenced on 

March 15, 2004. Appellant filed a [PCRA petition] on July 14, 

2010. A hearing on the PCRA petition was held on March 22, 

2011. Trial counsel Clint Barkdoll testified. The record was left 

open for a second hearing so that additional witnesses could be 

located. The second hearing was held on July 5, 2011. Trooper 

Roche (formerly LaRoche) testified. On March 2, 2012 this 

[c]ourt issued an Order denying Appellant’s PCRA petition. 

Attached to the Order was a comprehensive Opinion delineating 

our reasons for denying the petition. Appellant appealed this 

decision to the Superior Court on March 30, 2012. Pursuant to 

Superior Court Order dated March 12, 2013 our March 2, 2012 

Order denying Appellant PCRA relief was vacated and we held a 

Grazier hearing on July 16, 2013. On October 7, 2013 

Appellant filed a Motion for Leave to Amend his PCRA petition. 

On February 24, 2014 we issued an Order denying that motion. 

In that same Order we reinstated our denial of Appellant’s PCRA 

petition to provide Appellant with an appealable Order pursuant 

to the Superior Court’s February 7, 2014 Order. Appellant 

subsequently filed a Notice of Appeal on March 10, 2014, 

appealing our Order dated February 24, 2014 denying 

Appellant’s Motion for Leave to Amend his PCRA petition and 

denying Appellant’s PCRA petition by incorporation of our 

March 2, 2012 denial of Appellant’s PCRA petition. On April 2, 
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2014 Appellant filed with this [c]ourt a Concise Statement of 

Errors Complained of on Appeal.

PCRA Court Rule 1925(a) Opinion, 5/13/14, at 1-2 (citing Commonwealth 

v. Grazier, 713 A.2d 81 (Pa. 1998)).1 

On appeal, Appellant sets forth nine issues in his Statement of 

Questions Involved as follows:

1. Whether the PCRA Court erred when it denied relief under 

PCRA Count 2, alleging trial counsel ineffectiveness for failing 

to reasonably challenge the arrest in Allegheny Co., Pa.

2. Whether the PCRA Court erred when it denied relief under 

PCRA Count 3, alleging trial counsel ineffectiveness for failing 

to reasonably challenge the veracity of the affidavit of 

probable cause of the Fulton Co. search warrant.

3. Whether the PCRA Court erred when it denied relief under 

PCRA Count 4, alleging trial counsel ineffectiveness for failing 

to reasonably challenge duplicity in the one paragraph 

Charging Information, which was used for 27 counts.

4. Whether the PCRA Court erred when it denied relief under 

PCRA Count 5-A, alleging trial counsel ineffectiveness for 

____________________________________________

1 Although not readily apparent from the PCRA court’s procedural history, we 

note that Appellant’s initial PCRA petition was timely filed. Appellant 

pursued a direct appeal to this court from his March 15, 2004 judgment of 

sentence. On March 18, 2005, this Court vacated the judgment of sentence 

and remanded for resentencing. Following resentencing, Appellant again 

appealed to this Court, which affirmed the judgment of sentence on 

September 1, 2006. Appellant then sought allowance of appeal to our 

Supreme Court, which denied the petition on November 18, 2008. Appellant 

petitioned the United States Supreme Court for a writ of certiorari. The 

Supreme Court denied certiorari on October 5, 2009. Appellant’s PCRA 

petition was filed on July 14, 2010, within one year of the date his judgment 

became final. 42 Pa.C.S.A. § 9545(b)(1).
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failing to object to Tpr. Roche’s testimony about events in 

Allegheny Co., Pa., based on Pa.R.E. 404(b).

5. Whether the PCRA Court erred when it denied relief under 

PCRA Count 5-B, alleging trial counsel ineffectiveness for 

failing to object, during trial and/or in a post-sentence 

motion, to Tpr. Roche’s hearsay testimony as to an 

Informant’s testimonial statements [and] emails.

6. Whether the PCRA Court erred when it denied relief under 

PCRA Count 5-D, alleging trial counsel ineffectiveness for 

failing to raise the defense of collateral estoppel.

7. Whether the PCRA Court erred when it denied relief under 

PCRA Count 6, alleging trial counsel ineffectiveness for failing 

to present a rebuttal expert witness regarding the correct use 

of the Tanner Staging Methodology.

8. Whether the PCRA Court erred when it denied relief under 

PCRA Count 7, alleging trial counsel ineffectiveness for failing 

to argue, on direct appeal, how the trial court erred (a) when 

it found Appellant guilty on 4 out of a group of 20 depictions 

(i.e., Cmwlth’s Ex. 2); and (b) when it ignored or failed to 

defer to the testimony of the Commonwealth’s expert who 

was unable to offer any opinion as to the necessary age 

element of those models depicted.

9. Whether the PCRA Court erred when it denied [A]ppellant 

leave to amend his petition for post conviction relief to make 

claims of PCRA Counsel ineffectiveness prior to this appeal 

being taken.

Appellant’s Brief at 5-6.2

____________________________________________

2 We note that Appellant’s brief fails to comply with the rules of appellate 

procedure in at least two important respects. Most noticeably, the brief 

violates Pa.R.A.P. 2135, which governs the length of briefs. In 

Commonwealth v. Spuck, 86 A.3d 870 (Pa. Super. 2014), this Court 

discussed revisions to Rule 2135 that went into effect in May 2013. Rule 

2135 previously used the number of pages as a measuring standard for 

length of briefs. The revised rule uses number of words instead and limits a 

principal brief to 14,000 words, requiring the filing of a certificate of 

(Footnote Continued Next Page)
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As our Supreme Court explained in Commonwealth v. Chmiel, 30 

A.3d 1111 (Pa. 2011):

Under our standard of review for an appeal from the denial of 

PCRA relief, we must determine whether the ruling of the PCRA 

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

Commonwealth v. Washington, 592 Pa. 698, 927 A.2d 586, 

593 (2007). The PCRA court’s credibility determinations are 

binding on this Court when they are supported by the record. 

Commonwealth v. Johnson, 600 Pa. 329, 966 A.2d 523, 532, 

539 (2009). However, this Court applies a de novo standard of 

review to the PCRA court’s legal conclusions. Commonwealth 

v. Rios, 591 Pa. 583, 920 A.2d 790, 810 (2007).

Id. at 1127. Further:

To prevail on a claim of ineffective assistance of counsel, a 

petitioner must overcome the presumption that counsel is 

(Footnote Continued) _______________________

compliance if a principal brief exceeds thirty pages. Id. at 873 (citing 

Commonwealth v. Roney, 79 A.3d 595, 646 (Pa. 2013) (Castille, C.J., 

concurring). “The certification requirement is not limited to counsel: Pro se

litigants, too, are obliged to provide a certification for a primary brief that 

exceeds thirty pages. See Pa.R.A.P. 2135(d) (‘[T]he attorney or the 

unrepresented filing party shall include a certification that the brief 

complies with the word count limits.’ (emphasis added).” Id. Appellant’s 

brief spans 60 pages but does not include the required Rule 2135(d) 

certification reflecting compliance with the word limitation. 

Important also is Appellant’s failure to attach a copy of his statement of 

errors complained of on appeal, as required by Pa.R.A.P. 2111(d). Although 

Pa.R.A.P. 2101 authorizes us to dismiss an appeal for failure to comply with 

briefing requirements, we decline to do so and elect to address the merits in 

an effort to bring this matter to a conclusion, recognizing the case dates 

back to Appellant’s arrest in 2001. Further, we acknowledge that the PCRA 

court refers to the nine errors raised by Appellant, the first eight of which 

were addressed in the PCRA court’s 2012 opinion, which is incorporated in 

its 2014 opinion, and a ninth noted as raised in the instant appeal, which the 

PCRA court addressed in its 2014 opinion. Because the issues addressed by 

the PCRA court parallel the nine issues raised in Appellant’s brief, we shall 

address them despite Appellant’s failure to comply with Rule 2111(d). 
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effective by establishing all of the following three elements, as 

set forth in Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 

973, 975–76 (1987): (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 suffered prejudice because of 

counsel's ineffectiveness. Commonwealth v. Dennis, 597 Pa. 

159, 950 A.2d 945, 954 (2008). With regard to the second, 

reasonable basis prong, “we do not question whether there were 

other more logical courses of action which counsel could have 

pursued; rather, we must examine whether counsel’s decisions 

had any reasonable basis.” Washington, supra at 594. We 

will conclude that counsel’s chosen strategy lacked a reasonable 

basis only if Appellant proves that “an alternative not chosen 

offered a potential for success substantially greater than the 

course actually pursued.” Commonwealth v. Williams, 587 

Pa. 304, 899 A.2d 1060, 1064 (2006) (citation omitted). To 

establish the third, prejudice prong, the petitioner must show 

that there is a reasonable probability that the outcome of the 

proceedings would have been different but for counsel’s 

ineffectiveness. Dennis, supra at 954. “We stress that 

boilerplate allegations and bald assertions of no reasonable basis 

and/or ensuing prejudice cannot satisfy a petitioner’s burden to 

prove that counsel was ineffective.” Commonwealth v. Paddy,

15 A.3d 431, 443 (Pa. 2011).

Id. at 1127-28.

Turning to the issues in Appellant’s brief, Appellant challenges the 

PCRA court’s denial of relief under Paragraphs 2, 3, 4, 5-A, 5-B, 5-D, 6, and 

7 of his PCRA petition and alleges PCRA court error for the court’s denial of 

his motion to amend the PCRA petition. We shall address the claims in the 

order presented. “To the extent that we do not discuss all applicable 

requisites to relief in our treatment of any particular [PCRA] claim, it is 

because the aspect in focus is dispositive of overarching and/or derivative 

claims.” Commonwealth v. Rega, 70 A.3d 777, 780 n.2 (Pa. 2013).
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In Paragraph 2 of his PCRA petition, Appellant alleges trial counsel 

ineffectiveness for failing to challenge Appellant’s arrest in Allegheny County, 

an arrest Appellant suggests was illegal. Appellant’s Brief at 23. Appellant 

surmises that PCRA counsel could have proven the Allegheny County arrest 

was illegal, resulting in “a strong probability that the search warrant for 

appellant’s residence would have been found improperly issued, thus 

eliminating the key evidence used against him at his Fulton Co. trial.” Id. 

Appellant’s argument lacks arguable merit. As the PCRA court recognized:

The Allegheny County Court of Common Pleas did not dismiss 

[Appellant’s] case because it determined that his arrest was 

illegal. The charges were dismissed following a habeas corpus 

proceeding. The court determined that there was not sufficient 

evidence. No such determination was ever made regarding the 

arrest. This is further evidenced by [Appellant’s] PCRA Exhibit 

9A which contains a copy of the Order dated May 27, 2004 

dismissing the Allegheny case.

PCRA Court Opinion, 3/2/12, at 4. Further, as noted by the PCRA court, 

Appellant’s “trial counsel had a reasonable basis for not challenging the 

Fulton County warrant as fruit of the poisonous tree because [Appellant’s] 

arrest was never deemed to be unlawful.” Id.3 Appellant is not entitled to 

relief based Paragraph 2 of his PCRA petition. 

____________________________________________

3 We note Appellant was represented by separate counsel in Allegheny 

County and that the Allegheny County case was dismissed on May 27, 2004. 

Appellant’s Fulton County trial took place in October 2003 after numerous 

continuances were granted. Appellant was sentenced in March 2004, more 

than two months before the habeas hearing in Allegheny County.
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Appellant next alleges error related to Paragraph 3 of his PCRA petition 

in which he claims trial counsel was ineffective for failing to challenge the 

affidavit of probable cause for the Fulton County search warrant. Appellant 

argues the affidavit is replete with errors and misrepresentations that, if 

eliminated, would render the warrant insufficient to pass a magistrate’s test 

for probable cause. Appellant’s Brief at 31. He asserts trial counsel was 

ineffective for refusing to request a hearing pursuant to Franks v. 

Delaware, 438 U. S. 154 (1978). In Franks, the United States Supreme 

Court held that “where a defendant demonstrates that an affiant in a 

warrant affidavit made a false statement knowingly and intentionally, or with 

reckless disregard for the truth, the search warrant must be voided, unless 

the affidavit’s remaining content is sufficient to establish probable cause.” 

Rega, 70 A.3d at 783. With regard to truthful statements in an affidavit, 

[t]his does not mean “truthful” in the sense that every fact 

recited in the warrant affidavit is necessarily correct, for 

probable cause may be founded upon hearsay and upon 

information received from informants, as well as upon 

information within the affiant’s own knowledge that sometimes 

must be garnered hastily. But surely it is to be “truthful” in the 

sense that the information put forth is believed or appropriately 

accepted by the affiant as true.

Franks, 438 U.S. at 165.

In his brief, Appellant sets forth the text of the six-paragraph warrant 

affidavit and dissects each paragraph of the affidavit over the next six pages 

of his brief. In the first paragraph, the affiant, Trooper Flaherty, represents 

that Troopers Roche and Bard contacted him for assistance and related 
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information concerning their investigation into a “traveler” case. Appellant 

contends he could not find any legal reference to the term “traveler”—used 

in the context of the affidavit as a person who contacts juveniles via email 

and chat rooms—and suggests the use of the word was simply “wordy 

jargon” to get the magistrate to “take that bait hook, line and sinker,” id., 

seemingly because Trooper Roche testified he never had chat room 

exchanges with Appellant. Also, Appellant challenges statements made by 

Trooper Roche, claiming Roche testified at the PCRA hearing that Trooper 

Bard was privy to all the information, after having testified at Appellant’s 

2003 trial that “[i]f it’s in [the affidavit], then I wrote it.” Appellant suggests 

the statements are inconsistent because the 2003 statement means that 

Trooper Bard had “nothing to do with the [the affidavit.]” Appellant’s Brief 

at 28. In addition, he argues that there were no emails between Appellant 

and “Missy Little” indicating “Missy Little” was twelve years of age, but does 

not acknowledge that there were emails he omitted from Exhibit 4 to his 

PCRA petition—which were read into the record at Appellant’s preliminary 

hearing—indicating that “Missy Little” (as the affidavit refers to the person 

with the email address “ShyLittleMissy”) was twelve years old. Appellant’s 

Brief at 28; PCRA Court Opinion, 3/2/12, at 5 n.1. 

We acknowledge that the PCRA court’s focus on Paragraph 3 of 

Appellant’s PCRA petition was on Appellant’s assertions about emails 

indicating ShyLittleMissy was 12 rather than 13 years old. Even though the 
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PCRA court did not address all of Appellant’s claims of error and 

misstatement in the affidavit, we find nothing in the affidavit that falls short 

of the Franks requirement that that statements be “‘truthful’ in the sense 

that the information put forth is believed or appropriately accepted by the 

affiant as true.” Franks, 438 U.S. at 165.4 Appellant is attempting to play 

a game of semantics in his attack on the warrant. However, he has not 

demonstrated that the affiant, Trooper Flaherty, made any false statement 

knowingly and intentionally, or with reckless disregard for the truth. We find 

no arguable merit in Appellant’s contention that trial counsel was ineffective 

for failing to challenge the affidavit. Appellant’s claims relating to Paragraph 

3 of the PCRA petition fail. 

Appellant next asserts PCRA court error under Paragraph 4 of his PCRA 

petition, which argues trial counsel ineffectiveness for refusing to challenge 

“duplicity” in the one-paragraph charging information used for all 27 counts 

alleged against him. As the PCRA court noted, duplicity is “[t]he charging of 

the same offense in more than one count of an indictment.” PCRA Court 

Opinion, 3/2/12, (quoting Black’s Law Dictionary (9th ed. 2009)). Here, 

____________________________________________

4 We likewise decline to address all the claims of error and misstatement 

Appellant suggests appear in the six-paragraph affidavit. As noted, 

Appellant devotes six pages of his brief to these supposed errors. We 

instead limit our discussion to Appellant’s claims of error and misstatement 

in the first paragraph of the affidavit as illustrative of the type of “error and 

misstatement” Appellant alleges appears throughout the affidavit.
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Appellant was charged with 27 counts of possession of child pornography 

under 18 Pa.C.S.A. § 6312(d). As our Supreme Court has recognized: 

Under Section 6312(d), it is a violation of the law for “[a]ny 

person who knowingly possesses or controls any book, 

magazine, pamphlet, slide, photograph, film, videotape, 

computer depiction or other material” which depicts a minor 

“engaging in a prohibited sexual act or in the simulation of such 

act.” 18 Pa.C.S. § 6312(d). The General Assembly’s use of the 

term “any,” which could mean one or more items, suggests a 

lack of restriction or limitation. Further, all of the objects listed 

in the statute are singular, e.g., a “photograph” or a “computer 

depiction,” meaning that each photograph or computer depiction 

constitutes a distinct occurrence of offensive conduct in violation 

of Section 6312(d).

Commonwealth v. Davidson, 938 A.2d 198, 218-19 (Pa. 2007). Each of 

the 27 counts in the complaint corresponded with one of the 27 photographs 

recovered from under the carpet in Appellant’s home. The trial court 

determined that eleven of those photographs constituted child pornography. 

Clearly, Appellant was not charged with the same offense in more than one 

count of the indictment. Appellant’s claims relating to Paragraph 4 of his 

PCRA petition lack arguable merit and provide no basis for relief.

In issues 4 through 6, Appellant alleges trial counsel ineffectiveness 

relating to three subparagraphs in Paragraph 5 of his PCRA petition. In the 

first of these, Appellant claims trial counsel was ineffective for failing to 

object to Trooper Roche’s testimony concerning events in Allegheny County. 

The PCRA court rejected Appellant’s claim for lack of arguable merit, 

concluding the testimony relating to Appellant’s prior actions in soliciting a 

minor in Allegheny County was relevant to show his motive and intent for 
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possessing photographs depicting child pornography. PCRA Court Opinion, 

3/2/12, at 7-8. Further, the PCRA court recognized a reasonable basis for 

trial counsel not objecting to the testimony sooner than he did. As the PCRA 

court explained, “[t]rial counsel believed that testimony regarding what 

happened in the Allegheny case was merely the basis for later testimony 

which would explain why the Fulton County warrant was issued, since the 

Allegheny case provided the factual basis for that warrant.” Id. at 8. 

Finally, an earlier objection would not have put Appellant in a different 

position, as evidenced by the fact the trial court overruled trial counsel’s 

objection when it was made, permitting the testimony to establish intent and 

motive. Id. Because Appellant’s assertions lack arguable merit, because 

trial counsel had a reasonable basis for his actions, and because Appellant 

was not prejudiced by trial counsel’s actions, Appellant’s claims of PCRA 

court error with respect to Paragraph 5-A of his PCRA petition fail. 

Appellant next argues the PCRA court erred by denying relief based on 

Appellant’s claims of ineffectiveness stemming from trial counsel’s failure to 

object to hearsay testimony. The testimony in question was offered by 

Trooper Roche and addressed his conversations with Grabowski—the creator 

of the ShyLittleMissy email account—as well as the emails exchanged 

between Grabowski and Appellant. Appellant asserts the testimony was 

hearsay because Grabowski was not called to testify at either the Allegheny 

or Fulton County proceedings, depriving Appellant of the opportunity to 
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cross-examine him. Appellant contends the introduction of such testimonial 

hearsay constituted a violation of the Sixth Amendment and trial counsel 

was ineffective for failing to object to it. 

The PCRA court rejected Appellant’s argument, finding that the 

testimony was not hearsay because it was not offered for the truth of the 

matter asserted. PCRA Court Opinion, 3/2/12, at 8. Instead the testimony 

was offered to establish motive and intent. Id. at 8-9. As the 

Commonwealth suggests:

The evidence showed the state of mind of the declarant, Ty 

Grabowski, was to “bait” a pedophile. Evidence offered to 

establish the state of mind of the declarant is not hearsay. The 

evidence also showed and explained the state of mind and 

actions of the hearer, Trooper [Roche], which was to take over 

the role of “shylittlemissy” and catch the pedophile that 

Grabowski had lured in. Evidence offered to establish the state 

of mind of the hearer is not hearsay.

Commonwealth Brief, at 12-13 (citations omitted). 

Appellant’s argument is grounded on his contention that the trooper’s 

testimony constituted testimonial hearsay while acknowledging the Sixth 

Amendment would not be violated if Grabowski’s statements to the trooper 

were non-testimonial. He recognizes that statements are non-testimonial if 

made “in the course of police interrogation under circumstances objectively 

indicating that the primary purpose of the interrogation is to enable police 

assistance to meet an ongoing emergency.” Appellant’s Brief at 42 (quoting 

Davis v. Washington, 547 U.S. 813, 822 (2006)). “They are testimonial 

when the circumstances objectively indicate that there is no such ongoing 
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emergency, and that the primary purpose of the interrogation is to establish 

or prove past events potentially relevant to later criminal prosecution.” Id. 

(quoting Davis, 547 U.S. at 822.)

Appellant contends Grabowski did not ask police to meet with him 

regarding an ongoing emergency. Id. The Commonwealth counters that 

“implicit in Davis is the idea that because the prospect of fabrication in 

statements given for the primary purpose of resolving [an] emergency is 

presumably significantly diminished, the Confrontation Clause does not 

require such statements to be subject to the crucible of cross-examination.” 

Commonwealth’s Brief at 13-14 (quoting Michigan v. Bryant, 131 S.Ct. 

1143, 1157 (2011)). Further, the Supreme Court in Bryant “cautioned that 

the scope of an ‘ongoing emergency’ should not be narrowly drawn.” Id. at 

14. The Commonwealth suggests that:

Grabowski, a private citizen, took it upon himself to create a 

“chat room” persona (“shylittlemissy”) to troll the internet for 

pedophiles. In that capacity, “shylittlemissy” began a sexually 

charged e-mail correspondence with someone calling himself 

“jake thomas” on a Hotmail account—fatdiggity@hotmail.com. 

Grabowski did not know who or where “jake thomas” was. All he 

knew was that he thought he had an internet predator “nibbling 

on the bait” and needed to hand the whole thing over to the 

police. Viewed objectively, being in contact with an apparent 

internet predator seeking contact with an underage girl would 

feel like an ongoing emergency to a reasonable person, the kind 

of threat that endangered the public as a whole. Who else was 

“jake thomas” reaching out to, and how? Grabowski did not 

contact the police to provide testimony against [Appellant]—he 

did not even know who [Appellant] was. He contacted the police 

because he needed help to resolve an ongoing emergency. He 

was in contact with an internet predator and was in way over his 

head.
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Commonwealth’s Brief at 14-15. 

We agree with the PCRA court that the testimony did not constitute 

hearsay. Even if it did, it was non-testimonial in nature under the 

circumstances of this case. Further, even if it could be considered 

testimonial hearsay, we cannot see how Appellant was prejudiced by the 

testimony. As the Commonwealth contends, in the taped statement given to 

Trooper Roche, Appellant admitted he believed he was communicating with 

an underage female for purpose of eventually having sexual contact with 

her. Commonwealth’s Brief at 15. Appellant’s claim under Paragraph 5-B of 

his PCRA petition fails.

Appellant also claims the PCRA court erred by denying relief under 

Paragraph 5-D of his PCRA petition in which he alleged trial counsel 

ineffectiveness for failing to raise the defense of collateral estoppel after the 

Allegheny County case was dismissed. Initially, we reject Appellant’s 

contention that dismissal of the case constituted a “final judgment on the 

merits.” As the PCRA court recognized, Appellant was charged in Allegheny 

County with one count of Solicitation of Involuntary Deviate Sexual 

Intercourse (“IDSI”) and four counts of Criminal Attempt (Unlawful Contact 

with a Minor, Rape, IDSI, and Statutory Rape). PCRA Court Opinion, 3/2/12, 
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at 9.5 Appellant filed a motion for writ of habeas corpus and the court 

dismissed the charges without prejudice on May 27, 2004, more than two 

months after Appellant was sentenced in Fulton County. As the PCRA court 

recognized:

“In Pennsylvania, double jeopardy does not attach and the 

constitutional prohibition against double jeopardy has no 

application until a defendant stands before a tribunal where guilt 

or innocence will be determined.” Commonwealth v. Hunter, 

674 A.2d 306 (Pa. Super. 1996). [Appellant’s] Allegheny County 

charges were dismissed pursuant to a pretrial motion. He did 

not stand trial and the Commonwealth was not barred from refiling those same charges. Jeopardy did not attach and therefore 

double jeopardy could not have attached. Further we note that 

the charges in Allegheny County were substantially different 

from the [possession of child pornography] charges filed in 

Fulton County.

Id. at 10. Appellant’s claim of PCRA court error based on Paragraph 5-D of 

his PCRA petition fails for lack of arguable merit.

In his seventh issue, Appellant argues trial counsel ineffectiveness for 

failure to present an expert witness to rebut the testimony of the 

Commonwealth’s expert. The Commonwealth’s expert testified about 

application of the “Tanner staging scale” used to determine the age of 

____________________________________________

5 Appellant defeats his own collateral estoppel argument in the first prong of 

the four-pronged definition he outlines in his brief, i.e., that an issue decided 

in a prior action is identical to one presented in a later action. Appellant’s 

Brief at 44. Even if the Allegheny County action could be considered “a later 

action,” it cannot be said that any issue from Allegheny County, with charges 

of Solicitation of IDSI and Criminal Attempt, was addressed in the Fulton 

County action involving charges of Possession of Child Pornography.
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children depicted in Appellant’s photographs based on physical development. 

Appellant’s argument lacks reasonable merit. As the PCRA court aptly 

noted, “Trial counsel need not introduce expert testimony on his client’s 

behalf if he is able to effectively cross-examine prosecution witnesses and 

elicit helpful testimony.” PCRA Court Opinion, 3/2/12, at 11 (citing 

Commonwealth v. Marinelli, 810 A.2d 1257, 1269 (Pa. Super. 2002)). 

The PCRA court explained:

After reviewing the transcripts, we find that trial counsel 

effectively cross-examined the expert on his methods and use of 

Tanner. Trial counsel cross-examined [Commonwealth expert] 

Dr. Greenwald on his understanding of the Tanner scale and the 

conclusiveness of his results. In fact, arguments contained in 

Dr. Rosenbloom’s affidavit attached to the Offer of Proof were 

brought out during cross-examination of Dr. Greenwald by trial 

counsel. For example, Dr. Rosenbloom asserts that the Tanner 

scale is not intended for determining age, but rather, it was 

intended for use in determining stages of development. This is 

evident in trial counsel’s questioning on pages 93 and 94 of the 

transcript. Trial counsel elicits testimony wherein Dr. Greenwald 

admits that the scale isn’t intended for determining exact 

chronological age. 

Pursuant to Marinelli, trial counsel effectively cross-examined 

the Commonwealth’s expert and was not required to produce a 

rebuttal expert.

PCRA Court Opinion, 3/2/12, at 11.6 Because Appellant’s claims relating to 

Paragraph 6 of his PCRA petition lack arguable merit, Appellant is not 

entitled to relief. 

____________________________________________

6 The PCRA court also noted that trial counsel did contact an expert in the 

field of forensic evaluation of computer generated child pornography and 

(Footnote Continued Next Page)
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Next, Appellant claims PCRA court error for rejecting claims in 

Paragraph 7 of his PCRA petition. In Paragraph 7, Appellant alleged that 

trial counsel was ineffective for failing to challenge on direct appeal the trial 

court’s discounting of expert testimony regarding four of the pictures upon 

which Appellant was convicted. Appellant contends the Commonwealth’s 

expert testified it was not possible to state beyond a reasonable degree of 

medical certainty that the subjects in those pictures were under the age of 

18. 

It is of no consequence that the trial court convicted Appellant on 

possession charges for those four photographs absent expert testimony 

establishing the individuals depicted were under the age of 18. While it is 

clear that competent expert testimony is sufficient to establish the age of a 

person alleged to be a child under the 18 years of age under 18 Pa.C.S.A. 

§ 6312(e), it is equally true that expert testimony is not required for the 

court to establish the age of the children in photographs. Commonwealth 

v. Robertson-Dewar, 829 A.2d 1207 (Pa. Super. 2003). The PCRA court 

noted that “[i]n reaching its verdict, the [c]ourt considered all the evidence 

(Footnote Continued) _______________________

sent him evidence from this case to evaluate. The expert advised counsel 

that he was familiar with some of the images from Appellant’s case by virtue 

of his involvement with other cases and was aware that some of the 

images—and the identity and ages of the children depicted in those images—

had been established conclusively as images of actual underage children. 

Knowing the images portrayed actual underage children, trial counsel was 

prohibited by the Rules of Professional Conduct from offering evidence that 

he knew to be false. PCRA Court Opinion, 3/2/12, at 11. 
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presented at trial, including the testimony of the expert. The [c]ourt was 

not bound by the expert’s testimony and found additional evidence 

supporting a finding that the individuals in the pictures were indeed 

children.” PCRA Court Opinion, 3/2/12, at 12. Appellant’s challenge based 

on Paragraph 7 of his PCRA petition lacks arguable merit.

In his ninth and final issue raised in this appeal, Appellant claims the 

PCRA court erred by denying his request to amend his PCRA petition to 

allege ineffectiveness of PCRA counsel. Specifically, Appellant contends 

PCRA counsel was ineffective for failing to question trial counsel about his 

“strategic decision making” with respect to paragraphs 5-A, 5-B, 5-D and 7 

of Appellant’s PCRA petition. Appellant’s Brief at 56-57. 

As the PCRA court recognized, there is no absolute right to amend a 

PCRA petition. PCRA Court Opinion, 5/13/14, at 3 (citing Commonwealth 

v. Williams, 732 A.2d 1167, 1191 (Pa. 1999)). “Leave to amend a PCRA 

petition lies within the sound discretion of the [c]ourt and should be granted 

to achieve substantial justice.” Id. More importantly, the issues Appellant 

wished to raise in an amended PCRA petition are issues we have already 

determined to lack arguable merit. There would be nothing accomplished by 

permitting Appellant to amend his PCRA petition to allege PCRA counsel 

ineffectiveness for failing to question trial counsel about issues on which we 

have already ruled. “In determining a layered claim of ineffectiveness, the 

critical inquiry is whether the first attorney that the defendant asserts was 
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ineffective did, in fact, render ineffective assistance of counsel. If that 

attorney was effective, then subsequent counsel cannot be deemed 

ineffective for failing to raise the underlying issue.” Commonwealth v. 

Rykard, 55 A.3d 1177, 1190 (Pa. Super. 2012) (quoting Commonwealth 

v. Burkett, 5 A.3d 1260, 1270 (Pa. Super. 2010)).

We find that the ruling of the PCRA court is supported by the record 

and is free of legal error. Therefore, we affirm the PCRA court’s February 

25, 2014 order.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/16/2015