J-S96042-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

FRED AUGUSTA MITCHELL

Appellant No. 1060 WDA 2016

Appeal from the PCRA Order Dated July 13, 2016

In the Court of Common Pleas of Fayette County

Criminal Division at No(s): CP-26-CR-0001539-2013

BEFORE: BENDER, P.J.E., BOWES, J., and SOLANO, J.

MEMORANDUM BY SOLANO, J.: FILED APRIL 05, 2017

Appellant Fred Augusta Mitchell appeals from the order denying his 

petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 

Pa.C.S. §§ 9541-9546. We affirm.

The following facts and procedural history are set forth in the PCRA 

court’s opinion. 

On January 8, 2014, a three-day jury trial commenced 

against Appellant for charges of rape by forcible 

compulsion, rape of a child, involuntary deviate sexual 

intercourse (IDSI) by forcible compulsion, IDSI with a 

complainant who is less than sixteen years of age, 

aggravated indecent assault by forcible compulsion, 

aggravated indecent assault against a complainant who is 

less than thirteen years of age, indecent assault by forcible 

compulsion, and indecent assault against a complainant 

who is less than thirteen years of age. At trial, the 

Commonwealth presented testimony by the minor victim, 

her mother, her paternal grandmother, a forensic 

interviewer, and an expert in pediatric child abuse. The 

Commonwealth also introduced into evidence a video 
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recording of the interview between the minor victim and 

the forensic interviewer. After the Commonwealth rested, 

two defense witnesses testified.

On January 10, 2014, the jury found Appellant guilty of 

all charged offenses. Thereafter, the Commonwealth filed 

a notice of intention to seek a mandatory minimum 

sentence pursuant to 42 Pa.C.S. § 9718(a). On April 3, 

2014, the trial court held a sentencing hearing. The court 

imposed an aggregate sentence of forty (40) to eighty (80) 

years of imprisonment. Additionally, the court found 

Appellant to be a sexually violent predator (SVP) and 

required him to register for life pursuant to Pennsylvania’s 

Sexual Offender Registration and Notification Act (SORNA).

Appellant filed a timely appeal to the appellate court. 

On January 22, 2015, the Superior Court affirmed the 

convictions and denied all five of Appellant’s concise 

issues. However, the Superior Court addressed Appellant’s 

sentence sua sponte. The Superior Court vacated 

Appellant’s sentence and remanded to this Court, 

instructing that Appellant be resentenced without 

considering the mandatory minimum at Section 9718.

This Court resentenced Appellant on March 6, 2015, 

pursuant to the Superior Court’s instructions and without 

contemplating the mandatory minimum at Section 9718. 

Appellant was sentenced to a term of imprisonment of not 

less than thirty-nine (39) years nor more than seventyeight (78) years. Appellant filed a post-sentence 

modification of sentence; it was denied on March 11, 2015. 

Appellant again filed a timely appeal to the Superior Court. 

Since “Appellant merely reproduce[d] verbatim the 

arguments presented in his prior appellate brief[, the 

Superior Court did] not consider those arguments a second 

time.” Commonwealth v. Mitchell, 438 WDA 2015, 

unpublished memorandum at 7.

On December 28, 2015, Appellant filed a pro se Petition 

for Post-Conviction Collateral Relief. On January 4, 2016, 

this Court appointed James V. Natale, Esquire, who 

subsequently filed an amended petition. Appellant 

asserted his counsel from the Fayette County Public 

Defender’s Office was ineffective for failing to request a 

court-appointed psychological expert for his hearing to 
J-S96042-16

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determine whether he was a SVP and ineffective for 

waiting until the day of trial to view video evidence of the 

minor victim’s interview with the forensic interviewer. A 

hearing on the PCRA petition was held on July 12, 2016.

Appellant testified at the PCRA hearing. On the issue of 

the determination of his status as a SVP, Appellant 

testified that:

(1) He was not aware of the consequences of being 

deemed a SVP;

(2) He was not aware of his rights during a SVP 

hearing;

(3) He did not know if he requested his attorney to 

have his own expert at the SVP hearing;

(4) A SVP hearing was not held; and

(5) He did not stipulate to the conclusions from the 

expert’s report on behalf of the Commonwealth that he 

was a SVP.

Appellant also testified on the issue of his trial counsel 

being ineffective. He testified that he was not aware of the 

drawings made by the minor victim and the videotaped 

statements of the minor victim until the day of trial. 

However, he did not know when his trial counsel became 

aware and viewed this evidence.

On the other hand, the Commonwealth presented 

testimony from Appellant’s trial counsel, Attorney Deanna 

Liptak, Esquire. Attorney Liptak stated that she received 

and personally reviewed the file a week before trial, 

including drawings attached to the discovery packet. She 

also testified that while she viewed the videotape of the 

minor victim’s interview the morning of trial, the video was 

entirely consistent with the discovery she previously 

reviewed and corroborated the other evidence presented 

at trial by the Commonwealth.

The Commonwealth also presented testimony from 

Appellant’s sentencing counsel, Attorney Charity Grimm 

Krupa, Esquire. Attorney Krupa testified that a full SVP 

hearing at the time of sentencing did not take place 

because Appellant narrowly stipulated, without agreeing to 
J-S96042-16

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the conclusion that Appellant was a SVP, that the 

Commonwealth’s expert would testify to the contents of 

his report. Attorney Krupa further testified that she would 

have told Appellant that he had a right to call an expert 

witness on his behalf. After the hearing, this Court denied 

Appellant’s Amended PCRA Petition.

PCRA Ct. Op., 9/9/16, at 2-5 (footnotes omitted). The PCRA court denied 

Appellant’s petition on July 13, 2016. Appellant filed a timely Notice of 

Appeal.

In this appeal, Appellant raises the following issues:

Whether the PCRA court erred in not finding defense 

counsel ineffective for failing to inform defendant of his 

right to a court-appointed psychological expert?

Whether the PCRA court erred in not finding defense 

counsel ineffective for failing to watch the alleged victim’s 

videotaped statement until the day of the trial? 

Appellant’s Brief at 3.

In reviewing the propriety of an order granting or denying PCRA relief, 

this Court is limited to ascertaining whether the evidence supports the 

determination of the PCRA court and whether the ruling is free of legal error. 

Commonwealth v. Payne, 794 A.2d 902, 905 (Pa. Super.), appeal 

denied, 808 A.2d 571 (Pa. 2002). This Court defers to the findings of the 

PCRA court, which will not be disturbed unless they have no support in the 

certified record. Id. “Further, the PCRA court’s credibility determinations are 

binding on this Court, where there is record support for those 

determinations.” Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. 

Super.), appeal denied, 9 A.3d 626 (Pa. 2010).
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To obtain relief under the PCRA premised on a claim that counsel was 

ineffective, a petitioner must demonstrate that: “(1) the underlying claim is 

of arguable merit; (2) counsel had no reasonable strategic basis for his or 

her action or inaction; and (3) petitioner was prejudiced by counsel’s act or 

omission.” Payne, 794 A.2d at 905-06. A claim of ineffectiveness will be 

denied if the petitioner’s evidence fails to meet any of these prongs. 

Commonwealth v. Keaton, 45 A.3d 1050, 1061 (Pa. 2012).

After careful review of the record, the parties’ briefs, and the opinion 

of the Honorable Joseph M. George, Jr., we affirm on the basis of the PCRA 

court’s opinion. See PCRA Ct. Op. at 7-9 (holding (1) Appellant failed to 

prove arguable merit of claim that his counsel failed to inform him of his 

right to a court-appointed psychological expert, where counsel testified 

credibly at PCRA hearing that she informed Appellant of that right and 

Appellant was uncertain about their discussion; and (2) Appellant failed to 

prove prejudice with respect to claim that counsel did not watch videotaped 

interview of victim until the morning of trial, where video was entirely 

consistent with other evidence). Having determined that the evidence 

supports the PCRA court’s ruling and that the ruling is free of legal error, 

see Payne, 794 A.2d at 905, we affirm the PCRA court’s order. The parties 

are instructed to attach a copy of the PCRA court’s opinion of September 9, 

2016, to all future filings that reference this Court’s decision.

Order affirmed.
J-S96042-16

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/5/2017
1 

1 42 Pa. C.S. § 9541, et seq. 

denying Appellant's Amended PORA Petition. 

Superior Court of Pennsylvania. This Opinion is in support of this Court's Order 

denied Appellant's Amended Petition, Appellant filed a direct 'appeal to the 

hearing on the petition was held on July 12, 2016. On July 13, 2016, this Court 

(PCRA).I Appellant was appointed counsel and an Amended Petition was filed. A 

Post-Conviction Collateral Relief pursuant to the Post-Conviction .Relief Act 

On December 28, 2015, Appellant, Fred Augusta Mitchell, filed a.:Prtition for 

y 

September 9, 2016 

.,r. GEORGE, J. 

OPINION 

James V. Natale, Esquire, For the Appellant 

Meghann E. Mikluscak, Esquire, Assistant District Attorney, For the 

Commonwealth 

ATTORNEYS AND LAW FIRMS. 

------------- : JUDGE JOSEPH M. GEORGE, JR. 

Appellant. 

FRED AUGUSTA MITCBELL, : NO. 1539 OF 2013 

v. 

IN THE COURT OF COMMON PLEAS OF FAYETTE COUNTY, 

PENNSYLVANIA 

COMMONWEALTH OF PENNSYLVANIA, : CRIMINAL ACTION 

Circulated 03/10/2017 02:09 PM
2 

a For a more comprehensive summary of the facts of the case, see Commonwealth v. 

Mitchell, No. 578 WDA 2014, unpublished memorandum at 2-4. 

2 18 Pa. C.S. §§ 3121(a)(l), 3121(c), 3123(a)(l), 3123(a)(7), 3125(a)(2), 3125(a)(7), 3126(a)(2), 

and 3126(a)(7), respectively. 

witnesses testified. 3 

victim and the forensic interviewer. After the Commonwealth rested, two defense 

introduced into evidence a video recording of the interview between the minor 

interviewer, and an expert in pediatric child abuse. The Commonwealth also 

testimony by the minor victim, her mother, her paternal grandmother, a forensic 

who is less than thirteen years of age.2 At trial, the Commonwealth presented 

indecent assault by forcible compulsion, and indecent assault against a complainant 

indecent assault against a complainant who is less than thirteen years of age, 

sixteen years of age, aggravated indecent assault by forcible compulsion, aggravated 

intercourse (IDSI) by forcible compulsion, IDSI with a complainant who is less than 

charges of rape by forcible compulsion, rape of a child, involuntary deviate sexual 

On January 8, 2014, a three-day jury trial commenced against Appellant for 

FACTUAL BACKGROUND 

2. Whether the PCRA Court erred in not finding defense counsel ineffective for 

failing to watch the alleged victim's videotaped statement until the day of the 

trial? 

1. Whether the PCRA Court erred in not finding defense counsel ineffective for 

failing to inform Defendant of his right to a court-appointed psychological 

expert? 

Appellant filed the following Statement of Errors Complained of on Appeal: 

CONCISE ISSUES 
This Court resentenced Appellant on March 6, 2015, pursuant to the Superior 

Court's instructions and without contemplating the mandatory minimum at Section 

9718. Appellant was sentenced to a term of imprisonment of not less than thirtynine (39) years nor more than seventy-eight (78) years. Appellant filed a postsentence modification of sentence; it was denied on March 11, 2015. Appellant 

again filed a timely appeal to the Superior Court. Since "Appellant merely 

reproduce[dJ verbatim the arguments presented in his prior appellate brief], the 

4 42 Pa. C.S. § 9799.10 et seq. 

5 See Mitchell, No. 578 WDA 2014, unpublished memorandum. 

3 

(SORNA).4 

Appellant filed a timely appeal to the appellate court. On January 22, 2015, 

the Superior Court affirmed the convictions and denied all five of Appellant's 

concise issues. However, the Superior Court addressed Appellant's sentence sua 

sponte. The Superior Court vacated Appellant's sentence and remanded to this 

Court, instructing that Appellant be resentenced without considering the 

mandatory minimum at Section 9718.5 

On January 10, 2014, the jury found Appellant guilty of all charged offenses. 

Thereafter, the Commonwealth filed a notice of intention to seek a mandatory 

minimum sentence pursuant to 42 Pa. C.S. § 9718(a). On April 3, 2014, the trial 

court held a sentencing hearing. The court imposed an aggregate sentence of forty 

(40) to eighty (80) years of imprisonment. Additionally, the court found Appellant 

to be a sexually violent predator (SVP) and required him to register for life 

pursuant to Pennsylvania's Sexual Offender Registration and Notification Act 
4 

not know when his trial counsel became aware and viewed this evidence. 

videotaped statements of the minor victim until the day of trial. However, he did 

testified that he was not aware of the drawings made by. the minor victim and the 

Appellant also testified on the issue of his trial counsel being ineffective. He 

(5) He did not stipulate to the conclusions from the expert's report on 

behalf of the Commonwealth that he was a SVP. 

(4) A SVP hearing was not held; and 

(3) He did not know if he requested his attorney to have his own expert at 

the SVP hearing; 

(2) He was not aware of his rights during a SVP hearing; 

(1) He was not aware of the consequences of being deemed a SVP; 

of his status as a SVP, Appellant testified that: 

Appellant testified at the PCRA hearing. On the issue of the determination 

the PORA petition was held on July 12, 2016. 

evidence of the minor victim's interview with the forensic interviewer. A hearing on 

whether he was a SVP and ineffective for waiting until the day of trial to view video 

to request a court-appointed psychological expert for his hearing to determine 

counsel from the Fayette County Public Defender's Office was ineffective for failing 

Esquire, who subsequently filed an amended petition. Appellant asserted his 

Collateral Relief. On January 4, 2016, this Court appointed James V. Natale, 

On December 28, 2015, Appellant filed a pro se Petition for Post-Conviction 

v. Mitchell, 438 WDA 2015, unpublished memorandum at 7. 

Superior Court did] not consider those arguments a second time." Commonwealth 
5 

6 A review of the April 3, 2014 sentencing transcript corroborates Attorney Krupa's 

testimony on this point. 

· reviewing court pays great deference to the findings of the PCRA court. 

Commonwealth v. Johnson, 600 Pa. 329, 345, 966 A.2d 523, 532 (2009). The 

the PCRA court are supported by the record and free from legal error. 

appellate court standard of review is limited to determining whether the findings of 

Appellant appeals from this Court's Order denying his PCRA petition. The 

DISCUSSION 

Appellant's Amended PCRA Petition. 

right to call an expert witness on his behalf. After the hearing, this Court denied 

Attorney Krupa further testified that she would have told Appellant that he had a 

that the Commonwealth's expert would testify to the contents of his report. 6 

narrowly stipulated, without agreeing to the conclusion that Appellant was a SVP, 

full SVP hearing at the time of sentencing did not take place because Appellant 

counsel, Attorney Charity Grimm Krupa, Esquire. Attorney Krupa testified that a 

The Commonwealth also presented testimony from Appellant's sentencing 

evidence presented at trial by the Commonwealth. 

consistent with the discovery she previously reviewed and corroborated the other 

videotape of the minor victim's interview the morning of trial, the video was entirely 

attached to the discovery packet. She also testified that while she viewed the 

received and personally reviewed the file a week before trial, including drawings 

trial counsel, Attorney Deanna Liptak, Esquire. Attorney Liptak stated that she 

On the other hand, the Commonwealth presented testimony from Appellant's 
6 

Commonwealth v. G. Y., 63 A.3d 259, 265 (Pa. Super. 2013). Moreover, in 

conducting a review of a PCRA matter, the Superior Court considers the record in 

light most favorable to the prevailing party at the PCRA level. Commonwealth v. 

Stultz, 114 A.3d 865, 872 (Pa. Super. 2015). 

Both of Appellant's concise issues relate to counsel ineffectiveness. To be 

eligible for relief under the PCRA, a petitioner must plead and prove, by a 

preponderance of the evidence, that the challenged conviction or sentence resulted 

from ineffective assistance of counsel which so undermined the truth-determining 

process that no reliable adjudication of guilt or innocence could have taken place. 

42 Pa. C.S. § 9543(a)(2)(ii). To meet this standard, a petitioner must establish: (1) 

that the underlying claim is of arguable merit; (2) that counsel's course of conduct 

was without a reasonable basis designed to effectuate her client's interest; and (3) 

that he was prejudiced by counsel's ineffectiveness, i.e., that there is a reasonable 

probability that but for the act or omission in question the outcome of the 

proceeding would have been different. Commonwealth v. Bracey, 568 Pa. 264, 276, 

795 A.2d 935, 942 (2001). All three prongs must be satisfied and the failure to even 

meet one prong of the test would not entitle the petitioner to relief on the basis of 

ineffective assistance of counsel. Commonwealth v. Gonzalez, 858 A.2d 1219, 1222 

(Pa. Super. 2004). 

Finally, counsel is presumed to be effective unless the petitioner proves 

otherwise. Commonwealth v. Hanible, 612 Pa. 183, 205, 30 A.3d 426, 439 (2011). 

The alleged ineffectiveness must be evaluated in light of the circumstances at the 
7 

that right and whether he requested to assert that right. 

did under Curnutte. Rather, this issue was whether his counsel informed him of 

Appellant had the right to a court-appointed psychological expert; he most certainly 

We agree with the Commonwealth that the issue here was not whether 

Super. 2005). 

client at an SVP proceeding. Commonwealth v. Curnutte, 871 A.2d 839, 842 (Pa. 

counsel but then deny counsel the resources he needs to effectively represent his 

believe the legislature intended to give a defendant the right to court-appointed 

indigent individual has the right to a court-appointed expert, stating "[w]e do not 

42 Pa. C.S. § 9799.24(e)(2). Additionally, the Superior Court has ruled that an 

an opportunity to be heard, the right to call witnesses, the 

right to call expert witnesses and the right to crossexamine witnesses. In addition, the individual shall have 

the right to counsel and to have an attorney appointed to 

represent the individual if the individual cannot afford 

one. If the individual requests another expert assessment, 

the individual shall provide a copy of the expert 

assessment to the district attorney prior to the hearing. 

sexually violent offenses has certain rights at their required SVP hearing, including 

appointed psychological expert during his SVP hearing. An individual convicted of 

defense counsel ineffective for failing to inform Appellant of his right to a court· 

Appellant's first concise issue is whether the PORA court erred in not finding 

549 Pa. 450, 464, 701 A.2d 541, 547 (1997). 

time of counsel's actions rather than in hindsight. Commonwealth v. Hardcastle, 
8 

8 In his Amended Petition, Appellant requests a new trial for Attorney Krupa's alleged 

ineffectiveness in failing to inform him of his right to a court-appointed psychological 

expert. See Appellant's Amended Post Conviction Relief Act Petition, Page 3 (unnumbered). 

Should the Superior Court find merit in this claim, Appellant would not receive a new trial. 

This issue relates solely to Appellant's SVP hearing. Thus, the appropriate relief would be a 

new SVP hearing. Nevertheless, as stated above, Appellant failed to meet his burden for 

this issue. 

7 A PCRA court passes on witness credibility at PCRA hearings, and its credibility 

determinations should be provided great deference by reviewing courts. Commonwealth u. 

Johnson, 600 Pa. at 356, 966 A.2d at 539. 

Liptak was assigned the case a week before trial and reviewed the discovery at that 

the discovery that the public defender's office received well before trial. Attorney 

Everything contained in the video was outlined and entirely consistent with 

the video on the morning of trial did not prejudice Appellant. 

videotaped interview on the morning of trial. Nevertheless, her conduct of viewing 

morning of trial. Appellant is correct that Attorney Liptak first viewed the 

ineffective for failing to watch the videotaped interview of the minor victim until the 

Appellant also contends this Court erred in not finding trial counsel 

effective. Therefore, Appellant's first issue is without merit." 

Appellant was unable to prove that Attorney Krupa's conduct was anything but 

Based on Attorney Krupa's believability along with Appellant's uncertainty, 

testified that he did not know if he requested his attorney to have his own expert. 

including his right to a psychological expert on his behalf. Moreover, Appellant 

She testified that she informed Appellant prior to his sentence of his rights, 

Court at the PCRA hearing. After review, we found Attorney Krupa to be credible." 

Appellant and his sentencing counsel, Attorney Krupa, testified before this 
9 

11 Attorney Liptak's testimony and the jury trial transcript show that the video corroborated 

the minor victim's testimony. 

10 On the morning of trial, Attorney Liptak made an oral motion in limine with this Court to 

exclude the video since at that point in time she had not yet viewed the video. This Court 

denied the motion but gave the defense time prior to trial to view the video. 

9 Attorney Liptak testified that drawings made by the minor victim were attached to the 

discovery packet that she reviewed a week before trial. Finding her testimony to be 

credible, Appellant's contention in his petition that she did not view the drawings until the 

day of trial is of no merit. 

I ' l 

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BY THE 

ATTEST: 

Appellant's last concise issue is without merit. 

counsel's actions, the outcome of the trial would have been different. Accordingly, 

Appellant did not meet his burden that there was a reasonable probability but for 

Commonwealth's witnesses, would have been presented to the jury.l! Therefore, 

Even more, had the video not been shown at trial, the same evidence, via the 

unaware of, Appellant was not prejudiced.!? 

time. 9 Since the video did not contain any new information that counsel was 

. ~