Opinion
J-S01012-17 No. 991 MDA 2016
02-09-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. ERVIN REYES Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order May 24, 2016
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0001001-2014 BEFORE: GANTMAN, P.J., DUBOW, J., and MUSMANNO, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Ervin Reyes, appeals from the order entered in the Lancaster County Court of Common Pleas, which denied his first petition brought pursuant to the Post Conviction Relief Act ("PCRA"). We affirm.
In its opinion, the PCRA court fully and correctly sets forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them. We add only that Appellant timely filed a notice of appeal on June 15, 2016. On June 17, 2016, the court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely filed his concise statement on July 6, 2016.
Appellant raises the following issue for our review:
WHETHER THE [PCRA] COURT ERRED IN DENYING POST-CONVICTION RELIEF WHERE THE FAILURE OF DEFENSE COUNSEL TO DEVELOP AVAILABLE ALIBI EVIDENCE COMPELLED APPELLANT TO PLEAD GUILTY AND APPELLANT WAS PREJUDICED THEREBY?(Appellant's Brief at 4).
Our standard of review of the denial of a PCRA petition is limited to examining whether the record supports the court's determination and whether the court's decision is free of legal error. Commonwealth v. Ford , 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 A.2d 319 (2008). This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings. Commonwealth v. Boyd , 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). If the record supports a post-conviction court's credibility determination, it is binding on the appellate court. Commonwealth v. Dennis , 609 Pa. 442, 17 A.3d 297 (2011).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Jeffery D. Wright, we conclude Appellant's issue merits no relief. The PCRA court opinion comprehensively discusses and properly disposes of the questions presented. ( See PCRA Court Opinion, filed May 24, 2016, at 11-25) (finding: during guilty plea colloquy, Appellant admitted he committed sex offenses, notwithstanding his trip to New York; Appellant's current claim contradicts his police confession, in which Appellant did not mention his trip to New York and in which he also stated his daughter, victim, always told truth; relevant date of Appellant's purported alibi is from approximately December 22, 2008, to January 7, 2009; dates of alibi do not coincide with dates of offenses; discovery documents concerning Appellant's return from New York negate Appellant's supposed alibi; even if Appellant returned from New York on January 7, 2009, Appellant would have been in Lancaster and able to commit charged offenses within time period described in police reports and Affidavit of Probable Cause; plea counsel testified credibly at PCRA hearing that he had discussed dates of offenses and alibi claim with Appellant several times; plea counsel discussed with Appellant why alibi was without merit because alibi only covered first week of January 2009; on other hand, Appellant's PCRA hearing testimony was not credible; plea counsel and Appellant knew of dates of charges well in advance of guilty plea and purported discrepancy in dates did not actually mislead, prejudice, or surprise Appellant; plea counsel had reasonable basis for not further investigating or developing alibi claim, because purported alibi was meritless; plea counsel's failure to raise purported alibi caused Appellant no prejudice; Appellant lacks any evidence to support his claim of ineffective assistance of counsel beyond his bare assertion that counsel failed to pursue alibi claim; likewise, Appellant presented no evidence to show he would have elected to go to trial if plea counsel had pursued alibi claim). We accept the PCRA court's reasoning. Even though the criminal information gives a generic date for the offenses as "01/01/2009," the Commonwealth did not have to prove the offenses actually occurred on a specific date. See Commonwealth v. Einhorn , 911 A.2d 960, 978 (Pa.Super. 2006), appeal denied, 591 Pa. 723, 920 A.2d 831 (2007) (holding exact date of offense is unnecessary to provide sufficient notice, where date is not essential element of offense). Contrary to Appellant's proposition that the offense must be confined to an exact date in order for the criminal information to be valid, Rule 560 specifically allows "an allegation that [the offense] was committed on or about any date within the period fixed by the statute of limitations shall be sufficient" if the exact date of the alleged crime is unknown. See Pa.R.Crim.P. 560(B)(3).
Moreover, we observe the criminal complaint and the affidavit of probable cause refer to the date of the offense(s) as "January 2009" and "a few weeks after New Year's Day." So, Appellant can hardly claim he was misled by the criminal information, which referred to a basic offense date of "01/01/2009." See Einhorn , supra (stating variance is not fatal to indictment "unless it could mislead the defendant at trial, impairs a substantial right, or involves an element of surprise that would prejudice the defendant's efforts to prepare his defense"). Accordingly, we affirm on the basis of the PCRA court's opinion.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/9/2017
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