J-S21043-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GEOFFREY ELKINGTON,
Appellant No. 2926 EDA 2014
Appeal from the PCRA Order September 23, 2014
in the Court of Common Pleas of Chester County
Criminal Division at No.: CP-15-CR-0001376-2009
BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED APRIL 08, 2015
Appellant, Geoffrey Elkington, appeals from the order denying his
counseled first petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541–9546. Appellant claims ineffective
assistance of trial counsel. We conclude that under our standard of review
Appellant has failed to prove his trial counsel was ineffective. Accordingly,
we affirm.
On April 14, 2010, a jury convicted Appellant of nine counts of
involuntary deviate sexual intercourse with a child; one count of attempted
rape of a child; five counts of aggravated indecent assault (complainant less
than thirteen years old); two counts of indecent assault; two counts of
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*
Retired Senior Judge assigned to the Superior Court.
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corruption of minors; and eleven counts of sexual abuse of children
(possession of child pornography). (See Verdict Slip, 4/14/10).
We summarize the facts and procedural history of this case most
pertinent to the issue on appeal. Appellant’s conviction arose out of a
course of conduct with the two minor children, then ages six and four, of a
girlfriend he met online. With the consent and cooperation of the girlfriend 1
Appellant began taking sexually provocative photographs of the daughters in
the nude, and in lingerie; he eventually proceeded to engage in numerous
sexual acts with them, also photographed, particularly with the older
daughter. (See PCRA Court Opinion, 9/23/14, at 1-2).
Of specific interest for purposes of this appeal, before trial the
Commonwealth obtained a court order permitting it to photograph
Appellant’s feet. (See id. at 3). However, the Commonwealth never
followed up.
The crux of Appellant’s ineffectiveness claim is that his trial counsel
should have introduced photographs of his feet, purportedly to prove that he
did not have a “deformed” toe like the man in a photograph presented (and
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1
The former girlfriend, Geraldine Alexinas, pleaded guilty to related charges
and was sentenced to not less than fifteen nor more than thirty years’
incarceration in a state correctional institution. (See N.T. Trial, 4/13/10, at
69).
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later admitted into evidence) at trial.2 (Appellant’s Brief, at 4, 5). The man
in the photograph was shown to be having sexual contact (essentially
fellatio) with one of the minor victims.
The man was naked, but his face was not visible. (See id. at 6; PCRA
Ct. Op. at 2; Appellant’s Rule 1925(b) statement, 11/3/14). Ms. Alexinas,
the girlfriend/mother, testified that Appellant instructed her not to show his
face in the photographs. (See N.T. Trial, 4/13/10, at 42). Nevertheless,
two Commonwealth witnesses, Ms. Alexinas and Appellant’s ex-wife, Carolee
Gifford, identified the man in the photographs as Appellant. (See PCRA Ct.
Op., at 2).
Additionally, Detective Roy Calarese of the Chester County District
Attorney’s Office, qualified as an expert in the field of computer forensics
and data recovery, testified that he was able to retrieve email conversations
between Appellant and Ms. Alexinas on Appellant’s computer. (See N.T.
Trial, 4/14/10, at 23-85). The emails included explicit, graphic discussions
about Appellant having, and having had, oral sex with Ms. Alexinas’ older
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2
Neither the photograph showing the allegedly “deformed toe”, nor any of
the other photographs admitted at trial or mentioned in the briefs or PCRA
court opinion, is included in the record before us. Accordingly, we have no
visual frame of reference for our review of the arguments involving the
photographs, and rely exclusively on the verbal descriptions included in the
record. “[T]he ultimate responsibility of ensuring that the transmitted
record is complete rests squarely upon the appellant and not upon the
appellate courts.” Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super.
2006), appeal denied, 916 A.2d 632 (Pa. 2007) (citing Pa.R.A.P. 1931).
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daughter. Detective Calarese also retrieved child pornography, including
photographs of the victims in this case, and a montage of the child
pornography on Appellant’s equipment.
After a colloquy with the trial court, and conferring with counsel,
Appellant exercised his constitutional right not to testify at trial. (See id. at
95-98). Appellant also confirmed his agreement with counsel’s decision not
to present any other witnesses or evidence. (See id. at 98).
After his conviction, the trial court determined Appellant to be a
sexually violent predator. (See Notice of Registration Requirements,
12/16/10). On the same day, December 16, 2010, the court sentenced
Appellant to an aggregate term of not less than twenty-five nor more than
fifty years’ incarceration in a state correctional institution.
Appellant filed a post-trial motion, which the court denied. (See
Order, 3/21/11). On direct appeal, this Court affirmed the judgment of
sentence in an unpublished memorandum. (See Commonwealth v. G.E.,
55 A.3d 144 (Pa. Super. 2012)). Our Supreme Court denied allowance of
appeal, on June 19, 2013. (See Commonwealth v. Elkington, 69 A.3d
242 (Pa. 2013)). Appellant timely filed a pro se PCRA petition, on
September 11, 2013. The PCRA court appointed counsel, who filed an
amended petition.
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The PCRA court held a hearing on June 2, 2014.3 The “deformed toe”
ineffectiveness question in this appeal was the only issue addressed at the
hearing.4 (See N.T. PCRA Hearing, 6/02/14, at 11). On September 23,
2014, the court issued an order, with an opinion, denying the amended
petition. On October 17, 2014 Appellant filed a timely notice of appeal.5
Appellant raises one question for our review.
Whether trial counsel was ineffective for failing to
introduce photographs of Appellant’s feet to prove he did not
have the same deformed toe as the man identified in a
photograph that was having sex with a victim in the case?
(Appellant’s Brief, at 4).
Appellant argues that the Commonwealth witnesses who identified him
as the man in the photograph did so on the basis that he had the same
“deformed” toe as the man in the picture. (Appellant’s Brief, at 5, 6). He
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3
To avoid confusion, we note that the date of the hearing transcript, May 2,
2014, is inconsistent with the docket entries, and the date noted in the PCRA
court opinion. We accept the date listed in the docket and confirmed by the
court. Moreover, we note that the date discrepancy would have no impact
on any of the facts or issues material to the appeal, or to our disposition.
4
Counsel withdrew another claim (involving alleged discrepancies in date
and time testimony). The PCRA court also permitted Appellant to identify
various items he alleged were not provided in discovery. (See N.T. PCRA
Hearing, 6/02/14, at 4). The Commonwealth provided certain materials that
day. The court asked Appellant’s counsel if any of the remaining requested
items were relevant. Counsel replied no. (See id. at 7).
5
Appellant timely filed a statement of errors, on November 3, 2014. See
Pa.R.A.P. 1925(b). The PCRA court filed a Rule 1925(a) opinion, referencing
its order and opinion of September 23, 2014. See Pa.R.A.P. 1925(a).
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maintains that “[t]rial counsel was ineffective for not introducing
photographs of the Appellant’s feet to prove he did not have a disfigured
toe.” (Id. at 5). We disagree.
Our standard and scope of review for the denial of a PCRA
petition is well-settled.
[A]n appellate court reviews the PCRA court’s
findings of fact to determine whether they are supported
by the record, and reviews its conclusions of law to
determine whether they are free from legal error. The
scope of review is limited to the findings of the PCRA court
and the evidence of record, viewed in the light most
favorable to the prevailing party at the trial level.
Commonwealth v. Spotz, ––– Pa. ––––, 84 A.3d 294, 311
(2014) (citations and internal quotation marks omitted).
To establish trial counsel’s ineffectiveness, a
petitioner must demonstrate: (1) the underlying claim has
arguable merit; (2) counsel had no reasonable basis for
the course of action or inaction chosen; and (3) counsel’s
action or inaction prejudiced the petitioner. See
Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L.Ed.2d 674 (1984); Commonwealth v. Pierce,
515 Pa. 153, 527 A.2d 973 (1987).
Id. at 303 n. 3. Furthermore,
[A] PCRA petitioner will be granted relief only when
he proves, by a preponderance of the evidence, that his
conviction or sentence resulted from the ineffective
assistance of counsel which, in the circumstances of the
particular case, 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).
Counsel is presumed effective, and to rebut that
presumption, the PCRA petitioner must demonstrate that
counsel’s performance was deficient and that such
deficiency prejudiced him.
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Id. at 311–12 (most case citations, internal quotation marks and
other punctuation omitted). “Counsel’s assistance is deemed
constitutionally effective once this Court determines that the
defendant has not established any one of the prongs of the
ineffectiveness test.” Commonwealth v. Rolan, 964 A.2d 398,
406 (Pa. Super. 2008) (citations and internal quotation marks
omitted) (emphasis in original). Additionally,
* * *
This Court analyzes PCRA appeals “in the light most
favorable to the prevailing party at the PCRA level.”
[Commonwealth v.] Rykard, [55 A.3d 1177,] 1183 [(Pa.
Super. 2012), appeal denied, 619 Pa. 714, 64 A.3d 631
(2013) (footnote omitted).] (emphasis added); see also
Spotz, supra at 311 (“The scope of review is limited to
the findings of the PCRA court and the evidence of record,
viewed in the light most favorable to the prevailing
party at the trial level.”) (emphasis added).
Our Supreme Court has explained:
As a general and practical matter, it is more difficult
for a defendant to prevail on a claim litigated through the
lens of counsel ineffectiveness, rather than as a preserved
claim of trial court error. This Court has addressed the
difference as follows:
[A] defendant [raising a claim of ineffective
assistance of counsel] is required to show actual prejudice;
that is, that counsel’s ineffectiveness was of such
magnitude that it ‘could have reasonably had an adverse
effect on the outcome of the proceedings.’ Pierce, 515
Pa. at 162, 527 A.2d at 977. This standard is different
from the harmless error analysis that is typically applied
when determining whether the trial court erred in taking or
failing to take certain action. The harmless error standard,
as set forth by this Court in Commonwealth v. Story,
476 Pa. [391], 409, 383 A.2d [155], 164 [ (1978) ]
(citations omitted), states that “[w]henever there is a
‘reasonable possibility’ that an error ‘might have
contributed to the conviction,’ the error is not harmless.”
This standard, which places the burden on the
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Commonwealth to show that the error did not contribute to
the verdict beyond a reasonable doubt, is a lesser standard
than the Pierce prejudice standard, which requires the
defendant to show that counsel’s conduct had an actual
adverse effect on the outcome of the proceedings. This
distinction appropriately arises from the difference
between a direct attack on error occurring at trial and a
collateral attack on the stewardship of counsel. In a
collateral attack, we first presume that counsel is effective,
and that not every error by counsel can or will result in a
constitutional violation of a defendant’s Sixth Amendment
right to counsel. Pierce, supra.
Commonwealth v. Freeland, 106 A.3d 768, 775-76 (Pa. Super. 2014)
(emphasis in original; some citations omitted). “The PCRA court’s credibility
determinations, when supported by the record, are binding on this Court.
However, this Court applies a de novo standard of review to the PCRA
court’s legal conclusions.” Commonwealth v. Spotz, 18 A.3d 244,
259 (Pa. 2011) (citations omitted). With these legal principles in mind, we
review Appellant’s claim.
Preliminarily, we note that Appellant’s issue and his argument
mischaracterize the evidence of record. First, Appellant merely makes the
bald assertion that “the foot of the man in the photograph had a deformed
toe.” (Appellant’s Brief, at 6). He fails to identify where in the record the
evidence establishes that the man in the photograph had a “deformed” or
“disfigured” toe. Therefore, he fails to comply with Pennsylvania Rule of
Appellate Procedure 2119 which in pertinent part provides:
Reference to record. If reference is made to the . . .
evidence, . . . or any other matter appearing in the record, the
argument must set forth, in immediate connection therewith, or
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in a footnote thereto, a reference to the place in the record
where the matter referred to appears (see Rule 2132)
(references in briefs to the record).
Pa.R.A.P. 2119(c).
Furthermore, on independent review, we find no support in the record
for the claim that the identification of Appellant as the faceless man in the
photographs presented to the witnesses was based on a “deformed” toe.
(Appellant’s Brief, at 5, 6).
To the contrary, our review confirms that Ms. Alexinas, Appellant’s
former girlfriend and the mother of the victims, identified him as the man in
the photograph, “[b]ecause of his leg and the way his penis is.” (N.T. Trial,
4/13/10, at 71). Similarly, Carolee Gifford, Appellant’s ex-wife, confirmed
her identification of Appellant as the man in the photograph as follows: “I
recognize the legs and the genitalia, and it is [Appellant’s] arms and his roll
of fat.” (N.T. Trial, 4/14/10, at 14). On cross-examination, Ms. Gifford
continued to maintain the basis of her identification, as follows:
[Defense Counsel:] You indicated that one of the
things that identified that picture is [Appellant’s] roll of fat, I
think you said?
[Ms. Gifford:] There was a roll of fat; yes.
Q. But you will agree with me that there is no face in
these pictures?
A. Yes.
Q. So you’re identifying it [sic] based on the legs
looking like what you remember your husband’s legs looked like?
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A. And genitalia.
Q. Right.
(Id. at 17).
The only discussion about Appellant’s toes appears to be during further
cross-examination, when the following exchange occurred:
Q. When the detectives came to you to interview you,
they showed you ─ did they ask you anything about your ex-
husband’s feet?
A. Yes.
Q. They asked you whether or not there was anything
unusual, any unusual characteristics about his feet?
A. Yes.
Q. You told the detectives you could not remember
anything unusual about his feet?
A. If that is what the record shows, that must be what I
said; yes.
Q. They asked you whether or not you recall if his
second toe was longer than the first toe. Do you remember
that?
A. Yes.
Q. And you said: I don’t know?
A. Right.
Q. [You’re] agreeing with me on that?
A. Yes.
(Id. at 19).
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Therefore, the only pertinent evidence of record tends to show that
Appellant did not have a deformed toe at all. To the contrary, the ex-wife
testified she told the police there was nothing unusual about his feet, and
did not even testify that Appellant’s second toe was longer than the “big”
toe. Furthermore, importantly, neither woman based her identification of
Appellant on the allegedly deformed toe. (See N.T. Trial, 4/13/10, at 71;
N.T. Trial, 4/14/10, at 14). Appellant’s claim lacks any foundation.
As a final point, we note that the PCRA court did not find Appellant
credible. (See PCRA Ct. Op., at 5). We defer to the PCRA court’s credibility
determinations which are supported by the record. Appellant’s claim has no
arguable merit.
The PCRA court correctly noted that it need find only one prong which
Appellant failed to meet to deny his ineffectiveness claim. (See id. at 5);
see also Rolan, supra at 406.
Nevertheless, we note for completeness that Appellant failed to prove
that trial counsel had no reasonable basis for her strategic decision not to
pursue the “deformed” toe assertion. To the contrary, at the PCRA hearing,
counsel gave her assessment that in view of the eyewitness testimony
(which included two identifications) and the forensic evidence linking
Appellant to the acts at issue, she didn’t think it was a good strategy to
proceed with a picture of the foot. (See N.T. PCRA Hearing, 6/02/14, at
29).
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“Where matters of strategy and tactics are concerned, a finding that a
chosen strategy lacked a reasonable basis is not warranted unless it can be
concluded that an alternative not chosen offered a potential for success
substantially greater than the course actually pursued.” Spotz, supra 84
A.3d at 311-12 (quotation marks, other punctuation and citation omitted).
Here, Appellant baldly asserts that trial counsel did not have a
reasonable basis for not obtaining a photograph of his foot. (See Appellant’s
Brief, at 7). This is unsupported by reference to controlling authority, does
not refute trial counsel’s articulated strategy, and offers no argument to
establish that Appellant’s alternative offered the potential for substantially
greater success. Appellant does not refute counsel’s reasonable basis for
the strategy she selected.
Finally, Appellant fails to prove prejudice. “To demonstrate prejudice,
the petitioner must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceedings would have
been different. [A] reasonable probability is a probability that is sufficient to
undermine confidence in the outcome of the proceeding.” Spotz, supra 84
A.3d at 312.
Here, Appellant’s counsel merely surmised at the PCRA hearing that
taking a photograph of the feet might have helped and would not have hurt
the case: “No harm, no foul kind of thing.” (N.T. PCRA Hearing, 6/02/14, at
39). This amounts to no more than sheer speculation. Mere speculation
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that a course of action proposed in hindsight would have had little
(presumed) downside is insufficient to overcome the presumption of
effectiveness, or to prove prejudice. See Spotz, supra at 84 A.3d 311-12;
Rolan, supra at 406.
Furthermore, Appellant argues on appeal that the PCRA court noted
that the Commonwealth did not have “a compelling case.” (Appellant’s
Brief, at 7-8). Our review of Appellant’s citation confirms that the
assessment was not that of the court, but of PCRA counsel. (See PCRA Ct.
Op., at 3). Appellant fails to prove prejudice. His claim merits no relief.
Our reasoning differs from that of the PCRA court. “However, we may
affirm the PCRA court’s order on any basis.” Commonwealth v. Reed, 107
A.3d 137, 144 (Pa. Super. 2014) (citation omitted).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/8/2015
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