J-S03042-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MERRICK STEVEN KIRT DOUGLAS
Appellant No. 2131 EDA 2014
Appeal from the PCRA Order June 13, 2014
In the Court of Common Pleas of Carbon County
Criminal Division at No(s): CP-13-CR-0000289-2008
BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED APRIL 08, 2015
Merrick Steven Kirt Douglas1 appeals the order entered June 13, 2014,
in the Court of Common Pleas of Carbon County, denying him relief on his
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §
9541 et seq. In this timely, first, PCRA2 petition and appeal, Douglas claims
the PCRA court erred in determining (1) trial counsel was ineffective for
____________________________________________
1
Douglas’s name appears throughout the certified record with and without a
slash between Steven and Kirt. His name also appears as “Kirk” rather than
“Kirt”. When Douglas testified at a hearing on November 18, 2011, his
name was transcribed as “Merrick Steven Kirt Douglas”, one complete name
rather than as two names, as suggested by the use of a slash. We will refer
to him as Douglas.
2
In a prior PCRA petition, Douglas was granted nunc pro tunc relief to file a
petition for allowance of appeal to the Pennsylvania Supreme Court.
Accordingly, this petition is considered his first PCRA petition.
J-S03042-15
failing to file the requisite notice of intent to present an alibi defense, and
(2) appellate counsel was ineffective for failing to file an adequate Pa.R.A.P.
1925(b) statement in his direct appeal. After a thorough review of the
submissions by the parties, relevant law, and the certified record, we affirm
on the basis of the sound reasoning of the PCRA court’s June 13, 2014,
memorandum opinion denying Douglas relief on his PCRA petition, and its
August 4, 2014, Pa.R.A.P. 1925(a) memorandum opinion that incorporates
the June 13, 2014 decision, in toto.
Briefly, the charges against Douglas arose from an incident that took
place on July 10, 2007. After Douglas clocked out of work, he stopped to
talk to the owner’s 17-year-old daughter.3 Douglas’s time card showed he
clocked out at 3:37 p.m. After a co-worker left, Douglas picked the
daughter up, carried her downstairs, molested her and attempted to rape
her. She escaped when the family dog started barking, leading Douglas to
believe the victim’s mother had returned home. From work, he went to his
mother’s place of employment, which was approximately 25 miles, or a 30
to 40 minute drive, away.
At trial, Douglas’s mother testified he arrived at her work sometime
between 4:00 and 4:15 p.m. This testimony effectively supplied an alibi for
Douglas, given the time he clocked out of work and the uncontradicted time
____________________________________________
3
The electrical contracting business Douglas worked for was located in the
owner’s home. To use the time clock, Douglas had to go inside the home.
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it took to drive from his work to his mother’s workplace. However, Douglas
did not file a notice of alibi defense prior to trial. Accordingly, the mother’s
testimony regarding what time Douglas arrived was stricken. A jury then
acquitted Douglas of rape, but convicted him on a variety of other offenses
including attempted rape, indecent assault by forcible compulsion, and
unlawful contact with a minor. Douglas received an aggregate sentence of
six to twelve years’ incarceration.
Douglas raised six issues in his direct appeal. These issues were: (1)
trial court erred in failing to grant a mistrial after a witness referred to
Douglas’s offer to take a polygraph test, (2) the Commonwealth violated
mandatory discovery rules by failing to turn over the initial police report, (3)
the trial court erred in allowing the Commonwealth to ask leading questions,
(4) the evidence was insufficient to support the verdict, (5) the verdict was
against the weight of the evidence, and (6) trial counsel was ineffective.
The Superior Court addressed the first issue, found issues 2-5 waived, and
determined issue 6 was premature. See Commonwealth v. Douglas, 30
A.3d 525 (Pa. Super 2011) (unpublished memorandum).4 Issues 2 and 3
were waived for failure to include the issues in the Pa.R.A.P. 1925(b)
statement, issue 4 was waived for failure to develop the argument, and
issue 5 was waived for failure to preserve the claim in a post-trial motion.
____________________________________________
4
Our Supreme Court denied Douglas’s petition for allowance of appeal.
Commonwealth v. Douglas, 67 A.3d 793 (Pa. 2013)
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As noted above, in this PCRA petition, Douglas claims his trial counsel
was ineffective for failing to preserve the possibility of an alibi defense, and
direct appeal counsel was ineffective for filing a legally insufficient Pa.R.A.P.
1925(a) statement.5
Our standard of review of a trial court order granting or denying
relief under the PCRA requires us to determine whether the
decision of the PCRA court is supported by the evidence of
record and is free of legal error. “The PCRA court's findings will
not be disturbed unless there is no support for the findings in the
certified record.”
Commonwealth v. Perez, 103 A.3d 344, 347 (Pa. Super. 2014) (citation
omitted).
The Honorable Roger N. Nanovic, President Judge, has authored a
well-reasoned and comprehensive decision addressing Douglas’s claims. In
supplement of that decision, we write briefly to provide a succinct timeline
regarding the alibi defense.
Our review of the record demonstrates that prior to trial, trial counsel
had no reasonable belief in the existence of an alibi defense. In his
statement to the police, Douglas claimed he left the scene of the crime at
approximately 4:00 p.m. N.T. Trial, 12/8/2009, at 183. Trial counsel
testified at the PCRA hearing that Douglas also told him he left at
____________________________________________
5
Although only two issues were found waived pursuant to Rule 1925(b),
Douglas has included all waived issues under that argument. The PCRA
court has addressed all aspects of the claims in its comprehensive
memorandum opinion.
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approximately 4:00 p.m. N.T. PCRA Hearing, 8/13/2013, at 12. The victim
testified at trial that the incident was over and Douglas left the house at
approximately 4:00 p.m. N.T. Trial, 12/8/2009, at 103. Trial counsel
testified at the PCRA hearing that Douglas’s mother told his private
investigator that Douglas arrived at her workplace between 4:30 and 4:40
p.m. not between 4:00 and 4:15 p.m. as she testified at trial. 6 N.T. PCRA
Hearing, 8/13/2013, at 21. The 4:30 to 4:40 p.m. arrival time comports
with Douglas leaving the crime scene at approximately 4:00 p.m. with a 40-
minute drive time.7 N.T. PCRA Hearing, 8/13/2013, at 12-13. Accordingly,
trial counsel had no reason to file a notice of alibi.
In all other aspects, we rely upon the sound reasoning of the PCRA
court’s memorandum decision of June 13, 2014, as incorporated by the
PCRA court’s August 4, 2014, memorandum.
Because the PCRA court’s order denying Douglas relief is supported by
the record and is free of legal error, we affirm the order.
____________________________________________
6
The intent of calling Douglas’s mother to testify on his behalf was for her to
relate that when Douglas arrived he did not appear disheveled or bruised
and that he did not act in any way to indicate that anything extraordinary
had just occurred. After her testimony regarding Douglas’s time of arrival
was stricken, she provided the intended testimony.
7
Douglas’s mother testified it was a good “40 minute drive” between
locations. N.T. Trial, 12/8/2009, at 241. At the PCRA hearing, trial counsel
testified he determined through Google that it should take between 25-35
minutes to drive the distance. N.T. PCRA Hearing, 8/13/2013, at 21-22.
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Order affirmed. Parties are directed to attach a copy of the June 13,
2014, and August 4, 2014, decisions in the event of further proceedings.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/8/2015
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IN THE COURT OF COMMON PLEAS OF CARBON COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA,
v. No. 2 8 9-CR-2008
MERRICK STEVEN KIRK DOUGLAS,
Defendant
Jean Engler, Esquire Counsel for Commonwealth
Assistant District Attorney
Michael P. Gough, Esquire Counsel for Defendant
MEMORANDUM OPINION
Nanovic, P.J. - June 13, 2014
Before the court is Defendant's Post-Conviction Relief Act
( PCRA) 1 petition wherein the primary issue raised is whether trial
counsel was ineffective for not having discovered or presented at
trial an alibi defense. For the reasons which follow, we hold
that where counsel did not learn of facts supporting a possible
!
I1. alibi defense until the witness testified at trial, at variance
with earlier statements made by the witness and inconsistent with
I
information previously provided- .by the Defendant to both police
and defense counsel, counsel will have rendered effective
assistance.
PROCEDURAL AND FACTUAL BACKGROUND
The instant PCRA Petition filed by the Defendant, Merrick
Douglas, on May 31, 2013, collaterally attacks his convictions for
1 42 Pa.C.S.A. §§ 9541-46.
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sexually assaulting his boss's seventeen-year-old daughter. The
facts of this case occurred in 2007 when Defendant worked for an
electrical contracting business that the owner operated out of his
home in Albrightsville, Carbon County, Pennsylvania. On July 10,
2007, at the end of his shift, Defendant went to the owner's home
, to punch a time clock. Defendant was accompanied by a co-worker,
Nelson Soto, who was likewise finishing work for the day and
intending to punch out. Upon entering the home, both Defendant
and Soto went upstairs and punched out. (N.T. 12/8/2009, pp. 68-
69; 230-31). Defendant's time card documented the time as 3:37
P.M. (N.T. 12/8/2009, p. 54; N.T. 11/18/2011, p. 41; N.T.
8/13/2013, p. 25).
While Soto left the home immediately after punching out,
Defendant remained, talking to A.O., the owner's seventeen-year-
old daughter, who was by herself in the home. Soto returned to
the home approximately five minutes later to return keys to the
work van which he had inadvertently taken with him.2 On his return,
I Soto observed the Defendant and A~_D. for only a brief time - they
I were talking with one another - and then left. When Soto left the
i.
home the second time he was alone and sure Defendant was still in
t.he home. (N.T. 12/8/2009, pp. 231-32). When asked, Soto did not
know when Defendant exited the home. (N.T. 12/8/2009, p. 234).
2 At trial Soto testified he returned within a minute or so to return the keys.
(N.T. 12/8/2009, p. 232}. A.D. recalled the time lapse before Soto's return to
be approximately five to ten minutes. (N.T. 12/8/2009, pp. 69, 129}.
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According to A.O., when Soto left the second time, she and
Defendant were sitting on a living room couch engaged in small
talk. Shortly after this time, A.O. went into the kitchen to get
a glass of water. Defendant followed, complimented her on her
appearance, and started to lift up the bottom of her dress. A.O.
testified she pushed Defendant's hand away and asked him to leave.
Defendant commented that they were alone in the home and should go
down to the basement; he then placed one arm around her upper body,
picked her legs up with the other, and physically carried her
downstairs against her will.
Once in the basement, Defendant pinned A.D. against a pool
table with his body, lifted up her dress, pulled down her
underwear, penetrated her vagina with his fingers, and attempted
to penetrate her vagina with his penis. During this entire time,
A.O. testified she was screaming for him to stop. The assault
ended when A.D.'s dog barked, alerting Defendant to the possibility
that A. D.' s parents were home, at which time A.O. escaped from
Defendant's grasp. At this po i n t ,: -A·. D. ran upstairs to her bedroom
and locked the door behind her. Defendant followed. When he was
unable to open the door, he left.
· A.O. told her parents about the assault the next day,
wher e upon they immediately contacted the Pennsylvania State
Police. Al though the State Police came to A. D. 's home that
evening, and questioned what had happened, for reasons which are
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inexplicable, it appears that no written record of this meeting on
July 11, 2007, was made and/or retained by the police.
During further investigation by the police on July 13, 2007,
Defendant gave a written statement wherein he admitted that he was
at the home and spoke with A. D., but denied that he sexually
assaulted her. In this statement, Defendant also told the police
that he left the victim's home at approximately 4:00 P.M., "right
behind Soto." (N.T. 11/8/2009, pp·.- 182-83). After the pol ice
completed their investigation, Defendant was charged with rape by
forcible compulsion, 3 indecent assault by forcible compulsion, 4
unlawful contact with a minor,5 indecent exposure,6 attempt~d rape
by forcible compulsion,7 and various related inchoate offenses.
Paul Levy, Esq. ("Trial Counsel") represented Defendant in
pretrial proceedings and at trial. In a meeting shortly after
Defendant's preliminary hearing, Defendant told Trial Counsel that
he was at the victim's home on the day of the alleged assault and.
left the home at 4: 00 P. M. e With the Commonwealth claiming the
assault occurred between 3:30 P.M. and 4:00 P.M,9 and the
J 18 Pa.C.S.A. § 312l(a) (1).
4 18 Pa.C.S.A. § 3126(a) (2),
5 18 Pa.C.S.A. s 6318(a) (1).
6 18 Pa.C.S.A, § 3127(a),
7 18 Pa.c.s.A. § 901 (al.
e At the PCRA hearing, Trial Counsel testified Defendant told him he left the
victim's home at 4:00 P.M. (N.T. 8/13/2013, p. 12). This agreed with the
victim's timeline. {N.T. 12/8/2009, p , 103), Defendant also testified at an
earlier hearing that after he clocked out he spoke briefly with the victim and
that he left the victim's home after Mr. Soto. (N.T. 11/18/2011, pp. 41-42).
9 see Affidavit of Probable Cause attached to the criminal complaint filed on
March 18, 2008.
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information provided by Defendant, Trial Counsel did not foresee
an alibi defense and did not file a notice of alibi pursuant to
Pennsylvania Rule of Criminal Procedure 567. Instead, the defense
position was not that Defendant was not there, but that the assault
did not occur.
To support this position, Defendant advised Trial Counsel
that his mother was a potential witness because he drove to her
workplace immediately after the __ ~ssault was alleged to have
occurred. An investigator employed by Trial Counsel interviewed·
Defendant's mother shortly before trial. At this interview,
Pefendant's mother told the investigator that her son arrived at
her workplace between 4:30 P.M. and 4:40 P.M. (N.T. 8/13/2013,
pp. 20-21) . With her workplace a thirty to forty minute drive
from the crime scene,10 her statement reinforced the information
Defendant provided to Trial Counsel, that he left the victim's
home at 4: 00 P. M. and drove directly from that location to his
mother's place of employment. Defendant's mother also told the
investigator that when she saw her son, there was nothing about
his appearance, his clothing or physical condition, or his demeanor
that indicated he had been involved in an assault. Based on this
interview, Trial Counsel planned to call Defendant's mother as a
10 Defendant's mother testified the distance was "a good 40 minutes" drive.
(N.T. 12/8/2009, p. 241). Attorney Levy recalled the driving time to be
approximately 25 to 35 minutes based upon a Google search he had performed.
(N.T. 8/13/2013, pp. 21-22).
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witness to testify to Defendant's demeanor and condition within an
hour.after the alleged assault occurred.
A two-day jury trial began on December 8, 2009. At trial,
the Commonwealth relied primarily on the testimony of A.D. to prove
its case. She gave a detailed account of the assault as describe~
above. As presented by the Commonwealth, with Defendant clocking
out at 3:37 P.M. and leaving the victim's home at approximately
4:00 P.M., Defendant had a window_~! opportunity of approximately
twenty-three minutes during which the assault occurred.
After the Commonwealth rested, Defendant offered his mother
as his sole witness. Defendant's mother testified to a time frame
different from that which she had told the investigator. She
testified that on the day of the assault her son arrived at her
workplace not between 4: 30 and 4: 40 P. M., but between 4: 00 and
4:15 P.M., and certainly no later than 4:30 P.M. (N.T. 12/8/2009,
p. 241). This testimony established a possible alibi for Defendant
in that if he arrived at his mother's workplace at 4:00 P.M., or
shortly thereafter, given the time needed to travel between the
victim's home and his mother's workplace, he would have been on
the road at the time the Commonwealth claimed the assault occurred.
The Commonwealth objeGted to this testimony as Defendant had not
filed a notice of alibi. The objection was sustained and the
testimony stricken. Defendant's mother then testified, as
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.
planned, about her son's demeanor and condition on the day of the
assault.
Defendant did not testify in this case. Prior to resting,
Trial Counsel met with Defendant to discuss whether Defendant
should testify. At this meeting, Trial Counsel advised Defendant
not to testify for two reasons. First, Trial Counsel advised
Defendant that if he testified, the Commonwealth would impeach him
with his prior conviction for forgery.11 Second, Trial Counsel
advised Defendant that he did not believe the jury would find
Defendant's testimony credible. According to Trial Counsel,
Defendant planned on testifying that A.O. fabricated her testimony
about the assault because Defendant declined her sexual advances.
Based on this advice, Defendant decided not to testify and the
defense rested. Defendant was found guilty by the jury the
following day of all charges, except rape by forcible compulsion.
Following his convictions, but prior to sentencing,
Defendant's parents hired Mark Schaffer, Esquire and Kenneth
Young, Esquire ( collectively "Appel late Counsel") to represent
Defendant at sentencing and for the purpose of taking a direct
appeal. With Appellate Coun~el representing Defendant, Defendant
was sentenced to an aggregate term of imprisonment in a state
11 s motion in
Prior to the taking of evidence, we granted the Conunonwealth'
limine to allow the Commonwealth to present evidence of Defendant's conviction
for forgery, a felony of the third degree, if he testified, (N.T. 12/8/2009,
p. 4).
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correctional facility of not l~ss than six nor more than twelve
years.
On April 9, 2010, Appellate Counsel appealed the judgment of
sentence to the Pennsylvania Superior Court. On this appeal,
Appellate Counsel raised six claims: (1) whether the Commonwealth
failed to provide the defense with requested and mandatory
discovery, (2) whether the Trial Court erred in allowing the
Commonwealth to ask A. D. leading _gu_estions on direct examination,
(3) whether the Trial Court erred in denying Defendant's request
for a mistrial after the investigating trooper testified that
Defendant had volunteered to take a polygraph test, {4) whether
the evidence was insufficient to sustain Defendant's convictions,
{5) whether the verdict was against the weight of the evidence,·
and (6) whether Trial Counsel was ineffective both before and
during trial.
On May 3, 2011, the Superior Court affirmed Defendant's
judgment of sentence. In doing so, the Court addressed only the
merits of the claim related to the polygraph test; the remaining
claims were deemed either waived or premature. It held that
Defendant waived the claims of discovery violations and leading
questions because Defendant did not include them in his court-
ordered Pa.R.A.P. 1925{b) statement of matters complained of on
appeal. Next, it held that Defendant waived the weight of the
evidence claim because he did not properly preserve the issue by
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making either an oral or post-sentence motion with the trial court.
It also held that he waived the sufficiency of the evidence claim
because he did not properly brief the issue. Finally, the Court
did not address the claim for ineffectiveness of counsel because
it was premature. Defendant did not appeal the Superior Court's
decision.
On August 2, 2011, Defendant filed his first PCRA petition,
claiming that both Tri~l Counsel and Appellate Counsel rendered
ineffective assistance of counsel. Defendant raised four claims
in this petition: (1) that Trial Counsel failed to raise and
preserve an alibi defense, (2) that Appellate Counsel failed to
preserve several appellate issues, ( 3) that Trial Counsel
ineffectively advised Defendant not to testify, and (4) that
Appellate Counsel failed to petition the Pennsylvania Supreme
Court for allowance of appeal from the Superior Court's May 3,
2011 decision.
In an opinion dated August 17, 2012, we found Appellate
Counsel rendered ineffective assistance of counsel by failing to
seek review of the Superior Court's decision. Consequently, we
reinstated Defendant's right to file a petition for allowance of
appeal with the Pennsylvania Supreme Court nunc pro tune. At the
same time, we dismissed Defendant's first, second, and third claims
without prejudice, holding Defendan~ could raise those issues in
a subsequent PCRA petition if needed.
[FN-3-14]
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Defendant filed his petitio~ for allowance of appeal with the
Supreme Court on September 5, 2012. On May 14, 2013, the Court
denied this petition. Subsequently, on May 31, 2013, Defendant
filed his Second Amended PCRA petition now before us. 12 In this
petition, Defendant raises the remaining three issues from his
first PCRA petition which we previously dismissed without
prejudice. 13
On August 13, 2013, we held ~_hearing to allow Defendant to
present evidence in support of his petition. 14 Following this
hearing, and after receiving briefs on behalf of both the
Commonwealth and Defendant, we are now ready to address the merits
of Defendant's claims. We do so in the order advanced.
DISCUSSION
12 Because Defendant filed this petition within a year of the date the Supreme
Court denied his appeal, we have jurisdiction over his petition. We have no
jurisdiction over an untimely PCRA petition. Commonwealth v. Frey, 41 A.3d
605, 610 (Pa. 2012). To be timely, the general rule, with three exceptions, is
that the petition must be filed within one year from the date the judgment of
sentence becomes final. 42 Pa.C.S.A. § 9545(b) (1). "[A) judgment becomes final
at the conclusion of direct review, including discretionary review in the
Supreme Court of the United States and the Supreme Court of Pennsylvania, or at
the expiration of time for seeking the review." § 9545{b) (3), When appellate
rights are reinstated nune pro tune, a judgment becomes final when appellate
rights on the reinstated appeal are exhausted. See Commorn-Jealth v. Karanicolas,
836 A.2d 9401 944-45 (Pa.Super. 2003). Here, we reinstated Defendant's
appellate rights nune pro tune and he exhausted those rights on May 14, 2013,
when the Pennsylvania Supreme Court denied his petition for allowance of appeal.
Defendant then timely filed this petition seventeen days later on May 31 2013. 1
13 Defendant also raised the issue that Trial Counsel rendered ineffective
assistance by failing to object to the admission of photographs. Defendant
withdrew this issue at the conclusion of the August 13, 20131 hearing. (N.T.
8/13/2013, p. 71).
l4 Based on an agreement of the parties, we also incorporated as part of the
record for this petition the transcript from the hearing held on November 18,
2011, for Defendant's first PCRA petition. (N.T. 8/13/2013, p. 6).
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1. WHETHER APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF
COUNSEL BY WAIVING SEVERAL APPELLATE ISSUES
Defendant first claims that Appellate Counsel was ineffective
by failing to preserve on direct appeal all but two issues for
appellate review. Appellate Counsel waived four of the six issues
appealed from by not including two issues in Defendant's 1925(b)
statement, not properly briefing an issue, and not preserving an
issue in either an oral or post-sentence motion. Because Appellate
.... _..
Counsel failed to preserve these issues, Defendant asks us to
reinstate his direct appeal nunc pro tune.
Defendant argues that he does not need to establish the three
elements for ineffective assistance of counsel as articulated in
Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987), to have his direct
appeal reinstated. He claims Appellate Counsel's waiver of these
four claims was per se ineffective assistance of counsel.
Generally, to determine if counsel has rendered ineffective
assistance, we apply a three-part test based on our Supreme Court's
interpretation of Strickland v. Washington, 466 U.S. 668 (1984) in
Pierce. In Strickland, the United States Supreme Court held that
to establish a claim of ineffective assistance of counsel the
defendant must show that counsel's performance was deficient and
that this deficient performance prejudiced the defense.
Strickland, 466 U.S. at 687. Our Supreme Court divided this test
into a three-part test under which the defendant must establish:
( 1) that the underlying legal claim has arguable merit, (2) that
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counsel's actions lacked an objective reasonable basis, and ( 3)
that he was prejudiced by counsel's acts or omissions. Pierce,
527 A.2d at 975. A failure to establish any of these three elements
will defeat a claim of ineffective assistance of counsel.
Commonwealth v. Walker, 36 A.3d 1, 7 (Pa. 2011).
However, in some circumstances, counsel's conduct will be
deemed to be per se ineffective. Commonwealth v. Allen, 48 A.3d
1283, 1286 (Pa.Super. 2012). One-~uch circumstance occurs when
counsel fails to perfect a direct appeal because counsel fails to
follow procedural rules. Commonwealth v. Bennett, 930 A.2d 1264,
1273 (Pa. 2007). When counsel waives appellate issues because of
a failure to follow procedural rules, the first two parts of the
Pierce test, arguable merit and unreasonableness, are established.
Commonwealth v. Johnson, 889 A.2d 620, 622 n.3 (Pa.Super.
2005) (holding that the first two prongs of the Pierce test "are
clearly met where counsel fails to follow procedural rules to
ensure requested appellate review of a criminal defendant's
claims.") .
As for the final element of prejudice, when the conduct of
counsel results in the waiver of all appellate issues - causing
the defendant to be deprived of his right to a direct appeal -
prejudice is presumed. Commonwealth v. Halley, 870 A.2d 795, 800
(Pa. 2005). This presumption of prejudice is founded on our
courts' interpretation of the United States Supreme Court decision
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in United States v. Cronic, 466 O~S. 648 (1984), which our courts
have relied upon to find that the "actual or constructive denial
of the assistance of counsel falls within a narrow category of
circumstances in which prejudice is legally presumed."
Commonwealth v. Lantzy, 736 A.2d 564, 571 (Pa. 1999). Our courts
find that when counsel fails to perfect a direct appeal, a
defendant is constructively denied the assistance of counsel.
Commonwealth v. Bennett, 930 A.2d }2.64, 1273 (Pa. 2007) ("we have
repeatedly indicated that the failure to file a requested direct
appeal or a 1925(b) statement in support thereof is the functional
equivalent of having no counsel at all"). Therefore, when counsel
waives all appellate issues, entirely depriving a defendant of his
right to a direct appeal, counsel is said to render per se
ineffective assistance of counsel. Halley, 870 A.2d at 800.
However, this per se rule is not applicable when counsel's
errors do not entirely deprive a defendant of his right to a direct
appeal because counsel only waived some - but not all - of the
issues presented. Commonwealth v. Grosella, 902 A.2d 1290, 1293-
94 (Pa.Super. 2006). When this occurs, our courts do not deem the
defendant to have been constructively deprived of counsel. Halley,
870 A.2d at 801. Thus, in these circumstances, the presumption of
prejudice dissipates. Grosella, 902 A.2d at 1293. When only some
of the appellate issues are waived, we must determine if the waiver
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of appellate issues prejudiced the defendant. Grosella, 902 A.2d
at 1294.
Here, Appellate Counsel raised six issues on appeal. The
Superior Court held that four of those issues were waived. The
remaining two were either addressed or deemed premature ..
Therefore, because Appellate Counsel's waiver of these issues did
not entirely deprive Defendant of his right to a direct appeal,
prejudice is not presumed. Consequently, counsel was not per se
ineffective and we must determine if Defendant was prejudiced._
"To demonstrate prejudice, the [defendant) must show that
\there is a reasonable probability that, but for counsel1s
unprofessional errors, the result of the proceeding would have
been different.'" Commonwealth v. King, 57 A.3d 607, 613 (Pa.
2012) {quoting Strickland, 466 O.S. at 694). "A reasonable
probability is a probability sufficient to undermine confidence in
the outcome of the proceeding." Id. Here, such probability does·
not exist because the issues Appellate Counsel waived were
i.
meritless.
The first claim waived was that the Commonweal th violated
mandatory discovery rules by failing to turn over a police report
documenting their July 11, 2007, visit to A.D.'s home. This claim
is meritless since no evidence was presented to establish that
such a report exists. (N.T. 8/13/2013, p. 44-45). Further,
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counsel acknowledged at the PCRA hearing that this claim was being
withdrawn. (N.T. 8/13/2013, pp. 68-69).
The second waived appellate claim was that we erred in
allowing the Commonwealth to ask leading questions of A.O. Trial
Counsel only objected once on the basis of a leading question.
The question was "[o]kay. Did his penis penetrate your genitals?"
(N.T. 12/8/2009, p. 76). This . issue is meritless because the
question is not leading: it does ~ot suggest an answer. See
Commonwealth v. Johnson, 541 A.2d 332, 336-37 (Pa.Super. 1988)
(holding that a question that does not suggest an answer is not a
leading question because a leading question "puts the desired
answer in the mouth of the witness"). Further, even if it was
error to permit this question, the error was ha rml e ss in that
whether or not Defendant's penis penetrated A. D. 's vagina was
relevant only to the rape charge for which Defendant was acquitted.
The third waived appellate claim was that the evidence was
insufficient to support the convictions. We find this claim
meritless because A.D.'s testimony was sufficient to establish all
elements on all convicted crimes beyond a reasonable doubt.
Defendant has not shown otherwise.
Finally, the last waived appellate claim was that the verdict
was against the weight of the evidence. Like with the other
claims, this claim lacks merit. It does not shock our conscience
that the jury relied on A.D.'s detailed testimony of the assault
[FN-3-14}
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to find Defendant guilty on all'convicted crimes. Commonwealth v.
Boyd, 73 A.3d 1269, 1274-75 (Pa.Super. 2013) (en bane).
Because we find the issues Appellate Counsel waived on appeal
to be without merit, Defendant's first claim of error is denied.
2. WHETHER TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF
COUNSEL BY FAILING TO INVESTIGATE AND PRESENT AN ALIBI DEFENSE
Next, Defendant claims Trial Counsel rendered ineffective
assistance by failing to present_?~ alibi defense. To determine
if counsel was ineffective for failing to pursue a defense, we
apply the three-part Pierce test discussed above. See Commonwealth
v. Spotz, 896 A.2d 1191, 1217-1219 {Pa. 2006). As to the first
part of this test, there is no dispute that failing to interview
an alibi witness, to file notice of an alibi defense, and to
present an alibi defense when one exists, are claims of arguable
merit. See Conunonwealth v. Stewart, 84 A.3d 701°, 712 (Pa.Super.
2013); Commonwealth v. Washington, 361 A.2d 670, 674 (Pa.Super.
1976). Instead, it is the second and third parts of the test,
namely whether Trial Counsel had a reasonable basis for his actions
and whether these actions caused prejudice, which are in dispute.
In answering whether counsel's actions lacked an objective
reasonable basis, we must determine "whether no competent counsel
would have chosen that action or inaction, or, [whether} the
alternative{) not chosen, offered a significantly greater potential
chance of success.u Stewart, 84 A.3d at 707. When determining
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whether a reasonable basis for 2ounsel's actions exists, ~e must
make "all reasonable efforts to avoid the distorting effects of
hindsight," while also avoiding "post hoc rationalization of
counsel's conduct." Commonwealth v. Sattazahn, 952 A.2d 640, 656
(Pa. 2008) (citations omitted). We must evaluate counsel's·
performance based on counsel's perspective at the time the conduct
occurred. Commonwealth v. Carson, 913 A.2d 220, 274 (Pa. 2006).
Trial Counsel testified that before trial he did not believe
his client had a viable alibi defense. (N.T. 8/13/2013, p. 20).
This belief was based on his discussions with Defendant in which
Defendant told Trial Counsel that he left the scene of the crime
at 4 : 00 P. M. is With this knowledge, and with the Commonweal th
claiming the assault was over by 4:00 P.M., Trial Counsel had no
reason to believe that Defendant was not present when the assault
occurred.
15 Defendant- gave a statement to police that is ambiguous on its face as to
when Defendant left the victim's home. It reads in part as follows: "[o]n July
10th reported to the office got to the office about 3:37 went inside (A.D.J
opened the door entered the home with another co worker (sic) went upstairs and
punched-out came back down and wash my hands because it had glue on it said a
· few words to (A, D. J then when Nelson left I left right behind him about 4 pm
received a phone call from the office." Commonwealth Exhibit No. 2. The lack
of punctuation in this statement makes it unclear whether Defendant left at
4:00 P.M. or received a phone call at 4:00 P.M. Trial Counsel read the statement
to be that Defendant left the victim's home at 4:00 P.M. (N.T. 8/13/2013, pp.
12, 25), This interpretation was supported by his conversations with Defendant.
(N.T. 8/13/2013, p , 12).
It was also reinforced by what Defendant's mother told a private investigator
employed by Trial Counsel. When interviewed shortly before trial by this
investigator, Defendant's mother told the investigator that her son arrived at
her workplace sometime between 4:30 P.M. and 4:40 P.M. (N.T. 8/13/2013, p. 21).
This time fit well with what Defendant had told Trial Counsel about when he
left the victim's home.
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That Trial Counsel accepted what Defendant told him about his
whereabouts and when he left the victim's home, and that Trial
Counsel did not prepare an alibi defense, was reasonable. Our
Supreme Court has routinely held that counsel does not act
unreasonably by not investigating possible defenses, or mitigating·
evidence, of which he is unaware, has no reason to suspect, and
which is not suggested by what Defendant tells counsel. See
Commonweal th v. Miller, 987 A. 2d 638, 654-5 5 (Pa. 2009) ( holding
counsel had reasonable basis not to investigate a witness's mental
condition when defendant, as the witness's cell mate for two
months, never told counsel about the witness's contjition};
Commonwealth v. Brown, 872 A.2d 1139, 1149-50 (Pa. 2005) (holding
counsel had reasonable basis not to investigate pre-existing
evidence of Defendant's mental health to support self-defense
theory when defendant never told counsel about his mental health
history); Commonwealth v. Bracey, 795 A. 2d 935, 944 (Pa.
2001} (holding counsel had reasonable basis to not investigate
mitigating evidence of abuse when defendant never told counsel
about abuse).
This rule is particularly relevant under the facts of this
case where, if the Defendant was not present when the assault
occurred at the location claimed, it would be natural and expected
that he would tell his counsel this crucial fact. Excluding the
victim, Defendant is the only other person who truly knows when he
[FN-3-14]
18
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left the victim's home on July 1a, 2007. Under the facts known to
him, Trial Counsel acted reasonably in relying on Defendant's
recall of when he left the victim's home and centering the defense
that no assault occurred on the lack of physical evidence, brief
time frame, and perceived shoddy police investigation.16 See
Commonwealth v. Rivers, 786 A.2d 923, 930 (Pa. 2001) (quoting
Commonwealth v. Laird, 726 A.2d 346, 357 (Pa. 1999) ("Counsel will
not be deemed ineffective for pu rsui nq a particular strategy as
long as the course chosen was reasonable.")).
Nor has Defendant met the third prong of the Pierce test on
this issue. The alibi evidence which Defendant contends was not
16
This evidence included the following: that notwithstanding the struggle
described by the victim, neither party had any torn clothing; there was no
evidence of any property damage in the home; Defendant exhibited no cuts,
bruises or scratches; and when Defendant's mother observed him within 25 to 40
minutes after the assault, there was nothing untoward about his appearance or
demeanor. Similarly, the injuries claimed by the victim were relatively minor,
some faint scuff marks on her knees and elbows.
The highly circumscribed time for the assault to occur and the chance return
of Soto were also to Defendant's advantage. Soto's return to the victim's home
was unexpected and could not have been anticipated by the Defendant, yet when
Soto returned he observed the Defendant and the victim engaged in friendly
conversation, nothing_indicative of a brewing assault. Given these observations
by Soto, the time for the assault to occur was abridged even further, making it
arguably more questionable whether everything the victim described after Soto
left the second time could have occurred within this short time span: continued
talking between the victim and Defendant inunediatelyafter Soto left; the victim
struggling and Defendant carrying her to the basement; the attack in the
basement, removal of the victim's underwear and the attempt at intercourse; and
the victim's escape and flight upstairs, where the victim testified Defendant
remained momentarily outside her bedroom door before, after being unsuccessful
in gaining access to her bedroom, he decided to leave.
Added to these weaknesses in the Conunonwealth's case were numerous apparent
deficiencies in the pol ice investigati.on as pointed out by the defense: no
record kept of the July 11, 2007 response to the victim's home, no attempt to
examine the victim's or Defendant's clothing for evidence of the assault, no
attempt to examine the victim's home or the pool table for evidence of the
assault, including possible pubic hair or semen, and no DNA evidence or other
forensic tests taken.
[FN-3-14]
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presented was contradictory in some respects to other evidence in
the case, in other respects did not disprove the occurrence of an
assault, and overall did not create a reasonable probability that
the outcome of the trial would have been different for several
reasons.
First, the variances in the different times Defendant sought
to present leaves open the possibility that Defendant committed
the assault and still arrived at h i s mother's workplace by no later
than 4: 30 P. M., one of the times given by Defendant's mother.
Accepting the Commonwealth's evidence that the assault lasted less
than twenty-three minutes (i.e., the difference between when Soto
left the second time and 4: 00 P. M.), there is still sufficient
time for Defendant to have assaulted A.D. using the victim's time
estimates, left the home by 4:00 P.M., and arrived at his mother's
workplace rio later than 4:30 P.M., a twenty-five to forty minute
drive.
Alternatively, if we accept the earliest time at which
Defendant's mother claims he arrived at her place of employment,
4:00 P.M., this would conflict with the time stamped on Defendant's
time card11 and directly contradict Defendant's own statements to
police and his counsel that he left the victim1s home at 4:00 P.M.
(N.T. 12/8/2009, pp. 182-183). Such time would further contradict
11 Assuming a twenty-five to forty minute drive to his mother's place of
employment, Defendant could not have been at the victim's home at 3:37 P.M. and
still arrived at his mother's workplace by 4:00 P.M.
{FN-3-14]
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the testimony of Nelson Soto, Def~ndant's co-worker, who testified
that he saw Defendant talking with A.O. as he left that day at
3:37 P.M., that Defendant was still there when he returned
approximately five minutes later, and that Defendant did not leave
with him at that time. Id. at 231. To have presented this.
testimony to the jury, that Defendant arrived at his mother's place
of employment by 4:00 P.M., would have devastated and undermined
the entire timeline of the defense_Ji.Dd its argument that Defendant
was present, but there was no assault. Given the strength of this
other evidence, it appears unlikely that if counsel had been aware
beforehand of what Defendant's mother intended to testify to and
if given the choice, counsel would have proceeded with an alibi
defense. (N.T. 8/13/2013, p. 48).
On this issue, Defendant was not deprived of effective
assistance of counsel. Accordingly, the claim is denied.
3. WHETHER TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF
COUNSEL BY ADVISING DEFENDANT NOT TO TESTIFY
Finally, Defendant claims Trial Counsel was ineffective for
advising him not to testify.
The decision of whether or npt to testify on one's own
behalf is ultimately to be made by the defendant after
full consultation with counsel. In order to sustain a
claim that counsel was ineffective for failing to advise
the appellant of his rights in this regard, the appellant
must demonstrate either tha~ counsel interfered with his
right to testify, or that counsel gave specific advice
so unreasonable as to vitiate a knowing and intelligent
decision to testify on his own behalf.
{FN-3-14}
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Commonwealth v. Michuad, 70 A.3d 862, 869 (Pa.Super. 2013) (quoting
Commonwealth v. Nieves, 746 A.2d 1102, 1104 (Pa. 2000)). Like
with other ineffective assistance of counsel claims, the defendant
must also demonstrate that his failure to testify caused prejudice.
Commonwealth v. Alderman, 811 A.2d 592, 596 (Pa.Super. 2002}.
Defendant has failed to establish that Trial Counsel either
interfered with his right to testify or that Trial Counsel gave
unreasonable advice. First, the e~idence established that, after
consulting with Trial Counsel, Defendant alone decided not to
testify. (N.T. 11/18/2011, pp. 47-48; N.T. 8/13/2013, pp. 42-44).
Second, Trial Counsel's advice not to testify was reasonable.
Counsel acts reasonably in advising a defendant not to testify
when the defendant's testimony" would allow the Commonweal th to
impeach the defendant with prior crimen falsi convictions. See
Commonweal th v. Daniels, 999 A. 2d 590, 596 (Pa. Super. 2010) ;
Commonwealth v. Thomas, 783 A.2d 328, 335 {Pa.Super. 2001).
Additionally, counsel reasonably advises a defendant not to
testify when ·counsel believes the jury would not find defendant's
testimony credible. See Commonwealth v. O'Bidos, 849 A.2d 243,
250-51 (Pa. Super. 2004) (holding trial counsel reasonably advised
his client not to testify on the basis that the jury would not
believe his testimony that he had a past relationship with the
rape victim).
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Trial Counsel advised Defendant not to testify for two
reasons. First, Trial Counsel advised Defendant not to testify
because if he did the Conunonwealth would impeach him with evidence
of his prior conviction for forgery. (N.T. 8/13/2013, pp. 41, 54).
Although this crime was unrelated to the instant offense and
occurred several years earlier, Trial Counsel was justified in
advising Defendant about the negative impact evidence of a criminal
conviction could have on the jury. Second, Trial Counsel advised
Defendant not to testify because he believed the jury would not
believe Defendant's testimony. Id. at 39. Trial Counsel did ·not
believe the jury would find credible Defendant's testimony that
A.O. fabricated her testimony about the assault because Defendant
declined her sexual advances. Id. at 40-41.
Trial Counsel's advice to Defendant not to testify was not
"so unreasonable as to vitiate a knowing and intelligent decision
to testify on his own behalf.u Rather, Trial Counsel reasonably
advised Defendant about the risks of Defendant taking the stand,
which it was his professional obligation to do and which Defendant
properly factored into his decision not to testify. Because this
advice was reasonable, Defendant "must bear the burden of his
decision not to testify and cannot shift the blame to his
attorney." Corrunonwealth v. Harper, 614 A.2d 1180, 1188 (Pa.Super.
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1992) . consequently, we find this final claim to also be without
merit. is
CONCLUSION
"The benchmark for judging any claim of ineffectiveness must
be whether counsel's conduct so undermined the proper functioning
of the adversarial process that the trial cannot be relied on as
having produced a just result." Strickland v. Washington, 4 66
U.S. 668, 686 (1984). Against thia standard, we find that no act
or omission of counsel rendered Defendant's convictions
unreliable. Therefore, Defendant's Second Amended PCRA Petition
will be denied.
BY THE COURT:
P. J.
,-- • ~ ' !
•. J
LO
18 Defendant also failed to establish prejudice. Our Superior Court has held
that to establish prejudice the defendant must "articulat~ what testimony he
would have given had he testified at trial" so the court can assess whether
this testimony creates a reasonable probability of a different result.
Corruuonwealth v. Alderman, 811 A.2d 592, 596 (Pa.Super. 2002). Defendant has
not articulated what his testimony would have been at trial, thus, he has failed
to establish prejudice.
( FN-3-14 J
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IN THE COURT OF COMMON PLEAS OF CARBON COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA,
v. No. 289-CR-2008
MERRICK STEVEN KIRK DOUGLAS,
Defendant
Jean Engler, Esquire Counsel for Commonwealth
Assistant District Attorney
Michael P. Gough, Esquire Counsel for Defendant
MEMORANDUM OPINION
Nanovic, P.J. - August 4, 2014
The Defendant, Merrick Steven Kirk Douglas, has appealed from
our order of June 13, 2014, denying his Second Amended Petition
for Post-Conviction Relief filed on May 31, 2013. Therein,
Defendant claimed both his trial and appellate counsel were
ineffective and sought the grant of a new trial.
By Memorandum Opinion dated June 13, 2014, we explained the
reasons for our denial of Defendant's requested PCRA relief. A
copy of this Memorandum Opinion is attached for the convenience of
the Court.1
1 On page 4 of the attached Memorandum Opinion we have corrected the date of
the first meeting of the victim with the police from July 12, 2007 to July 11,
2007. This was an error in our original Memorandum Opinion, but makes no
difference in the analysis.
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.
Following Defendant's Notice of Appeal filed on June 27, 2014 ,·
we directed Defendant to file a concise statement of the Matters
Complained of on Appeal pursuant to Pa.R.A.P. 1925{b}. On July
17, 2014, Defendant timely filed the requested concise statement.
The issues raised in this statement are identical to those
raised in Defendant's Second Amended Petition for Post-Conviction
Relief and were addressed in our June 13, 2014 Memorandum Opinion.
For this reason, we refer the Supe.rior Court to that opinion to
fulfill our responsibility under Pa.R.A.P. 1925(a).
BY THE COURT:
P.J.
''
l-·-.>
[FN-42-13]
2
Jr