J-S14029-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT JAMES STEVENS,
Appellant No. 1842 EDA 2014
Appeal from the PCRA Order of June 9, 2014
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0000245-2010
and CP-45-CR-0000246-2010
BEFORE: DONOHUE, OLSON AND MUSMANNO, JJ.
MEMORANDUM BY OLSON, J.: FILED APRIL 27, 2015
Appellant, Robert James Stevens, appeals from the order entered on
June 9, 2014 denying his petition filed under the Post-Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. § 9541-9546. We affirm.
This Court previously outlined the factual background of this case as
follows:
In the early morning hours of September 10, 2009, Complainant
was at her home with her friend. Appellant arrived and became
angry. Complainant told him that she was going to drive her
friend home. As Complainant was driving her friend home,
Appellant began following them in his own vehicle. Appellant
used his vehicle to strike Complainant’s vehicle and eventually
forced her vehicle off the roadway. . . . Appellant was taken into
custody in that case on January 10, 2010.
Although Appellant was the subject of a temporary protection
from abuse order restricting his contact with Complainant, he
called her from jail and told her to post his bail. Complainant
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refused. Appellant, however, managed to arrange his bail
through a third party based on promises that he would repay the
cost of his bail and post bail for a fellow inmate. Appellant was
released from jail on January 14, 2010, on the condition that he
have no contact with Complainant, but he went directly to
Complainant’s house. . . .
Appellant entered Complainant’s home and began punching her
in the face and head. He emptied Complainant’s purse on the
floor, took $400[.00] in cash, and forced her to write a personal
check for $2,000[.00]. He then bound her with duct tape and
went outside to deliver the cash and check to the individuals who
had posted his bail. He returned to the home and continued to
strike Complainant until she lost consciousness. Complainant
stated that when she momentarily regained consciousness, she
was on the floor of her living room and Appellant was having
sexual intercourse with her.
Appellant then took Complainant to her father’s truck, which she
had been using after the September 10, 2009 incident, and
placed her in the front passenger seat. Appellant drove the
truck, but went off the roadway, struck a tree, and then
careened into a mailbox of a residence. The owner of the
residence came out to investigate the accident. Appellant
approached him, told him that his dog was injured, and asked
him for a ride. He dropped Appellant off at a nearby home and
drove back to his own home.
Upon further investigation around his mailbox, the owner of the
residence saw Complainant in the front passenger seat of her
father’s truck with her head leaning against the passenger side
window. There was blood on the window and around her head.
He went inside his home to have his wife call 911. By the time,
he was ready to go back outside, Appellant had borrowed a
second vehicle, picked up Complainant, and driven away from
the scene of the accident.
Appellant rented a motel room, and on the morning of January
15, 2010, drove Complainant to the home of their mutual
friends. Complainant went inside the residence, but was so
bruised that their friends did not immediately recognize her.
Appellant told them that she had been injured in a car accident.
Complainant told one of the friends that Appellant had caused
her injuries. The friend drove Complainant to a Pennsylvania
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State Police barracks where she gave a statement implicating
Appellant.
Meanwhile, the other friend arranged for Appellant to go to a
cabin, but called the State Police when Appellant left his
residence. The State Police ultimately stopped and captured
Appellant as he was driving on State Route 33. When searching
Complainant’s home, investigators discovered ropes tied to the
bedposts of Complainant’s bed. Complainant stated those ropes
were not on the bed prior to the assault and suggested Appellant
may have had intercourse with her on the bed.
Appellant, after waiving his Miranda1 rights, admitted that he
had gone to Complainant’s home after being released on bail.
Appellant also stated that they had consensual sexual
intercourse three times, that Complainant had been driving her
father’s truck at the time of the accident, and that she sustained
her injuries in that accident.
Commonwealth v. Stevens, 69 A.3d 1284 (Pa. Super. 2013) (unpublished
memorandum), at 1-4 (certain footnote omitted).
The procedural history of this case is as follows. Appellant was
charged via two criminal informations with criminal mischief,2 aggravated
assault,3 kidnapping,4 unauthorized use of a motor vehicle,5 simple assault,6
1
Miranda v. Arizona, 384 U.S. 436 (1966).
2
18 Pa.C.S.A. § 3304(a)(5).
3
18 Pa.C.S.A. § 2702(a)(1).
4
18 Pa.C.S.A. § 2901(a)(3).
5
18 Pa.C.S.A. § 3928(a).
6
18 Pa.C.S.A. § 2701(a).
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making terroristic threats,7 burglary,8 trespassing,9 sexual assault,10
unlawful restraint,11 robbery,12 two counts of rape,13 and two counts of
recklessly endangering another person.14 The two informations were
consolidated for trial and, on November 2, 2010, Appellant was found guilty
of all charges and was eventually sentenced to an aggregate term of 46 to
92 years’ imprisonment. After post-sentence proceedings concluded, this
Court affirmed the judgment of sentence. Commonwealth v. Stevens, 69
A.3d 1284 (Pa. Super. 2013) (unpublished memorandum).
On July 24, 2013, Appellant filed a pro se PCRA petition. Counsel was
appointed and filed an amended petition. On March 21, 2014, an
evidentiary hearing was held. On June 9, 2014, the PCRA court denied
Appellant’s PCRA petition. This timely appeal followed.15
7
18 Pa.C.S.A. § 2706(a)(1).
8
18 Pa.C.S.A. § 3502(a).
9
18 Pa.C.S.A. § 3503(a)(1)(i).
10
18 Pa.C.S.A. § 3124.1.
11
18 Pa.C.S.A. § 2902(a)(1).
12
18 Pa.C.S.A. § 3701(a)(1)(i).
13
18 Pa.C.S.A. § 3121.
14
18 Pa.C.S.A. § 2705.
15
On July 3, 2014, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
(Footnote Continued Next Page)
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Appellant presents one issue for our review:
Whether the [PCRA c]ourt erred by finding that trial counsel’s
failure to file a pretrial [m]otion to [s]ever and a pre-trial
[m]otion under Pennsylvania's Rape Shield Law did not amount
to ineffective assistance of counsel which so undermined the
truth determining process that no reliable adjudication of guilt or
innocence took place[?]
Appellant’s Brief at 4.
“[W]e review a denial of PCRA relief to determine whether the findings
of the PCRA court are supported by the record and free of legal error.”
Commonwealth v. Eichinger, 108 A.3d 821, 830 (Pa. 2014) (internal
quotation marks and citation omitted). “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. Freeland, 106 A.3d 768, 775 (Pa. Super. 2014) (citation omitted).
Appellant’s lone claim on appeal is that his trial counsel rendered
ineffective assistance. Our Supreme Court has explained:
[T]o prove counsel ineffective, [a PCRA] petitioner must
demonstrate: (1) the underlying claim has arguable merit; (2)
no reasonable basis existed for counsel’s actions or failure to
act; and (3) the petitioner suffered prejudice as a result of
counsel’s error such that there is a reasonable probability that
the result of the proceeding would have been different absent
such error. Counsel is presumed to have rendered effective
assistance.
(Footnote Continued)
Pa.R.A.P. 1925(b). On July 17, 2014, Appellant filed his concise statement.
On August 6, 2014, the trial court issued a statement adopting its June 9,
2014 opinion. Appellant’s lone issue on appeal was included in his concise
statement.
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A court is not required to analyze the elements of an
ineffectiveness claim in any particular order of priority; instead,
if a claim fails under any necessary element of the
ineffectiveness test, the court may proceed to that element first.
Finally, counsel cannot be deemed ineffective for failing to raise
a meritless claim.
Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014) (citations
omitted).
Appellant first argues that trial counsel was ineffective for failing to file
a pre-trial motion to sever the two cases. We conclude that failure to seek
severance did not prejudice Appellant. Appellant contends that the failure to
sever the cases prejudiced him because it permitted details regarding the
first incident to be admitted into evidence, thereby allowing the jury to infer
that there was a motive for his commission of the crimes in the second
incident. This argument, however, ignores Pennsylvania Rule of Evidence
404(b). That rules provides, in relevant part:
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is
not admissible to prove a person’s character in order to show
that on a particular occasion the person acted in accordance with
the character.
(2) Permitted Uses. This evidence may be admissible for another
purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident. In a criminal case this evidence is admissible
only if the probative value of the evidence outweighs its potential
for unfair prejudice.
Pa.R.Evid. 404(b) (emphasis added).
In this case, Appellant’s whole argument is that evidence of the first
incident permitted the jury to infer that he had a motive for commission of
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the second incident. This falls within the express terms of permissible uses
of a prior bad act since proof of a motive is the first example listed in Rule
404(b). See Commonwealth v. Hairston, 84 A.3d 657, 669 (Pa. 2014)
(prior bad act evidence admissible as it was used to prove motive);
Commonwealth v. Green, 76 A.3d 575, 585 (Pa. Super. 2013), appeal
denied, 87 A.3d 318 (Pa. 2014) (same); Commonwealth v. Wholaver,
989 A.2d 883, 897 (Pa. 2010) (same); Commonwealth v. Malloy, 856
A.2d 767, 775-776 (Pa. 2004) (same).
The probative value of the first incident also outweighed the potential
for its unfair prejudice. The evidence was highly probative as it provided the
full picture of Appellant’s related crimes and why he went to Complainant’s
house and assaulted her. The evidence of the first incident did not have “a
tendency to suggest decision on an improper basis or divert the jury’s
attention away from its duty of weighing the evidence impartially.” Parr v.
Ford Motor Co., 2014 WL 7243152, *9 (Pa. Super. Dec. 22, 2014) (en
banc) (internal quotation marks and citations omitted) (defining unfair
prejudice). Instead, the evidence was merely adverse to Appellant’s case –
as is most evidence offered by the Commonwealth. Therefore, even if trial
counsel had successfully had the two informations severed for trial, the first
incident would have been admissible at the trial on the charges relating to
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the second incident. Accordingly, Appellant was not prejudiced by trial
counsel’s failure to seek severance.16
Appellant next contends that his trial counsel was ineffective for failing
to file a motion seeking permission to offer evidence of Complainant’s prior
consensual sexual encounters with Appellant. In particular, Appellant argues
that he previously engaged in consensual bondage and rough sexual
intercourse with Complainant. He contends that because Complainant
alleged that she was restrained with ropes during one of the sexual assaults,
16
It is for these same reasons that Appellant’s underlying claim lacks
arguable merit. As this Court has explained:
Our Supreme Court has established a three part test . . . for
deciding the issue of joinder versus severance of offenses from
different informations. The court must determine whether the
evidence of each of the offenses would be admissible in a
separate trial for the other; whether such evidence is capable of
separation by the jury so as to avoid danger of confusion; and, if
the answers to these inquiries are in the affirmative, whether the
defendant will be unduly prejudiced by the consolidation of
offenses.
Commonwealth v. Kunkle, 79 A.3d 1173, 1190 (Pa. Super. 2013)
(citation omitted).
As discussed above, the evidence of the first incident would have been
admissible at the trial relating to the second incident and Appellant was not
unduly prejudiced from the consolidation of the offenses. Finally, it was
easy for the jury to separate the offenses because, as Appellant notes, the
incidents were separated by both time and location. Therefore, Appellant’s
underlying claim lacks arguable merit.
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this evidence of consensual bondage was highly relevant to the issue of
consent.
Appellant’s trial counsel attempted to cross-examine Complainant
regarding her prior consensual bondage with Appellant. The Commonwealth
objected on the basis that the evidence was irrelevant. See Pa.R.Evid. 401.
The trial court sustained the objection and ruled the evidence irrelevant. On
direct appeal, this Court held that the trial court erred by sustaining the
objection based upon Rule 401. Commonwealth v. Stevens, 69 A.3d
1284 (Pa. Super. 2013) (unpublished memorandum), at 10-13. This Court,
however, determined that the trial court should have sustained the objection
based upon the Rape Shield Law because Appellant failed to file a written
motion outlining his intention to cross-examine Complainant regarding their
previous consensual bondage. Id. at 13.
Under Pennsylvania’s Rape Shield Law,
(a) General rule. Evidence of specific instances of the alleged
victim’s past sexual conduct, opinion evidence of the alleged
victim’s past sexual conduct, and reputation evidence of the
alleged victim’s past sexual conduct shall not be admissible in
prosecutions under this chapter except evidence of the alleged
victim’s past sexual conduct with the defendant where consent of
the alleged victim is at issue and such evidence is otherwise
admissible pursuant to the rules of evidence.
(b) Evidentiary proceedings. A defendant who proposes to offer
evidence of the alleged victim’s past sexual conduct pursuant to
subsection (a) shall file a written motion and offer of proof at the
time of trial. If, at the time of trial, the court determines that
the motion and offer of proof are sufficient on their faces, the
court shall order an in camera hearing and shall make findings
on the record as to the relevance and admissibility of the
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proposed evidence pursuant to the standards set forth in
subsection (a).
18 Pa.C.S.A. § 3104.
We conclude that Appellant’s underlying claim lacks arguable merit.
The Commonwealth’s theory of the case was not that Appellant tied up
Complainant and then raped her while she was conscious. Instead, the
Commonwealth’s theory was that Appellant beat Complainant unconscious,
restrained her with ropes, and then raped her. As this Court stated on
Appellant’s direct appeal, “it strains reason to believe that Appellant’s proffer
of prior consensual bondage was probative on the question of consent in
light of the trial evidence that Appellant beat Complainant into a state of
unconsciousness and then raped her.” Commonwealth v. Stevens, 69
A.3d 1284 (Pa. Super. 2013) (unpublished memorandum), at 13 n.7.
Therefore, even if trial counsel had filed a written motion seeking permission
to cross-examine Complainant regarding the prior consensual bondage, the
evidence would have been inadmissible under the Rape Shield Law.
Furthermore, Appellant has not proven actual prejudice as a result of
trial counsel’s failure to file a written motion pursuant to the Rape Shield
Law. In addition to Complainant’s testimony, there was substantial evidence
of Appellant’s guilt consistent with the Commonwealth’s theory of the case
and inconsistent with Appellant’s story. Specifically, Complainant had head
wounds consistent with blunt force trauma inflicted by Appellant and
inconsistent with injuries suffered in a car accident. Appellant admitted to
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police that he had engaged in sexual intercourse with Complainant during
this time period, when an active protection from abuse order was in place.
Thus, even if Appellant were permitted to cross-examine Complainant
regarding their prior consensual bondage, there is no reasonable probability
that the result of the trial would have been different. Accordingly, the trial
court properly concluded that Appellant failed to prove that trial counsel was
ineffective and, therefore, correctly denied the petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/27/2015
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