Com. v. Tackett, M.

J-S48031-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

MICHAEL R. TACKETT

Appellant No. 188 WDA 2015

Appeal from the PCRA Order of January 20, 2015
In the Court of Common Pleas of Crawford County
Criminal Division at No.: CP-20-CR-0000571-2010

BEFORE: PANELLA, J., DONOHUE, J., and WECHT, J.

MEMORANDUM BY WECHT, J.: FILED SEPTEMBER 22, 2015

Michael Tackett appeals the January 20, 2015 order dismissing his

timely petition for relief pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541-46, without an evidentiary hearing. Herein, Tackett

raises three claims of ineffective assistance of counsel and alleges that the

PCRA court erred by dismissing his petition without an evidentiary hearing.

Finding no actionable merit to any of these claims, we affirm.

On May 19, 2010, Tackett was charged with two counts of rape, two

counts of involuntary deviate sexual intercourse (“IDSI”), two counts of

sexual assault, one count of terroristic threats, and one count of simple

assault.1 The charges stemmed from Tackett’s physical and sexual assault
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1
18 Pa.C.S. §§ 3121(a)(1); 3123(a)(1); 3124.1; 2706(a)(1), and
2701(a)(1), respectively.
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of T.L., a real estate agent, on May 24, 2007. Prior to trial, the

Commonwealth filed a motion in limine, in which the Commonwealth sought

permission from the trial court to introduce prior bad acts testimony

pursuant to Pa.R.E. 404(b) regarding Tackett’s prior rape of C.F., another

real estate agent, under similar circumstances and Tackett’s attempts to

commit the same on real estate agents R.B. and A.T. The Commonwealth

sought to introduce this evidence to demonstrate Tackett’s common scheme,

plan, design, and/or identity. The trial court granted the motion.

Counsel for Tackett also filed a pre-trial motion in limine, in which

counsel requested that the trial court dismiss the simple assault charge.

Because the crime occurred on May 24, 2007, counsel contended that the

statute of limitations had expired for that crime. The trial court agreed, and

dismissed the simple assault count.

Tackett elected to be tried by a jury. The trial commenced on March

21, 2011 and ended on March 24, 2011 with Tackett being convicted of all of

the remaining charges. The evidence presented at trial fairly can be

summarized as follows.

On May 16, 2007, T.L. received a call from a potential buyer

requesting to view a property that she had listed for sale. Although the

caller identified himself as Randy Thompson, it actually was Tackett making

the phone call. They agreed to meet at the property on March 24, 2007. On

that day, Tackett arrived at the property in a blue Mercury Mountaineer.

T.L. showed Tackett around the outside of the property first, and then the

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inside of the property. T.L. noticed that Tackett would not touch anything

inside of the home. After a thorough walkthrough of the interior of the

property, T.L. and Tackett went back outside. While outside, Tackett

smoked a cigarette and then placed the butt of the cigarette into his pocket.

T.L. then began packing up her computer and materials because she

had to attend a closing on another property. Before she could leave, Tackett

asked T.L. if he could take one last look around the interior of the property.

They went back inside and walked around the main portion of the residence

until Tackett asked to look at the basement. When they got to the bottom of

the stairs, Tackett focused his attention on a hole in the wall of a storage

room, which concerned him. T.L. believed that it may be for a sump pump,

and decided to enter the storage room to take another, closer, look. When

she bent down to examine the hole, she felt something stun her abdomen.

She then felt Tackett on top of her. He was holding a stun gun, and

proceeded to stun her a second time.

T.L. tried to bite Tackett’s hand, but was met with another shot from

the stun gun. Tackett then grabbed T.L. by the hair, placed his other arm

around her waist, and dragged her to a carpeted area of the basement. T.L.

begged him not to continue with the attack, but Tackett responded by

threatening to kill her and her children if she did not cooperate.

In the carpeted room, Tackett stunned her again, causing her to drop

to her knees. Tackett pulled the neck portion of T.L.’s shirt down and

fondled her breasts. He then took his penis out of his pants and instructed

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T.L. to perform oral sex on him. Tackett told her that he knew where she

lived and that, if she did not perform oral sex on him or if she tried to bite

his penis, he would kill her children. Tackett inserted his penis into her

mouth. While holding onto her ponytail, Tackett forced T.L.’s head back and

forth over his penis. T.L. noted that Tackett’s pubic region either had been

trimmed or shaved completely.

T.L. continued to beg Tackett to end the assault. Instead, Tackett

demanded that T.L. remove her pants. T.L. told Tackett that she was

menstruating and that she suffered from hemorrhaging due to child birth.

Tackett told her that if he could not have intercourse with her vaginally, that

he would do it another way. Tackett then flipped T.L. over, slammed her

down on her stomach, and crawled on top of her. At some point, Tackett

had placed a condom over his penis. He then forced his penis into her anus.

As he did so, Tackett talked about how he still intended to purchase the

home. In an effort to keep him calm, T.L. responded to his discussion about

the home, and talked about the quality of the surrounding neighborhood.

When he had completed his assault, Tackett stood up and instructed

T.L. to get dressed. However, Tackett then panicked because he could not

find another condom that he had brought with him. He grabbed T.L. by the

hair and dragged her back into the storage room. He held her by her hair

while he searched for the condom. Once he found it, he put it in his pocket

and told her that it was time to leave.

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T.L. called her husband and told him that she had been attacked. She

met her husband and showed him the burn marks from the stun gun on her

stomach. She did not tell him that she was sexually assaulted. T.L. insisted

that they not call the police because she was afraid that, if she did, Tackett

would kill her children. However, after some discussions, her husband

convinced her to contact law enforcement. She then went to the

Pennsylvania State Police barracks, where she met Trooper Kurt Sitler. She

told the trooper that she was physically assaulted with a stun gun and that

she and her children were threatened. She also gave a description of

Tackett and his vehicle. However, T.L. told the trooper that she did not

know if she was sexually assaulted. She told him only that Tackett had

exposed his penis to her, which caused her to elbow him and run away.

Trooper Sitler drove T.L. to a local hospital where T.L. met with nurse

Sarah Mattocks. Even though T.L. did not admit at that time that she had

been sexually assaulted as well, the nurse performed a rape kit examination

on T.L. Mattocks did not observe any bleeding or tearing in or around T.L.’s

anus. Additionally, Mattocks did not detect any trauma on T.L.’s vagina.

Neither the police nor the medical personnel who treated T.L. located any

biological evidence, including DNA, that was attributable to anyone other

than T.L. or her husband. Thereafter, T.L. was released from the hospital

and sent home to recover from her injuries.

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Two or three weeks after the assault, T.L. told her husband that she

had been sexually assaulted in addition to the physical assault. She did not

inform Trooper Sitler at that time that she had been sexually assaulted.

Approximately two years later, in 2009, T.L. learned via a warning

from her real estate company that another person had been sexually

assaulted in Mercer County under circumstances very similar to those from

which she had suffered. Shortly after the Mercer County incident, Trooper

Sitler reinitiated contact with T.L. and asked her to come to the barracks to

view suspects in a photo array. She was able to identify Tackett from that

array. T.L. then began to cry and told Trooper Sitler that she had been

sexually assaulted by Tackett.

Trooper Todd Gilberto was working at the police barracks on the day of

the assault. At approximately 3:13 p.m., he received a call from T.L. She

told him that a man named Randy Thompson had assaulted her with a stun

gun. She told him that she was not raped or sexually assaulted. However,

she told Trooper Gilberto, as she did initially with Trooper Sitler, that her

assailant had exposed his penis, and that she elbowed him and ran away.

A.T. is a real estate agent in Ohio. On November 23, 2008, she

showed a man who identified himself as Randall Thompson a property in

Boardman, Ohio. Thompson, who actually was Tackett, requested a second

viewing of the home a few days later. However, A.T. took a second agent,

L.E., with her because she was uncomfortable being alone with Tackett.

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Tackett was visibly annoyed and frustrated with the presence of L.E.

Thereafter, A.T. would not show Tackett any other properties.

R.B. is also a real estate agent. Tackett, who used the name Randy

Mitchell, requested an appointment with R.B. to view two of the properties

that she had listed for sale. On February 12, 2009, R.B. met Tackett at one

of the properties at 9:00 a.m. Shortly thereafter, R.B.’s husband also

showed up to the viewing. Tackett immediately became agitated. Tackett

viewed the property, but then asked if R.B.’s husband was going to

accompany them to the second viewing. The question and the interaction

with Tackett made R.B. very uncomfortable.

C.F., a real estate agent as well, met Tackett at an open house in May

2009. Once again, Tackett used an alias. This time it was Randy Michaels.

C.F. showed Tackett a residence in Mercer County on June 11, 2009. During

that showing, Tackett raped C.F. and threatened to kill her and her family if

she told anyone. Tackett also stole her credit cards. Tackett was convicted

in Mercer County of rape and related offenses for his attack on C.F.

Tackett testified in his own defense. He admitted that he pleaded

guilty to the sexual attack on C.F. However, he insisted that he did not rape

or otherwise sexually assault T.L. Tackett stated that he suffered from a

prescription pill addiction, and that he lured real estate agents into showing

him properties with the intent to steal from them. He confessed to using the

stun gun on T.L. in an attempt to rob her. However, she elbowed him in the

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groin and fled the residence. No sexual assault occurred, according to

Tackett.

At the conclusion of trial, as noted earlier, the jury convicted Tackett

of all of the charged offenses. On August 2, 2011, the trial court sentenced

Tackett to an aggregate term of incarceration of twenty and one-half to

forty-five years. Tackett filed a direct appeal to this Court. A panel of this

Court concluded that, because Tackett’s brief failed in numerous substantive

ways to conform to our rules of procedure, Tackett had waived all of his

issues. Nonetheless, despite finding waiver, the panel briefly reviewed the

merits of those issues and concluded that, even if Tackett’s brief was

compliant, he would not be entitled to relief. See Commonwealth v.

Tackett, No. 1789 WDA 2011, slip op. at 5-9 (Pa. Super. June 11, 2012).

Tackett then filed a petition for allowance of appeal with the Pennsylvania

Supreme Court, which was denied on July 2, 2013.

On July 24, 2014, Tackett filed a timely pro se PCRA petition. The

PCRA court appointed counsel to represent Tackett during the PCRA

proceedings. On October 8, 2014, counsel filed an amended PCRA petition

on Tackett’s behalf. The PCRA court held a hearing for the purposes of

argument only. On December 1, 2014, the PCRA court issued an opinion

addressing the merits of Tackett’s PCRA petition, and concluding that Tackett

is not entitled to relief. In addition to the opinion, the court issued notice of

its intent to dismiss the petition without a full evidentiary hearing pursuant

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to Pa.R.Crim.P. 907. On January 20, 2015, the PCRA court formally

dismissed Tackett’s petition.

On January 26, 2015, Tackett filed a notice of appeal. On the same

date, Tackett filed a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), even though he was not ordered to do so.

On January 28, 2015, the PCRA court issued a statement pursuant to

Pa.R.A.P. 1925(a) directing this Court to the analysis set forth by the PCRA

court in its December 1, 2014 opinion.

Tackett raises two overarching questions for our review:

1. Whether the PCRA court erred in determining that [Tackett’s]
counsel was not ineffective?

2. Whether the PCRA court erred in not having an evidentiary
hearing to address the issues raised in [Tackett’s] amended
petition for post-conviction collateral relief?

Brief for Tackett at 7. In his brief, Tackett expands his first issue to include

three specific claims of ineffective assistance of counsel, each of which was

raised and preserved in the proceedings below. Those claims are as follows:

1. Whether trial counsel was ineffective for filing a pre-trial
motion to dismiss the simple assault charge?

2. Whether trial counsel was ineffective for failing to call
Tackett’s wife as a witness at trial?

3. Whether appellate counsel was ineffective for filing a
substantially non-compliant appellate brief?

Brief for Tackett at 27-32.

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The governing legal standards attendant to our review in the PCRA

context are well-defined: “[A]n appellate court reviews the PCRA court’s

findings of fact to determine if they are supported by the record, and

reviews its conclusions of law to determine whether they are free from legal

error.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citing

Commonwealth v. Colavita, 993 A.2d 874, 887 (Pa. 2010)). “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.” Id. (citing Commonwealth v. Sam, 952 A.2d 565, 573 (Pa. 2008)).

Furthermore, the PCRA court’s credibility determinations, when supported by

the record, are binding upon this Court. Commonwealth v. Johnson, 966

A.2d 523, 532, 539 (Pa. 2009). We apply a de novo standard of review with

regard to the PCRA court’s legal conclusions. Commonwealth v. Rios, 920

A.2d 790, 810 (Pa. 2007).

Three of Tackett’s claims allege ineffective assistance of counsel

(“IAC”). Our standard of review in this context is well-defined:

[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 “[i]neffective 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.” Colavita, 993 A.2d at 886 (citing
Strickland v. Washington, 466 U.S. 668, 690 (1984)). In
Pennsylvania, we have refined the Strickland performance and

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prejudice test into a three-part inquiry. See Commonwealth v.
Pierce, 527 A.2d 973, 975-77 (Pa. 1987). Thus, to prove
counsel ineffective, the petitioner must show that: (1) his
underlying claim is of arguable merit; (2) counsel had no
reasonable basis for his action or inaction; and (3) the petitioner
suffered actual prejudice as a result. Commonwealth v. Ali,
10 A.3d 282, 291 (Pa. 2010). “If a petitioner fails to prove any
of these prongs, his claim fails.” Commonwealth v. Simpson,
66 A.3d 253, 260 (Pa. 2013).

Spotz, 84 A.3d at 311 (internal citations modified). We need not analyze

“the elements of an ineffectiveness claim in any particular order of priority;

instead, if a claim fails under any necessary element of the [Pierce] test,

the court may proceed to that element first.” Commonwealth v. Lambert,

797 A.2d 232, 243 n.9 (Pa. 2001). Furthermore, “counsel will not be

considered ineffective for failing to pursue meritless claims.”

Commonwealth v. Pursell, 724 A.2d 293, 304 (Pa. 1999) (citing

Commonwealth v. Parker, 469 A.2d 582, 584 (Pa. 1983)).

In his first issue, Tackett contends that trial counsel was ineffective by

filing a motion in limine seeking to have the simple assault charge dismissed

based upon the statute of limitations. Tackett admits that he asked counsel

to file the motion, see Brief for Tackett at 27, but maintains that counsel

should not have acquiesced to his request. Tackett admitted at trial that he

physically assaulted T.L. However, he denied that he sexually assaulted her.

Thus, according to Tackett, the jury only convicted him of the sexually-

related charges because they had no other options. In other words, Tackett

argues that the jury was unable to convict him of simple assault, and the

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absence of that charge on the verdict slip “swayed” the jurors into finding

him guilty of the sexually-related charges. Id.

Tackett’s argument fails for a number of reasons. First, even if we

ignore the fact that Tackett specifically requested that counsel file the

motion, Tackett has not established all three elements of the governing test.

Although Tackett sets forth all of the governing principles of the test, see id.

at 25, he only pays lip service to each prong in his actual argument. Id. at

28. Tackett does not discuss each prong individually. Rather, he merely

parrots the three prongs in three brief lines of text. It is unclear whether

the remainder of his argument is directed at the arguable merit prong or the

prejudice prong. He gives the reasonable basis prong no substantive

attention.

Moreover, there is nothing in the record to substantiate his version of

the jury’s deliberations. We observe nothing in the record, other than

Tackett’s belief that the jury was poised to reject T.L.’s testimony as

incredible, that would support his claim that the jury only convicted him of

the sexually-related offenses because they had no option to convict him only

of assault. To the contrary, T.L. testified at length, and in great detail,

about the violent sexual abuse that Tackett perpetrated on her in the

basement of that house. The jury was entitled to credit that testimony, and

it appears that they did. The record offers no support to Tackett’s spurious

argument that the jury would have acquitted him of those charges if only

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they had other charges to fall back on relating only to the physical attack.

This claim lacks arguable merit entirely.

In his second claim, Tackett argues that trial counsel was ineffective

for failing to call his wife as a witness at trial. T.L. testified that, when

Tackett exposed his penis, she noticed that he either had no pubic hair or

that the hair was extensively groomed. Tackett argues that his wife would

have testified that, during the entire year of 2007, she never observed

Tackett’s pubic area without hair.

When raising a claim of ineffectiveness for the failure to call a
potential witness, a petitioner satisfies the performance and
prejudice requirements of the Strickland test by establishing
that: (1) the witness existed; (2) the witness was available to
testify for the defense; (3) counsel knew of, or should have
known of, the existence of the witness; (4) the witness was
willing to testify for the defense; and (5) the absence of the
testimony of the witness was so prejudicial as to have denied the
defendant a fair trial. Johnson, 966 A.2d at 536;
Commonwealth v. Clark, 961 A.2d 80, 90 (Pa. 2008). To
demonstrate Strickland prejudice, a petitioner “must show how
the uncalled witnesses’ testimony would have been beneficial
under the circumstances of the case.” Commonwealth v.
Gibson, 951 A.2d 1110, 1134 (Pa. 2008). Thus, counsel will not
be found ineffective for failing to call a witness unless the
petitioner can show that the witness’ testimony would have been
helpful to the defense. Commonwealth v. Auker, 681 A.2d
1305, 1319 (Pa. 1996). “A failure to call a witness is not per se
ineffective assistance of counsel for such decision usually
involves matters of trial strategy.” Id.

Commonwealth v. Sneed, 45 A.3d 1096, 1108-09 (Pa. 2012).

Tackett does not address the first four elements of this test. However,

even if we assume that, because the witness was his wife, that she was

willing to testify and that counsel knew that she existed, Tackett cannot

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show that the absence of her testimony would have altered the outcome of

the case.

Tackett relies upon T.L.’s initial failure to tell her husband, the medical

personnel, or the troopers that she was sexually assaulted. Tackett argues

that these facts significantly impaired her credibility before the jury, and

that, had the jurors known that he kept a full pubis of hair in 2007, T.L.’s

credibility would have been further damaged, and the jury likely would have

acquitted him. We disagree.

The evidence at trial demonstrated unequivocally that Tackett is a

serial rapist with a very clear modus operandi. Tackett lured female real

estate agents into secluded and private for-sale residences with the intent to

rape them therein. Tackett’s meticulous refusal to touch anything within the

home, and his diligent efforts to ensure that nothing that he brought to the

home was left there (including condoms and cigarette butts), highlights the

fact that he went to these homes with the exclusive intent to physically and

sexually assault these unsuspecting women. T.L. testified extensively about

the various steps that he took to get her into the basement and to remove

any evidence that could link him to the crime.

T.L. testified that he used a stun gun to force her to her knees. He

then forced her to perform fellatio on him. Tackett continued the assault by

pushing her on her stomach and anally raping her. He then dragged her

around the basement by her ponytail looking for a misplaced condom.

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Tackett takes issue with none of this evidence. Rather, he focuses

only upon the fact that T.L. did not report the sexual aspect of the assault

promptly. Tackett conspicuously ignores the fact that Tackett repeatedly

threatened to kill her and her children if she told anyone. She was so

terrified after the assault that he would come back and kill her or her

children that she elected not to tell anyone, including her own husband

about the sexual assault. T.L. told the jury that his own threats were why

she was afraid to tell the entire truth. The jury was free to believe this

evidence.

Consequently, even if we assume, arguendo, that T.L. was mistaken

about the amount of pubic hair surrounding Tackett’s penis, Tackett cannot

demonstrate that the absence of his wife’s testimony was prejudicial. T.L.’s

testimony, especially when considered in conjunction with the testimony

regarding his other rape and similar attempts, was overwhelming, and her

observation about Tackett’s pubic hair was a minor, if not insignificant, part

of her testimony. Testimony proving otherwise would not have altered the

outcome of the trial, particularly because the lack of a prompt complaint was

directly due to his threats. Unable to demonstrate prejudice, this claim

necessarily fails.

In his third issue, Tackett argues that his appellate counsel was

ineffective for failing to file a brief that complied substantially with our

briefing rules. We may dispose of this issue quickly. It is true that, on

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direct appeal, a panel of this Court concluded that Tackett had waived each

of his issues because Tackett’s brief clearly was non-compliant. However,

the panel proceeded to discuss each issue and declare each to be without

merit. Presently, Tackett maintains that counsel was ineffective in failing to

file a compliant brief, but, in doing so, entirely fails to discuss the issues that

he raised in that brief, the merits of each, and how a compliant brief would

have altered the outcome of the appeal. Indeed, Tackett does not

demonstrate, or even attempt to demonstrate, that he would have been

successful in any of the issues that he raised on appeal. Failing to do so,

Tackett has not demonstrated that his claim has arguable merit or that he

was prejudiced by counsel’s failures.

Finally, Tackett argues that the PCRA court erred by not holding a full

evidentiary hearing. A PCRA court has the discretion to dismiss a petition

without a hearing when the court is satisfied “that there are no genuine

issues concerning any material fact, the defendant is not entitled to post-

conviction collateral relief, and no legitimate purpose would be served by

any further proceedings.” Pa.R.Crim.P. 909(B)(2). “[T]o obtain reversal of

a PCRA court’s decision to dismiss a petition without a hearing, an appellant

must show that he raised a genuine issue of fact which, if resolved in his

favor, would have entitled him to relief, or that the court otherwise abused

its discretion in denying a hearing.” Commonwealth v. D'Amato, 856

A.2d 806, 820 (Pa. 2004). For the reasons set forth above, we discern no

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genuine issues of material fact that would warrant an evidentiary hearing.

Moreover, it is clear that Tackett is not entitled to PCRA relief, and that a

hearing would not serve any legitimate purpose. Tackett’s final issue fails.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/22/2015

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