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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
PHILIP J. GIUNTA, II, : No. 801 MDA 2015
:
Appellant :
Appeal from the PCRA Order, April 16, 2015,
in the Court of Common Pleas of Centre County
Criminal Division at No. CP-14-CR-0001084-1012
BEFORE: FORD ELLIOTT, P.J.E., WECHT AND FITZGERALD,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 23, 2015
Philip J. Giunta appeals from the April 16, 2015 order dismissing his
first petition filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-9546. Finding that trial counsel provided ineffective
assistance, we reverse and remand for a new trial.
This case concerns an incident that occurred at a house party on
South Allen Street in State College, Pennsylvania, during the early morning
hours of September 5, 2011. The victim, C.M.,1 traveled from her home in
Bellefonte, Pennsylvania, on September 4, 2011, for an overnight visit with
her friends, Arianna Smith and Mary Hickey, who lived in the North Halls
* Former Justice specially assigned to the Superior Court.
1
It is common practice of this court to identify victims of sexually based
offenses by their initials.
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dormitory at Penn State University. (Notes of testimony, 3/4/13 at 29-30,
154.) After spending several hours at Smith’s dorm, the victim, Smith, and
Hickey walked to a house party being held by Josh Baker and Jeff Green,
both of whom went to high school with the victim. (Id. at 31.) The victim
and her friends arrived at the party between 10:00 and 10:30 p.m. (Id. at
32.) While at the party, the victim consumed several alcoholic beverages to
the point that she became intoxicated. (Id. at 31.)
Appellant arrived at the party between approximately 10:30 and
11:00 p.m. on September 4. (Id. at 32.) Upon his arrival, the victim took
her friends outside to the porch to tell them that appellant was involved in a
previous incident with her friend at Lock Haven University. (Id. at 33, 155.)
Hickey’s testimony indicated that the victim specifically told her friends that
appellant had raped A.G.2 at Lock Haven. (Id. at 155.)
After appellant’s arrival, the victim went to get a beer from Green’s
bedroom. (Id. at 33.) Appellant followed her into Green’s bedroom and
kissed the victim, and she reciprocated for approximately ten seconds. (Id.
at 33-34.) During this encounter, appellant said to the victim, “You know,
we’re going to hook up tonight.” (Id. at 34.) The victim responded by
saying, “Yeah right,” but she testified that her response was meant to be
sarcastic. (Id.)
2
Appellant was never charged with a crime relating to an alleged sexual
assault of A.G. Due to the fact that a sexually based offense has been
alleged, we will identify the alleged victim only by her initials.
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Later, in the early morning hours of September 5, 2011, the victim
went outside to get some fresh air and smoke a cigarette, where she was
joined by appellant. (Id. at 35.) During this conversation, appellant twice
told the victim to “follow me,” and twice the victim declined. (Id. at 35-36.)
Appellant then said “follow me” a third time and, grabbing the victim’s arm,
took her to the side of the house. (Id. at 36.) There, the victim testified
that appellant pushed her down on the ground, forced the victim’s legs
apart, and “put his penis inside of [her],” against her will. (Id. at 36-37.)
The victim testified that she had passed out and she recalled waking up by
herself at the side of the house. (Id. at 37.)
The victim’s friends took her to Mount Nittany Medical Center, where
she was treated by Monique Wooster, a registered nurse in the hospital’s
emergency department. (Id. at 50-51.) Nurse Wooster testified that the
victim had a laceration of the left vaginal wall. (Id. at 66.) The
Commonwealth’s expert witness, Jenifer Markowitz,3 testified that the
victim’s injuries were consistent with the victim’s allegations. (Id. at 100.)
Appellant testified in his own defense at trial. He testified that the
victim was very “flirtatious” with him throughout the evening. (Id. at 227.)
He testified that the victim told him that they were going to have sex that
night, and that the victim was asking if he would spend the night with her.
3
Markowitz is a forensic nursing consultant, and was accepted by the trial
court as an expert witness. (Id. at 84, 95.)
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(Id. at 230.) Appellant admitted to joining the victim on the porch for a
cigarette. (Id. at 231.) After both the victim and appellant were finished
smoking, appellant testified that he and the victim started kissing and then
he digitally penetrated her. (Id.) At that point, according to appellant, the
victim and appellant began discussing where to go to have sex. (Id.)
Appellant testified that he and the victim went to the side of the house
where the victim performed oral sex on him for approximately
10-15 minutes before appellant briefly penetrated the victim with his penis.
(Id. at 232-233.) Appellant then testified that he and the victim went back
into the house together. (Id. at 234.) According to appellant’s testimony,
any physical contact that he had with the victim was consensual.
On June 7, 2012, appellant was charged with rape by forcible
compulsion, sexual assault, aggravated indecent assault without consent,
and aggravated indecent assault by forcible compulsion.4 Appellant was also
charged with indecent assault without consent and simple assault; 5 however,
those charges were withdrawn by the Commonwealth. A preliminary
hearing was held on June 13, 2012, and appellant was ordered to stand trial,
where he was represented by Patrick Klena, Esq. of the Centre County Public
Defender’s Office. The jury convicted appellant of all charges following a
two-day jury trial on March 5, 2013. (Notes of testimony, 3/5/13 at 60-61.)
4
18 Pa.C.S.A. §§ 3121(a)(1), 3124.1, and 3125(a)(1) & (2), respectively.
5
18 Pa.C.S.A. §§ 3126(a)(1) and 2701(a)(1), respectively.
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On June 6, 2013, appellant was sentenced to an aggregate of eight to
sixteen years’ imprisonment. Appellant filed post-sentence motions which
were denied by the trial court on August 16, 2013. On September 10, 2013,
appellant filed notice of appeal with this court; however, new counsel
entered his appearance and that appeal was discontinued on January 31,
2014. Appellant filed the instant petition for collateral relief pursuant to the
PCRA on July 21, 2014. The PCRA court conducted a hearing on January 9,
2015, and denied appellant’s petition on April 16, 2015. Appellant filed
notice of appeal on May 4, 2015. On May 22, 2015, appellant filed a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
The PCRA court declined to file an additional opinion, instead referring to the
opinion that accompanied the April 16, 2015 order denying appellant’s PCRA
petition.
Appellant raises the following issues on appeal:
1. Was trial counsel ineffective when, as part of
his trial strategy, he elicited testimony from
the victim that she believed the Defendant had
previously raped [A.G.]?
2. Was trial counsel ineffective when he failed to
secure the presence of [A.G.] to testify at trial?
3. Was trial counsel ineffective in failing to object
to the testimony of Jennifer [sic] Markowitz, an
expert witness in the area of well woman
health?
4. Was trial counsel ineffective for failing to
request jury instruction Pa.S.S.J.I. § 8.311(B)?
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Appellant’s brief at 4.
PCRA petitions are subject to the following standard of review:
“[A]s a general proposition, we 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. Dennis, 609 Pa.
442, 17 A.3d 297, 301 (Pa. 2011) (citation omitted).
A PCRA court’s credibility findings are to be accorded
great deference, and where supported by the record,
such determinations are binding on a reviewing
court. Id. at 305 (citations omitted). To obtain
PCRA relief, appellant must plead and prove by a
preponderance of the evidence: (1) his conviction or
sentence resulted from one or more of the errors
enumerated in 42 Pa.C.S. § 9453(a)(2); (2) his
claims have not been previously litigated or waived,
id. § 9543(a)(3); and (3) “the failure to litigate the
issue prior to or during trial . . . or on direct appeal
could not have been the result of any rational,
strategic or tactical decision by counsel[.]” id.
§ 9543(a)(4). An issue is previously litigated if “the
highest appellate court in which [appellant] could
have had review as a matter of right has ruled on
the merits of the issue[.]” Id. § 9544(a)(2). “[A]n
issue is waived if [appellant] could have raised it but
failed to do so before trial, at trial, . . . on appeal or
in a prior state postconviction proceeding.” Id.
§ 9544(b).
Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015).
All four of appellant’s claims derive from the underlying issue of
whether his trial counsel, Attorney Klena, provided effective assistance at
trial.
The governing legal standard of review of
ineffective assistance of counsel claims is
well-settled:
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[C]ounsel 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.
Strickland v. Washington, 466 U.S.
668 (1984). This Court has described
the Strickland standard as tripartite by
dividing the performance element into
two distinct components.
Commonwealth v. Pierce, 527 A.2d
973, 975 (Pa. 1987). Accordingly, to
prove counsel ineffective, the petitioner
must demonstrate that (1) the
underlying legal issue has arguable
merit; (2) counsel’s actions lacked an
objective reasonable basis; and (3) the
petitioner was prejudiced by counsel’s
act or omission. Id. A claim of
ineffectiveness will be denied if the
petitioner’s evidence fails to satisfy any
one of these prongs.
Commonwealth v. Busanet, 54 A.3d 34, 45 (Pa.
2012) (citations formatted). Furthermore, “[i]n
accord with these well-established criteria for review,
[an appellant] must set forth and individually discuss
substantively each prong of the Pierce test.”
Commonwealth v. Fitzgerald, 979 A.2d 908, 910
(Pa.Super. 2009).
Commonwealth v. Perzel, 116 A.3d 670, 671-672 (Pa.Super. 2015).
First, we address appellant’s fourth issue where he claims that trial
counsel was ineffective for not requesting a jury instruction regarding
consent as a defense. The Commonwealth avers that the failure by trial
counsel to request such an instruction did not affect the outcome of the
proceedings. Pursuant to Pierce, we will first address whether appellant’s
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claim that Attorney Klena was ineffective for failing to request a jury
instruction on consent6 has any arguable legal merit.
6
The jury instruction at issue is as follows:
CONSENT A DEFENSE
1. The consent of the victim is a defense to a
charge of [charge]. Consent is present if the
victim at the time of the alleged crime [is willing
that [give specifics]] [is willing that [give
specifics] and makes [his] [her] willingness
known to the defendant by words or behavior]
[give specifics].
2. The consent of the victim is not legally effective
and is not a defense if the victim is:
a. [Manifestly unable to make a
reasonable judgment as to the
nature or harmfulness of the conduct
charged that constitutes the crime;
[or]
b. Known to the defendant to be unable
to make a reasonable judgment as
to the nature or harmfulness of the
conduct charged that constitutes the
crime]
3. Additionally, the consent of the victim is not
legally effective and is not a defense if it is
induced by: [a. force; [or] b. duress; [or]
c. deception.]
4. The burden is on the Commonwealth to prove
beyond reasonable doubt that the alleged victim
did not give a legally effective consent. Thus,
you cannot convict the defendant unless you are
satisfied beyond reasonable doubt that [name of
victim] did not give a legally effective consent.
Pa.S.S.J.I. § 8.311(B).
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In cases in which consent is at issue, a defendant is entitled to have
the trial judge deliver a focused charge to the jury on consent.
Commonwealth v. Prince, 719 A.2d 1086, 1091 (Pa.Super. 1998). In
Prince, the defendant was charged and convicted of sexual assault. Id. at
1087. One of the elements of sexual assault is whether the complainant
consented to the sexual contact with the defendant.7 As this court noted in
Prince,
[w]hile a defendant may assert consent as a
defense, nevertheless, where lack of consent is an
element of the crime, the defendant does not bear
the burden of proving consent: the Commonwealth
bears the burden of proving lack of consent, beyond
a reasonable doubt. It was therefore imperative that
the jury be instructed clearly and definitively as to
where the burden lay on the issue of consent.
Id. at 1090. The Commonwealth charged appellant with sexual assault and
aggravated indecent assault without consent--two crimes in which lack of
consent is an element. Moreover, appellant has maintained an overall
defense that any contact that he had with the victim was consensual.
Appellant is correct in his averment that he was entitled to have the jury
receive a consent instruction, therefore, his ineffective assistance of counsel
claim has legal merit.
7
Sexual assault is defined as, “[e]xcept as provided in section 3121 (relating
to rape) or 3123 (relating to involuntary deviate sexual intercourse), a
person commits a felony of the second degree when that person engages in
sexual intercourse or deviate sexual intercourse with a complainant without
the complainant's consent.” 18 Pa.C.S.A. § 3124.1.
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Second, appellant must prove by a preponderance of the evidence that
the underlying act or omission by trial counsel which rendered his or her
assistance ineffective lacked a reasonable basis. When determining whether
trial counsel’s actions or omissions had any reasonable basis, we are
governed by the following standard:
In gauging the performance of an
attorney at trial, the process must entail
a comparison of the course adopted by
counsel with the alternatives available.
. . . The test is not whether alternatives
were more reasonable, employing a
hindsight evaluation of the record. . . .
“[A] finding of ineffectiveness could
never be made unless we concluded that
the alternatives not chosen offered a
potential for success substantially
greater than the tactics actually utilized.”
Commonwealth v. Collins, 545 A.2d 882, 885 (Pa.
1988) (emphasis in original), quoting
Commonwealth ex rel. Washington v. Maroney,
235 A.2d 349 (Pa. 1967). The balance tips in favor
of finding that counsel’s assistance was effective
should we conclude that his or her decisions had any
reasonable basis.
Commonwealth v. Kilgore, 719 A.2d 754, 756-757 (Pa.Super. 1998).
After a careful review of the record, we conclude that trial counsel did not
have any reasonable strategic basis in failing to request a jury instruction on
the defense of consent.
During the PCRA hearing, Attorney Klena testified regarding his failure
to request a jury instruction related to consent. During his testimony, he
stated that while he may have requested a jury instruction off the record, he
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could not recall whether he had actually done so on the record. (Notes of
testimony, 1/9/15 at 35.) During cross-examination, Attorney Klena
admitted that his failure to ask that a consent instruction be read to the jury
was a mistake on his part:
Q: Let’s talk about the jury instruction issue. Your
best recollection is you intended to have the
consent instruction?
A: I did.
Q: And it’s just a mistake?
A: I believe it was a mistake. I probably should
have on the record as opposed to in chambers
requested and objected to its exclusion.
Id. at 52-53. Based upon Attorney Klena’s admission that his failure to ask
for a jury instruction related to consent was a mistake and our review of the
record, we find no reasonable basis to fail to ask for such an instruction, and
therefore find that appellant has satisfied the second prong of the Pierce
test.
Finally, in order for a petitioner to prevail on a claim of ineffective
assistance filed under the PCRA, the petitioner must prove, by a
preponderance of the evidence, that trial counsel’s act or omission caused
petitioner to be prejudiced.
To demonstrate prejudice, the petitioner must show
that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland,
[supra at 694]; accord Commonwealth v. Cox,
983 A.2d 666, 668 (Pa. 2009). A reasonable
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probability is a probability sufficient to undermine
confidence in the outcome of the proceeding. See
Commonwealth v. Ali, 10 A.3d 282, 291 (Pa.
2010).
Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012).
In Prince, this court stated that a failure to instruct the jury on a
consent defense could undermine confidence in the outcome of the
proceedings.
We recognize that after setting forth the elements of
the crime of sexual assault, the trial court did charge
the jury that the Commonwealth bore the burden of
proving each element beyond a reasonable doubt.
The court also charged the jury that it was not
appellant’s burden to prove his innocence as to each
element of all of the crimes charged beyond a
reasonable doubt. Nevertheless, we find that
appellant was entitled to a focused charge on
consent, also emphasizing specifically where the
burden lay. . . . We agree with the Commonwealth
that the verdict indicates that the jury painstakingly
sifted through the elements of the crimes; however,
we cannot feel certain that the contested jury
charge could not have made a difference.
Prince, 719 A.2d at 1091 (citations omitted) (emphasis added). Moreover,
during deliberations, the jury asked a question regarding consent, in which
the jury asked what “non-consent” meant, and whether consent meant an
active assertion or if only passive, noncommittal behavior was required.
(Notes of testimony, 3/5/13 at 59.) The trial court provided the following
answer:
Non-consent means lack of consent. And you’ll have
to use [your] own common sense and life
experiences to determine what non-consent means
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in this situation. I’m sorry. There was no definition
that we felt we could give at this point which was not
given in the original instructions. So we’ll just have
to piece it together with what are in the other
instructions. Thank you. Sorry. The best we can
do.
Id. at 60. Coupled with this court’s language in Prince, the jury’s question
about the meaning of “non-consent” raises the possibility that confidence in
the outcome of appellant’s trial may be undermined. Therefore, appellant
has demonstrated that he was prejudiced by trial counsel’s failure to request
a jury instruction related to the consent defense.
Appellant has met all three prongs of the Pierce test for ineffective
assistance of counsel claims under the PCRA. Accordingly, we are
constrained to reverse the order dismissing appellant’s PCRA petition, and
we remand to the trial court for a new trial. Discussion of appellant’s
remaining issues is not necessary, as the issues are now moot.
Order reversed. Remanded for new trial. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/23/2015
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