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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
STUART JAMES PROPER, : No. 1705 WDA 2015
:
Appellant :
Appeal from the PCRA Order, September 23, 2015,
in the Court of Common Pleas of Venango County
Criminal Division at No. CP-61-CR-0000625-2012
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 21, 2016
Stuart James Proper appeals from the order of September 23, 2015,
denying his PCRA1 petition. We affirm.
Following a jury trial held June 10, 2013 to June 11, 2013, appellant
was found guilty of various sexual offenses, including rape of a child,
involuntary deviate sexual intercourse (“IDSI”), aggravated indecent assault
of a child, indecent assault, and corruption of minors.2 The charges related
to the sexual abuse of his girlfriend’s minor daughter, C.C. In a prior
* Retired Senior Judge assigned to the Superior Court.
1
Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
2
18 Pa.C.S.A. §§ 3121(c), 3123(b), 3125(b), 3126(a)(7), & 6301(a)(1)(ii),
respectively.
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memorandum, this court summarized the factual and procedural history of
the case as follows:
The victim, C.C., who was eleven years old at
the time of the underlying events, lived with her
mother (“Mother”), four siblings, and Proper, who
was Mother’s boyfriend. The jury heard the following
testimony:
[Mother] . . . testified that [C.C.]
revealed that [Proper] had “put his
fingers up inside her and [made] them
go real fast” and that such action had
“hurt her up inside.” [Mother] also
testified that [C.C.] said [Proper]
grabbed [C.C.’s] breasts and squeezed
them and, at some point, was apparently
attempting to enter [C.C.] with his
“thing” from behind as they were lying
together.[] [Mother] also testified to
another encounter [Proper] had with
[C.C.] while [Mother] was out shopping
with other children for school clothes for
[C.C.’s sister, S.C.]. At that time,
according to [Mother], [C.C.] told her
that [Proper] made her kiss his “thing”
and he again put his fingers up inside her
and when done, told [C.C.] not to tell
“Mama” what happened as it was a
secret. . . .
The jury also heard testimony from
[C.C.]. After establishing the requisite
foundation that [C.C.] was a competent
witness able to tell the truth and
distinguish the difference between a
truth and a lie, she corroborated much of
the testimony given by [Mother]. [C.C.]
testified that the incident occurred in
[Mother’s] bedroom on the bed where
[Proper] squeezed her “boobs” and put
his fingers up in her “private spot real
hard” and it hurt. [Proper] also kissed
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her and “rubbed his [private spot]
against her [private spot].” She also
testified that when her mother and her
siblings went to Walmart, that was the
occasion when [Proper] made her “lick
his dick.” This event also occurred in her
mother’s bedroom, on the bed. [C.C.]
also testified that it was at this time
[Proper] put his “dick” in her “private
spot” and that when he did so it “hurt.”
Furthermore, the jury actually heard
testimony that [Proper] put his penis
inside [C.C.’s] vagina on both occasions
when there was a sexual encounter
between [Proper] and the victim.
Furthermore, [C.C.] testified that when
she tried to get away and stop licking
[Proper’s] “dick,” [Proper] put his hand
on her head to prevent her from getting
away and pushed her back down.
The jury heard testimony from Officer
Kevin Daley (“Officer Daley”), senior
patrol officer in the Oil City Police
Department (“OCPD”). Officer Daley
testified that what [C.C.] testified to in
court was exactly what she told him at
the time she and her mother came to the
police station to file the initial report.
Trial Court Opinion, 3/19/14, at 5-7.
On June 11, 2013, a jury convicted Proper of
the aforementioned offenses. The court imposed two
sentences of ten to forty years’ incarceration for rape
of a child and IDSI, ten to twenty years’
incarceration for aggravated indecent assault, and
two sentences of nine months’ to five years’
incarceration for indecent assault and corruption of
minors, with all sentences to run concurrently.
Proper filed a post-sentence motion on September 9,
2013, which was denied on December 6, 2013. He
filed his notice of appeal on January 2, 2014, and his
Pa.R.A.P. 1925(b) concise statement of errors
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complained of on appeal on January 22, 2014. The
court filed its Rule 1925(a) opinion on March 19,
2014.
Commonwealth v. Proper, No. 36 WDA 2014, unpublished memorandum
at 2-3 (Pa.Super. filed July 21, 2014) (brackets in original).
On direct appeal, appellant challenged the sufficiency of the evidence
to sustain the verdict. In an unpublished memorandum filed July 21, 2014,
this court affirmed appellant’s judgment of sentence. Commonwealth v.
Proper, 105 A.3d 796 (Pa.Super. 2014) (unpublished memorandum).
Appellant did not file a petition for allowance of appeal with the Pennsylvania
Supreme Court.
On September 5, 2014, appellant filed a timely pro se PCRA petition.
Counsel was appointed and filed several amended petitions on appellant’s
behalf. An evidentiary hearing was held on June 30, 2015, at which trial
counsel, Charles William Phillips, II, Esq., testified. On September 23, 2015,
appellant’s petition was denied. A timely notice of appeal was filed on
October 20, 2015. Appellant complied with Pa.R.A.P., Rule 1925(b),
42 Pa.C.S.A., and on February 17, 2016, the PCRA court filed a Rule 1925(a)
opinion, relying on its prior opinion and order filed on September 23, 2015.
Appellant has raised the following issues for this court’s review:
[1.] Is trial counsel ineffective when he fails to call
[appellant] to testify when his defense is that
the victim made up the story and cross
examination was largely ineffectual in
substantially impeaching the victim[?]
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[2.] Is trial counsel ineffective when he fails to
cross-examine a witness on inconsistent prior
statements when the defense theory is that the
witness made up the story out of animosity
toward [appellant][?]
Appellant’s brief at 4 (capitalization deleted).
“When reviewing an order [granting or] denying PCRA relief, we must
determine whether the PCRA court’s determination is supported by the
record and is free from legal error.” Commonwealth v. Poplawski, 852
A.2d 323, 327 (Pa.Super. 2004) (citation omitted). In his first issue on
appeal, appellant complains that trial counsel interfered with his right to
testify on his own behalf. Appellant argues that Attorney Phillips’ advice that
appellant not testify was unreasonable where appellant had no prior criminal
record and the case boiled down to credibility. We disagree.
[W]e begin with the presumption that counsel was
effective. A claimant establishes ineffective
assistance of counsel when he demonstrates that
[1] the underlying claim is of arguable merit;
[2] that counsel’s action or inaction was not
grounded on any reasonable basis designed to
effectuate the appellant’s interest; and finally,
[3] that counsel’s action or inaction was prejudicial
to the client. For an action (or inaction) by counsel
to be considered prejudicial to the client, there must
be a reasonable probability that the outcome of the
proceedings would have been different. All three
prongs of this test must be satisfied. If an appellant
fails to meet even one prong of the test, his
conviction will not be reversed on the basis of
ineffective assistance of counsel.
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Commonwealth v. O’Bidos, 849 A.2d 243, 249 (Pa.Super. 2004), appeal
denied, 860 A.2d 123 (Pa. 2004) (citations and internal quotation marks
omitted).
The decision to testify in one’s own behalf:
is ultimately to be made by the accused
after full consultation with counsel. In
order to support a claim that counsel was
ineffective for “failing to call the
appellant to the stand,” [the appellant]
must demonstrate either that (1) counsel
interfered with his client’s freedom to
testify, or (2) counsel gave specific
advice so unreasonable as to vitiate a
knowing and intelligent decision by the
client not to testify in his own behalf.
Commonwealth v. Preston, 418 Pa.Super. 125,
613 A.2d 603, 605 (1992), appeal denied, 533 Pa.
658, 625 A.2d 1192 (1993) (quoting
Commonwealth v. Bazabe, 404 Pa.Super. 408,
590 A.2d 1298, 1301 (1991), appeal denied, 528
Pa. 635, 598 A.2d 992 (1991)). “A claim of strategic
error absent a showing of specific incidents of
counsel’s impropriety will not satisfy this standard.”
Preston, supra at 605.
Commonwealth v. Thomas, 783 A.2d 328, 334-335 (Pa.Super. 2001).
Instantly, the trial court conducted a thorough and probing colloquy of
appellant and informed him of his absolute right to testify on his own behalf:
THE COURT: Why don’t you come on up here, we
need to make sure we can hear your responses on
there. Mr. Proper, you do understand that you have
an absolute right to testify in this case; you have an
absolute right not to testify in this case?
[APPELLANT]: M-hmm.
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THE COURT: If you decide not to testify, you are
entitled to have me give the jury the following
instruction and you may decide to waive the court
giving this instruction. Now, the instruction that I
would read to the jury would be as follows: In this
case the Defendant, Stuart Proper, did not take the
stand to testify. It is entirely up to the Defendant in
every trial whether or not to testify.
[APPELLANT]: Right.
THE COURT: The Defendant has an absolute right to
remain silent. That right is founded in our
constitution and reflects the code of our founding
fathers, that a person charged with a crime has a
moral duty to force the government to prove the
charges and he need not do or say anything to assist
in that endeavor. Therefore, you must not draw any
inference of guilt or wrong doing of Stuart Proper
from the fact that he did not testify. Now that is the
instruction that I would read if you wanted me to
read that. Now, let me ask first of all, have you
thoroughly discussed with your attorney the pros and
the cons of testifying or not testifying.
[APPELLANT]: Yes sir.
THE COURT: Do you realize that you not testifying is
a trial strategy decision? In other words, it’s a
decision you’re making as part of your trial strategy?
[APPELLANT]: Yes sir, yeah.
THE COURT: Alright, after having discussed this trial
strategy decision with your attorney, have you
decided that you do want to or do not want to
testify?
[APPELLANT]: I do not want to testify.
THE COURT: Alright, after having discussed this
strategy decision with your attorney, have you
concluded that testifying is in your -- or not
testifying is in your best interest?
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[APPELLANT]: Yes it is, yep.
THE COURT: Alright, and you do this of your own
choice?
[APPELLANT]: Right.
THE COURT: Alright, now have you discussed with
your attorney whether you want the court to read
that instruction or not?
MR. PHILLIPS: We have and we do.
[APPELLANT]: We do then.
THE COURT: Alright[,] you want the court to read
that instruction?
[APPELLANT]: Sure, yeah, Your Honor.
Notes of testimony, 6/11/13 at 4-6.
At the PCRA hearing, Attorney Phillips testified that it was appellant’s
decision not to testify at trial. (Notes of testimony, 6/30/15 at 9-10.)
Attorney Phillips testified that prior to trial, he and appellant went through a
mock direct and cross-examination and “he didn’t do very well.” (Id. at 9.)
During appellant’s interview with Officer Daley, he made several
incriminating statements, including admitting that he “could have” sexually
assaulted C.C., but blaming it on his alcohol problem. (Notes of testimony,
6/10/13 at 64.) According to appellant, he drank heavily and would
“black out” sometimes. (Id. at 66-67.) Appellant blamed his ex-girlfriend
for allowing C.C. to sleep in their bedroom. (Id. at 64-65.) Appellant also
claimed that on one occasion, C.C. lifted up her shirt and rubbed her breasts
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against him. (Id. at 66.) When Officer Daley asked appellant about C.C.’s
allegation that appellant forced her to engage in oral sex, he alternately
stated that “it could have happened, it probably happened, and ‘I’m not
sure.’” (Id.) Attorney Phillips testified that during the mock
cross-examination, appellant had difficulty answering questions about the
police interview. (Notes of testimony, 6/30/15 at 8-9.) Appellant ultimately
decided it was in his best interests not to testify:
Q. Now, you said that you did practice questions
with him, correct?
A. Yes.
Q. He failed horribly?
A. I think that after we practiced doing the cross
or I was -- you know, I just gave him a test of
what the district attorney at that time would
ask because I had done different things with
her so I kind of knew her style. After doing
that he came to the conclusion, and I agree
with him, that it probably wouldn’t be a good
idea for him to testify.
Id. at 51. Furthermore, Attorney Phillips was concerned that if appellant
took the stand, the Commonwealth would play the videotaped interview with
Officer Daley, in its entirety, for the jury. (Id. at 9.) Therefore,
Attorney Phillips had a reasonable basis for advising appellant not to testify,
and appellant waived that right after a thorough on-the-record colloquy with
the trial court. The cases relied upon by appellant are inapposite.
Cf. Commonwealth v. Breisch, 719 A.2d 352 (Pa.Super. 1998) (where the
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defendant was convicted of forgery and theft stemming from her
unauthorized use of 68 checks, trial counsel was ineffective for advising her
not to testify since Breisch’s sole defense to the crimes for which she was
charged was based on her belief that she was authorized to charge expenses
to the business and intent to defraud is an element of forgery);
Commonwealth v. Neal, 618 A.2d 438 (Pa.Super. 1992) (trial counsel’s
failure to inform his client of the right to testify constituted interference with
such right, and counsel offered no reason to justify why he did not put the
defendant on the stand). There is no merit here.
Next, appellant claims that trial counsel was ineffective for failing to
cross-examine C.C. and Officer Daley regarding alleged prior inconsistent
statements of C.C. These alleged inconsistencies related to the number of
times she was assaulted by appellant (between 2 and 5), the degree of
penile penetration, and the number of times appellant forced her to engage
in oral sex. (Appellant’s brief at 15.)
The defense theory was that C.C. and her mother made up these
allegations against appellant because they did not like him and wanted to
get him out of the house. On cross-examination of the victim, C.C.,
Attorney Phillips established that C.C. loved her mother and they got along
well. (Notes of testimony, 6/10/13 at 50.) Attorney Phillips also established
that appellant fought with C.C.’s mother and her siblings and C.C. “didn’t
like it.” (Id. at 55.) C.C. testified that appellant “called them retarded and
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saying like mean things.” (Id.) Attorney Phillips also attempted to attack
C.C.’s credibility by establishing that on at least one occasion, appellant
assaulted her while her mother and siblings were in the house and with the
bedroom door open. (Id. at 53.) In addition, C.C. testified that she used to
have an imaginary friend named Sarah who “was like a ghost.” (Id. at 48.)
During the PCRA hearing, Attorney Phillips explained his reasons for
not going after C.C. harder on cross-examination regarding these alleged
inconsistencies:
Well, now this minor child was, I think she was 12 or
13, I don’t recall exactly. She also is, was a little
slow, so because of that I couldn’t impeach as
aggressively as I would like to. I had to not go easy,
but it would not serve my client if I made her cry. I
was trying to make the things come out that people
should take note of like, for instance, it came out I
believe during her testimony that while she was in
the room with [appellant] her mother was in the
other room across the way with the door open. That
should’ve sounded to the jury like, how would this
stuff happen if the door is open and the mother is
over there? So, I got that to come out. I got that
she had imaginary friends, you know, without
harping on it, because if the jury hears she has
imaginary friends for one reason or another she has
an imagination maybe she made all this up. I got
that out of her. And there were a few other points, I
don’t remember, it was a while back and so I did
impeach the witness. I did get vital chunks of
information out of her. There were a couple other
things that were minor like whether she called her
mother after one of these instances happened. I
believe the child said she did and the mother said
later when I went to impeach her that no, she never
called. So, there were a few things.
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Q. You didn’t impeach her with any prior
inconsistent statements?
A. Unfortunately, most of her statements on the
tape, at preliminary hearings, at the trial, what
she supposedly told other people and all her
teachers had testified were very similar.
Notes of testimony, 6/30/15 at 16-17.
Similarly, with regard to C.C.’s inconsistent statements as to the
degree of penetration, Attorney Phillips testified as follows:
Q. So, you will acknowledge that there were some
inconsistencies with the victim’s statements as
to whether there was penetration versus
halfway penetration versus whole way
penetration?
A. I would expect a 12 year old to probably be
confused about it, yes.
Q. And you would agree that you never
impeached her or questioned her about these
inconsistencies regarding penetration?
A. Well, the way the statute was written if there
was any penetration no matter how slight he’d
still be breaking the law, so arguing about
whether it was three-quarters, five-eighths, it
wouldn’t help the case.
Id. at 21-22.
At trial, C.C. testified that appellant assaulted her on two separate
occasions. (Notes of testimony, 6/10/13 at 49.) This was consistent with
her preliminary hearing testimony; however, in a prior written statement,
C.C. alleged that appellant assaulted her between three and five times.
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(Notes of testimony, 6/30/15 at 17-18.) Attorney Phillips chose not to
pursue this line of attack for obvious reasons:
Whether it happened two times or three times or five
times what she said happened was very consistent
and had I said, wait a minute, you said five times
before then maybe she would’ve “remember” [sic]
other times it happened and it would sound even
worse.
Id. at 19. As the PCRA court remarked, “Trial counsel felt that allowing the
witness the chance to explain three additional sexual assaults would
detrimentally affect his case. Attorney Phillips also believed it would be
unwise to aggressively cross-examine an eleven year [old] sexual assault
victim. We concur with Attorney Phillip[s’] rationale.” (PCRA court opinion,
9/23/15 at 18-19 (emphasis in original).) We agree. Clearly,
Attorney Phillips articulated a sound and reasonable strategy for
cross-examining the victim, C.C. This claim fails.3
3
In his PCRA petition, appellant also alleged that his sentence was in
violation of Alleyne v. United States, U.S. , 133 S.Ct. 2151 (2013),
which held that “[a]ny fact that, by law, increases the penalty for a crime is
an ‘element’ that must be submitted to the jury and found beyond a
reasonable doubt.” Id. at 2155. Issues pertaining to Alleyne go directly to
the legality of the sentence and are non-waivable. Commonwealth v.
Fennell, 105 A.3d 13, 15 (Pa.Super. 2014), appeal denied, 121 A.3d 494
(Pa. 2015). See also Commonwealth v. Snavely, 982 A.2d 1244, 1246
(Pa.Super. 2009) (“Challenges to an illegal sentence cannot be waived and
may be reviewed sua sponte by this Court.”) (citation omitted). Appellant
was sentenced on August 30, 2013, after Alleyne was decided on June 17,
2013, and he filed a timely PCRA petition. See Commonwealth v. Ruiz,
131 A.3d 54, 59-60 (Pa.Super. 2015) (a defendant can raise an Alleyne
challenge in a timely PCRA petition so long as his judgment of sentence was
not yet final when Alleyne was decided on June 17, 2013).
Cf. Commonwealth v. Washington, A.3d , 2016 WL 3909088 (Pa.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/2016
July 19, 2016) (refusing to apply Alleyne retroactively to cases on collateral
review where the defendant’s judgment of sentence had already become
final before Alleyne was decided). However, it appears that appellant
received a sentence within the guidelines and he was not sentenced based
upon a mandatory minimum. (PCRA court opinion, 9/23/15 at 21-23.)
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