J-S60032-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHN EDWARD HALL, II :
:
Appellant : No. 273 WDA 2017
Appeal from the PCRA Order January 12, 2017
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000055-2013
BEFORE: OLSON, DUBOW, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED SEPTEMBER 15, 2017
Appellant John Edward Hall appeals from the order entered by the
Court of Common Pleas of Erie County denying Appellant’s petition pursuant
to the Post Conviction Relief Act (“PCRA”).1 Appellant raises four claims of
ineffective assistance of counsel. We affirm.
On September 17, 2013, a jury convicted Appellant of sexual assault
and indecent assault stemming from Appellant’s interaction with a female
college student in the early morning hours of October 1, 2012. On the
previous evening, the victim attended a party at an off-campus residence
where she consumed alcoholic beverages. At the end of the night, the
victim, admittedly “buzzed” from alcohol, fell asleep in an upstairs bedroom.
____________________________________________
1
42 Pa.C.S. §§ 9541-9546.
____________________________________
* Former Justice specially assigned to the Superior Court.
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The victim asserted that when she awoke in the dark bedroom, she
discovered a man had pulled her bra and shirt up to her neck and was
attempting to take her pants off. Although the victim attempted to resist
her attacker, the man held her down and forced his penis into her vagina.
As the victim continued to hit her attacker across the face, the assailant
moved away from the victim, got dressed, and moved to the door. From the
outside light in the hall, the victim was able to identify her attacker as
Appellant. At trial, Appellant testified that he and the victim had consensual
sexual intercourse while he was intoxicated.
After Appellant was convicted of the aforementioned offenses, the trial
court sentenced Appellant to an aggregate term of three to six years’
incarceration. Appellant filed a post-sentence motion, which the trial court
denied. On November 3, 2014, this Court affirmed the judgment of
sentence. Appellant did not file a petition for allowance of appeal with the
Pennsylvania Supreme Court.
On December 3, 2015, Appellant filed this timely, counseled PCRA
petition. On June 27, 2016, the PCRA court held an evidentiary hearing. On
September 12, 2016, Appellant filed an amended PCRA petition with leave of
court. On January 12, 2017, the PCRA court filed an order and an opinion
dismissing Appellant’s petitions. On February 8, 2017, Appellant filed this
timely appeal.
Appellant raises four issues for our review on appeal:
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I. The PCRA court erred in concluding that trial counsel was
not ineffective for failing to discuss with [Appellant] the
crucial nature of character witnesses; for failing to
investigate, interview, and consider potential character
witnesses; and for failing to call character witnesses on
Hall’s behalf where evidence of Hall’s good character would
have been enough to establish reasonable doubt.
II. The PCRA Court erred in concluding that trial counsel was
not ineffective for failing to ask the Court to include a jury
instruction on prior inconsistent statements during the final
instructions to the jury.
III. The PCRA Court erred in concluding that trial counsel was
not ineffective for pursuing an unreasonable trial strategy in
a sex assault case, which consisted of establishing that the
victim was too intoxicated to remember what happened
during the incident.
IV. The PCRA Court erred in concluding that trial counsel was
not ineffective in handling the Commonwealth’s expert
witness, Dr. Larson.
Appellant’s Brief, at 6.
In reviewing the lower court’s decision to deny Appellant’s PCRA
petition, we examine whether the PCRA court's determination “is supported
by the record and free of legal error.” Commonwealth v. Mitchell, --- Pa.
---, 141 A.3d 1277, 1283–84 (2016). In order to be eligible for PCRA relief,
the petitioner must prove by a preponderance of the evidence that his
conviction or sentence resulted from one or more of the enumerated
circumstances found in 42 Pa.C.S. § 9543(a)(2), which includes the
ineffective assistance of counsel.
“It is well-established that counsel is presumed effective, and to rebut
that presumption, the PCRA petitioner must demonstrate that counsel's
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performance was deficient and that such deficiency prejudiced him.”
Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d 121, 132 (2012) (citing
Strickland v. Washington, 466 U.S. 688, 687-91 (1984)). To prevail on
an ineffectiveness claim, the petitioner has the burden to prove that “(1) the
underlying substantive claim has arguable merit; (2) counsel whose
effectiveness is being challenged did not have a reasonable basis for his or
her actions or failure to act; and (3) the petitioner suffered prejudice as a
result of counsel's deficient performance.” Commonwealth v. Sneed, 616
Pa. 1, 17, 45 A.3d 1096, 1106 (2012) (quoting Commonwealth v. Pierce,
567 Pa. 186, 786 A.2d 203, 213 (2001)). “A petitioner establishes prejudice
when he demonstrates “that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have
been different.” Commonwealth v. Johnson, 600 Pa. 329, 345–46, 966
A.2d 523, 532–33 (2009) (quoting Strickland, 466 U.S. at 694). The
failure to satisfy any one of the three prongs will cause the entire claim to
fail. Sneed, 616 Pa. at 18, 45 A.3d at 1106 (citation omitted).
First, Appellant claims that trial counsel was ineffective in failing to
discuss with Appellant the importance of character evidence and in failing to
investigate and call character witnesses to call on Appellant’s behalf.
“To be entitled to relief on a claim of ineffectiveness for failure to
call a witness, [an] appellant must demonstrate [that]: the
witness existed, was available, and willing to cooperate; counsel
knew or should have known of the witness; and the absence of
the witness's testimony prejudiced [the] appellant.”
Commonwealth v. Birdsong, 611 Pa. 203, 24 A.3d 319, 334
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(2011) (citing Commonwealth v. Fletcher, 561 Pa. 266, 750
A.2d 261, 275 (2000)). A PCRA petitioner cannot succeed on
such a claim if the proposed witness' testimony “would not have
materially aided him. In such a case, the underlying-merit and
prejudice prongs of the [ineffective assistance of counsel] test
logically overlap.” Commonwealth v. Baumhammers, 625
Pa. 354, 92 A.3d 708, 725 (2014). “To show prejudice, the
petitioner must demonstrate that there is a reasonable
probability that, but for counsel's allegedly unprofessional
conduct, the result of the proceedings would have been different.
A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. (citing Commonwealth v.
Gibson, 597 Pa. 402, 951 A.2d 1110, 1120 (2008)).
Commonwealth v. Brown, 161 A.3d 960 (Pa.Super. 2017) (quoting
Commonwealth v. Johnson, 635 Pa. 665, 139 A.3d 1257, 1284 (2016)).
Although Appellant alleges that trial counsel, Atty. Stephen Colafella,
did not advise him of the importance of presenting character witnesses,
Appellant admits that he met with counsel five times before trial, and on at
least two of those occasions they discussed presenting character witnesses.
Appellant specifically recalls counsel asking him for names of potential
character witnesses that had particular “qualifications.” Notes of Testimony
(N.T.), PCRA hearing, 7/27/16, at 27-29, 37. Atty. Colafella indicated that
he asked Appellant to give him names of possible character witnesses and
advised Appellant that it would be best to call witnesses who were not
relatives and who already knew that Appellant was accused of sexual
assault.
Appellant conceded that he only gave counsel one name, that of a
district magistrate, who was prohibited by rules of judicial ethics from
testifying as a character witness. Moreover, Appellant admitted that he told
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counsel that he did not want any of his family or friends involved in this case
because “[i]t was an embarrassing situation that I didn’t want my entire
community to know about.” N.T. at 36. Atty. Colafella indicated that as
Appellant would not give him any names of possible witnesses, he respected
Appellant’s request for privacy. However, Atty. Colafella asserted that, had
Appellant supplied a name of a possible character witness, he would have
investigated Appellant’s lead.
Based on the foregoing circumstances, Appellant’s ineffectiveness
claim has no arguable merit. Atty. Colafella discussed the importance of
character testimony with Appellant on multiple occasions and asked
Appellant to identify witnesses that he could investigate for this purpose. As
Appellant refused to give him any names of possible witnesses and asked for
privacy, Appellant has not shown that counsel knew or should have known of
the identify of possible character witnesses. Thus, the PCRA court correctly
found counsel was not ineffective for failing to call character witnesses.
Second, Appellant argues that trial counsel was ineffective in failing to
request that the trial court give a jury instruction on prior inconsistent
statements before the jury retired to deliberate. Appellant argues that such
an instruction was necessary as the victim’s testimony at trial was
inconsistent in some respects to the statements she gave to medical
examiners and law enforcement after the alleged assault.
However, we point out that the trial court did give a limiting instruction
to the jury after the victim had finished testifying, in which the trial court
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specifically and thoroughly instructed the jury on the use of prior
inconsistent statements. Appellant concedes that fact but argues that trial
counsel should have requested that the trial court repeat this instruction
before the jury retired to deliberate. Appellant offers no specific case law to
show his claim has any arguable merit. Moreover, Appellant fails to
establish prejudice by showing that, but for counsel’s failure to request that
the trial court give the limiting instruction a second time, the result of the
proceeding would have been different.” See Johnson, 600 Pa. at 345–46,
966 A.2d at 532–33. Thus, the PCRA court correctly found counsel was not
ineffective in failing to ask the trial court to repeat its instruction on prior
inconsistent statements.
Third, Appellant argues that counsel was ineffective for pursuing an
unreasonable trial strategy in a sex assault case, in eliciting testimony from
the victim that she was intoxicated when the alleged assault occurred.
Appellant contends this strategy contradicted the defense theory that he had
consensual sexual relations with the victim.
With regards to the reasonable basis prong of the ineffectiveness test,
our Supreme Court has emphasized the following:
the PCRA court does not question whether there were other
more logical courses of action which counsel could have
pursued; rather, [the court] must examine whether counsel's
decisions had any reasonable basis. Where matters of strategy
and tactics are concerned, [a] finding that a chosen strategy
lacked a reasonable basis is not warranted unless it can be
concluded that an alternative not chosen offered a potential for
success substantially greater than the course actually pursued.
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Commonwealth v. Mason, 634 Pa. 359, 388-39, 130 A.3d 601, 618
(2015) (citations and quotation marks omitted).
Contrary to Appellant’s assertions, the victim did not testify that she
was intoxicated to the point where she could not give consent; instead, she
indicated that she was only “slightly buzzed” when she went to bed. N.T.
Trial, 9/16/13, at 44, 58. She denied going to bed because she had too
much to drink, but rather, asserted that she needed to get up early the next
morning. Further, the victim indicated that she did not lose consciousness
due to intoxication but rather was sleeping when the alleged assault began.
We agree with the PCRA court’s assessment that Atty. Colafella had a
reasonable basis to focus on the victim’s level of intoxication to attempt to
discredit her recollection of the events in question and to question her
credibility. Atty. Colafella testified at the PCRA hearing that his strategy was
to suggest that the victim’s alcohol consumption impaired her ability to
remember how the sexual contact was initiated but failed to rise to a level
that would render the victim incapacitated to render consent.
The record shows that counsel’s strategy had a reasonable basis
designed to effectuate Appellant’s interests. Appellant does not offer a
suggested alternative strategy that offered a potential for success
substantially greater than the course actually pursued. See Mason, supra.
As a result, the PCRA court did not err in denying this claim.
Lastly, Appellant contends that trial counsel was ineffective in
“handling” the prosecution’s expert witness, Dr. Stephanie Larson, D.O., who
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performed the victim’s rape kit. Appellant’s Brief, at 6. While trial counsel
objected to Dr. Larson’s qualifications as an expert, Appellant argues that
counsel should have asked the trial court to strike Dr. Larson’s testimony or
in the alternative, to grant a continuance and require the Commonwealth to
provide an expert report from Dr. Larson to allow the defense to adequately
prepare for her testimony.
However, Appellant has not shown there is a reasonable probability
that, but for counsel's failure to seek an expert report from Dr. Larson, the
result of the proceedings would have been different. Although Dr. Larson
testified that many sexual assault victims do not exhibit physical signs of
injury, defense counsel elicited testimony on cross-examination in which Dr.
Larson admitted that in a more violent assault or rape that it was more likely
that the victim would exhibit physical signs of assault (e.g. vaginal tearing,
bleeding, bruising). Dr. Larson agreed with defense counsel’s statement to
the jury that it was reasonable to infer that if the assault had occurred as
violently as the victim had alleged that it was more likely that the victim
would have had visible physical injuries. The jury reached the opposite
conclusion and convicted Appellant of sexual assault. Appellant is unable to
show how counsel’s failure to seek an expert report resulted in prejudice
under these circumstances. Accordingly, his ineffectiveness claim fails.
For the foregoing reasons, we affirm the lower court’s order dismissing
Appellant’s PCRA petition.
Affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/15/2017
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