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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
STEPHEN NOEL JESSEE, : No. 1075 MDA 2017
:
Appellant :
Appeal from the PCRA Order, June 5, 2017,
in the Court of Common Pleas of York County
Criminal Division at No. CP-67-CR-0003413-2013
BEFORE: PANELLA, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 09, 2018
Appellant, Stephen Noel Jessee, appeals from the June 5, 2017 order
entered by the Court of Common Pleas of York County denying his petition
filed pursuant to the Post Conviction Relief Act (“PCRA”).1 After careful review,
we affirm.
A previous panel of this court provided the following factual and
procedural history:
On February 8, 2013, Sergeant Lisa Layden
interviewed K.W. at the York County District
Attorney’s Office. During that interview, K.W.
reported that her stepfather, [a]ppellant, had sexually
abused her on numerous occasions. K.W. reported
that [a]ppellant began having sexual contact with her
when she was fourteen years old, and that the two
had sexual intercourse when she was approximately
fifteen years old. Specifically, K.W. stated that the
1 42 Pa.C.S.A. §§ 9541-9546.
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sexual intercourse took place at the family’s home in
Spring Grove, Pennsylvania and also in a trailer at
Conewago Isle Campground in Dover, Pennsylvania.
K.W. further explained that she and [a]ppellant have
a daughter together, that the two shared custody of
the child, and that she was concerned for her
daughter’s safety.
On April 5, 2013, Sergeant Layden filed a criminal
complaint charging [a]ppellant with involuntary
deviate sexual intercourse [(“IDSI”)], statutory
sexual assault, aggravated indecent assault, indecent
assault, and corruption of minors.[Footnote 1] On
May 8, 2013, K.W. testified at [a]ppellant’s
preliminary hearing before Magisterial District Judge
Thomas Reilly. K.W.’s testimony tracked the
statement that she had given to Sergeant Layden
earlier. K.W. testified that [a]ppellant “sexually
molested [her] from age 14 until [she] was 17.” K.W.
also testified that she and [a]ppellant had sexual
intercourse at the family’s home in Spring Grove,
Pennsylvania when she was fourteen years old.
[Footnote 1] 18 Pa.C.S. §§ 3123(a)(7),
3122.1, 3125(a)(8), 3126(a)(8), and
6301(a)(1), respectively.
On March 31, 2014, [a]ppellant proceeded to a jury
trial. On that same day, the Commonwealth called
K.W. as a witness. K.W. contradicted her earlier
statement to police and her preliminary hearing
testimony, and testified that she and [a]ppellant did
not have sexual contact until she was seventeen years
old. The Commonwealth then proceeded to question
K.W. about her prior inconsistent testimony, which
she had given at [a]ppellant’s preliminary hearing:
Q: So at [the preliminary hearing] you
indicated that you were 14 when
this began, is that correct?
A: Yes.
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Q: Okay. And was that the truth?
Were you under oath when you
indicated that?
A: Yes.
Q: And today you are testifying that
this happened when you were 17
1/2?
A: Yes.
Q: Why did you say 14 at the time?
A: At the time I had believed what
others had told me.
Q: You had believed what others told
you?
A: Yes.
Q: And who else was telling you
something?
A: My ex-boyfriend and my
grandmother.
Q: What did they tell you?
A: They told me that [a]ppellant had
been having sex with me since I was
14, and I believed it.
Q: Okay. So you don’t remember
having sex?
A: No.
Notes of Testimony [], 3/31/2014 at 75-76.
On April 1, 2014, notwithstanding K.W.’s testimony,
the jury found [a]ppellant guilty of [IDSI], statutory
sexual assault, aggravated indecent assault, indecent
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assault, and corruption of minors. On April 8, 2014,
[a]ppellant filed a motion for judgment of acquittal.
Therein, [a]ppellant argued that the jury’s verdict was
“against the weight and sufficiency of the evidence
presented at trial.” On August 22, 2014, the
Commonwealth filed a notice of its intent to seek
imposition of a ten-year mandatory minimum
sentence. See 42 Pa.C.S. § 9718(a)(1) (providing
that a person convicted of [IDSI] when the victim is
less than sixteen years of age shall be sentenced to a
mandatory ten-year term of imprisonment).
. . . . The trial court . . . sentenced [a]ppellant to ten
to twenty years’ imprisonment for [IDSI], the
mandatory minimum sentenced prescribed by
42 Pa.C.S. § 9718(a)(1).[Footnote 2]
[Footnote 2] The trial court also imposed
concurrent sentences of six to fourteen
months’ imprisonment for statutory
sexual assault, two to four years’
imprisonment for aggravated indecent
assault, twelve months’ probation for
indecent assault, and twelve months’
probation for corruption of minors.
Commonwealth v. Jessee, No. 1520 MDA 2014, unpublished memorandum
at *1-4 (Pa.Super. filed August 31, 2015) (citations omitted).
Appellant filed a direct appeal of his judgment of sentence on
September 10, 2014. On August 31, 2015, this court vacated appellant’s
judgment of sentence and remanded to the trial court for resentencing in light
of the United States Supreme Court’s decision in Alleyne v. United States,
570 U.S. 99 (2013), and its state progeny, in this case, Commonwealth v.
Wolfe, 106 A.3d 800 (Pa.Super. 2014), affirmed, 140 A.3d 651 (Pa. 2016).
As noted by the previous panel on direct appeal, this court “held that section
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9718 was facially unconstitutional because the elements of the ‘proof at
sentencing’ provision required a trial judge, rather than a jury, to make factual
findings by a preponderance of the evidence, and not beyond a reasonable
doubt.” Jessee, No. 1520 MDA 2014 at *12, citing Wolfe, 106 A.3d at 805.
The trial court resentenced appellant on October 25, 2016, to 3-6 years’
imprisonment followed by 2 years’ probation. Appellant did not file a direct
appeal from the October 25, 2016 judgment of sentence. On October 26,
2016, however, appellant filed a petition pursuant to the PCRA. The PCRA
court stayed appellant’s sentence pending the PCRA hearing on December 5,
2016. The PCRA court denied appellant’s petition after a hearing was held on
June 5, 2017.
Appellant filed a notice of appeal to this court on July 3, 2017. On July 5,
2017, the PCRA court ordered appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b), and appellant timely
complied on July 25, 2017. The PCRA court filed an opinion pursuant to
Pa.R.A.P. 1925(a) on January 18, 2018.
Appellant raises the following two issues for our review:
I. Whether the PCRA court erred in not finding
counsel ineffective for failing to call appellant to
testify, which would have lent credence to the
victim’s recantation of her accusations?
II. Whether the PCRA court erred in not finding
counsel ineffective for failing to fully develop on
cross examination the victim’s reason for
providing false statements to police?
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Appellant’s brief at 4 (capitalization omitted).
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, [], 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. § 9543(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 [a]ppellant 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 [a]ppellant
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).
Under the PCRA, an individual is eligible for post-conviction relief if the
conviction was the result of “ineffective 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.A. § 9543(a)(2)(ii). When considering whether counsel was
ineffective, we are governed by the following standard:
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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), order
vacated on other grounds, 166 A.3d 1213 (Pa. 2017).
Appellant alleges ineffective assistance of counsel in both of his issues
on appeal. In his first issue, appellant contends that the PCRA court erred
when it did not find appellant’s trial counsel, Kevin J. Hoffman, Esq.
(“Attorney Hoffman”), ineffective for advising appellant not to testify on his
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own behalf as a means of lending credence to K.W.’s recantation of some of
her accusations against appellant. For the following reasons, we disagree.
A defendant’s right to testify on his or her own behalf at trial is a
fundamental right guaranteed by both the United States and Pennsylvania
Constitutions. Commonwealth v. Baldwin, 8 A.3d 901, 902-903 (Pa.Super.
2010), affirmed, 58 A.3d 754 (Pa. 2012), citing Commonwealth v. Nieves,
746 A.2d 1102, 1105 (Pa. 2000); Pa. Const. Art. I, § 9; U.S. Const. amend. VI.
In the context of a claim of ineffective assistance of counsel relating to counsel
advising a criminal defendant not to testify on his or her own behalf, we are
governed by the following standard:
The decision whether or not to testify on one’s own
behalf is ultimately to be made by the defendant after
full consultation with counsel. In order to sustain a
claim that counsel was ineffective for failing to advise
the appellant of his rights in this regard, the appellant
must demonstrate either that counsel interfered with
his right to testify, or that counsel gave specific advice
so unreasonable as to vitiate a knowing and intelligent
decision to testify on his own behalf.
Commonwealth v. Michaud, 70 A.3d 862, 869 (Pa.Super. 2013), quoting
Nieves, 746 A.2d at 1104.
In the instant case, appellant failed to demonstrate that
Attorney Hoffman interfered with his right to testify or that Attorney Hoffman
provided appellant with advice so unreasonable as to “vitiate a knowing and
intelligent decision to testify on his own behalf.” See Michaud, 70 A.3d at
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869. In fact, appellant fails to explain how Attorney Hoffman’s advice was
unreasonable. As noted by the PCRA court,
From our reading of the PCRA hearing transcript, we
were able to glean that, had he testified at trial,
[a]ppellant would have offered testimony in
agreement with the victim’s recantation. It is hard to
divine that [a]ppellant’s testimony would have added
anything new, or, to address [a]ppellant’s concerns,
conveyed the whole story. It is axiomatic that a
credible witness can galvanize the testimony of a
comparatively weaker witness; however, the jury was
confronted with a situation in which there was a child
produced by [a]ppellant and the victim. The birth of
that child allowed the jury to determine that sexual
intercourse occurred, at a minimum, around the time
that the victim was seventeen-and-a-half. It seems
unlikely that a jury would have viewed [a]ppellant as
a credible buttressing witness under the
circumstances. [A]ppellant not only had a great stake
in the outcome of the case, but it was plainly obvious
to the jury that he was guilty of the corruption of
minors charge. Moreover, we agree with
Attorney Hoffman’s assessment that [a]ppellant
testifying would have opened the door to rebuttal
testimony from the victim’s grandmother, [E.F.]. . . .
The Commonwealth would surely have sought to
admit [E.F.’s] testimony regarding sexualized
behavior she saw [a]ppellant exhibit towards the
victim to attack any statements by [a]ppellant that his
sexual relationship with the victim did not begin until
she was seventeen-and-a-half and this would have
been admissible. Thus, the alternative strategy
suggested, of offering [a]ppellant’s testimony, would
not have offered a substantially greater chance of
success and might, indeed, have harmed [appellant.]
PCRA court opinion, 1/18/18 at 9-10 (emphasis in original). Moreover,
appellant stated to the trial court that he understood that he had the right to
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testify on his own behalf and that he nevertheless decided not to testify. (See
notes of testimony, 3/31/14 at 106-108.)
Accordingly, we find that Attorney Hoffman had an objective, reasonable
basis in advising appellant not to testify on his own behalf given that his
testimony would involve his admitting to engaging in a sexual relationship
with his then-17-year-old stepdaughter, in addition to the fact that his
testimony would open the door for E.F.’s testimony on rebuttal. The record
also reflects that it was ultimately appellant’s decision not to testify on his own
behalf. Therefore, appellant’s first issue must fail.
In his second issue, appellant contends that the PCRA court erred when
it did not find Attorney Hoffman to be ineffective for “failing to fully develop
on cross examination the victim’s reason for providing false statements to
police.” (Appellant’s brief at 12.) For this issue, we adopt the PCRA court’s
analysis explaining that Attorney Hoffman had a reasonable basis for declining
to further develop the victim’s reason on cross-examination for providing false
statements to the police.
[Attorney Hoffman] had [K.W.] repeat on
cross-examination what she had already stated as a
hostile witness three times on direct, which was that
the memories of abuse were foisted upon her by
others. We see no substantially greater chance at
success from [a]ppellant’s suggested course of more
probing cross-examination.
PCRA court opinion, 1/18/18 at 13.
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Accordingly, we find that appellant failed to satisfy the second prong in
Pearce. Appellant’s second issue, therefore, must fail.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/9/2018
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