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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
NICKALAUS B. STOUTZENBERGER :
:
Appellant : No. 944 MDA 2018
Appeal from the PCRA Order Entered June 5, 2018
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0002801-2015
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STRASSBURGER*, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED OCTOBER 29, 2018
Nickalaus Stoutzenberger appeals from the order entered June 5, 2018,
dismissing his petition for collateral relief filed under the Post Conviction Relief
Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
We derive the following statement of the factual and procedural
background in this matter from the certified record, including the PCRA court’s
comprehensive opinion. See PCRA Ct. Opinion, filed May 29, 2018. In
January 2016, following a bench trial, Stoutzenberger was convicted of
involuntary deviate sexual intercourse with a child, as well as two counts of
indecent assault of a person less than 13 years old. 1 In part, the evidence
against Stoutzenberger consisted of testimony from the victim (his sister) and
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* Retired Senior Judge assigned to the Superior Court.
1 Respectively, 18 Pa.C.S.A. §§ 3123(b), 3126(a)(7).
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a printout of an Internet chatroom conversation between Stoutzenberger and
an individual named “Anna,” in which he described a sexual encounter similar
to that alleged by the victim. In April 2016, the trial court imposed an
aggregate sentence of 16½ to 40 years of incarceration. Stoutzenberger
timely appealed, and this Court affirmed the judgment of sentence.
Commonwealth v. Stoutzenberger, 168 A.3d 309 (Pa.Super. 2017)
(unpublished memorandum). Stoutzenberger did not seek further appellate
review.
In July 2017, Stoutzenberger filed pro se a PCRA petition asserting
ineffective assistance of trial counsel. See PCRA Petition, 07/06/2017. The
PCRA court appointed counsel, who thereafter filed a petition to withdraw and
a Turner/Finley letter analyzing Stoutzenberger’s claims and concluding they
were without merit.2 The PCRA court denied counsel’s petition and scheduled
an evidentiary hearing.
In January 2018, the PCRA court held an evidentiary hearing. In
relevant part, Stoutzenberger provided testimony asserting that (1) the victim
had a motive to fabricate her allegations against him, (2) the victim fabricated
a claim against him during the investigation that preceded the filing of criminal
charges, and (3) excerpts from a chat log, admittedly written by
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2 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988).
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Stoutzenberger, were misleading. See Notes of Testimony, PCRA Hearing
(N.T. PCRA), 01/25/2018, at 4-23.
Regarding the victim’s alleged motive to falsely accuse him,
Stoutzenberger acknowledged that he could not “remember specifically if
there was a specific incident.” Id. at 11. Nevertheless, Stoutzenberger
described an incident in which the victim became “fairly angry” with him. Id.
at 12. According to Stoutzenberger, after he refused to visit with the victim
at their grandmother’s home, he returned to discover that the victim had
“poured baby oil all over my room and ruined a couple of video game
controllers and paperwork and some CDRs that I had next to my Play Station
II with the controllers.” Id.3
Stoutzenberger also testified that the victim fabricated a specific claim
against him, i.e., that an abusive incident took place at his mother’s store.
Id. According to Stoutzenberger, the incident could not have happened
because “the store didn’t come into being until after the alleged incident took
place.” Id. at 11. However, on cross-examination, Stoutzenberger
acknowledged that the Commonwealth did not charge him for any alleged
incident that occurred at his mother’s store. Id. at 21-22. Further,
Stoutzenberger was not sure if he informed trial counsel of this concern. Id.
at 22.
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3 Stoutzenberg lived with his grandmother for several years. Id. at 13.
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Finally, regarding the excerpts from the chat log, Stoutzenberger
renewed assertions first made during his trial, that a sexual encounter
described therein was fictional. Id. at 7-10. According to Stoutzenberger,
the excerpts lacked proper context, and moreover, trial counsel should have
highlighted inconsistencies between the chat log and the victim’s accusations.
Id. at 7-8, 18-20. On cross-examination, Stoutzenberger acknowledged that
the abbreviated form of the chat log was discussed at trial. Id. at 23.
Stoutzenberger also conceded that he was unsure whether “the unedited
version exists.” Id.
Stoutzenberger’s trial counsel also testified at the hearing. Counsel
could not recall whether Stoutzenberger had voiced concern over the apparent
discrepancy between when his mother had opened a store and when an
alleged incident had occurred there. Id. at 28. Nevertheless, counsel testified
that he would have raised this concern if Stoutzenberger had told him. Id.
Following briefing by the parties, the PCRA court denied relief.
Stoutzenberger timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)
statement. In response, the PCRA court directed our attention to its
previously issued opinion.
Stoutzenberger raises the following issues on appeal:
[1.] Did the PCRA court err by failing to find that trial counsel
provided ineffective assistance by failing to adduce evidence from
[Stoutzenberger] tending to show that the complaining witness
had a motive to lie?
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[2.] Did the PCRA court err by failing to find that trial counsel
provided ineffective assistance tending to show that the
complaining witness lied to investigators?
[3.] Did the PCRA court err by failing to find that trial counsel
provided ineffective assistance by failing to present evidence of
[Stoutzenberger’s] conversation on a chat log in its entirety, but
rather allowed the Commonwealth to present only portions of the
conversation?
Stoutzenberger’s Br. at 4 (unnecessary capitalization omitted).
We review an order denying a petition under the PCRA to determine
whether the findings of the PCRA court are supported by record evidence and
free of legal error. Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa.
2007). We afford the court’s factual findings deference unless there is no
support for them in the certified record. Commonwealth v. Brown, 48 A.3d
1275, 1277 (Pa.Super. 2012) (citing Commonwealth v. Anderson, 995 A.2d
1184, 1189 (Pa.Super. 2010)). Further, we may affirm the PCRA court’s
decision on any grounds if the record supports it. See Commonwealth v.
Reed, 107 A.3d 137, 140 (Pa.Super. 2014).
In each of his issues, Stoutzenberger asserts trial counsel was
ineffective. To be eligible for relief for an ineffectiveness claim, a petitioner
must establish that counsel’s deficient performance “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). We presume counsel is
effective. Commonwealth v. Cox, 983 A.2d 666, 678 (Pa. 2009). To
overcome this presumption, a petitioner must establish that: (1) the
underlying claim has arguable merit; (2) counsel lacked a reasonable basis for
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his act or omission; and (3) petitioner suffered actual prejudice.
Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015). In order to
establish prejudice, a petitioner must demonstrate “that there is a reasonable
probability that, but for counsel's error or omission, the result of the
proceeding would have been different.” Commonwealth v. Koehler, 36
A.3d 121, 132 (Pa. 2012). A claim will be denied if the petitioner fails to meet
any one of these prongs. See Commonwealth v. Jarosz, 152 A.3d 344,
350 (Pa.Super. 2016) (citing Commonwealth v. Daniels, 963 A.2d 409, 419
(Pa. 2009)). In particular, it is well settled that “[c]ounsel cannot be deemed
ineffective for failing to pursue a meritless claim.” Commonwealth v. Loner,
836 A.2d 125, 132 (Pa.Super. 2003) (en banc).
First, Stoutzenberger asserts that trial counsel was ineffective for failing
to adduce evidence tending to show that the victim had a motive to fabricate
the allegations against him. Stoutzenberger’s Br. at 8. According to
Stoutzenberger, as inculpatory evidence came primarily from the victim, it
was vital to impeach her testimony. Id. He suggests that an incident
described in his PCRA hearing testimony, in which the victim allegedly poured
baby oil all over his room, demonstrated her animosity for him. Id. at 9.
According to Stoutzenberger, had counsel presented this evidence at trial, the
victim’s credibility would have suffered, and the outcome of the proceeding
would have been different. Id.
The PCRA court rejected this claim, noting that (1) Stoutzenberger’s
current testimony contradicts statements previously given to police, (2)
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Stoutzenberger failed to establish any temporal relevance to the baby oil
incident, and (3) Stoutzenberger failed to establish that he had informed
counsel of the incident. See PCRA Ct. Opinion at 8. We agree. There is no
apparent relevance to this incident. Even if we assume that the victim at one
time vandalized Stoutzenberger’s room in retribution because he refused to
visit with her, Stoutzenberger has failed to establish any temporal proximity
between this incident and her allegations against him. Further, counsel is not
ineffective for failing to impeach the credibility of a witness for the
Commonwealth, absent some indication that counsel knew or should have
known impeachment evidence exists. See, e.g., Commonwealth v. Bond,
819 A.2d 33, 45-46 (Pa. 2002) (“Counsel cannot be found ineffective for failing
to introduce information uniquely within the knowledge of the defendant and
his family which is not provided to counsel.”). Thus, this claim is without
merit.
Second, Stoutzenberger asserts that trial counsel was ineffective for
failing to present evidence that the victim lied to investigators.
Stoutzenberger’s Br. at 9. According to Stoutzenberger, the victim claimed
that he had assaulted her inside a store leased by Stoutzenberger’s mother.
Id. However, Stoutzenberger argues, this allegation was demonstrably false
because his mother did not lease the store until at least three years past the
time frame of the alleged assaults. Id.
Again, we agree with the PCRA court’s analysis:
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[I]t must be recognized that the minor victim never testified at
trial to allegations of sexual abuse as having occurred at the
mother’s store. To the contrary, during her trial testimony, the
minor victim testified to three separate instances of sexual abuse
at locations other than the store of the mother. [Stoutzenberger]
was never charged with any instance of purported sexual abuse
alleged to have occurred at the mother’s store. As such, [trial]
counsel cannot be deemed to be ineffective for failing to introduce
evidence of other uncharged instances of alleged sexual abuse at
trial.
PCRA Ct. Opinion at 9 (internal citation to trial testimony omitted).
Accordingly, we conclude that this claim is without merit.
Finally, Stoutzenberger preserved a claim asserting that trial counsel
was ineffective for failing to present evidence of [Stoutzenberger’s] Internet
chatroom conversation in its entirety, but rather allowed the Commonwealth
to present only portions of the conversation. However, Stoutzenberger has
failed to develop any argument in support of this assertion. See generally
Stoutzenberger’s Br. Accordingly, we deem the claim waived. See, e.g.,
Commonwealth v. Spotz, 18 A.3d 244, 282 (Pa. 2011) (concluding
ineffectiveness claim waived where appellant failed to meaningfully discuss
elements of claim); see also Pa.R.A.P. 2119. Absent waiver, we note further
that Stoutzenberger conceded during his testimony at the PCRA hearing that
a complete transcription of the chat log may not exist. Thus, this claim too is
without merit.
As each of his claims is without merit, Stoutzenberger has failed to
establish that trial counsel was ineffective. Loner, 836 A.2d at 132.
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Accordingly, we discern no error in the PCRA court’s dismissal of
Stoutzenberger’s petition. Ragan, 923 A.2d at 1170.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/29/2018
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