J-S74006-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALLEN NEAL :
:
Appellant : No. 1844 EDA 2019
Appeal from the PCRA Order Entered June 5, 2019
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0000225-2015
BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 31, 2020
Appellant, Allen Neal, appeals from the order denying his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.
After careful review, we affirm.
The facts underlying Appellant’s conviction, taken from our
memorandum opinion filed during his direct appeal, are as follows:
[Appellant] and the victim, Karina Zelaya-Betancourt, had been
best friends for approximately six or seven years prior to this
incident, which occurred in the early morning hours on December
14, 2014. Following a night out, [Appellant], the victim, and
several friends went to the victim’s apartment to continue the
party. As the party died down, most of the guests left until only
[Appellant], the victim, and the victim’s friend, Amanda Belen,
remained. The victim went to sleep in her daughter’s bedroom
because Ms. Belen had already gone to sleep in her room.
[Appellant], after checking in on the victim, went to sleep on the
living room couch.
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S74006-19
At approximately 8:00 a.m., the victim was awoken by a “pain
anally and I saw [Appellant] over me and I just told him to get off
of me.” She testified that she had been sleeping on her stomach
and that her pajama pants and underwear had been pulled down.
[Appellant] was mostly clothed but the victim “saw him like tuck
himself back in before he got off of me” and “walked to the living
room.” On cross-examination, the victim conceded that she did
not actually see [Appellant]’s penis.
Following the assault, the victim felt wetness on her buttocks area.
She went into the bathroom, wiped the area with baby wipes, and
discovered that she was bleeding from her anus. Some of the
bloody wipes were flushed down the toilet, but several others were
thrown into the trashcan….
After wiping herself off, the victim went into her bedroom, where
Amanda Belen had been sleeping until she was awoken after
hearing the victim yell at [Appellant]. The victim then called
another friend, who lived close by and had been present the night
before, to escort [Appellant] out of the apartment. [Appellant]
complied without incident.
Subsequently, the victim was taken to Pocono Medical Center and
the police were called. At the hospital, the victim was examined
by Rose Reyes, R.N., a Sexual Assault Nurse Examiner (SANE).
During the examination, the victim provided a statement to Nurse
Reyes and Detective Robert Miller of the Pocono Mountain
Regional Police Department (PMRPD).
Nurse Reyes, who qualified as an expert SANE nurse, testified
that, at the beginning of the examination, the victim was crying
and recounted the facts summarized above. During the interview
portion of the examination, the victim completed a questionnaire,
which asked various questions, including one central to this
appeal: whether the victim had consensual sex in the previous five
days. On the questionnaire, the victim responded that she had
not….
During her physical examination of the victim, Nurse Reyes
discovered “tearing in the anal area. It was mostly toward the 5
and 8 o’clock area. There was tiny little skin tears with a little tiny
bit of bleeding more so to the 5:00 and 6:00 area.” Nurse Reyes
opined that these tears were consistent with trauma. Nurse Reyes
took swabs of the victim’s mouth, anus, and vagina, which were
provided to the police.
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J-S74006-19
Commonwealth v. Neal, No. 2462 EDA 2016, unpublished memorandum at
1-3 (Pa. Super. filed Sept. 11, 2017) (footnote omitted) (quoting from the
trial court’s Pa.R.A.P. 1925(a) Opinion, 10/5/16, at 2-4). Additionally,
[the victim] testified and was cross-examined about the
statement she gave at the hospital; she confirmed that she had
checked a box to indicate that she had not had consensual sex in
the five days preceding the incident. The Commonwealth’s DNA
expert later testified that the DNA of three individuals—Appellant,
[the victim], and an unidentified person—was present on the
wipes. Further, analysis of [the victim]’s rectal swab did not
reveal Appellant’s DNA but did reveal male DNA that was not
Appellant’s.
Id. at 4 (citations omitted).
Based on these facts, the Commonwealth charged Appellant with
numerous sexual offenses. Following a trial, which concluded on April 20,
2016, a jury convicted Appellant of two counts of indecent assault and
acquitted him of all the remaining charges. On July 11, 2016, the trial court
sentenced Appellant to 1-5 years’ incarceration, and to lifetime registration
requirements pursuant to the Sex Offender Registration and Notification Act,
42 Pa.C.S. §§ 9799.10–9799.41 (“SORNA”). Appellant filed a timely notice of
appeal on August 4, 2016.
On direct appeal, this Court vacated “the lifetime registration portion of
Appellant’s sentence and remand[ed] for imposition of a twenty-five year
registration requirement under SORNA[,]” but otherwise affirmed Appellant’s
judgment of sentence. Id. at 12. Our Supreme Court denied Appellant’s
petition for allowance of appeal. Commonwealth v. Neal, 182 A.3d 447 (Pa.
2018).
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J-S74006-19
Appellant subsequently filed a pro se PCRA petition on July 26, 2018,
and an amended petition was filed on his behalf on September 25, 2018, after
the appointment of counsel. The PCRA court conducted an evidentiary hearing
on November 5, 2018. On June 6, 2019, the court issued an opinion and order
(“PCO”) denying Appellant’s PCRA petition.
Appellant filed a timely notice of appeal, and a timely, court-ordered
Rule 1925(b) statement. The PCRA court issued its Rule 1925(a) opinion on
July 15, 2019, which relied entirely on the PCO. Appellant now presents the
following, inter-related questions for our review:
Was trial counsel ineffective for choosing to pursue the theory that
the alleged victim lied, while failing to pursue the theory that the
victim had a motive to fabricate the allegations, when there was
strong evidence that the victim had a motive to fabricate?
Was [trial] counsel ineffective for failing to file a pre-trial motion
under the Rape Shield Law with a specific proffer of how it related
to [A]ppellant’s defense?
Appellant’s Brief at 4.
After careful consideration of the record, the parties’ briefs, and the well-
reasoned opinion by the Honorable Jonathan Mark of the Court of
Commonwealth Pleas of Monroe County, we affirm on the basis set forth in
Judge Mark’s opinion. See PCO at 12-13 (concluding that the at-issue
evidence was not admissible, even if trial counsel had not procedurally
defaulted by failing to file a pre-trial motion under the Rape Shield Law; thus,
trial counsel was not ineffective).
Order affirmed.
-4-
J-S74006-19
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/31/20
-5-
Circulated 01/24/2020 01 :57 P
68_0pinion and Order.pd
COURT OF COMMON PLEAS OF MONROE COUNTY
FORTY-THIRD JUDICIAL DISTRICT
COMMONWEALTH OF PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA NO. 225 CRIMINAL 2015
v.
ALLEN NEAL,
PCRA
DEFENDANT
OPINION
This case is before the Court on the petition of defendant Allen Neal
("Defendant") for relief under the Post-Conviction Relief Act ("PCRA"), 42 Pa. C.S.A.
Section 9541 et. seq., alleging that he received ineffective assistance of counsel. For
the reasons that follow, we will deny the petition.
BACKGROUND
The pre-PCRA history of this case is recited in the Rule 1025(a) opinion
("Appeal Opinion") we issued on October 4, 2016 in response to Defendant's direct
appeal and the opinion of the Superior Court ("Superior Court Opinion"), filed on
September 11, 2017 at 2462 EDA 2016, that affirmed Defendant's jail sentence but
remanded for an adjustment to his Megan's Law classification based on intervening
changes in the law. We incorporate both opinions (collectively the "Prior Opinions")
into this opinion by reference. In summary:
Defendant was arrested and charged with Rape, Involuntary Deviate Sexual
Intercourse, Sexual Assault, two counts of Aggravated Indecent Assault, and two
counts of Indecent Assault. On April 20, 2016, after a three-day trial, a jury convicted
68_0pinion and Order.pd
Defendant of Indecent Assault of an unconscious person and Indecent Assault without
consent. Defendant was acquitted of the other charges.
On July 11, 2016, Defendant was sentenced to 12 to 60 months' incarceration
and, under the law applicable at the time, was classified as a Tier 111 sexual offender.
On August 4, 2016, Defendant filed a direct appeal, alleging that we erred by: 1)
"denying him the ability" to recall the victim on his side of the case; and 2) classifying
him as a Tier Ill sexual offender under the Sexual Offender Registration and
Notification Act (SORNA), 42 Pa. C.S.A. §9799.10 et. seq. The Superior Court
concluded that his first assignment of error merited no relief. With respect to the
second, based on the referenced change in the law, the Superior Court vacated the
Megan's Law classification and remanded for reclassification and imposition of a
twenty-five year registration requirement under SORNA. Id. at 12. Defendant then filed
a Petition for Allowance of Appeal with the Pennsylvania Supreme Court. The petition
was denied on March 13, 2018.
On July 26, 2018, Defendant filed a timely pro se PCRA petition. The Monroe
County Public Defender's Office was appointed to represent Defendant. An amended
petition was filed on September 25, 2018. A hearing was held on November 5, 2018. At
the end of the hearing, the parties were directed to file briefs. Both briefs have been
filed and the matter is ripe for disposition.
DISCUSSION
1. The Applicable Law
PCRA petitions must meet statutory timeliness jurisdictional requirements.
Specifically, unless a legislatively-recognized exception applies, a PCRA petition must
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be filed within one year of the date the defendant's judgment of sentence became final.
42 Pa.C.S.A. § 9545(b)(1). See Commonwealth v. Turner, 73 A.3d 1283, 1285 (Pa.
Super. 2013).
In addition to timeliness requirements, a petitioner must meet the eligibility
requirements of the PCRA. 42 Pa. C.S.A.§ 9543. Under Section 9545, PCRA relief is
not available for alleged errors that have been "previously litigated" or waived. 42
Pa.C.S.A. § 9543(a)(3); Commonwealth v. Fowler, 930 A.2d 586 (Pa. Super. 2007)
Accordingly, "[t]o be entitled to PCRA relief, a petitioner must plead and prove, inter
alia, that the allegation of error has not been previously litigated or waived."
Commonwealth v. Berry, 877 A.2d 479, 482 (Pa. Super. 2005) (en bane), appeal
denied, 917 A.2d 844 (Pa. 2007). An issue has been previously litigated if "the highest
appellate court in which the petitioner could have had review as a matter of right has
ruled on the merits of the issue." 42 Pa.C.S.A. § 9544(a)(2); Commonwealth v.
Keaton, 45 A.3d 1050, 1060 (Pa. 2012). An issue is waived if it could have been
raised prior to the filing of the PCRA petition. but was not. Commonwealth v. Williams,
900 A.2d 906 (Pa. Super. 2006) (en bane); Commonwealth v. Berry, supra.
In more expanded terms, the previously litigated provision of Section 9543(a)
prevents the relitigation of the same legal ground under
alternative theories or allegations. Commonwealth v.
Collins, 585 Pa. 45, 56, 888 A.2d 564, 570 (2005);
Commonwealth v. Derk, 913 A.2d 875, 882
(Pa.Super.2006). Additionally, an issue is not cognizable
under the PCRA where the petitioner simply attempts to
relitigate, without couching in terms of ineffective
assistance, a claim that has already been deemed
reviewed on direct appeal. See Commonwealth v. Jones,
590 Pa. 202, 217, n. 10, 912 A.2d 268, 277, n. 10 (2006). If
the claims upon which a petitioner seeks relief were
previously litigated. then our inquiry ends and the petitioner
is not entitled to relief. 42 Pa.C.S.A. § 9543(a)(3). An issue
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is considered waived if the petitioner could have raised it
but failed to do so before trial, at trial, during unitary review,
on appeal or in a prior state post-conviction proceeding. 42
Pa.C.S.A. § 9544(b); Commonwealth v. Williams, 900 A.2d
906, 908-09 (Pa.Super.2006) (en bane).
Fowler, 930 A.2d at 594. See also Commonwealth v. Ligons, 971 A.2d 1125 (Pa.
2009).
Substantively, Defendant's ineffective assistance of counsel claim implicates
Strickland v. Washington, 466 U.S. 668 (1984), as adopted in Pennsylvania by
Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987), which requires a defendant
alleging ineffectiveness to demonstrate that he was prejudiced by an act or omission of
his attorney. In cases where the Strickland/Pierce test applies, the analysis begins with
the presumption that counsel rendered effective assistance.
Commonwealth v. Basemore, 560 Pa. 258, 277 n. 10, 744
A.2d 717, 728 n. 10 (2000). To obtain relief on a claim of
ineffective assistance of counsel, a Defendant must rebut
that presumption and demonstrate that counsel's
performance was deficient, and that such performance
prejudiced him. Strickland v. Washington, 466 U.S. 668,
687-91, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In our
Commonwealth, we have rearticulated the Strickland Court's
performance and prejudice inquiry as a three-prong test.
Specifically, a Defendant must show: (1) the underlying
claim is of arguable merit; (2) no reasonable basis existed
for counsel's action or inaction; and (3) counsel's error
caused prejudice such that there is a reasonable probability
that the result of the proceeding would have been different
absent such error. Commonwealth v. Pierce, 515 Pa. 153,
158-59, 527 A.2d 973, 975 (1987).
Commonwealth v. Dennis, 17 A.3d 297, 301 (Pa. 2011). See Commonwealth v.
Tedford, 960 A.2d 1 (Pa. 2008); Commonwealth v. Dennis, 950 A.2d 945, 953 (Pa.
2008); Commonwealth v. Gwynn, 943 A.2d 940, 945 (Pa. 2008); Commonwealth v.
Mallory, 941 A.2d 686 (Pa. 2008), cert. denied, 555 U.S. 884 (2008). "Counsel is
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presumed to have been effective and the defendant has the burden of proving
otherwise." Commonwealth v. Miller, 819 A.2d 504, 517 (Pa. 2002).
A corollary to the first element, counsel cannot be found ineffective for failing to
pursue a baseless or meritless claim. Commonwealth v. Roney, 79 A.3d 595, 604 (Pa.
2013); Commonwealth v. Washington, 927 A.2d 586, 603 (Pa. 2007); Commonwealth
v. Harvey, 812 A.2d 1190, 1199 (Pa. 2002). With regard to the second, the
reasonable basis element, we do not question whether there
were other more logical courses of action which counsel
could have pursued; rather, we must examine whether
counsel's decisions had any reasonable basis."
[Commonwealth v.] Hanible, [30 A.3d 426,] 439 [(Pa. 2011)]
(citation omitted). We will conclude that counsel's strategy
lacked a reasonable basis only if the Defendant proves that
a foregone alternative "offered a potential for success
substantially greater than the course actually pursued."
[Commonwealth v.] Spotz, [18 A.3d 244] 260 [Pa. 2011]
(citation omitted). To establish the third, the prejudice
element, the Defendant must show that there is a
reasonable probability that the outcome of the proceedings
would have been different but for counsel's action or
inaction. Id.
Roney, 79 A.3d at 604.
Since a Defendant must prove all three prongs of the Strickland/Pierce test, if he
fails to prove any one of the prongs, the ineffectiveness claim may be dismissed on
that basis alone without the need to determine whether the other two prongs have
been met. Commonwealth v. Basemore, 744 A.2d 717 (Pa. 2000). Similarly, because
claims of ineffective assistance of counsel are not self-proving, a Defendant cannot
prevail unless he properly develops the claim. Thus, when a Defendant fails to preperly
plead all three prongs, or, having done so, to develop the claim, the Defendant is not
entitled to relief and the court may find the claim waived for lack of development See
Commonwealth v. Steele, 961 A.2d 786 (Pa. 2008).
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Additionally, trial counsel has broad discretion to determine the course of
defense tactics and strategy. See Commonwealth v. Fowler, 670 A.2d 153 (Pa. Super.
1996); Commonwealth v. Mizell, 425 A.2d 424 (Pa. 1981). Where matters of strategy
and tactics
are concerned, counsel's assistance is deemed
constitutionally effective if he chose a particular course that
had some reasonable basis designed to effectuate his
client's interests. 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. To demonstrate prejudice, the Defendant must
show 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. Colavita, 993 A.2d 874, 887 (Pa. 2010)(citations omitted). Further,
"[t]he length of time dedicated to client consultation affords no basis for inferring the
extent of trial preparation." Commonwealth v. Howard, 732 A.2d 1213, 1215 (Pa.
Super. 1999) (citing Commonwealth v. Ellis, 700 A.2d 948, 960 (Pa. Super. 1997)).
Where a Defendant has not provided any evidence to support his allegation of
inadequate preparation and it is shown that counsel met with the Defendant prior to
trial, trial counsel cannot be deemed to be ineffective for lack of preparation without
sufficient proof. Id. Thus, a Defendant is not entitled to relief simply because he or she
did not like the strategy or because the strategy was unsuccessful. Commonwealth v.
Davis, 554 A.2d 104, 111 (Pa. Super. 1989).
2. Defendant's Ineffective Assistance of Counsel Claim Lacks Merit
Defendant argues that trial counsel was ineffective for failing to file a motion
under the Rape Shield Law, 18 Pa.C.S.A. § 3104, "so that the Court would have an
opportunity to balance defendant's interests in presenting a defense with the victim's
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right to privacy regarding prior sexual relations." (Defendant's Letter Brief, filed
December 28, 2018, p. 3 (unnumbered)). According to Defendant, "If the Motion had
been filed, it is likely that the evidence would have been admitted as it is relevant and
more probative than prejudicial" (Id. at 8) and, further, "if the jury had heard the entirety
of Mr. Neal's defense, they might have acquitted him of all charges." (Id. at 7). In more
expanded terms, Defendant argued at trial and reiterates in this collateral proceeding
that the jury should have been permitted to hear that he had seen the victim having
sex with another person the night before the incident that led to his conviction.
Defendant's theory was and remains that his victim had a jealous boyfriend and,
therefore, she had a motive to fabricate. In addition, Defendant believed and continues
to believe that the evidence was admissible to impeach the victim. Under all theories
advanced by Defendant, his ineffectiveness claim lacks merit.
Initially, Defendant's ineffectiveness claim is nothing more than a repackaging
of the issues he presented to this Court during trial and later litigated in his direct
appeal. At trial, Defendant sought to introduce evidence regarding and to question the
victim about her alleged sexual encounter with a man the night before the incident. We
ruled that Defendant would not be permitted to do so, articulating several reasons why.
(N.T., 4/19/2016, pp.155 - 171. See N.T., 4/18/2016, pp. 237 - 240). Later, in the
Appeal Opinion we issued in response to Defendant's appeal, we highlighted and
amplified the reasoning expressed on the record and provided the law on which our
ruling was based (Opinion, filed October 5, 2016). Of significance, we stated:
The Rape Shield Law provides, in pertinent part:
(a) General rule. -- Evidence of
specific instances of the alleged victim's
past sexual conduct, opinion evidence of
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the alleged victim's past sexual conduct,
and reputation evidence of the alleged
victim's past sexual conduct shall not be
admissible in prosecutions under this
chapter except evidence of the alleged
victim's past sexual conduct with the
defendant where consent of the alleged
victim is at issue and such evidence is
otherwise admissible pursuant to the rules
of evidence.
(b) Evidentiary proceedings. -- A
defendant who proposes to offer evidence
of the alleged victim's past sexual conduct
pursuant to subsection (a) shall file a
written motion and offer of proof at the time
of trial. If, at the time of trial, the court
determines that the motion and offer of
proof are sufficient on their faces, the court
shall order an in camera hearing and shall
make findings on the record as to the
relevance and admissibility of the proposed
evidence pursuant to the standards set
forth in subsection (a).
18 Pa.C.S.A. § 3104.
The bar to evidence of a victim's past sexual conduct
is not absolute and is subject to certain statutory and
constitutional exceptions. The lone statutory exception,
included in the language of Section 3104(a), allows evidence
of the victim's past sexual conduct with the defendant when
consent of the victim is at issue. That exception is clearly not
applicable to this case. See Commonwealth v. Al/bum, 721
A.2d 363, 367 (Pa. Super. 1998).
With respect to the constitutional exceptions, our
Supreme Court has held the law does not prohibit relevant
evidence that "directly negates the act of intercourse with
which a defendant is charged." Commonwealth v. Majorana,
470 A.2d 80, 84 (Pa. 1983). See also Commonwealth v.
Widmer, 667 A.2d 215, 216 (Pa. Super. 1995). The Rape
Shield Law may not be used to exclude relevant evidence
showing a witness' bias or attacking credibility.
Commonwealth v. Black, 487 A.2d 396, 401 (Pa. Super.
1985). "Evidence tending to directly exculpate the accused
by showing that the alleged victim is biased and thus has a
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motive to lie, fabricate, or seek retribution is admissible at
trial." Commonwealth v. Guy, 686 A.2d 397, 400 (Pa. Super.
1996). If the offer of proof only shows that others in addition
to the defendant had sexual contact with the victim, but does
not show how the evidence would exonerate the defendant,
evidence of prior sexual activity is inadmissible under the
Rape Shield Law. Commonwealth v. Fink, 791 A.2d 1235,
(Pa. Super. 2002); Commonwealth v. Durst, 559 A.2d 504
(Pa. 1989).
In sexual assault cases, trial courts are frequently
called upon to interpret and apply the Rape Shield Law.
Rulings on the admissibility of evidence of the sexual history
of a sexual assault complainant will be reversed only where
there has been a clear abuse of discretion. Commonwealth
v. Al/bum, 721 A.2d 363, 366 (Pa. Super. 1998). An abuse of
discretion is not merely an error of judgment. Id. An abuse of
discretion occurs where the record shows that the trial court,
in reaching a conclusion, overrides or misapplies the law, or
exercises its judgment in a manifestly unreasonable manner
or as the result of partiality, prejudice, bias, or ill will. Id.
In this case, we orally summarized our reasons for
issuing the challenged ruling on the record. (N.T. 4/19/2016,
pp.159-60 and 160-71). We incorporate our on-record
statements into this opinion by reference. For the most part,
the rationale we previously articulated suffices to address
Defendant's first assignment of error and to demonstrate that
our ruling was not an abuse of discretion. To what we said
before, we add the law cited above and the following:
First, Defendant's assignment of error is inaccurate
and misleading. We did not, as the assignment implies,
preclude Defendant from recalling the victim. On the
contrary, our ruling was quite clear that Defendant would be
permitted to recall the victim, but that the subject matter
about which he would be permitted to inquire would be
limited in accordance with the Rape Shield Law. (N.T.
4/19/2016, pp.159-60).
Second, Defendant's attempt to delve into areas
limited or precluded by the Rape Shield Law was
procedurally defective. Under Section 3104(b), Defendant
was required to file a written motion in addition to the offer of
proof. When Defendant made his oral motion at trial, we
indicated that this procedural prerequisite had not been met
(N.T. 4/19/2016, pp. 159-60). By itself, this failure is fatal to
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Defendant's claim. See Commonwealth v. Beltz, 829 A.2d
680, 684 (Pa. Super. 2003). This is especially true in this
case since Defendant and his attorney became aware of the
information needed to file the required motion - presence of
the DNA of an unknown male on the rectal swab, the victim's
answer on the SANE questionnaire regarding consensual
sexual activity, and Defendant's assertion that the victim had
sexual contact with a man the night before - through
documents provided in discovery, expert reports, and
Defendant's personal observations and knowledge long
before trial. Simply, Defendant had ample opportunity to file
a timely written motion. He did not.
Third, the evidence Defendant sought to introduce to
address credibility was heard by the jury, albeit without
reference to the alleged sexual encounter with a man the
night before, through the testimony of the victim and the
reports and testimony of the experts. Specifically, the jury
heard the victim's denial of sexual activity within the previous
five days and about the presence of an unknown male's
DNA on the rectal swab. Our ruling did not preclude
Defendant from eliciting or arguing this evidence or using it
to attack the victim's credibility. In fact, in his closing,
counsel for Defendant highlighted and argued this evidence.
(N.T., 4/20/2016, pp. 16-17).
Fourth, Defendant's sole reason for recalling the
victim was his belief that her general credibility had been
called into question based on the response she provided on
the questionnaire. According to Defendant, this "credibility
issue" constitutes an exception to the Rape Shield Law.
However, numerous cases have held that such evidence,
asserting that others in addition to Defendant had sexual
contact with victim, is inadmissible and not relevant. See
Durst, 559 A.2d at 506 ("Inasmuch as Appellee's offer of
proof tends only to show that others in addition to Appeltee
had sexual contact with the victim rather than showing how
this testimony would exonerate him, Appeltee has not
satisfied his burden of showing that the absent testimony
would have been helpful in establishing his innocence.").
See also Commonwealth v. Reefer, 573 A.2d 1153, 1154
(Pa. Super. 1990) (holding that such evidence is properly
excluded on grounds of relevancy).
Finally, along similar lines, as we noted on the record,
Defendant's offer of proof did not allege or contain any
indication that the victim had motive to lie or bias that was
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specific to Defendant. Without a more specific proffer,
defendant's general credibility argument is simply not
enough to trump the Rape Shield Law. In this regard, a quick
reading of Black could lead to the belief that a victim's past
sexual conduct may be admissible if it brings credibility into
question. However, subsequent appellate cases clarify and
teach that a general credibility attack is simply not enough to
trump the Rape Shield Law. In this regard, the Superior
Court has clarified that inquiries attacking the victim's
credibility are sufficient to pierce the Rape Shield Law "only
where the victim's credibility was allegedly affected by bias
against or hostility toward the defendant, or the victim had a
motive to seek retribution." Commonwealth v. Boyles, 595
A.2d 1180 (Pa. Super. 1991 ); Compare Commonwealth v.
Frank, 577 A.2d 609, 620 (Pa. Super. 1990) and
Commonwealth v. Erie, 521 A.2d 464, 467-69 (Pa. Super.
1987), allocatur denied, 538 A.2d 875 (1988) (following
Black) with Commonwealth v. Reefer, 573 A.2d 1153, 1154
(Pa. Super. 1990) and Commonwealth v. Nenninger. 519
A.2d 433, 437 (Pa. Super. 1986) and Commonwealth v.
Dear, 492 A.2d 714, 719-20 (Pa. Super. 1985) and
Commonwealth v. Coia, 492 A.2d 1159, 1161 (Pa. Super.
1985) (distinguishing Black).
In Reefer. for example, the appellant sought to
introduce witness testimony regarding the prior sexual
conduct of the victim (and of her mother) for impeachment
purposes. In addition to finding the proffered testimony
irrelevant, the court noted the appellant's failure to "connect
the alleged sexual activity involving the excluded defense
witnesses with a motive for hostility by the victim, or his
mother, against him." Reefer supra at 1154. The court went
on to contrast Reefer with Black, a case in which the
excluded evidence "concerned the defendant's ability to
cross-examine the prosecutrix/victim about her incestuous
relationship with her brother, who had been driven from the
home for that reason by the defendant." Id. In Black, this
evidence was admissible but it is clear that the proffer in that
case laid a foundation for bias and motive. Here,
Defendant's offer of proof did not allege or contain any
indication that the victim had a specific motive to lie or bias
towards Defendant. Without a more specific proffer,
Defendant's general credibility argument was simply
insufficient to trump the Rape Shield Law.
ld.at10-15.
II
68_0pinion and Order.pdf
On appeal, the Superior Court affirmed, stating:
The trial court's opinion comprehensively discusses
and properly disposes of this issue. See Trial Ct. Op. at 12·
15 (explaining (1) Appellant failed to comply with the
procedural requirements of the Rape Shield Law; (2) "the
evidence [Appellant] sought to introduce to address the
credibility was heard by the jury, albeit without reference to
the alleged sexual encounter with a man the night before,
through testimony of the victim and the reports and
testimony of the experts"; and (3) Appellant's general
credibility argument was insufficient to trump the Rape
Shield Law). With respect to Appellant's claim that he was
denied his constitutional right to confront Ms. Zelaya-
Betancourt through cross-examination, we note that the trial
court did not preclude Appellant from recalling Ms. Zelaya-
Betancourt as a witness. Rather, the court merely applied
the Rape Shield Law's restrictions on the admissibility of
evidence of past sexual conduct in limiting the questions that
Appellant could ask if he questioned Ms. Zelaya-Betancourt;
Appell and was free to confront Ms. Zelaya-Betancourt
through other areas of questioning, but elected not to do so
once the trial court made clear that his questioning had to
conform to the Rape Shield Law's requirements.
Enforcement of rules regarding the admissibility of evidence
is not a violation of the constitutional right to confront
witnesses. See Commonwealth v. Quartman, 458 A.2d 994,
996 (Pa. Super. 1983) ("The fundamental right to confront
witnesses often gives way ... to certain evidentiary
principles."). Appellant therefore is not entitled to relief on
this issue.
Superior Court Opinion, pp. 10-11.
For the reasons expressed on the record during trial as well as those recited in
the Prior Opinions, Defendant's assertion that the evidence he sought to present was
admissible was and remains meritless. Since counsel cannot be deemed ineffective
for failing to pursue a baseless or meritless claim, it follows that trial counsel cannot
be deemed ineffective.
We recognize that, as Defendant points out, one of the bases for our ruling was
trial counsel's failure to timely and properly file a motion under the Rape Shield law.
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68_0pinion and Order.pd
However, as both the Prior Opinions and our on-record reasoning demonstrate, the
procedural snafu was only one of several reasons for our ruling. For the reasons
stated in those opinions, even if a motion had been timely and properly filed, the
evidence Defendant sought to present would have been inadmissible.
As also discussed in the Prior Opinions, while trial counsel did not file a Rape
Shield Law motion he did attempt to introduce the challenged evidence and question
the victim about the alleged sexual encounter of the night before. Further, we did not
preclude Defendant from recalling the victim; rather, we limited the subject matter
about which inquiries could be made in accordance with the Rape Shield Law.
Moreover,
the evidence Defendant sought to introduce to address
credibility was heard by the jury, albeit without reference to
the alleged sexual encounter with a man the night before,
through the testimony of the victim and the reports and
testimony of the experts. Specifically, the jury heard the
victim's denial of sexual activity within the previous five days
and about the presence of an unknown male's DNA on the
rectal swab. Our ruling did not preclude Defendant from
eliciting or arguing this evidence or using it to attack the
victim's credibility. In fact, in his closing, counsel for
Defendant highlighted and argued this evidence. (N.T.,
4/20/2016, pp. 16-17).
Appeal Opinion, p.13. As this passage shows, Defendant's assertion that the jury did
not hear evidence of the type he sought to introduce due to trial counsel's
ineffectiveness is simply wrong.
Additionally, even if there is some twist on the evidence that Defendant could
with a straight face argue the jury did not hear, an assertion that "if the jury had heard
the entirety of Mr. Neal's defense, they might have acquitted him of all charges"
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68_0pinion and Order.pd
(Defendant's Letter Brief, p. 7 (unnumbered)(emphasis added), does not satisfy the
"but for" test and does not state a valid claim of attorney ineffectiveness.
Finally, while the PCRA petition appears to be predicated entirely on a claim of
attorney ineffectiveness, portions of Defendant's brief may also be read as attempting
to substantively challenge our evidentiary ruling on constitutional grounds.1 To the
extent Defendant is or may be deemed to be asserting a substantive argument
outside the context of an ineffectiveness claim, he is under the law discussed above
ineligible for relief under the PCRA because his claim was previously litigated and
rejected in his direct appeal. Similarly, to the extent any vestige of a different non-
ineffectiveness claim that was not previously litigated can be gleaned, the claim has
been waived because Defendant could easily have litigated such an issue in his direct
appeal but did not.
For these reasons, we enter the following
I
For example, Defendant's brief lists two inter-related issues. In the second issue, Defendant squarely raises an
ineffective assistance claim. However, in the first he asks, "Was the jury prevented from hearing evidence
regarding the alleged victim's motive to fabricate allegations due to defense counsel's failure to raise it as a pre-
trial issue?" (Defendant's Letter brief, p. 3).
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68_0pinion and Order.pdf
COURT OF COMMON PLEAS OF MONROE COUNTY
FORTY-THIRD JUDICIAL DISTRICT
COMMONWEALTH OF PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA NO. 225 CRIMINAL 2015
v.
ALLEN NEAL,
PCRA
DEFENDANT
ORDER
AND NOW, this 5th day of June, 2019, it is ORDERED that Defendant's petition
for relief under the Post-Conviction Relief Act, 42 Pa. C.S.A. Section 9541 et. seq., is
DENIED.
Defendant is advised that he has thirty (30) days from the date this Order is
entered on the docket and served on the parties within which to file an appeal to the
Pennsylvania Superior Court.
Cc: District Attorney (MTR)
Public Defender (CB)
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