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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ZACHARY SCOTT THOMPSON :
:
Appellant : No. 1532 MDA 2019
Appeal from the PCRA Order Entered August 30, 2019
In the Court of Common Pleas of Cumberland County Criminal Division at
No(s): CP-21-CR-0000998-2016
BEFORE: LAZARUS, J., DUBOW, J., and KING, J.
MEMORANDUM BY LAZARUS, J.: FILED JULY 29, 2020
Zachary Thompson appeals from the order, entered in the Court of
Common Pleas of Cumberland County, denying his petition filed pursuant to
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After
careful review, we affirm.
In December of 2015, Thompson sexually assaulted his cousin, H.F.,
when H.F. was visiting Thompson’s home for a birthday party. N.T. Jury Trial,
10/25/16, at 66-67. Thompson was charged with rape,1 involuntary deviate
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1 18 Pa.C.S. §3121(a)(1).
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sexual intercourse,2 sexual assault,3 two counts of corruption of minors,4 and
indecent assault.5
Attorney Joshua Yohe from the Cumberland County Public Defender’s
Office represented Thompson at trial. N.T. PCRA Hearing, 5/2/19, at 23. On
October 24, 2016, the day of trial, the parties agreed to mutual sequestration
of witnesses. N.T. Jury Trial, 10/24/16, at 5. Thompson did not intend to call
any witnesses at that time. Id. After the Commonwealth rested its case,
Attorney Yohe learned that Petra Trego, Thompson’s father’s girlfriend, had
information useful for Thompson’s defense. N.T. Jury Trial, 10/25/16, at 116.
The Commonwealth objected to Trego testifying because Trego had been
present for the entire trial, contrary to the sequestration order. Id. The trial
court ultimately precluded Trego from testifying noting that:
[U]nder the circumstances of this case, your client and his family have
known from the start what the issues were, and the issue was whether
or not [H.F.] was indeed raped without any consent, whether there was
a forcible rape. And clearly her attitude, her demeanor, on the day after
in question would have been relevant, and, frankly, the fact that
someone sits through the trial and brings it up at this late stage, I’m
sorry, but I’m not going to permit it.
Id. at 118.
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2 18 Pa.C.S. §3123(a)(1).
3 18 Pa.C.S. § 3124.1.
4 18 Pa.C.S. §3601(a)(1)(ii); 18 Pa.C.S. §6301(a)(1)(i).
5 18 Pa.C.S. § 3126(a)(1).
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On October 26, 2016, a jury convicted Thompson of sexual assault, two
counts of corruption of minors, and indecent assault. On January 31, 2017,
the trial court sentenced Thompson to three to six years of imprisonment, plus
four years of probation to run consecutively to the prison term; at that time,
Thompson was notified of lifetime registration requirements pursuant to the
Sex Offender Registration and Notification Act (SORNA).6
Attorney Geoffrey McInroy represented Thompson during sentencing,
post-sentence motions, and on appeal. N.T. PCRA Hearing, 5/2/19, at 43.
Thompson timely filed post-sentence motions in which he preserved the
sequestration issue. At the post-sentence motion hearing on February 28,
2017, Trego testified that she told Attorney Yohe before trial that she would
be willing to testify regarding H.F.’s behavior the morning after the assault,
which she described as normal. Post-Sentence Motion Hearing, 2/28/17, at
13. The trial court denied Thompson’s post-sentence motions on June 8,
2017.
The defendant filed a timely notice of appeal on July 7, 2017. Despite
including the sequestration issue in his court-ordered Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal, Attorney McInroy only
argued sufficiency and weight of the evidence claims in Thompson’s appellate
brief. Commonwealth v. Thompson, 1087 MDA 2017 (Pa. Super., filed
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642 Pa.C.S.A. §§ 9799.10-9799.41. As a Tier III offender, Thompson was
subject to lifetime registration. 42 Pa.C.S.A. §9799.15(a)(3).
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June 29, 2018) (unpublished memorandum). Our Court affirmed Thompson’s
judgment of sentence on June 29, 2018. Id.
Thompson filed a pro se PCRA petition on September 5, 2018. On
February 19, 2019, Thompson’s newly-appointed counsel filed an amended
PCRA petition, arguing that Thompson’s trial counsel was ineffective for failing
to sequester and prepare Trego as a witness, and that Thompson’s appellate
counsel was ineffective for failing to argue the sequestration issue on direct
appeal.
On May 2, 2019, Thompson, Attorney Yohe, and Attorney McInroy
testified at the PCRA hearing. Attorney Yohe testified that Trego told him she
had valuable information for the defense only after the Commonwealth had
rested its case in chief. N.T. PCRA Hearing, 5/2/19, at 26. Attorney Yohe did
not consider Trego’s testimony important given his trial strategy. Id. at 39.
At trial, H.F. did not testify explicitly as to consent; Attorney Yohe’s strategy
was to frame the situation as consensual sex that H.F. later regretted. Id. If
the sex was consensual, Attorney Yohe posited, H.F. would have been acting
normally the next morning, so Attorney Yohe did not believe Trego’s testimony
was relevant. Id. Attorney McInroy testified that he did not include the Trego
sequestration issue in Thompson’s appellate brief because he believed that it
had little chance of success, and that the weight and sufficiency issues were
stronger. Id. at 46. On direct appeal, Attorney McInroy sought to focus this
Court’s attention on the stronger issues. Id.
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On August 30, 2019, the PCRA court denied Thompson’s petition.
Thompson filed a timely notice of appeal on September 23, 2019, followed by
a court-ordered Rule 1925(b) concise statement of errors complained of on
appeal. Thompson presents the following issue for our review,
“Whether the PCRA court [erred] when it denied defendant’s claim
for ineffective assistance of [appellate] counsel for failing to brief
the preserved issue of the trial judge sustaining the
Commonwealth’s objection to defense witness at trial?”
Appellant’s Brief, at 2.
Our standard of review for the denial of a PCRA petition is to determine
whether the PCRA court’s findings are supported by the record and free from
legal error. Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). The
scope of our review is limited to the findings of the PCRA court and the
evidence of record, viewed in the light most favorable to the prevailing party
at the PCRA level. Id.
Thompson argues that Attorney McInroy was ineffective for failing to
brief, on direct appeal, the issue of whether the trial court erred by sustaining
the Commonwealth’s objection to defense witnesses Trego’s testimony after
she failed to follow the prior sequestration order.
The law presumes that counsel was effective, and the burden falls on
the appellant to show otherwise. Id. To prevail on an ineffectiveness claim,
Thompson must show that: (1) his underlying claim has arguable merit; (2)
appellate counsel had no reasonable basis for his action or inaction; and (3)
appellate counsel’s error prejudiced Thompson such that there is a reasonable
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probability the outcome at trial would have been different absent such error.
Id. Thompson must prove that, in light of all other alternatives, the strategy
actually chosen was so unreasonable that no competent lawyer would have
chosen it. Commonwealth v. Buska, 655 A.2d 576, 582-83 (Pa. Super.
1995). If the chosen strategy had some reasonable basis, then counsel’s
assistance is deemed effective. Commonwealth v. Williams, 899 A.2d
1060, 1064 (Pa. 2006). A strategy is considered reasonable if after making
an informed choice, the strategy chosen could have reasonably been
considered to advance and protect the defendant’s interests. Buska, supra
at 582-83. After review, we conclude that Thompson has failed to establish
that appellate counsel had no reasonable basis for his decision to exclude the
sequestration issue from Thompson’s appellate brief.
Thompson argues that: “Not including the [sequestration issue] . . . did
not elevate [Attorney McInroy’s] . . . argument on sufficiency of the evidence.
It only acted to waive [Thompson’s] constitutional challenge to the trial court’s
ruling.” Appellant’s Brief, at 9. At the PCRA hearing, Attorney McInroy
testified that he believed the sequestration issue was correctly decided, and
further explained that, under an abuse of discretion standard, he believed the
claim had little chance of success on appeal. N.T. PCRA Hearing, 5/2/19, at
53-54. Attorney McInroy testified that the aim of his strategy was to elevate
the strength of the weight and sufficiency claims by not including a frivolous
issue. Id.
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Contrary to Thompson’s argument that excluding issues on appeal is not
a valid strategy, the Pennsylvania Supreme Court has stated that counsel is
under no obligation to raise all meritorious claims and, in fact, should be
selective in what claims to raise. Commonwealth v. Jones, 815 A.2d 598,
614 (Pa. 2002). “This process of ‘winnowing out weaker arguments on appeal
and focusing on’ those more likely to prevail, far from being evidence of
incompetence, is the hallmark of effective appellate advocacy.” Id. (quoting
Jones v. Barnes, 463 U.S. 745, 751-52 (1983)).
In light of the foregoing, Thompson has failed to establish that appellate
counsel had no reasonable basis for his decision not to raise the sequestration
issue on appeal. Accordingly, appellate counsel cannot be deemed ineffective,
and Thompson is entitled to no relief. Williams, supra.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/29/2020
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