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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
CHRISTY L. SMITH :
:
Appellant : No. 73 MDA 2022
Appeal from the PCRA Order Entered December 21, 2021
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0005216-2010
BEFORE: STABILE, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED: NOVEMBER 15, 2022
Smith appeals from the order denying her Post Conviction Relief Act
(“PCRA”) petition. Smith asserts her trial counsel (“Counsel”) provided
ineffective assistance. We affirm.
The police charged Smith, a high-school teacher, with multiple sex
crimes against a 15-year-old student in Smith’s 10th-grade English class. At
Smith’s jury trial,1 two other employees of the school—teacher Kimberly Walls
and social worker Ruby Taylor—testified regarding the alleged relationship
between Smith and the victim. Counsel did not object to their testimony but
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* Retired Senior Judge assigned to the Superior Court.
1 Smith was initially tried and convicted in 2012. This Court vacated those
convictions after concluding the trial court erred by denying Smith’s motion to
sever the charges from those relating to another student. See
Commonwealth v. Smith, No. 2055 MDA 2012, 2013 WL 11253420
(Pa.Super. 2013) (unpublished memorandum).
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cross-examined each witness regarding her basis of knowledge and extent of
her observations.
The victim also testified. Counsel cross-examined him and introduced
evidence that he had previously been convicted of two crimen falsi crimes:
burglary and theft. After the evidence was introduced, the court instructed the
jury that it could consider that evidence for the purpose of deciding whether
the victim’s testimony had been truthful. The court gave a similar instruction
prior to deliberation. Counsel did not ask the court to instruct the jury as to
the definitions of theft or burglary.
The jury found Smith guilty of one count of statutory sexual assault, two
counts of involuntary deviate sexual intercourse with a person less than 16
years of age, one count of unlawful contact with a minor, and one count of
corruption of minors.2 The court sentenced Smith in 2019 to an aggregate of
14 to 28 years’ incarceration.3 We affirmed the judgment of sentence. See
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2 Respectively, 18 Pa.C.S.A. §§ 3122.1(a), 3123(a)(7), 6318(a)(1), and
6301(a)(1).
3 The court initially sentenced Smith for these convictions in 2014, and this
Court affirmed the judgment of sentence in 2015. See Commonwealth v.
Smith, No. 1012 MDA 2014, 2015 WL 6166608 (Pa.Super. 2015)
(unpublished memorandum). Smith filed a timely PCRA petition, and the PCRA
court granted relief in the form of resentencing and dismissed Smith’s other
PCRA claims without prejudice. The court resentenced Smith in 2017. Smith
appealed, and this Court remanded the matter for the trial court to determine
the applicability of registration requirements. See Commonwealth v. Smith,
No. 1315 MDA 2017, 2018 WL 4560325 (Pa.Super. 2018) (unpublished
memorandum). This resulted in the 2019 sentencing.
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Commonwealth v. Smith, No. 1268 MDA 2019, 2020 WL 5535685
(Pa.Super. 2020) (unpublished memorandum).
Smith timely filed the instant PCRA petition in 2021. The court appointed
PCRA counsel, who amended the petition. Smith advanced two claims of
ineffective assistance of trial counsel.4 Smith first posited that Counsel had
been ineffective for failing to object to the testimony of Walls and Taylor,
arguing the testimony had been irrelevant and prejudicial. Second, Smith
claimed that Counsel had been ineffective for failing to request a jury
instruction explaining the elements of the crimes of the victim’s crimen falsi
convictions.
At an evidentiary hearing, Counsel testified that she had not objected
to Walls’ or Taylor’s testimony based on relevancy because she “didn’t feel
that an objection would be beneficial,” and that she “could accomplish the
result [she] wanted to accomplish, which was basically to dilute their
credibility and I could do that through cross-examination.” N.T., 8/20/21, at
8-9. Counsel stated her “strategy was to just utilize cross-examination to
minimize the impact of testimony.” Id at 9. Counsel also testified she did not
object because she “didn’t think that what they said was necessarily harmful
and in some cases could have actually been helpful to our position that there
was nothing untoward between [Smith] and [the victim].” Id.
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4 Because in the first PCRA proceeding, the court dismissed Smith’s non-
sentencing claims – including the claims that are the subject of this appeal –
without prejudice, see note 3, Smith permissibly re-raised the instant claims
in the instant PCRA proceeding following resentencing.
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Regarding the crimen falsi convictions, Counsel testified that she could
not think of a reason why she would not have requested the court instruct the
jury on the elements of burglary and theft. Id. at 7. However, Counsel testified
that “most people know what theft and burglary are.” Id. at 11.
The court denied the petition. Smith appealed, raising two issues:
A. Whether trial counsel was ineffective when she failed to object to
the irrelevant and highly prejudicial testimony of Kimberly Walls
and Ruby Taylor?
B. Whether trial counsel was ineffective when she failed to request
that the court instruct the jury concerning the elements of the
offenses of burglary and theft which were admitted into evidence
in order to impeach the credibility of the alleged victim?
Smith’s Br. at 4.
We review the denial of PCRA relief to ensure “the PCRA court’s
determination is supported by the evidence of record and . . . free of legal
error.” Commonwealth v. Ligon, 206 A.3d 515, 518 (Pa.Super. 2019)
(quoting Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011)).
Smith presents two claims of ineffective assistance of counsel. A PCRA
petitioner bears the burden to plead and prove that counsel was ineffective.
Id. at 519; 42 Pa.C.S.A. § 9543(a)(2)(ii). The petitioner must establish: “(1)
the underlying legal claim is of arguable merit; (2) counsel’s action or inaction
lacked any objectively reasonable basis designed to effectuate the client’s
interest; and (3) prejudice, to the effect that there was a reasonable
probability of a different outcome if not for counsel’s error.” Ligon, 206 A.3d
at 519 (quoting Commonwealth v. Grove, 170 A.3d 1127, 1138 (Pa.Super.
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2017)). An ineffectiveness claim will not succeed unless the petitioner proves
all three prongs. Id. A petitioner proves counsel lacked a reasonable basis
only if she proves an alternative strategy offered a substantially greater
protentional for success. Commonwealth v. Elliott, 80 A.3d 415, 427 (Pa.
2013). Whether prejudice resulted from counsel’s actions is determined in
light of the overall trial strategy. Commonwealth v. Hull, 982 A.2d 1020,
1026 (Pa.Super. 2009).
Smith first argues the PCRA court erred in denying her claim that
Counsel was ineffective for failing to object to Walls’ and Taylor’s testimony.
Smith asserts Walls testified Smith “was too familiar with certain students and
allowed [the victim] and other students to sit on the wrong side of her desk.”
Smith’s Br. at 12-13. Smith claims Taylor “testified about certain hearsay
declarations” and that the victim told her “a certain male teacher may have
been jealous of his relationship with [Smith] and that he and [Smith] were
friends.” Id. at 13.
Smith argues this testimony “added nothing to the search for truth” and
“was introduced solely to show that [Smith] in the most general terms wasn’t
acting as a proper high school teach should.” Id. at 14. According to Smith,
“this evidence had nothing to do with whether [Smith] had sex with the victim
and the Commonwealth sought to have the jury draw the unfair inference that
since [Smith] did not do what [Taylor] and [Walls] thought was appropriate
that she must have been a sex offender.” Id. Smith further argues that the
testimony was not relevant as res gestae evidence, because “there was no
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temporal or other connection” between the testimony and the alleged criminal
acts. Id.
Smith further argues that Counsel had no reasonable strategic basis for
failing to object to the testimony, because a successful objection would have
obviated any need for cross-examination. Smith also argues Counsel’s
extensive cross-examination of the witnesses indicates how prejudicial the
direct testimony was to Smith’s defense.
“Evidence is relevant if: (a) it has any tendency to make a fact more or
less probable than it would be without the evidence; and (b) the fact is of
consequence in determining the action.” Pa.R.E. 401. Irrelevant evidence is
inadmissible. Pa.R.E. 402. Relevant evidence is admissible if its probative
value is not outweighed by a danger of unfair prejudice. Pa.R.E. 403. “‘Unfair
prejudice’ means a tendency to suggest decision on an improper basis or to
divert the jury’s attention away from its duty of weighing the evidence
impartially.” Id., Comment.
The PCRA court concluded that the challenged testimony was relevant.
The court noted “both witnesses within their duties of employment had the
opportunity to observe the interactions and relationship of [Smith] and the
victim” and “testified as to their observations of the interactions between the
[Smith] and the victim, as well as information surrounding the investigation
conducted by the school district regarding the relationship.” Id. Order,
12/20/21, at 5-6. The court found “[t]he information they provided the jury
broadened the scope as to the events occurring during the relevant time
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period that directly relate to the charges in this matter” and “provided insight
as to how both parties interacted publicly as the nefarious nature of their
relationship was kept secret behind closed doors.” Id. at 6. The court further
found that the probative nature of the testimony was not outweighed by the
danger of unfair prejudice “because both witnesses independently provided
information surrounding [Smith’s] behavior that had a potentially innocent
explanation.” Id. at 5.
We agree that the witnesses’ testimony was relevant. Observations of
public interactions between a teacher and student can be probative of whether
a romantic relationship is occurring behind closed doors. The victim’s own
statements to Taylor about his relationship with Smith were certainly
probative of the nature of their relationship. We additionally agree that this
evidence was not outweighed by the potential for unfair prejudice, as vague
accusations that Smith and the victim were “too familiar” or sat on the “wrong”
side of the desk together is not evidence of the sort that would prevent the
jury from weighing the evidence impartially. As far as the relevance of “certain
hearsay declarations” to which Taylor testified, Smith has failed to explain
what that testimony entailed, or why it would be inadmissible on the basis of
relevance.
Even assuming an objection to Walls’ and Taylor’s testimony on the
basis of relevance had arguable merit, Smith has failed to prove that counsel
lacked a reasonable basis for allowing the testimony, or that there is a
reasonable probability that the jury would not have convicted her without
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hearing the testimony. The PCRA court explained that neither Walls nor Taylor
testified that she observed any illegal or inappropriate behavior between
Smith and the victim. Order at 8-9. Walls vaguely testified she believed that
the two were too close, but admitted that Smith was tutoring the victim and
that she observed them doing schoolwork together when the victim went to
Smith’s classroom at the end of the school day. Id. at 6-7. The PCRA court
observed that Taylor even testified that the victim had denied meeting with
Smith in the evenings. Id. at 9. Smith has failed to prove Counsel was
ineffective for failing to object.
In her second issue, Smith argues the court erred in finding Counsel was
not ineffective for failing to request the court instruct the jury on the
definitions of burglary and theft, the victim’s crimen falsi convictions. Smith
argues that while the court instructed the jury that it could “consider the type
of crime committed, how long ago it was committed, and how it may affect
the likelihood that the witness has testified truthfully in this case,” the jury
could not have considered the “type of crime” without an explanation of the
elements of that crime. Smith’s Br. at 18-19. Smith contends that while “many
jurors may understand that theft is synonymous with stealing, it does not
necessarily follow that all jurors understand the elements of burglary.” Id. at
18. Smith argues Counsel should have requested an instruction on the
definition of burglary so “that the jury could understand the particular gravity
of the actions for which the victim was convicted” and that the burglary
conviction “was not akin to a less serious offense such as shoplifting or theft.”
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Id. at 18, 19. Smith also argues Counsel failed to testify to a reasonable
strategic basis for failing to request the instruction, and that the absence of
the instruction caused prejudice, as the jury’s acceptance of the victim’s
testimony as truthful was crucial to her conviction.
Evidence of a prior conviction is admissible to attack the witness’s
credibility if the conviction involves a crimen falsi offense, i.e., a crime
involving dishonesty or a false statement. Pa.R.E. 609(a). Burglary and theft
are crimen falsi. Commonwealth v. Cole, 227 A.3d 336, 340 (Pa.Super.
2020). A defendant is entitled to a jury instruction on the use of a crimen falsi
conviction in assessing a witness’s credibility. Id.
The PCRA court observed that the trial court gave the proper crimen
falsi instruction, and held counsel was not ineffective for failing to request an
additional jury instruction explaining the elements of the crimes. The court
additionally concluded that an instruction on the elements of the victim’s prior
convictions would have been confusing for the jury, which was tasked with
identifying the elements of the crimes with which Smith had been charged,
not the victim. Order at 12.
We agree that Smith’s claim lacks arguable merit. As the PCRA court
stated, the jury received a crimen falsi instruction telling it the victim had been
convicted of crimes involving “an element of dishonesty” and to consider that
when assessing his credibility. See PCRA Court Op. 12/20/21, at 11 (quoting
N.T. 7/18/12, at 995). That was sufficient to inform the jury of the purpose
for which it could consider the convictions. Smith presented no evidence that
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laypersons lack understanding of burglary and theft such that they do not
understand it is indicative of deceitfulness. The only testimony on this point
was Counsel’s uncontradicted assertion that most laypersons are familiar with
the crimes. Smith has likewise failed to prove prejudice.
In addition, we agree with the PCRA court that an instruction as to the
elements may have confused the jury. This Court previously ruled that “the
details pertaining to [the victim’s] burglary convictions were largely
immaterial to [the victim’s] character trait of being stealthy” and that further
explanation of the victim’s burglary convictions would have created a high risk
of unfair prejudice by diverting the jury’s attention from the issues in the case.
See Smith, 2015 WL 6166608 at *6. We therefore conclude that counsel
cannot be found ineffective for having failed to request this instruction.
Order affirmed.
Judge Stabile joins the memorandum.
Judge Colins notes dissent.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/15/2022
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