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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
LEONARD F. ADAMS, JR. : No. 1635 MDA 2022
Appeal from the PCRA Order Entered November 8, 2022
In the Court of Common Pleas of Columbia County Criminal Division at
No(s): CP-19-CR-0000933-2017
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY LAZARUS, J.: FILED: JULY 26, 2023
The Commonwealth of Pennsylvania appeals from the order, entered in
the Court of Common Pleas of Columbia County, granting relief in the form of
a new trial to Leonard F. Adams, Jr., pursuant to his petition filed pursuant to
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Upon
our review, we reverse and reinstate Adams’ judgment of sentence.
This Court has previously set forth the factual and procedural history of
this case as follows:
[Adams] was charged with indecent assault[1] for repeatedly
having indecent contact with S.H., [his step-granddaughter,] an
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* Former Justice specially assigned to the Superior Court.
1 “A person is guilty of indecent assault if the person has indecent contact with
the complainant, causes the complainant to have indecent contact with the
person or intentionally causes the complainant to come into contact with
(Footnote Continued Next Page)
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eleven-year-old girl. As this was not the first time he had been
investigated regarding his conduct with a minor, [Adams] filed a
pre-trial motion in limine to exclude any references to the prior
investigation by Children and Youth Services (“CYS”). The trial
court granted the motion on the record. See N.T. Trial, 7/19/19,
at 4.
At trial, in addition to the testimony of S.H., S.H.’s mother, and a
forensic interviewer, the Commonwealth offered the testimony of
two individuals present when [Adams] was interviewed at the
Bloomsburg barracks of the Pennsylvania State Police: Jennifer
Edgar, a CYS caseworker, and Trooper Eric Shellenberger. The
latter two witnesses provided consistent testimony about the
admissions [Adams] made during that interview. However, during
the prosecution’s questioning of [] Edgar, the jury heard the
following:
Q. During the interview on November 8th of 2017, did
[Adams] make any statements relating to touching S[.H.]?
A. Yes.
Q. What statements did he make?
A. He informed us that he knew why he was there. He said
that his son told him he was being blamed for sexually
abusing S[.H]. He also informed us that he was accused in
the past of molesting—
[Defense counsel]: Objection.
The Court: Sustained.
[] Edgar: He admitted that he had tickled her, he said that
it was under her arms, it could have been under her shirt,
he couldn't remember. Later he did state that he tickled her
under the shirt and then he informed us that he did rub her
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seminal fluid, urine[,] or feces for the purpose of arousing sexual desire in the
person or the complainant and . . . the complainant is less than 13 years of
age[.]” 18 Pa.C.S.A. § 3126(a)(7). “An offense under subsection (a)(7) is a
misdemeanor of the first degree unless any of the following apply, in which
case it is a felony of the third degree: (ii) There has been a course of conduct
of indecent assault by the person.” Id. at § (b)(3)(ii). “Course of conduct”
as used in section 3126 imposes a requirement of more than one act over
time. Commonwealth v. Kelly, 102 A.3d 1025, 1031 (Pa. Super. 2014).
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breasts. He told her that she was becoming a big girl while
he was doing that to her. He also informed us that he did
go down her pants, [but] it was on top of her underwear.
He said that he had touched her vagina directly one time
and the other time was above the vagina. And he also told
her not to tell anyone because he would get in trouble.
Id. at 91-92.
The Commonwealth did not mention this reference to the past
accusation in its closing argument when summarizing [] Edgar’s
testimony concerning [Adams’] admissions. See id. at 236-39.
Nor does the record reflect that [Adams] moved for a mistrial or
requested a limiting instruction based upon [] Edgar’s statement.
The jury found [Adams] guilty of indecent assault and determined
that his actions constituted a course of conduct, which caused his
crime to be graded as a third-degree felony. See Verdict,
7/19/19; 18 Pa.C.S.[A.] § 3126(b)(3)(ii). [Adams] was sentenced
[to 11 ½ to 23 months of incarceration] on December 5, 2019. In
a timely post-sentence motion, [Adams] requested a new trial due
to [] Edgar’s improper testimony, although he acknowledged that
“there was no request for a motion to strike, a request for a
mistrial, or even a limiting instruction by counsel nor was there
[one] given by [the trial court].” Post-Sentence Motion, 12/11/19,
at ¶ 12. The trial court denied [Adams’] motion, and [Adams
appealed].
Commonwealth v. Adams, 82 MDA 2020, at *1-*3 (Pa. Super. filed Jan. 8,
2021) (unpublished memorandum decision).
On appeal, Adams asserted that the trial court erred in failing to declare
a mistrial or give a limiting instruction with regard to Edgar’s testimony, a
claim this Court found to be waived for Adams’ failure to timely request such
relief at trial. Accordingly, we affirmed Adams’ judgment of sentence. See
id. Adams filed a petition for allowance of appeal, nunc pro tunc, with our
Supreme Court, which the Court denied on May 11, 2022. See id., 278 A.3d
302 (Pa. 2022) (Table).
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On June 8, 2022, Adams filed a counseled PCRA petition in which he
alleged the ineffectiveness of trial counsel, Franklin Kepner, Esquire, for failure
to request a limiting instruction or mistrial in relation to Edgar’s testimony.
The PCRA court held a hearing on October 6, 2022, at which time Adams
abandoned his claim regarding Attorney Kepner’s failure to request a
cautionary instruction and proceeded only on the issue of counsel’s failure to
request a mistrial. Upon questioning by Adams’ counsel as to why he did not
request a mistrial, Attorney Kepner testified that “[a]t that time I did not think
it was appropriate to ask for a mistrial.” N.T. PCRA Hearing, 10/6/22, at 11.
Following the submission of briefs by the parties, the PCRA court granted
Adams a new trial, concluding that Adams’ claim had arguable merit, Attorney
Kepner had offered no reasonable basis for his failure to request a mistrial and
that Edgar’s testimony “was certainly prejudicial to [Adams].” PCRA Court
Order, 11/8/22, at n.1. The Commonwealth filed this timely appeal, in which
it raises one claim for our review: “Whether the [PCRA] court committed an
error of law in concluding [] trial counsel was ineffective and in granting
[Adams] a new trial[.]” Brief of Appellant, at 6.
In reviewing an order granting relief under the PCRA, this Court’s
standard of review is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error.
Commonwealth v. Hipps, 274 A.3d 1263, 1266 (Pa. Super. 2022).
Here, the PCRA court granted Adams relief on the basis of an
ineffectiveness of counsel claim. A PCRA petitioner will be granted relief on
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such a claim only when he proves, by a preponderance of the evidence, that
his conviction or sentence resulted from the “[i]neffective 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). Generally, counsel’s
performance is presumed to be constitutionally adequate, and counsel will
only be deemed ineffective upon a sufficient showing by the petitioner.
Commonwealth v. Dennis, 950 A.2d 945, 954 (Pa. 2008). To obtain relief,
a petitioner must demonstrate that counsel’s performance was deficient and
that the deficiency prejudiced the petitioner. Strickland v. Washington,
466 U.S. 668, 687 (1984). A petitioner establishes prejudice when he
demonstrates “that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Id. at 694. Under the Strickland test, a petitioner is required to prove: (1)
the underlying legal issue has arguable merit; (2) counsel’s actions lacked an
objective reasonable basis; and (3) actual prejudice befell the petitioner from
counsel’s act or omission. Commonwealth v. Tedford, 960 A.2d 1, 12 (Pa.
2008), citing Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987)
(adopting U.S. Supreme Court’s holding in Strickland). “If a petitioner fails
to prove any of these prongs, his claim fails.” Commonwealth v. Simpson,
66 A.3d 253, 260 (Pa. 2013) (citation omitted).
Generally, counsel’s assistance is deemed constitutionally
effective if he chose a particular course of conduct that had some
reasonable basis designed to effectuate his client’s interests.
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Where matters of strategy and tactics are concerned, 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 petitioner must
show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceedings would have
been different. A reasonable probability is a probability that is
sufficient to undermine confidence in the outcome of the
proceeding.
Commonwealth v. Spotz, 84 A.3d 294, 311–12 (Pa. 2014) (internal
citations, quotation marks, and brackets omitted).
Moreover, a mistrial “is an extreme remedy required only when an
incident is of such a nature that its unavoidable effect is to deprive the
appellant of a fair and impartial tribunal.” Commonwealth v. Hogentogler,
53 A.3d 866, 878 (Pa. Super. 2012) (citations omitted).
In criminal trials, the declaration of a mistrial serves to eliminate
the negative effect wrought upon a defendant when prejudicial
elements are injected into the case or otherwise discovered at
trial. By nullifying the tainted process of the former trial and
allowing a new trial to convene, declaration of a mistrial serves
not only the defendant’s interests but, equally important, the
public’s interest in fair trials designed to end in just judgments.
Accordingly, the trial court is vested with discretion to grant a
mistrial whenever the alleged prejudicial event may reasonably be
said to deprive the defendant of a fair and impartial trial. In
making its determination, the court must discern whether
misconduct or prejudicial error actually occurred, and if so, . . .
assess the degree of any resulting prejudice. Our review of the
resulting order is constrained to determining whether the court
abused its discretion.
Id. at 877-78.
Here, the Commonwealth argues that Adams failed to establish the third
prong of the Strickland test, i.e., prejudice. The Commonwealth asserts that
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Adams has not demonstrated that a mistrial would have been granted had it
been requested and, indeed, there were no grounds for a mistrial, because
while Edgar’s testimony merited an objection, such objection “was promptly
made and ruled on prior to any prejudice to [Adams that] would rise to the
level of warranting a mistrial.” Brief of Appellant, at 14. The Commonwealth
argues:
Edgar’s testimony was in response to the question[:] “During the
interview on November 8, 2017, did [] Adams make any
statements relating to touching [S.H.]?” [When Edgar responded,
“Yes,” the Assistant District Attorney went on to ask,] “What
statements did he make?” Therefore, for all the jury knew,
[Adams, in the statement recounted by Edgar,] was referring to
the same victim, which certainly would not [have been]
prejudicial[,] since [Adams] was charged with a course of conduct.
The allegations presented to the jury by the Commonwealth were
that [Adams] engaged in a course of conduct with [S.H.] over a
period of time which ended September 10, 2017. [Adams’]
interview took place on November 8, 2017. There was nothing in
the testimony to inform the jury that [Adams] was referring to
anyone other than [S.H.]
Id. at 16.
The Commonwealth further points out that the court instructed the jury
that it was to disregard any testimony to which an objection is sustained and
that, “[i]n the context of 270 pages of testimony and instructions,” it is
“completely unreasonable” to claim that the jury was so tainted by a half
sentence of testimony that it could not render a fair and impartial verdict. Id.
at 20.
In response, Adams argues that the reference to past accusations could
not reasonably be presumed by the jury to refer to the course of conduct
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against S.H. for which Adams was currently on trial, but rather to “prior
investigations against him relating to the same complaining witness.” Brief of
Appellee, at 8. Adams argues that, despite a trial court’s instructions to the
contrary, “[t]here are some statements that a jury cannot unhear [and] these
statements are so prejudicial that a mistrial must be requested and granted.”
Id. Because there was no physical evidence, the case against Adams turned
on who the jury believed more. Under such circumstances, Adams argues,
“[h]aving a statement [that] alerts the jury that this is not the first time that
[Adams] had been investigated for such an offense is so prejudicial” that a
mistrial was appropriate, and that “sustaining [defense counsel’s] objection
does not cure the prejudicial effect of the statement.” Id. at 9.
We agree with the PCRA court and both parties that Adams’ claim has
arguable merit and that trial counsel lacked a reasonable basis for his failure
to request a mistrial. Strickland, supra. However, Adams has failed to
establish prejudice, as there is not a reasonable probability that the outcome
of his trial would have been different had the jury not been exposed to the
single, unfinished sentence uttered by Edgar. Contrary to Adams’
characterization, this was not simply a “he said/she said” case in which the
credibility of the victim was the sole determining factor. Rather, Edgar and
Trooper Shellenberger each testified that Adams admitted to the conduct at
issue.
Specifically, Edgar testified that Adams stated in his interview at the
State Police barracks that he had tickled S.H. under her shirt, rubbed S.H.’s
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breasts, went “down her pants . . . on top of her underwear,” and “touched
her vagina directly one time.” N.T. Trial, 7/19/19, at 91. Adams also stated
that he told S.H. that “she was becoming a big girl” as he rubbed her breasts
and warned her “not to tell anyone because he would get in trouble.” Id. at
91-92. Edgar testified that Adams stated he had touched S.H.’s breasts “one,
two, possibly three times.” Id. at 92.
Similarly, Trooper Shellenberger, who was both the lead investigator
and the affiant in this case, testified that he read Adams his Miranda2
warnings prior to interviewing him. Trooper Shellenberger testified that
Adams admitted to having touched S.H.’s bare breasts, underneath her bra,
approximately three times, and also admitted to having squeezed them. Id.
at 111-12. Trooper Shellenberger further testified that Adams stated that “he
had touched [S.H.’s vaginal area] at least two times . . . and that while
touching her, on one occasion at least, he [made] a rubbing motion over [the]
top of her vagina.” Id. Trooper Shellenberger also testified that Adams stated
that he told S.H. not to tell anyone “because he knew he would get in trouble
for it.” Id.
In light of the foregoing testimony, the brief sentence fragment uttered
by Edgar, which was not intentionally elicited by the Commonwealth, could
not reasonably be deemed to have changed the outcome of Adams’ trial.
Strickland, supra. Moreover, trial counsel lodged a timely objection, and
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2 Miranda v. Arizona, 384 U.S. 436 (1966).
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the Commonwealth did not pursue the matter or refer to that portion of
Edgar’s testimony during its closing argument. See Commonwealth v.
Busanet, 817 A.2d 1060, 1068 (Pa. 2002) (prejudice not established where
counsel unnecessarily made jury aware of defendant’s prior assault conviction,
because Commonwealth presented substantial independent inculpatory
evidence at trial and reference to assault conviction was “isolated and not
exploited” by Commonwealth).
Accordingly, the PCRA court abused its discretion in granting Adams a
new trial on the basis of trial counsel’s failure to request a mistrial. Adams’
judgment of sentence, imposed on December 5, 2019, is reinstated.
Order reversed. Judgment of sentence reinstated.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/26/2023
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