J-S42013-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PAUL WILLIAM TALBERT,
Appellant No. 2031 MDA 2016
Appeal from the PCRA Order November 15, 2016
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0002721-2011
BEFORE: OLSON, J., MOULTON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 18, 2017
Appellant, Paul William Talbert, appeals from the order entered on
November 15, 2016, denying Appellant relief on his petition filed pursuant to
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We
affirm.
The relevant factual background and procedural history of this case
are as follows. On March 25, 2011, Appellant was charged with a number of
crimes, including aggravated indecent assault of a person less than 16 years
of age, indecent assault, and corruption of minors.1 Appellant proceeded to
a jury trial, where the victim testified that Appellant is her stepfather and
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1
18 Pa.C.S.A. §§ 3125(a)(8), 3126(a)(8), and 6301(a)(1), respectively.
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that he began sexually abusing her when she was around 12 years of age.
As the victim testified, Appellant is a long-haul truck driver and Appellant
first sexually abused her in his truck, when he was on a work-trip to New
Jersey. N.T. Trial, 8/12/13, at 81-83. The victim testified that, during this
incident, Appellant “tried to put his dick in [her] vagina,” but that she could
not remember whether Appellant succeeded in doing so. Id. at 83-84.
The victim testified that Appellant next sexually assaulted her
approximately one to two years later and that, after the second time,
Appellant sexually abused her about “once or twice a month” until she was
16 years old. Id. at 86 and 89. Further, the victim testified that, during the
later instances of abuse, Appellant “would either rub [her] clit[oris] or put
his finger in” her vagina – and that Appellant did so “multiple” times. Id. at
89-94.
On August 13, 2013, a jury convicted Appellant of the above-
mentioned crimes and, on April 21, 2014, the trial court sentenced Appellant
to serve a term of two-and-a-half to five years in prison, followed by five
years of probation. N.T. Sentencing, 4/21/14, at 73-74. This Court affirmed
Appellant’s judgment of sentence on August 4, 2015; our Supreme Court
denied Appellant’s petition for allowance of appeal on December 16, 2015.
Commonwealth v. Talbert, 131 A.3d 81 (Pa. Super. 2015) (unpublished
memorandum) at 1-14, appeal denied, 128 A.3d 220 (Pa. 2015).
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On February 3, 2016, Appellant filed a pro se PCRA petition. The PCRA
court appointed counsel and Appellant filed an amended petition on May 16,
2016. The PCRA court held hearings on May 27, and July 29, 2016. On
November 16, 2016, the PCRA court denied relief. This timely appeal
follows.2
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2
On December 13, 2016, the trial court ordered Appellant to file and serve
a concise statement of errors complained of on appeal, pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b). Appellant filed his Rule
1925(b) statement on January 3, 2017 and, within the statement, Appellant
listed the following claims:
1. The [trial] court erred in finding that trial counsel was not
ineffective for failing to cross examine and impeach the []
victim at trial with her alleged inconsistencies regarding:
a. The identity of the [] abuser;
b. The timing of the [] abuse;
c. Whether penetration of the [] victim’s vagina actually
occurred;
d. The allegation of rectal intercourse;
e. The location of the abuse allegedly occurring in the
truck;
f. Whether [Appellant] removed her underwear during
the abuse that [] occurred in the truck;
g. The frequency of the [] abuse occurring in the truck;
h. The identity of the first person the victim allegedly
disclosed the abuse;
i. The allegation of [Appellant] fondling her breasts;
(Footnote Continued Next Page)
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Although Appellant has failed to list the issues presented on appeal,
Appellant argues the following claims in his brief to this Court:
1. Because the failure to cross-examine [the victim] on prior
inconsistent statements is both of arguable merit and raises
a reasonable probability of a different verdict, the [trial]
court erred.
2. Because trial counsel’s failure to call multiple witnesses
regarding prior inconsistent statements of [the victim] is
both of arguable merit and raises the reasonable probability
of a different verdict, the [trial] court erred.
_______________________
(Footnote Continued)
j. The age of the victim when the first and last incidents
occurred;
k. The descriptions of the last incident of alleged abuse.
2. The lower court erred in denying [Appellant’s] PCRA
petition for after discovered exculpatory evidence pursuant
to [42 Pa.C.S.A. § 9543(a)(2)(vi)] by:
...
e. Ruling that Exhibit 7, the undated letter signed “Dear
Dad” was not relevant, and not exculpatory and would
not be likely to compel a different verdict.
...
3. The [trial] court erred in finding that trial counsel was not
ineffective for failing to adequately investigate and prepare
pretrial as a result of [Appellant’s] lack of communication
and lack of understanding due to his Asperger’s.
Appellant’s Rule 1925(b) Statement, 1/3/17, at 1-2 (some internal
capitalization omitted).
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3. Trial counsel’s failure to develop an adequate trial
strategy because of his insufficient communication with
[Appellant] requires a new trial.
4. Because trial counsel’s failure to introduce prior
inconsistent statements of [the victim] regarding the
charged offense is both of arguable merit and raises the
reasonable probability of a different verdict, the [trial] court
erred.
Appellant’s Brief at 1-30.3, 4
As we have stated:
[t]his Court’s standard of review regarding an order
dismissing a petition under the PCRA is whether the
determination of the PCRA court is supported by evidence of
record and is free of legal error. In evaluating a PCRA
court’s decision, our scope of 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
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3
Appellant failed to include a Pennsylvania Rule of Appellate Procedure 2116
“statement of questions involved” section in his brief. Rule 2116(a) declares
that “[n]o question will be considered [on appeal] unless it is stated in the
statement of questions involved or is fairly suggested thereby.” Pa.R.A.P.
2116(a). However, pursuant to our case law, we “may overlook [a Rule
2116 violation] when an appellant raises the question[] involved in some
other portion of his brief [and when the violation] does not impede our
ability to review the issue[].” Commonwealth v. Clinton, 683 A.2d 1236,
1239 (Pa. Super. 1996). In this case, Appellant clearly raises the issues he
wishes to present to this Court in the argument section of his brief.
Appellant’s Brief at 1-30. Thus, since Appellant clearly and distinctly
“identifies the specific issue[s] . . . in the argument section of [the] appellate
brief . . . Appellant’s failure to comply with Rule 2116(a) does not impede
our ability to review the issue[s],” and, accordingly, we will not find waiver
for failure to comply with Rule 2116. Commonwealth v. Long, 786 A.2d
237, 239 n.3 (Pa. Super. 2001).
4
For ease of discussion, this Court has reorganized Appellant’s claims on
appeal.
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the trial level. We may affirm a PCRA court’s decision on
any grounds if it is supported by the record.
Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010) (internal
citations omitted).
To be eligible for relief under the PCRA, the petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
resulted from “one or more” of the seven, specifically enumerated
circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily
enumerated circumstances is the “[i]neffectiveness 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).
Counsel is, however, presumed to be effective and “the burden of
demonstrating ineffectiveness rests on [A]ppellant.” Commonwealth v.
Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). To satisfy this burden,
Appellant must plead and prove by a preponderance of the evidence that:
(1) his underlying claim is of arguable merit; (2) the
particular course of conduct pursued by counsel did not
have some reasonable basis designed to effectuate his
interests; and, (3) but for counsel’s ineffectiveness, there is
a reasonable probability that the outcome of the challenged
proceedings would have been different.
Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). “A failure to
satisfy any prong of the test for ineffectiveness will require rejection of the
claim.” Id.
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First, Appellant claims that trial counsel was ineffective for failing to
adequately cross-examine the victim regarding alleged prior inconsistent
statements. Appellant’s Brief at 13. Specifically, Appellant argues that trial
counsel was ineffective for failing to cross-examine the victim regarding her
alleged prior inconsistent statements about: “whether penetration occurred
[and] the specific part of the body that she alleged [Appellant] penetrated
and violated” when the victim was 12 years old and the two were in New
Jersey, inside of Appellant’s truck; “the number of times there were truck
rides during which [the victim] touched [Appellant];” and, “the frequency of
the incidents in the truck.” Appellant’s Brief at 15-18.5
At the outset, Appellant has failed to identify any portion of the record
in which an inconsistency may be found regarding “the number of times
there were truck rides during which [the victim] touched [Appellant]” and
“the frequency of the incidents in the truck.” See Appellant’s Brief at 7-10
and 13-18. Therefore, these claims are waived. Commonwealth v. Spotz,
716 A.2d 580, 585 n.5 (Pa. 1999) (“[the Pennsylvania Supreme Court] has
held that an issue will be deemed to be waived when an appellant fails to
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5
Within Appellant’s PCRA petition, Appellant claimed that trial counsel was
ineffective for failing to cross-examine the victim on a number of additional,
alleged inconsistencies. We note that Appellant has waived any claim that is
not contained in the argument section of his brief. Commonwealth v.
Phillips, 141 A.3d 512, 522 (Pa. Super. 2016) (issues “not developed in the
[b]rief’s argument section will be deemed waived”).
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properly explain or develop it in his brief”); Commonwealth v. Perez, 93
A.3d 829, 838 (Pa. 2014) (“to the extent appellant’s claims fail to contain
developed argument or citation to supporting authorities and the record,
they are waived”).
Appellant also claims that trial counsel was ineffective for failing to
cross-examine the witness regarding “whether penetration occurred [and]
the specific part of the body that she alleged [Appellant] penetrated and
violated” when the victim was 12 years old and the two were inside of
Appellant’s truck, in New Jersey. Appellant’s Brief at 17. This claim fails.
Appellant’s argument arises from an alleged incident that took place in
New Jersey when the victim accompanied Appellant on a truck ride.
Appellant was not on trial regarding any conduct alleged to have occurred
during this incident. Testimony regarding this incident was admissible only
for a limited purpose, to show Appellant’s “passion or propensity for illicit
sexual relations with [the victim].” PCRA Court Opinion, 11/15/16, at 7; see
also Commonwealth v. Dunkle, 602 A.2d 830, 839 (Pa. 1992) (evidence
of “prior sexual misconduct with the victim is admissible to show a passion
or propensity for illicit sexual relations with the particular person concerned
in the crime on trial”) (internal quotations, citations, and corrections
omitted).
Further, while there may have been slight variances in statements the
victim gave during interviews and what she testified to at trial, these
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variances were de minimis and reasonable given that the alleged incident
occurred about seven years prior to the trial. Thus, Appellant was not
prejudiced by trial counsel’s failure to cross-examine the victim on de
minimis inconsistencies on a collateral matter. Commonwealth v.
Vandivner, 130 A.3d 676, 696 (Pa. 2015) (“a petitioner seeking relief under
the PCRA must demonstrate prejudice by showing there is a reasonable
probability that the result of the proceeding would have been different”).
Therefore, this claim fails.
Appellant next argues that trial counsel was ineffective for failing to
call multiple witnesses who would have testified that the victim made prior
inconsistent statements. Appellant’s Brief at 18. Appellant did not include
this claim in his Rule 1925(b) statement. Therefore, the claim is waived.
Pa.R.A.P. 1925(b)(4)(vii) (“[i]ssues not included in the [Rule 1925(b)
s]tatement . . . are waived”).
In his third claim, Appellant alleges that trial counsel was ineffective
for not adequately investigating and preparing for trial due to a lack of
communication with Appellant. Appellant claims that this lack of
communication was caused by his own inability to communicate effectively
as a result of having Asperger Syndrome. Appellant’s Brief at 22. Appellant
further argues that he was unable to understand what was happening at trial
or aid in his own defense, and therefore a new trial is warranted. Id. at 23.
The PCRA court heard testimony and received evidence regarding this claim
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and concluded that trial counsel was not ineffective for failing to
communicate with Appellant or for failing to prepare and investigate for trial.
PCRA Court Opinion, 11/15/16, at 32. We agree.
Prior to trial, Appellant received a competency evaluation and was told
by his own expert that he was competent to stand trial. Specifically, the
expert found:
[Appellant’s] current therapist went so far as to diagnose
[Appellant] with Asperger’s Disorder. [Appellant] has many
features of Asperger’s Disorder. A hallmark symptom is his
social autism; however, [Appellant] fails to meet the criteria
for repetitive restrictive and stereotype patterns of
behavior. While they may be present, there is no evidence
of them in the materials presented to this examiner.
Furthermore, Asperger’s Disorder is a diagnosis typically
diagnosed in childhood or adolescence. [Appellant] was
treated in adolescence for depression and anxiety. At no
time was he diagnosed with any of the autism spectrum
disorders. These would clearly have developed by that
point.
...
[Appellant] was able to relate the charges and allegations
against him. He was able to demonstrate understanding of
his possible and probable sentences. He knew who his
attorney was and the Judge on the case. He was able to
define a court of law. He was able to identify the various
components of a court of law and describe their functions.
These included judge, jury, prosecuting attorney, defense
attorney, defendant, stenographer, and witness. He was
able to define a plea. He was able to identify the various
pleas and describe them well. These included guilty, not
guilty, nolo contendere, not guilty by reason of insanity,
guilty but mentally ill[,] and plea bargain. To those of
which he was not immediately familiar, he was readily
educated.
...
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The defendant was able to demonstrate the capacity to
communicate a choice. He had the ability to understand the
information relevant to his case. He had the ability to
understand his situation and its relevant consequences. He
was able to manipulate information rationally, relevantly
and apply it to a personal value system. The defendant has
the verbal articulation skills required to cooperate with his
attorney in the preparation of his defense and to challenge
his accusers. This opinion is considered stable over time.
PCRA Court Opinion, 11/15/16, at 30-31, citing Forensic Psychiatric
Evaluation, 1/22/13, at 3-4. Trial counsel testified that, during the trial, he
“had no reason to suspect that [Appellant] wasn’t comprehending what
[counsel was] telling him” and “[Appellant] gave the appearance that he
understood.” N.T. PCRA Hearing, 7/29/16, at 15. It was not until after the
trial ended did Appellant ever indicate that he did not understand. Further,
the trial court conducted a colloquy with Appellant to determine whether his
decision not to testify was made knowingly and intelligently. N.T. Trial,
8/13/13, at 160-164. During the colloquy, Appellant answered the
questions appropriately and declared that he understood what was being
said. Id. at 161.
Moreover, there were numerous instances on the record where
Appellant aided in his own defense. For instance, Appellant provided trial
counsel with a letter that was written to him by the victim. N.T. PCRA
Hearing, 7/29/16, at 10-11. Trial counsel also testified that prior to trial,
“there were a lot of things I asked for and we discussed.” Id. at 11. Trial
counsel also testified that he explained and discussed with Appellant the voir
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dire process, calling witnesses, cross-examination, and general trial
strategy, and that Appellant appeared to understand. Id. at 14.
Given these facts, we conclude that the PCRA court did not abuse its
discretion when it concluded that counsel was not ineffective for failing to
adequately communicate with Appellant or prepare and investigate for trial.
In his last claim, Appellant contends he is entitled to relief based on
exculpatory after-discovered evidence. See 42 Pa.C.S.A. § 9543(a)(2)(vi).
To obtain relief on this basis, Appellant must plead and prove by a
preponderance of the evidence the “unavailability at the time of trial of
exculpatory evidence that has subsequently become available and would
have changed the outcome of the trial had it been introduced.” Id. To
obtain relief based on after-discovered evidence, an appellant must show
that the evidence:
(1) could not have been obtained prior to the conclusion of
the trial by the exercise of reasonable diligence; (2) is not
merely corroborative or cumulative; (3) will not be used
solely to impeach the credibility of a witness; and (4) would
likely result in a different verdict if a new trial were granted.
Commonwealth v. Foreman, 55 A.3d 532, 537 (Pa. Super. 2012), citing
Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008). To determine
whether the evidence is “of such nature and character” to compel a different
verdict in a new trial, a court should consider “the integrity of the alleged
after-discovered evidence, the motive of those offering the evidence, and
the overall strength of the evidence supporting the conviction.”
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Commonwealth v. Padillas, 997 A.2d 356, 365 (Pa. Super. 2010), appeal
denied, 14 A.3d 826 (Pa. 2010).
In his PCRA petition, Appellant raised a number of issues regarding
after-discovered evidence. However, in his brief, Appellant limits his
argument to a letter that was allegedly written by the victim and dated
November 14, 2010. Appellant’s Brief at 26. As described in Appellant’s
PCRA petition:
[The h]andwritten letter from [the victim] to her “Dad”,
presumably [Appellant’s brother, Glenn Talbert], dated
November [14], 2010, in which she states, among other
things, that “. . . mom is protective of me, even though she
doesn’t know me.” Additionally, the letter makes no
reference to the incidents that allegedly occurred between
her and [Appellant].
Appellant’s PCRA Petition, 2/8/16, at ¶ 26e.
It is unknown whether the letter was intended for Appellant or
Appellant’s brother. Appellant argues that if the letter were intended for his
brother, “the fact that the alleged victim fails to reveal alleged sexual abuse
tends to make the occurrence of the alleged abuse less likely.” Appellant’s
Brief at 29. If, however, the letter were intended for Appellant, he argues,
“the fact that the alleged victim would write a letter of such sentiments to
the person allegedly abusing her likewise makes the occurrence of the
alleged abuse less likely.” Id.
First, the letter was found by Appellant’s sister in the house where
Appellant lived. At the PCRA hearing, Appellant’s sister testified that it is
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possible the letter could have been found prior to trial, but was not. N.T.
PCRA Hearing, 7/29/16, at 29. The letter was not signed by the victim and
Appellant did not call the victim as a witness during the PCRA hearing to
verify she authored the letter. It is unknown who the intended recipient of
the letter was. Furthermore, the fact that the letter does not mention the
sexual abuse is not significant, as the absence of the statement is (at most)
of negligible relevancy to prove the absence of the abuse. Accordingly, the
PCRA court properly denied Appellant relief on this claim.
Therefore, based on our standard of review and the rationale explained
above, Appellant failed to establish that his trial counsel was ineffective.
Further, Appellant did not meet the burden of proving his after-discovered
evidence claim. Thus, we conclude that the PCRA court’s order, denying
Appellant post-conviction collateral relief, is supported by the record and is
free of legal error.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/18/2017
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Com. v. Talbert, P.
Combined Opinion