Com. v. Gonzalez, D. ( 2018 )

J-S77027-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
DAVID JOSEPH GONZALEZ :
: No. 1053 MDA 2017
Appellant
Appeal from the PCRA Order June 9, 2017
In the Court of Common Pleas of Franklin County Criminal Division at
No(s): CP-28-CR-0001103-2011
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS*, P.J.E.
MEMORANDUM BY LAZARUS, J.: FILED MARCH 20, 2018
David Joseph Gonzalez appeals from the order, entered in the Court of
Common Pleas of Franklin County, denying him relief on his first petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541-
9546. After careful review, we affirm.
On September 6, 2013, following a three-day trial, a jury found
Gonzalez guilty of rape,1 aggravated indecent assault,2 and sexual assault.3
On September 16, 2013, Gonzalez filed a post-trial motion challenging the
sufficiency of the evidence as to all charges, which the trial court denied on
November 6, 2013. On December 18, 2013, the trial court sentenced
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1 18 Pa.C.S.A. § 3121.
2 18 Pa.C.S.A. § 3125.
3 18 Pa.C.S.A. § 3124.1.
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* Former Justice specially assigned to the Superior Court.
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Gonzalez to an aggregate term of 72 to 300 months’ imprisonment. On
December 30, 2013, Gonzalez filed a timely post-sentence motion, which the
trial court denied.
On October 26, 2015, this Court affirmed Gonzalez’s judgment of
sentence. On September 23, 2016, Gonzalez filed a timely petition for post-
conviction collateral relief. The PCRA court held an evidentiary hearing on
December 29, 2016, and on June 9, 2017, denied Gonzalez’s petition. On
June 28, 2017, Gonzalez filed a timely notice of appeal. Both Gonzalez and
the PCRA court have complied with Pa.R.A.P. 1925. On appeal, Gonzalez
raises the following issues for our review:
1. Did the lower court err when it rejected [the] claim that
[Gonzalez] was prejudiced by trial court’s ex parte
communications with [the] jury foreperson?
2. Did the lower court err when it rejected [Gonzalez’s] claim that
[he] was denied his constitutional right to be present and have
counsel present at a critical stage of the jury trial?
3. Did the lower court unreasonably conclude that [the
Commonwealth] did not violate mandatory disclosure rules by
failing to disclose that the alleged victim had a criminal record?
Brief of Appellant, at 4.
In PCRA appeals, our scope of review is limited to the findings of
the PCRA court and the evidence on the record of
the PCRA court’s hearing, viewed in the light most favorable to the
prevailing party. Because most PCRA appeals involve questions
of fact and law, we employ a mixed standard of review. We defer
to the PCRA court’s factual findings and credibility determinations
supported by the record. In contrast, we review the PCRA court’s
legal conclusions de novo.
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Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super.
2015). This 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 the evidence of record and is free of legal error.
Commonwealth v. Haley, 870 A.2d 795, 799 n. 2 (Pa. 2005). The PCRA
court’s findings will not be disturbed unless there is no support for the findings
in the certified record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.
Super. 2011).
Gonzalez first claims that the trial court denied his right to counsel when
it provided supplemental jury instructions in his absence. Gonzalez also avers
that the trial court engaged in ex parte communications with the jury
foreperson in the absence of his counsel. Gonzalez’s claims, sounding in
ineffectiveness, amount to an allegation that, had his counsel been present
during these communications, the outcome of his trial would have been
different. As such, we address them together.
To plead and prove ineffective assistance of counsel, a petitioner
must establish: (1) that the underlying issues has arguable merit;
(2) counsel’s actions lacked an objective reasonable basis; (3)
actual prejudice results from counsel’s act or failure to act. The
failure to meet any of these aspects of the ineffectiveness test
results in the claim failing.
Commonwealth v. Stultz, 114 A.3d 865, 880 (Pa. Super. 2015) (citation
omitted).
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Gonzalez avers that his counsel was not present during (1) the trial
court’s ex parte communications with the jury foreperson and (2) the trial
court’s issuance of supplemental jury instructions.
“Pennsylvania law generally requires a showing that ex
parte communications with a jury resulted in prejudice in order to warrant
relief.” Commonwealth v. Daniels, 104 A.3d 267, 296 (Pa. 2014). The
rationale underlying the prohibition of ex parte communications between a
trial judge and jury
is to prevent the court from unduly influencing the jury and to
afford counsel an opportunity to become aware and to seek to
correct any error which might occur. Where there is no showing
either that the court’s actions may have influenced the jury or that
its directions were erroneous, the reason for the rule dissolves.
Commonwealth v. Bradley, 459 A.2d 733, 739 (Pa. 1983).
Instantly, the trial court concedes that it communicated with the jury
foreperson outside of the presence of Gonzalelz’s counsel:
TRIAL COURT: Sir, I just wanted to asked you as the foreperson
if there’s anything that would be helpful to your deliberations by
way of review of additional instructions or anything else that the
Court can do to be of assistance. . . .
FOREPERSON: If there[][is] any document on reasonable doubt
that explains it in better detail and our obligation to stick with that,
I would find it helpful.
TRIAL COURT: So [it] might be helpful to call the jurors back to
again attempt to explain reasonable doubt.
FOREPERSON: If you call back or give us a document or however
you choose to.
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TRIAL COURT: I would bring you back into the courtroom to do
that because the only documents that are allowed to go with jurors
are just the charges themselves.
FOREPERSON: Okay.
TRIAL COURT: So I can bring you all back again, read the
instruction on reasonable doubt. You think that might be of
assistance?
FOREPERSON: Yes. I think there’s issues with believing
someone’s guilty versus believing that they’re guilty beyond a
reasonable doubt.
TRIAL COURT: Okay. That’s fair enough. We[][are] also at the
point of determining what to do about a meal. So you feel that
you[][are] going to need some time to continue your discussion
through the lunch hour?
FOREPERSON: Yes. And especially if you call us back down.
TRIAL COURT: Okay. Then we[][will] make arrangement to get
you different food today. And we[][will] get arrangements for you
to come down. I have to bring the attorneys in. So it will take
a little bit of time to do that.
N.T. Trial Day 4, 9/6/13, at 2-3 (emphasis added).
Upon review, we agree with the PCRA court’s conclusions that the
statements were not prejudicial in nature, the trial court’s communications
with the jury foreperson were on the record, and only one ex parte
communication occurred. See Daniels, 104 A.3d at 242 (ex parte
communications that were administrative in nature and did not involve legal
matters not prejudicial). Therefore, Gonzalez’s initial ineffectiveness claim is
meritless.
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Following the foregoing ex parte communication with the jury
foreperson, the trial court, at the jury’s request, issued supplemental jury
instructions pertaining to the legal definition of “reasonable doubt.”
“A defendant has a right to counsel at every critical stage of a criminal
proceeding where the substantive rights of the accused may be affected.”
Commonwealth v. Hood, 872 A.2d 175, 180 (Pa. Super. 2005). A “critical
stage” in a criminal proceeding, during which defendant is entitled to counsel,
is characterized by an opportunity for the exercise of judicial discretion or
when certain legal rights may be lost if not exercised at that stage.
Commonwealth v. Johnson, 828 A.2d 1009, 1014 (Pa. 2003). Trial courts
have broad discretion in phrasing their charges, and during this stage, counsel
may object to the instructions or suggest an alternative wording; as
such, jury instructions are a “critical stage” in a criminal trial, for which a
defendant is entitled to counsel. Id.Instantly, we discern no indicia in the record that Gonzalez’s attorney
was not present when the trial court provided supplemental jury instructions.
Rather, the record indicates that the trial court refused to supplement the
jury’s instructions until the parties’ attorneys returned to the courtroom. See
N.T. Trial Day 4, 9/6/13, at 3. Therefore, Gonzalez is entitled no relief. Carr,
supra; Stultz, supra.
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Gonzalez next claims that the trial court erred in not finding that the
Commonwealth violated Brady4 by failing to disclose that the victim has what
he characterizes as a summary citation for bad checks, filed on June 28, 2006.
To establish a Brady violation, a defendant must demonstrate that: (1)
the evidence was suppressed by the Commonwealth, either willfully or
inadvertently; (2) the evidence was favorable to the defendant; and (3) the
evidence was material, in that its omission resulted in prejudice to the
defendant. Commonwealth v. Haskins, 60 A.3d 538 (Pa. Super. 2012).
The burden rests with the defendant to prove, by reference to the record, that
evidence was withheld or suppressed by the prosecution. Id. at 547.
Impeachment evidence falls within the Brady rule. Id. at 546.
Gonzalez argues that crimen falsi evidence of writing a bad check would
have enabled his counsel to impeach the credibility of the victim pursuant to
Pa.R.E. 609.
Pa.R.E. 609 provides as follows:
Rule 609. Impeachment by evidence of conviction of crime
(a) In General. For the purpose of attacking the credibility of any
witness, evidence that the witness has been convicted of a
crime, whether by verdict or by plea of guilty or nolo
contendere, must be admitted if it involved dishonesty or
false statement.
(b) Limit on Using the Evidence After 10 Years. This
subdivision (b) applies if more than 10 years have passed since
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4 Brady v. Maryland, 373 U.S. 83 (1963).
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the witness’s conviction or release from confinement for it,
whichever is later. Evidence of the conviction is admissible only if:
(1) its probative value substantially outweighs its prejudicial
effect; and
(2) the proponent gives an adverse party reasonable written
notice of the intent to use it so that the party has a fair
opportunity to contest its use.
Pa.R.E. 609 (emphasis added).
Gonzalez could have impeached the victim with evidence of crimen falsi,
if she had been convicted of writing bad checks. However, the veracity of a
witness may not be impeached by prior arrests that have not led to
convictions. Pa.R.E. 609(a). See Commonwealth v. Chmiel, 889 A.2d 501,
534 (Pa. Super. 2005).
Here, the victim’s summary offense for bad checks was disposed of
pursuant to Pa.R.Crim.P. 586, which provides, in relevant part, as follows:
When a defendant is charged with an offense which is not alleged
to have been committed by force or violence or threat thereof, the
court may order the case to be dismissed upon motion and a
showing that:
* * *
(3) satisfaction has been made to the aggrieved person or there
is an agreement that satisfaction will be made to the aggrieved
person[.]
Pa.R.Crim.P. 586.
At Gonzalez’s PCRA hearing, the Commonwealth established that the
trial court had dismissed the victim’s charge for writing bad checks after she
settled the amount of the bad check at issue:
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COMMONWEALTH: I’m showing you what has been marked as
Exhibit A. Do you recognize that document?
LOWMAN: Yes, I do.
Q: Can you tell us what it is, please?
A: It’s a docket transcript. . . .
Q: [W]hat is the name on that docket?
A: [K.M.].
* * *
Q: Approaching with Commonwealth’s Exhibit Number 6, can you
tell us, do you recognize that document?
A: That’s an actual receipt. Whenever someone makes some sort
of payment, it gives the defendant’s information as to what type
of case along with the docket number as well.
Q: Can you tell us what the docket number is on that receipt?
A: CR 274 of 2006
Q: And the name of the defendant?
A: [K.M.]
Q: And the receipt is for how much money?
A: $448.23
Q: Did you actually receive that money yourself from [K.M.]?
A: Yes, I did.
Q: And as a result of receiving that payment, was the disposition
then made to be as settled?
A: Yes.
Q: And does that mean that she pled guilty?
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A: No, it does not.
Q: Okay. So instead[,] it was settled in lieu of conviction?
A: Right. It was right, yes.
N.T. PCRA Hearing, 2/1/17, at 105-08 (emphasis added).
The PCRA Court found Lowman’s testimony credible, and accordingly,
determined that K.M. was never convicted for writing bad checks. Reyes-
Rodriguez, supra. Thus, Gonzalez could not have impeached the veracity
of the victim’s testimony. Pa.R.A.P. 609. Chmiel, supra. Therefore, we
discern no error by the PCRA court in determining that the Commonwealth did
not commit a Brady violation when it did not disclose to Gonzalez the victim’s
previous dismissal of a charge for writing bad checks.
Order affirmed.
BENDER, PJE., Joins this Memorandum
STEVENS, PJE., Concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/20/2018
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