Com. v. Pate, J. ( 2019 )

J-S28017-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JASON LEVON PATE :
:
Appellant : No. 1810 MDA 2018
Appeal from the PCRA Order Entered October 3, 2018
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0000165-2009
BEFORE: BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED AUGUST 14, 2019
Jason Levon Pate appeals from the order denying his petition filed under
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. He raises
trial counsel ineffectiveness claims. We affirm.
The trial court set forth the following factual history:
On December 10, 2008, Officer Marc Moule with the
Harrisburg City Police received a call to respond to the area
of 2511 Derry Street for a report of a black male allegedly
breaking into a vehicle. As Officer Moule approached the
scene, he witnessed a black sedan with its hazard lights
flashing. Officer Moule positioned his vehicle approximately
20 feet away and approached the vehicle. As Officer Moule
approached, he witnessed an individual who would later be
identified as [Pate].
As Officer Moule approached, [Pate] exited the vehicle from
the rear driver’s side. Officer Moule commanded [Pate] to
stop and asked what he was doing. [Pate] responded that
he was “having sex with his girl.” This prompted Officer
Moule to look through the driver’s side window of the
vehicle. He observed a woman, later identified as the victim,
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* Retired Senior Judge assigned to the Superior Court.
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Lessli Gingery [(“Victim”)], fully reclined in the front
passenger seat, not moving.
In response to Officer Moule’s request for identification,
[Pate] responded that he left it at home. [Pate] provided the
officer with his name and date of birth. Officer Moule
proceeded to check on the well-being of the person in the
passenger seat. As he opened the passenger side door, he
observed a female naked from the waist down with her legs
spread apart. Officer Moule detected a very strong odor of
alcohol in the car. After several unsuccessful attempts to
wake the passenger, Officer Moule called for paramedics to
transport her to the hospital.
Officer Moule directed the backup officer to arrest [Pate]. At
trial, Officer Moule identified [Pate] as the man he observed
with the unconscious passenger, [Victim], in the vehicle.
[Victim] remained unresponsive upon arrival at Harrisburg
Hospital. The emergency room physician, Dr. Jed Seitzinger,
testified that when [Victim] regained consciousness, she
knew who she was, but did not know where she was.
Dr. Seitzinger testified that he could smell alcohol on her
breath when she answered his questions. Toxicology tests
revealed her blood alcohol level as 0.32. Based upon
information that [Victim] was the victim of an alleged sexual
assault, upon medical clearance and her consent, [Victim]
underwent a “safe exam”, an examination conducted for
collection of evidence from the victim of a sexual assault.
Harrisburg Hospital Nurse Mary Jane Laughlin conducted the
safe exam. Because [Victim] could not remember her
encounter with [Pate], Ms. Laughlin collected various forms
of physical evidence, namely, vaginal, oral, and rectal
swabs. Ms. Laughlin did not test for any “date rape” drugs
due to the fact that the safe exam was conducted
approximately six to seven hours after [Victim] was brought
into the emergency room, and such drugs only stay in the
system for a short period of time.
Detective Elijah Massey of the Harrisburg Police Department
executed a search warrant for a blood test of [Pate]. During
the blood test, [Pate] admitted to Detective Massey that he
engaged in sexual intercourse with [Victim].
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The Pennsylvania State Police crime lab analyzed evidence
collected from [Victim] and [Pate]. Analysis of samples
obtained from [Victim] confirmed the presence of
spermatozoa on the vaginal and rectal swabs. Further
analysis by Pennsylvania State Police forensic scientist
Michael Biondi determined that sperm cells from the vaginal
and rectal swabs matched the DNA profile from the blood
sample acquired from [Pate].
[Victim] testified that she visited an establishment known
as Bill’s Café on Derry Street with her friend April Robles on
the evening of December 9, 2008 into the early morning of
December 10, 2008. [Victim] testified that she bumped into
[Pate] and apologized for doing so. She testified that she
had a brief conversation with [Pate], but never indicated in
any way that she was interested in engaging in sexual
activities with him. [Victim] testified that at one point, she
left her drink unattended while she went to the restroom.
[Victim] has no recollection of any events during the rest of
the evening. She next remembers waking up in a hospital
room.
[Victim’s] friend, April Robles, went to Bill’s Café with her
that evening. Ms. Robles testified that she noticed [Victim]
missing at around 12:45 A.M. Ms. Robles became concerned
as it became late, she did not know how she would get
home. She observed [Victim’s] belongings but could not
locate her; she assumed [Victim] had stepped out. Ms.
Robles called a cab for a ride home. Police contacted Ms.
Robles the next day and told her that [Victim] was in the
hospital. When she visited [Victim] at the hospital, police
showed her a photograph of [Pate]. Ms. Robles identified
[Pate] as the man sitting next to [Victim] at the bar.
Trial Court Opinion, filed Nov. 14, 2018, at 3-6 (citations to record omitted)
(“1925(a) Op.”).
At trial, Pate’s counsel and the trial court conducted a colloquy of Pate
regarding his decision to not testify, which included Pate’s acknowledgement
that his decision to not testify was “based on the fact that [he had] significant
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crimen falsi and [he] could be cross-examined about that.” N.T., 5/24/10-
5/26/10, at 175-76.
A jury convicted Pate of rape of an unconscious person and sexual
assault.1 The trial court sentenced Pate. Pate filed a motion for reconsideration
of sentence, which the trial court granted in part, finding the sexual assault
conviction should have merged with the rape conviction for sentencing
purposes. The trial court re-sentenced Pate to ten to 20 years’ imprisonment.
Pate appealed, and this Court affirmed the judgment of sentence on November
5, 2012.
On October 16, 2013, Pate filed a timely counseled PCRA petition, and
the Commonwealth filed an answer. The PCRA court granted numerous
requests to continue the evidentiary hearing, and held a hearing on April 27,
2016, and November 22, 2016.
At the hearing, Pate’s trial counsel testified that he initially met with
Pate and his parents in December 2008 and January 2009. N.T., 4/27/16, at
13. Pate and his parents mentioned at the initial meetings that Pate’s cell
phone was “downtown” in police custody and that the phone had text
messages between Pate and Victim. Id. at 10-12. Counsel did not request the
phone from the police until May 2009, after which he was informed that the
phone had been destroyed pursuant to a police department policy that
required the destruction of personal items after 30 days. Id. at 12.
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1 18 Pa.C.S.A. §§ 3121(a)(3) and 3124.1, respectively.
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Counsel requested video surveillance from Bill’s Café, but that also had
been destroyed. Id. at 26. In August 2009, counsel learned that “one or
multiple [employees]” that were employed at the time of the incident, “would
not have been employed at [Bill’s Café] . . . at or around the time of trial.” Id.
at 68.
Pate provided counsel with the name of an individual who was with him
at the bar on the night of the incident, Tony Maldonado. N.T., 4/27/16, at 27.
Counsel testified that Pate’s girlfriend, Amanda Huss, was not able to provide
a telephone number for Maldonado. Id. at 28. He stated his “attempts [to
contact Maldonado] would have been through [Huss].” Id. at 30. He further
testified that Huss informed counsel that Maldonado “was [not] available or
maybe he was not willing to come to court to testify, or we were just not able
to get in contact with him maybe because of a disconnected number and we
didn’t have his updated contact information.” N.T., 11/22/16, at 62. On cross-
examination, counsel agreed he reviewed transcripts of prison phone calls,
including a call in which Pate stated that “[Maldonado] isn’t coming to [c]ourt
for me.” Id. at 91.
Trial counsel also testified regarding the Pate’s decision to not testify.
He noted that he had concerns about Pate testifying because of Pate’s prior
record, which included a theft-related offense from 2000. Id. at 80-81, 85.
Maldonado testified at the evidentiary hearing. He testified that on the
night of the incident he was with Pate at the bar. Id.at 118. He stated the
victim was grabbing and rubbing Pate. Id. He said he was not contacted by
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Pate or his counsel in 2008 or 2009 and he would have been available to give
a statement if counsel had contacted him. Id. at 122. On cross-examination,
Maldonado testified that Huss “might have reached out to [him],” but that
“[s]he said that [counsel] was going to reach out to me,” and counsel did not.
Id. at 130. He testified he left the bar before Pate. Id. at 121.
Pate also testified. He stated that counsel told him that he should not
testify because if he did he could be questioned on cross-examination about
his prior conviction for possession with intent to distribute a controlled
substance (“PWID”). Id. at 136. He would have testified if counsel had not
informed him that the PWID conviction could be used to impeach him. Id. at
137.
Following the hearing, the PCRA court directed the parties to file
proposed findings of fact and conclusions of law. The court granted numerous
extensions of time, and the parties filed the findings of fact and conclusions
of law in March 2018.
The PCRA court denied the petition. Pate filed a timely notice of appeal.
Pate raises the following issue on appeal: “Whether the trial court erred
by denying [Pate’s] post-sentence motion?” Pate’s Br. at 8 (some
capitalization omitted). The issue encompasses the claims that the PCRA court
erred in denying the following trial counsel ineffectiveness claims: (1) counsel
failed to interview potential witnesses; (2) counsel failed to secure Pate’s
cellular telephone; (3) counsel failed to request a missing evidence
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instruction; and (4) counsel failed to properly advise Pate as to his right to
testify.
“[I]n reviewing the propriety of an order granting or denying PCRA relief,
this Court is limited to ascertaining whether the evidence supports the
determination of the PCRA court and whether the ruling is free of legal error.”
Commonwealth v. Andrews, 158 A.3d 1260, 1262-63 (Pa.Super. 2017). A
PCRA petitioner will only prevail on a claim that trial counsel was ineffective
through pleading and proving each of the following: “(1) the underlying legal
claim is of arguable merit; (2) counsel’s action or inaction lacked any
objectively reasonable basis designed to effectuate his 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.” Commonwealth v. Grove, 170
A.3d 1127, 1138 (Pa.Super. 2017). A failure to plead or prove any prong will
defeat an ineffectiveness claim. Id.
Pate first claims his trial counsel was ineffective for failing to interview
and conduct a reasonable investigation of potential witnesses, including April
Robles, Tony Maldonado, and other patrons and employees of Bill’s Café who
were present on the night Victim and Pate were at the establishment. Pate
claims that he provided trial counsel with the name of two witnesses, including
Maldonado, but counsel did not contact them. He claims the witnesses could
have testified that Victim was not so intoxicated as to impair her ability to
make decisions and that Victim and Pate were interacting with each other at
the bar. He further maintains counsel was ineffective for failing to contact
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Commonwealth witness Robles prior to trial, for not seeking the names of the
employees of Bill’s Café until nine months after the date of the incident, and
for not attempting to contact any of the employees until 17 months after the
arrest.
To establish counsel was ineffective for failing to investigate and
interview a witness, the petitioner must plead and prove: “(i) the witness
existed; (ii) the witness was available to testify; (iii) counsel knew of, or
should have known of, the existence of the witness; (iv) the witness was
willing to testify; and (v) the absence of the testimony was so prejudicial as
to have denied the defendant a fair trial.” Commonwealth v. Pander, 100
A.3d 626, 639 (Pa.Super. 2014) (en banc).
Here, the PCRA court found counsel attempted to contact Maldonado
through Pate’s girlfriend, who conveyed to counsel that Maldonado would not
speak to counsel even though he knew Pate was arrested for rape. 1925(a)
Op. at 11. It further found that counsel made reasonable attempts to
investigate Maldonado as a witness. Id. In addition, the court found that Pate
failed to prove that Maldonado was available and willing to testify or that the
lack of Maldonado’s testimony prejudiced him. Id. at 11-12. The court noted
that Maldonado testified at the evidentiary hearing that he left the bar before
Pate and did not know what occurred thereafter. Id. at 12.
The record supports the PCRA court’s findings and it did not err in finding
counsel was not ineffective. Pate failed to prove counsel did not attempt to
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contact Maldonado, that Maldonado was available and willing to testify, or that
Pate suffered prejudice, as Maldonado testified that he left the bar before Pate.
Although Pate mentions other witnesses in his appellate brief, his PCRA
petition listed only Maldonado, and Maldonado was the only witness to testify
at the PCRA hearing. Therefore Pate waived any claim that counsel was
ineffective for failing to investigate or call any other witness.
Pate has not established that any other witness was available and willing
to testify on his behalf. He also has not established that counsel’s efforts in
contacting Bill’s Café were unreasonable or that Pate suffered any prejudice.
Pate next claims counsel was ineffective for failing to secure Pate’s
cellular telephone. He argues the Harrisburg Police Department took the
phone into custody, and Pate and his family informed counsel that the phone
contained text messages between Pate and Victim. Pate argues counsel was
ineffective because the phone was destroyed before counsel requested it and
because he did not subpoena the phone records.
“Counsel has a general duty to undertake reasonable investigations or
make reasonable decisions that render particular investigations unnecessary.”
Commonwealth v. Eichinger, 108 A.3d 821, 847 (Pa. 2014) (citing
Commonwealth v. Cox, 983 A.2d 666, 692 (Pa. 2009)). “[A]n evaluation of
counsel’s performance is highly deferential, and the reasonableness of
counsel’s decisions cannot be based upon the distorting effects of hindsight.”
Commonwealth v. Bridges, 886 A.2d 1127, 1132 (Pa. 2005).
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The PCRA court found counsel made reasonable efforts to locate Pate’s
cell phone and that “[n]either the unavailability of the phone because of a
destruction policy or the absence of phone records prejudiced [Pate].” 1925(a)
Op. at 6. It noted that counsel was retained in December 2008 and met with
Pate before the January 2009 preliminary hearing. During that meeting, Pate
informed counsel that the police had confiscated the phone during the arrest.
The court also found that in May 2009, six months after this meeting and more
than one year before trial, counsel requested that the assistant district
attorney produce the phone. He then learned that the phone was destroyed
30 days after the arrest, pursuant to a destruction policy for un-retrieved
personal items. Id. at 7. The PCRA court concluded counsel “exercised due
diligence in his request for production of the cell phone. Pursuant to the
destruction policy, of which [counsel] had no reason to be aware, the phone
would have been destroyed within days of the January 7, 2009 preliminary
hearing.” Id. It also noted that “[Pate’s] family made no effort to obtain the
phone following [Pate’s] arrest.” Id. The court further found that “[e]ven if
phone calls occurred between [Pate] and [Victim], such phone contact would
not refute the overwhelming[,] direct[,] and scientific evidence that [Pate]
assaulted [Victim] while she was unconscious.” Id. at 8. It found the
suggestion the phone records would have supported [Pate’s] defense “purely
speculative,” noting Pate “offered no evidence that text messages existed or
what their content would have been.” Id.
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The record supports the PCRA court’s factual findings and the trial court
did not err in finding the ineffectiveness claim lacked merit. Pate failed to
establish his counsel acted unreasonably regarding the phone and failed to
establish any prejudice.
Pate next argues counsel was ineffective for failing to request a missing
evidence instruction for the cellular telephone. He argues the Commonwealth
was in sole possession of the phone. Pate’s Br. at 25. He maintains the text
messages were material to whether “the parties were engaged in flirty
behavior,” and “would not have been merely cumulative.” Id. at 25-26.
A missing evidence instruction is appropriate “where evidence which
would properly be part of a case is within the control of the party in whose
interest it would naturally be to produce it, and, without satisfactory
explanation he fails to do so.” Clark v. Phila. Coll. of Osteopathic Med.,
693 A.2d 202, 204 (Pa.Super. 1997) (quoting Haas v. Kasnot, 92 A.2d 171,
173 (Pa. 1952)). In such situations, “the jury may draw an inference that it
would be unfavorable to him.” Id.
The trial court found that Pate “fail[ed] to demonstrate the
Commonwealth exclusively maintained control of the phone.” 1925(a) Op. at
8. It noted the police department kept the phone for 30 days pursuant to its
policy, and that Pate did not ask for it back before its destruction. Id. It found
the “Commonwealth was unaware” the phone had been destroyed. Id. The
court concluded that a missing evidence instruction did not apply here and
counsel was not ineffective for not seeking an inapplicable instruction.
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The record supports the PCRA court’s findings and it did not err in finding
counsel was not ineffective for failing to request a missing evidence
instruction. There is no evidence the prosecution controlled the phone, had
any role in its destruction, or knew what evidence would be on it. Further, the
phone was destroyed pursuant to pre-existing policy. We thus agree that the
court would have properly denied a missing evidence instruction such that
Pate cannot show prejudice.
Pate next claims counsel was ineffective for advising Pate not to testify
at trial. He claims counsel informed Pate that he “should not testify based on
the incorrect assumption by trial counsel that [Pate’s] prior record would be
introduced into the record and heard by members of the jury.” Pate’s Br. at
26. He claims counsel’s advice was based on Pate’s PWID conviction. Id. at
27.
“The decision of whether or not to testify on one’s own behalf is
ultimately to be made by the defendant after full consultation with counsel.”
Commonwealth v. Nieves, 746 A.2d 1102, 1104 (Pa. 2000). “[T]o sustain
a claim that counsel was ineffective for failing to advise the appellant of his
rights in this regard, the appellant must demonstrate either that counsel
interfered with his right to testify, or that counsel gave specific advice so
unreasonable as to vitiate a knowing and intelligent decision to testify on his
own behalf.” Id.
In general, “[e]vidence of a crime, wrong, or other act is not admissible
to prove a person’s character in order to show that on a particular occasion
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the person acted in accordance with the character.” Pa.R.Evid. 404(b)(1).
However, “[f]or the purpose of attacking the credibility of any witness,
evidence that the witness has been convicted of a crime . . . must be admitted
if it involved dishonesty or false statement” and it is not more than ten years
old. Pa.R.Evid. 609(a), (b). In Nieves, the Pennsylvania Supreme Court found
counsel ineffective where he advised the defendant not to testify, informing
the client that a non-crimen falsi prior conviction could be used to impeach his
credibility. 746 A.2d at 1105.
The PCRA court found Pate “knowingly, voluntarily, and intelligently
waived the right to testify on his own behalf.” 1925(a) Op. at 9. It cited the
colloquy at trial, in which Pate agreed he had discussed the decision with
counsel, and made a “conscious, knowing, and intelligent decision to not
provide any testimony” and noted he had a prior crimen falsi conviction. Id
(quoting N.T., 5/25/10, at 175-77). It concluded:
The [c]ourt apprised [Pate] of the Commonwealth’s burden,
and [Pate’s] personal right to decide whether or not to
testify. Trial [c]ounsel fully apprised [Pate] of the ‘pros and
cons’ of testifying. Based upon the complete colloquy and
the evidence of the thorough and vigorous representation
by [t]rial [c]ounsel, we find [Pate] based his decision not to
testify based upon a concern regarding his crimen falsi
convictions and other concern[s] discussed with counsel.
Id. at 10-11.
The PCRA court’s findings are supported by the record and it did not err
in finding counsel was not ineffective in advising Pate not to testify. Although
Pate claimed counsel informed him that his PWID conviction could be used on
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cross-examination, trial counsel testified that he told Pate that the prior theft-
related conviction could be used on cross-examination. The trial colloquy
corroborates counsel’s testimony. Counsel was not ineffective for advising
Pate that a prior crimen falsi conviction could be used on cross-examination.
See Commonwealth v. Daniels, 999 A.2d 590, 596 (Pa.Super. 2010)
(finding counsel ineffectiveness claim frivolous where counsel advised
defendant to not testify because of prior crimen falsi convictions).
Pate also claims that, because each the above-referenced claims has
merit, we should conclude he is entitled to relief based on cumulative
prejudice. Pate’s Br. at 27. However, as discussed above, his claims do not
have merit and “no number of failed claims may collectively warrant relief if
they fail to do so individually.” Commonwealth v. Washington, 927 A.2d
586, 617 (Pa. 2007). Therefore this claim fails.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/14/2019
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