Com. v. Crespo, C. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
CLARENCE CRESPO
Appellant No. 1192 MDA 2018
Appeal from the PCRA Order Entered June 19, 2018
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0003790-2012
BEFORE: STABILE, DUBOW, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED APRIL 11, 2019
Appellant, Clarence Crespo, appeals from the June 19, 2018 order
dismissing his petition pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S.A. §§ 9541-46. We affirm.
On May 17, 2012, the Commonwealth charged Appellant with rape of a
child, involuntary deviate sexual intercourse, aggravated indecent assault,
indecent assault of a victim less than 13 years old,1 and related offenses. The
victim is Appellant’s stepdaughter. A jury found Appellant guilty of all charges
at the conclusion of trial on October 2, 2013. On October 7, 2014, the trial
court, relying in part on then-extant mandatory minimum sentences, imposed
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3121(c), 3123, 3125, 3126(a)(7), respectively.
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an aggregate sentence of 32 years and eight months to 65 years and six
months of incarceration. On June 10, 2015, this Court vacated Appellant’s
judgment of sentence in accord with Alleyne v. United States, 133 S. Ct.
2151 (2013) and Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super. 2014),
appeal dismissed, 145 A.3d 727 (Pa. 2016). On October 25, 2016, the trial
court imposed the same term of incarceration without reference to any
mandatory minimum. Appellant did not file a direct appeal from that
sentence. Instead, he filed a timely counseled PCRA petition on June 12,
2017. The PCRA court issued a notice of intent to dismiss, pursuant to
Pa.R.Crim.P. 907, on December 6, 2017, and an order dismissing the petition
on December 27, 2017.
Subsequently, on January 23, 2018, the PCRA court entered orders that
vacated its December 27, 2017 order,2 permitted Appellant’s counsel to
withdraw, and appointed new counsel. New counsel filed an answer to the
Rule 907 notice on March 14, 2018. The PCRA court entered the order on
appeal on June 18, 2018. This timely appeal followed.
Appellant presents two issues:
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2 The PCRA court had jurisdiction to vacate its prior order because Appellant
had yet to file a notice of appeal, and because fewer than 30 days had passed
since entry of the order. 42 Pa.C.S.A. § 5505 (“Except as otherwise provided
or prescribed by law, a court upon notice to the parties may modify or rescind
any order within 30 days after its entry, notwithstanding the prior termination
of any term of court, if no appeal from such order has been taken or
allowed.”).
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1. Trial counsel was ineffective for failing to obtain a medical
expert to review the victim’s medical documentation and testify
at trial. Trial counsel was not able to sufficiently cross-examine
the victim under the circumstances, despite trying to admit
medical records through an unqualified CAC interviewer in
order to impeach the victim’s credibility. There was no
reasonable strategic basis not to obtain a medical expert given
this attempt to use the medical documentation during trial.
2. The PCRA court erred in denying Appellant’s request for
discovery consisting of reviewing CYF documents in camera,
which trial counsel reviewed, however PCRA counsel could not
review in order to determine whether trial counsel’s decision
not to use the records to cross examine defendant’s [sic]
mother and [Appellant] had a reasonable strategic basis.
Appellant’s Brief at 4.
“In PCRA proceedings, an appellate court’s scope of review is limited by
the PCRA’s parameters; since most PCRA appeals involve mixed questions of
fact and law, the standard of review is whether the PCRA court’s findings are
supported by the record and free of legal error.” Commonwealth v. Pitts,
981 A.2d 875, 878 (Pa. 2009). In order to establish that trial counsel rendered
constitutionally ineffective assistance, a PCRA petitioner must plead and prove
1) that the underlying claim is of arguable merit; 2) that counsel had no
reasonable strategic basis in support of the disputed action or inaction; and
3) that but for counsel’s error, the outcome of the proceeding would have
been different. Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779
(Pa. Super. 2015) (en banc). We presume counsel was effective; the
petitioner bears the burden of proving otherwise. Id.-3-
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Appellant’s first argument is that trial counsel was ineffective for failing
to obtain a medical expert to review the victim’s medical records. To prevail
on this claim, a petitioner “must demonstrate that an expert witness was
available who would have offered testimony designed to advance [the
petitioner’s] cause.” Commonwealth v. Chmiel, 30 A.3d 1111, 1143 (Pa.
2011).
Appellant claims trial counsel should have had an expert explain to the
jury the significance of the victim’s March 2010 medical examination. The
result of that examination, in the victim’s words on cross-examination, was
that she was “still a virgin, and nothing was wrong with my private area.” N.T.
Trial, 9/30/13–10/2/13, at 185. The trial court denied defense counsel’s
motion to admit into evidence a medical record indicating that Appellant’s
hymen was intact. Appellant now argues that a medical expert, had trial
counsel procured one, could have explained the significance of the victim’s
medical examination, thereby refuting the victim’s allegations of sexual
assault.
PCRA counsel proffered an expert, but the PCRA court reviewed the
expert’s curriculum vitae and noted that the expert had no obvious experience
in cases of child sexual abuse. PCRA Order, 6/18/18, at 1-2. Appellant has
therefore failed to establish that an expert was available. Moreover, it is not
clear how an expert would have been helpful. The victim testified that
Appellant made her watch pornographic movies depicting adults having sex.
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Id. at 136-37. Appellant told the victim to be like the girls in the videos before
forcing her to perform oral sex on him (137, 139-141, 145). The oral sex
occurred more than twenty times. Id. at 141. Appellant also fondled the
victim over her clothes on her “private areas,” including her chest and vagina.
Id. at 142. This over-the-clothes touching also occurred more than twenty
times. Id. Appellant sometimes held a knife or a gun in his hand during these
encounters, and sometimes held the knife to the victim’s neck or the gun to
the victim’s head. Id. at 148-50. On one occasion, Appellant tried to
penetrate the victim’s anus with his penis. Id. at 153. On more than one
occasion, Appellant inserted one or two fingers into the victim’s vagina. Id.
at 155-56.
Thus, most of the assaults the victim described did not involve
penetration of her vagina. When penetration occurred, it was one or two of
Appellant’s fingers. The PCRA court therefore found that there was not
necessarily any inconsistency between the victim’s account of the various
assaults and her statement that “nothing was wrong with my private area,”
and it is not clear that expert testimony regarding the victim’s intact hymen
would have undermined the victim’s account of digital penetration.3 In any
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3 The PCRA court cites a non-precedential memorandum in which a party
produced evidence that an intact hymen does not preclude the possibility of
vaginal penetration by a finger. Commonwealth v. Garcia, 2013 WL
11250291 (Pa. Super. November 14, 2013). Garcia is not necessary to
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event, the jury, having heard the victim’s account of a medical examination
showing nothing wrong, was free to determine whether that information
undermined her credibility.
In summary, Appellant has failed to establish that an expert was
available, or that expert testimony would have been helpful.4 Appellant has
not established that this issue is of arguable merit, nor has he established how
the absence of expert testimony was prejudicial. The PCRA court did not err
in denying relief on Appellant’s claim of ineffective assistance of counsel.
Next, Appellant asserts that the PCRA court erred in denying his request
for discovery of records from York County Children Youth and Families (“CYF”)
related to the victim’s mother (“Mother”). The record indicates that, on
February 11, 2013, the trial court granted trial counsel’s request to review
certain CYF records. Trial counsel did not introduce any CYF records at trial,
although trial counsel did cross-examine Mother on her history with CYF.
PCRA counsel wishes to review the records in order to determine whether trial
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support our conclusion that Appellant has failed to establish prejudice in this
case.
4 Appellant also argues, in a single sentence, that the PCRA court erred in
denying his request for funds to hire an expert. Appellant’s Brief at 17-18.
Appellant does not develop any legal argument in support of this claim, in
violation of Pa.R.A.P. 2119(b). Furthermore, as explained in the main text,
Appellant proffered an unqualified expert and Appellant has not established
how expert testimony would have been helpful. We discern no reason why
the PCRA court should have granted Appellant’s request for funds.
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counsel was ineffective for failing to use CYF records to impeach Mother during
on cross-examination.
Rule 902 of the Pennsylvania Rules of Criminal Procedure governs
discovery on collateral review. Rule 902 provides, with an exception not
relevant here, that “no discovery shall be permitted at any state of the
proceedings, except upon leave of court after a showing of exceptional
circumstances.” Pa.R.Crim.P. 902(E)(1). There is no statutory definition of
exceptional circumstances and therefore the PCRA court must determine, in
its discretion, whether a case is exceptional. Commonwealth v. Frey, 41
A.3d 605, 611 (Pa. Super. 2012), appeal denied, 65 A.3d 413 (Pa. 2013).
We will not disturb the PCRA court’s decision absent an abuse of discretion.
Id. “[M]ere speculation that exculpatory evidence might exist does not
constitute an exceptional circumstance warranting discovery.” Id. at 612
(citing Commonwealth v. Dickerson, 900 A.2d 407, 412 (Pa. Super. 2006),
appeal denied, 911 A.2d 933 (Pa. 2006)); see also Commonwealth v.
Williams, 86 A.3d 771, 790 (Pa. 2014) (finding no exceptional circumstances
where, among other things, the petitioner made a purely speculative claim
that the requested material would contain exculpatory evidence);
Commonwealth v. Watley, 153 A.3d 1034, 1048-49 (Pa. Super. 2016)
(finding no exceptional circumstances where the petitioner sought evidence
that was not necessarily exculpatory), appeal denied, 169 A.3d 574 (Pa.
2017).
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Frey provides a rare example of the existence of exceptional
circumstances under Rule 902. In Frey, the defendant, Duane Lee Frey, was
tried and convicted of murder before investigators found the body of the
victim, Hopethan Johnson. Id. at 611. Investigators later discovered and
identified Johnson’s remains and provided Frey a forensic report, which Frey
believed cast doubt on whether Johnson was killed before Frey was
incarcerated. Id. at 608. Furthermore, the forensic report revealed different
sized shotgun pellets—possibly indicating more than one shooter—whereas
the Commonwealth tried Frey on the theory that he was the only shooter. Id.
at 608. Frey filed a PCRA petition alleging newly discovered facts, and he
requested discovery of certain documents related to the Commonwealth’s
investigation of the murder of Stacey Farmer, which was ongoing at the time.
Id. at 608-09, 613. Evidence from Frey’s prosecution revealed that Johnson
might have sold drugs to Frey from Farmer’s residence. Id. at 608. Likewise,
Farmer might have been a suspect in Johnson’s death. Id. at 607. Johnson’s
cell phone and motorcycle—with shotgun pellets embedded in it—were
discovered at Farmer’s residence shortly after Johnson’s disappearance. Id.
at 607. Farmer was shot and killed after police took Frey into custody for
Johnson’s murder. Id. at 608. Frey posited that an unknown party was
responsible for both murders, and that discovery of certain information in the
Farmer file could help him prove it. Id. at 608. The PCRA court, while
expressing skepticism that Frey would ultimately prevail, reasoned that it was
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possible that an unknown person was involved in both murders, and thus
deemed the case an exceptional one. Id.
The Commonwealth appealed the PCRA court’s order, and this Court
affirmed.5 This Court acknowledged the unusual circumstance of a murder
conviction without a body, and we acknowledged the plausibility of Frey’s
theory that the Johnson and Farmer murders were related. Id. at 611-12.
We rejected the Commonwealth’s argument that Frey was engaging in a
fishing expedition, and that his hope of finding exonerating evidence from the
Farmer file was merely speculative. Id. at 612. The facts suggested a
possible link between the two murders, and Frey could not have committed
the Farmer murder. Id.
The present circumstances are vastly different. In essence, Appellant
hopes CYF records will establish whether trial counsel could have done a better
job of cross-examining Mother on a tangential issue. At trial, Mother admitted
her prior involvement with CYF, but claimed she could not recall why her
children were sent to live with their grandmother in 2000. N.T. Trial, 9/30/13–
10/2/13, at 249-50. Thus, the jurors were aware of Mother’s prior
involvement with CYF and that her children were taken away from her, and
they could consider that information in assessing Mother’s credibility if they
wished to do so. It is not clear what trial counsel had to gain from exploring
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5 We accepted review under the collateral order doctrine. Id. at 609-10.
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that issue further. Indeed, the trial court instructed counsel to “move on.”
Id. at 250. Furthermore, Appellant fails to explain any legal basis upon which
a trial court should have permitted him to explore the circumstances
surrounding Mother’s loss of custody of her children—in 2000—at a 2013 trial
for Appellant’s sexual abuse of a daughter who had yet to be born in 2000.
Appellant’s discovery request, unlike the one at issue in Frey, is an
obvious fishing expedition. Trial counsel procured records of Mother’s
involvement with CYF and cross-examined her on the subject. PCRA counsel’s
hope of finding damaging information that trial counsel missed is purely
speculative. Frey had specific reasons for his discovery requests—the
requested evidence might have been relevant to a new theory of defense
arising from the discovery of the victim’s body. Appellant, in contrast,
complains of a “Catch-22” because he cannot explain why he needs the CYF
records unless he reviews them first. Appellant’s Brief at 20-21. To accept
this argument would be to ignore Rule 902’s exceptional circumstances
requirement. Any petitioner could make a similar argument in any case. We
discern no abuse of discretion in the PCRA court’s refusal to permit discovery
under Rule 902.
In summary, we have found no merit to Appellant’s assertion of
ineffective assistance of counsel, and we have concluded that the PCRA court
did not abuse its discretion in refusing to permit discovery under Rule 902.
We therefore affirm the order dismissing Appellant’s PCRA petition.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/11/2019
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