Com. v. Melo, A. ( 2015 )

J-S73041-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ALEXANDER MELO, :
:
Appellant : No. 2161 MDA 2013
Appeal from the PCRA Order entered on October 31, 2013
in the Court of Common Pleas of York County,
Criminal Division, No. CP-67-CR-0005500-2009
BEFORE: BOWES, WECHT and MUSMANNO, JJ
MEMORANDUM BY MUSMANNO, J.: FILED JANUARY 22, 2015
Alexander Melo (“Melo”), pro se, appeals from the Order dismissing his
first Petition for relief filed pursuant to the Post Conviction Relief Act
(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
In 2005, Melo raped the thirteen-year-old daughter of his live-in
girlfriend (hereinafter “the victim”). Several years later, when the victim
was seventeen years old, her father questioned her about the rape, of which
he had recently learned upon reading about the incident in the victim’s
notebook/diary (hereinafter “the notebook”).1 Upon being questioned by the
police, the victim recounted the rape to them and identified Melo as the
perpetrator. In August 2009, the police charged Melo with rape, indecent
1
The notebook was not offered into evidence at trial, as the victim and her
father stated that it was lost during a move.
J-S73041-14
assault, and related offenses (collectively referred to as “the charged
offenses”).
The matter proceeded to a jury trial, at which Melo was represented by
Joseph Kalasnik, Esquire (hereinafter “Attorney Kalasnik” or “trial counsel”).
At the close of trial, the jury found Melo guilty of the charged offenses.
Following trial, Melo retained new counsel, Matthew R. Gover, Esquire
(“Attorney Gover”), and the trial court permitted Attorney Kalasnik to
withdraw as counsel. The trial court subsequently sentenced Melo to serve
an aggregate term of five to ten years in prison. Attorney Gover timely filed
a Notice of Appeal from Melo’s judgment of sentence. On appeal, this Court
affirmed the judgment of sentence, after which the Supreme Court of
Pennsylvania denied allowance of appeal. See Commonwealth v. Melo,
31 A.3d 747 (Pa. Super. 2011) (unpublished memorandum), appeal denied,
30 A.3d 1192 (Pa. 2011).
In June 2012, Melo timely filed a pro se PCRA Petition. Following the
filing of the PCRA Petition, the PCRA court appointed Melo counsel, Seamus
Dubbs, Esquire (“PCRA counsel”), who filed an Amended PCRA Petition.
Following a hearing held on June 27, 2013 (hereinafter referred to as “the
PCRA hearing”), the PCRA court entered an Order on October 31, 2013,
dismissing Melo’s PCRA Petition. In response, PCRA counsel timely filed a
Notice of Appeal and court-ordered Pa.R.A.P. 1925(b) Concise Statement of
Errors Complained of on Appeal.
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In April 2014, Melo filed with this Court an Application requesting
permission to proceed pro se on appeal, and for a remand for the PCRA
court to conduct a hearing pursuant to Commonwealth v. Grazier, 713
A.2d 81 (Pa. 1998). This Court granted Melo’s Application. After conducting
a hearing (hereinafter referred to as “the Grazier hearing”), the PCRA court
granted Melo permission to proceed pro se, finding that his decision was
made knowingly, intelligently and voluntarily.
On appeal, Melo presents the following issues for our review:
I. Was [Melo] denied due process of law during collateral
review of the judgment of sentence?
II. Did the [PCRA] court [] err[] when it found [that] trial
counsel [was] not ineffective for failing to request a missing
document instruction?
III. Did the [PCRA] court [] err[] when it found [that] trial
counsel [was] not ineffective [for] failing to object to
prejudicial testimony?
IV. Did the [PCRA] court [] err[] when it found [that] trial
counsel [was] not ineffective [for] failing to request [a jury]
instruction on prior inconsistent statements?
V. Was [Melo] denied due process when the [trial] court [] held
[that Melo’s] claim [concerning the lack of a] prior bad acts
instruction [was] waived?
Brief for Appellant at 4 (capitalization omitted).
All of Melo’s issues raise claims of ineffectiveness of counsel (although
he does not identify all of them as such in his Statement of Questions
Presented). The applicable standards of review regarding the dismissal of a
PCRA petition and ineffectiveness claims are as follows:
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We must examine whether the record supports the PCRA
court’s determination, and whether the PCRA court’s
determination is free of legal error. The PCRA court’s findings
will not be disturbed unless there is no support for the findings in
the certified record.
***
It is well-established that counsel is presumed to have
provided effective representation unless the PCRA petitioner
pleads and proves all 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. The PCRA court may deny an ineffectiveness claim if the
petitioner’s evidence fails to meet a single one of these prongs.
Moreover, a PCRA petitioner bears the burden of demonstrating
counsel’s ineffectiveness.
Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010)
(citations omitted).
In his first issue, Melo essentially challenges the effectiveness of his
PCRA counsel. See Brief for Appellant at 13-15, 27.2
2
In connection with his claim of PCRA counsel’s ineffectiveness, Melo also
argues that, after he had received a copy of the record following the Grazier
hearing, he discovered additional claims of trial counsel’s ineffectiveness that
PCRA counsel should have raised and preserved for appeal. See Brief for
Appellant at 15, 17-27. For the reasons discussed below, we will not
address these additional claims in this appeal. However, we observe that, at
the PCRA hearing, Melo stated that (1) he wished to proceed with PCRA
counsel as his attorney and withdraw his request to proceed pro se; (2) he
was satisfied with the four allegations of trial counsel’s ineffectiveness that
PCRA counsel raised in the Amended PCRA Petition; and (3) there were no
additional issues that Melo wanted to pursue at that time. See N.T.,
6/27/13, at 4-5, 13-17; see also id. at 13-16 (wherein PCRA counsel
colloquied Melo about his additional pro se allegations of trial counsel’s
ineffectiveness and why such claims were not viable).
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It is well established that “claims of PCRA counsel’s ineffectiveness
may not be raised for the first time on appeal.” Commonwealth v.
Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) (en banc) (collecting cases);
Commonwealth v. Ford, 44 A.3d 1190, 1200 (Pa. Super. 2012) (stating
that “issues of PCRA counsel effectiveness must be raised in a serial PCRA
petition or in response to a notice of dismissal before the PCRA court.”); see
also Pa.R.A.P. 302(a) (stating that a claim cannot be raised for the first time
on appeal).
In the instant case, Melo never raised his claim of PCRA counsel’s
ineffectiveness prior to the dismissal of his PCRA Petition and PCRA counsel’s
filing of a Notice of Appeal and Rule 1925(b) Concise Statement on Melo’s
behalf.3 See Ford, 44 A.3d at 1200 (holding that “absent recognition of a
constitutional right to effective collateral review counsel, claims of PCRA
counsel ineffectiveness cannot be raised for the first time after a notice of
appeal has been taken from the underlying PCRA matter.”). Accordingly,
because Melo raised this claim for the first time on appeal, we may not now
3
Though Melo challenged PCRA counsel’s representation at the Grazier
hearing, arguing, inter alia, that counsel did not adequately communicate
with him and failed to provide him with a copy of the record, same does not
adequately preserve his instant claims of PCRA counsel’s ineffectiveness,
which he raised for the first time in this appeal. See Henkel, supra; Ford,
supra. Additionally, PCRA counsel stated at the Grazier hearing that he
was actively working on Melo’s appellate brief.
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address it. See Henkel, supra; Ford, supra.4
Melo next argues that the PCRA court erred by not ruling that trial
counsel was ineffective for failing to request a missing evidence jury
instruction concerning the notebook. See Brief for Appellant at 28-29.
Specifically, Melo asserts as follows:
The alleged notebook was central to the [p]rosecutor’s case in
this matter. [] [T]he only individuals who seen [sic] the entry
[in the notebook] alleging the incident w[ere the victim and her
father]. [] [T]his [was] a circumstantial case resting on the
credibility of the evidence presented. Not to request a missing
document instruction under these circumstances had no
reasonable basis to effectuate [Melo’s] best interest.
Id. at 28 (citation omitted). According to Melo, there is a reasonable
probability that the jury would have rendered a different verdict if the trial
court had issued a missing document instruction. See id. at 29.
In its Pa.R.A.P. Opinion, the PCRA court addressed this claim and
determined that trial counsel was not ineffective in this regard. See PCRA
Court Opinion, 10/31/13, at 3-5. We agree with the PCRA court’s sound
rationale and determination, and therefore affirm on this basis with regard to
this issue. See id.4
Though we express no opinion as to the merits of Melo’s claim of PCRA
counsel’s ineffectiveness, Melo retains the right to raise this claim in a
subsequent PCRA Petition. See Commonwealth v. Jette, 23 A.3d 1032,
1044 n.14 (Pa. 2011) (stating that “[w]hile difficult, the filing of a
subsequent timely PCRA petition [alleging ineffectiveness of PCRA counsel] is
possible, and in situations where an exception pursuant to [42 Pa.C.S.A.]
§ 9545(b)(1)(i-iii) can be established[,] a second [PCRA] petition filed
beyond the one-year time bar may be pursued.”).
-6-
J-S73041-14
In his third issue, Melo contends that trial counsel was ineffective
because he unreasonably failed to object to the testimony of the victim’s
mother, Christian F., concerning alleged incidents of physical abuse that
Melo had committed against her while they were in a romantic relationship,
despite the fact that the trial court had prohibited any prior bad act
testimony. See Brief for Appellant at 30, 32; see also id. at 32 (arguing
that “[t]o allow this prejudicial evidence to go unchallenged was to allow a
bias and ill will to be created in the minds of the jury against [Melo,] and []
result[ed] in his wrongful conviction of crimes he is actually innocent of ….”).
The PCRA court addressed this claim in its Opinion and stated its
reasons for determining that trial counsel was not ineffective. See PCRA
Court Opinion, 10/31/13, at 5-7. We agree with the PCRA court’s rationale
and determination, and therefore affirm on this basis concerning Melo’s
instant ineffectiveness challenge. See id.
Next, Melo contends that the PCRA court erred by failing to find that
trial counsel was ineffective for not requesting a jury instruction on the
victim’s prior inconsistent statements. See Brief for Appellant at 33-35; see
also id. at 33-34 (setting forth the various statements of the victim that,
Melo contends, are inconsistent).
In its Opinion, the PCRA court addressed this ineffectiveness challenge
and stated its reasons for rejecting it. See PCRA Court Opinion, 10/31/13,
at 10-12. We agree with the PCRA court’s rationale and determination,
-7-
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which is supported by the record, and affirm on this basis concerning Melo’s
ineffectiveness challenge. See id.
Regarding Melo’s final issue, he essentially raises an ineffectiveness of
counsel challenge concerning his direct appeal counsel’s (Attorney Gover),
failure to challenge the trial court’s alleged error in failing to issue a jury
instruction on prior bad acts under Pa.R.E. 404(b). See Brief for Appellant
at 36.5
The PCRA court addressed this claim in its Opinion and properly
concluded that Attorney Gover was not ineffective in this regard. See PCRA
Court Opinion, 10/31/13, at 7-9.6 Our review confirms that the PCRA court’s
persuasive rationale is supported by the law and the record, and we
therefore affirm on this basis in rejecting Melo’s final issue on appeal. See
id.
Accordingly, because we conclude that the PCRA court neither abused
its discretion nor committed an error of law by dismissing Melo’s first PCRA
Petition, we affirm the Order on appeal.
5
To the extent that Melo argues that “the court below held [that Melo’s]
claim [concerning the lack of a] prior bad acts instruction [was] waived[,]”
Brief for Appellant at 36 (capitalization omitted), this assertion is factually
inaccurate.
6
Attorney Gover did not testify at the PCRA hearing because he passed
away prior to the hearing.
-8-
J-S73041-14
Order affirmed.
Wecht, J., joins the memorandum.
Bowes, J., concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/22/2015
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IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH NO. CP-67-CR-0005500-2009
v.
ALEXANDER MELO,
Defendant
COUNSEL,0F
COUNSEL.0F
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RECORD:
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Stephanie Lombardo, Esquire Seamus Dubbs, Esquire
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SUPPORT OF ORDER
OPINION IN SUPPORT
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Cl "-' peRA Petition.
On June 27, 2013, a hearing was held on the Defendant's Amended PCRA
- I
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(.)
Having considered the evidence and argument offered on June 27,2013,
27, 2013, and having
considered applicable case law, this Court has DENIED Defendant's Amended PCRA
Petition. The Court now issues this Opinion in support of that Order.
1. PCRA Discussion
As stated in Strickland v. Washington, "the benchmark for judging any claim of
ineffectiveness must be whether counsel's conduct so undermined the proper functioning of
the adversarial process that the trial cannot be relied on as having produced ajust result."
466 U.S. 668, 686 (1984). Pennsylvania codified this principle in the Post-Conviction Relief
"[i]neffective assistance of counsel which, in
Act, which provides post-conviction relief for "riJneffective
Circulated 12/18/2014 12:09 PM
I
the circumstances
the circumstancesofthe
of the particular
particularcase,
case, so
so undermined
undermined the
the truth-determining
truth-determining process
process that
thatno
no
reliable adjudication
reliable adjudicationof
ofguilt
guilt or
or innocence
innocence could
could have
have taken
taken place."
place." 42 Pa.C.S.A. §§
42 Pa.C.S.A,
9543(a)(2)(ii). Pennsylvania'
9S43(a)(2)(ii). Pennsylvania's Supreme Court
5 Supreme Court has
has interpreted
interpreted this
this to
to mean
mean that
that to
to show
show
ineffective assistance
ineffective assistance of
ofcounsel,
counsel, aa petitioner
petitioner must
must show
show that:
that:
-'
(1)
(1) the
the claim
claim underlying
underlying the
the ineffectiveness
ineffectiveness claim
claim has
has arguable
arguable merit;
merit; (2)
(2)
counsel's actions
counsel's actions lacked
lacked any
any reasonable
reasonable basis;
basis; and
and (3)
(3) counsel's
counsel's actions
actions
resulted in
resulted in prejudice
prejudice to
to petitioner.
petitioner.
Commonwealth v.v. Cox,
Commonwealth Cox, 983
983 A2d
A.2d 666,
666, 678
678 (Pa.
(Pa. 2009)
2009) (citing Commonwealth v.v. Collins,
(citing Commonwealth Collins, 957
957
237,244
A.2d 237, 244 (Pa. 2008)). "A chosen strategy will not be found to have lacked a reasonable
basis unless it is proven 'that an alternative not chosen offered a potential for success
pursued. '" 983 A2d
substantially greater than the course actually pursued.'" A.2d 666, 678 (Pa. 2009)
(quoting Commonwealth v. Williams,
Willioms, 899 A.2d
A2d 1060, 1064 (Pa. 2006) (quoting
Commonwealth v. Howard, 719 A.2d 233,237
233, 237 (Pa. 1998))). In Commonwealth v. Pierce, the
Pennsylvania Supreme Court wrote that,
that, "(p]rejudice
"[p]rejudice in the context of
the context of ineffective
ineffective assistance
assistance
of
of counsel
counsel means
means demonstrating that
that there
there is
is aa reasonable
reasonable probability
probability that,
that, but
but for
for counsel's
counsel's
error,
error, the
the outcome
outcome of
ofthe
the proceeding
proceeding would
would have
have been
been different."
different." 786
786 A.2d
A,2d 203,213
203, 213 (Pa.
(Pa.
2001) (citing Commonwealth
2001) (citing Commonwealth v.v. Kimball,
Kimball, 724
724 A.2d
A.2d 326,
326, 332
332 (Pa.
(Pa. 1999)).
1999». Lastly,
Lastly, "the
"the law
law
presumes
presumes that
that counsel
counsel was
was effective
effective and
and the burden of
the burden ofproving
proving that
that this
this presumption
presumption isis false
false
rests
rests with
with the
the petitioner."
petitioner." 983
983 A.2d 666, 67,8
A,2d 666, 67,8 (Pa.
(Pa. 2009) (citing Commonwealth
2009) (citing Commonwealth v,v. Basemore,
Basemore,
744
744 A.2d
A2d 717,
717, 728
728 (Pa.
(Pa. 2000)).
2000».
A.
A. Missing
A1issingDocument
DocumentInstruction
Instruction
22
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The first issue raised by the Defendant is whether Attorney Kalasnik was ineffective
\vhen he did not request the missing document instruction for a notebook referenced in
when
testimony but lost prior to trial.
At the June 27, 2013 hearing, the Defendant opined that there was no missing
27,2013
document instruction; however, the Defendant went on to testify that he remembered
Attorney Kalasnik crossing witnesses about the notebook and calling the notebook's
existence into doubt during closing. In describing thc
the notebook, Attorney Kalasnik said that
it supposedly claimed relevant information and that, while the notebook was never produced,
the victim's father and friends were supposed to have knowledge of the notebook and they
testified. Attorney Kalasnik generally recalled inconsistency between witnesses as to what
information the notebook contained and he was also satisfied with how he addressed the
infonnation
notebook on cross. Attorney Kalasnik also testified on direct that he does not believe a
missing document instruction would have helped because the defense was unable to produce
sufficient reasons for the jury to disbelieve the accuser. However, on cross, Attorney
Kalasnik stated that it could have helped if a missing document instruction were to have been
glven.
given.
It seems axiomatic that the claim underlying the ineffectiveness claim has arguable
merit as to a missing document instruction because the document and its absence seem to
have instigated a lot of questioning and closing remarks. The second prong of the
ineffectiveness standard, whether counsel's actions lacked any reasonable basis, is less sure.
J3
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determine whether "'an
We are instructed to detennine '''an alternative not chosen offered a potential for
qi3:, A.~d. (,c,c,
q£r3 A-~,l G,G,(,
success substantially greater than the course actually pursued.
pursued.'", Cox"at 678. Here, would
having had the missing document instruction have proven substantially more successful than
not having the jury hear such an instruction? Attorney Kalasnik testified that neither he nor'
nor
the Defendant could produce sufficient evidence to discredit the accuser and that fact, not a
.• _
• dQL",``f
dQL983 A.2d 666, 678 (Pa. 2009). Here, the objectionable
testimony was stated in open court and in violation orthe
of the preexisting moratorium established
by the Court. In commonly used court vernacular, testimony once uttered before aajury
jury is
, akin to a bell, \vhich
which cannot be uurung.
unrung. The Court is compelled to ask what an objection
would have accomplished. Short of a mistrial, the jury could only have been ordered that the
thc
testimony was stricken and not to be considered. Attorney Kalasnik's testimony that it is
sometimes best to let hannful
harmful statements go and to minimize them later is a course of action
that this Court finds is equally likely, or better, of succeeding than asking for a curative
instruction. As to this charge, it does not appear as though Attorney Kalasnik's actions
lacked any reasonable has is. The chosen course of not objecting does not demonstrate that
basis.
Attorney Kalasnik was ineffective. If, however, Attorney Kalasnik's actions were
unreasonable, we proceed to the third prong of the ineffectiveness standard.
The third prong requires the petitioner to demonstrate that counsel's actions resulted
in prejudice to the petitioner. Again, "[p]rejudicc
"[p]rejudice in the context of ineffective assistance of
counsel means demonstrating that there is a reasonable
reasonahle probability
prohability that, but for counsel's
6
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error, the outcome of the proceeding would have been different." Pierce, 786 A.2d 203, 213
(Pa. 200 1).
I). The jury heard defense counsel question the veracity of Christian's account of the
alleged assault and accuse her of improper motives on cross. The jury heard a stronger
rebuke of the testimony from Attorney Kalasnik than what the Court could have offered
following an objection. It, therefore, does not follow that there is a reasonable probability
that the outcome of the proceedings would have been different had the missing document
F.'s
instruction been given. This Court finds that Attorney Kalasnik was not ineffective for
failing to object to Christian F . ' s testimony regarding incidents of abuse.
C. Failure
.Failure to Appeal Lack of Prior Bad Acts Instruction
For his third PCRA complaint, the Defendant alleges that Attorney Gover was
ineffective for not appealing the lack of an instruction on prior bad acts testimony under Rule
of Criminal Procedure 404(b).
During the June 27, 2013 hearing, the Defendant testified that he believes the
outcome of his trial would have been different with different jury instructions. The
Defendant also testified that he does not remember Attorney Gover discussing an appeal for
the lack of an instruction on prior bad acts. Attorney Kalasnik testified that he could not
remember whether he had input into instructions, but that the Court indicated it would not
give a 404(b) instruction!.
instructionl. That said, Attorney Kalasnik does not believe that a prior bad acts
Attorney Kalasnik did have input into the jury instructions and that the Court did not give
1I The Court notes that Attomey
4/141l0, at
an instruction on prior bad acts for fear of drawing too much attention to them. (Notes of Testimony, 4/14/10,
7
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instruction would have helped because the defense presented a great volume of persuasive
evidence. Attorney Kalasnik went on to note that the jury even came back deadlocked at
Attorney-Kalasnik
some point. Attorney -Kalasnik went on to testify on cross by the Petitioner that while he
believed, at the time of trial, the instructions were sufficient, it is possible that a prior bad
acts instruction might have helped the Defendant.
We do not doubt that the claim underlying the ineffectiveness claim has arguable
merit as to a prior bad acts instruction because the prior bad acts in question were not to have
been brought into the trial. As for the second prong of the ineffectiveness standard, we
cannot make a finding that Attorney Gover's actions lacked any reasonable basis based upon
testimony, because Attorney Gover was not available to testify at the June 27, 2013 hearing.
Our inquiry does not end here, however, because, by agreement of the parties at the June 27,
2013 hearing, Attorney Gover's absence was not deemed to have put either party at a
disadvantage. As Attorney Gover did not submit the lack of a prior bad acts instruction for
appeal, we find that "'an alternative not chosen offered a potential for success substantially
greater than the course actually pursued. '" Cox, 983 A.2d 666, 678 (Pa.
pursued.'" CPa. 2009). This is so
because only those issues which are appealed will be considered. The alternative of lodging
an appeal offered substantially better potential for success than not appealing the issue. As to
this prong, it does appear as though Attorney qtover's
983 A.2d 666, 678 (Pa.
CPa.
I 10
I
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2009). Here, would having had the prior inconsistent statements instruction have proven
substantially more successful than not having the jury hear such an instruction? The Court
gave the standard witness credibility instruction. When Kalasnik' s
\Vhen combined with Attorney Kalasnik's
cross of the victim and closing statement, the jury was well aware that the victim's testimony
I
was in question. And, ultimately, the point ofa
of a prior inconsistent statements instruction is to
highlight witness credibility. Any gain from a prior inconsistent statements instruction would
have been small and certainly would not have risen to the level of a substantially greater
potential for success. As such, it does not appear as though Attorney Kalasnik's actions
lacked any reasonable basis. The chosen course of not requesting the instruction does not
show Attorney Kalasnik to have been ineffective. If, however, Attorney Kalasnik's actions
were unreasonable, we proceed to the third prong of the ineffectiveness standard.
The third prong asks whether counsel's actions resulted in prejudice to the petitioner.
Again, "[p ]rejudice in the context of ineffective assistance of counsel means demonstrating
that there is a reasonable probability that, but for counsel's error, the outcome of the
proceeding would have been different." Pierce, at 213. The jury heard defense counsel cross
i
the victim and make a closing argument premised upon perceived inconsistencies. The jury
was aware that the victim's statements were in question. It does not follow that there is a
reasonable probability that the outcome of the proceedings would have been different had the
prior inconsistent statements instruction been given. This Court finds that the Defendant did
not demonstrate that counsel's actions resulted in prejudice. Attorney Kalasnik was not
11
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neffective for not requesting the R1jg~jlig
.'neffective roissi lig d