Com. v. Greene, M. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MASTER GREENE, :
:
Appellant. : No. 60 MDA 2018
Appeal from the PCRA Order, December 18, 2017,
in the Court of Common Pleas of Lancaster County,
Criminal Division at No(s): CP-36-CR-0004487-2012.
BEFORE: GANTMAN, P.J., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY KUNSELMAN, J.: FILED DECEMBER 20, 2018
Master Greene appeals from the order denying his first petition for relief
pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-
9546. We affirm.
The PCRA court summarized the pertinent facts and procedural history
as follows:
On November 16, 2011, an arrest warrant was issued for
Greene as a result of being charged with the offenses of rape
of a child [and related charges]. The basis for these charges
was an allegation that between April 1, 2011, and July 31,
2011, Greene engaged in sexual contact with his girlfriend’s
[four-year-old] daughter, M.R., at their residence in
Strasburg, Lancaster County, Pennsylvania. Greene fled the
jurisdiction when confronted by his girlfriend with these
allegations, and was ultimately arrested in Mesa County,
Colorado, on March 8, 2012, and extradited back to
Pennsylvania on June 19, 2012.
The child victim, M.R., was interviewed on June 29, 2011,
by Mary Hayle, a forensic interviewer, at the Lancaster
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County Children’s Alliance. Officer Bradley A. Klunk of the
Strasburg Borough Police Department observed the
interview from another room. During the recorded
interview, M.R., disclosed that “uncle” (the name she uses
for Greene): (1) “touched her ‘Cookie’” (her word for
vagina); (2) “pulled her pants down and was touching her
Cookie with his hand when she was sleeping in her room”;
(3) touched her Cookie with his Cookie inside her Cookie “;
and (4) put his Cookie “in deep and he peed in her Cookie”
on more than one occasion.
Prior to trial, the Commonwealth filed a Petition to Admit
Out-of-Court Statements under the Tender Years Hearsay
Exception, 42 Pa.C.S.A. § 5985.1, and a Motion to Permit
Testimony by Contemporaneous Alternative Method
Pursuant to the Pennsylvania Uniform Child Witness
Testimony by Alternative Methods Act, 42 Pa.C.S.A. § 5985.
A combined hearing on the motion and petition was held at
the time of trial.
At the conclusion of the hearing on October 15, 2013,
this Court granted the petition to admit out-of-court
statements, having found that the statements made by the
child victim to Ms. Hayle, to her mother, A.R., and to her
cousin, Armand Miller, were relevant, and that the time,
content and circumstances of the statements provided
sufficient indicia of reliability for the admission pursuant to
42 Pa.C.S.A. § 5985.1. This Court further approved, on the
record, the Commonwealth’s motion to permit [M.R.’s]
testimony by alternative method.
This case immediately proceeded to a jury trial . . .
following these rulings on October 15, 2013. On October
18, 2013, Greene was found guilty on all charges. A pre-
sentence investigation report was ordered. A further order
was entered on October 18, 2013, directing Greene to
undergo an evaluation by the Pennsylvania Sexual
Offenders Assessment Board (SOAB) for purposes of
determining whether he qualified as a sexually violent
predator (SVP).
On December 18, 2013, the Office of the District Attorney
received the evaluation conducted by the SOAB. The Board
determined that Greene did not meet the criteria of an SVP
due to the short duration of the abuse. With this
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recommendation, the District Attorney’s Office notified the
Court on December 18, 2013, that it would not be filing a
praecipe for an SVP hearing. Accordingly, the case was
scheduled for sentencing.
On January 31, 2014, the Court imposed a sentence of
15 to 30 years’ incarceration for the rape charge, plus
concurrent sentences [for his remaining convictions].
PCRA Court Opinion, 2/27/18, at 1-4 (citations and footnotes omitted).
Following sentencing, Greene retained present counsel, who filed a post
sentence motion on his behalf. The trial court denied Greene’s motion on
February 28, 2014, and Greene filed a timely appeal to this Court.
On appeal, Greene raised four issues, including alleged trial court error
in admitting M.R.’s hearsay statements and by allowing her to testify by a
contemporaneous alternative method. Finding no merit to these contentions,
we affirmed his judgment of sentence on April 24, 2015. See
Commonwealth v. Greene, 2015 WL 6143899 (Pa. Super. 2015)
(unpublished memorandum). Greene did not seek further review.
On April 22, 2016, Greene filed a timely counseled PCRA petition in
which he raised five claims of trial counsel’s ineffectiveness, including having
M.R. identify him through use of a photograph at trial, and in failing to consult,
retain and present expert testimony at trial to rebut the expert testimony
presented by the Commonwealth. In addition, Greene asserted that the trial
court’s imposition of a mandatory minimum sentence under 42 Pa.C.S.A.
section 9718 constituted an illegal sentence, given this Court’s decision in
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Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super. 2014).1 The
Commonwealth filed a response. On July 18, 2016, Greene filed an amended
petition, in which he clarified some of his other claims of ineffectiveness. The
Commonwealth filed a response on August 22, 2016, in which it conceded the
need for an evidentiary hearing solely on the issue of trial counsel’s alleged
failure to call an expert witness.
On October 25, 2016, the PCRA court issued Pa.R.Crim.P. 907 notice of
its intent to dismiss five of Greene’s ineffectiveness claims, including M.R.’s
identification of him during trial by trial counsel’s use of a photograph, would
be denied without further proceeding because there was no genuine issue of
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1 In its opinion, the PCRA court states that Greene “is entitled to a
resentencing on the mandatory minimum imposed on the rape charge. It is
this Court’s intention to resentence Greene after he receives appellate review
of the denial of PCRA relief.” PCRA Court Opinion, 2/27/18, at 24. Our review
of the record reveals that Greene did not receive the ten-year mandatory
minimum, but rather, a fifteen-year minimum, which fell within the standard
range of the sentencing guidelines for his rape conviction. Further, Greene
challenged the discretionary aspects of this sentence on the basis that it was
five years longer than the mandatory minimum and the trial court denied
relief. Although the Commonwealth gave notice of the mandatory minimum,
and the trial court referenced it at sentencing, the court also relied on the pre-
sentence report and other legitimate sentencing factors to arrive at its decision
to sentence Greene to a fifteen-year mandatory minimum. Thus, resentencing
Greene for the rape conviction may not be warranted. See Commonwealth
v. Ziegler, 112 A.3d 656, 662 (Pa. Super. 2015) (holding that when the
sentencing court exceeds the mandatory minimum by applying a standard
guideline range sentence, the trial court has not “sentence[d] the defendant
based on the mandatory statute, and [the defendant’s] sentence is not illegal
on that ground”).
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material fact. Greene did not file a response. By order dated March 28, 2017,
the PCRA court dismissed these five ineffectiveness claims.
On June 26, 2017, the PCRA court held an evidentiary hearing on the
sole issue of trial counsel’s failure to call an expert witness to rebut and/or
contradict the testimony of the Commonwealth’s trial expert, Nurse
Practitioner, Julie Stover. The PCRA court heard testimony from trial counsel,
the proposed defense expert, Suzanne Rotolo, Ph.D., and Ms. Stover. After
this hearing, the PCRA court requested briefs solely addressing this
ineffectiveness claim. By order entered December 28, 2017, the PCRA court
denied Greene post-conviction relief. This appeal followed. Both Greene and
the PCRA court have complied with Pa.R.A.P. 1925.
Greene raises the following issues:
A. ISSUE 1: Whether [Greene] was deprived of his
constitutional right to effective assistance of counsel
when his trial [counsel] failed to seek the expert
assistance and consultations in Sexual Assault Nurse
Examinations (“SANE”)?
B. ISSUE 2: Whether [Greene] was deprived of his
constitutional right to effective assistance of counsel
when his trial [counsel] initiated and orchestrated an
unduly suggestive identification procedure of [Greene]
during a jury trial?
See Greene’s Brief at 4.
Our scope and standard of review is well settled:
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
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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.
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)
(citations omitted).
Both of Greene’s issues allege the ineffective assistance of counsel. To
obtain relief under the PCRA, premised on a claim that counsel was ineffective,
a petitioner must establish, by a preponderance of the evidence, that counsel's
ineffectiveness so undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place. Commonwealth
v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally, counsel’s
performance is presumed to be constitutionally adequate, and counsel will
only be deemed ineffective upon a sufficient showing by the petitioner.” Id.This requires the petitioner to demonstrate that: (1) the underlying claim is
of arguable merit; (2) counsel had no reasonable strategic basis for his or her
action or inaction; and (3) counsel’s act or omission prejudiced the petitioner.
Id. at 533.
As to the first prong, “[a] claim has arguable merit where the factual
averments, if accurate, could establish cause for relief.” Commonwealth v.
Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (en banc). “Whether the facts
rise to the level of arguable merit is a legal determination.’” Id. (citing
Commonwealth v. Saranchak, 866 A.2d 292, 304 n.14 (Pa. 2005).
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As to the second prong of this test, trial counsel's strategic decisions
cannot be the subject of a finding of ineffectiveness if the decision to follow a
particular course of action was reasonably based and was not the result of
sloth or ignorance of available alternatives. Commonwealth v. Collins, 545
A.2d 882, 886 (Pa. 1988). Counsel's approach must be "so unreasonable
that no competent lawyer would have chosen it." Commonwealth v. Ervin,
766 A.2d 859, 862-63 (Pa. Super. 2000) (citation omitted). A petitioner
asserting ineffectiveness based upon trial strategy must demonstrate that the
“alternatives not chosen offered a potential for success substantially greater
than the tactics utilized.” Commonwealth v. Clark, 626 A.2d 154, 157 (Pa.
1993). “We do not employ a hindsight analysis in comparing trial counsel’s
actions with other efforts he [or she] may have taken.” Stewart, 84 A.3d at
707. A PCRA petitioner is not entitled to post-conviction relief simply because
a chosen strategy was unsuccessful. Commonwealth v. Buksa, 655 A.2d
576, 582 (Pa. Super. 1995).
As to the third prong of the test for ineffectiveness, “[p]rejudice is
established if there is a reasonable probability that, but for counsel’s errors,
the result of the proceeding would have been different." Stewart, 84 A.3d at
707. “A reasonable probability ‘is a probability sufficient to undermine
confidence in the outcome.’” Id. (quoting Commonwealth v. Rathfon, 899
A.2d 365, 370 (Pa. Super. 2006).
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Finally, when considering an ineffective assistance of counsel claim, the
PCRA court “is not required to analyze these [prongs] in any particular order
of priority; instead if a claim fails under any necessary [prong] of the
ineffectiveness test, the court may proceed to that [prong] first.”
Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014) (citations omitted).
In particular, when it is clear that the petitioner has failed to meet the
prejudice prong, the court may dispose of the claim on that basis alone,
without a determination of whether the first two prongs have been met.
Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995).
In support of his first issue, Greene argues that trial counsel’s “failure
to call or even consult with an expert witness, resulted in [trial counsel] being
ill prepared to cross-examine the Commonwealth’s expert.” Greene’s Brief at
14. This Court has noted that such a claim actually raises two distinct issues:
Neglecting to call a witness differs from failing to
investigate [and/or interview] a witness in a subtle but
important way. The failure to investigate “presents an issue
of arguable merit where the record demonstrates that
counsel did not perform an investigation. It can be
unreasonable per se to conduct no investigation into known
witnesses. Importantly, a petitioner still must demonstrate
prejudice. To demonstrate prejudice where the allegation is
the failure to interview a witness, the petitioner must show
that there is a reasonable probability that the testimony
would have led to a different outcome at trial.
In this respect, a failure to investigate and interview a
witness claim overlaps with declining to call a witness since
the petitioner must prove: (i) the witnesses 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
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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)
(citations omitted).
After reviewing the testimony from the evidentiary hearing, the PCRA
court rejected Greene’s ineffective assistance claim because it found that
strategy employed by trial counsel was reasonable, even though trial counsel
did not consult or present a defense expert. The PCRA court explained:
The record establishes that [trial] counsel employed a
reasonable and legitimate strategy of attacking the issue of
lack of medical evidence in the Commonwealth’s case
delivered coherent opening and closing statements
consistent with the defense strategy, and cross-examined
the prosecution witnesses in accordance with that strategy.
[Trial counsel] testified at the PCRA hearing that he made
the strategic decision not to present expert testimony at trial
because he did not want the trial to become a battle of
experts and he did not believe any expert could actually
refute the testimony of the Commonwealth’s expert.
PCRA Court Opinion, 2/27/18, at 14-15. The PCRA court then quoted the
following explanation given by trial counsel:
I was familiar with the report that was created. And the
reality was I was familiar with the testimony as it – and it
ultimately came up in the trial, this wiener in the bun
testimony. There is nothing that I’m going to do to refute
that.
If you are familiar with the wiener in the bun, I’ll never
forget it, it is the fact that any penetration, however slight,
meets the elements of the offense.
The one thing that came to mind, that the expert that
was called testified to the very small seven millimeters,
eight millimeters, I forget the exact size of the victim’s
opening, genital opening.
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I remember that I wanted to attack that to a jury in a
more of a layperson attack.
I believe I had an Allen wrench that was that diameter
and I was trying to impress on the jury that that was
unrealistic.
And I was trying to discredit the expert without calling
another one because at the end of the day the expert got
up and said, well, even the wiener and the bun analogy
where the penis is running along the lips of the vagina meets
the elements of the offense. Well, there’s no way I am going
to refute that.
***
Bring another expert in to attack that, that’s just going
to amplify that part of the testimony, and that was
something that I wanted to stay away from.
PCRA Court Opinion, 2/27/18, at 15 (citing N.T., 6/26/17, at 8-9))2
The PCRA court then discussed the expert testimony Greene presented
at the PCRA hearing and explained why it did not establish prejudice:
Greene’s proposed defense expert, Dr. Rotolo, conceded
at the PCRA Hearing that she did not disagree with Nurse
Stover’s ultimate conclusion that a child’s allegation of
sexual abuse may be consistent with a “normal”
examination. Thus, had Dr. Rotolo testified as a defense
expert at trial and acknowledged that M.R.’s allegations of
sexual assault were consistent with Nurse Stover’s finding
of a “normal” medical examination, this testimony would not
have been beneficial to Greene’s defense and the result of
the trial would have been the same.
Id. at 15-16. Finally, although the PCRA court noted that Dr. Rotolo took
exception to Nurse Stover having “misquoted some statistics” from one study,
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2 Nurse Stover actually testified that M.R.’s “hymenal orifice” measured “equal
to or less than four millimeters.” N.T., 10/16/13, at 388.
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and that she even relied on an allegedly irrelevant study involving
impregnated teenagers, the PCRA found that Dr. Rotolo did not take issue with
Nurse Stover’s ultimate representation that these studies supported her claim
that sexual abuse can occur even though there is no physical injury to the
child. See PCRA Court Opinion, 2/27/18, at 16-17.
Our review of the record supports the PCRA court’s conclusions. Greene
asserts that “[f]or no strategic reason, the jury at [his] trial was left with the
impression that [Nurse] Stover’s opinions were unassailable.” Greene’s Brief
at 18. He further contends that, had trial counsel “elected to either educate
himself or seek the assistance of an expert on child abuse,” he would have
discovered that Nurse Stover “grossly mischaracterized both of the articles
that formed the basis of her trial testimony and expert opinion.” Id.
According to Greene, “[s]uch rich fodder should inescapably lead to a cross-
examiner[’]s ability to elicit helpful testimony.” Id.3 Yet, the expert Greene
called at the evidentiary hearing, while taking issue with certain statements
made regarding child abuse studies, could not contradict Nurse Stover’s
substantive opinions. In short, even with the proffered expert’s proffered
testimony, Nurse Stover’s opinions remained “unassailable.”
In further arguing that trial counsel had no reasonable trial strategy,
Greene cites to counsel’s statement that he wanted more of a “layperson
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3 We note that trial counsel did cross-examine Nurse Stover as to the
relevancy of the study involving impregnated teenagers when M.R. as only
four years old when the abuse occurred. See N.T., 10/16/13, at 397-98.
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attack” on the absence of physical evidence of sexual abuse and counsel’s
statement that he did not want Greene’s trial “to become a battle of the
experts.” Greene’s Brief at 8. In making this argument, Greene ignores trial
counsel’s additional statement that he could not refute the Commonwealth’s
expert’s opinion that “penetration” could have occurred even in the absence
of physical evidence. Indeed, as noted above, Greene’s proffered expert could
not refute Nurse Stover’s ultimate conclusion that penetration could have
occurred despite the absence of evidence of physical injury.
Trial counsel’s stated trial strategy was that, given the lack of physical
evidence, M.R. was not sexually abused, and if she was, Greene was not the
perpetrator. See N.T., 6/26/17, at 5-6. The PCRA court found this strategy
reasonable, and noted that trial counsel believed calling his own expert would
have only emphasized the fact that “penetration however slight” occurred, and
that this emphasis would be to Greene’s detriment. See supra. We agree.
Finally, Greene’s claim that “[t]here was not overwhelming evidence of
guilt in this matter,” and that the credibility of Nurse Stover was critical,
ignores the testimony of the victim, her mother, and others regarding his
perpetration of sexual abuse upon M.R. In sum, for all these reasons,
Greene’s first ineffective assistance claim fails.
In his remaining ineffectiveness claim, Greene asserts that trial counsel
“initiated and orchestrated an unduly suggestive identification procedure” of
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him during trial.4 Greene’s Brief at 4. According to Greene, “[trial counsel’s]
decision to seek a line of questioning that resulted in the only positive
identification of [him] at trial represent[s] a gross miscarriage of justice.”
Greene’s Brief at 14. Greene further argues that, “[a]bsent such error, [he]
had a strong basis for a judgment of acquittal on the grounds of failure to
identify.” Id. at 26.5
The PCRA court found that Greene waived this claim on appeal, because,
although it was originally raised in his PCRA petition, Greene did not respond
to the PCRA court’s Rule 907 notice that the claim would be dismissed without
a hearing, and because it is improperly being raised for the first time on
appeal. PCRA Court’s Opinion, 2/27/18, at 23 (citing Commonwealth v.
Henkel, 90 A.3d 16, 29 (Pa. Super. 2014) (involving claims of PCRA counsel’s
ineffectiveness); Pa.R.A.P. 302(a). We disagree. Greene properly raised this
claim of ineffectiveness in his PCRA petition, and it was dismissed without a
hearing. Greene could not immediately challenge this determination,
however, until the PCRA court ruled on the one remaining ineffectiveness
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4 Although Greene characterizes his identification by M.R. as unduly
suggestive, he provides no argument on this aspect of his claim. Thus, it is
waived. See generally, Commonwealth v. Tielsch, 934 A.2d 81, 93 (Pa.
Super. 2007) (holding that undeveloped claims will not be considered on
appeal).
5 At the PCRA hearing, trial counsel acknowledged that he took a risk in asking
to M.R. to identify the person in the photograph. As Greene now notes, trial
counsel testified that, had M.R. not identified that person as Greene, “I was
ready to make my motion right then and there to dismiss the case.” N.T.,
6/26/17, at 23.
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claim following the evidentiary hearing. Thus, Greene’s ineffectiveness claim
involving his identification by the victim at trial is properly before us.
The PCRA court further held that, absent waiver, the claim lacked
arguable merit because, despite Greene’s claim to the contrary, M.R.’s
identification of Greene via the photograph displayed by trial counsel was not
the only positive identification of Greene as the perpetrator. Because M.R.
testified via closed circuit television, an in-court identification of Greene was
impossible. In reaching the conclusion that Greene could not establish the
requisite prejudice regarding this ineffectiveness claim, the PCRA court
explained:
As noted above, in her testimony at trial, [M.R.] identified
the person who touched her private parts as “Uncle.” During
the forensic interview at the Children’s Alliance, [M.R.]
unequivocally stated that her “daddy uncle” who “lives with
her” assaulted her. The victim’s mother testified that the
victim called Greene “Uncle.” The identification by [M.R.],
coupled with her mother’s in-court identification were
sufficient to establish that Greene was the perpetrator of the
sexual abuse. Greene, therefore, suffered no prejudice
when [M.R.] further identified a photo of Greene as “uncle.”
PCRA Court Opinion, 2/27/18, at 23 (citations omitted). We agree. See
Commonwealth v. Brooks, 7 A.3d 852, 857 (Pa. Super. 2010) (concluding
evidence was sufficient to support the defendant’s conviction for sex offenses;
although no in-court identification of the defendant was possible because the
victims testified via closed-circuit television, the victims testified as to the
defendant’s identity, and a social worker made an in-court identification of the
defendant).
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In sum, neither of Greene’s ineffective assistance of counsel claims
warrant post-conviction relief. Thus, we affirm the PCRA court’s order denying
his amended petition.
Order affirmed.
Judge Musmanno joins this Memorandum.
President Judge Gantman concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/20/2018
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