Com. v. Stewart, D. ( 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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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
v. :
:
DONALD STEWART, : No. 2383 EDA 2017
:
Appellant :
Appeal from the PCRA Order, June 12, 2017,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0403521-2003
BEFORE: LAZARUS, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 14, 2019
Donald Stewart appeals from the June 12, 2017 order filed in the
Court of Common Pleas of Philadelphia County that dismissed his petition
filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-9546. After careful review, we affirm.
The facts, as set forth by a previous panel of this court, are as follows:
On January 13, 2003, Kynisha Barnes,
18 (hereinafter “Barnes”), was walking
along Baynton Street in the City and
County of Philadelphia, where she came
in contact with [appellant]. With his
daughter in the back seat asleep,
[appellant] pulled up in a black Jaguar
alongside Barnes and struck up a
conversation. [Appellant] told Barnes
that he owned a salon with his mother on
the other side of Germantown and that
he needed someone to work for him as a
cashier. Barnes told [appellant] that she
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was interested since she was not
employed at the time. [Appellant]
opened the car door, and Barnes got in
so that he could drive her to the salon to
fill out an application.
[Appellant] first drove to an unidentified
location in Germantown and dropped off
his daughter while Barnes waited in his
car. [Appellant] returned and drove for
about thirty (30) minutes to his
residence located at 2056 North 23rd
Street in the City and County of
Philadelphia. [Appellant] told Barnes to
get out of the car and they walked up to
his house. Once inside, [appellant] told
Barnes to relax and get comfortable, but
she remained standing. [Appellant]
removed her coat and told her to wait on
his couch while he went upstairs. When
[appellant] returned, Barnes asked to be
taken home. [Appellant] replied, “No, I
want to take care of you.” Barnes
grabbed her coat, but [appellant] led her
upstairs by the arm. Barnes repeatedly
told [appellant] that she did not want to
go upstairs, to which he replied, “Yes you
do.”
[Appellant] sat Barnes on his bed, turned
the television and radio on high volume,
and left the room. When [appellant]
returned, Barnes asked if she could use
his bathroom where she stayed for a
short time contemplating what to do. As
she stood in the bathroom, [appellant]
opened the door wearing only his
underwear. He pulled Barnes back into
the bedroom, reached under her shirt
and removed her bra. As Barnes tried to
push him away, [appellant] said, “I am
going to give you money for it.” Barnes
repeatedly told [appellant] to stop.
Barnes tried to run out of the room, but
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[appellant] grabbed her by the waist and
forced her down on the bed. He told her
that if she did not remove her pants, he
would rip them off her. [Appellant]
removed his underwear and forced his
penis into her vagina. Barnes repeatedly
told [appellant] to stop. After he
finished, Barnes went into the bathroom
to clean herself. Afterwards, [appellant]
attempted to give her money. Barnes
refused. [Appellant] put the money in
her [,] which Barnes did not discover
until later. Barnes asked [appellant] to
drive her back to the location where they
met. Once he stopped the car,
[appellant] handed her a piece of paper
with a telephone number with the name
“Jamal” written on it. Afterwards,
Barnes told both her friend Byron
Chamberlain, and her sister about the
incident with [appellant].
The next day, Barnes told the school
nurse about the incident and police were
called to the school. Barnes gave a
statement to police. Barnes said
[appellant] had a noticeable scar on his
stomach. On January 15, 2003, Barnes
gave a statement to the Special Victim’s
Unit. Police went to [appellant’s] home,
but he denied any involvement with
Barnes. On March 3, 2003, Barnes
picked [appellant] out of a photo array.
Barnes said [appellant’s] name was
Jamal. [Appellant] was arrested on
March 9, 2003.
Trial Court Opinion, 11/20/07, at 2-4 (citations
omitted).
After a jury trial, [appellant] was found guilty of
[rape and sexual assault].[1] Counsel for [appellant]
1 18 Pa.C.S.A. §§ 3121(a) and 3124.1, respectively.
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filed post-verdict Motions. Subsequently, new
counsel entered an appearance for [appellant] and
filed additional post-trial Motions. The trial court
denied [appellant’s] post-trial Motions, and
sentenced [appellant] to a prison term of ten to
twenty years on the rape conviction.[Footnote 2]
[Footnote 2] The conviction of sexual
assault merged with the rape conviction
for purposes of sentencing.
Commonwealth v. Stewart, 970 A.2d 479 (Pa.Super. 2009) (unpublished
memorandum at 1-3).
Appellant then appealed to this court, which affirmed. Id. Appellant
petitioned for allowance of appeal with the Pennsylvania Supreme Court.
Our supreme court vacated the portion of this court’s opinion related to
prosecutorial misconduct and remanded to this court with instructions to
remand to the trial court to address whether the assistant district attorney
committed prosecutorial misconduct. Commonwealth v. Stewart, 987
A.2d 1214 (Pa. 2010). The trial court concluded that there was no
prosecutorial misconduct. This court affirmed. Commonwealth v.
Stewart, 23 A.3d 577 (Pa.Super. 2010). Appellant then petitioned for
allowance of appeal our supreme court, which denied the petition on May 12,
2011. Commonwealth v. Stewart, 21 A.3d 1193 (Pa.Super. 2011).
The PCRA court recounted the following additional procedural history:
On May 8, 2012, [a]ppellant filed a pro se PCRA
Petition. On January 21, 2014, court-appointed
counsel filed an Amended PCRA Petition. On April 1,
2014, [a]ppellant filed a motion to remove counsel.
On June 26, 2014, John Cotter, Esq. entered his
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appearance on behalf of [a]ppellant. On August 1,
2014, counsel filed an Amended PCRA Petition. On
October 7, 2014, [a]ppellant filed a motion for new
counsel. On October 27, 2014 and November 17,
2014, counsel filed PCRA supplements. On July 6,
2015, counsel filed a motion to withdraw as counsel,
citing [a]ppellant’s wishes to proceed pro se. On
August 21, 2015, this Court held a Grazier[2]
hearing and permitted [a]ppellant to proceed
pro se. On December 11, 2015, this Court
appointed Matthew J. Wolfe, Esq. as standby
counsel. On March 18, 2016, [a]ppellant filed an
Amended PCRA Petition. On March 22, 2016, the
Commonwealth filed a Motion to Dismiss
[a]ppellant’s PCRA Petition. On May 12, 2016,
[a]ppellant filed yet another PCRA Petition. On
July 18, 2016, [a]ppellant filed a Motion for
Extension of Time. On July 25, 2016, the
Commonwealth filed a response. On May 11, 2017,
[a]ppellant filed another Motion for Extension of
Time. On May 12, 2017, [a]ppellant filed yet
another PCRA Petition. On June 7, 2017, the
Commonwealth filed a brief in opposition to
[a]ppellant’s motion for extension of time. Following
arguments presented by both sides, on June 12,
2017, this Court dismissed [a]ppellant’s PCRA
Petition.
On July 7, 2017, [a]ppellant filed[] a notice of
appeal. On September 29, 2017, [a]ppellant filed
with the court a Statement of Errors Complained [of]
on Appeal, pursuant to this Court’s order. This Court
cannot identify, precisely, [a]ppellant’s claims raised
on appeal. (See Attached Statement of Errors).
PCRA court opinion, 3/6/18 at 1-2.
The PCRA court filed an opinion, pursuant to Pa.R.A.P. 1925(a) on
March 6, 2018.
2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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Appellant raises the following issue for this court’s review: “Did the
PCRA Court err and/or abuse its discretion when it denied [appellant’s]
petition under the PCRA seeking a new trial based upon the ineffective
assistance of counsel?” (Appellant’s brief at 4.)
Proper appellate review of a PCRA court’s dismissal of a PCRA petition
is limited to the examination of “whether the PCRA court’s determination is
supported by the record and free of legal error.” Commonwealth v. Miller,
102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s
findings will not be disturbed unless there is no support for the findings in
the certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super.
2014) (citations omitted). “This Court grants great deference to the findings
of the PCRA court, and we will not disturb those findings merely because the
record could support a contrary holding.” Commonwealth v. Hickman,
799 A.2d 136, 140 (Pa.Super. 2002) (citation omitted).
Appellant’s claims concern the ineffective assistance of counsel. To
prevail on a claim of ineffective assistance of counsel under the PCRA, a
petitioner must establish the following three factors: “first[,] the underlying
claim has arguable merit; second, that counsel had no reasonable basis for
his action or inaction; and third, that Appellant was prejudiced.”
Commonwealth v. Charleston, 94 A.3d 1012, 1020 (Pa.Super. 2014)
(citation omitted), appeal denied, 104 A.3d 523 (Pa. 2014).
[A] PCRA petitioner will be granted relief only when
he proves, by a preponderance of the evidence, that
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his conviction or sentence resulted from the
[i]neffective assistance of counsel which, in the
circumstances of the particular case, so undermined
the truth-determining process that no reliable
adjudication of guilt or innocence could have taken
place.
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (internal quotation
marks omitted; some brackets in original), citing 42 Pa.C.S.A.
§ 9543(a)(2)(ii).
“[C]ounsel is presumed to be effective and the burden of
demonstrating ineffectiveness rests on appellant.” Commonwealth v.
Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011) (citation omitted), appeal
denied, 30 A.3d 487 (Pa. 2011). Additionally, counsel is not ineffective for
failing to raise a claim that is devoid of merit. Commonwealth v. Ligons,
971 A.2d 1125, 1146 (Pa. 2009).
Initially, appellant contends that his trial counsel was ineffective for
failing to consult or present evidence from any experts in forensic science,
DNA, or any related field to discuss the significance of the lack of physical
and forensic evidence presented.
In order to demonstrate counsel's ineffectiveness for
failure to call a witness, a petitioner must prove that
“the witness [] existed, the witness [was] ready and
willing to testify, and the absence of the witness[’]
testimony prejudiced petitioner and denied him a fair
trial.” [Commonwealth v.] Johnson, 27 A.3d
[244], 247 (Pa.Super. 2011). In particular, when
challenging trial counsel's failure to produce expert
testimony, “the defendant must articulate what
evidence was available and identify the witness who
was willing to offer such evidence.”
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Commonwealth v. Bryant, 579 Pa. 119, 855 A.2d
726, 745 (2004) (internal citation omitted). Also,
“[t]rial counsel need not introduce expert testimony
on his client's behalf if he is able effectively to
cross-examine prosecution witnesses and elicit
helpful testimony.” Commonwealth v.
Copenhefer, 553 Pa. 285, 719 A.2d 242, 253
(1998); accord Commonwealth v. Williams, 537
Pa. 1, 640 A.2d 1251, 1265 (1994).
Commonwealth v. Luster, 71 A.3d 1029, 1047 (Pa.Super. 2013).
Here, appellant failed to identify what expert was available and willing
to testify. Also, the record reflects that there was no DNA evidence
available. Because the Commonwealth did not present any DNA evidence or
expert testimony, the jury would have been aware that there was no DNA
evidence that linked appellant to the rape. The Commonwealth also notes
that appellant’s trial counsel argued in his closing argument about the
absence of DNA evidence. Appellant fails to establish how he suffered
prejudice from the failure to call the witness, so his claim fails under
Charleston.
Appellant next contends that his trial counsel was ineffective because
he failed to object to a portion of a jury instruction concerning reasonable
doubt which appellant believes is constitutionally infirm. Appellant concedes
that while he raised this claim in his statement of errors complained of on
appeal, he did not raise it before the PCRA court dismissed his petition(s).
This issue is waived because a claim not raised in a PCRA petition cannot be
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raised for the first time on appeal. Commonwealth v. Santiago, 855 A.2d
682, 691 (Pa. 2004).
Appellant has failed to prove that the PCRA court’s decision contained
legal error or that any findings were unsupported by the evidence of record.
Order affirmed.
Lazarus, J. joins this Memorandum.
McLaughlin, J. concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/14/19
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