Com. v. Raker, R. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
RICHARD EUGENE RAKER :
:
Appellant : No. 609 MDA 2022
Appeal from the PCRA Order Entered April 1, 2022
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0006711-2016
BEFORE: PANELLA, P.J., BENDER, P.J.E., and LAZARUS, J.
MEMORANDUM BY LAZARUS, J.: FILED: NOVEMBER 8, 2022
Richard Eugene Raker appeals from the order,1 entered in the Court of
Common Pleas of Dauphin County, denying his petition filed pursuant to the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Upon careful
review, we affirm in part, vacate in part, and remand for further proceedings.
Raker was convicted by a jury of aggravated indecent assault and
related charges stemming from an incident in which he fondled and digitally
penetrated his friend’s intellectually-challenged 15-year-old daughter. On
December 10, 2020, the trial court sentenced Raker to an aggregate term of
____________________________________________
1 Raker’s notice of appeal states that the instant appeal is from the April 1,
2022 order denying his post-sentence motion. However, an order dated April
1, 2022, denying PCRA relief, is attached to the docketing statement filed by
counsel. Thus, it appears that the notice of appeal’s reference to the denial
of post-sentence motions is a typographical error, which we have corrected.
See Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super.
2001) (en banc) (correcting appeal’s caption when appellant misstates where
appeal lies).
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three to six years’ incarceration, followed by three years of probation. Raker
obtained new counsel and filed a post-sentence motion for a new trial, in which
he raised four claims of trial counsel’s ineffectiveness. Raker acknowledged
that, pursuant to Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002),
ineffectiveness claims are generally deferred until collateral review. However,
he asserted that he had no other issues to raise on direct appeal, and attached
a written waiver of his future rights under the PCRA. The trial court dismissed
Raker’s motion without a hearing and he timely appealed.
In his court-ordered Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal, Raker raised three claims relating to trial counsel’s
ineffectiveness. In its Rule 1925(a) opinion, the trial court acknowledged the
rule in Grant, but stated that it had exercised its discretion to consider Raker’s
claims in post-sentence motions under the “good cause shown/waiver”
exception to Grant carved out by our Supreme Court in Commonwealth v.
Holmes, 79 A.3d 562 (Pa. 2013) (holding trial court could exercise discretion
to entertain ineffectiveness claims on post-sentence motions when claim of
ineffectiveness is apparent from record and meritorious such that immediate
consideration serves interest of justice or there is good cause shown and
defendant has given knowing and express waiver, following full colloquy, of
right to seek subsequent PCRA review). This Court dismissed Raker’s appeal,
holding that the trial court had abused its discretion in applying the Holmes
exception, where no colloquy was held and Raker’s written waiver did not
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demonstrate his awareness of all relevant considerations. See
Commonwealth v. Raker, 264 A.3d 380 (Pa. Super. 2021) (Table), at *3.
On October 18, 2021, Raker filed the instant PCRA petition, raising the
same ineffectiveness claims presented in his post-sentence motion. The
Commonwealth filed a response and, on March 2, 2022, the PCRA court issued
Pa.R.Crim.P. 907 notice of its intent to dismiss the petition. Raker filed a
response and, on April 1, 2022, the court denied relief. On April 5, 2022,
Raker filed a timely notice of appeal, followed by a court-ordered Rule 1925(b)
statement. He raises the following claims for our review:
1. Was trial counsel ineffective for advising [Raker] to waive his
right to testify?
2. Was trial counsel ineffective for [failing] to object to the
prosecutor’s improper closing argument?
3. Was trial counsel ineffective [in] her failure to properly prepare
and present readily available witnesses to attest to [Raker’s]
excellent reputation in the community for chastity?
4. Did the [PCRA] court commit reversible error by denying
[Raker’s] request for an evidentiary hearing to examine trial
counsel as to her ineffectiveness?
Brief of Appellant, at 3 (reordered for ease of disposition).
It is well-settled that, in reviewing the denial of PCRA relief, “we examine
whether the PCRA court’s determination is supported by the record and free
of legal error.” Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014)
(quotations and citations omitted). The PCRA court’s credibility
determinations are binding on this Court when they are supported by the
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record; its legal conclusions, however, are subject to de novo review.
Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa. 2011).
Here, Raker raises three claims of trial counsel’s ineffectiveness. To
establish such a claim, a petitioner must overcome the presumption that
counsel was effective by proving “(1) that the underlying claim has merit; (2)
counsel had no reasonable strategic basis for his or her action or inaction; and
(3) but for the errors or omissions of counsel, there is a reasonable probability
that the outcome of the proceedings would have been different.”
Commonwealth v. Ousley, 21 A.3d 1238, 1244 (Pa. Super. 2011) (citation
omitted). “The failure to prove any one of the three prongs results in the
failure of petitioner’s claim.” Id.Raker also claims that the PCRA court erred in dismissing his petition
without first holding a hearing. Under Pennsylvania Rule of Criminal Procedure
907, the PCRA court has the discretion to dismiss a petition without a hearing
when the court is satisfied “that there are no genuine issues concerning any
material fact and that the defendant is not entitled to post-conviction collateral
relief, and no legitimate purpose would be served by any further
proceedings[.]” Pa.R.Crim.P. 907(1). “[T]o obtain reversal of a PCRA court’s
decision to dismiss a petition without a hearing, an appellant must show that
he raised a genuine issue of fact which, if resolved in his favor, would have
entitled him to relief, or that the court otherwise abused its discretion in
denying a hearing.” Commonwealth v. Hanible, 30 A.3d 426, 438 (Pa.
2011).
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Raker first asserts that trial counsel was ineffective for advising him not
to testify at trial. Specifically, Raker claims that, because the case “was a
classic ‘he said, she said,’” counsel’s advice lacked any reasonable basis
because “only [Raker] could provide the jury with evidence contradicting the
alleged victim’s testimony.” Brief of Appellant, at 9, 11. “[W]ithout an
alternative history of the relevant events, the jury was left with only the
alleged victim’s uncorroborated version of events[.]” Id. at 11-12. Raker
asserts that, had he testified, the outcome of trial would have been different.
See id. at 12. He is entitled to no relief.
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. In order to 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.
Commonwealth v. Nieves, 746 A.2d 1102, 1104 (Pa. 2000) (emphasis
added).
Here, Raker has failed to allege and offer to prove what advice counsel
gave him and how it was unreasonable. See id. Rather, he baldly claims that
counsel’s advice “lacked any reasonable basis designed to effectuate [Raker’s]
interests.” Brief of Appellant, at 9. This is insufficient. Raker’s argument is
devoid of any allegations of specific statements of trial counsel that might
have misled him. Accordingly, he failed to raise a genuine issue of fact which,
if proven, would entitle him to relief, Hanible, supra, and the PCRA court
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properly denied relief without a hearing. See Commonwealth v. Bazabe,
590 A.2d 1298, 1302 (Pa. Super. 1991) (where issue is whether evidentiary
hearing must be held, it is settled law that mere boilerplate allegations will
not suffice to require hearing).
Importantly, the trial court engaged in a thorough colloquy with Raker
regarding his decision not to testify. Raker stated, under oath, that he was
aware of his right to testify, had discussed the matter with counsel, and made
a knowing and intelligent decision not to testify. See N.T. Trial, 9/16/20, at
208-210. An appellant “is bound by the statements he makes in open court
while under oath and he may not later . . . contradict the statements he
made[.]” Commonwealth v. Hopkins, 228 A.3d 577, 583 (Pa. Super.
2020). Accordingly, Raker is entitled to no relief.
Raker next asserts that trial counsel was ineffective for failing to object
to the prosecutor’s allegedly improper closing argument. In particular, Raker
claims that the prosecutor “made a number of statements . . . based upon her
own personal experience with matters not on the record, which amounted to
unsworn expert and lay witness testimony.” Brief of Appellant, at 17. Raker
argues that the statements had the effect of supporting the credibility of the
victim and, given the importance of credibility in this matter, were prejudicial.
Id. Raker complains about the following portion of the prosecutor’s closing
argument:
I was in a serious car accident several years ago. I was actually
on my way to work, not here, but when I worked someplace else.
I was in a bad accident. And a gentleman went through a stop
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sign and T-boned me. Now, I ended up having to be taken away
by ambulance that day from the car crash. And, you know, it’s
funny the things that your mind remembers about a situation like
that. And it’s a traumatic situation. I mean, this is no difference
in terms of things that we remember. I can remember being at
the scene and saying over and over again about how I had just
paid off my car and now it was totaled. They’re loading me up
into an ambulance, and all I care about is, you know, my car is
gone and I've already paid it off.
You know, those are the things that I remember. I remember the
fact that there was a public defender who stopped to help until the
ambulance got there. He happened to be on his way to work, too,
and was a volunteer firefighter. I remember that it was an older
man who hit me. Beyond that, ladies and gentlemen of the jury,
I couldn’t tell you if it was a car that hit me. I couldn’t tell you
how fast I was going when that car hit me. I couldn’t tell you
what color the car was that hit me. I couldn’t tell you where my
car ended up after the crash, after the impact. Those are all
details that just didn’t resonate with me at the time because it
was a traumatic situation. Everyone looks at things differently. I
mean, I remember I was on my way to work. That would seem
like an insignificant detail.
***
Now, in terms of, you know, one of the things that you’re going
to hear an instruction from the [c]ourt about is, you know, prompt
complaint and she did not report immediately what had happened.
And I think there’s kind of a natural inclination—I mean, for
example, my car accident, the police came right away. I think
there’s a natural inclination to think, gees, if a person has be[en]
raped, . . . that they would report it immediately. But the reality
of the situation is we know that folks don’t. We know that they
don’t. I mean, you know, whether it be because of maturity,
because of an understanding, because of our inability to
understand, whether it be because of an emotional attachment to
the family, whether it be because your parents won’t believe you,
she talked about that. She thought that her parents wouldn’t
believe her. Why? Why did she feel that way? Because her dad
was really good friends with him. I mean that’s how kids look at
these things.
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We can tell kids—and gosh, I go to schools all the time and tell
kids that they will be believed if they talk about it, that they will
be believed. But kids deep down still think to themselves if I talk
about this, about the person who is a family friend, about the
person who brings us food, about the person who lets my dad
work with him, they’re not going to believe me. It’s sad, it’s sad
to think that kids in our society still feel that way, but it’s the
reality of the situation. And there’s no doubt— You know, I’ll get
off my soapbox now—that’s an area where we need to make
strides.
N.T. Trial, 9/17/20, at 33-34, 42-43.
Raker alleges that the prosecutor’s references to her automobile
accident “were completely irrelevant to the charges against” him and she
“invited the jury to excuse the victim’s lapses of memory, allegedly resulting
from the incident, by comparing them to [her own] lapses of memory resulting
from her accident.” Brief of Appellant, at 20-21. Raker asserts that the
prosecutor’s remarks were “unprofessional, improper, and prejudicial because
she argued facts and opinions not in the record, thereby giving unsworn lay
and expert testimony.” Id. at 23. As such, counsel’s failure to object
undermined the truth-determining process, entitling Raker to a new trial. Id.
He is entitled to no relief.
A prosecutor has great discretion during closing argument;
indeed, closing “argument” is just that: argument. [T]he
prosecutor must limit [her] argument to the facts in evidence and
legitimate inferences therefrom. However, the prosecutor must
have reasonable latitude in [fairly] presenting [a] case [to the
jury,] and must be free [to present] [her closing] arguments with
logical force and vigor. Therefore, [c]omments by a prosecutor
constitute reversible error only where their unavoidable effect is
to prejudice the jury, forming in the jurors’ minds a fixed bias and
hostility toward the defendant such that they could not weigh the
evidence objectively and render a fair verdict.
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Commonwealth v. Eichinger, 108 A.3d 821, 836 (Pa. 2014) (internal
citations and quotation marks omitted)
Here, the prosecutor’s remarks did not have the unavoidable effect of
causing bias, hostility, or prejudice in the minds of the jurors. See id. Rather,
as the PCRA court correctly noted, her argument “directly addressed the
[defense’s] attack on the victim’s credibility by utilizing an anecdotal example
of memory.” PCRA Court Opinion, 4/26/21, at 13. We agree with the
Commonwealth that the prosecutor was not rendering “expert testimony,” but
rather “encouraging the jury to rely on its own experience to show how details
sometimes can be important to one person but not [another].” Brief of
Appellee, at 15.
Moreover, the trial court specifically instructed the jury that the remarks
of counsel during argument are not to be considered as evidence.
[THE COURT:] The speeches of counsel are not part of the
evidence, and you should not consider them as such. However,
in deciding the case, you should carefully consider the evidence in
light of the various reasons and arguments each lawyer presented.
It is the right and duty of each lawyer to discuss the evidence in
a manner that is most favorable to the side she represents.
You should be guided by each lawyer’s arguments to the extent
they are supported by the evidence and insofar as they aid you in
applying your own reason and common sense. However, you are
not required to accept the arguments of either counsel. It is for
you and you alone to decide the case based on the evidence as it
was presented from the witness stand and in accordance with the
instructions I am now giving you.
N.T. Trial, 9/17/20, at 214. The jury is presumed to have followed the court’s
instructions. Commonwealth v. Flor, 998 A.2d 606, 632 (Pa. 2010).
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Accordingly, because trial counsel cannot be deemed ineffective for failing to
raise a meritless objection, Raker is entitled to no relief on this claim.
Finally, Raker claims that trial counsel was ineffective for failing to
properly prepare and present readily available character witnesses.
Specifically, Raker asserts that there were six individuals present in the
courthouse and ready to testify as to his excellent reputation in the community
for chastity. See Brief of Appellant, at 12. Raker argues that the first such
witness called to testify, Timothy Wert, “obviously was not prepared” and
counsel thereafter failed to call the remaining witnesses. Id. at 13. Raker
argues that, if counsel did not call the remaining witnesses because she had
failed to prepare them properly, “that would constitute clear negligence on her
part.” Id. at 14. Moreover, given the nature of the case, Raker argues that
counsel’s failure to either prepare or present character testimony could not
have had a reasonable basis designed to effectuate his interests. Id. at 16.
However, because the PCRA court did not conduct a hearing, it could only
speculate that counsel did not present the testimony because “presumably”
the witnesses “did not meet the correct standard for character testimony.”
Id. at 13, quoting PCRA Court Opinion, at 10. Finally, Raker asserts that, had
character testimony been presented, “the court would have been required to
instruct the jury that evidence of [Raker’s] excellent reputation in the
community for chastity may, in and of itself, have been sufficient to raise a
reasonable doubt[.]” Id. at 16.
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The failure to call character witnesses does not constitute per se
ineffectiveness. Commonwealth v. Cox, 983 A.2d 666, 693 (Pa. 2009)
(citation omitted). Rather, to establish that defense counsel was ineffective
for failing to call witnesses, a petitioner must prove:
(1) the witness existed; (2) the witness was available to testify
for the defense; (3) counsel knew of, or should have known of,
the existence of the witness; (4) the witness was willing to testify
for the defense; and (5) the absence of the testimony of the
witness was so prejudicial as to have denied the defendant a fair
trial.
Commonwealth v. Puksar, 951 A.2d 267, 277 (Pa. 2008) (citation omitted).
Here, Raker attached to his PCRA petition the statements of six
individuals who indicated that they were present in the courthouse, willing and
expecting to be called to testify as to Raker’s reputation in the community for
chastity. The individuals all stated that Raker’s counsel failed to review with
them the questions she would be asking on direct examination. Timothy Wert,
who briefly took the stand but was quickly dismissed, see discussion, infra,
indicated in his written statement that counsel had failed to properly prepare
him to testify and that he was, in fact, familiar with Raker’s reputation in the
community for chastity. Thus, Raker has satisfied the first four prongs of the
test for ineffectiveness for failure to call character witnesses.
As to the question of prejudice, this Court has previously observed that:
In a case such as this, where there are only two direct witnesses
involved, credibility of the witnesses is of paramount importance,
and character evidence is critical to the jury’s determination of
credibility. Evidence of good character is substantive, not mere
makeweight evidence, and may, in and of itself, create a
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reasonable doubt of guilt and, thus, require a verdict of not
guilty[.]
Commonwealth v. Hull, 982 A.2d 1020, 1025–26 (Pa. Super. 2009),
quoting Commonwealth v. Weiss, 606 A.2d 439, 442 (Pa. 1992). In light
of the nature of this case, in which the only evidence against Raker was the
testimony of the complainant, character evidence is critical. Accordingly,
Raker’s claim possesses arguable merit. The sole remaining question is
whether trial counsel had a reasonable basis for failing to call character
witnesses.
The PCRA court denied this claim based on counsel’s prerogative to
make strategic decisions.
Here, trial counsel did not fail to find or prepare potential character
witnesses as they were physically present at trial and ready to
testify. Indeed, Tim Wert, a potential character witness was called
to the stand to testify by trial counsel. The Commonwealth
objected to the testimony because he attempted to testify to his
personal beliefs regarding [Raker] instead of community
consensus as required. As a result, the witness was prohibited
from testifying further. Trial counsel is permitted to make
strategic decisions. Here, trial counsel’s decision to not call
the remaining character witnesses is presumably because
they, like Tim Wert, did not meet the correct standard for
character testimony. As [Raker] fails to show how this
testimony would have met the proper standard for character
testimony and how it would have changed the outcome of trial,
we must find this argument lacks merit.
PCRA Court Opinion, 4/26/21, at 9-10 (citations to record omitted).
However, there is nothing in the record to support the court’s finding
that counsel made a “strategic decision” to forgo character testimony. Having
declined to hold a hearing and receive testimony from trial counsel as to her
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trial strategy, the PCRA court simply made an assumption. See id. at 10 (trial
court concluding trial counsel did not call remaining character witnesses
because, “presumably,” they could not meet the standard for character
testimony).
In fact, a review of the trial record lends credence to Raker’s allegation
that trial counsel failed to properly prepare Timothy Wert and the other
potential witnesses. Rather than demonstrating that Wert could not testify to
Raker’s community reputation for chastity, the transcript supports the
contention that Wert was unprepared for the questions he was asked. Wert’s
testimony proceeded as follows:
Q. Mr. Wert, could you say your name and spell it for the court
reporter, please?
A. Timothy Wert, W-e-r-t.
Q. And, Mr. Wert, I don’t need to know your house address, but
where do you live?
A. I live in Millersburg.
Q. Do you know the gentleman sitting to my right?
A. Yes, I do.
Q. How long have you known, um, Mr. Raker?
A. Real close to 50 years.
Q. And, um, and are you familiar—and without any specific for
instance—are you familiar, um— Let me ask you this. Where Mr.
Raker lives, it’s in that [] Millersburg kind of greater area, right?
A. Yes.
Q. So are you familiar, um, with Mr. Raker’s reputation for
chastity in your community?
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A. Yeah. I see him talking to—
Q. No. No. So it can only be— Are you familiar with his
reputation? Not what you see, but— Let me ask you this[:]
You’re a part of the community there in Millersburg, right?
A. Right.
Q. And, um, do you meet with—for breakfast in a—in a group of,
um, retired folks?
A. Right.
Q. Okay. So what I asked you about was Mr. Raker’s reputation
for, um, chastity. And in [] particular—I want to sort of explain a
little bit, [c]hastity, like, you know, out catting around or
something of that sort. Are you familiar with his reputation for
chastity?
A. Yes
Q. And, [i]n your community, what [] is his reputation with regard
to chastity?
A. That he is a—basically a home person. So[,] he—I’ve never
seen him out running around.
[ASSISTANT DISTRICT ATTORNEY]: Objection. Your
Honor, may we approach, please?
THE COURT: You may.
(A discussion was held off the record at sidebar.)
THE COURT: Sir, you may step down.
(A discussion was held off the record at sidebar.)
[DEFENSE COUNSEL]: At this point, Your Honor, I have no
further witnesses.
N.T. Trial, 9/16/20, at 204-06.
Raker’s assertion that counsel failed to properly prepare Wert is
supported by the fact that counsel felt the need to define for Wert—in the
middle of his testimony—the meaning of the word “chastity.” Moreover, Wert
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indicated in his sworn statement that he was, in fact, aware of Raker’s
reputation for chastity and was not properly prepared by counsel to testify.
Without an evidentiary hearing, the court lacked any record basis to conclude
that counsel’s failure to present character testimony was grounded in sound
trial strategy. As our Supreme Court has stated,
the court should not glean or surmise from the record whether
[counsel] had a reasonable basis for [her] action or inaction. It is
only in the most clear-cut of cases that the reasons for the conduct
of counsel are clear from the record. Thus, only where the record
clearly establishes that the action or omission of [counsel] was
without a reasonable basis should the court resolve the reasonable
basis prong absent a remand for an evidentiary hearing as to the
strategy of counsel[.]
Commonwealth v. McGill, 832 A.2d 1014, 1022 (Pa. 2003).
Where, as here, there are only two witnesses to the events in question,
the credibility of the witnesses was of paramount importance, and counsel’s
failure to employ character witnesses undermined Raker’s chances of instilling
reasonable doubt in the minds of the jury and could have resulted in prejudice
to Raker. Because the PCRA court failed to hold a hearing, the record before
us is incomplete as to counsel’s rationale for forgoing such testimony.
Accordingly, we are constrained to vacate the PCRA court’s order to the extent
that it denied relief on this claim, and remand the case for a hearing, at which
time the court may hear the testimony of trial counsel and any other witnesses
the parties deem appropriate.
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Order affirmed in part and vacated in part. Case remanded for a hearing
in accordance with the dictates of this memorandum. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/8/2022
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