Com. v. Chambers, M. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
MARTIN H. CHAMBERS :
:
Appellant : No. 1311 WDA 2016
Appeal from the PCRA Order July 21, 2016
In the Court of Common Pleas of Warren County
Criminal Division at No(s): CP-62-CR-0000361-2014
BEFORE: OLSON, RANSOM, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED MARCH 21, 2017
Appellant, Martin H. Chambers, appeals from the July 21, 2016, order
entered in the Court of Common Pleas of Warren County denying his first
petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§
9541-9546, following an evidentiary hearing. After a careful review, we
affirm.
The relevant facts and procedural history are as follows: Appellant
and the victim were in a romantic relationship, and after it ended, Appellant
continued to send unwanted texts and make unwanted phone calls to the
victim. Becoming concerned for her safety, on September 25, 2014, the
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*
Former Justice specially assigned to the Superior Court.
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victim had an alarm system, which included a panic system, activated at her
home.
On October 7, 2014, at approximately 3:00 a.m., as the victim
attempted to go into her residence, someone grabbed her from behind,
pulled her by the neck, and in a “really weird voice,” ordered her to go into
the house. N.T., Trial, 8/13/15, at 60, 64. Although he was attempting to
disguise his voice, the victim recognized the person as being Appellant. Id.
at 60. As Appellant pulled the victim into the house, Appellant told the
victim she could turn off the alarm system. Id. at 61. Instead, unbeknownst
to Appellant, the victim entered a four-digit panic code to alert the police
that she was in need of assistance. Id.
Thereafter, Appellant pulled the victim into one of the rooms and
removed her pants. Id. at 62. The victim struggled, and when she
momentarily freed herself, Appellant knocked her down. Id. at 62-63. As
the struggle continued, the police arrived and arrested Appellant.
On August 13, 2015, Appellant, who was represented by private
counsel, Erika L. Mills, Esquire, proceeded to a jury trial, at the conclusion of
which the jury convicted Appellant of criminal attempt (rape by forcible
compulsion), burglary, aggravated indecent assault, criminal trespass,
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stalking, unlawful restraint, false imprisonment, and indecent assault.1
Following trial, Attorney Mills was granted permission to withdraw her
representation, and Public Defender John R. Parroccini entered his
appearance on behalf of Appellant. On November 13, 2015, Appellant was
sentenced to an aggregate of one hundred months to two hundred months
in prison. Appellant filed neither post-sentence motions nor a direct appeal.
On February 29, 2016, Appellant filed a timely, counseled PCRA
petition, and following an evidentiary hearing at which Appellant and
Attorney Mills testified, the PCRA court denied Appellant’s petition on July
21, 2016. This timely, counseled appeal followed, and all Pa.R.A.P. 1925
requirements have been met.
Appellant contends the PCRA court erred in failing to find trial counsel
was ineffective on the following basis:
1. Trial counsel refused to allow [Appellant] to present character
witness[es];
2. Trial counsel failed to obtain and present documentation from
a similar claim by the victim from Skokie, Illinois;
3. Trial counsel failed to present any lay or expert evidence of
whether the victim’s mental illness (Bi-Polar Disorder) would
affect memory;
4. Trial counsel failed to obtain telephone records of text
communications between [Appellant] and the victim
immediately prior to the alleged assault;
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1
18 Pa.C.S.A. §§ 901, 3502, 3125, 3503, 2709.1, 2902, 2903, and 3126,
respectively.
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5. Trial counsel failed to enlist the services of an investigator to
assist in [Appellant’s] defense.
Appellant’s Brief at 12.
Initially, we note:
We review an order [denying] a petition under the PCRA in the
light most favorable to the prevailing party at the PCRA level.
This review is limited to the findings of the PCRA court and the
evidence of record. We will not disturb a PCRA court’s ruling if it
is supported by evidence of record and is free of legal error.
This Court may affirm a PCRA court’s decision on any grounds if
the record supports it. We grant great deference to the factual
findings of the PCRA court and will not disturb those findings
unless they have no support in the record. However, we afford
no such deference to its legal conclusions. Further, where the
petitioner raises questions of law, our standard of review is de
novo and our scope of review is plenary.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.Super. 2012) (citations
omitted).
All of Appellant’s claims allege the ineffective assistance of trial
counsel. In analyzing claims of ineffective assistance of counsel, we
presume that counsel was effective unless the PCRA petitioner proves
otherwise. Commonwealth v. Williams, 557 Pa. 207, 732 A.2d 1167,
1177 (1999). In order to succeed on a claim of ineffective assistance of
counsel, Appellant must demonstrate (1) that the underlying claim is of
arguable merit; (2) that counsel's performance lacked a reasonable basis;
and (3) that the ineffectiveness of counsel caused Appellant prejudice.
Commonwealth v. Johnson, 600 Pa. 329, 966 A.2d 523 (2009). “[Where]
the underlying claim lacks arguable merit, counsel cannot be deemed
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ineffective for failing to raise it.” Commonwealth v. Koehler, 614 Pa. 159,
36 A.3d 121, 140 (2012). Appellant bears the burden of proving each of
these elements, and his “failure to satisfy any prong of the ineffectiveness
test requires rejection of the claim of ineffectiveness.” Commonwealth v.
Daniels, 600 Pa. 1, 963 A.2d 409, 419 (2009) (citation omitted). With this
standard in mind, we address each of Appellant's claims.
With regard to Appellant’s claim that trial counsel was ineffective in
failing to present character witnesses on behalf of Appellant, Appellant is
required to demonstrate:
(1) the witness existed; (2) the witness was available; (3)
counsel was informed of the existence of the witness or counsel
should otherwise have known of him; (4) the witness was
prepared to cooperate and testify for Appellant at trial; and (5)
the absence of the testimony prejudiced Appellant so as to deny
him a fair trial. A defendant must establish prejudice by
demonstrating that he was denied a fair trial because of the
absence of the testimony of the proposed witness.
Commonwealth v. O’Bidos, 849 A.2d 243, 249 (Pa.Super. 2004) (internal
citations and quotation omitted).
Here, in rejecting Appellant’s claim, the PCRA court set forth the
following rationale in its opinion:
At the time of the PCRA hearing, Appellant testified that he
requested that trial counsel call character witnesses on his behalf
and that she did not do as he requested. [N.T., PCRA hearing,
7/21/16, at 6-7.] Appellant did not elaborate as to the identity
of any such witnesses or as to the testimony that they would
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have provided had they been called.2 [Id.] At the time of the
PCRA hearing, trial counsel testified that she did not call
character witnesses on Appellant’s behalf, because she was
aware of Appellant’s prior criminal history, involving a domestic
violence incident, involving his ex-wife[,] and trial counsel was
concerned that had character evidence been presented, it would
have opened the door to other damaging evidence that could
then have been presented by the Commonwealth. [Id. at 13.]
Trial counsel testified that she did not feel that such disclosures
would have been in the best interests of [Appellant]. [Id.]
PCRA Court Opinion, filed 10/11/16, at 4-5 (footnote added).
Based on the aforementioned, the PCRA court concluded that Appellant
did not meet his burden as he did not establish the identity of any character
witnesses who would have been prepared to cooperate and testify favorably
for him. Id. at 5. Alternatively, the PCRA court noted that trial counsel
provided a reasonable, strategic basis for not calling character witnesses, in
general, since such evidence would “open the door” for the Commonwealth
to cross-examine the witnesses concerning bad-character evidence. Id.
We agree with the PCRA court’s sound reasoning and conclude
Appellant is not entitled to relief on this ineffective assistance of counsel
claim. Commonwealth v. Hull, 982 A.2d 1020, 1023 (Pa.Super. 2009)
(“Counsel has a reasonable, strategic basis for not calling character
witnesses if he has a legitimate reason to believe that the Commonwealth
would cross-examine the witnesses concerning bad-character evidence.”)
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2
During the PCRA hearing, the PCRA court asked Appellant for the identity
of the alleged character witnesses, and Appellant indicated that he did not
have a list. N.T., PCRA hearing, 7/21/16, at 7.
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(citations omitted)); O’Bidos, supra (setting forth requirements to
demonstrate counsel was ineffective in failing to present witnesses).
With regard to Appellant’s claim that trial counsel was ineffective in
failing to obtain and present documentation regarding a similar claim of
sexual abuse the victim allegedly made against her ex-husband in Skokie,
Illinois, we conclude that Appellant is not entitled to relief.
During the PCRA hearing, Appellant relevantly testified as follows on
direct-examination:
Q: Okay. All right. All right. My next question, did you make
[trial counsel] aware of a similar claim made by the victim in
Skokie, Illinois now?
A: Yes, sir. I did.
Q: And, did she follow up and get any type of documentation
relating to that claim?
A: I told her toward the end of November, early December of
2014 about this other, this similar claim. And, I found out that
she had called, but never, she never subpoenaed anything. She
called, I believe, in March, April, and maybe [ ] May or June.
But, she never subpoenaed anything.
And, we had never gotten anything from Skokie, Illinois
Police Department.
N.T., PCRA hearing, 7/21/16, at 7-8.
Trial counsel relevantly testified as follows on direct-examination
during the PCRA hearing:
Q: Okay. Thank you. With regards to the allegations that
something about a prior claim or present documentation from a
similar claim by the victim in Skokie, Illinois. What can you tell
us about that?
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A: [Appellant] made me aware of a, he told me about, he said
that there was an incident in Skokie, Illinois in 2006, between
the victim in this case, [] and her ex-husband.
Where, she had, apparently, made similar accusations
against the ex-husband to what she made in the underlying case
here.
I did request, I did make a Freedom of Information Act
request of the village of Skokie. That request was transmitted to
them via email on March 9th of 2015. I received a response back
from them indicating that, that request was in progress as of
March 10th. So, I know that they received it.
Q: Did you ever receive anything by way of records in regard to
the victim in Skokie, Illinois?
A: I did not. No.
Q: So what, did you, strike that. So, there are no records from
Skokie, Illinois, but you did make a request for them?
A: I did make a request, and I did not receive anything in
response to that request. No.
Q: You were the defense counsel at the trial?
A: I was.
***
Q: During that trial, did, was there any [sic] anything brought up
about the Skokie, Illinois alleged claim?
A: My recollection, I believe [Appellant], himself actually had
mentioned that during his testimony.
Q: Okay. And, is it fair to say that he testified about this issue
[that allegedly occurred] in Skokie, Illinois?
A: I believe he did, to the best of my recollection, I believe he
did.
Id. at 13-18.
A review of the jury trial transcript confirms that Appellant testified at
trial as follows on direct-examination regarding the alleged Skokie, Illinois
incident:
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A: At 6:30 in the morning or 7:30 in the morning our time, 6:30
Chicago time, [the victim] calls me crying and drops the phone.
And, her ex-husband gets on the phone, and I hear her yelling, I
hate you, Joe. Why the F did you do that?
And she gets back on the phone. I said, what happened?
She said, he took advantage of me while I was passed out. And,
I could not believe this. I told her, I said, you need to call the
cops. She called Skokie Police, hung up with me because they
were there.
Q: Did she later tell you anything different about that incident?
A: Well, a week later, she was at the house with me, again, in
my trailer, where the Sheetz is now in North Warren. I was in
the trailer park there. And, we were drinking and I asked her
about it.
I said, well, did you put your legs around him? She looked
at the floor. And, I said, just tell me. She kind of nodded her
head and said, yes.
I said, did you put your arms around him? She said, yes. I
said, did you kiss him? She said, yes. Then I said, he didn’t
rape you [.] I said, you cheated on me.
And, she began to cry, begging me, please don’t leave me.
Please, please don’t leave. We will work it out. Don’t worry, we
can work this out. We can work anything out.
Q: So, she admitted to you she wasn’t faithful?
A: Yes. She admitted to me. She also had said that she was
upset with the police in Skokie, because they had walked in the
house, and instead of saying, Mr. St. Clair, they called him by his
first name.
But, it’s still the fact, you know, she is, she had done this
back in 2006. And I even asked her, I said, why? She said,
because I felt comfortable with him. I did. I felt really
comfortable with him.
N.T., Trial, 8/13/15, at 156-57.
Based on the aforementioned, the PCRA court rejected Appellant’s
ineffectiveness claim for the following reasons:
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1) The alleged Illinois incident is remote in time; 2) Appellant did
not present any documentation of the incident at the time of his
PCRA hearing and thus failed to establish that any such
documentation existed; 3) Trial counsel sought to discover the
existence of such documentation through the proper channels
and was unable to substantiate the existence of such evidence
despite her efforts; and 4) Even if such evidence did exist, trial
counsel[’s] failure to obtain and present documentation from a
similar claim by the victim from Skokie, Illinois, did not present a
reasonable probability that the outcome of the proceedings
would have been different given the fact that Appellant was
provided with a full and ample opportunity to testify[, and in fact
did testify] as to these matters at the time of his trial.
PCRA Court Opinion, filed 10/11/16, at 6.
The PCRA court’s determination is supported by the evidence of record
and is free of legal error. Ford, supra. Simply put, Appellant has failed to
demonstrate the three prongs necessary to establish a claim of
ineffectiveness. See Johnson, supra.
With regard to Appellant’s claim that trial counsel was ineffective in
failing to present lay or expert evidence of whether the victim had a mental
illness that affected her memory, we conclude Appellant is not entitled to
relief.
Our Supreme Court has relevantly held as follows:
When a witness suffers from a mental disability relevant to his or
her ability to accurately observe, recall or report events, the jury
must be informed of the disability in order to assist it in properly
assessing the weight and credibility of the witness's testimony.
The evidence can be said to affect credibility when it shows that
the witness’s mental disorganization impaired his or her capacity
to observe an event at the time of its occurrence, to maintain a
clear recollection of it, or to communicate the observation
accurately and truthfully at trial.
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Commonwealth v. Davido, 630 Pa. 217, 106 A.3d 611, 637 (2014)
(citations omitted).
Initially, we note that, aside from his own self-serving testimony,
which the PCRA court was free to reject, Appellant did not offer any evidence
at the PCRA hearing establishing that the victim suffered from a mental
illness, which affected her memory at the time of or after the incident at
issue. Moreover, as trial counsel testified at the PCRA hearing, Appellant
informed trial counsel that there was no indication the victim was actively
involved in any type of psychological or psychiatric treatment. N.T., PCRA
hearing, 7/21/16, at 19. Thus, trial counsel noted that there was no treating
physician who could offer any kind of opinion regarding whether the victim
suffered from a mental illness and, if so, whether such would have affected
her memory. Id. In any event, trial counsel testified that the victim
admitted at trial that her memory was “faulty” and not “perfect or [] clear on
what had taken place” such that the defense “already had the
acknowledgment that [the victim] couldn’t remember well enough.” Id.
Based on the testimony presented at the PCRA hearing, the PCRA
court concluded trial counsel had a reasonable, strategic basis for not
presenting lay or expert evidence of whether the victim had a mental illness
that would affect her memory and, additionally, since the victim admitted
that her memory was faulty, Appellant was not prejudiced. PCRA Court’s
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Opinion, filed 10/11/16, at 7. The PCRA court’s determination is supported
by the evidence of record and is free of legal error. Ford, supra.
With regard to Appellant’s claim that trial counsel was ineffective in
failing to obtain telephone records of text communications between
Appellant and the victim which occurred immediately prior to the alleged
assault, we conclude Appellant is not entitled to relief.
At the PCRA hearing, trial counsel testified that she, in fact, obtained
the telephone records at issue. N.T., PCRA hearing, 7/21/16, at 20.
Specifically, trial counsel testified:
[T]he Commonwealth provided to me the entire disk with
the data dump from the whole phone. There were 4,000 some
pages worth of information there.
This was provided to me literally on the eve of trial. This
was provided to me [at] approximately 3:00 o’clock, I believe,
the day before; maybe it was two days before, if I am
remembering correctly.
I did speak to [Appellant] about that at the time because I
was concerned about being able to review all of that in the time
period that we had left between when I received them and when
the trial was going to take place.
And, he did not want the trial to be continued. He wanted
it over with. He wanted it done with. He wanted to move on
with his life. And, he told me that the, he didn’t feel that the
text messages would show anything that helpful, anyway.
I did review all of the text messages, anyway. And, I
couldn’t find anything that would have contradicted that he had
no contact with [the victim] within the two weeks prior.
And, I was also concerned reviewing them that there were
messages in there that, where she is advising him to stop
contacting her and things like that. And, I was concerned that if
we tried to being that up, it would open the door to the rest of
those messages also coming in.
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Id. at 20-21.
As was within its province, the PCRA court found trial counsel’s
testimony to be credible. See Ford, supra. Specifically, the PCRA court
concluded that trial counsel “not only obtained the records at issue, but also
reviewed them and ultimately reached the conclusion that there was nothing
that would have been helpful to Appellant. In fact, trial counsel felt that
some of the records would [] be potentially harmful to Appellant.” PCRA
Court Opinion, filed 10/11/16, at 8. Accordingly, the PCRA court found no
merit to Appellant’s claim and, additionally, that trial counsel had a
reasonable basis for not utilizing the telephone records. The PCRA court’s
determination is supported by the evidence of record and is free of legal
error. Ford, supra.
With regard to Appellant’s claim that trial counsel was ineffective in
failing to enlist the services of an investigator to assist in Appellant’s
defense, it is well-settled that “the [f]ailure of trial counsel to conduct a
more intensive investigation or to interview potential witnesses does not
constitute ineffective assistance of counsel, unless there is some showing
that such investigation or interview would have been helpful in establishing
the asserted defense.” Commonwealth v. Pursell, 555 Pa. 233, 724 A.2d
293, 306 (1999) (citations omitted).
Here, during the PCRA hearing, Appellant relevantly testified as follows
on direct-examination:
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Q: Okay. At any time were you aware whether or not [trial
counsel] had enlisted the services of an investigator to assist in
your defense?
A: I was never even offered about it. She never spoke
about it. And, being she is [a] lawyer, I left it in her hands
thinking that it was the right thing.
Q: Okay. Okay?
A: So, no. She never even mentioned an investigator.
N.T., PCRA hearing, 7/21/16, at 9.
Trial counsel admitted she did not enlist the services of an investigator
and, explained, in relevant part, the following:
The reason for that was the, this incident was, there was
no indication whatsoever that this occurred in any way or in any
place other than inside a private residence, between two
individuals.
There were no witnesses. No eye witnesses identified by
[Appellant] that would have needed interviewing. There were
two friends of [the victim’s] that had been with [the victim] prior
to the incident.
But, their statements were provided to me as part of
discovery. I simply didn’t feel that it was necessary to employ
the services of an investigator. I didn’t think it would reveal
anything else.
Id. at 21-22.
Based on the aforementioned, we agree with the PCRA court that
Appellant failed to demonstrate that an investigator would have been helpful
to his defense. See PCRA Court Opinion, filed 10/11/16, at 9-10.
Accordingly, trial counsel cannot be deemed ineffective on this basis. See
Pursell, supra.
For all of the foregoing reasons, we affirm.
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Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/21/2017
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