Com. v. Trusty, G. ( 2023 )


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  • J-S38007-22
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    GENOA TRUSTY                               :
    :
    Appellant               :   No. 221 EDA 2022
    Appeal from the PCRA Order Entered December 14, 2021
    In the Court of Common Pleas of Delaware County Criminal Division at
    No(s): CP-23-CR-0005214-2016
    BEFORE: KUNSELMAN, J., MURRAY, J., and SULLIVAN, J.
    MEMORANDUM BY SULLIVAN, J.:                             FILED MARCH 29, 2023
    Genoa Trusty (“Trusty”) appeals from the order denying his petition for
    relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
    Between 2010 and 2013, Trusty sexually abused T.B. (“the victim”), his
    children’s half-sibling, on multiple occasions beginning when the victim was
    nine years old. The victim finally revealed the abuse to her grandmother, and
    the police arrested Trusty.2 Trusty rejected the Commonwealth’s plea offer of
    five to ten years of imprisonment, and Trusty elected to proceed to a jury trial.
    The jury convicted Trusty of corruption of minors, involuntary deviate sexual
    intercourse, and two counts of aggravated indecent assault of a child. 3 The
    ____________________________________________
    1   See 42 Pa.C.S.A. §§ 9541-9546.
    2Trusty had prior convictions for corruption of minors relating to a different
    child.
    3   The jury found Trusty not guilty of two counts of rape of a child.
    J-S38007-22
    trial court sentenced Trusty to an aggregate sentence of one hundred and
    twenty-four (ten years and four months) to three hundred and twenty-four
    months (twenty-seven years) of imprisonment. This Court affirmed Trusty’s
    judgment of sentence. See Commonwealth v. Trusty, 
    194 A.3d 678
     (Pa.
    Super. 2018) (unpublished memorandum).4
    Trusty filed a timely PCRA petition alleging that trial counsel was
    ineffective, inter alia, for failing to prepare the case for trial and for failing to
    interview    and    call   witnesses.      See   PCRA   Petition,   8/2/19,   at   4-5
    (unnumbered). On April 30, 2021, and September 13, 2021, the trial court,
    who later denied the PCRA petition that is the subject of this appeal, held a
    bifurcated evidentiary hearing on the petition at which it heard the testimony
    of Trusty, his sister, Esmira (“Esmira”),5 his mother, Carla (“Carla”), and trial
    counsel, James Marsh, Esquire (“Attorney Marsh”).              Trusty testified that
    Attorney Marsh never discussed the case with him before trial and failed to
    convey a plea offer of five-to-ten years of imprisonment. See N.T., 4/30/21,
    at 14-16. He testified that Attorney Marsh never came to see him in prison
    before the preliminary hearing, wrote to him, telephoned him, or gave him
    any information about the defense. See id. at 31-38. Trusty also testified
    that Attorney Marsh did visit him after the preliminary hearing but would not
    ____________________________________________
    4Trusty did not file a petition for allowance of appeal or petition for a writ of
    certiorari.
    5The trial transcript spells Trusty’s sister’s name “Esmira.” Trusty’s appellate
    brief gives his sister’s name as “Asmyra.” See Trusty’s Brief at 10.
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    listen to him or discuss trial strategy.     See id. at 17-22, 31-38.        Trusty
    testified that he did not have a chance to tell Attorney Marsh the name of his
    witnesses or that he had a physical injury limiting his mobility at the time the
    alleged abuse began, and he did not discuss with Attorney Marsh whether he
    should testify. See id.
    On cross-examination at the PCRA hearing, Trusty testified that he
    would never have accepted the plea offer and did not want to request a lower
    plea offer. See id. at 42-45. Trusty confirmed that the trial court conducted
    an extensive pre-trial colloquy concerning the five-to-ten-year plea offer on
    November 7, 2016, during which he testified that Attorney Marsh had
    discussed the plea, discovery, and trial strategy with him, and Attorney Marsh
    had answered any questions to his satisfaction. See id. at 42-46. Trusty also
    acknowledged that before trial Attorney Marsh had successfully litigated an in
    limine motion concerning text messages, and that after an extensive colloquy
    at trial, he told the court he did not want to testify, was satisfied with counsel’s
    representation, and had no questions. See id. at 47-48, 51-53.
    Attorney Marsh testified at the PCRA hearing that he visited Trusty in
    prison having previously sent him the criminal complaint, affidavit of probable
    cause and discovery, and discussed trial strategy with Trusty. Attorney Marsh
    testified that Trusty never mentioned any possible witnesses who could testify
    on his behalf, and that no family member had told him prior to trial they
    wanted to testify.    See id. at 64-74. Attorney Marsh also testified that he
    advised Trusty not to testify. See id. at 104-06.
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    At the PCRA hearing, Esmira testified that in late 2009, she and her
    sister and several other people lived with Trusty in a small house where the
    victim did not live. She testified that it would have been impossible for the
    victim to be alone with Trusty in the house for him to be able to abuse her.
    See N.T., 9/3/21, at 20-22, 25, 31. She also said her mother, Carla, was
    prepared to testify about Trusty’s good character.      See id. at 25-27.     On
    cross-examination, Esmira testified that she knew that the victim had texted
    a cousin repeatedly about Trusty’s abuse, and that during the trial she,
    Esmira, had written and issued profane posts about the prosecutor and the
    trial. See id. at 33, 35-38.6 PCRA counsel proffered that Carla would testify
    that Trusty could not have been alone with the victim in the house where the
    abuse of which Trusty was convicted occurred. See id. at 47. Carla testified
    that Attorney Marsh told her he did not need her to testify. See id. at 51-54.
    The parties stipulated that PCRA counsel’s paralegal would testify that she did
    not find a prison record of a visit from Attorney Marsh to Trusty during “the
    duration of his trial case.” See id. at 6-7.
    At the conclusion of the hearing, the court invited the parties to submit
    briefs, which they later did. On December 13, 2021, the court denied Trusty’s
    PCRA petition. Trusty filed a timely notice of appeal, and he and the trial court
    complied with Pa.R.A.P. 1925.
    ____________________________________________
    6  Among other statements, Esmira called the Delaware County District
    Attorney a “dickhead,” and referred to the trial prosecutor as a “sick-looking
    bitch,” and expressed a desire that she “choke on her coffee.” See N.T.,
    9/13/21, at 38.
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    Trusty presents the following issues for our appellate review, which we
    have reordered for ease of disposition:
    1)    Whether the court below erred in denying [Trusty’s] petition
    for post-conviction collateral relief since he proved by a
    preponderance of the evidence that trial counsel was
    ineffective by failing to properly communicate with [Trusty]
    during the course of representation?
    2)    Whether the court below erred in denying [Trusty’s] petition
    for post-conviction collateral relief since he proved by [a]
    preponderance of the evidence that trial counsel was
    ineffective by failing to properly prepare for trial?
    Trusty’s Brief at 5 (italics omitted).
    This Court’s standard of review regarding an order denying a PCRA
    petition is whether the determination of the PCRA court is supported by the
    evidence of record and free of legal error.           See Commonwealth v.
    Kretchmar, 
    189 A.3d 459
    , 462 (Pa. Super. 2018). 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. See Commonwealth v. Dozier,
    
    208 A.3d 1101
    , 1103 (Pa. Super. 2019).         We grant no such deference to the
    PCRA court’s legal conclusion, over which our we exercise a de novo standard
    of review and a plenary scope of review. 
    Id.
    To prevail on a claim of ineffective assistance of counsel, an appellant
    must prove that:
    the underlying claim is of arguable merit, counsel’s performance
    lacked a reasonable basis, and counsel’s ineffectiveness caused
    him prejudice. Prejudice in the context of ineffective assistance
    of counsel means demonstrating there is a reasonable probability
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    that, but for counsel’s error, the outcome of the proceeding would
    have been different. . .. Failure to establish any prong of the test
    will defeat an ineffectiveness claim.
    Commonwealth v. Smith, 
    995 A.2d 1143
    , 1150-51 (Pa. 2010) (internal
    citations and quotations omitted).      Counsel is presumed effective.       See
    Commonwealth v. Hancharik, 
    633 A.2d 1074
    , 1078 (Pa. 1993).
    Trusty’s first claim asserts trial counsel’s failure to communicate
    effectively through the course of his representation concerning a plea offer
    and defense strategy.     An attorney has a duty to consult with the client
    regarding important decisions, such as defense strategy.          Although that
    obligation does not require assent to every tactical decision,
    certain decisions regarding the exercise or waiver of basic trial
    rights are of such moment that they cannot be made for the
    defendant by a surrogate. A defendant . . . has the ultimate
    authority to determine whether to plead guilty, waive a jury,
    testify in his or her own behalf, or take an appeal. Concerning
    those decisions, an attorney must both consult with the defendant
    and obtain consent to the recommended course of action.
    Commonwealth v. Brown, 
    18 A.3d 1147
    , 1158 (Pa. 2011), quoting Florida
    v. Nixon, 
    543 U.S. 175
    , 187 (2004) (quotations, parenthetical, and internal
    citations omitted).
    Trusty asserts that he and trial counsel had only brief meetings in court
    and no opportunity to discuss trial strategy or the plea offer, and that Attorney
    Marsh did not visit him in prison during the duration of his case, and that he
    did not consent to Attorney Marsh’s trial strategy, all of which he alleges
    deprived him of the opportunity to participate in his defense.
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    In its opinion, the PCRA court found that Attorney Marsh sent Trusty the
    criminal complaint, probable cause affidavit, and discovery. See PCRA Court
    Opinion, 6/6/22, at 13-14. The PCRA found that Trusty and Attorney Marsh
    had made statements in court prior to trial that expressly contradicted these
    assertions: both said they had opportunities to discuss trial strategy.      The
    court cited Trusty’s agreement with Attorney Marsh’s statements that he and
    Trusty had discussed trial strategies, “had plenty of time to talk about the
    [plea] offer,” and Trusty did not tell Attorney Marsh to seek a lower plea offer.
    See id. at 15-17. The PCRA court also cited Trusty’s additional, affirmative
    assertion that he wanted to go to trial, and his testimony at the PCRA hearing
    that he never had the intention to accept the plea offer. See id. at 18.7 The
    PCRA court also noted Attorney Marsh’s successful litigation of a pre-trial
    motion to preclude the admission of some of the victim’s text messages. See
    id. at 18-19. From this evidence and Attorney Marsh’s successful strategy of
    obtaining a not guilty verdict on the charges of rape of a child, the PCRA court
    rejected as meritless Trusty’s claim that counsel failed to communicate
    effectively and prepare for trial. See id. at 13-14, 19-22.
    We perceive no error in the PCRA court’s rejection of Trusty’s claims
    that Attorney Marsh failed to consult with him concerning the plea offer or trial
    ____________________________________________
    7The PCRA court also cited the letters Attorney Marsh sent to Trusty in prison
    soliciting any questions or concerns he had, to which neither Trusty nor
    anyone associated with him ever responded. See PCRA Court Opinion,
    4/6/21, at 19-20, N.T. 4/30/21, 69-70, 73.
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    strategy.    Trusty told the trial court during his pre-trial rejection of the
    Commonwealth’s plea offer that he had discussed the plea offer with counsel,
    wanted to go to trial and was not interested in soliciting a lower offer; Trusty
    also testified at the PCRA hearing that he would never have accepted the plea
    offer. See N.T., 4/30/21, at 42-46. Trusty’s claim that Attorney Marsh failed
    to discuss the plea offer with him fails because he cannot show that but for
    counsel’s alleged ineffectiveness, he would have accepted the plea offer. See
    Lafler v. Cooper, 
    566 U.S. 156
    , 164 (2012).
    Nor do we perceive error in the PCRA court’s rejection of Trusty’s claim
    that Attorney Marsh failed to consult with him about trial strategy and did not
    properly prepare for trial. Trusty repeatedly acknowledged to the trial court
    that Attorney Marsh had consulted with him about trial strategy and, as the
    trial court notes, Attorney Marsh successfully litigated a motion in limine
    precluding the admission of some of the victim’s texts and also obtained an
    acquittal on the most serious charges. Trusty, accordingly, has failed to prove
    arguable merit and from counsel’s alleged ineffectiveness concerning pre-trial
    preparation. For these reasons, Trusty is due no relief on his first claim. See
    Smith, 995 A.2d at 1150-51.
    Trusty’s second issue asserts that trial counsel filed to investigate or
    interview defense witnesses and present his sister’s and his mother’s
    testimony.    Counsel has a duty to undertake reasonable investigations,
    however even where known eyewitnesses exist, counsel is not per se
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    ineffective for failing to investigate them. See Commonwealth v. Johnson,
    
    966 A.2d 523
    , 536 (Pa. 2009). A claim of ineffectiveness for failing to call a
    witness requires proof that: (1) the witness existed; (2) the witness was
    available to testify for the defense; (3) counsel knew or should have known
    of the witness’s existence; (4) the witness was willing to testify for the
    defense; and (5) the absence of the witness’s testimony was so prejudicial
    that it denied the defendant a fair trial.          See Commonwealth v.
    Washington, 
    927 A.2d 586
    , 599 (Pa. 2007).
    Trusty claims that Attorney Marsh knew about his sister and mother; his
    sister repeatedly contacted Attorney Marsh to tell him that she had important
    information about the case; and his sister and mother would have provided a
    first-hand account of the conditions at the home to establish that the abuse
    could not have occurred there and that the victim was lying.
    The PCRA court cited trial counsel’s testimony that no member of the
    family attempted to contact him and that, as a result of his interactions with
    them at trial, he would not have called them as witnesses. The court also
    stated that Trusty had offered no proof to corroborate his claims that his family
    members attempted to contact counsel.          The court also concluded that
    Esmira’s profane blogging during the course of the trial called into doubt the
    notion of calling her as a witness and found that the proposed testimony would
    not have affected the outcome of the trial. See PCRA Court Opinion, 6/6/22,
    at 31-32.
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    We do not perceive error in the PCRA court’s ruling although we reach
    the same result for slightly different reasons.8 First, Trusty himself testified
    that he never told counsel that his sister and mother were available as
    witnesses. See N.T., 4/30/21, at 31-38. Accordingly, Trusty arguably failed
    to prove that counsel knew or should have known that they were available to
    testify. See Washington, 927 A.2d at 599. Second, to the extent that the
    witnesses sought to testify that the victim was simply lying, without any proof
    of that assertion, that is not the proper basis for a finding of ineffective
    assistance.     See generally Commonwealth v. Baumhammers, 
    92 A.3d 708
    , 725 (Pa. 2014) (claim of ineffectiveness for failure to call witness lacks
    merit if the proposed testimony would not have materially aided defendant).
    Additionally, Trusty’s sister’s profane blog attacks on the prosecutor, and her
    and her mother’s obvious bias as his family members, supports the PCRA
    court’s finding that the absence of their testimony did not cause prejudice.
    Finally, their proposed testimony about Trusty’s good character would have
    made them subject to cross-examination about his prior convictions for
    corruption of a different minor. See Commonwealth v. Van Horn, 
    797 A.2d 983
    , 988 (Pa. Super. 2002) (finding that trial counsel is not ineffective for
    declining to call character witnesses who could be cross-examined about the
    ____________________________________________
    8We may affirm the court's decision if there is any basis to support it, even if
    we rely on different grounds to do so. See Commonwealth v. Walsh, 
    125 A.3d 1248
    , 1552-53 (Pa. Super. 2015).
    - 10 -
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    defendant’s prior convictions).9 Thus, there is no basis for us to overturn the
    PCRA court’s legal conclusion that trial counsel was not ineffective.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 3/29/2023
    ____________________________________________
    9 Trusty is correct that in a case where the primary issue is credibility it is
    helpful to have a witness who is capable of undermining the Commonwealth’s
    witness. However, his citation of this Court’s decision in Commonwealth v.
    Matias, 
    63 A.3d 807
     (Pa. Super. 2013) (en banc) is inapposite. In that case,
    this Court affirmed a finding of ineffectiveness where the child who alleged
    two sexual assaults in Matias’s basement denied being in Matias’s basement
    at the time of the first assault, and counsel failed to call Matias’s daughter,
    who would have testified credibly that she was in the basement at the time
    and did not see an assault. See 
    id. at 813
    . Here, by contrast, Trusty does
    not proffer evidence that a witness would testify that they were in the house
    at the time of the alleged abuse, and the PCRA court found that Trusty’s
    mother and sister would not have made good witnesses.
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Document Info

Docket Number: 221 EDA 2022

Judges: Sullivan, J.

Filed Date: 3/29/2023

Precedential Status: Non-Precedential

Modified Date: 12/13/2024