Com. v. Limuli, R. ( 2021 )

J-S13035-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROSE MARIE LIMULI :
:
Appellant : No. 565 EDA 2020
Appeal from the PCRA Order Entered January 15, 2020
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0004644-2016
BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED JUNE 16, 2021
Rose Marie Limuli (Limuli) appeals from the January 15, 2020 order of
the Court of Common Pleas of Montgomery County (PCRA court) dismissing
her petition for relief pursuant to the Post-Conviction Relief Act without a
hearing.1 Limuli argues that trial counsel was ineffective because he failed to
question two of her character witnesses regarding her reputation for chastity,
good morals and decency. We affirm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541 et seq.
J-S13035-21
I.
A.
We glean the following facts from the certified record. During the 2015
to 2016 school year, Limuli was an English teacher at Upper Dublin High
School. In 2016, she was charged with twelve counts of institutional sexual
assault2 based on an illicit sexual relationship she engaged in with N.R., an
18-year-old senior at the school.
At trial, N.R. testified that at the beginning of the school year, he began
spending free time throughout the school day in Limuli’s classroom even
though he was not in her class. He said that he developed a friendly
relationship with her and eventually she entered her Snapchat3 username in
his phone. They began to talk via text message and Snapchat. N.R. said
Limuli soon began purchasing gifts for him, including clothing, sneakers,
sports equipment, alcohol and food.
After she began buying him these gifts, Limuli started making comments
that she “wanted something in return” or “want[ed] it,” which N.R. believed
meant that she was seeking something sexual. Notes of Testimony, 2/21/17,
at 44-45. He said that she also gripped his penis through his pants on multiple
____________________________________________
2 18 Pa.C.S. § 3124.2(a.2)(1).
3 Snapchat is a social media application that allows users to send each other
messages that are automatically deleted after a short period of time.
-2-
J-S13035-21
occasions when he was sitting in the back of her classroom. In November
2015, Limuli gave N.R. a ride home after school. Before taking him home,
she drove to a nearby dog park and performed oral sex on him in her car in
the parking lot. N.R. testified that the oral sex occurred on at least ten
occasions over several months, usually in the parking lot at the dog park. In
January 2016, Limuli drove to N.R.’s home to give him some baseball bats
that she had purchased for him. N.R. testified that on that occasion, they had
sexual intercourse in his house.
Throughout this period of time, Limuli continued to purchase gifts for
N.R. He would send her links to items and she would purchase them online.
Eventually she gave N.R. her credit card information and he began making
purchases on his own. N.R. testified that she bought things for him every
week and would ask what she would be getting in return. Over the winter
break, Limuli took N.R. shopping at the Limerick Outlet stores and purchased
items for him from True Religion, Nike and the liquor store near his home. He
said that he continued seeing Limuli because he wanted her to keep buying
things for him.
The Commonwealth presented copies of text messages between N.R.
and Limuli. One message N.R. sent to Limuli read “I need some grub. I didn’t
eat dinner last night.” Id. at 50. Limuli responded “I need something to eat
after school, too…” followed by a smiley face emoji. Id. at 50-51. In other
messages, Limuli wrote “I need you today…” and “Come on baby, you know I
-3-
J-S13035-21
love you.” Id. at 53-54. In December 2015, Limuli purchased a dirt bike for
N.R. for $930. Thereafter, she sent him a text message that read “You know
I have a life outside of getting stuff for you all the time. Will I see you after
detentions?” Id. at 59. When N.R. responded that he could not see her that
day, Limuli replied “Dude you’re killing me. It’s all want want with you.
Remind me again why I ordered you a freaking bike.” Id. at 59-60. The
Commonwealth introduced other text messages in which Limuli and N.R.
discussed purchases that he had made with her credit card and N.R. asked
Limuli for money and various items.
N.R. testified that the relationship continued until March or April 2016
but eventually there were rumors at school regarding his involvement with
Limuli. He denied the allegations when speaking with his friends and during
his first interview with Detective Michael Scarpato (Detective Scarpato). He
testified that at first, he did not want to get Limuli in trouble, but then she
told him that she intended to tell her family or her attorney that N.R. had
blackmailed her into making all the purchases. At that point, N.R. went to the
police station and disclosed the relationship to Detective Scarpato. N.R. had
deleted many of his messages with Limuli from his phone but he gave
Detective Scarpato the phone so that they could review it for evidence.
Limuli cross-examined N.R. at trial regarding discrepancies between his
testimony at an earlier habeas corpus hearing, his initial statement to
Detective Scarpato and his trial testimony. He admitted that he lied to his
-4-
J-S13035-21
friends and to Detective Scarpato about the relationship but said that Limuli
had asked him not to tell anyone. N.R. did not recall the specific dates for
any of the sexual conduct and offered conflicting testimony regarding how
many encounters there were throughout the months of November 2015
through April 2016. N.R. admitted to sending derisive messages about Limuli
to friends and to labeling her as “Fat Turkey” in the contacts on his phone.
Id. at 84, 90-93, 113-15. After N.R. spoke with police, he texted Limuli’s
credit card information to several friends and asked them to save it so he
could continue to make purchases after the police took his phone.
Detective Scarpato testified regarding his investigation. He confirmed
that N.R. denied the relationship in their first conversation but said he did not
think N.R. was telling the truth at the time because he was acting “very scared
and very nervous.” Id. at 121. Detective Scarpato extracted data from N.R.’s
phone and found 276 contacts between N.R.’s phone and Limuli’s phone.
Consistent with N.R.’s testimony, there were contacts during Thanksgiving
break and winter break. Detective Scarpato obtained information from
Snapchat that revealed that N.R. and Limuli exchanged hundreds of messages
on that application. He also obtained statements from Limuli’s credit card
company that corroborated N.R.’s testimony regarding the purchases Limuli
made for him, including the charge for the dirt bike and the purchases over
the winter break at the outlet stores.
-5-
J-S13035-21
Detective Scarpato obtained a search warrant to extract data from
Limuli’s phone and discovered many of the same messages. He found that
Limuli had saved N.R.’s number in her contacts as “Brenda.” Id. at 150-51.
Thousands of messages had been deleted from the phone. He discovered
messages Limuli sent to another student at Upper Dublin High School which
read “Why are you sending me a snap of [N.R.]? I get no love tonight. I
thought we were all go [sic] out tonight.” Notes of Testimony, 2/22/17, at
29. She also wrote “I’m clubbing with the girls…I need something,” “You guys
wanna be with the little girls,” and “Is my boy [N.R.] being good.” Id.
In another exchange with N.R., Limuli asked him to delete a Snapchat
message from her that he had saved on his phone. When he refused, she
wrote, “Thank you so much for making me sick to my stomach and throw up
with anger and disgust at myself for thinking that when someone shows love,
you get love in return. Again stupid me for believing in all of you guys.” Id.
at 33-34. On the day that N.R. went to Detective Scarpato to report the
relationship, he and Limuli had an exchange in which he accused her of
threatening to tell the police he was blackmailing her. He wrote “Listen, you
threatened to get me charges on blackmailing. For that, I can’t be cool with
you.” Id. at 37. Limuli responded, “You keep on telling me that if I don’t give
-6-
J-S13035-21
you bread,[4] you’re not going to have my back.” Id. She asked him multiple
times not to talk to the police. Id. at 36-39.
Limuli testified on her own behalf and contradicted N.R.’s version of
events. She explained that N.R. spent a lot of time in her classroom working
on his laptop or talking with friends. At the end of November, she noticed
N.R. sitting at her desk and using her computer. The next day, December 1,
2015, she received an order confirmation from Amazon for two pairs of men’s
boots that she had not ordered. She confronted N.R. about using her account
and he said, “If you know what’s good for you, you’ll leave the order alone.”
Id. at 54. N.R. told her that he had seen conversations on her cell phone
concerning an extramarital affair and that he would tell her husband if she
cancelled the order. Limuli said that she did not lock her cell phone and he
must have found it on her desk. She did not cancel the order because she did
not want N.R. to tell her husband about her affair.
Limuli testified that N.R. continued to ask her for large amounts of cash
and other items. She said that he would send her pictures of expensive items
and demand that she send confirmation that she ordered them. She said that
in addition to threatening to tell her husband about her affair, N.R. said that
he knew people “in jail” who would “shoot [her] for a hundred dollars.” Id.
at 57. She said that he ordered the dirt bike for himself and that he took her
____________________________________________
4 N.R. testified earlier in the trial that bread refers to money.
-7-
J-S13035-21
credit card information from her purse when she was not in the room. She
testified that N.R. escalated to making threats against her family, saying that
he would “make [her] son go missing.” Id. at 61. On one occasion he left a
picture of her son’s school on her desk with a note that said, “Look familiar?”
Id. She did not report the threats to the school or police because she was
afraid of him.
Regarding the trip to the outlet stores, Limuli said that while she was at
the outlets with her son, N.R. called her multiple times and she told him where
she was. She said that he then came to the outlets with a friend and
demanded that she make purchases for him. In January 2016, N.R. told Limuli
that he needed $70,000 for college and for her to rent a house for him for
spring break. She said at that point he told her that he “was look[ing] up
what happens with teachers and sexual relationships,” which she believed was
a threat. Id. at 66. She denied having any sexual relationship with him. She
said that he continued to ask her to buy things for him until April 2016, even
after the investigation was in progress.
On cross-examination, Limuli admitted that even though she said that
the threats began on December 1, 2015, there were twelve phone calls
between her and N.R. during the Thanksgiving break. The Snapchat logs also
confirmed 217 messages between the two of them prior to December 1, 2015.
She said that N.R. had told her to use Snapchat and put his information in her
phone. The Commonwealth produced an email dated November 4, 2015, sent
-8-
J-S13035-21
from Limuli’s account to N.R.’s mother praising N.R.’s character and work
habits. Limuli denied writing the email and said that N.R. must have sent it
from her computer. The Commonwealth also produced two messages that
Limuli sent to another student in January 2016 saying that she loved a group
of male students, including N.R., and would miss them when they graduated.
Id. at 104-05.
Limuli denied buying N.R. alcohol on the day that they went shopping
at the outlets. She said that she purchased liquor at the store in his
neighborhood, which was ten miles from her home, for use at her family’s
restaurant. She explained that he left a bag in her car and demanded that
she bring it to him. She did not have the picture of her son’s school that she
alleged N.R. had left for her and did not know where it was. She testified that
she thought the police would find all of N.R.’s threatening messages through
their investigation, but that she deleted them from her phone after he sent
her a Snapchat message that said, “Delete all or die.” Id. at 96. Finally,
Limuli admitted that the man with whom she was having an affair was a former
student who she had met at Upper Dublin High School. She testified that he
was 21 or 22 years old.
Limuli offered three character witnesses: Frederick Mumenthaler
(Mumenthaler) and Wilmer and Peggy Benner (collectively, the Benners).
Mumenthaler testified that he had known Limuli for six or seven years and
that she had a reputation in the community for being honest and law-abiding.
-9-
J-S13035-21
The Benners testified that they had known Limuli for 20 years and that she
had a reputation in the community for being honest, law-abiding and peaceful.
Following the reception of evidence, the jury found Limuli guilty of two
counts of institutional sexual assault and not guilty of the remaining counts.5
At each count, the trial court sentenced Limuli to 2 to 12 months of
incarceration, imposed concurrently. On the first count, the trial court
imposed an additional consecutive period of 3 years of probation. This Court
affirmed the judgment of sentence on July 9, 2018, and Limuli did not seek
further review. Commonwealth v. Limuli, 2099 EDA 2017, at *5 (Pa. Super.
July 9, 2018) (unpublished memorandum).
B.
On August 2, 2019, Limuli filed the instant timely PCRA petition.
Relevant to this appeal, she argued that trial counsel had been ineffective in
preparing and examining the Benners. She argued that in addition to asking
about her reputation for being honest, law-abiding and peaceful, trial counsel
should have asked the Benners about her reputation in the community for
chastity, good morals and decency. Limuli attached affidavits from each of
the Benners in support of her petition. The Benners both averred that if they
____________________________________________
5 Specifically, the jury found Limuli guilty of one count based on deviate sexual
intercourse and one count based on indecent contact. It found her not guilty
of nine counts based on deviate sexual intercourse and one count based on
sexual intercourse.
- 10 -
J-S13035-21
had been asked, they would have testified that they “knew of Ms. Limuli’s
reputation in the community for being a decent person who was known to be
of high moral character.” Petition for Relief Under the Post-Conviction Relief
Act, 8/2/19, Exhibits A & B.
The Commonwealth filed an answer and motion to dismiss the petition
arguing that in light of the evidence presented at trial, Limuli could not
establish that she was prejudiced by trial counsel’s failure to elicit this
character evidence. On December 20, 2019, the PCRA court issued a notice
of intention to dismiss the petition without a hearing pursuant to Pa.R.Crim.P.
907. Limuli filed a response to the notice and on January 15, 2020, the PCRA
court dismissed the petition. Limuli filed a timely notice of appeal. The PCRA
court did not order Limuli to file a concise statement of issues complained of
on appeal, but on January 29, 2021, it issued an opinion pursuant to Pa.R.A.P.
1925(a) addressing all the claims raised in Limuli’s petition.
II.
Limuli raises one issue on appeal: whether the PCRA court abused its
discretion by dismissing her claim that trial counsel was ineffective for failing
to ask the Benners about her reputation in the community for good morals
and decency.6 She argues that the central issue for the jury to weigh was
____________________________________________
6 “The standard of review of an order dismissing a PCRA petition is whether
that determination is supported by the evidence of record and is free of legal
error.” Commonwealth v. Weimer, 167 A.3d 78, 81 (Pa. Super. 2017).
(Footnote Continued Next Page)
- 11 -
J-S13035-21
N.R.’s credibility versus her own. She acknowledges that her character
witnesses testified that she had a reputation for being honest, law-abiding and
peaceful. However, she contends that in a case concerning sexual offenses,
her reputation for decency and good morals was additional evidence that may
have swayed the jury to credit her testimony over N.R.’s.
“To prove counsel ineffective, the petitioner must show that: (1) his
underlying claim is of arguable merit; (2) counsel had no reasonable basis for
his action or inaction; and (3) the petitioner suffered actual prejudice as a
result.” Commonwealth v. Sarvey, 199 A.3d 436, 452 (Pa. Super. 2018).
“[F]ailure to prove any of these prongs is sufficient to warrant dismissal of the
claim without discussion of the other two.” Commonwealth v. Robinson,
877 A.2d 433, 439 (Pa. 2005) (citation omitted). We presume that counsel
has rendered effective assistance. See Commonwealth v. Treiber, 121
A.3d 435, 445 (Pa. 2015).
Under Pa.R.E. 404(a)(2)(A), a defendant may offer evidence of her
reputation in the community for a character trait that is pertinent to the crime
____________________________________________
“The PCRA court’s findings will not be disturbed unless there is no support for
the findings in the certified record.” Id. (citation omitted). “[A] PCRA court
has discretion to dismiss a PCRA petition without a hearing if the court is
satisfied that there are no genuine issues concerning any material fact; that
the defendant is not entitled to post-conviction collateral relief; and that no
legitimate purpose would be served by further proceedings.”
Commonwealth v. Brown, 161 A.3d 960, 964 (Pa. Super. 2017) (citations
omitted).
- 12 -
J-S13035-21
charged. See Commonwealth v. Lauro, 819 A.2d 100, 109 (Pa. Super.
2003). “Evidence of good character is to be regarded as evidence of
substantive fact just as any other evidence tending to establish innocence and
may be considered by the jury in connection with all the evidence presented
in the case on the general issue of guilt or innocence.” Commonwealth v.
Hull, 982 A.2d 1020, 1023 (Pa. Super. 2009) (internal quotations & citation
omitted). Character evidence may be particularly important in a case that
depends on weighing the credibility of an accuser against the credibility of the
defendant. See id. at 1026-27.
Limuli cites Commonwealth v. Weiss, 606 A.3d 439 (Pa. 1992), in
support of her position. There, the defendant was charged with sexually
abusing his four-year-old daughter. The victim’s mother testified that the
victim acted unusual when she returned home from visiting her father and
that three days later, she discovered a cut on the victim’s vaginal area. The
defendant denied the allegations. On appeal, he argued that trial counsel was
ineffective for failing to call character witnesses who would have testified (1)
to his good character, and (2) that his estranged wife had bad character. Id.
at 441.
Our Supreme Court agreed that the claim had merit, stating
[i]n 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
reasonable doubt of guilt and, thus, require a verdict of not guilty.
- 13 -
J-S13035-21
Id. at 442. The Court determined that the failure to call character witnesses
was prejudicial under the circumstances of the case. The defendant and his
wife were involved in a custody dispute, the cut may have been inflicted after
the daughter left the defendant’s care, and the defense’s theory at trial was
that the wife had orchestrated the charges. Id. at 443. The Court held that
“[c]onsidering there was no overwhelming evidence of guilt in this case,
credibility of the witnesses was of paramount importance,” and, thus, the
failure to call character witnesses was prejudicial. Id.In dismissing Limuli’s claim, the PCRA court concluded that she had
failed to establish that she was prejudiced by the omission of her proffered
character evidence. The PCRA court pointed out that neither of the Benners’
affidavits stated that Limuli had a reputation for chastity, only decency and
good morals. It also found that in light of Limuli’s admission that she had
engaged in an extramarital affair with a former student, any testimony
regarding chastity, decency or good morals would not have been likely to
affect the outcome of the trial. See PCRA Court Opinion, 1/29/21, at 7-8.
Here, it was undisputed that Limuli was a teacher at Upper Dublin High
School and that N.R. was a student. The only factual issue for the jury to
resolve was whether any sexual contact had ever taken place between the
two. See 18 Pa.C.S. § 3124.2(a.2)(1). Limuli’s argument focuses primarily
on the credibility of N.R. as a witness, as he made prior inconsistent
statements early in the investigation denying the sexual relationship, and
- 14 -
J-S13035-21
there were discrepancies between his testimony at the habeas corpus hearing
and his testimony at trial.7 However, there was significant corroborating
evidence to support N.R.’s allegations and undermine Limuli’s version of
events.
At trial, the Commonwealth offered numerous messages sent between
Limuli and N.R. as well as logs of hundreds of text messages, phone calls and
Snapchat messages. The messages corroborated N.R.’s timeline of events, as
they began in November 2015 and continued through the day that N.R.
reported the relationship to Detective Scarpato. In the messages, N.R. and
Limuli referred to each other as “baby” and “bae,” and Limuli wrote “Come on
baby, you know I love you,” “I need you today,” and made a sexual innuendo
in response to N.R. asking her for money for food. Notes of Testimony,
2/21/17, at 50-54. After Limuli purchased the $930 dirt bike for N.R., she
sent him messages that read, “You know I have a life outside of getting stuff
for you all the time. Will I see you after detentions?” and “Dude you’re killing
me. It’s all want want with you. Remind me again why I ordered you a
freaking bike.” Id. at 59-60.
In January 2016, well after Limuli alleged N.R. began threatening her,
she sent messages to another student at the school saying that she was out
____________________________________________
7 In both proceedings, N.R. was unequivocal that sexual contact occurred in
the form of oral sex, sexual intercourse and touching his penis through his
clothing. However, his testimony differed on issues such as how many
incidences occurred in each month or when the sexual relationship began.
- 15 -
J-S13035-21
“clubbing with her friends,” and “I thought we were all go [sic] out tonight,”
asking “Is my boy [N.R.] being good,” and saying, “You guys wanna be with
the little girls.” Notes of Testimony, 2/22/17, at 29. She also sent the student
messages lamenting that she would miss N.R. and other male students when
they graduated and saying, “I really do love you guys.” Id. at 104-05. While
Limuli claimed that N.R. sent her messages threatening her during this time,
no threats were recovered. The only messages related to blackmail involved
N.R. accusing Limuli of lying about him to the police. In the same conversation
Limuli repeatedly asked N.R. not talk to the police. Id. at 36-39.
Unlike Weiss, supra, the evidence at trial in this case did not depend
entirely on the jury crediting one witness’s testimony over another’s. Rather,
there was substantial corroborating evidence supporting N.R.’s version of
events and undermining Limuli’s claim that she had been frightened of and
threatened by N.R. for months. Further, the character evidence that was
presented at trial squarely addressed the issue of Limuli’s credibility, while
counsel in Weiss failed to introduce any character evidence. See also
Commonwealth v. Harris, 785 A.2d 998, 1000 (Pa. Super. 2001)
(defendant was prejudiced by trial counsel’s failure to call available character
witnesses at all). Three character witnesses testified that Limuli had a
reputation in the community for honesty. The jury could have credited this
evidence to conclude that her testimony was more trustworthy than N.R.’s,
particularly because N.R. admitted he lied during the investigation. However,
- 16 -
J-S13035-21
it chose not to do so. We cannot conclude that additional testimony related
to decency or good morals would have altered the outcome of the case when
the jury had already heard testimony about Limuli’s reputation for honesty.
Limuli faults the PCRA court and the Commonwealth for relying on her
testimony regarding her extramarital affair in support of their conclusions that
she suffered no prejudice. She claims that because there was no evidence
that her extramarital affair began while the individual was still a student at
her school, the jury could still have credited her evidence that she had a
reputation for decency and good morals. This argument ignores the fact that
the relationship was an extramarital affair that Limuli admitted to concealing
from her husband. She testified that she initially acquiesced to N.R.’s
demands so that he would not tell her husband that she was having an affair.
These circumstances alone, unrelated to the age of her partner or how they
met, would have undermined evidence related to her reputation for decency
and good morals. As a result, we conclude that the PCRA court did not abuse
its discretion in dismissing Limuli’s petition without an evidentiary hearing as
she failed to establish that she was prejudiced by trial counsel’s failure to
question her character witnesses regarding her reputation for decency and
good morals.
Order affirmed.
- 17 -
J-S13035-21
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/16/2021
- 18 -