Com. v. Convery, R. Jr. ( 2021 )

J-A07003-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT CONVERY JR. :
:
Appellant : No. 902 MDA 2020
Appeal from the PCRA Order Entered June 17, 2020
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0005271-2015
BEFORE: BOWES, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED: AUGUST 16, 2021
Robert Convery, Jr. appeals from the denial of his Post-Conviction Relief
Act (“PCRA”) petition. After careful review, we affirm.
In the fall of 2013, Pi Kappa Phi fraternity brothers, Appellant, Avery
Jones, Kyle Balga, and Allen Mummert were living at 1040 Pike Street in the
City of Reading, Pennsylvania where they were attending Albright College.
N.T. Jury Trial, 6/14-15, 2016, at 34-36. The brothers often hosted Pi Kappa
Phi affiliated events and parties. Appellant’s bedroom was located next to the
bathroom on the second floor. Id. at 37.
On December 6, 2013, the residents of 1040 Pike Street held their
annual Christmas date party. Id. at 39-40. Thomas Mitchell (“Mitchell”), a
fraternity brother and friend of Appellant, attended the party. At the party,
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* Former Justice specially assigned to the Superior Court.
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Mitchell imbibed beer, liquor, and wine over a five- or six-hour period, before
falling asleep on a couch that was located on the main floor of the residence.
Id. at 42. A photograph posted on Facebook, depicted Mitchell “passed out”
on the couch with a beer in his hand and an empty beer can laying on top of
him. Id. at 43, Appendix A. When Mitchell awoke, he was in Appellant’s
second-floor bedroom, his pants and shoes were off, and Appellant was
performing oral sex on him. Id. at 44. Mitchell could not remember how he
moved from the couch to Appellant’s room or when his pants were removed.
Id. at 44-46. Shocked by the assault, Mitchell immediately fled the residence.
Id. at 47.
The next morning, Appellant initiated a text conversation with Mitchell,
wherein he said that “he was really sorry” and that “it wouldn’t have happened
if he was sober.” Id. at 48. Mitchell did not know what had happened, so he
was “confused” and “angry” with Appellant. Id. at 48. However, Mitchell did
not save the messages or report the assault out of fear of public humiliation
and a desire to forget the incident. Id. at 49-51. Instead, Mitchell forgave
Appellant and permitted life to return to normal. Id. at 56.
The following school year, Appellant, Avery Jones, Kyle Balga, and Allen
Mummert moved to 1610 North 11th Street. Id. 37-39. Their new residence
continued to be the fraternity gathering spot. Mitchell still frequented
Appellant’s residence. Id. at 39. On November 22, 2014, Appellant and his
roommates were hosting a party. Mitchell arrived around one or two in the
morning after a night of bar hopping. Id. at 52-54. Mitchell was “heavily
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intoxicated” and fell asleep while talking to people in Appellant’s room. Id. at
55. Again, Mitchell awoke to find his pants missing and Appellant performing
oral sex on him. Id. at 57. Mitchell fled to his own residence. Id. at 58-59.
As in the aftermath of the first assault, Appellant apologized for his
actions through a text message conversation with Mitchell. Id. at 61-64.
Mitchell preserved the messages, wherein Appellant affirmed the existence of
a previous assault and asked Mitchell to pretend like “last night didn’t happen,”
blaming his actions on his intoxication level. Id. at 62-64. Mitchell was still
“afraid his peers would judge him” and did not report the assault. Id. at 66.
Two months later, the fraternity brothers threw another party at their
residence. Id. at 154. During the party, Appellant’s housemate and best-
friend, Avery Jones (“Jones”), consumed alcohol for four to six hours, before
going to sleep in his own room. Id. at 155. In the early morning hours of
February 9, 2015, Jones awoke to find his pants removed and Appellant
performing oral sex on him. Id. at 154-57. Jones pushed Appellant away,
left his room, and proceeded to another housemate’s room where he
immediately told him what happened. Id. at 159. The next day, Appellant
texted Jones asking for forgiveness and saying “that he had made a terrible
mistake.” Id. at 160. Over the next several days, Jones decided that he was
not going to report the incident and deleted the text messages because he
wanted to “wipe himself clean of the situation and having the text messages
reminded him of it.” Id. at 160.
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Meanwhile, Mitchell learned of the assault of Jones through another
fraternity brother, felt guilty that he had not reported Appellant’s earlier
assaults, and decided to speak with Albright’s public safety officer. Id. at 67,
108-13. Mitchell did not tell the officer the full extent of what happened,
because he was uncomfortable talking about it, but he did report “enough
information so that he knew what happened.” Id. at 118, 123. Afterwards,
Mitchell approached Jones to see if he would also come forward. Id. at 119-
20, 179. Jones met with Albright’s public safety officer, explaining what
happened to him. At the time Jones did not wish to pursue action against
Appellant. However, he “changed his mind after he had time to reflect.” Id.
at 196-97. At Mitchell’s request, the matter was referred to the local
authorities. Id. at 69. Appellant was arrested and charged with three counts
of Involuntary Deviate Sexual Intercourse (“IDSI”) and three counts of sexual
assault.
A jury trial was held on June 14, 2016, at which Appellant took the stand
in his own defense. Appellant represented that the first two incidents with
Mitchell were consensual and that Mitchell fabricated the sexual assault
allegations because he did not want anyone to know about his sexuality. Id.
at 211-12, 223-24. Appellant also testified that he slept in Jones’s bedroom
the night of the third incident, but that “nothing happened between them.”
Id. at 231. Appellant described his level of inebriation at all three events as
intoxicated but functioning. Id. at 211, 223, 230-31. Appellant also testified
that his step-sister, Alexandria Veight, was at the house and had knocked on
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his bedroom door during the second incident. Id. at 226-27. Appellant denied
texting Mitchell after the December 2013 incident, but confirmed that he sent
text messages after the November 2014 and February 2015 events. Id. at
245. Appellant explained that although the November 2014 encounter was
consensual, he “took the blame” because he didn’t want Mitchell “to be worried
about being caught or being called gay.” Id. at 234-35. Finally, Appellant
agreed that, while no assault happened, he texted with his then-best friend
Jones for the last time after the third incident and that Jones had no further
contact with him from that day forward. Id. at 247-48. Appellant had no
explanation for why his best friend suddenly cut off all contact with Appellant.
Id. The jury disbelieved Appellant’s version of events, convicting him of all
charges.
Following its assessment, the Pennsylvania Sexual Offender Assessment
Board (“SOAB”) recommended that Appellant be classified as a sexually
violent predator (“SVP”). However, the trial court rejected the SOAB’s
determination and concluded that Appellant did not meet the criteria of SVP
classification. At the IDSI counts, the trial court imposed three consecutive
sentences of four and one-half to ten years imprisonment. The sexual assault
convictions merged with the IDSI counts. Appellant received an aggregate
sentence of thirteen and one-half to thirty years imprisonment. Appellant filed
a post-sentence motion which was denied. A timely direct appeal followed in
which Appellant challenged the discretionary aspects of his sentence. On
February 15, 2018, we affirmed Appellant’s judgement of sentence. See
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Commonwealth v. Convery, 185 A.3d 1122 (Pa.Super. 2018) (unpublished
memorandum). On August 1, 2018, the Supreme Court denied Appellant’s
petition for allowance of appeal. See Commonwealth v. Convery, 190 A.3d
1126 (Pa. 2018).
Appellant filed a timely, counseled PCRA petition, asserting many
allegations of ineffective assistance of trial counsel, an accusation of witness
tampering by trial counsel, and an assertion that he had uncovered text
messages between himself and Mitchell that were sent after the first incident.
On August 21, 2019, the PCRA court held an evidentiary hearing, at which
Appellant, Katelyn Johnson, who posted the photograph of Mitchell on
Facebook, Alexandra Veight, trial counsel, and Robert Convery, Sr. testified.
At the completion of the hearing, the PCRA court ordered that the notes of
testimony be transcribed and that post-hearing briefs be submitted. Both the
Commonwealth and Appellant filed briefs in support of their positions. On
June 17, 2020, the PCRA court issued an order and opinion denying the
petition. This appeal followed. Both PCRA counsel and the trial court complied
with the mandates of Pa.R.A.P. 1925.
Appellant raises the following issues for our review:
A. Whether the [PCRA] court erred in denying [Appellant’s PCRA]
petition for a claim of ineffective assistance of counsel for trial
counsel’s failure to move to sever the two cases, as they
involved different complainants, were not linked temporally,
did not otherwise meet any standard for consolidation, and
evidence of each would have been inadmissible at trial for the
other and where [Appellant] established the claim is of
arguable merit and [Appellant] established that counsel’s
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strategy was unreasonable as Appellant was prejudiced by this
as each allegation served as impermissible corroboration of the
other and thus improperly bolstered the credibility of each
complainant.
B. Whether the [PCRA] court erred in denying [Appellant’s PCRA]
petition for a claim of ineffective assistance of counsel for trial
counsel’s failure to thoroughly interview Ms. Alexandra Veight
pre-trial, prepare her to testify, and call her as an affirmative
defense witness where [Appellant] established that Ms. Veight
was known to the defense, her proffered testimony was known
to the defense, she was available to the defense, and she was
willing to testify at trial for the defense and [Appellant]
established that counsel’s strategy was unreasonable as
Appellant was prejudiced by counsel’s acts and/or omissions as
they deprived him of the affirmative presentation of Ms.
Veight’s exculpatory information.
C. Whether the [PCRA] court erred in denying [Appellant’s PCRA]
petition for a claim of ineffective assistance of counsel for trial
counsel’s failure to object to the prosecutor calling Ms.
Alexandra Veight solely for the purpose of impeaching her, and
further failed to object to the prosecutor implying that Ms.
Veight has an affirmative duty to report what she knew about
[Appellant’s] innocence to the police and that her failure to do
so was grounds for the jury to disbelieve her testimony and
permitted the prosecutor to paint her as part of a dishonest
defense, all in a case where credibility was paramount and
[Appellant] established that counsel’s strategy was
unreasonable as [Appellant] was prejudiced by counsel’s acts
and/or omissions as they deprived him of the affirmative
presentation of Ms. Veight’s exculpatory [information].
D. Whether the [PCRA] court erred in denying [Appellant’s PCRA]
petition for a claim of ineffective assistance of counsel for trial
counsel’s failure to thoroughly interview and present a vital
witness, namely Katelyn Johnson, who was known to the
defense, whose proffered testimony was known to the defense,
who was available to the defense, and who was willing to testify
for the defense at trial and [Appellant] established that trial
counsel’s strategy was unreasonable as [Appellant] was
prejudiced by trial counsel’s acts and/or omissions as they
deprived him of Ms. Johnson’s testimony which was critical to
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establish [Appellant’s] innocence as she had exculpatory
evidence to offer.
E. Whether the [PCRA] court erred in denying [Appellant’s PCRA]
petition for a claim of ineffective assistance of counsel for trial
counsel’s failure to properly handle any and all information,
evidence, and testimony regarding the text message
conversation between Mr. Convery and the first complainant,
Thomas Mitchell, after the alleged first incident wherein the
alleged incident is discussed in detail including that Mr. Mitchell
(alleged victim) held [Appellant’s] head during the sex act and
that Mr. Mitchell ejaculated as a result of the sex act, as counsel
failed to investigate and/or hire an investigator to retrieve the
aforementioned deleted text message conversation where the
messages were not cumulative of either Mr. Mitchell’s or
[Appellant’s] trial testimony about the first alleged incident and
where [Appellant] established the claim is of arguable merit
and [Appellant] established that counsel’s strategy was
unreasonable as [Appellant] was prejudiced by counsel’s act
and/or omissions as they deprived him of the affirmative
presentation of the text message conversation between
[Appellant] and Mr. Mitchell as without this missing favorable
information, no other evidence existed to flesh out the details
of the alleged first incident and to provide the mindset of both
participants immediately following the alleged first incident,
thereby supporting [Appellant’s] position that Mr. Mitchell was
aware of what was occurring and a willing participant and
undermining the Commonwealth’s assertion that Mr. Mitchell
was unconscious and an unwilling participant.
F. Whether the [PCRA] court erred in denying [Appellant’s PCRA]
petition for a claim of ineffective assistance of counsel for trial
counsel’s failure to properly handle any and all information,
evidence, and testimony regarding the text message
conversation between [Appellant] and the first complainant,
Thomas Mitchell, after the alleged first incident wherein the
alleged incident is discussed in detail, including that Mr.
Mitchell (alleged victim) held [Appellant’s] head during the sex
act and that Mr. Mitchell ejaculated as a result of the sex act,
as counsel failed to elicit testimony from [Appellant] regarding
the aforementioned deleted text message conversation where
[Appellant], as a participant in that conversation, could have
provided an accounting of Mr. Mitchell’s behavior during the
alleged first incident as memorialized through that text
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conversation, and where [Appellant] established the claim is of
arguable merit and [Appellant] established that counsel’s
strategy was unreasonable as [Appellant] was prejudiced by
being deprived of the affirmative presentation of the text
message conversation between [Appellant] and Mr. Mitchell as
without this missing favorable information, no other evidence
existed to flesh out the details of the alleged first incident and
to provide the mindset of both participants immediately
following the alleged first incident, thereby supporting
[Appellant’s] position that Mr. Mitchell was aware of what was
occurring and a willing participant and undermining the
Commonwealth’s assertion that Mr. Mitchell was unconscious
and an unwilling participant.
Appellant’s brief at 5-8.
We begin with a discussion of the pertinent legal principles. Our “review
is limited to the findings of the PCRA court and the evidence of record,” and
we do not “disturb a PCRA court’s ruling if it is supported by evidence of record
and is free of legal error.” Commonwealth v. Rykard, 55 A.3d 1177, 1183
(Pa.Super. 2012). Similarly, “[w]e 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.” Id. “[W]here the petitioner raises questions of law, our
standard of review is de novo and our scope of review is plenary.” Id. “It is
an appellant’s burden to persuade us that the PCRA court erred and that relief
is due.” Commonwealth v. Stansbury, 219 A.3d 157, 161 (Pa.Super. 2019)
(citing Commonwealth v. Miner, 44 A.3d 684, 688 (Pa.Super. 2012)).
Appellant raises several allegations of trial counsel ineffectiveness.
Counsel is presumed to be effective, and a PCRA petitioner bears the burden
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of proving otherwise. See Commonwealth v. Becker, 192 A.3d 106, 112
(Pa.Super. 2018). To do so, a petitioner must plead and prove that: (1) the
legal claim underlying his ineffectiveness claim has arguable merit; (2)
counsel’s decision to act (or not) lacked a reasonable basis designed to
effectuate the petitioner’s interests; and (3) prejudice resulted. Id. The
failure to establish any of the three prongs is fatal to the claim. Id. at 113.
Appellant’s first ineffectiveness claim concerns his attorney’s failure to
file a motion to sever the sexual assaults concerning Mitchell from the sexual
assault involving Jones. See Appellant’s brief at 18-31. At the PCRA hearing,
trial counsel testified that he did not move for severance because he thought
that evidence of each assault would have been admissible at the trial for the
other assaults under Pa.R.E. 404(b). See PCRA Hearing, 12/13/19, at 112-
13.
With respect to the severance of offenses:
Offenses charged in separate informations may be tried together
if they are “based on the same act or transaction” or if “the
evidence of each of the offenses would be admissible in a separate
trial for the other and is capable of separation by the jury so that
there is no danger of confusion.” Pa.R.Crim.P. 582(a)(1). The
court has discretion to order separate trials if “it appears that any
party may be prejudiced” by consolidating the charges.
Pa.R.Crim.P. 583.
Commonwealth v. Thomas, 879 A.2d 246, 260 (Pa.Super. 2005). Our
Supreme Court has consolidated these rules in a three-part test:
Where the defendant moves to sever offenses not based on the
same act or transaction that have been consolidated in a single
indictment or information, or opposes joinder of separate
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indictments or informations, the court must therefore determine:
[1] whether the evidence of each of the offenses would be
admissible in a separate trial for the other; [2] whether such
evidence is capable of separation by the jury so as to avoid danger
of confusion; and, if the answers to these inquiries are in the
affirmative, [3] whether the defendant will be unduly prejudiced
by the consolidation of offenses.
Commonwealth v. Collins, 703 A.2d 418, 422 (Pa. 1997) (quoting
Commonwealth v. Lark, 543 A.2d 491, 496-97 (Pa. 1988)).
The PCRA court, which was also the trial court, held that Appellant failed
to establish arguable merit since the similarities between the three assaults
would have allowed for the admission of each assault in the case of the other
to demonstrate a common plan or scheme under Pa.R.E. 404(b). See PCRA
Court Opinion, 6/17/20, at 19. The PCRA court reasoned:
In all three instances, the victims were intoxicated and
unconscious, both victims awoke to find their pants partially
removed and [Appellant] performing oral sex on them, both
victims immediately left the room upon waking up, and in all three
incidents, [Appellant] acknowledged the assault and pled
forgiveness through text message. Both victims were white males
in their early twenties, and both were fraternity brothers with
[Appellant].
Id.We agree with the PCRA court’s analysis. Pursuant to Rule 404(b):
(1) Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in
conformity therewith.
(2) Evidence of other crimes, wrongs, or acts may be admitted for
other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity or absence of mistake or
accident.
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(3) Evidence of other crimes, wrongs, or acts proffered under
subsection (b)(2) of this rule may be admitted in a criminal case
only upon a showing that the probative value of the evidence
outweighs its potential for prejudice.
Pa.R.E. 404(b). In this appeal, the two pertinent 404(b) exceptions are
“common plan or scheme” and “absence of mistake.” Concerning the former,
we have stated:
When ruling upon the admissibility of evidence under the common
plan exception, the trial court must first examine the details and
surrounding circumstances of each criminal incident to assure that
the evidence reveals criminal conduct which is distinctive and so
nearly identical as to become the signature of the same
perpetrator. Relevant to such a finding will be the habits or
patterns of action or conduct undertaken by the perpetrator to
commit crime, as well as the time, place, and types of victims
typically chosen by the perpetrator. Given this initial
determination, the court is bound to engage in a careful balancing
test to assure that the common plan evidence is not too remote
in time to be probative. If the evidence reveals that the details of
each criminal incident are nearly identical, the fact that the
incidents are separated by a lapse of time will not likely prevent
the offer of the evidence unless the time lapse is excessive.
Finally, the trial court must assure that the probative value of the
evidence is not outweighed by its potential prejudicial impact upon
the trier of fact. To do so, the court must balance the potential
prejudicial impact of the evidence with such factors as the degree
of similarity established between the incidents of criminal conduct,
the Commonwealth’s need to present evidence under the common
plan exception, and the ability of the trial court to caution the jury
concerning the proper use of such evidence by them in their
deliberations.
Commonwealth v. Tyson, 119 A.3d 353, 358-59 (Pa.Super. 2015) (en
banc) (citation omitted); see also id. at 360 n.3 (“The common scheme
exception does not require that the two scenarios be identical in every
respect.” (emphasis in original)).
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Importantly, this Court has permitted other bad act evidence under the
common plan exception “to counter [an] anticipated defense of consent.” Id.
at 361. In Tyson, the defendant, who was previously convicted of raping an
unconscious woman, was accused of rape and related offenses after he
allegedly engaged in sex with an unconscious acquaintance. The victim had
invited the defendant over to bring her soup because she was not feeling well.
Sometime after the defendant arrived, the victim fell asleep. She awoke to
find the defendant engaging in vaginal intercourse with her. She told the
defendant to stop and he complied. She told the defendant she did not want
to have sex with him and fell back asleep. A short time later, she again awoke
to Appellant having sex with her. The defendant claimed that the victim was
conscious and had consented to having sex with him both times.
In a motion in limine, the Commonwealth sought a ruling that it could
introduce the facts underlying the defendant’s prior rape conviction under the
common scheme exception. The trial court denied the motion, but on appeal
we reversed, noting that:
The factual overlap between the two incidents goes beyond the
commission of crimes or conduct “of the same general class.” The
evidence does not merely show [the defendant] sexually assaulted
two different women or that [his] actions are generically common
to many sexual assault cases. To the contrary, the incidents
reflect a clear pattern where [the defendant] was legitimately in
each victim’s home; [he] was cognizant of each victim’s
compromised state; and [he] had vaginal intercourse with each
victim in her bedroom in the middle of the night while the victim
was unconscious.
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Id. at 360. We also determined that the five-year lapse in time between the
rapes did not undermine the prior act’s probative value, because the
defendant was incarcerated for a majority of that time and because the
“similarities [between] the two incidents render[ed] the five-year time gap
even less important.” Id. at 361.
Additionally, we held that the prior incident could be used to defeat an
anticipated defense of consent in a case of sexual misconduct under the
absence-of-mistake exception1, reasoning:
[the defendant] disputes [the victim’s] account that she was
asleep when [he] initiated sexual intercourse with her – [the
defendant] maintains he thought [the victim] consented to the
act. Given the relevant similarities between the two incidents,
evidence of [the defendant’s] prior rape would tend to prove he
did not “mistakenly believe” [the victim] was awake or gave her
consent. [The defendant] was invited into [the victim’s] home of
another reason, [he] knew [the victim] was in a compromised
state, and [the victim] awoke to find [him] having vaginal
intercourse with her. [The defendant’s] prior conviction would
likewise show he had been invited into the home of an
acquaintance, knew the victim was in a compromised state, and
had non-consensual sex with the victim while the victim was
unconscious. The prior conviction would tend to prove [the
defendant] was previously in a very similar situation and suffered
legal consequences from his decision to have what proved to be
non[-]consensual vaginal intercourse with an unconscious victim.
Thus, the evidence would tend to show [the defendant] recognized
or should have recognized that, as with [the prior woman raped
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1 “The standard for admission of evidence under the ‘absence of mistake’
exception is virtually the same as the common plan or scheme exception;
namely, the evidence ‘must be distinctive and so nearly identical as to become
the signature of the same perpetrator, and its probative value must not be
undermined by the lapse in time between incidents.” Commonwealth v.
Gilliam, 249 A.3d 257, 272 (Pa.Super. 2021) (citation omitted).
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by the defendant], [the victim’s] physical condition rendered her
unable to consent.
Id. at 362-63.
Here, the PCRA court relied heavily on Tyson, finding it to be directly
on point. Our review discloses that the PCRA court’s analysis is amply
supported by the record and the law. As in Tyson, the factual similarities
between the three crimes went beyond “the commission of crimes or conduct
of the same general class.” Id. at 357. As the PCRA court explained, the
three crimes involved men in their early twenties who were close friends and
fraternity brothers of Appellant. Additionally, they attended a party at
Appellant’s house where Appellant was present and observed them drinking
for several hours until they became intoxicated. Both men were unconscious
at the time of the assaults and reported waking up in the middle of the night
with their pants partially removed and Appellant’s mouth on their penises.
Hours later, Appellant contacted each victim over text messaging where he
apologized, blamed his actions on his own intoxication, asked the victim not
to speak of the incident, and assured the victim that it would never happen
again. The almost two-year time span over which the three assaults occurred
left a much shorter lapse between crimes than the one present in Tyson. See
also Commonwealth v. Aikens, 990 A.2d 1181, 1185-86 (Pa.Super. 2010)
(holding ten-year time lapse was not excessive for admissibility of evidence
under the common plan exception). Finally, the defense position was that the
victims were awake and the oral sex was consensual. Accordingly, as in
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Tyson, the absence-of-mistake exception was an alternative avenue to
admissibility.
Moreover, Appellant has failed to persuade us that the probative value
was outweighed by the testimony’s prejudicial impact. The Commonwealth
was required to prove non-consensual oral sex occurred and limited its usage
of the evidence to permissible grounds, i.e., to show a common plan, scheme,
or design and an absence of mistake. Accordingly, the PCRA court did not err
when it held that a motion to sever would have been unsuccessful, since
Mitchell and Jones’s testimony would have been admissible at both trials.
See, e.g. Commonwealth v. Gordon, 573 A.2d 866, 869-70 (Pa. 1996)
(holding evidence of Appellant’s similar prior sexual assaults was not unduly
prejudicial under Rule 404(b)(2) where the Commonwealth was required to
prove non-consensual sexual touching occurred; evidence was necessary for
prosecution of case, where uncorroborated testimony of victim might lead jury
to determine there was reasonable doubt as to whether appellant committed
crime charged). Since the motion to sever would not have succeeded, counsel
was not ineffective for failing to file one. See Commonwealth v. Spotz, 896
A.2d 1191, 1214 (Pa. 2006) (“[C]ounsel will not be deemed ineffective for
failing to raise a meritless claim[.]”). Accordingly, Appellant’s first claim fails.
In his second issue, Appellant challenges counsel’s failure to call
Appellant’s step-sister, Alexandra Veight (“Veight”), as a defense witness at
trial. The following principles apply to our consideration of this matter.
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To prevail on a claim of trial counsel’s ineffectiveness for failure to
call a witness, appellant must prove: (1) the witness existed; (2)
the witness was available; (3) trial counsel was informed of the
existence of the witness or should have known of the witness’s
existence; (4) the witness was prepared to cooperate and would
have testified on appellant’s behalf; and (5) the absence of the
testimony prejudiced Appellant. Trial counsel’s failure to call a
particular witness does not constitute ineffective assistance
without some showing that the absent witness’s testimony would
have been beneficial or helpful in establishing the asserted
defense. Appellant must demonstrate how the testimony of the
uncalled witness would have been beneficial under the
circumstances of the case.
Commonwealth v. Chmiel, 889 A.2d 501, 545-46 (Pa. 2005) (internal
citations and quotation marks omitted).
At trial, Veight testified on rebuttal as a Commonwealth witness. See
N.T. Jury Trial 6/14-15/16, at 259. Veight explained that she was visiting
Appellant the night of November 23, 2014, when the second assault against
Mitchell was alleged to have occurred. Id. at 260. That night she saw an
“alert and awake” Mitchell laying on Appellant’s bed with his pants down. Id.
Though she later came to learn that Appellant was charged with assaulting an
unconscious Mitchell that night, she never called the police to tell them she
observed Mitchell to be conscious. Id. at 261.
At the PCRA hearing, Veight’s testimony was consistent, but more
expansive than her earlier trial testimony. On November 23, 2014, Veight
testified that everyone except her was drinking alcohol at a party at
Appellant’s house with Mitchell, Appellant, and several other people. See N.T.
PCRA Hearing, 12/31/19, at 64. Around four a.m. the party ended and she
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observed Mitchell walk into Appellant’s room, pull down his pants a little, and
lay down on Appellant’s bed. Id. at 66-67. Minutes later, she watched
Appellant enter the room and close the door. Id. at 68, 80. Sitting in the
hallway outside of Appellant’s bedroom, Veight heard moaning coming from
inside the room. Id. at 68-69. Approximately ten minutes later, Appellant
exited the room and Veight entered the room. She saw Mitchell was awake
and still laying on the bed, but with his pants pulled up. Id. at 70. Mitchell
asked her where Appellant was. When Veight replied that she was unsure of
Appellant’s location, Mitchell left the room. Id. at 71. Veight also testified
that when the Commonwealth brought charges against Appellant, she offered
to testify at trial and met with trial counsel. Id. at 73-74. During the meeting,
she recounted the events exactly as she testified at the PCRA hearing. Id. at
74-75. She believed that trial counsel would call her as a defense witness at
trial, but instead, she was called by the Commonwealth as a witness. Id. at
83.
Trial counsel testified at the PCRA hearing that he was aware of Veight
and had met with her prior to trial, though he alleged that she did not disclose
the full extent of her account during their meeting. Id. at 94. After meeting
with her, counsel concluded that it would be tactically advantageous if the
Commonwealth introduced Veight as a witness and based on his meetings
with the prosecutor he believed that the Commonwealth intended to call her
as a witness. Id. at 94-95. Counsel reasoned that this strategy would be
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beneficial to Appellant because the jury would hear evidence that supported
his consent defense directly from the prosecution. Id. at 95. Since the
Commonwealth called Veight and she testified to exactly what she had told
him pre-trial, he thought that the strategy was successful. Id.
The PCRA court found that while there was arguable merit to Appellant’s
claim, he did not demonstrate prejudice by Veight’s absence as a defense
witness at trial. See PCRA Court Opinion, 6/17/20, at 23. Importantly, while
Veight’s testimony was “truncated” at trial, it was not absent. Id. at 23. Since
the main thrust of her testimony was brought forth at trial, the PCRA court
was not persuaded that the expanded version would have changed the
outcome. Id. at 24-25 (citing N.T. Jury Trial, 6/14-15/16 at 260-61 (Veight
testifying that she saw Mitchell alert and awake while laying on Appellant’s
bed with his pants down)). Finally, the PCRA court credited trial counsel’s
testimony that Veight’s testimony at trial was exactly as recited to him during
his meeting with her and that he made a strategic choice to cast doubt on
Mitchell’s version of events and corroborate Appellant’s testimony through a
Commonwealth witness. Id. at 25-26.
The record supports the PCRA court’s conclusion that Appellant failed to
prove that he was prejudiced by counsel’s failure to call Veight as a defense
witness. Indeed, Veight’s testimony at trial corroborated Appellant’s
testimony that she was outside his door during the November 23, 2014
incident and that Mitchell was alert and awake. See N.T. Jury Trial, 6/14-
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15/16 at 245-49). In closing argument, counsel capitalized on the fact that
this corroborating testimony came from a Commonwealth witness. Id. at 285
(trial counsel pointing out that “you heard from the Commonwealth’s own
witness, [Appellant’s] sister, that [Mitchell] was in that room awake that
night.”). Accordingly, the PCRA court did not err when it concluded that
Appellant had failed to prove that he was prejudiced by the absence of Veight’s
expanded testimony at trial and his second issue fails.
In his related third claim, Appellant alleges that counsel was ineffective
for failing to object to the Commonwealth’s presentation of Veight’s testimony
in order to impeach her credibility. See Appellant’s brief at 48. At the PCRA
hearing, trial counsel testified that he employed a strategy of allowing Veight
to be called as a Commonwealth witness in order to contradict the
Commonwealth’s position regarding Mitchell’s willingness to engage in sexual
activity during the November 2014 incident. See PCRA Hearing, 12/31/19, at
94-95. The PCRA court found trial counsel’s testimony credible and persuasive
evidence of a reasonable trial strategy. See PCRA Court Opinion, 6/17/20, at
26. As we highlight, infra, the PCRA court’s findings are supported by the
record.
“In determining whether counsel’s action was reasonable, we do not
question whether there were other more logical courses of action which
counsel could have pursued; rather, we must examine whether counsel’s
decisions had any reasonable basis.” Commonwealth v. Washington, 927
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A.2d 586, 594 (Pa. 2007) (citations omitted). Trial counsel sought to allow
the Commonwealth to call Veight as a witness so that the jury would hear
testimony from a Commonwealth witness that corroborated Appellant’s
version of events. See N.T. PCRA Hearing, 12/31/19, at 93-95. While it is
true that the Commonwealth questioned Veight about whether she reported
her observations to the police, upon cross-examination trial counsel confirmed
that Veight was unaware that she had any obligation to notify law
enforcement. See N.T. Jury Trial, 6/14-15/16, at 262. Instead, she contacted
trial counsel and offered to testify on Appellant’s behalf. Id. Since trial
counsel’s decision was based upon a reasonable strategy to effectuate
Appellant’s interests, this claim fails.
In his fourth claim, Appellant alleges that counsel was ineffective for
failing to call Katelyn Johnson (“Johnson”) as a witness at trial. See
Appellant’s brief at 53-63. It is undisputed that Appellant has met the first
four prongs of the uncalled witness test. The parties contest the fifth prong,
namely whether Appellant has demonstrated that he was prejudiced by the
absence of Johnson’s testimony at trial. See Chmiel, supra at 545-46.
At the PCRA hearing, Johnson testified that, in 2013, she was a
housemate and “very close” friend of Appellant. N.T. PCRA Hearing,
12/31/19, at 41-42. On the date of the first incident with Mitchell, Johnson
did not attend the holiday party. Id. at 44-45. When she returned home that
night, she found Mitchell alone and asleep on the couch. Id. at 45. As a joke,
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Johnson took a photograph of Mitchell and posted it to Facebook. Id. This
photograph was authenticated by Mitchell and admitted at trial. See N.T. Jury
Trial, 6/14-15/16, at 43. Afterwards, she nudged Mitchell, who opened his
eyes but did not move. See N.T. PCRA Hearing, 12/31/19, at 46. While
Mitchell had a beer can laying on top of him, was holding a beer can, and did
not get off the couch right away, Johnson thought that “he seemed fine.” Id.
at 46, 52-53.
Johnson left Mitchell and went downstairs to her room for approximately
fifteen minutes. Id. at 46. During this time, she heard “rummaging through
the kitchen cabinets,” looked up the stairs, and saw Mitchell in the kitchen.
Id. at 46. She returned to the main floor in time to observe a “slightly
intoxicated” Mitchell walking upstairs where Appellant’s bedroom, another
bedroom, and the sole bathroom in the house were located. Id. at 46-47.
Ms. Johnson did not see where Mitchell went once he got to the second floor
and never saw anyone other than Mitchell that night. Id. at 56. Furthermore,
while she texted Appellant earlier in the night, she did not receive a response
until the next morning when he was “at the library.” Id. at 57.
Appellant’s recollection of the events differed greatly. In contrast to
Johnson, Appellant testified that his only roommates were his fraternity
brothers. N.T. Jury Trial, 6/14-15/16, at 207. After the December 2013 party,
Appellant alleged that he was downstairs alone, cleaning up from the party
when Mitchell, who had been sitting on the couch, “asked me to go upstairs
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with him to my bedroom.” Id. at 211. Appellant explained that he “followed
[Mitchell] to my room and then we closed the door.” Id. They began kissing
before Mitchell eventually asked Appellant to perform oral sex on him, which
he did. Id. Appellant agreed that “drunk or passed out people cannot consent
to sexual activity.” Id. at 245. However, he claimed that Mitchell did not fit
into either category. Instead, he alleged that Mitchell was awake, conscious,
and initiated the sexual encounter. Id. at 213.
Appellant argues that Johnson’s testimony was “critical” to establish his
innocence, since she saw Mitchell awake, contradicting Mitchell’s trial
testimony that he was intoxicated and could not remember how he got
upstairs. See Appellant’s brief at 55-57. The Commonwealth disputes
whether Johnson’s testimony contradicted Mitchell’s version of events, since
he testified that he could not remember how he got upstairs, not that he did
not walk upstairs. Instead, the Commonwealth posits that Johnson’s
testimony would have been “problematic” for the defense, since it contradicted
Appellant’s testimony in important respects. See Commonwealth’s brief at
20-21.
The PCRA court agreed with the Commonwealth, finding that Appellant
was not prejudiced by the absence of Johnson’s testimony and explaining:
Given the disparity between the two versions, especially in
the details accounting for both [Appellant’s] and [Mitchell’s]
location and as to [Mitchell’s] condition, it is difficult to perceive
how such an imparity in those details would have benefitted
[Appellant] at trial. While both [Appellant] and Ms. Johnson seem
to describe [Mitchell] in a condition of at least some awareness,
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the divergence in particulars between the two versions lends
greater incredulity to the narrative of the defense rather than
providing support for the trial strategy. [Appellant] attempts to
confine the purpose of Ms. Johnson’s testimony simply to dispute
the Commonwealth’s assertion at trial that [Mitchell] was
intoxicated to the point of being unaware of how he got upstairs
and into [Appellant’s] bed. We refuse to view the testimony in
such isolation, or attempt to narrow the consideration of the jury.
PCRA Court Opinion, 6/17/20, at 28.
The record supports the PCRA court’s conclusion. The value of Johnson’s
testimony that she thought Mitchell seemed “fine” and observed him walk
upstairs unassisted cannot be divorced from the rest of her testimony, which
would have been detrimental to the defense. Instead of observing Appellant
cleaning up the house after the party and engaging with Mitchell, Johnson
found Mitchell passed out on the couch alone. Further, Johnson testified that
she never saw or spoke with Appellant that night, despite sending him a text
message. While she observed Mitchell walk unassisted upstairs, Mitchell never
denied that this happened. Instead, he testified that he could not remember
how he got to Appellant’s room. Accordingly, Johnson’s testimony did nothing
to diminish Mitchell’s credibility and counsel was not ineffective for failing to
call her as a defense witness.
Appellant’s final two claims concern counsel’s failure to investigate,
present, and question Appellant about newly discovered text messages that
were sent between Mitchell and Appellant after the December 2013 assault.
See Appellant’s brief at 63-76. Appellant claims that the text messages would
have bolstered his testimony that Mitchell was conscious and consenting to
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the first encounter, that he deleted them at counsel’s direction pre-trial, and
that counsel was ineffective for not hiring a private investigator to recover the
deleted messages so that he could present them at trial. Id. The
Commonwealth counters that the messages would have been “devastating”
for Appellant’s case that this was a consensual sexual encounter. See
Commonwealth’s brief at 25. Therefore, counsel cannot be found ineffective
for failing to investigate, uncover, or present the messages because their
content would have been detrimental to the defense. The PCRA court agreed.
See PCRA Court Opinion, 6/17/20, at 31.
The record supports the PCRA court’s conclusion. At trial, Appellant
testified that after the party ended, he proceeded downstairs and found
Mitchell on the couch. See. After Mitchell asked Appellant to go upstairs to
Appellant’s bedroom, the two engaged in consensual sexual activity. Id.
Appellant denied that Mitchell was unconscious or impaired in any way during
the encounter. Id. at 212. Further, Appellant testified that no text message
conversation occurred after the December 2013 incident. Id. at 245.
In the missing text message conversation Appellant conveys a strikingly
different version of events than what he testified to at trial and what Johnson
testified to at the PCRA hearing. After initiating the conversation with a
message that read, “Dude plz don’t say anything,” Appellant responds to
Mitchell’s question asking him what happened. See PCRA Hearing, 12/31/19,
at Com. Ex. 1. Appellant explains that he and “Kate” were downstairs talking
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when Mitchell “got up and went upstairs.” Id. at 4. Appellant “assumed
[Mitchell] went up to the bathroom.” Id. This contradicts Appellant’s trial
testimony and Johnson’s PCRA testimony that they were each alone with
Mitchell downstairs. See N.T. Jury Trial, 6/14-15/16 at 211; see also N.T.
PCRA Hearing, 12/31/19, at 45.
Next, Appellant writes that he and Kate proceeded upstairs, where they
found Mitchell “passed out” in Appellant’s bed. See PCRA Hearing, 12/31/19,
at Com. Ex. 1. This contradicts Appellant’s trial testimony where he alleged
that he walked upstairs with Mitchell and engaged in oral sex at Mitchell’s
request, as well as Johnson’s PCRA testimony that she never went upstairs or
conversed with Appellant that night. See N.T. Jury Trial, 6/14-15/16, at 211.
Instead, Appellant described Mitchell’s alleged request for oral sex as Mitchell
“must of (sic) been talking in [his] sleep,” because he requested Appellant to
perform oral sex on him. See PCRA Hearing, 12/31/19, at Com. Ex. 1.
Appellant went on to admit that he should have “never done it” and that
if he had been “sober[, he] wouldn’t have.” Id. Within the messages,
Appellant told Mitchell that “obviously you were blacked out” and admitted
that he should have discontinued the assault, but did not because he was
“shocked that it was actually happening.” Id. at 5. Throughout the exchange,
Mitchell repeatedly denied that he was aware of what was happening during
the incident and asked Appellant to be honest with him about what occurred.
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Id. While Appellant disbelieved Mitchell’s repeated denials, he ultimately
admitted that they were both drunk. Id.
Given the many inconsistencies between Appellant’s two versions of
events that were conveyed in his trial testimony and relayed in the text
messages, we agree with the PCRA court that Appellant was not prejudiced
by their absence. Accordingly, we also find that since counsel was not
ineffective for failing to investigate, uncover, present, or question Appellant
about the December 2013 text messages, the PCRA court did not err when it
denied his final two claims.
Having reviewed all of Appellant’s issues and concluding that none
warrants relief, we affirm the order of the PCRA court denying Appellant’s
petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/16/2021
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