Com. v. Sanchez, R. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RENE SANCHEZ :
:
Appellant : No. 1264 MDA 2019
Appeal from the PCRA Order Entered January 8, 2018,
in the Court of Common Pleas of Lackawanna County,
Criminal Division at No(s): CP-35-CR-0002971-2010.
BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED SEPTEMBER 10, 2021
Rene Sanchez appeals from the order denying his first timely petition
filed pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§
9541-46. We affirm.
On direct appeal, this Court summarized:
The facts underlying Sanchez’s conviction[s] are as
follows. In November of 2009, the victim reported to the
Children’s Advocacy Center in Scranton, Pennsylvania, that
Sanchez, her [22-year-old] cousin, sexually molested her
on three occasions during the summer of 2008, when she
was 13 years old. The first incident occurred near the end
of the school year. The victim accompanied Sanchez to a
CVS pharmacy. However, rather than go in the store,
Sanchez pulled his car, with tinted windows, near a
dumpster behind the building. He then provided [the
victim] with cocaine, and sexually assaulted her in the back
seat. Sanchez warned the victim not to tell her mother
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* Retired Senior Judge assigned to the Superior Court.
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about the assaults and threatened to expose the victim’s
drug use and drinking if she did.
The second incident occurred a few weeks later at
Sanchez’s home. Sanchez asked the victim and her brother
to help carry bags into his house for his mother. Once there,
Sanchez told his brother to take the victim’s brother for a
ride. The victim asked Sanchez’s brother to stay, pleading
“Don’t go because you know what he is going to do.”
However, Sanchez’s brother replied, “Oh, just suck it up,
like forget about it.” After she carried a bag upstairs,
Sanchez pulled her into his room, and, once again, sexually
assaulted her. Sanchez again threatened the victim, stating
“Don’t tell your mom of I will tell her that you are smoking
and drinking and . . . you know, if I tell her she is going to
believe me and they will send you to rehab.”
The third assault occurred at the victim’s house during a
family barbecue. Sanchez anally raped the victim while she
was watching TV in the living room. He reiterated his threat
not to tell her mother. Although the victim confided in her
brothers and a friend about the assaults, she did not tell her
parents until sometime in 2009. The victim’s father then
informed the police of his daughter’s allegations.
Commonwealth v. Sanchez, 120 A.3d 1058, (Pa. Super. 2015),
unpublished memorandum at 2-3 (citations and footnotes omitted).
Following an investigation, the police arrested Sanchez and charged him
with numerous offenses. On June 1, 2011, a jury convicted Sanchez of two
counts of involuntary deviate sexual intercourse, three counts each of
statutory sexual assault, unlawful contact with minors, and aggravated
indecent assault, and one count each of indecent assault and corruption of
minors. On November 22, 2011, the trial court imposed an aggregate
sentence of 25-53 years of imprisonment, to be followed by four years of
probation.
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Following the denial of Sanchez’s motion for reconsideration of
sentence, Sanchez filed a timely appeal to this Court. Although we rejected
his substantive claims, because the trial court had included illegal mandatory
minimums as part of his sentence, we vacated his judgment of sentence and
remanded for resentencing. See Sanchez, supra. On October 25, 2015, the
Pennsylvania Supreme Court denied Sanchez’s petition for allowance of
appeal. Commonwealth v. Sanchez, 128 A.3d 220 (Pa. 2015).
Following the remand, the trial court re-sentenced Sanchez to an
aggregate term of 22½ to 54 years of imprisonment to be followed by 16
years of special probation. Sanchez did not file an appeal.
On April 27, 2016, Sanchez filed a counseled PCRA petition in which he
claimed that the victim had prepared a statement in which she recanted her
trial testimony. The Commonwealth filed an answer, and the trial court
scheduled an evidentiary for September 1, 2016. That same day, Sanchez
filed an amended PCRA petition in which he raised two claims of
ineffectiveness of trial counsel. The parties agreed to have the victim testify
regarding her recantation at the hearing, and to leave the record open so that
evidence could be received regarding Sanchez’s two ineffectiveness claims.
On April 24, 2017, the PCRA court held a second evidentiary hearing.
As stated by the PCRA court, “The Commonwealth and [Sanchez] relied on
legal argument, neither presented trial counsel[’s] testimony.” PCRA Court
Opinion, 1/19/21, at 6. Thereafter, Sanchez filed a brief in support of his
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amended petition. By order entered January 8, 2018, the PCRA court denied
Sanchez’s amended petition in its entirety.
On February 8, 2018, Sanchez’s counsel filed a notice of appeal. On
April 9, 2018, this Court dismissed this appeal for failure to file a docketing
statement. On August 28, 2018, Sanchez filed a pro se PCRA petition in which
he asserted that counsel had abandoned him on appeal from the court’s denial
of post-conviction relief.1 The PCRA court appointed current counsel, who filed
an amended PCRA petition. On July 2, 2019, the PCRA Court reinstated
Sanchez’s appellate rights nunc pro tunc. This timely appeal followed. Both
Sanchez and the PCRA court have complied with Pa.R.A.P. 1925.
Sanchez raises the following three issues on appeal:
1. Whether the PCRA court’s denial of [Sanchez’s PCRA
petition] on the basis of ineffective assistance of trial
counsel in failing to timely object to the prosecution’s
improper cross-examination of [Sanchez] on a [crimen
falsi] conviction and in failing to seek a mistrial was
supported by the record and/or free from legal error?
2. Whether the PCRA court’s denial of [Sanchez’s PCRA
petition] claiming trial counsel provided ineffective
assistance by failure to object to the Commonwealth’s
expert’s testimony on the basis that it improperly
bolstered the [victim’s] testimony was supported by the
record and/or free from legal error?
3. Whether the PCRA court’s denial of [Sanchez’s PCRA
petition] seeking a new trial based upon the [victim’s]
recantation was supported by the record and free from
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1 Sanchez also had filed a pro se notice of appeal, which this Court quashed
sua sponte because it was filed from an order that did not exist in the record.
See Commonwealth v. Sanchez, 919 MDA 2018.
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legal error, and made after a proper assessment of the
credibility and significance of the recantation?
Sanchez’s Brief at 3.
This Court’s standard of review regarding an order dismissing a petition
under the PCRA is to ascertain whether “the determination of the PCRA court
is supported by the evidence of record and is free of legal error. The PCRA
court’s findings will not be disturbed unless there is no support for the findings
in the certified record.” Commonwealth v. Barndt, 74 A.3d 185, 191-92
(Pa. Super. 2013) (citations omitted). We discuss the issues and the law
relating to each issue before turning to our analysis.
Sanchez’s first two issues allege the ineffective assistance of trial
counsel. To obtain relief under the PCRA premised on a claim that counsel
was ineffective, a petitioner must establish by a preponderance of the
evidence that counsel’s ineffectiveness so undermined the truth determining
process that no reliable adjudication of guilt or innocence could have taken
place. Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009).
“Generally, counsel’s performance is presumed to be constitutionally
adequate, and counsel will only be deemed ineffective upon a sufficient
showing by the petitioner.” Id. This requires the petitioner to demonstrate
that: (1) the underlying claim is of arguable merit; (2) counsel had no
reasonable strategic basis for his or her action or inaction; and (3) the
petitioner was prejudiced by counsel's act or omission. Id. at 533. A finding
of "prejudice" requires the petitioner to show "that there is a reasonable
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probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different." Id. A failure to satisfy any prong of
the test for ineffectiveness will require rejection of the claim.
Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).
When attempting to prove ineffectiveness, the burden is always on the
PCRA petitioner. While claims of trial court error may support the arguable
merit element of an ineffectiveness claim, a PCRA petitioner must
meaningfully discuss each of the three prongs of the ineffectiveness claim in
order to prove that he is entitled to relief. Commonwealth v. Reyes-
Rodriguez, 111 A.3d 775, 780 (Pa. Super. 2015). To this end, failure to elicit
testimony from trial counsel regarding the reasonable basis for trial counsel’s
actions is fatal to a PCRA claim of ineffectiveness. See Commonwealth v.
Koehler, 36 A.3d 121, 146-47 (Pa. 2012). It is petitioner’s burden to
produce counsel at a PCRA evidentiary hearing in order to meet his burden of
proof that his claims warrant relief. Commonwealth v. Jones, 596 A.2d 885(Pa. Super. 1991).
In his first issue, Sanchez asserts that reversible error occurred during
the Commonwealth’s cross-examination of him at trial and that trial counsel
was ineffective for failing to object and move for a mistrial. Sanchez asserts
that the prosecutor could not cross-examine him regarding a prior crimen falsi
conviction because he did not place his character for truth at issue during his
direct testimony.
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The cross-examination of a defendant at trial regarding prior offenses is
governed by 42 Pa.C.S.A. § 5918, which provides:
No person charged with any crime and called as a witness
in his own behalf, shall be asked, or if asked, shall be
required to answer, any question tending to show that he
has committed, or been charged with, or been convicted of
any offense other than the one wherewith he shall then be
charged, or tending to show that he has been of bad
character or reputation unless:
(1) he shall have at such trial, personally or by counsel,
asked questions of the witness for the prosecution with a
view to establish his own good reputation or character, or
has given evidence tending to prove his own good character
or reputation; or
(2) he shall have testified at such trial against a co-
defendant, charged with the same offense.
42 Pa.C.S.A. § 5918. Thus, pursuant to section 5918, when a defendant in a
criminal case has been called to testify in his or her own behalf, he or she
generally cannot be cross-examined about prior convictions.
However, evidence of a prior conviction of a crime involving dishonesty
or false statement may nevertheless be introduced in rebuttal after the
defendant has testified. See Commonwealth v. Bighum, 307 A.2d 255 (Pa.
1973). In this regard, Pa.R.E. 609 provides that:
(a) In General. For the purpose of attacking the credibility of any
witness, evidence that the witness has been convicted of a crime,
whether by verdict or by plea of guilty or nolo contendere, must
be admitted if it involved dishonesty or false statement.
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(b) Limit on Using the Evidence After 10 Years. This subdivision
(b) applies if more than 10 years have passed since the witness’s
conviction or release from confinement for it, whichever is later.
Evidence of the conviction is admissible only if:
(1) its probative value substantially outweighs its prejudicial
effect; and
(2) the proponent gives an adverse party reasonable written
notice of the intent to use it so that the party has a fair
opportunity to contest its use.
***
Pa.R.E. 609(a), (b); see also id. Cmt. (providing that “where the date of
conviction or last date of confinement is within ten years of the trial, evidence
of the conviction of a crimen falsi is per se admissible”).
The Pennsylvania Supreme Court has clarified that while crimen falsi
convictions are automatically admissible if the conviction is, or confinement
for the conviction ended, within the last ten years, the proof of such
convictions can only be introduced during rebuttal by competent witnesses
and certified court records, unless the defendant puts his good character in
issue. See Commonwealth v. Garcia, 712 A.2d 746, 748 (Pa. 1998).
Finally, harmless error is present when the properly admitted evidence
of guilt is so overwhelming and the prejudicial effect of the error is so
insignificant by comparison that it is clear beyond a reasonable doubt that the
error could not have contributed to the verdict. Id. at 749.
In his second issue, Sanchez asserts that trial counsel was ineffective
for failing to object to the Commonwealth’s expert testimony because it
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improperly bolstered the victim’s assertions, and the expert expressed her
opinion at to the victim’s veracity.
Section 5920 of the Judicial Code sets forth the scope of testimony of
experts in criminal proceedings that concerning sexual offenses. This statute
permits experts to offer their “opinions regarding specific types of victim
responses and victim behaviors,” but specifically precludes opinions
addressing “the credibility of any other witness, including the victim.”
Commonwealth v. Cramer, 195 A.3d 594, 608 (Pa. Super. 2018); 42
Pa.C.S.A. § 5920(b). Our Supreme Court has recently reiterated that whether
the expert’s testimony impermissibly invades the jury’s province of
determining credibility must “be assessed on a case by case basis.”
Commonwealth v. Jones, 240 A.3d 881, 896 (Pa. 2020).
In his third and final issue, Sanchez asserts that the PCRA court erred
in failing to grant him relief in the form of a new trial based upon the victim’s
recantation. According to Sanchez, “the PCRA court’s assessment of the
[victim’s] recantation statement was not made in the light of all the evidence.”
Sanchez’s Brief at 9.
To obtain PCRA relief based on after-discovered evidence, a PCRA
petitioner must demonstrate that the evidence: (1) could not have been
obtained prior to the conclusion of trial by the exercise of reasonable diligence;
(2) is not merely corroborative or cumulative; (3) will not be used solely to
impeach the credibility of a witness; and (4) would likely result in a different
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verdict if a new trial was granted. The test for establishing PCRA relief based
on after-discovered evidence is conjunctive; petitioner must show by a
preponderance of the evidence that each of the factors has been met in order
for a new trial to be warranted. Commonwealth v. Foreman, 55 A.3d 532,
537 (Pa. Super. 2012).
Moreover, recantation testimony may qualify as after-discovered
evidence entitling a PCRA petitioner to relief provided the petitioner meets all
four factors identified in Foreman, supra, and the PCRA court finds the
recantation testimony credible. Commonwealth v. D’Amato, 856 A.2d 806,
823 (Pa. 2004). When making this credibility determination, the PCRA court
must assess the credibility and the significance of the recantation in light of
the evidence as a whole. Id. at 825.
Here, the PCRA court has authored a thorough and well-reasoned
opinion pursuant to Rule 1925(a). The Honorable Michael J. Barrasse has
addressed each of Sanchez’s ineffectiveness claims, as well as his after-
discovered evidence claim, with proper citation to legal authorities and citation
to the certified record.
We discern no legal errors in Judge Barrasse’s analysis,2 and we find
his factual findings and credibility determinations fully supported by our
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2 We do not agree with Judge Barrasse’s finding of waiver as to Sanchez’s first
issue. See PCRA Court Opinion, 1/19/1, at 8-9. Because Sanchez’s attorney
(Footnote Continued Next Page)
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review of the record. As such, we adopt Judge Barrasse’s 1925(a) opinion as
our own in affirming the order denying Sanchez post-conviction relief. See
PCRA Court’s Opinion, 1/19/21, at 9-17 (concluding that Sanchez’s unsolicited
assertion of his veracity permitted the Commonwealth to cross-examine him
regarding a prior crimen falsi conviction that he denied; even, if objectionable,
Sanchez did not call trial counsel to testify at the PCRA hearings and not all
references to prior criminal activity warrant reversal); at 18-27 (concluding
the Commonwealth’s expert provided only generalized evidence about victims
of sexual abuse and, although she stated her lack of findings were consistent
with the history provided by the victim, the expert could not state whether
sexual abuse occurred); and at 27-31 (concluding that the victim’s recantation
testimony was not credible and would not have affected the outcome of the
trial; the victim prepared her recantation statement after threats were made
to her children and her written explanation for lying at the time of trial was
not credible or reasonable).3
Order affirmed.
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did not object during the Commonwealth’s cross-examination of him, his
ineffectiveness claim is properly before us.
3 The parties are directed to attach Judge Barrasse’s January 19, 2021, opinion
to this memorandum in any future appeal.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/10/2021
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