Com. v. Jennings, J., Jr.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JOSEPH JENNINGS, JR., : No. 402 MDA 2015
:
Appellant :
Appeal from the PCRA Order, March 18, 2014,
in the Court of Common Pleas of Lycoming County
Criminal Division at No. CP-41-CR-0000342-2003
BEFORE: FORD ELLIOTT, P.J.E., WECHT AND FITZGERALD,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 21, 2015
Joseph Jennings, Jr., appeals from the order filed in the Court of
Common Pleas of Lycoming County which dismissed, without a hearing, his
petition filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-9546.
The facts have been previously summarized by this court, as follows:
Appellant and the victim initially met while
helping Appellant’s uncle and aunt move into their
new home. After developing a friendship through
several phone conversations, Appellant and the
victim decided to go out together on the evening of
April 13, 2002. The victim picked Appellant up at his
home and they decided to go to several different
bars where they consumed alcohol and met with
friends.
Appellant claims that the victim had too much
to drink and smoked marijuana with him. N.T.,
1/23/04, at 389, 392. However, while the victim
* Former Justice specially assigned to the Superior Court.
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testified that she did have several drinks that
evening, she reported feeling fine and in control.
N.T., 1/22/04, at 73, 82. The victim explained that
she became “annoyed” when Appellant teased her
for not smoking marijuana with him. Id. at 77.
Near the end of the evening, as she had become
bored and anxious to end the date, the victim
claimed that she poured her drink out in the
bathroom sink. Id. at 78-79. The victim testified
Appellant spent most of the evening socializing with
his friends, as she sat by herself at the bar, and
claimed “mostly the whole evening . . . [I] pretty
much knew that I wasn’t going to go out with him
again.” Id. at 63, 76-80.
The victim and Appellant also gave conflicting
stories about their romantic conduct that night.
Appellant claimed the victim had previously promised
to give him a “full body massage” and was
affectionate with him that evening, kissing and
dancing closely. N.T., 1/23/04, at 381. While the
victim admitted that Appellant kissed her a few times
during the evening, she denied that she or Appellant
ever made sexually suggestive comments or
conducted themselves in a like manner. N.T.,
1/22/04, at 65, 69-73, 80-81, 83.
At the end of the date, Appellant asked to
borrow a movie and followed victim into her
apartment although she had never invited him to
come in. Id. at 83-84. While the victim went to go
check her phone messages, Appellant started
watching the DVD in the living room. Id. at 84.
When the victim returned, she noticed that Appellant
was more intoxicated than she thought, observing
him swaying to the music and talking in a jumbled
manner. Id. at 85-86. When Appellant mumbled
that the victim wanted to see him naked all night,
the victim became angry and told Appellant to leave.
Id. at 86. Appellant ignored the victim’s response
and tried to dance with her. Id. After the victim
pushed herself away, Appellant walked into the
victim’s bedroom and collapsed on her bed. Id. at
89-90.
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After the victim checked to make sure that
Appellant was asleep, she left him on the bed,
reasoning that it would be best if he could “sleep it
off.” Id. at 90. The victim changed into her
strapless nightgown and admitted she was not
wearing underwear at the time. Id. at 90, 153. As
the victim saw that it was raining and Appellant
would have to walk home, the victim nudged
Appellant’s shoulder and told him to sleep on the
futon in her living room. Id. at 92-93.
After Appellant got out of the bed, the victim
climbed under the covers from the opposite side of
her bed. Appellant got back into the bed, kissing the
victim’s neck and shoulder. As she tried to pull away
and told him to stop, Appellant continued and
grabbed her left hip and breast. Id. at 95. The
victim struggled to get away and told Appellant “this
is me saying no.” Id. at 96. Appellant pulled down
the covers, pulled the victim’s nightgown up, and
undid his pants. Id. at 98. The victim testified that
as Appellant was laying [sic] on top of her, he was
able to penetrate her vagina with his penis. Id.
Appellant proceeded to turn the victim over and had
sexual intercourse in another position. Id. at 100.
Appellant testified at trial that the victim consented
to the sexual intercourse. N.T., 1/23/04, at 398.
After Appellant left, the victim sought comfort
in her best friend, who testified at trial that the
victim looked “disturbing . . . [as] her hair was a
mess, her face was white, pale she looked like a deer
in the headlights . . . [and] she looked like she had
been crying.” Id. at 306. The following morning,
the victim told her mother what had happened and
they subsequently went to the emergency room.
N.T., 1/22/04, at 112-13. Nurse Cathy Brendle, a
sexual assault nurse examiner (SANE), performed a
rape kit on the victim and submitted her
observations and findings to the police.
As a result, Appellant was arrested, brought to
a jury trial, and convicted on one count of sexual
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assault and two counts of indecent assault. The jury
acquitted Appellant on a charge of rape. Shortly
thereafter, on April 8, 2004, the Honorable
Nancy Butts sentenced Appellant to an aggregate
term of 6-12 years in prison.
Commonwealth v. Jennings, 958 A.2d 536, 537-539 (Pa.Super. 2008)
(footnotes omitted).
On September 27, 2004, appellant filed a direct appeal to this court.
The appeal was dismissed for failure to file a docketing statement in
compliance with Pa.R.A.P. 3517. The appeal was reinstated by this court,
but we found that appellant’s issues were waived for failure to file a
Rule 1925(b) statement. Subsequently, appellant filed a PCRA petition, and
on June 13, 2007, the trial court granted the PCRA petition and allowed
appellant to file an appeal nunc pro tunc. In an opinion dated
September 9, 2008, we affirmed the judgment of sentence. Appellant filed a
petition for allowance of appeal to the Pennsylvania Supreme Court which
was denied on April 1, 2011.
On March 15, 2012, appellant filed a pro se, PCRA petition. The PCRA
court appointed counsel, and an amended PCRA petition was filed on
February 13, 2013. (Docket #87.) Appellant subsequently requested
permission to represent himself. A waiver of counsel hearing was held
pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988). Although
permission was granted, appellant decided to hire private counsel. On
November 14, 2013, counsel filed the amended PCRA petition which is at
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issue here. (Docket #96.) Appellant argued, inter alia, that trial counsel
was ineffective for failing to investigate and take statements from the
following witnesses:
i. Mary Ungard. Ms. Ungard would have testified
regarding a phone conversation which she had
with the victim, wherein the victim admitted
coercion was used to obtain her statement and
that the police falsified her statement which
was supplied to the Defendant in discovery.
ii. Amber Carrey. Ms. Carrey would have stated
that she saw the Defendant entering his house
shortly after the alleged rape and that he was
dry. This statement would have impeached
the victim’s statement that the Defendant
walked home in the rain.
iii. Scott Mogret. Mr. Mogret observed the victim
and the Defendant at Peachy’s Bar prior to the
alleged rape and he would have testified that
the victim appeared intoxicated and was acting
in a friendly and intimae [sic] fashion with the
Defendant.
iv. Keith Spong. Mr. Spong was a bartender who
would have testified that the victim drank a
Long Island Tea shortly before the alleged
rape, which the victim denied.
v. Robert A. Donoto, D.O., F.A.C.G., who would
have testified, in his expert medical opinion, it
was inappropriate for a nurse to diagnose the
cause of the redness around the victim’s
genital area.
Final amended petition for post-conviction collateral relief, 11/14/13 at 4-5.
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Appellant requested a hearing pursuant to Pa.R.Crim.P. 908 and
included in his petition a list of the witnesses who would testify, their
addresses, and a brief summary of their proposed testimony. (Id. at 7-9.)
A conference was held on November 21, 2013, during which the PCRA
court heard oral argument. On December 20, 2013, the PCRA court found
that there were no meritorious issues or genuine issues concerning any
material fact which warranted an evidentiary hearing. The PCRA court also
noted that appellant “did not file affidavits/certifications signed by the
witnesses.” (PCRA court opinion, 12/20/13 at 7.) The PCRA court notified
the parties that it intended to dismiss the petition without a hearing
pursuant to Pa.R.Crim.P. 907(a). Having received no response from
appellant, the PCRA court dismissed the petition on March 18, 2014.
(Docket #99.)
On appeal,1 appellant raises the following issues:
I. WHETHER THE PCRA COURT ERRED WHEN IT
SUMMARILY DENIED THE PCRA CLAIMS AND
DISMISSED MR. JENNINGS’ PETITION
WITHOUT CONDUCTING AN EVIDENTIARY
HEARING?
II. WHETHER THE PCRA COURT COMMITTED
REVERSIBLE ERROR BY DISMISSING TWO OF
MR. JENNINGS’ PCRA CLAIMS FOR THE
1
Appellant was not provided with a copy of the PCRA court’s order
dismissing his PCRA petition, so he was not apprised of his rights to appeal.
Appellant, through new counsel, petitioned for and was granted the right to
appeal the March 18, 2014 order nunc pro tunc by order dated February 6,
2015. (Docket #103.)
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ALLEGED FAILURE TO FILE CERTIFICATIONS
BY POTENTIAL WITNESSES?
III. WHETHER THE PCRA COURT COMMITTED
REVERSIBLE ERROR WHEN IT DETERMINED
THAT MR. JENNINGS WAS NOT DENIED THE
EFFECTIVE ASSISTANCE OF COUNSEL BY
TRIAL COUNSEL’S FAILURE TO INVESTIGATE
AND/OR CALL CERTAIN WITNESSES WHOSE
NAMES WERE PROVIDED BY MR. JENNINGS
PRIOR TO TRIAL AND WHOSE TESTIMONY
WOULD HAVE BEEN EXCULPATORY TO THE
DEFENSE?
Appellant’s brief at 4.
Our standard of review for an order denying post-conviction relief is
whether the record supports the PCRA court’s determination and whether
the PCRA court’s determination is free from error. Commonwealth v.
Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court’s findings
will not be disturbed unless there is no support for the findings in the
certified record. Id.In his first and second issues, appellant argues that the PCRA court
erred because it dismissed his PCRA petition summarily without holding an
evidentiary hearing. He argues that the ineffective assistance of counsel
claims in his PCRA petition had arguable merit and an evidentiary hearing
was necessary to afford him the opportunity to present to the PCRA court
testimony of several witnesses whose testimony would have made a
difference in the case had it been presented to the jury. We will address
appellant’s first and second issues together.
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There is no absolute right to an evidentiary hearing on a PCRA
petition. Commonwealth v. Barbosa, 819 A.2d 81 (Pa.Super. 2003).
“[W]here it is clear that allegations of ineffectiveness are baseless or
meritless then an evidentiary hearing is unnecessary and the unfounded
allegations should be rejected and dismissed.” Commonwealth v.
Clemmons, 479 A.2d 955, 957 (Pa. 1984); Commonwealth v. Stanley,
632 A.2d 871 (Pa. 1993). To avoid such a result, “counsel must set forth an
offer to prove at an appropriate hearing sufficient facts upon which a
reviewing court can conclude that trial counsel may have, in fact, been
ineffective.” Commonwealth v. Pettus, 424 A.2d 1332, 1335 (Pa. 1981).
However, “[t]he controlling factor in determining whether a petition may be
dismissed without a hearing is the status of the substantive assertions in the
petition.” Commonwealth v. Weddington, 522 A.2d 1050, 1052 (Pa.
1987).
To prevail on a claim of trial counsel’s ineffectiveness for failure to call
a witness, the petitioner must show: (1) that the witness existed; (2) that
the witness was available; (3) that counsel was informed of the existence of
the witness or should have known of the witness’ existence; (4) that the
witness was prepared to cooperate and would have testified on the
petitioner’s behalf; and (5) that the absence of the testimony prejudiced the
petitioner. Commonwealth v. Fletcher, 750 A.2d 261, 275 (Pa. 2000).
Trial counsel will not be found ineffective for failing to investigate or call a
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witness unless there is some showing by the petitioner that the witness’
testimony would have been helpful to the defense. Commonwealth v.
Auker, 681 A.2d 1305, 1319 (Pa. 1996). “Failure of trial counsel to conduct
a more intensive investigation or to interview potential witnesses does not
constitute ineffective assistance of counsel, unless there is some showing
that such investigation or interview would have been helpful in establishing
the asserted defense.” Commonwealth v. Purcell, 724 A.2d 293, 306 (Pa.
1999).
Here, the PCRA court reviewed the averments in the PCRA petition,
and considered the proposed testimony of each witness as set forth by
appellant. The PCRA court concluded that the absence of their testimony did
not prejudice appellant. Specifically, the PCRA court concluded that the
testimony of Amber Carrey, Scott Mogret, and Keith Spong would have
merely impeached the credibility of the victim by calling into question her
recollection about the details before or after the sexual assault. The PCRA
court noted that testimony at trial had already been provided that differed
from the victim’s recollection. We agree with the observations of the trial
court.
While the failure to introduce evidence that challenges a witness’
credibility can be prejudicial, where the proffered testimony is merely
cumulative to other impeachment evidence, trial counsel will not be
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considered to be ineffective. Commonwealth v. Small, 980 A.2d 549 (Pa.
2009); Commonwealth v. Harty, 621 A.2d 1023 (Pa.Super. 1993).
The testimony of Amber Carrey would have been cumulative to the
testimony of other witnesses presented at trial. Josh Paul testified that he
observed the appellant at approximately 12:45 a.m. in front of appellant’s
house and that he was with Miranda Butler and Carrey; and when he
observed appellant, he appeared to be dry, not wet, and did not appear to
have just walked blocks in the rain. (Notes of testimony, 1/22-23/04 at
254-255.) Similarly, Butler testified that she was with Paul and Carrey, who
drove her to her house; and when they arrived, she observed the appellant
walking up to his house and that he was not wet. (Id. at 257-261.)
Therefore, because Carrey would have testified as to the same matters as
Paul and Butler, appellant failed to demonstrate that he suffered prejudice.
The PCRA court was able to determine, based on the proffer, that appellant’s
ineffectiveness claim had no merit. An evidentiary hearing was unnecessary
to present the actual testimony of Carrey.2
2
Appellant argues that without hearing these witnesses’ testimony, the
PCRA court “merely surmised” that their testimony had no evidentiary value.
However, we note that when requesting an evidentiary hearing, the PCRA
petition must set forth, inter alia, the substance of testimony of each
intended witness. Pa.R.Crim.P. 902(a)(15). This is to provide the PCRA
court with the necessary information to determine if, from the facts alleged
in the petition, an evidentiary hearing is necessary. The PCRA court did not
“merely surmise” the testimony had no evidentiary value; rather, appellant
failed to set forth facts from which the PCRA court could conclude that the
testimony had evidentiary value.
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Likewise, we agree with the PCRA court that the testimony of
Scott Mogret would have been merely cumulative to other evidence
established through other witnesses. It was unnecessary that the PCRA
court hold an evidentiary hearing in order to arrive at that conclusion.
Appellant claims that Mogret would have testified that before the assault he
had observed appellant and the victim at Peachy’s Bar and the victim
appeared to be intoxicated and was acting in a friendly and intimate fashion
with appellant. However, at trial, Ty Kimble testified that he saw the victim
and appellant together on the evening in question and that they had a good
rapport, that they were enjoying themselves, were touching each other, and
that the victim was the aggressor. (Id. at 235-241.) Further, the victim
readily admitted that she had a substantial quantity of alcohol to drink. (Id.
at 129-143.) We wholly agree with the PCRA court that appellant failed to
establish that there was a reasonable probability that the result would have
been different had Mogret testified at trial.
Keith Spong, if called as a witness, would have testified that he was
the bartender who prepared a Long Island iced tea which the victim drank.
Appellant argues that this testimony would have contradicted the victim’s
testimony at trial that she did not drink the Long Island iced tea. Again,
appellant has failed to demonstrate that this testimony, if presented to the
jury, would have changed the outcome of the trial. This evidence was
cumulative of other evidence, particularly the victim’s admission that she
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consumed a substantial quantity of alcohol. That fact was undisputed at
trial. The PCRA court did not err when it rejected this issue without holding
an evidentiary hearing.
Regarding the testimony of appellant’s medical expert, Dr. Donoto, the
PCRA court found that his testimony, if presented, would have been
cumulative to the testimony of Cathy Brendle, the nurse who examined the
victim. At trial, Nurse Brendle testified that the redness could have been
caused by regular sexual relations. (Id. at 355-356.) She also testified that
the redness could have been caused by irritation or infection. (Id. at 356.)
According to appellant, Dr. Donoto would have testified regarding the
victim’s medical injuries and what may have caused them. Since this
testimony was simply cumulative to testimony that was presented, appellant
failed to demonstrate that he suffered prejudice from the failure to call
Dr. Donoto.
Finally, with regard to the testimony of Mary Ungard, the PCRA court
concluded that appellant failed to demonstrate that he was prejudiced by the
absence of this witness. We agree with the PCRA court that appellant failed
to establish that the outcome of the trial would have differed if Ungard had
testified. According to appellant, Ungard would have testified that the victim
stated to her that the police coerced the victim to fabricate the accusations
against appellant and that the police falsified the victim’s written statement.
First, by all accounts, the victim approached the police to report the rape,
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not the other way around. Moreover, the victim testified in detail at trial
how appellant forced himself on her and that she did not consent to sexual
relations with the appellant. The victim was extensively cross-examined by
trial counsel. Any additional evidence attacking the victim’s credibility would
have been merely cumulative. The PCRA court did not err in denying an
evidentiary hearing to present the testimony of Ungard.
In his final issue, appellant contends that the PCRA court erred when it
required certifications from the actual witnesses. Technically, it is
unnecessary to address this issue because we have already found that the
PCRA court was justified in denying appellant’s request for an evidentiary
hearing and concluding, based on the averments in the PCRA petition and
the trial transcript, that trial counsel was not ineffective for failing to
investigate and present the testimony of these witnesses. However, we do
wish to note, for the future benefit of counsel and the PCRA court, that
contrary to the PCRA court’s understanding, it is not necessary that the
certifications required under Pa.R.Crim.P. 902(a)(15) be signed by the
witnesses whose testimony will be elicited at the evidentiary hearing.
Where a petitioner requests an evidentiary hearing, the petition must
include only a signed certification as to each intended witness; and the
petitioner must also provide the witness’ name, address, date of birth, and
the substance of the proposed testimony. Commonwealth v. Brown, 767
A.2d 576 (Pa.Super. 2001). The certification requirement can be met by an
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attorney or pro se petitioner certifying what the witness will testify
regarding. Commonwealth v. Pander, 100 A.3d 626 (Pa.Super. 2014);
42 Pa.C.S.A. § 9545(d)(1); Pa.R.Crim.P. 902(a)(15). Instantly, the PCRA
petition included the appropriate certifications. It was the substance of the
petition, however, which was lacking.
Accordingly, having found no merit in the issues on appeal, we will
affirm the order below.
Order affirmed. Appellant’s application to strike the Commonwealth’s
brief as untimely is denied.3
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/2015
3
See Pa.R.A.P. 2188. The penalty for an appellee’s failure to file a timely
brief is not to strike the brief. Rather, “[i]f an appellee fails to file his brief
within the time prescribed . . . he will not be heard at oral argument except
by permission of the court.”
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