Com. v. Miller, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 ALLEN MILLER :
:
Appellant : No. 1304 MDA 2021
Appeal from the PCRA Order Entered September 13, 2021
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0002503-2017
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY McLAUGHLIN, J.: FILED JANUARY 25, 2023
Joseph Allen Miller appeals from the order denying his Post Conviction
Relief Act (“PCRA”) petition.1 Miller makes several claims that PCRA counsel
provided ineffective assistance. We remand all but one for an evidentiary
hearing.
A jury convicted Miller of involuntary deviate sexual intercourse, criminal
attempt to commit aggravated indecent assault, indecent assault, two counts
of unlawful contact with a minor, dissemination of sexually explicit materials
to a minor, and corruption of minors.2 Miller was represented at trial by
Christopher Sarno, Esquire (“trial counsel”).
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* Former Justice specially assigned to the Superior Court.
1 See 42 Pa.C.S.A. §§ 9541-9546.
2See 18 Pa.C.S.A. §§ 3123(a)(7), 901, 3126(a)(8), 6318, 5903(c)(1) and
6301, respectively.
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A different attorney represented Miller at sentencing: Kristen
Weisenberger, Esquire. The trial court sentenced Miller on September 2, 2020,
to an aggregate of 10 to 20 years’ incarceration and four years’ consecutive
probation. Miller filed a post-sentence motion, which the court denied. Miller
did not file a direct appeal.
Miller, through Attorney Weisenberger (hereinafter “PCRA counsel”),
filed a timely PCRA petition on March 30, 2021, raising four claims that trial
counsel was ineffective: (1) trial counsel failed to adequately prepare for trial,
(2) trial counsel interfered with Miller’s right to testify, (3) trial counsel failed
to file a motion in limine to exclude Miller’s prior criminal history, and (4) trial
counsel failed to call any fact or character witnesses. See PCRA Pet., 3/30/21,
at ¶¶ 11-56. Miller thereafter submitted the affidavits of two potential
character witnesses who stated they would testify to Miller’s character.
The PCRA court held a hearing, at which Miller and trial counsel testified.
The court thereafter denied the petition.
On the first two issues (trial counsel’s failure to prepare and his
interference with Miller’s right to testify), the court credited trial counsel’s
testimony that he had discussed the case with Miller prior to trial, had
recommended that Miller testify, and that Miller had refused to review the
discovery or agree to testify. The court also pointed out that Miller testified at
the PCRA hearing that he had met with trial counsel prior to trial and had
never requested in-person meetings or the opportunity to review the
discovery.
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The court found the third issue (failure to file a motion in limine to
exclude Miller’s criminal history) lacking in merit because it credited trial
counsel’s testimony that Miller had refused to testify, making a motion moot.
The court also credited trial counsel’s testimony that he strategically decided
not to file a motion so that, if the Commonwealth attempted to introduce
evidence of the criminal history, he could argue the Commonwealth failed to
give sufficient notice under Pa.R.E. 609(b)(2).
On the fourth issue (failure to present character witnesses), the court
found Miller had failed to prove ineffectiveness because he had not produced
any witnesses at the PCRA hearing, other than himself, and therefore failed to
prove any witnesses would have testified for the defense. The court also
credited trial counsel’s testimony that he spoke to Miller’s sister, who had
refused to testify.
Miller obtained new counsel, Spencer H.C. Bradley, Esquire, who filed a
notice of appeal. The court ordered Miller to file a Rule 1925(b) statement of
errors complained of on appeal. See Pa.R.A.P. 1925(b). Through Attorney
Bradley, Miller filed a Rule 1925(b) statement raising the following issues:
1. Whether PCRA counsel was ineffective in representation when
PCRA counsel failed to include email evidence to show that trial
counsel was ineffective.
2. Whether [the trial court] erred in finding that trial counsel was
effective in representation thus denying Mr. Miller’s PCRA petition.
Pa.R.A.P. 1925(b) Statement, 12/2/21, at 1.
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The court issued a responsive “Memorandum Statement in Lieu of
Opinion,” acknowledging that Miller was raising his claim of PCRA counsel
ineffectiveness for the first time on appeal, which was the earliest possible
opportunity he could do so. Pa.R.A.P. 1925(a) Memorandum, 12/6/21, at 2.
The court stated that it is “in no position to address this claim as no facts or
testimony have been presented to the Court other than the bare assertion
contained in the 1925(b) Statement,” and that, “[p]resuming the Superior
Court will also be unable to properly adjudicate the merits of this claim, we
trust that Court will decide whether remand is appropriate to conduct a
hearing and take testimony.” Id.
In this Court, Attorney Bradley filed a motion to withdraw as counsel,
stating his intention to withdraw pursuant to Anders v. California, 386 U.S.
738 (1967).3 New counsel subsequently entered their appearance: Benjamin
Levine, Esquire, and J. Andrew Salemme, Esquire. We dismissed the
application to withdraw as moot. Attorneys Levine and Salemme have filed an
advocates’ brief, raising the following issues:
A. Whether PCRA counsel was ineffective in failing to raise trial
counsel’s ineffectiveness for neglecting to raise a Brady4 claim
where law enforcement failed to turn over text messages between
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3 But see Commonwealth v. Kennedy, 266 A.3d 1128, 1130 n. 4
(Pa.Super. 2021) (noting that an Anders brief is not the proper device for
withdrawal from representation in a PCRA appeal; counsel should file a no-
merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en
banc).
4 Brady v. Maryland, 373 U.S. 83 (1963).
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K.M. and Miller from May 2016 through end of July 2016, which
were potential impeachment evidence?
B. Whether PCRA counsel was ineffective in declining to raise trial
counsel’s ineffectiveness for failing to allege a discovery violation
on the part of the Commonwealth for failing to turn over text
messages between K.M. and Miller from May 2016 through July
2016 and not seeking a spoilation [sic] instruction?
C. Whether PCRA counsel was ineffective in failing to raise trial
counsel’s ineffectiveness for inadequately cross-examining law
enforcement concerning a police report (or failing to call the
author) that reflected that they reviewed text messages between
Miller and K.M. from May 2016 through July 2016, but failed to
turn over those messages?
D. Whether PCRA counsel was ineffective in failing to use e-mail
communications and phone records and call Miller’s sister to
impeach the testimony of trial counsel who erroneously claimed
that Miller did not want to testify or personally meet with trial
counsel to prepare for trial and testimony?
E. Whether PCRA counsel was ineffective in failing to present
character witnesses at Miller’s PCRA hearing to establish trial
counsel’s ineffectiveness in declining to present character
evidence that Miller had a reputation in the community of chaste
behavior with teenage females?
F. Whether PCRA counsel was ineffective in failing to object to the
prosecutor’s improper questioning of Miller as to whether trial
counsel was lying about Miller’s desire to testify?
Miller’s Br. at 9-10 (answers below omitted).5
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5 Miller does not allege that his interim counsel, Attorney Bradley, was
ineffective for failing to preserve the issues relating to PCRA counsel’s
ineffectiveness more specifically in Miller’s Rule 1925(b) statement. However,
neither the PCRA court nor the Commonwealth argue that the issue of PCRA
counsel’s ineffectiveness was waived for lack of specificity in the Rule 1925(b)
statement. Moreover, as Attorney Bradley intended to withdraw pursuant to
Anders, he should have filed a statement pursuant to Rule 1925(c)(4), which
does not waive any issues but allows this Court to remand for new counsel to
pursue any issues this Court deems arguably meritorious. We therefore find
(Footnote Continued Next Page)
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Miller’s issues on appeal all claim PCRA counsel was ineffective. He first
argues that PCRA counsel was ineffective because she failed to argue that
Miller’s trial counsel was ineffective for failing to raise a Brady claim. Miller
argues the Commonwealth violated Brady6 by failing “to turn over two months
of text messages.” Miller’s Br. at 18. Miller posits that according to a January
2017 police report, the police reviewed text messages between Miller and the
victim dating back to May 2016, but the prosecution only provided text
messages that began in July 2016. According to Miller, the victim testified at
trial that she had deleted the messages, contradicting the police report. He
argues that the missing messages could have been used to impeach the
victim, who had testified that Miller had engaged in sexual conversations at
the initiation of their correspondence and without her participation. Miller
claims the evidence was material “as almost the entire prosecution case
hinged on introduction of text message exchanges between Miller and K.M.”
Id. at 22. Miller argues that he raised the issue to PCRA counsel, who had no
reasonable basis for failing to pursue it, and that issues of material fact exist
which require remand: “the impeachment value of the non-disclosed text
messages, why those texts were not disclosed, and what basis prior counsel
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waiver under Rule 1925(b)(4)(vii) is not implicated under the facts of this
case.
6 Evidence is Brady material where it is “favorable to the accused, either
because it is exculpatory or because it impeaches; (2) the prosecution has
suppressed the evidence, either willfully or inadvertently; and (3) the evidence
was material, meaning that prejudice must have ensued.” Commonwealth
v. Bagnall, 235 A.3d 1075, 1084 n.10 (Pa. 2020).
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had for not pursuing recovery of those texts and asserting a Brady claim.”
Id. at 23.
Second, Miller argues that even if the missing text messages do not
qualify as a Brady violation, trial counsel was ineffective for failing to pursue
a discovery violation based on the missing messages and a spoliation jury
instruction regarding the missing messages. Id. at 24. He claims this caused
him prejudice because “trial counsel marshalled no real defense and an
instruction that the Commonwealth’s failure to provide two months of text
messages between [the victim] and Miller could be considered as presumptive
evidence in favor of Miller would have been invaluable.” Id. at 26. Miller
argues PCRA counsel was likewise ineffective for failing to raise trial counsel’s
ineffectiveness on this basis, and that this failure was without reasonable basis
and caused him prejudice.
Miller’s third issue also relates to the missing text messages. Miller
contends that trial counsel was ineffective for failing to adequately cross-
examine the lead detective regarding the police report that stated police had
reviewed the text messages between Miller and the victim between May and
July 2016. Miller argues the cross-examination would have revealed whether
the police report was incorrect, police withheld the evidence, or the victim was
lying about having deleted the messages. Miller argues that neither trial nor
PCRA counsel could have a reasonable basis for failing to pursue this claim,
and that he suffered prejudice, as the victim’s credibility was the lynchpin at
trial. Miller argues that remand for an evidentiary hearing is warranted, as
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there is a factual dispute between the contents of the police report and the
victim’s testimony and a need to inquire into counsel’s reasons for inaction.
Miller next argues that PCRA counsel was ineffective in her presentation
of his claim that trial counsel was ineffective in failing to prepare for trial and
in advising Miller whether he should testify. Miller claims that trial counsel lied
at the PCRA hearing when he testified that Miller had not wanted to testify or
meet to prepare for trial. Miller argues PCRA counsel should have impeached
counsel’s untruthful testimony using e-mail communications, phone records,
and the testimony of Miller’s sister, who allegedly would have said that she
witnessed trial counsel advise Miller not to testify. Miller argues remand is
necessary for the PCRA court to examine this evidence, which is not in the
record.
Miller further argues that PCRA counsel was ineffective in her
presentation of his claim that trial counsel had failed to present any character
witnesses to testify to his reputation for chasteness. According to Miller, in her
petition, PCRA counsel provided the names of eight potential character
witnesses, and these individuals were available and willing to testify. Miller
also argues trial counsel had no reasonable basis not to present these
witnesses, as the Commonwealth could not have cross-examined the
character witnesses regarding Miller’s prior convictions, because the
convictions were more than ten years old and the character traits at issue
were unrelated. He argues trial counsel “incorrectly perceived that character
evidence was not valuable unless [Miller] testified.” Id. at 39. Miller alleges
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he suffered prejudice because character evidence is sufficient to raise a
reasonable doubt at trial. He argues that PCRA’s counsel’s failure to call the
witnesses resulted in dismissal of his claim. Miller requests we remand for an
evidentiary hearing related to the testimony of the potential character
witnesses and counsels’ failure to present them.
Finally, Miller argues that PCRA counsel was ineffective for failing to
object to improper questioning at the PCRA hearing. Miller argues that a
prosecutor may not question a witness regarding whether he believes another
witness is lying. He asserts that at the PCRA hearing, the prosecutor asked
him whether trial counsel would be lying if he testified that he had begged
Miller to testify at trial. Miller claims PCRA counsel’s failure to object to this
statement undermined his credibility at the PCRA hearing. Miller argues the
issue necessitates an evidentiary hearing regarding the reason for counsel’s
failure to object.
The Commonwealth has filed a brief but it does not respond to Miller’s
allegations of PCRA counsel’s ineffectiveness.
“On appeal from the denial of PCRA relief, an appellate court’s standard
of review is whether the ruling of the PCRA court is free of legal error and
supported by the record.” Commonwealth v. Jones, 932 A.2d 179, 181
(Pa.Super. 2007).
A petitioner pursuing a claim of ineffective assistance of counsel must
plead and prove that “the issue underlying the claim of ineffectiveness has
arguable merit, that defense counsel’s act or omission was not reasonably
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designed to advance the interests of the defendant, and that the defendant
was prejudiced – that is, but for counsel’s errors, the outcome of the
proceeding would have been different.” Commonwealth v. Crumbley, 270
A.3d 1171, 1181 (Pa.Super. 2022) (quoting Commonwealth v. Bradley,
261 A.3d 381, 390 (Pa. 2021)), appeal denied, No. 110 WAL 2022 (Pa. 2022).
“Where a petitioner alleges multiple layers of ineffectiveness, he is required
to plead and prove, by a preponderance of the evidence, each of the three
prongs of ineffectiveness relevant to each layer of representation.”
Commonwealth v. Parrish, 273 A.3d 989, 1003 n.11 (Pa. 2022).
A PCRA petitioner must “raise claims of ineffective assistance of counsel
at the first opportunity to do so, even when on appeal.” Bradley, 261 A.3d at
401.7 If a petitioner presents an ineffectiveness claim for the first time on
appeal and “relief is not plainly unavailable as a matter of law,” we may
“remand to the PCRA court for further development of the record and for the
PCRA court to consider such claims as an initial matter.” Id. at 402 (citation
omitted). To be entitled to remand, the petitioner must establish that there
are material facts at issue regarding counsel’s effectiveness. Parrish, 273
A.3d at 1006.
We find some of the allegations warrant remand. Miller’s first three
issues relate to two months of text messages mentioned in a police report that
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7 Claims of PCRA counsel’s ineffectiveness “spring from the original petition”
such that they do not constitute a serial petition or implicate timeliness
concerns. Bradley, 261 A.3d at 404.
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were not produced to Miller, not introduced at trial, and that the victim
testified she had deleted. Without further facts regarding the existence or
contents of the text messages, or the averments of the police and prosecutor,
there is no way to discern whether a Brady or discovery violation occurred or
whether any prejudice resulted. Without an inquiry into counsel’s reasoning,
we are also unable to determine whether trial counsel lacked a reasonable
basis for failing to pursue these claims, or for failing to expose the
contradiction between the police report and the victim’s testimony through
cross-examination. We likewise are unable to determine whether PCRA
counsel was ineffective for failing to pursue these claims of trial counsel
ineffectiveness.
Similarly, we are unable to determine whether PCRA counsel was
ineffective in presenting the claims of trial counsel ineffectiveness based on a
lack of preparation, erroneous advice regarding whether Miller should testify,
or a failure to present character evidence. Miller asserts that he has evidence
to support each of these claims; but, obviously, as PCRA counsel did not
present the alleged evidence, it is not yet a part of the record. Miller has made
a colorable demonstration that PCRA and trial counsel lacked reasonable bases
regarding these issues and that prejudice ensued; however, further factual
inquiry is necessary.
Miller’s final argument — that PCRA counsel was ineffective for failing to
object when the prosecutor asked whether he believed trial counsel to be lying
during his PCRA testimony — does not warrant relief. At the PCRA hearing,
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the prosecutor asked Miller, “[S]o if counsel gets up here and says he begged
you [to] testify, is he lying?” N.T., 7/7/21, at 22. Miller responded, “I would
say he’s absolutely incorrect, yes.” Id. The prosecutor responded, “So he’s
lying . . . You know what, nothing else.” Id.
Miller argues PCRA counsel should have objected, but the only authority
he cites are decisions by federal courts of appeals. Those decisions obviously
do not bind us. Miller has not cited any authority supporting this argument
that does, and we are aware of none. We will not find counsel ineffective for
failing to object to questioning that is not contrary to controlling law.
Commonwealth v. Dennis, 950 A.2d 945, 978 (Pa. 2008) (“[W]e will not
hold trial counsel ineffective for failing to anticipate a change in the law”). We
see nothing objectionable in the prosecutor’s comment, when viewed in
context. We also find any prejudice caused by this question to be de minimis,
considering the hearing was before a judge, not a jury. See Commonwealth
v. O'Brien, 836 A.2d 966, 972 (Pa.Super. 2003). It is therefore not likely to
have changed the outcome of the PCRA proceeding. Accordingly, we deny
Miller’s sixth claim as a matter of law.
We remand for the PCRA court to hold an evidentiary hearing for the
development and consideration of Miller’s first five claims. See Parrish, 273
A.3d at 1007 (remanding for development of petitioner’s ineffective assistance
of PCRA counsel claims that were raised for the first time on appeal).
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Case remanded with instructions. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/25/2023
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