Com. v. Schultz, P.

J-S65028-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PHILIP SCHULTZ
Appellant No. 455 EDA 2014
Appeal from the PCRA Order January 21, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0301021-2004
CP-51-CR-0901331-2003
CP-51-CR-1015991-2004
BEFORE: PANELLA, OLSON and PLATT,* JJ.
MEMORANDUM BY OLSON, J.: FILED NOVEMBER 18, 2014
Appellant, Philip Schultz, appeals from the order entered on January
21, 2014 dismissing his second petition filed pursuant to the Post-Conviction
Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541-9546. We affirm.
This Court has previously summarized the factual background of this
case as follows:
Appellant was tried for three separate crimes: the July 6, 1999
rape of A.M.; the March 24, 2003 kidnapping of A.Q.; and the
May 14, 2003 rape of L.T.
A.M.
On the afternoon of July 6, 1999, Appellant was operating a
1999 GMC Sport Utility Vehicle on Kensington Avenue in an area
known for prostitution. The vehicle was registered to Appellant
and his mother. Appellant stopped the vehicle in order to
engage in conversation with A.M., a 27-year-old white female.
* Retired Senior Judge assigned to the Superior Court.
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She agreed to have vaginal sex with Appellant for $50.00. She
entered the vehicle, and he drove to a wooded area. Appellant
told her that his wife had just had a baby and was not giving him
sex. He also told her that his sister was a Philadelphia police
officer. A.M. observed a baby seat in the back of the vehicle.
When they exited the vehicle, Appellant offered additional money
if A.M. allowed intercourse without a condom; A.M. refused the
offer. Appellant then became aggressive and forced his penis
into A.M.’s throat, vagina[,] and anus against her will. After
Appellant ejaculated, Appellant told A.M. not to report what had
happened, because Appellant would learn of the report from his
sister and would retaliate.
Appellant left A.M. and drove away. A.M. memorized the license
plate. A.M. reported the incident and was taken to Episcopal
Hospital where a rape kit was taken for semen samples from her
vagina, vulva, cervix[,] and throat. After Appellant’s arrest, DNA
testing showed that the semen was Appellant’s. A.M. refused to
discuss the incident with police, and the matter was not pursued
until A.M. was interviewed four years later after Appellant had
become the suspect in other sexual offenses. By that time, A.M.
had difficulty remembering some details of the assault.
M.L.[1]
[At trial, M.L. testified as follows.2] On the evening of May 20,
2001, Appellant was operating a dark SUV on Kensington
Avenue. He pulled up to M.L., a 29-year-old white female, who
was standing on the highway. M.L. willingly entered Appellant’s
vehicle and observed two baby seats.
Appellant drove to a wooded area. After exiting the vehicle,
Appellant forced M.L. onto her hands and knees, pulled her pants
down[,] and forced his penis into her vagina against her will.
1
The most recent evidence of record indicates that M.L. is currently married
and no longer uses her maiden name. For clarity, we refer to her as M.L.
throughout this memorandum.
2
As discussed in great depth infra, M.L. has since recanted portions of her
trial testimony as evidenced in a hand written statement dated December
27, 2012.
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Appellant did not use a condom. He then drove away and left
M.L. alone in the woods; she did not observe the license plate
number.
M.L. called the police, who took her to Episcopal Hospital where
she was treated for scratches and bruises. A rape kit was taken
and semen was recovered from her panties and vagina. DNA
testing showed that the semen was Appellant’s.
After Appellant was arrested, his attorney provided the
Commonwealth with evidence that tended to show that M.L. was
engaged in prostitution. After M.L. was confronted with the
evidence, she failed to appear for trial. At that point, the trial
court granted the Commonwealth’s motion to nolle pros the case
without prejudice.
A.Q.
On the evening of March 24, 2003, Appellant was operating the
same 1999 GMC SUV which was registered to Appellant and his
mother. Appellant spoke to A.Q., a 16-year-old white female
who was walking on Jasper Street near Tioga Street
(approximately one block from Kensington Avenue). Appellant
convinced [A.Q.] to enter the vehicle. Appellant spoke with her
for about ten minutes, during which time he told her that his
wife had just had a baby and had moved out. He also told A.Q.
that he was a Philadelphia police officer. Then, suddenly, he
drove off. A.Q. tried to open the door, but found that it was
locked. After crossing the Tacony Palmyra Bridge and crossing
into New Jersey, Appellant stopped the vehicle in a New Jersey
field or parking lot and told A.Q. to give him oral sex. When she
refused, Appellant forced her head into his lap and ignored her
cries until he ejaculated. Appellant did not use a condom.
After he had ejaculated, Appellant told A.Q. to spit out the
semen; she did. Appellant then drove back to the middle of the
Tacony Palmyra Bridge, where he ordered A.Q. out of the
vehicle. As he drove away, A.Q. memorized the license plate
number.
L.T.
On the evening of May 14, 2003, Appellant was operating an
SUV in the area of Kensington Avenue and Hilton Street. He
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pulled the vehicle up to L.T., a 23-year-old white female who
was standing on the sidewalk with two other women. L.T.
willingly entered the vehicle. Appellant told her that his wife had
just had a baby. He also told her that he was a Philadelphia
police officer assigned to the 9th police district. Appellant drove
to a ditch near a parking lot on Erie Avenue, climbed on top of
[L.T.], pulled his pants down and forced his penis into her vagina
even though she told him to stop. Appellant did not use a
condom. After ejaculating, he drove to Kensington Avenue and
Ontario Street and left her there. Police took L.T. to Episcopal
Hospital. DNA testing of the sperm recovered with a rape kit
showed that it was Appellant’s sperm.
Commonwealth v. Schultz, 46 A.3d 818 (Pa. Super. 2012) (unpublished
memorandum), at 1-4, appeal denied, 50 A.3d 126 (Pa. 2012) (internal
alterations, ellipses, and citation omitted).
We have previously summarized the procedural history of this case as
follows.
Appellant was first arrested on July 31, 2001 for the assault on
M.L.. The nolle pros was granted on May 29, 2002. On June 30,
2003, Appellant was arrested for the assault on L.T. . . . On
January 9, 2004, he was held for court for the assault on A.Q.
On February 19, 2004, Appellant was held for court for the
assault on A.M. The Commonwealth moved to consolidate the
trials for the assaults on A.M., A.Q.[,] and L.T. It also filed a
motion in limine to introduce evidence of Appellant’s assault on
M.L. The trial court granted both of the Commonwealth’s
motions.
On May 18, 2005, the jury found Appellant guilty of two counts
of rape,[3] two counts of impersonating a public servant,[4] and
one count each of kidnapping,[5] unlawful contact with a minor,[6]
3
18 Pa.C.S.A. § 3121.
4
18 Pa.C.S.A. § 4912.
5
18 Pa.C.S.A. § 2901.
(Footnote Continued Next Page)
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and intimidating a witness.[7] On September 16, 2005, a
Megan’s Law II hearing was held pursuant to 42 Pa.C.S.A.
§ 9754.4 [(repealed)], and Appellant was determined to be a
sexually violent predator within the meaning of the Act. On
January 13, 2006, Appellant was sentenced to serve an
aggregate term of 20½ to 51 years[’ imprisonment].
On November 30, 2007, this Court affirmed Appellant’s
judgment of sentence and, on July 1, 2008, [our] Supreme Court
denied Appellant’s petition for allowance of appeal.
Commonwealth v. Schultz, 944 A.2d 804 (Pa. Super. 2007)
(unpublished memorandum), appeal denied, 951 A.2d 1163 (Pa.
2008).
On April 29, 2009, Appellant filed a timely, pro se PCRA petition.
The PCRA court appointed counsel to represent Appellant. After
independently reviewing the record, however, appointed counsel
found Appellant’s petition to be meritless. Therefore, counsel
filed a no-merit letter and petitioned the court for leave to
withdraw representation. See Commonwealth v. Turner, 544
A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213(Pa. Super. 1988) (en banc). . . . [O]n August 10, 2010, the
PCRA court finally dismissed Appellant’s [first] PCRA petition.
Appellant then filed a timely, pro se notice of appeal.
Commonwealth v. Schultz, 46 A.3d 818 (Pa. Super. 2012) (unpublished
memorandum), at 4-5 (certain internal citations omitted). We affirmed, id.
at 13, and our Supreme Court denied Appellant’s petition for allowance of
appeal. Commonwealth v. Schultz, 50 A.3d 126 (Pa. 2012).
Thereafter, on February 22, 2013, Appellant filed a counseled second
PCRA petition. Appellant averred that the PCRA court possessed jurisdiction
over his patently untimely second PCRA petition because he had satisfied the
_______________________
(Footnote Continued)
6
18 Pa.C.S.A. § 6318.
7
18 Pa.C.S.A. [§ 4952].
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after-discovered evidence and government interference exceptions. To
establish his right to substantive relief, Appellant alleged that the
Commonwealth violated his right to due process of law by failing to disclose
materials pursuant to Brady v. Maryland, 373 U.S. 83 (1963). Specifically,
he alleged that the Commonwealth failed to inform him that M.L. was
reluctant to testify at trial and that law enforcement responded by
threatening her with legal consequences. In support of this argument,
Appellant relied upon a handwritten statement allegedly prepared by M.L.
and dated December 27, 2012. Appellant also alleged that the
Commonwealth violated his right to due process by entering into evidence
M.L.’s testimony pursuant to Pennsylvania Rule of Evidence 404(b). Finally,
he alleged that all of his prior counsel rendered ineffective assistance by
failing to raise and pursue these claims. After giving notice pursuant to
Pennsylvania Rule of Criminal Procedure 907(1), the PCRA court dismissed
Appellant’s petition on January 21, 2014, finding that Appellant’s petition
was untimely and that he had failed to satisfy any of the PCRA’s timeliness
exceptions. This timely appeal followed.8
Appellant presents four issues for our review:
1. Did the [PCRA] court have jurisdiction over Appellant’s PCRA
[petition] under the after-discovered evidence and/or
8
The PCRA court did not order a concise statement of errors complained of
on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925. On
April 10, 2014, however, the PCRA court issued an opinion setting forth its
rationale for dismissing Appellant’s second PCRA petition.
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government interference exceptions to the requirement that
the petition be filed within one year of final judgment?
2. Did the Commonwealth violate Appellant’s due process rights
by suppressing exculpatory evidence when [M.L.] told law
enforcement before trial that she did not want to testify and
law enforcement then told her she would have problems with
her probation if she did not testify, resulting in her only years
later disclosing that she invented the forcible rape aspects of
her testimony?
3. Did the Commonwealth violate due process of law when it
introduced evidence of uncharged offenses, which had earlier
been dismissed because the complainant was determined to
have lied, thus denying Appellant his opportunity to test the
uncharged allegations[, and w]ere trial, direct appeal, and
initial [PCRA] counsel ineffective for failing to litigate this
claim?
4. Did the [PCRA] court err when it refused to consider that the
above three claims were not reviewable because of the
ineffective assistance of initial [PCRA] counsel?
Appellant’s Brief at 1-2.
“Our standard of review of an order denying PCRA relief is whether the
record supports the PCRA court’s findings of fact, and whether the PCRA
court’s determination is free of legal error.” Commonwealth v. Wantz, 84
A.3d 324, 331 (Pa. Super. 2014) (citation omitted). “The scope of review is
limited to the findings of the PCRA court and the evidence of record, viewed
in the light most favorable to the prevailing party at the trial level.”
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).
Furthermore, as this Court has explained:
[C]ourts will not entertain a second or subsequent request for
PCRA relief unless the petitioner makes a strong prima facie
showing that a miscarriage of justice may have occurred.
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Appellant makes a prima facie showing of entitlement to relief
only if he demonstrates either that the proceedings which
resulted in his conviction were so unfair that a miscarriage of
justice occurred which no civilized society could tolerate, or that
he was innocent of the crimes for which he was charged.
Commonwealth v. Medina, 92 A.3d 1210, 1215 (Pa. Super. 2014) (en
banc) (internal quotation marks and citations omitted).
In his first issue on appeal, Appellant argues that the PCRA court
possessed jurisdiction to consider the merits of his second PCRA petition.
The PCRA court determined that it lacked jurisdiction to consider the merits
of Appellant’s second PCRA petition as it was untimely and Appellant had
failed to prove the applicability of an exception to the PCRA’s timeliness
requirement. A court lacks jurisdiction over the merits an untimely PCRA
petition when the Appellant has failed to plead and prove the applicability of
an exception to the timeliness requirement. Commonwealth v. Callahan,
2014 WL 4696253, *2 (Pa. Super. Sept. 23, 2014).
A PCRA petition is timely if it is “filed within one year of the date the
judgment [of sentence] becomes final.” 42 Pa.C.S.A. § 9545(b)(1). “[A]
judgment becomes final at the conclusion of direct review, including
discretionary review in the Supreme Court of the United States and the
Supreme Court of Pennsylvania, or at the expiration of time for seeking the
review.” 42 Pa.C.S.A. § 9545(b)(3). In this case, there is no dispute that
Appellant’s second PCRA petition was untimely. See Second PCRA Petition,
2/22/13, at 6. Appellant’s judgment of sentence became final on September
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29, 2008. Therefore, in order for a PCRA petition to be considered timely, it
should have been filed on or before September 29, 2009. Appellant’s
second petition was filed in February 2013, and, hence, was patently
untimely.
An untimely PCRA petition may be considered if one of the following
three exceptions applies:
(i) the failure to raise the claim previously was the result of
interference by government officials with the presentation of the
claim in violation of the Constitution or laws of this
Commonwealth or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were unknown
to the petitioner and could not have been ascertained by the
exercise of due diligence; or
(iii) the right asserted is a constitutional right that was
recognized by the Supreme Court of the United States or the
Supreme Court of Pennsylvania after the time period provided in
this section and has been held by that court to apply
retroactively.
42 Pa.C.S.A. § 9545(b)(1)(i-iii). If an exception applies, a PCRA petition
may be considered if it is filed “within 60 days of the date the claim could
have been presented.” 42 Pa.C.S.A. § 9545(b)(2).
Appellant contends that he has satisfied the government interference
and after-discovered evidence exceptions to the PCRA’s one-year timeliness
requirement. We first consider Appellant’s contention that he has satisfied
the after-discovered evidence exception. In order to satisfy the after-
discovered evidence exception, Appellant must plead and prove “that the
facts upon which the Brady claim is predicated were not previously known
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to the petitioner and could not have been ascertained through due
diligence.” Commonwealth v. Hawkins, 953 A.2d 1248, 1253 (Pa. 2006)
(citation omitted).9
Appellant has failed to satisfy his burden of pleading and proving the
applicability of the after-discovered evidence exception. Appellant relies
upon this court’s en banc decision in Medina and a three-judge panel of this
Court’s decision in Commonwealth v. Davis, 86 A.3d 883 (Pa. Super.
2014). We conclude however, that Medina and Davis are distinguishable.
In Medina, the defendant was convicted of murder based in part on the
testimony of two witnesses, the Toro brothers. Medina, 92 A.3d at 1213(citation omitted). Fourteen years after Medina was convicted, and five
years after his judgment of sentence became final, the Toro brothers
recanted their trial testimony. Id. at 1213-1214. Within 60 days of the
recantations, Medina filed a PCRA petition and alleged that the Toro
brothers’ recantations satisfied the after-discovered evidence exception to
9
The PCRA court cited to Commonwealth v. D’Amato, 856 A.2d 806, 823
(Pa. 2004), in support of its application of a four-part analysis of whether
Appellant satisfied the after-discovered evidence exception to the PCRA’s
timeliness requirement. See PCRA Court Opinion, 4/10/14, at 6-7.
D’Amato, however, addressed a substantive after-discovered evidence
claim. Id. “[A]n after-discovered evidence claim and the timeliness
exception based on previously unknown facts are distinct, and the issues are
analyzed differently.” Commonwealth v. Davis, 86 A.3d 883, 891 n.7 (Pa.
Super. 2014) (citation omitted). Specifically, a petitioner is not required to
satisfy the second, third, and fourth elements of the test set forth in
D’Amato in order to satisfy the after-discovered evidence exception and
have his petition considered on the merits.
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the PCRA’s timeliness requirement. See Medina, 92 A.3d at 1217 (citation
omitted). This Court held that that the PCRA court’s conclusion that Medina
had satisfied the after-discovered evidence exception was supported by the
record. Id. at 1218.
In Davis, the defendant was convicted of first-degree murder based,
in part, on the testimony of Jerome Watson (“Watson”). Davis, 86 A.3d at
885-886. Approximately 34 years after Davis’ judgment of sentence became
final, Watson recanted his trial testimony and stated that he had made a
deal with the prosecution that was not disclosed to Appellant. Id. at 888.
We held that since there was no indication at trial that such a deal had been
made, or that Watson was otherwise lying, it would have been unreasonable
to require that Davis seek out information in publicly available documents.
Id. at 890-891.
In both Medina and Davis this Court’s focus was on the fact that
neither Medina nor Davis had reason to look further into the testimony of the
Toro brothers or Watson. In Medina, this Court concluded that Hector
Toro’s testimony was unequivocal and that there was no reason for Medina
to believe that he could elicit exculpatory testimony through a fishing
expedition. Medina, 92 A.3d at 1218-1219. Similarly, in Davis this Court
noted that there was no reason for Davis to look into the public records for
details of a deal between Watson and the Commonwealth. Davis, 86 A.3d
at 890.
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In this case, there were numerous reasons why Appellant should have
sought out information to show M.L.’s testimony was untruthful. First,
Appellant would have been aware that he had not raped M.L. if, in fact, he
had not.10 More importantly, Appellant knew that M.L. failed to show at trial
in the case relating to Appellant’s alleged assault upon M.L. Appellant also
knew that M.L. had previously lied to police regarding her work as a
prostitute. Appellant knew that M.L. was a probationer. Appellant also knew
of the conversation he had with M.L. in the stairwell of the courthouse. 11
When these facts are considered together, a reasonable person would have
searched for evidence that M.L. had lied at trial.
Instead, there is nothing in Appellant’s petition that shows Appellant
searched for such evidence prior to the pendency of the appeal regarding
Appellant’s first PCRA petition. Appellant concedes in his brief that no
10
As noted in Medina and Davis, this alone is not sufficient to prove that
Appellant failed to act with due diligence. That, however, does not mean
that it is an irrelevant fact.
11
M.L.’s December 27, 2012 statement provides in relevant part:
I believe it was before I testified [at Appellant’s trial] I was
smoking in the courthouse stairwell when [Appellant]
approached me. [Appellant] wasn’t threatening but I was
uncomfortable. I was a bit intimidated because we both
knew I was lying. I didn’t know him, other than the one
encounter and didn’t know what he was capable of. He
said he would pay me to tell the truth. I said no and ran
back to the floor.
M.L. Statement, 12/27/12, at 2.
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investigator was hired to look for such information until Appellant hired his
current counsel for the filing of a federal habeas corpus petition. Upon the
hiring of an investigator, Appellant was able to quickly locate M.L. and she
recanted her trial testimony and gave the statement relied upon by
Appellant. This is markedly different than Davis, in which there was
evidence that Davis had hired an individual to search for Watson but was
12
unable to locate him. Davis, 86 A.3d at 891.
Appellant waited over eight years after the trial in this matter to locate
M.L. and convince her to recant her testimony. The fact that Appellant had
court-appointed counsel during much of this period is irrelevant. The burden
ultimately falls upon the petitioner to exercise due diligence. In this case,
there is simply no evidence that Appellant acted with due diligence until he
hired his current counsel during the pendency of the appeal of his first PCRA
petition. We therefore conclude that Appellant failed to plead and prove that
he filed his second PCRA petition within 60 days of when he could have
received this after-discovered evidence with the exercise of due diligence.
12
Appellant cites to Commonwealth v. Bennett, 930 A.2d 1264, 1274 (Pa.
2007) in support of his argument that we should remand for an evidentiary
hearing on due diligence. Bennett, however, is distinguishable from the
case at bar. In Bennett, the petitioner alleged that his prior counsel had
abandoned him. Id. He had taken several steps on his own which
constituted due diligence to ascertain whether counsel had abandoned him,
i.e., writing to this Court and the PCRA court. Id. at 1272. Thus, our
Supreme Court determined that he was entitled to an evidentiary hearing on
whether he acted with due diligence. In this case, Appellant did not plead
that he took such actions.
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Having determined that Appellant has failed to satisfy his burden of
proving the applicability of the after-discovered evidence exception, we next
turn to whether Appellant has satisfied his burden of proving the applicability
of the government interference exception to the PCRA’s timeliness
requirement. “Although a Brady violation may fall within the government[]
interference exception, [Appellant] must plead and prove the failure to
previously raise the claim was the result of interference by government
officials[.]” Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa.
2008) (citation omitted).13 In this case, Appellant has failed to plead and
prove that the government interfered with his ability to previously raise his
claims. To the contrary, Appellant has had full access to the courts
throughout his confinement. He was able to raise and litigate issues during
his first PCRA petition and began his strategy to litigate this second PCRA
petition while his first PCRA petition was still pending. As such, the
government did not interfere with Appellant’s ability to raise the claims set
forth in his second PCRA petition. Thus, Appellant has failed to plead and
prove that the government interference exception to the PCRA’s timeliness
requirement applies in this case.
13
Appellant argues that Abu-Jamal makes clear that there is no due
diligence requirement with respect to the government interference
exception. The PCRA and Abu-Jamal, however, make clear that, in order
for the government interference exception to apply, the government must
have prevented Appellant from presenting his claim.
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Appellant also contends that the PCRA court possessed jurisdiction to
consider the merits of his claims because of his prior counsels’
ineffectiveness in failing to raise those claims at trial, on direct appeal,
and/or in his first PCRA petition. However, “a petitioner’s belief that he has
uncovered a colorable claim of ineffectiveness by prior counsel does not
entitle the petitioner to an exception to the [PCRA’s] timeliness
requirements.” Commonwealth v. Crews, 863 A.2d 498, 503 (Pa. 2004)
(citations omitted); see Commonwealth v. Bennett, 930 A.2d 1264, 1272
(Pa. 2007) (citations omitted). Accordingly, his prior counsels’ alleged
ineffectiveness does not provide an exception to the PCRA’s one-year time-
bar. Therefore, Appellant has failed to plead and prove the applicability of
any of the PCRA’s timeliness exceptions. As such, the PCRA court correctly
held that it lacked jurisdiction to consider the merits of Appellant’s second
PCRA petition.
Even if the PCRA court had possessed jurisdiction to consider the
merits of Appellant’s second PCRA petition, we conclude that Appellant failed
to plead and prove that his conviction was a miscarriage of justice and/or
that he was actually innocent.14 See Medina, 92 A.3d at 1215 (citations
omitted).15
14
Appellant’s very able counsel avers that he was originally retained to file a
federal habeas corpus petition. Appellant, through counsel, filed a federal
habeas corpus petition on January 11, 2013. Schultz v. Wenerowicz,
13cv177 (E.D. Pa.). In order to prevail in his federal habeas corpus
(Footnote Continued Next Page)
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“A Brady violation consists of three elements: (1) suppression by the
prosecution (2) of evidence, whether exculpatory or impeaching, favorable
to the defendant, (3) to the prejudice of the defendant.” Commonwealth
v. Tedford, 960 A.2d 1, 30 (Pa. 2008).16 Appellant fails to satisfy both the
first and third elements of a Brady claim.
As to the first element, M.L. does not aver in her statement that she
told the Commonwealth that her story was false. M.L. likewise does not
aver in her statement that she told the Commonwealth that she was
reluctant to testify. Instead, M.L. stated that:
[Appellant saw me in the stairwell and] said he would pay me to
tell the truth. I said no and ran back to the [courtroom]. The
lady detective caught me and asked what happened. I told her
but I didn’t tell her I lied. I knew I could tell the truth but
was afraid. I didn’t want to testify. The detectives dropped
_______________________
(Footnote Continued)
litigation, however, Appellant is required to exhaust his remedies in state
court. See 28 U.S.C. § 2254(b)(1)(A). Thus, Appellant’s counsel filed the
instant PCRA petition in February, 2013. After Appellant’s second PCRA
petition was filed, the United States District Court for the Eastern District of
Pennsylvania stayed and administratively closed Appellant’s federal habeas
corpus case pending the outcome of these proceedings. Schultz v.
Wenerowicz, 13cv177 (E.D. Pa. Mar. 26, 2013). Out of an abundance of
caution, we proceed to an alternative merits analysis. See Rolan v.
Coleman, 680 F.3d 311, 319–321 (3d Cir. 2012) (deference is owed to
state court’s alternative merits analysis under the Antiterrorism and Effective
Death Penalty Act).
15
We note that even if this were Appellant’s first PCRA petition, we would
come to the same conclusions regarding the merits of his Brady, Rule
404(b), and ineffectiveness claims.
16
Courts use the term “prejudice” interchangeably with the term
“materiality.” See Banks v. Dretke, 540 U.S. 668, 698 (2004).
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hints they knew I was a probationer. It was enough to frighten
me[.]
M.L.’s Statement, 12/27/12, at 2 (emphasis added).
Thus, Appellant has failed to plead and prove that the Commonwealth
suppressed evidence that M.L. was lying. It is axiomatic that in order to
suppress evidence the Commonwealth must possess such evidence (or
should possess such evidence). In this case the Commonwealth took
reasonable steps to ascertain if M.L. were telling the truth, i.e., the female
detective asked M.L. what had occurred. Yet, M.L. failed to tell the
detective, or any other officer of the Commonwealth, that she was reluctant
to testify.
M.L.’s allegation that the detectives dropped hints that they knew she
was on probation does not rise to the level of intimidation or a Brady
violation as is argued by Appellant. M.L. does not allege that the detectives
inferred that if she testified truthfully that her probationary sentence would
be jeopardized. Instead, she states only that they inferred they knew she
was a probationer. Any fear that M.L. may have had based upon these hints
was suspect. Accordingly, Appellant has failed to satisfy the first prong of a
Brady claim.
Furthermore, Appellant has failed to prove the necessary prejudice
under Brady. In order to prove prejudice under Brady, Appellant is
required to show that if the evidence had been disclosed prior to trial, there
is a “reasonable probability of a different result.” Banks v. Dretke, 540
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U.S. 668, 699 (2004) (citation omitted). “A reasonable probability for these
purposes is one which undermines confidence in the outcome of the trial.”
Commonwealth v. Simpson, 66 A.3d 253, 264 (Pa. 2013) (internal
quotation marks and citation omitted).17
M.L.’s testimony was admitted under Pennsylvania Rule of Evidence
404(b) as a prior bad act. Appellant was not charged with the rape of M.L.
The crimes Appellant was charged with related to his assaults of A.M., A.Q.,
and L.T.18 All three of those victims testified convincingly at trial as outlined
above. In contrast, as M.L. notes in her statement, and as Appellant admits
in his brief, defense counsel was able to impeach M.L. at trial. Specifically, it
was noted that M.L. had previously lied to police, that the charges against
Appellant for the rape of M.L. had been dropped after M.L. did not report for
trial, and that M.L. was a probationer. Thus, when considered in context,
M.L.’s testimony was a very minor portion of the Commonwealth’s case. The
main witnesses against Appellant were A.M., A.Q., and L.T. who have not
recanted their testimony. As such, there is not a reasonable probability that
17
Appellant focuses on the PCRA court’s use of the term “would not have
been different.” Appellant’s Brief at 17 (emphasis in original), quoting PCRA
Court Opinion, 4/10/14, at 12. It is obvious, however, that if the outcome of
Appellant’s trial would have been the same then there is no reasonable
probability that the outcome would have been different. Thus, we interpret
the PCRA court’s statement as evidencing its belief that Appellant fell short
of proving prejudice under Brady.
18
Although Appellant was not expressly charged with the sexual assault of
A.Q., the charges involving A.Q. were related to the sexual assault.
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the outcome of the trial would have been different if the Commonwealth
would have informed Appellant prior to trial that M.L. was reluctant to
testify.19
Appellant argues that statements made by the prosecution during its
closing arguments are evidence that M.L.’s testimony was critical to the
Commonwealth’s case. The test for prejudice under Brady, however, is an
objective one. See In re Sassounian, 887 P.2d 527, 532–533 (Cal. 1995),
citing Strickland v. Washington, 466 U.S. 668, 695 (1984). Prior to a
conviction, prosecutors believe that every piece of incriminating evidence
against a defendant is critical to their case and argue as such to courts (in
the suppression context) and juries (in the trial context). After a conviction,
prosecutors believe that no piece of incriminating evidence is critical to their
case and argue as such to this Court. It is our duty, however, to determine,
based on objective criteria, if there is a reasonable probability that the
outcome of the proceedings would have been different if the evidence had
been disclosed prior to trial. We conclude that there is not such a
reasonable probability in this case. Therefore, Appellant has failed to prove
the requisite prejudice for a successful Brady claim. Accordingly, as
Appellant has failed to plead and prove that his underlying Brady claim has
19
To be clear, “The test for materiality ‘is not a sufficiency of [the] evidence
test.’” Amado v. Gonzalez, 758 F.3d 1119, 1139 (9th Cir. 2014), quoting
Kyles v. Whitley, 514 U.S. 419, 434 (1995). Nonetheless, the evidence of
Appellant’s guilt was so overwhelming that we conclude that evidence of
M.L.’s reluctance to testify was not material under Brady.
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merit, he would not have been entitled to relief if the PCRA court had
possessed jurisdiction over the claim.
If the PCRA court had jurisdiction to consider the merits of Appellant’s
Rule 404(b) claim, we would likewise conclude that the PCRA court correctly
dismissed the petition. Appellant contends that the Commonwealth violated
his due process rights by introducing M.L.’s testimony. Appellant argues
that the Commonwealth’s nolle pros of the charges relating to Appellant’s
alleged sexual assault of M.L., due to M.L.’s originally telling police that she
was not working as a prostitute, precluded introduction of M.L.’s testimony.
He claims that such admission violated his due process rights under the
Fourteenth Amendment.
As this Court has explained, Pennsylvania Rule of Evidence 404(b) “is
not limited to evidence of crimes that have been proven beyond a
reasonable doubt in court. It encompasses both prior crimes and prior
wrongs and acts, the latter of which, by their nature, often lack definitive
proof.” Commonwealth v. Lockcuff, 813 A.2d 857, 861 (Pa. Super.
2002), appeal denied, 825 A.2d 638 (Pa. 2003).
We first note that Appellant’s argument that the admission of M.L.’s
testimony under Rule 404(b) violated his due process rights is waived for the
purposes of PCRA review. Appellant could have raised such a claim on direct
appeal since all of the facts upon which this argument are predicated were
known at the time of trial. See Commonwealth v. Michaud, 70 A.3d 862,
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869 n.7 (Pa. Super. 2013) (citation omitted). As such, he may not raise
allegation of error in his second PCRA petition.
Even if this argument were not waived for PCRA purposes, it is without
merit. Appellant implies that the prosecution knew that M.L. lied about the
alleged rape. However, as discussed above, the prosecution had no
indication that M.L. was reluctant to testify against Appellant in this trial
because her allegations of rape were untrue. Instead, what the
Commonwealth was aware of was the fact that M.L. initially lied to police
regarding whether she was working as a prostitute on the night she was
allegedly raped by Appellant.20 During the trial in this case, the prosecution
did not misrepresent whether M.L. was working as a prostitute. In fact, it
eventually surfaced during trial that M.L. was indeed working as a prostitute
on the night that she was allegedly raped by Appellant. Thus, the
prosecution did not intentionally permit M.L. to testify untruthfully in this
matter.
In the case sub judice, M.L. lied to police during the investigation of
her alleged rape and the charges were dismissed. The Commonwealth still
produced evidence of M.L.’s alleged rape under Pennsylvania Rule of
Evidence 404(b). Defense counsel was then able to impeach M.L. with this
20
Even if the Commonwealth were aware of M.L.’s status as a working
prostitute, this fact would not, by itself, defeat any contention that she had
been raped by Appellant. Such facts are only relevant to whether any
sexual activity between Appellant and M.L. was consensual.
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prior false statement. We see no reason that the fact-finder should not have
been able to determine whether to believe M.L.’s testimony. The jury was
presented with all relevant information that was available at the time and it
could have chosen to disregard M.L.’s testimony because of her prior false
statements to police.
Finally, we note that “violations of state rules of procedure do not
automatically constitute violations of due process.” Robinson v. Smyth,
258 F. App’x 469, 471 n.1 (3d Cir. 2007) (citation omitted); see Riccio v.
Cnty. of Fairfax, 907 F.2d 1459, 1469 (4th Cir. 1990); see also
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985).
Appellant makes almost no attempt to explain how the alleged violation of
Pennsylvania Rule of Evidence 404(b) constituted a violation of his due
process rights. Instead, he states in a conclusory fashion that it was
fundamentally unfair to admit prior bad acts evidence for which charges had
previously been dismissed. Appellant’s argument, however, would render
any admission of Rule 404(b) evidence for uncharged crimes a violation of
the Due Process Clause of the Fourteenth Amendment. It is well-settled that
Rule 404(b) fully comports with due process requirements. See
Richardson v. Lemke, 745 F.3d 258, 266 (7th Cir. 2014) (“Although the
Federal Rules of Evidence do limit the introduction of evidence of uncharged
criminal behavior, see Fed.R.Evid. 404(b), there is no federal constitutional
[] right to a state-court trial free of such evidence, even where that evidence
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is used to show propensity.”). Thus, even if the trial court had erred by
admitting M.L.’s testimony under Rule 404(b), Appellant has failed to plead
and prove that such violation constituted a violation of his right to due
process of law.
For all of these reasons, we conclude that even if Appellant’s second
PCRA petition were timely he would not be eligible for relief with respect to
his Rule 404(b) claim. The Rule 404(b) claim is waived for failure to raise
the issue on direct appeal. Furthermore, even if the argument were not
waived, the trial court did not err by admitting M.L.’s testimony under
Pennsylvania Rule of Evidence 404(b). Finally, even if the trial court erred
by admitting M.L.’s testimony under Rule 404(b), such error did not rise to
the level of a violation of Appellant’s right to due process of law.
In his final substantive claim, Appellant alleges that his prior counsel
were ineffective for failing to raise or pursue his other two substantive
arguments.21 As Appellant failed to plead and prove an exception to the
timeliness requirement, the PCRA court lacked jurisdiction over his
ineffectiveness claims. We, however, address the merits of all Appellant’s
ineffectiveness claims.
A “defendant’s right to counsel guaranteed by the Sixth Amendment to
the United States Constitution and Article I, [Section] 9 of the Pennsylvania
21
Appellant raises ineffectiveness claims in all three of his substantive
issues. All of Appellant’s ineffectiveness claims are encompassed in his third
substantive issue, thus, we only address the ineffectiveness claims once.
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Constitution is violated where counsel’s performance so undermined the
truth-determining process that no reliable adjudication of guilt or innocence
could have taken place.” Commonwealth v. Simpson, 66 A.3d 253, 260
(Pa. 2013) (internal quotation marks and citation omitted). “[C]ounsel is
presumed to be effective.” Commonwealth v. Lippert, 85 A.3d 1095,
1100 (Pa. Super. 2014) (citation omitted).
In order to overcome the presumption that counsel was effective,
Appellant must establish that “(1) the underlying claim is of arguable merit;
(2) the particular course of conduct pursued by counsel did not have some
reasonable basis designed to effectuate his client’s interests; and (3) but for
counsel’s ineffectiveness, there is a reasonable probability that the outcome
of the proceedings would have been different.” Commonwealth v. Luster,
71 A.3d 1029, 1039 (Pa. Super. 2013) (en banc), appeal denied, 83 A.3d
414 (Pa. 2013) (internal alterations, quotation marks, and citation omitted).
The petitioner bears the burden of proving his counsel was ineffective. See
Commonwealth v. Williams, 980 A.2d 510, 520 n.12 (2009). “A failure to
satisfy any one of the three prongs of the test for ineffectiveness requires
rejection of the claim.” Commonwealth v. Ly, 980 A.2d 61, 73 (Pa. 2009).
In this case, Appellant has failed to prove the first and third prongs of
ineffectiveness. “It is axiomatic that counsel will not be considered
ineffective for failing to pursue meritless claims.” Commonwealth v.
Charleston, 94 A.3d 1012, 1024 (Pa. Super. 2014) (internal alteration and
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citation omitted). As noted above, we conclude that both Appellant’s first
and second substantive issues lack arguable merit. As such, his trial, direct
appeal, and PCRA counsel could not be deemed ineffective for failing to raise
or pursue these claims.
Appellant has also failed to establish the requisite prejudice to prove
ineffective assistance of counsel. As to ineffectiveness for failing to
previously raise a Rule 404(b) claim, as we described in our analysis of the
prejudice prong of Appellant’s Brady claim, M.L.’s testimony was a minor
part of the Commonwealth’s case against Appellant. The Commonwealth
offered much more compelling testimony from each of the three victims with
whose assaults Appellant was charged in this case. In addition to the
testimony of the three victims, DNA testing tied Appellant to the assaults.
Furthermore, all three victims testified to essentially the same course of
conduct by Appellant during their assaults. M.L.’s testimony was, at best,
cumulative of this evidence. Accordingly, Appellant has failed to show that
he was prejudiced by the admission of M.L.’s Rule 404(b) testimony.
As to ineffectiveness with respect to counsels’ failure to previously
raise a Brady claim, the test for prejudice under Brady is the same as the
third prong of the test for ineffectiveness. See Kyles v. Whitley, 514 U.S.
419, 434 (1995). As we have determined that Appellant has failed to prove
prejudice under Brady, we likewise conclude that he has failed to prove
prejudice with respect to his prior counsels’ failure to raise a Brady claim at
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trial, on direct appeal, and/or in his first PCRA petition. Accordingly,
Appellant has failed to plead and prove his ineffective assistance of counsel
claims.
In sum, there is no dispute that Appellant filed his second PCRA
petition more than one year after his judgment of sentence became final.
We conclude that Appellant failed to satisfy his burden of pleading and
proving the applicability of the after-discovered evidence and/or government
interference exceptions to the PCRA’s timeliness requirement. Furthermore,
even if the PCRA court possessed jurisdiction over Appellant’s substantive
claims, those claims are without merit. Therefore, we affirm the PCRA
court’s order dismissing Appellant’s second PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/18/2014
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