Com. v. Leap, J.

J-S30034-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSHUA L. LEAP :
:
Appellant : No. 359 EDA 2022
Appeal from the PCRA Order Entered December 29, 2021
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0002494-2015
BEFORE: STABILE, J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED SEPTEMBER 08, 2022
Joshua L. Leap (Leap) appeals from the order of the Court of Common
Pleas of Monroe County (PCRA Court) denying his first petition for relief under
the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. On appeal,
Leap argues that the PCRA court erred in rejecting his claim of trial counsel
ineffectiveness for failing to address at trial the chain of custody for the
Commonwealth’s DNA evidence because it was misplaced after testing. After
review, we affirm.
The PCRA court gave a thorough summary of the facts of Leap’s trial
that are germane to this matter:
… [I]n July of 2015 the child victim attended an overnight family
reunion with her 15-year-old boyfriend. [Leap], the boyfriend’s
cousin who also attended the reunion, was 28 years old at the
time. At the reunion, the victim and her boyfriend consumed
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* Retired Senior Judge assigned to the Superior Court.
J-S30034-22
alcohol and smoked marijuana that was provided by adults in
attendance, and then went to sleep in a tent around midnight.
In the early morning hours, the victim awoke to find [Leap]
on top of her. [Leap] pulled the victim’s pants down, pinned her
to the ground, put his hand over her mouth so that she could not
speak or call out, and raped her. The victim disclosed the rape to
another cousin, who, in turn, told the victim’s boyfriend. Later
that day, [Leap] told the victim and her boyfriend that he would
give them marijuana, or whatever they wanted, if they did not say
anything to get him in trouble.
Upon returning home, the victim told her mother about the
rape. The victim’s mother called police and took her daughter to
the hospital, where a sexual assault examination was performed
by a Sexual Assault Nurse Examiner (“SANE”). Evidence collected
during the examination was turned over to the state police. Later,
the state police obtained a warrant and collected DNA samples
from [Leap].
The evidence collected from the victim and [Leap] was
tested at state police crime labs. DNA testing revealed that
[Leap’s] semen was on the victim’s clothes and inside her vagina.
Reports of the DNA testing were prepared. The reports were given
to the Commonwealth and the evidence that had been tested was
returned to the police.
Subsequently, the testing reports were provided to [Leap’s]
first attorney, David Skutnik, Esq., in discovery. Attorney Skutnik
retained an expert to perform an independent DNA analysis and
asked the Commonwealth to make the evidence obtained from the
victim and [Leap] available for that purpose. After Attorney
Skutnik successfully moved to compel, the evidence was provided.
In fact, the evidence was provided on two different occasions.
However, each time semen-stained vaginal and cervical swabs
taken from the victim, along with samples taken from her
underpants, were missing.
Attorney Skutnik communicated with the assistant district
attorney about the missing evidence on several occasions. Along
the way, Attorney Skutnik was provided with chain of custody
documents which demonstrated that the chain pertaining to the
DNA evidence was intact through testing at the state police labs
and return of the evidence to the state police barracks. Shortly
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before a scheduled pretrial conference, the Commonwealth
provided a letter from the state police indicating that the missing
swabs had been found in an evidence destruction bin. The swabs
remained sealed in the manner in which they were returned from
the lab.
Attorney Skutnik learned on March 20, 2017 that the
missing swabs had been found. At that time, jury selection had
been scheduled for April 4, 2017. Trial was later continued to the
May term.
On April 6, 2017, Attorney Skutnik filed a “Motion to
Preclude the Commonwealth from Introducing DNA Evidence at
the Time of Trial” (the “Motion to Preclude”). At that time, jury
selection was scheduled for May 2, 2017. The motion outlined
and included copies of communications pertaining to the defense
attempts to obtain and independently test the DNA evidence, the
recent discovery by the state police of the misplaced swabs, and
related matters. The previously-supplied chain of custody
documents were also attached. Preclusion was sought based on
alleged Brady violations. In addition, due to commitments to
provide expert testimony in other matters, the defense expert did
not have time to test the swabs before the scheduled trial.
On April 19, 2017, the Motion to Preclude was denied. In
the denial order, trial was continued to the June 2017 term.
As a result of this and subsequent continuances, the defense
expert had the full ability to independently test the evidence that
had been collected from the victim and [Leap]. The expert
rendered a report that was provided to defense counsel.
Around that time, Brandon Reish, Esq., entered his
appearance on behalf of [Leap] in substitution of Attorney
Skutnik. Attorney Reish represented [Leap] from that date
through trial and all direct appeal proceedings.
Attorneys Skutnik and Reish both had the opportunity to
review the expert’s report. The findings were not favorable to
[Leap] and did not undermine or reach a different conclusion than
the Commonwealth’s DNA testing. As a result, the expert was not
called at trial.
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The evidentiary portion of trial commenced on January 9,
2018. Before the jury entered the courtroom, Attorney Reish
offered to stipulate to the chain of custody regarding the DNA
evidence. (N.T., 1/9/2018, p. 5).
During trial the child victim testified as summarized above.
Her testimony was consistent with her pretrial statements to the
police and medical personnel.
[Leap] also testified, against the advice of counsel. Among
other things, he placed himself at the scene of the rape and did
not support the defense theory of the case.
Although Attorney Reish had offered to stipulate to the chain
of custody, the Commonwealth laid a solid foundation for
admission of the DNA evidence from its collection to its testing at
two different state police crime lab facilities. The foundation was
laid and the chain of custody linked through the victim (N.T.,
1/9/2018, pp. 47-51, Commonwealth Exhibit 1); the SANE nurse
who conducted the sexual assault examination of and collected
samples from the victim (N.T., 1/10/2018, pp. 48-55,
Commonwealth Exhibit 6); the state trooper who took custody of
the evidence obtained by the SANE Nurse and collected [Leap]’s
DNA (N.T., 1/9/2018, pp. 17-21); the state police serologist who
analyzed the evidence (N.T., 1/10/2018, pp. 90-118,
Commonwealth Exhibit 8); and the forensic scientist who
conducted the DNA testing (Id. at 114-134, Commonwealth
Exhibit 10).
PCRA Court Opinion (PCO), 2/8/22, at 2-5.
At the end of trial, the jury found Leap guilty of rape, statutory sexual
assault, sexual assault, aggravated indecent assault and indecent assault.1
On April 10, 2018, the trial court sentenced him to an aggregate term of 7½
to 20¼ years’ imprisonment. This Court affirmed his judgment sentence on
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1 18 Pa.C.S. §§ 3121(a)(1), 3122.1(b), 3124.1, 3125(a)(2) and 3126(a)(2).
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direct appeal and our Supreme Court denied his petition for allowance of
appeal. See Commonwealth v. Leap, 222 A.3d 386 (Pa. Super. October
25, 2019), appeal denied, 233 A.3d 677 (Pa. May 13, 2020).
On November 9, 2020, Leap filed a timely pro se PCRA petition. Counsel
was appointed and filed an amended petition alleging that trial counsel was
ineffective for failing to address at trial to the chain of custody of the DNA
samples that were initially lost but later found. See Amended Petition,
3/16/21, ¶ 10. However, for trial counsel’s ineffectiveness, Leap asserted that
he “could have had a stronger argument at trial based on the weight of the
evidence, and in turn, a stronger argument on appeal.” Id.At the evidentiary hearing, Attorney Skutnik testified about hiring a DNA
expert and planning to call him as an expert until he received his report and
determined that it would not be beneficial. See N.T., 4/16/21, at 19.
Attorney Reish echoed this sentiment in explaining why he stipulated to
the chain of custody for the DNA evidence. He explained that he pursued a
mistake-of-age defense because their DNA expert’s findings would not help
the defense.
The defense we were going with was based on what [the DNA
expert] had told me about what he would testify to, and [the DNA
expert] was not able to provide us with anything that would
benefit us to challenge the Commonwealth’s DNA in that case,
which is unfortunate, because originally it appeared that that’s
what his preliminary assessment was, that he may be able to do
that, and then when his final opinion came he was unable to do
that. So he would not have provided exculpatory testimony, so I
would not call him.
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Id. at 28-29.
The PCRA court later followed up on this and asked Attorney Reish about
the decision not to challenge the DNA evidence.
THE COURT: But I guess what I’m saying with the DNA is it was
never contested, is my recollection correct?
MR. REISH: When, no, the DNA evidence, so this would have been
a mixture case, originally there were thoughts that it could be
challenged based on whatever science [the DNA expert] was
looking into, because he had done that in some other cases,
Attorney Skutnik had hired him, and then when the results came
back and he actually, like when the rubber hit the road, he was
not in a position to testify the way he had suggested to Attorney
Skutnik that he could testify. The science just wasn’t there and
he couldn’t muddy the waters, he really couldn’t do anything,
which was very, I know that was disappointing to the defense
theory at that time.
THE COURT: Okay.
MR. REISH: Because that was, originally that was what the
thought was, that’s why all those resources went into the DNA and
[the expert], but it didn’t pan out, so we couldn’t, we had no basis
to challenge the DNA, that was Mr. Leap’s DNA.
Id. at 31-32.
After the hearing, the PCRA court issued an order denying Leap’s
petition, following which he filed a notice of appeal.2 On appeal, Leap asserts
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2 After Leap timely filed his notice of appeal, the PCRA court issued an
amended final order giving him 89 days’ time credit but otherwise affirming
its prior order. As a result, we will treat this appeal as timely filed after the
PCRA court’s final amended order. See Pa.R.A.P. 905(a)(5) (“A notice of
appeal filed after the announcement of a determination but before the entry
of an appealable order shall be treated as filed after such entry and on the
day thereof.”).
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that the PCRA court erred in not finding trial counsel ineffective for failing to
challenge the DNA evidence at trial.3
As this Court has explained:
[T]o establish a claim of ineffective assistance of counsel, a
defendant must show, by a preponderance of the evidence,
ineffective assistance of counsel which, in the circumstances of
the particular case, so undermined the truth-determining process
that no reliable adjudication of guilt or innocence could have taken
place. The burden is on the defendant to prove all three of the
following prongs: (1) the underlying claim is of arguable merit;
(2) that counsel had no reasonable strategic basis for his or her
action or inaction; and (3) but for the errors and omissions of
counsel, there is a reasonable probability that the outcome of the
proceedings would have been different.
Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa. Super. 2019)
(cleaned up).
A claim has arguable merit when “the factual averments, if accurate,
could establish cause for relief. Whether the facts rise to the level of arguable
merit is a legal determination.” Commonwealth v. King, 259 A.3d 511, 520
(Pa. Super. 2021) (cleaned up). As for the second prong, counsel lacked a
reasonable basis for their decision if “no competent counsel would have
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3 “The standard of review of an order dismissing a PCRA petition is whether
that determination is supported by the evidence of record and is free of legal
error.” Commonwealth v. Cruz, 223 A.3d 274, 277 (Pa. Super. 2019)
(quoting Commonwealth v. Weimer, 167 A.3d 78, 81 (Pa. Super. 2017)).
“It is an appellant’s burden to persuade us that the PCRA court erred and that
relief is due.” Commonwealth v. Stansbury, 219 A.3d 157, 161 (Pa. Super.
2019) (citation omitted). “We defer to the PCRA court’s factual findings and
credibility determinations supported by the record.” Commonwealth v.
Reyes-Rodriguez, 111 A.3d 775, 789 (Pa. Super. 2015) (citation omitted).
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chosen that action or inaction, or, the alternative, not chosen, offered a
significantly greater potential chance of success.” Id. (cleaned up).
“Prejudice is established if there is a reasonable probability that, but for
counsel’s errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Id. at 521 (cleaned up). Finally, “a failure to satisfy any prong
of the ineffectiveness test requires rejection of the claim of ineffectiveness.”
Id. (cleaned up).
As noted, Leap’s claim centers on the chain of custody for the DNA
evidence.
“To satisfy the requirement of authenticating or identifying an
item of evidence, the proponent must produce evidence sufficient
to support a finding that the item is what the proponent claims it
is.” Pa.R.E. 901(a). Critically, “[p]hysical evidence may be
properly admitted despite gaps in testimony regarding custody.”
Furthermore, any issue regarding gaps in the chain of custody
relate to the weight of the evidence, not its admissibility.
Commonwealth v. Witmayer, 144 A.3d 939, 950 (Pa. Super. 2016)
(citations omitted).
First, the PCRA court found that Leap’s claim lacked arguable merit
because the Commonwealth established an unbroken chain of custody from
the collection of the DNA evidence to its testing.
… [T]he record demonstrates that the chain of the DNA evidence
— from its collection to its testing at two state police labs — was
strong, unbroken, and not subject to attack. The intact chain is
demonstrated by the reports, documents, and information
provided to [Leap’s] attorneys, in discovery and pretrial
proceedings and the trial testimony of the Commonwealth’s
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witnesses[.] The testing conducted, the reports prepared, and the
opinions rendered by the Commonwealth’s experts were based on
evidence provided to them through the unbroken chain.
Accordingly, there was no reasonable basis on which Attorney
Reish could have challenged the foundation of the DNA evidence
or argued that the jury should give little weight, or even less
weight, to the results of the testing for foundational reasons. The
fact that some of the DNA evidence was for a time misplaced after
it was tested and then returned to the troopers who collected it is
irrelevant.
PCO at 9. We agree with this analysis. As detailed above, Attorney Skutnik
moved to preclude the DNA evidence when he discovered that it had been
misplaced after the testing. Although that motion was denied, the PCRA court
nonetheless continued the trial to allow Leap’s expert to analyze the DNA
evidence. As the evidentiary hearing showed, however, that expert’s analysis
failed to impugn the Commonwealth’s evidence showing that it was, in fact,
Leap’s DNA found. As the PCRA court highlighted, the Commonwealth laid an
unbroken chain-of-custody going from (1) the victim, (2) to the SANE nurse,
(3) to the state police, (4) to the state police serologist, and finally (5) to the
forensic scientist. Any weight argument that Leap could have made to the
jury would have been confined to the chain of the custody of the DNA evidence
after it had already been tested. Thus, any argument that could have been
raised at trial about the DNA evidence’s chain of custody would have had little
arguable merit.
Even if we were to accept that Leap’s claim gets past the first prong,
Attorney Reish’s testimony at the evidentiary hearing established that he had
a reasonable basis stipulating to the chain of custody for the DNA evidence.
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As cited above, Attorney Reish explained that the defense theory of the case
changed after determining that they would not be able to assail the
Commonwealth’s DNA evidence, especially after receiving the report of their
own DNA expert and determinizing that he would not be able to provide any
beneficial testimony. See N.T., 4/16/21, at 28. With no basis for challenging
the DNA, Attorney Reish made the reasonable decision to stipulate to the chain
of custody and shift to a mistake-of-age defense that would explain why Leap’s
DNA would have been recovered yet still give the jury a reason to acquit.
Thus, Attorney Reish had a reasonable strategic basis for deciding to not
contest the chain of custody and not present an inconsistent mistake-of-age
defense in which he conceded Leap had contact with the victim but also
attacked the Commonwealth’s DNA evidence. Such reasonable decisions are
well within the purview of trial counsel in deciding the best course of defending
a case and will not be second-guessed by this Court. Accordingly, Leap has
failed to show that trial counsel’s decision to stipulate to the chain of custody
for the DNA evidence lacked a reasonable strategic basis.
Finally, even though unnecessary based on our prior findings, we
observe that Leap failed to plead and prove that he was prejudiced by Attorney
Reish failing to address the DNA evidence’s chain of custody at trial. First, as
noted, Leap failed in his amended petition to even allege that the outcome of
trial would have been different but for trial counsel’s alleged error, as he
merely alleged that he “could have had a stronger argument at trial based on
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the weight of the evidence[.]” This is not the standard, however. “Prejudice,
in [the context of an ineffectiveness claim], has been repeatedly stated as
requiring proof that but for counsel’s action or inaction, there was a reasonable
probability that the proceeding would have had a different outcome.”
Commonwealth v. Diaz, 226 A.3d 995, 1007 (Pa. 2020).
In any event, even when the correct standard is applied, Leap’s claim
falls well short of the mark. As the PCRA court astutely explained,
the post-testing misplacement of evidence neither prejudice
Petitioner nor provided trial counsel with a factual basis that would
have supported a weight-of-the-evidence argument. In this
regard, the DNA evidence was ultimately found, intact and as
sealed by the testing labs, and turned over to [Leap’s] expert for
testing. Trial continuances afforded [Leap’s] expert ample
unfettered opportunity to independently test the evidence. There.
is no assertion that the evidence was altered, contaminated,
degraded, or compromised in any way by its temporary
misplacement or the passage of time. Similarly, there is no
assertion that the temporary misplacement called into question
the Commonwealth’s testing adversely impacted the ability of the
defense expert to evaluate the results of the Commonwealth’s
testing, or interfered with the expert’s ability to perform his own
testing. Simply, [Leap’s] defense was not hampered in any way.
Under these facts and circumstances, the temporary post-testing
misplacement of the swabs did not prejudice Petitioner and there
was no meritorious chain or weight of evidence argument that
Attorney Reish could reasonably or legitimately have advanced.
PCO at 9-10. We have little to add to this analysis other than to note that
Leap’s argument fails to account for any of the Commonwealth’s other
evidence establishing his guilt as outlined in the summary above, not to
mention Leap’s decision to testify in his own defense—against the advice of
counsel—and give an account that conflicted the initial theory of defense
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advanced by Attorney Reish. For these reasons, we agree with the PCRA court
that Leap has also failed to establish that he was prejudiced by trial counsel’s
decision not to address the chain of custody for the DNA evidence at trial.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/8/2022
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