Com. v. Stidfole, A.

J-S54031-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ADAM STIDFOLE :
:
Appellant : No. 449 MDA 2020
Appeal from the PCRA Order Entered February 4, 2020
In the Court of Common Pleas of Mifflin County Criminal Division at
No(s): CP-44-CR-0000677-2016
BEFORE: NICHOLS, J., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED FEBRUARY 25, 2021
Adam Stidfole (“Stidfole”) appeals from the Order denying his first
Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).
See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
In or about September 2016, Mifflin County Children and Youth
(“CYS”) received two reports regarding the care of a 10-year-old girl (“the
victim”). The first report indicated that the victim was being left alone with
Stidfole, who was not the victim’s father or an appropriate caretaker. The
second report indicated that the victim was overheard talking about having
sex with Stidfole and watching pornography. CYS caseworker Hannah Wert
(“Wert”) investigated the allegations, and reported the matter to the
Pennsylvania State Police.
State Trooper Shane Varner (“Trooper Varner”) was assigned to
investigate the case. As a part of his investigation, Trooper Varner
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interviewed Stidfole, and arranged for the victim to be interviewed by a
specialist with the Children’s Advocacy Center. After the interviews, Trooper
Varner filed a Criminal Complaint, accusing Stidfole of various sexual
offenses relating to the unlawful touching of the victim’s vagina.
On September 18, 2017, following a trial, a jury found Stidfole guilty
of one count each of aggravated indecent assault and corruption of minors,
and three counts each of unlawful contact with a minor and indecent
assault.1 On December 15, 2017, the trial court sentenced Stidfole to an
aggregate term of 25 to 50 years in prison.2 Stidfole did not file any post-
sentence motions or a direct appeal.
On May 7, 2018, Stidfole, pro se, filed the instant PCRA Petition. The
PCRA court appointed Justin P. Miller, Esquire (“Attorney Miller”), as counsel
for Stidfole. On August 5, 2019, Attorney Miller filed an Amended PCRA
Petition. Following a hearing, on February 4, 2020, the PCRA Court entered
an Order denying Stidfole’s Amended PCRA Petition.
On March 5, 2020, Stidfole filed an Application for leave to proceed in
forma pauperis (“IFP”) on appeal (“Application for IFP Status”). On March
10, 2020, the PCRA court granted Stidfole’s Application for IFP Status, and
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1 See 18 Pa.C.S.A. §§ 3125(a)(7), 6301(a)(1)(ii), 6318(a)(1), 3126(a)(7).
2 On March 6, 2018, the trial court entered an “Amended Sentence” to
correct the numbering of the counts on the December 15, 2017, sentencing
Order. Stidfole’s sentence remained the same.
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Stidfole filed a counseled Notice of Appeal from the February 4, 2020, Order
denying his Amended PCRA Petition. Stidfole subsequently filed a court-
ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on
appeal.
On April 23, 2020, this Court entered an Order stating that Stidfole’s
March 10, 2020, Notice of Appeal was filed outside of the 30-day appeal
period,3 and directing Stidfole to show cause why his appeal should not be
quashed as untimely. On May 18, 2020, Attorney Miller filed a Response
with this Court.
In his Response, Attorney Miller claims that he had mailed Stidfole’s
Notice of Appeal with the Application for IFP Status; both documents were
delivered to the Mifflin County Clerk of Courts on March 5, 2020; the Mifflin
County Clerk of Courts time-stamped his Application for IFP Status on March
5, 2020; and a breakdown in court operations caused the Notice of Appeal
not to be time-stamped on March 5, 2020, and to be untimely filed on March
10, 2020. Attorney Miller attached to his Response a letter from the Mifflin
County Clerk of Courts, indicating that the Clerk of Courts had received
Stidfole’s Notice of Appeal on March 5, 2020, but waited to time-stamp and
file it until March 10, 2020, after the PCRA court had granted his Application
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3See Pa.R.A.P. 903(a) (stating that a notice of appeal “shall be filed within
30 days after the entry of the order from which the appeal is taken.”).
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for IFP Status. This Court subsequently discharged the Rule to show cause,
and referred the timeliness issue to the merits panel.
This Court has held that “[a]bsent a breakdown in the operations of
the court, time limitations on the taking of appeals are strictly construed and
cannot be extended as a matter of grace.” Commonwealth v. Valentine,
928 A.2d 346, 349 (Pa. Super. 2007) (brackets, quotation marks and
citation omitted). Pennsylvania Rule of Appellate Procedure 905 provides
that “[u]pon receipt of the notice of appeal, the clerk [of courts] shall
immediately stamp it with the date of receipt, and that date shall constitute
the date when the appeal was taken, which date shall be shown on the
docket.” Pa.R.A.P. 905.
Here, the Mifflin County Clerk of Courts received Stidfole’s Notice of
Appeal on March 5, 2020, and failed to stamp it with the date of receipt.
Had the Clerk of Courts stamped Stidfole’s Notice of Appeal when it was
received, in accordance with Rule 905, Stidfole’s Notice would have been
timely filed. Thus, we conclude that a breakdown in court operations caused
Stidfole’s Notice of Appeal to be untimely filed. See id.; see also Nagy v.
Best Home Servs., Inc., 829 A.2d 1166, 1168 (Pa. Super. 2003) (finding a
breakdown in court operations where the appellant deposited his notice of
appeal with the trial court’s Prothonotary within the 30-day period, and the
Prothonotary failed to time-stamp and docket the notice of appeal when it
was received); accord Commonwealth v. Alaouie, 837 A.2d 1190, 1192
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(Pa. Super. 2003). Accordingly, we have jurisdiction to consider Stidfole’s
claims on appeal.
On appeal, Stidfole raises the following issues for our review:
1. Whether the [PCRA] court committed an abuse of discretion
and/or error of law in not finding [Stidfole’s] trial counsel
ineffective for the following reasons:
a. Failing to challenge the qualifications of the [victim’s]
therapist;
b. Failing to raise a taint objection;
c. Failing to obtain complete discovery;
d. Failing to cross-examine witness [] Wert; and
e. Failing to call defense witnesses.
Brief for Appellant at 4.
“The standard of review of an order [denying] a PCRA petition is
whether that determination is supported by the evidence of record and is
free of legal error.” Commonwealth v. Weimer, 167 A.3d 78, 81 (Pa.
Super. 2017). “The PCRA court’s findings will not be disturbed unless there
is no support for the findings in the certified record.” Id. (citation omitted).
In each of Stidfole’s claims, he argues the ineffectiveness of his trial
counsel. To prevail on a claim of ineffective assistance of counsel under the
PCRA, a petitioner must plead and prove, by a preponderance of the
evidence, that counsel’s ineffectiveness “so undermined the truth-
determining process that no reliable adjudication of guilt or innocence could
have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(ii). Specifically, a petitioner
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must establish, first, that “the underlying claim has arguable merit; second,
that counsel had no reasonable basis for his action or inaction; and third,
that [the a]ppellant was prejudiced.” Commonwealth v. Charleston, 94
A.3d 1012, 1020 (Pa. Super. 2014). “A PCRA petitioner must address each
of these prongs on appeal.” Commonwealth v. Wholaver, 177 A.3d 136,
144 (Pa. 2018). Counsel is presumed to be effective and the burden is on
the appellant to prove otherwise. Commonwealth v. Hannible, 30 A.3d
426, 439 (Pa. 2011). A failure to satisfy any prong of the test for
ineffectiveness will require rejection of the claim. Commonwealth v.
Martin, 5 A.3d 177, 183 (Pa. 2010).
In his first claim, Stidfole argues that his trial counsel was ineffective
in presenting his objection to the Commonwealth’s request to present the
victim’s testimony by way of contemporaneous alternative testimony. Brief
for Appellant at 10-11. According to Stidfole, his trial counsel “made no
effort to challenge the contemporaneous alternative testimony,” and
ineffectively questioned the victim’s therapist, Dionne Sterner (“Sterner”),
who testified in favor of the contemporaneous alternative testimony,
regarding her qualifications. Id. at 10-11.
Our review of the record discloses that Stidfole’s trial counsel objected
to the contemporaneous alternative testimony, and objected to Sterner’s
ability to testify regarding the necessity of the victim testifying via
contemporaneous alternative testimony. See N.T., 9/12/17, at 3-4, 11-12;
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N.T., 1/27/20, at 6-7. The trial court overruled both objections. N.T.,
9/12/17, at 13; Order, 9/15/17. Moreover, Stidfole’s trial counsel explained
at the PCRA hearing that Sterner testified regarding her qualifications, and
that he did not see any reason to challenge her qualifications. N.T.,
1/27/20, at 7, 27-28. Indeed, in its Opinion, the PCRA court states that it
“found [Sterner] to be qualified to discuss the victim’s [mental health]
treatment.” PCRA Court Opinion, 2/4/20, at 3. Thus, we agree that
Stidfole’s underlying claim lacks arguable merit, and that his trial counsel
had a reasonable basis for his actions. See Charleston, supra.
Accordingly, this claim fails.
In his second claim, Stidfole argues that his trial counsel was
ineffective in failing to object to the victim’s testimony at trial on the
grounds that her testimony was tainted. Brief for Appellant at 11-12.
Stidfole states that there was “possible taint based on the witness’s age and
suggestive interviews,” and that his trial counsel should have obtained the
transcripts from the interviews of the victim, and certain CYS records, which
may have shown that the victim’s testimony was tainted. Id. at 12
(emphasis added).
Here, Stidfole has not presented any evidence supporting his claim
that the interviews of the victim were “suggestive,” that the victim was
susceptible to suggestion, or that the victim testified falsely. Indeed,
Stidfole failed to produce any records from CYS, or any transcripts from
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interviews of the victim, in support of his claim. Lacking any evidence that
the victim’s testimony was tainted, Stidfole’s claim that his trial counsel was
ineffective for failing to raise an objection regarding tainted testimony fails.
See Commonwealth v. Brown, 872 A.2d 1139, 1150 (Pa. 2005) (stating
that “trial counsel cannot be deemed ineffective for failing to present [certain
evidence at trial,] when there was no such evidence of record.”). Further,
Stidfole’s trial counsel testified at the PCRA hearing that he had obtained
records from CYS, and there was nothing in the records that indicated the
victim’s testimony may have been tainted. N.T., 1/27/20, at 9-10, 29-31.
Accordingly, we conclude that Stidfole’s underlying claim lacks merit, and
Stidfole failed to establish the lack of a reasonable basis for his trial
counsel’s actions. See Charleston, supra. Accordingly, this claim fails.
In his third claim, Stidfole argues that his trial counsel was ineffective
in failing to obtain CYS records regarding the victim. Brief for Appellant at
12-13. According to Stidfole, CYS possesses records showing that the victim
has made similar accusations against other individuals, all of
which were determined to be unfounded or otherwise dismissed
by the relative agencies; [t]hat [the victim] was coerced to
name [Stidfole] as a perpetrator by investigators, counselors,
therapists, and others charged with her well-being; and that the
[victim] made statements to relevant caseworkers tending to
cast doubt on the truth of her testimony at trial.
Id. at 12.
Again, Stidfole failed to present any evidence in support of his third
claim. Stidfole has not presented any records from CYS, or testimony from
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any “investigators, counselors, therapists, or others charged with [the
victim’s] well-being,” that would support his allegation. Lacking any
evidence that CYS possessed these records, Stidfole’s claim that trial counsel
was ineffective for failing to obtain them lacks merit. See Brown, supra.
Because Stidfole’s underlying claim lacks merit, his third ineffectiveness
claim fails. See Charleston, supra.
In his fourth claim, Stidfole argues that his trial counsel was ineffective
in failing to cross-examine Wert at trial. Brief for Appellant at 13-14.
Stidfole claims that “[h]ad trial counsel obtained copies of the CYS records
and properly evaluated them, he could have developed a line of questioning
designed to undermine the witness’s credibility and elicited facts that would
have bolstered the credibility of [Stidfole’s] denial of wrongdoing or
criminality.” Id. at 14.
Here, Stidfole again failed to present any evidence to support his claim
that CYS had documents in its possession that could have impeached Wert’s
credibility or bolstered Stidfole’s credibility. See Brown, supra.
Additionally, Stidfole’s trial counsel testified at the PCRA hearing that he
believed there would be no benefit to cross-examining Wert because “she
didn’t testify to anything on direct that was harmful or incriminating to []
Stidfole.” N.T., 1/27/20, at 32; accord id. at 13. We conclude that
Stidfole’s underlying claim lacks arguable merit. Further, Stidfole failed to
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establish that his trial counsel lacked a reasonable basis for his actions. See
Charleston, supra. Accordingly, this claim fails.
In his fifth claim, Stidfole argues that his trial counsel was ineffective
in failing to call character witnesses at trial to testify on his behalf. Brief for
Appellant at 14-15. Stidfole argues that he provided his trial counsel with a
list of witnesses who would have testified regarding his good character, and
that trial counsel failed to interview any of the witnesses, or present their
testimony at trial. Id.
The failure to call character witnesses does not constitute
per se ineffectiveness. In establishing whether defense counsel
was ineffective for failing to call witnesses, appellant must
prove: (1) the witness existed; (2) the witness was available to
testify for the defense; (3) counsel knew of, or should have
known of, the existence of the witness; (4) the witness was
willing to testify for the defense; and (5) the absence of the
testimony of the witness was so prejudicial as to have denied the
defendant a fair trial.
Commonwealth v. Treiber, 121 A.3d 435, 463-64 (Pa. 2015) (citation and
paragraph break omitted).
Here, Stidfole has not asserted that any of the alleged witnesses were
available to testify at trial, or explained how the absence of this testimony
caused him prejudice. See id. Moreover, Stidfole’s trial counsel testified at
the PCRA hearing that “[p]resenting character testimony would have
potentially opened the door for the Commonwealth to bring in things that we
didn’t want brought in….” N.T., 1/27/20, at 22. Trial counsel explained that
Stidfole had a prior criminal record for offenses similar to the ones for which
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he was on trial, and counsel was concerned that the Commonwealth would
have cross-examined Stidfole regarding these convictions if he presented
good-character evidence. Id. at 34. We conclude that Stidfole’s underlying
claim lacks arguable merit. Further, Stidfole failed to demonstrate that his
trial counsel lacked a reasonable basis for his actions. See Charleston,
supra; Treiber, supra; see also Commonwealth v. Hull, 982 A.2d 1020,
1023 (Pa. Super. 2009) (stating that “[c]ounsel has a reasonable, strategic
basis for not calling character witnesses if he has a legitimate reason to
believe that the Commonwealth would cross-examine the witnesses
concerning bad-character evidence.”). Accordingly, this claim fails.
Based on the foregoing, we affirm the PCRA court’s Order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/25/2021
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