Com. v. Giunta, P., II ( 2015 )


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  • J. S64013/15
    NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
    :          PENNSYLVANIA
    v.                   :
    :
    PHILIP J. GIUNTA, II,                   :            No. 801 MDA 2015
    :
    Appellant       :
    Appeal from the PCRA Order, April 16, 2015,
    in the Court of Common Pleas of Centre County
    Criminal Division at No. CP-14-CR-0001084-1012
    BEFORE: FORD ELLIOTT, P.J.E., WECHT AND FITZGERALD,* JJ.
    MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED NOVEMBER 23, 2015
    Philip J. Giunta appeals from the April 16, 2015 order dismissing his
    first petition filed pursuant to the Post Conviction Relief Act (“PCRA”),
    42 Pa.C.S.A. §§ 9541-9546. Finding that trial counsel provided ineffective
    assistance, we reverse and remand for a new trial.
    This case concerns an incident that occurred at a house party on
    South Allen Street in State College, Pennsylvania, during the early morning
    hours of September 5, 2011. The victim, C.M.,1 traveled from her home in
    Bellefonte, Pennsylvania, on September 4, 2011, for an overnight visit with
    her friends, Arianna Smith and Mary Hickey, who lived in the North Halls
    * Former Justice specially assigned to the Superior Court.
    1
    It is common practice of this court to identify victims of sexually based
    offenses by their initials.
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    dormitory at Penn State University. (Notes of testimony, 3/4/13 at 29-30,
    154.) After spending several hours at Smith’s dorm, the victim, Smith, and
    Hickey walked to a house party being held by Josh Baker and Jeff Green,
    both of whom went to high school with the victim. (Id. at 31.) The victim
    and her friends arrived at the party between 10:00 and 10:30 p.m. (Id. at
    32.) While at the party, the victim consumed several alcoholic beverages to
    the point that she became intoxicated. (Id. at 31.)
    Appellant arrived at the party between approximately 10:30 and
    11:00 p.m. on September 4. (Id. at 32.) Upon his arrival, the victim took
    her friends outside to the porch to tell them that appellant was involved in a
    previous incident with her friend at Lock Haven University. (Id. at 33, 155.)
    Hickey’s testimony indicated that the victim specifically told her friends that
    appellant had raped A.G.2 at Lock Haven. (Id. at 155.)
    After appellant’s arrival, the victim went to get a beer from Green’s
    bedroom.   (Id. at 33.)   Appellant followed her into Green’s bedroom and
    kissed the victim, and she reciprocated for approximately ten seconds. (Id.
    at 33-34.) During this encounter, appellant said to the victim, “You know,
    we’re going to hook up tonight.”     (Id. at 34.)   The victim responded by
    saying, “Yeah right,” but she testified that her response was meant to be
    sarcastic. (Id.)
    2
    Appellant was never charged with a crime relating to an alleged sexual
    assault of A.G. Due to the fact that a sexually based offense has been
    alleged, we will identify the alleged victim only by her initials.
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    Later, in the early morning hours of September 5, 2011, the victim
    went outside to get some fresh air and smoke a cigarette, where she was
    joined by appellant. (Id. at 35.) During this conversation, appellant twice
    told the victim to “follow me,” and twice the victim declined. (Id. at 35-36.)
    Appellant then said “follow me” a third time and, grabbing the victim’s arm,
    took her to the side of the house. (Id. at 36.) There, the victim testified
    that appellant pushed her down on the ground, forced the victim’s legs
    apart, and “put his penis inside of [her],” against her will. (Id. at 36-37.)
    The victim testified that she had passed out and she recalled waking up by
    herself at the side of the house. (Id. at 37.)
    The victim’s friends took her to Mount Nittany Medical Center, where
    she was treated by Monique Wooster, a registered nurse in the hospital’s
    emergency department.      (Id. at 50-51.)   Nurse Wooster testified that the
    victim had a laceration of the left vaginal wall.         (Id. at 66.)      The
    Commonwealth’s expert witness, Jenifer Markowitz,3 testified that the
    victim’s injuries were consistent with the victim’s allegations. (Id. at 100.)
    Appellant testified in his own defense at trial.    He testified that the
    victim was very “flirtatious” with him throughout the evening. (Id. at 227.)
    He testified that the victim told him that they were going to have sex that
    night, and that the victim was asking if he would spend the night with her.
    3
    Markowitz is a forensic nursing consultant, and was accepted by the trial
    court as an expert witness. (Id. at 84, 95.)
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    (Id. at 230.)    Appellant admitted to joining the victim on the porch for a
    cigarette. (Id. at 231.) After both the victim and appellant were finished
    smoking, appellant testified that he and the victim started kissing and then
    he digitally penetrated her. (Id.) At that point, according to appellant, the
    victim and appellant began discussing where to go to have sex.               (Id.)
    Appellant testified that he and the victim went to the side of the house
    where     the   victim    performed    oral   sex   on   him   for   approximately
    10-15 minutes before appellant briefly penetrated the victim with his penis.
    (Id. at 232-233.) Appellant then testified that he and the victim went back
    into the house together. (Id. at 234.) According to appellant’s testimony,
    any physical contact that he had with the victim was consensual.
    On June 7, 2012, appellant was charged with rape by forcible
    compulsion, sexual assault, aggravated indecent assault without consent,
    and aggravated indecent assault by forcible compulsion.4 Appellant was also
    charged with indecent assault without consent and simple assault; 5 however,
    those charges were withdrawn by the Commonwealth.                    A preliminary
    hearing was held on June 13, 2012, and appellant was ordered to stand trial,
    where he was represented by Patrick Klena, Esq. of the Centre County Public
    Defender’s Office.       The jury convicted appellant of all charges following a
    two-day jury trial on March 5, 2013. (Notes of testimony, 3/5/13 at 60-61.)
    4
    18 Pa.C.S.A. §§ 3121(a)(1), 3124.1, and 3125(a)(1) & (2), respectively.
    5
    18 Pa.C.S.A. §§ 3126(a)(1) and 2701(a)(1), respectively.
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    On June 6, 2013, appellant was sentenced to an aggregate of eight to
    sixteen years’ imprisonment.    Appellant filed post-sentence motions which
    were denied by the trial court on August 16, 2013. On September 10, 2013,
    appellant filed notice of appeal with this court; however, new counsel
    entered his appearance and that appeal was discontinued on January 31,
    2014. Appellant filed the instant petition for collateral relief pursuant to the
    PCRA on July 21, 2014. The PCRA court conducted a hearing on January 9,
    2015, and denied appellant’s petition on April 16, 2015.        Appellant filed
    notice of appeal on May 4, 2015. On May 22, 2015, appellant filed a concise
    statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
    The PCRA court declined to file an additional opinion, instead referring to the
    opinion that accompanied the April 16, 2015 order denying appellant’s PCRA
    petition.
    Appellant raises the following issues on appeal:
    1.    Was trial counsel ineffective when, as part of
    his trial strategy, he elicited testimony from
    the victim that she believed the Defendant had
    previously raped [A.G.]?
    2.    Was trial counsel ineffective when he failed to
    secure the presence of [A.G.] to testify at trial?
    3.    Was trial counsel ineffective in failing to object
    to the testimony of Jennifer [sic] Markowitz, an
    expert witness in the area of well woman
    health?
    4.    Was trial counsel ineffective for failing to
    request jury instruction Pa.S.S.J.I. § 8.311(B)?
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    Appellant’s brief at 4.
    PCRA petitions are subject to the following standard of review:
    “[A]s a general proposition, we review a denial of
    PCRA relief to determine whether the findings of the
    PCRA court are supported by the record and free of
    legal error.” Commonwealth v. Dennis, 
    609 Pa. 442
    , 
    17 A.3d 297
    , 301 (Pa. 2011) (citation omitted).
    A PCRA court’s credibility findings are to be accorded
    great deference, and where supported by the record,
    such determinations are binding on a reviewing
    court. Id. at 305 (citations omitted). To obtain
    PCRA relief, appellant must plead and prove by a
    preponderance of the evidence: (1) his conviction or
    sentence resulted from one or more of the errors
    enumerated in 42 Pa.C.S. § 9453(a)(2); (2) his
    claims have not been previously litigated or waived,
    id. § 9543(a)(3); and (3) “the failure to litigate the
    issue prior to or during trial . . . or on direct appeal
    could not have been the result of any rational,
    strategic or tactical decision by counsel[.]” id.
    § 9543(a)(4). An issue is previously litigated if “the
    highest appellate court in which [appellant] could
    have had review as a matter of right has ruled on
    the merits of the issue[.]” Id. § 9544(a)(2). “[A]n
    issue is waived if [appellant] could have raised it but
    failed to do so before trial, at trial, . . . on appeal or
    in a prior state postconviction proceeding.”          Id.
    § 9544(b).
    Commonwealth v. Treiber, 
    121 A.3d 435
    , 444 (Pa. 2015).
    All four of appellant’s claims derive from the underlying issue of
    whether his trial counsel, Attorney Klena, provided effective assistance at
    trial.
    The governing legal standard of review of
    ineffective   assistance of  counsel  claims is
    well-settled:
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    [C]ounsel is presumed effective,
    and to rebut that presumption, the PCRA
    petitioner    must    demonstrate      that
    counsel’s performance was deficient and
    that such deficiency prejudiced him.
    Strickland v. Washington, 
    466 U.S. 668
     (1984). This Court has described
    the Strickland standard as tripartite by
    dividing the performance element into
    two          distinct         components.
    Commonwealth v. Pierce, 
    527 A.2d 973
    , 975 (Pa. 1987). Accordingly, to
    prove counsel ineffective, the petitioner
    must     demonstrate     that   (1)     the
    underlying legal issue has arguable
    merit; (2) counsel’s actions lacked an
    objective reasonable basis; and (3) the
    petitioner was prejudiced by counsel’s
    act or omission.       
    Id.
        A claim of
    ineffectiveness will be denied if the
    petitioner’s evidence fails to satisfy any
    one of these prongs.
    Commonwealth v. Busanet, 
    54 A.3d 34
    , 45 (Pa.
    2012) (citations formatted).      Furthermore, “[i]n
    accord with these well-established criteria for review,
    [an appellant] must set forth and individually discuss
    substantively each prong of the Pierce test.”
    Commonwealth v. Fitzgerald, 
    979 A.2d 908
    , 910
    (Pa.Super. 2009).
    Commonwealth v. Perzel, 
    116 A.3d 670
    , 671-672 (Pa.Super. 2015).
    First, we address appellant’s fourth issue where he claims that trial
    counsel was ineffective for not requesting a jury instruction regarding
    consent as a defense.   The Commonwealth avers that the failure by trial
    counsel to request such an instruction did not affect the outcome of the
    proceedings. Pursuant to Pierce, we will first address whether appellant’s
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    claim that Attorney Klena was ineffective for failing to request a jury
    instruction on consent6 has any arguable legal merit.
    6
    The jury instruction at issue is as follows:
    CONSENT A DEFENSE
    1.    The consent of the victim is a defense to a
    charge of [charge]. Consent is present if the
    victim at the time of the alleged crime [is willing
    that [give specifics]] [is willing that [give
    specifics] and makes [his] [her] willingness
    known to the defendant by words or behavior]
    [give specifics].
    2.    The consent of the victim is not legally effective
    and is not a defense if the victim is:
    a.     [Manifestly unable to make a
    reasonable judgment as to the
    nature or harmfulness of the conduct
    charged that constitutes the crime;
    [or]
    b.     Known to the defendant to be unable
    to make a reasonable judgment as
    to the nature or harmfulness of the
    conduct charged that constitutes the
    crime]
    3.    Additionally, the consent of the victim is not
    legally effective and is not a defense if it is
    induced by: [a. force; [or] b. duress; [or]
    c. deception.]
    4.    The burden is on the Commonwealth to prove
    beyond reasonable doubt that the alleged victim
    did not give a legally effective consent. Thus,
    you cannot convict the defendant unless you are
    satisfied beyond reasonable doubt that [name of
    victim] did not give a legally effective consent.
    Pa.S.S.J.I. § 8.311(B).
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    In cases in which consent is at issue, a defendant is entitled to have
    the   trial   judge   deliver   a   focused   charge   to   the   jury   on   consent.
    Commonwealth v. Prince, 
    719 A.2d 1086
    , 1091 (Pa.Super. 1998).                       In
    Prince, the defendant was charged and convicted of sexual assault. 
    Id. at 1087
    .     One of the elements of sexual assault is whether the complainant
    consented to the sexual contact with the defendant.7 As this court noted in
    Prince,
    [w]hile a defendant may assert consent as a
    defense, nevertheless, where lack of consent is an
    element of the crime, the defendant does not bear
    the burden of proving consent: the Commonwealth
    bears the burden of proving lack of consent, beyond
    a reasonable doubt. It was therefore imperative that
    the jury be instructed clearly and definitively as to
    where the burden lay on the issue of consent.
    
    Id. at 1090
    . The Commonwealth charged appellant with sexual assault and
    aggravated indecent assault without consent--two crimes in which lack of
    consent is an element.          Moreover, appellant has maintained an overall
    defense that any contact that he had with the victim was consensual.
    Appellant is correct in his averment that he was entitled to have the jury
    receive a consent instruction, therefore, his ineffective assistance of counsel
    claim has legal merit.
    7
    Sexual assault is defined as, “[e]xcept as provided in section 3121 (relating
    to rape) or 3123 (relating to involuntary deviate sexual intercourse), a
    person commits a felony of the second degree when that person engages in
    sexual intercourse or deviate sexual intercourse with a complainant without
    the complainant's consent.” 18 Pa.C.S.A. § 3124.1.
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    Second, appellant must prove by a preponderance of the evidence that
    the underlying act or omission by trial counsel which rendered his or her
    assistance ineffective lacked a reasonable basis. When determining whether
    trial counsel’s actions or omissions had any reasonable basis, we are
    governed by the following standard:
    In gauging the performance of an
    attorney at trial, the process must entail
    a comparison of the course adopted by
    counsel with the alternatives available.
    . . . The test is not whether alternatives
    were more reasonable, employing a
    hindsight evaluation of the record. . . .
    “[A] finding of ineffectiveness could
    never be made unless we concluded that
    the alternatives not chosen offered a
    potential   for     success   substantially
    greater than the tactics actually utilized.”
    Commonwealth v. Collins, 
    545 A.2d 882
    , 885 (Pa.
    1988)     (emphasis     in     original),   quoting
    Commonwealth ex rel. Washington v. Maroney,
    
    235 A.2d 349
     (Pa. 1967). The balance tips in favor
    of finding that counsel’s assistance was effective
    should we conclude that his or her decisions had any
    reasonable basis.
    Commonwealth v. Kilgore, 
    719 A.2d 754
    , 756-757 (Pa.Super. 1998).
    After a careful review of the record, we conclude that trial counsel did not
    have any reasonable strategic basis in failing to request a jury instruction on
    the defense of consent.
    During the PCRA hearing, Attorney Klena testified regarding his failure
    to request a jury instruction related to consent.    During his testimony, he
    stated that while he may have requested a jury instruction off the record, he
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    could not recall whether he had actually done so on the record. (Notes of
    testimony, 1/9/15 at 35.)            During cross-examination, Attorney Klena
    admitted that his failure to ask that a consent instruction be read to the jury
    was a mistake on his part:
    Q:       Let’s talk about the jury instruction issue. Your
    best recollection is you intended to have the
    consent instruction?
    A:       I did.
    Q:       And it’s just a mistake?
    A:       I believe it was a mistake. I probably should
    have on the record as opposed to in chambers
    requested and objected to its exclusion.
    Id. at 52-53. Based upon Attorney Klena’s admission that his failure to ask
    for a jury instruction related to consent was a mistake and our review of the
    record, we find no reasonable basis to fail to ask for such an instruction, and
    therefore find that appellant has satisfied the second prong of the Pierce
    test.
    Finally, in order for a petitioner to prevail on a claim of ineffective
    assistance    filed   under    the   PCRA,   the   petitioner   must   prove,   by   a
    preponderance of the evidence, that trial counsel’s act or omission caused
    petitioner to be prejudiced.
    To demonstrate prejudice, the petitioner must show
    that “there is a reasonable probability that, but for
    counsel’s unprofessional errors, the result of the
    proceeding would have been different.” Strickland,
    [supra at 694]; accord Commonwealth v. Cox,
    
    983 A.2d 666
    , 668 (Pa. 2009).          A reasonable
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    probability is a probability sufficient to undermine
    confidence in the outcome of the proceeding. See
    Commonwealth v. Ali, 
    10 A.3d 282
    , 291 (Pa.
    2010).
    Commonwealth v. King, 
    57 A.3d 607
    , 613 (Pa. 2012).
    In Prince, this court stated that a failure to instruct the jury on a
    consent defense could undermine confidence in the outcome of the
    proceedings.
    We recognize that after setting forth the elements of
    the crime of sexual assault, the trial court did charge
    the jury that the Commonwealth bore the burden of
    proving each element beyond a reasonable doubt.
    The court also charged the jury that it was not
    appellant’s burden to prove his innocence as to each
    element of all of the crimes charged beyond a
    reasonable doubt.       Nevertheless, we find that
    appellant was entitled to a focused charge on
    consent, also emphasizing specifically where the
    burden lay. . . . We agree with the Commonwealth
    that the verdict indicates that the jury painstakingly
    sifted through the elements of the crimes; however,
    we cannot feel certain that the contested jury
    charge could not have made a difference.
    Prince, 719 A.2d at 1091 (citations omitted) (emphasis added). Moreover,
    during deliberations, the jury asked a question regarding consent, in which
    the jury asked what “non-consent” meant, and whether consent meant an
    active assertion or if only passive, noncommittal behavior was required.
    (Notes of testimony, 3/5/13 at 59.) The trial court provided the following
    answer:
    Non-consent means lack of consent. And you’ll have
    to use [your] own common sense and life
    experiences to determine what non-consent means
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    in this situation. I’m sorry. There was no definition
    that we felt we could give at this point which was not
    given in the original instructions. So we’ll just have
    to piece it together with what are in the other
    instructions. Thank you. Sorry. The best we can
    do.
    Id. at 60. Coupled with this court’s language in Prince, the jury’s question
    about the meaning of “non-consent” raises the possibility that confidence in
    the outcome of appellant’s trial may be undermined.       Therefore, appellant
    has demonstrated that he was prejudiced by trial counsel’s failure to request
    a jury instruction related to the consent defense.
    Appellant has met all three prongs of the Pierce test for ineffective
    assistance of counsel claims under the PCRA.            Accordingly, we are
    constrained to reverse the order dismissing appellant’s PCRA petition, and
    we remand to the trial court for a new trial.        Discussion of appellant’s
    remaining issues is not necessary, as the issues are now moot.
    Order reversed. Remanded for new trial. Jurisdiction relinquished.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 11/23/2015
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