Com. v. Barnett, H. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HAROLD LEROY BARNETT
Appellant No. 2935 EDA 2014
Appeal from the PCRA Order September 25, 2014
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0001379-2010
BEFORE: MUNDY, J., OTT, J., and STABILE, J.
MEMORANDUM BY OTT, J.: FILED JANUARY 06, 2016
Harold Leroy Barnett appeals the order entered September 25, 2014,
in the Bucks County Court of Common Pleas, denying his petition for
collateral relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. § 9543-9546. Barnett seeks relief from the judgment of sentence of
25 to 50 years’ imprisonment, imposed following his jury conviction of two
counts each of unlawful contact with a minor, indecent assault, and
corruption of minors1 for his sexual abuse of two minor females. On appeal,
Barnett raises three challenges to the ineffective assistance of trial counsel.
For the reasons below, we affirm.
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1
18 Pa.C.S. §§ 6318(a)(1), 3126(a)(7), and 6301(a)(1).
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The facts underlying Barnett’s convictions are well-known to the
parties, and detailed in the opinion of this Court affirming Barnett’s sentence
on direct appeal. See Commonwealth v. Barnett, 50 A.3d 176, 180-181
(Pa. Super. 2012). Accordingly, we need not reiterate them herein. For
purposes of this appeal, we note only that in December of 2009, the two
victims, 11-year old B.M. and nine-year old M.W., reported to the police that
Barnett had been sexually abusing them. Barnett is the uncle of both B.M.’s
mother’s paramour, and M.W.’s father, and the girls would often stay with or
visit Barnett and his wife. B.M. stated the abuse began in 2007, when she
was nine years old, and continued until November of 2009. M.W. recounted
two times in 2009 when Barnett touched her inappropriately.
Barnett was arrested and charged with rape of a child and aggravated
indecent assault2 with regard to B.M., and two counts each of unlawful
contact with a minor, indecent assault, and corruption of minors, with regard
to both victims. Following a jury trial in December of 2010, Barnett was
acquitted of rape and aggravated indecent assault, but convicted of the
remaining charges. The Commonwealth waived a sexually violent predator
assessment of Barnett by the Sexual Offenders Assessment Board, and on
January 27, 2011, Barnett was sentenced to a mandatory minimum 25 to 50
years’ imprisonment, pursuant to 42 Pa.C.S. § 9718.2 (mandatory 25 years’
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2
18 Pa.C.S. §§ 3121(c), and 3125(a)(7), respectively.
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imprisonment for second sexual offense).3 He filed a motion for
reconsideration of sentence, which was denied by the trial court. As noted
above, Barnett’s judgment of sentence was affirmed by this Court,4 and the
Pennsylvania Supreme Court later denied allocator review. See Barnett,
supra, appeal denied, 63 A.3d 772 (Pa. 2013).
On December 19, 2013, Barnett filed a timely, pro se PCRA petition,
asserting 17 grounds for relief. Counsel was appointed and filed both an
amended and second amended petition, narrowing the issues to several
claims of the ineffectiveness of trial counsel. The PCRA court conducted a
hearing on July 3, 2014, during which Barnett, two witnesses, and trial
counsel testified. Thereafter, on September 25, 2014, the PCRA court
entered an order denying Barnett relief. This timely appeal follows. 5
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3
In 1978, Barnett pled guilty in California to a charge of incest for the
sexual assault of his daughter.
4
Barnett raised four issues on direct appeal: (1) the trial court abused its
discretion in admitting hearsay testimony regarding the victims’ out-of-court
statements; (2) the trial court abused its discretion in permitting the
Commonwealth’s expert urologist to testify; (3) the trial court erred in
allowing B.M’s handwritten statement to go out to the jury during
deliberations; and (4) Section 9718.2 of the Sentencing Code constitutes
cruel and unusual punishment. Barnett, supra, 50 A.3d at 181-182.
5
On October 14, 2014, the PCRA court ordered Barnett to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Barnett complied with the court’s directive, and filed a concise statement on
October 22, 2014.
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Barnett raises three issues on appeal, each asserting the ineffective
assistance of trial counsel.
Our standard of review of an order denying PCRA relief is
whether the record supports the PCRA court’s determination and
whether the PCRA court’s decision is free of legal error. The
PCRA court’s findings will not be disturbed unless there is no
support for the findings in the certified record.
Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (internal
citations omitted).
With regard to Barnett’s specific claims, we note:
In order to obtain relief on a claim of counsel
ineffectiveness, a PCRA petitioner must satisfy the performance
and prejudice test set forth in Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In
Pennsylvania, we have applied the Strickland test by requiring
that a petitioner establish that (1) the underlying claim has
arguable merit; (2) no reasonable basis existed for counsel’s
action or failure to act; and (3) the petitioner suffered prejudice
as a result of counsel’s error, with prejudice measured by
whether there is a reasonable probability that the result of the
proceeding would have been different. Commonwealth v.
Pierce, 567 Pa. 186, 786 A.2d 203, 213 (2001). Counsel is
presumed to have rendered effective assistance, and, if a claim
fails under any required element of the Strickland test, the
court may dismiss the claim on that basis. Commonwealth v.
Ali, 608 Pa. 71, 10 A.3d 282, 291 (2010).
Commonwealth v. Reid, 99 A.3d 470, 481 (Pa. 2014).
In his first issue, Barnett contends trial counsel was ineffective for
failing to question him regarding an incident when he removed B.M. from a
movie theater during explicit scenes in the movie “Bruno,” because it would
have supported his innocence. By way of background, at the PCRA hearing,
Barnett testified he took his 14-year old grandson to the movie, where he
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met B.M. and her mother. Barnett stated his wife had warned him there was
nudity in the movie, and when he informed B.M.’s mother, she responded,
“it will be all right, it’s just minor.” N.T., 7/3/2014, at 19. However, during
one scene in the beginning of the movie, there was a picture of a penis with
semen coming out of it. Id. at 19-20. Barnett testified B.M.’s mother tried
to put her hands in front of the girl’s eyes to shield her, but Barnett grabbed
B.M. by the hand and pulled her out of the theater. He further stated that
he tried to go back to get his grandson, but he could not leave B.M. alone.
Barnett now asserts he told trial counsel about this incident, and
argues counsel should have questioned him about the event, which he
claims “supported his innocence by demonstrating his outrage” at the
displayed nudity. Barnett’s Brief at 12. He further argues counsel had no
reasonable basis for failing to present this evidence because “the alternative
not chosen here, (to present this evidence) offered potential for success
substantially greater than the course actually pursued.” Id.
Trial counsel testified during the PCRA hearing that, although he
initially considered questioning Barnett about the movie incident, he later
decided not to do so because he believed the testimony could be harmful to
the defense. Counsel explained:
I thought that [Barnett] was doing very well in his direct
examination. I thought he was coming across as very credible.
He was – he made a good appearance. He answered the
questions strongly. His denial was very strong; I thought very
believable.
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And I didn’t see the benefit of bringing that movie in and
subjecting him to potential cross-examination on it when I
thought that his direct limited some of the cross-examination
that might be – from the district attorney.
****
The concerns, obviously, when you’re talking with
allegations that we have versus testimony of watching male
genitalia and sexual acts, and he grabs the one child and
immediately takes her out, but doesn’t take the other child out
could be questioned, the motive of why he would take [B.M.] out
at that time as opposed to saying to her mother: Take her out.
Let’s go. All four of us go.
The fact that he would grab one child, just her, and leave,
could be interpreted different ways. It could be interpreted that
he did not want her to see certain things because of actions that
were similar to that.
N.T., 7/3/2014, at 66-67. Under cross-examination, trial counsel further
testified that “the entire incident was a double-edged sword[,]” because it
could be argued that Barnett was either protecting B.M., or that he was
protecting himself. Id. at 84. Therefore, counsel decided not to question
Barnett about the incident.
The PCRA court concluded counsel had a reasonable strategic basis for
failing to question Barnett about the incident. See PCRA Court Opinion,
2/3/2015, at 7. We agree. When considering whether counsel had a
reasonable basis for his actions or inaction,
we do not question whether there were other more logical
courses of action which counsel could have pursued; rather, we
must examine whether counsel’s decisions had any reasonable
basis. We will conclude that counsel’s strategy lacked a
reasonable basis only if the petitioner proves that a foregone
alternative offered a potential for success substantially greater
than the course actually pursued.
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Commonwealth v. Roney, 79 A.3d 595, 604 (Pa. 2013) (internal
punctuation and citations omitted; emphasis supplied), cert. denied, 135 S.
Ct. 56 (U.S. 2014).
Assuming, arguendo, this claim is of arguable merit, counsel had a
reasonable, strategic basis for choosing not to question Barnett about the
movie incident. As trial counsel testified, the jury may have interpreted
Barnett’s actions, in ushering only B.M. out of the theater, as a means to
prevent her from disclosing to her mother the fact that Barnett had been
sexually abusing her.6 Therefore, his decision not to question Barnett about
the movie incident was a strategic decision. Further, Barnett has failed to
establish he was prejudiced by counsel’s omission, that is, he failed to
demonstrate “there is a reasonable probability that the outcome of the
proceedings would have been different but for counsel’s action or inaction.”
Roney, supra, 79 A.3d at 604 (citation omitted). His bald allegation that
this testimony was “crucial to the defense” is simply not supported by the
record. Barnett’s Brief at 13. Accordingly, no relief is warranted on this
claim.7
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6
We note that Barnett’s claim on appeal that he was “outraged” by the
explicit images is not supported by his testimony at the PCRA hearing. See
N.T., 7/3/2014, at 20 (Barnett stating only that he “grabbed [B.M.] and
pulled her out of the movie.”).
7
We decline to adopt the Commonwealth’s contention that this issue is
waived because Barnett did not include it in his post-hearing PCRA brief.
See Commonwealth’s Brief at 28-29. This issue was raised in Barnett’s pro
(Footnote Continued Next Page)
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Next, Barnett argues trial counsel was ineffective for failing to request
a “prompt complaint” jury instruction. When considering whether a “prompt
complaint” charge is necessary and appropriate, we must bear in mind the
following:
The premise for the prompt complaint instruction is that a victim
of a sexual assault would reveal at the first available opportunity
that an assault occurred. The instruction permits a jury to call
into question a complainant’s credibility when he or she did not
complain at the first available opportunity. However, there is no
policy in our jurisprudence that the instruction be given in every
case.
“The propriety of a prompt complaint instruction is determined
on a case-by-case basis pursuant to a subjective standard based
upon the age and condition of the victim.” For instance,
“[w]here an assault is of such a nature that the minor victim
may not have appreciated the offensive nature of the conduct,
the lack of a prompt complaint would not necessarily justify an
inference of fabrication.”
Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa. Super. 2013)
(internal citations omitted).
Here, Barnett contends trial counsel should have requested a “prompt
complaint” charge, which instructs the jury, inter alia, the victim’s “[delay in
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(Footnote Continued)
se, amended and second amended petitions, and argued during the
evidentiary hearing. While we acknowledge it was not addressed in his post-
hearing brief, we find the claim was not abandoned by Barnett and has been
preserved for our review. See Memorandum of Law in Support of []
Barnett’s Post Conviction Relief Act Petition, 8/28/2014, at 2 (“This brief is
filed in compliance with Honorable Jeffrey L. Finley’s order and undersigned
counsel highlights three issues from the PCRA Petition below.”) (emphasis
supplied).
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making a complaint] should be considered in evaluating [her] testimony and
in deciding whether the act occurred [at all] ….” S.S.J.I. (Crim) 4.13A(2).
He argues both victims failed to promptly report Barnett had sexually abused
them. Further, he asserts a “prompt complaint” charge is relevant even
when the victim is a minor, so long as “the actual occurrence of a sexual act
is at issue and the victim comprehends the offensiveness of the sexual
assault at the time of the occurrence[.]” Barnett’s Brief at 15, citing
Commonwealth v. Ables, 590 A.2d 334 (Pa. Super. 1991), appeal denied,
597 A.2d 1150 (Pa. 1991).
With regard to the ineffectiveness prongs, Barnett argues this claim
has arguable merit because the victims could not specify the dates on which
the alleged assaults occurred, and, therefore, “their credibility was central to
trial counsel’s strategy.” Barnett’s Brief at 20. Moreover, he asserts that
although both victims were minors, their testimony demonstrated they
understood the sexual acts were improper. With regard to the second
prong, Barnett contends trial counsel had no reasonable basis for his failure
to request a “prompt complaint” charge.8 Lastly, Barnett contends he was
prejudiced by counsel’s dereliction because his defense strategy “hinged on
B.M.’s fabrication of the sexual offenses in coordination with her mother[; …
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8
Indeed, during the PCRA hearing, counsel testified he did not ask for a
“prompt complaint” charge simply because he “didn’t think it was
appropriate” under the facts of the case. N.T., 7/3/2014, at 73.
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w]ithout a prompt complaint jury charge, the factfinder was not directed as
to how to interpret the victims’ delay in reporting.” Barnett’s Brief at 21.
The PCRA court concluded that a “prompt complaint” jury charge was
not warranted under the facts of this case. The court explained that both
victims were nine years old when the assaults began, and each time the
abuse occurred “at the home of [Barnett], a family member, and/or while
[Barnett] had custody or control over the victims.” PCRA Court Opinion,
2/3/2015, at 14. Further, the court found the victims’ descriptions of the
assaults, at the time they reported them to the police, “also reflect[ed] their
immaturity, their lack of knowledge of sexual activity, and their lack of
understanding of the severity of [Barnett’s] actions towards them.” Id.,citing N.T., 12/2/2010, at 65 (testimony of B.M. describing Barnett’s actions
as “rubbing his thingy on her vagina” and semen as “white creamy stuff”).
Importantly, while the PCRA court acknowledged Barnett did not use
physical force during the sexual assaults, it noted he abused the victims at a
time when he had “authority or control” over them. Trial Court Opinion,
2/3/2015, at 15. Accordingly, the court found Barnett’s claim had no
arguable merit.
We agree. As noted above, there is no requirement that a “prompt
complaint” charge be given in every case,9 and, here, the PCRA court, which
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9
Sandusky, supra.
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also presided over Barnett’s trial, explained why the instruction would not
have been appropriate had it been requested. Furthermore, we find that
even if the claim had arguable merit and counsel had no reasonable basis for
failing to request the charge, Barnett has failed to demonstrate he was
prejudiced as a result. This Court’s decision in Sandusky, supra, is
instructive.
In Sandusky, the defendant, over a 13-year period, sexually abused
eight boys he met through a non-profit organization for at-risk youth.
Sandusky, supra, 77 A.3d at 666. Despite the fact that the victims did not
report the abuse for several years, some for more than a decade, the trial
court declined to give the jury a “prompt complaint” instruction. On direct
appeal, the defendant argued the trial court erred in refusing to give the
requested charge.
Although a panel of this Court found the trial court erred when it failed
to evaluate the appropriateness of the charge with respect to each individual
victim, the panel ultimately determined the court’s error was harmless. Id.
at 668. The trial court provided the jury with the standard credibility
charge, which instructed them, inter alia, to consider whether the testifying
witnesses had “any interest in the outcome of the case, anything to gain or
lose … [a]ny bias, any prejudice, or any other motive that might affect his or
her testimony.” Id. at 669 (emphasis omitted). This Court explained:
This instruction provided the jury with a sufficient framework to
question the victims’ credibility. In addition, at trial, Sandusky
extensively argued that the victims not only delayed in
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reporting, but that they did so because the abuse never occurred
and that they concocted their stories for financial gain. As
stated above, the trial court specifically instructed the jury that
they were to consider any possible motives of the victims in
coming forward. The vigorous cross-examination of the victims
and arguments by defense counsel, when combined with the trial
court’s instructions on credibility, clearly defined the issues for
the jury. Therefore, we find that, under the facts of this case,
the absence of the prompt complaint instruction did not
prejudice Sandusky.
Id.The same is true in the present case. Here, the trial court provided
the following instructions to the jury when considering the credibility of the
testifying witnesses:
You must consider and weigh the testimony of each
witness and give it such weight as you, in your judgment,
believe it is fairly entitled to invest. The matter of the credibility
of a witness, that is, whether that witness’s testimony is
believable and accurate in whole or in part is solely for your
determination.
Let me just mention some of the factors that might come
to bear on your determination of credibility. Consider whether
the witness has any interest in the outcome of the case or has
friendship or animosity towards other persons concerned in the
case. Consider the behavior of the witness on the witness
stand, his or her demeanor, his or her manner of
testifying and whether or not that witness shows any bias
or prejudice which might color his or her own testimony,
the accuracy of his memory and recollection, his or her ability
and opportunity to acquire knowledge of or to observe the
matters concerning which he or she testifies, the consistency or
inconsistency of the witness’s testimony as well as its
reasonableness or unreasonableness in light of all the evidence
presented in this case.
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N.T., 12/6/2010, at 8-9 (emphasis supplied). This charge is substantially
similar to that deemed satisfactory in Sandusky.10 Furthermore, like the
defense in Sandusky, here, Barnett argued the abuse never occurred and
the story was concocted by B.M.’s mother. See N.T., 12/3/2010 (Closing
Arguments), at 7-10. He emphasized the difficulty in “prov[ing] a negative”
years after the abuse purportedly occurred. See id. at 12-13. Accordingly,
we find Barnett has failed to demonstrate he was prejudiced by the omission
of a “prompt complaint” charge, and, therefore, is entitled to no relief on his
second claim.
In his last issue, Barnett argues counsel was ineffective for failing to
call as witnesses two of his neighbors, Wally and Roberta Freimanis, who
were prepared to testify that Barnett’s mother-in-law, who died prior to trial,
lived with him during the time the sexual assaults purportedly occurred, and
rarely left the house. Barnett asserts counsel was aware of these witnesses,
and both were available and willing to testify at his trial. 11 Further, although
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10
We note the Sandusky decision involved a direct appeal, and this Court
found the lack of a prompt complaint charge, in light of the credibility
instructions, was harmless error, i.e., “the error could not have contributed
to the verdict[.]” Sandusky, supra, 77 A.3d at 668 (citation omitted). In
the present case, the prejudice standard is somewhat more stringent in that
Barnett was required to demonstrate more than that the error “could have
contributed” to the jury’s verdict, but rather, that there was a “reasonable
probability that the result of the proceeding would have been different.”
Reid, supra, 99 A.3d at 481.
11
Both Wally and Roberta Freimanis testified during the PCRA hearing, and
cooroborated Barnett’s claims that (1) his mother-in-law lived with him
(Footnote Continued Next Page)
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he acknowledges there was testimony at trial that his mother-in-law lived
with him during the time of the alleged assaults, he argues the Freimanises
would have “corroborated that testimony, from an unbiased source.”12
Barnett’s Brief at 23.
When an allegation of ineffectiveness is based upon counsel’s failure to
call a witness, a petitioner must establish that:
(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. Sneed, 45 A.3d 1096, 1108-1109 (Pa. 2012).
Here, the testimony at the PCRA hearing clearly demonstrated the
Freimanises were known to defense counsel, and were ready and willing to
testify on Barnett’s behalf at the time of trial. However, the PCRA court
concluded that Barnett “failed to establish that he was denied a fair trial or
prejudiced by the absence of this testimony.” PCRA Court Opinion,
2/3/2015, at 17. The court opined:
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(Footnote Continued)
during the time of the alleged assaults; (2) she rarely left the house; and (3)
they were available and willing to testify at the time of Barnett’s jury trial.
See N.T., 7/3/2013, at 35-38, 42-43.
12
The Commonwealth did not deny the fact that Barnett’s mother-in-law
also lived in his home at the time of the offenses. See N.T., 12/2/2010, at
39 (testimony of B.M.), 93 (testimony of M.W.). Barnett’s wife, Donna, also
testified her mother lived with her and Barnett when the abuse allegedly
occurred. Id. at 187, 192. See also N.T., 12/3/2014, at 7, 27.
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During trial, the jury heard this same evidence - that [Barnett’s]
mother-in-law was also living in the Barnett home during the
relevant time frame - through several other witnesses including
the victim’s (sic), B.M and M.W., and Donna Barnett. This
evidence was not challenged in any way by the Commonwealth.
The testimony of Roberta and Wally [Freimanis] would not have
informed the jury of anything they did not already know. In
fact, the [Fremanises’] testimony may have been ruled
inadmissible as cumulative testimony. As a result, [Barnett] was
not prejudiced by [t]rial [c]ounsel’s failure to call Wally and
Roberta [Freimanis] as witnesses, and this claim must fail as
well.
Id. (record citation omitted). We agree with the analysis of the PCRA court,
and rest on its well-reasoned basis.
Therefore, finding all of Barnett’s ineffectiveness claims meritless, we
affirm the order of the PCRA court dismissing his collateral petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/6/2016
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