Com. v. Schultz, W. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
WENDY A. SCHULTZ
Appellant No. 563 EDA 2016
Appeal from the PCRA Order January 7, 2016
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0000087-2012
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 09, 2016
Wendy A. Schultz appeals from the order, entered in the Court of
Common Pleas of Monroe County, which dismissed her petition filed
pursuant to the Post Conviction Relief Act (PCRA).1 After careful review, we
affirm.
Following a jury trial, Schultz was convicted of burglary, conspiracy,
robbery, criminal trespass, and related charges based upon her role in a
home invasion in Price Township, Monroe County. Schultz was sentenced on
January 24, 2013, to an aggregate term of 10 to 20 years’ incarceration.
Following a timely appeal, this Court affirmed Schultz’ judgment of sentence
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*
Retired Senior Judge assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
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on February 21, 2014. See Commonwealth v. Schultz, 97 A.3d 809 (Pa.
Super. 2014) (unpublished memorandum). The Pennsylvania Supreme
Court denied Schultz’s petition for allowance of appeal on July 25, 2014.
Schultz filed a timely pro se PCRA petition on July 16, 2015. The PCRA
court appointed counsel, who filed an amended petition and represented
Schultz at an evidentiary hearing on September 28, 2015.2 After the
Commonwealth and Schultz filed briefs on the matter, the court dismissed
the petition on January 7, 2016. Thereafter, Schultz filed a timely notice of
appeal and court-ordered concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). On appeal, Schultz raises the
following issues for our review:
1. Was trial counsel ineffective for failing to request a curative
instruction following testimony from Trooper Sebastianelli that
[Schultz] was given the opportunity to clear her name by
taking a polygraph [test]?
2. Was trial counsel ineffective for failure to raise an alibi
defense?
Brief of Appellant, at 5.
Our standard and scope of review regarding the denial of a PCRA
petition is well-settled. We review the PCRA court’s findings of fact to
determine whether they are supported by the record, and review its
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2
T. Axel Jones, Esquire, was initial court-appointed counsel. Attorney Jones
was administratively suspended following the evidentiary hearing, and Lara
M. Kash, Esquire, was appointed to represent Schultz. Attorney Kash
continues to represent Schultz on appeal.
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conclusions of law to determine whether they are free from legal error.
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). The scope of our
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. Id.
To be eligible for relief under the PCRA, Schultz must prove by a
preponderance of the evidence that her conviction resulted from “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.” 42 Pa.C.S. § 9543(a)(2)(ii).
“Counsel is presumed to be effective and the burden of demonstrating
ineffectiveness rests on appellant.” Commonwealth v. Ousley, 21 A.3d
1238, 1244 (Pa. Super. 2011). To demonstrate ineffectiveness, the
appellant must satisfy a three-part test by showing that: “(1) his underlying
claim is of arguable merit; (2) counsel had no reasonable basis for his action
or inaction; and (3) the petitioner suffered actual prejudice as a result.”
Spotz, supra at 311.
In her first issue, Schultz asserts that trial counsel should have
requested a curative instruction after Trooper Sebastianelli made a remark
that Schultz could have taken a polygraph test to demonstrate her
innocence. Counsel made a request for a mistrial, which was denied, but did
not request a curative instruction. The testimony at issue occurred in the
following exchange:
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[The Commonwealth]: And was there a time in July of 2011
when you became involved with the investigation of a burglary
and a robbery . . . relating to the residence of [victim]?
[Trooper Sebastianelli]: Yes, it wasn’t my follow up
investigation, but I ended up becoming involved when I received
a call from [Schultz].
...
Q: And was this telephone call placed to the police barracks?
A: Yes, it came right to my desk.
Q: And did [Schultz] tell you why she was calling?
A: Yes, she said that her name was being thrown around as
being involved with this robbery, the home invasion robbery at
the victim’s home, and she said Sebastianelli you know I didn’t
do this and it went on from there.
Q: What else did she tell you in the telephone call?
A: She said you know I didn’t do this and the old man up there
said that I didn’t do it. I said Wendy I don’t know what the
victim had to say about this robbery. I said, but if you’re
looking to clear your name out of something, you want to
come in, you can take a polygraph, you can talk to the
investigator.
[Counsel for Schultz]: Objection.
N.T. Trial, 11/26/12, at 39-40 (emphasis added). After the objection to the
mention of the polygraph, the following sidebar discussion was held:
[Counsel for Schultz]: Sadly I think we just had [a] mistrial.
The Court: Because?
[The Commonwealth]: I don’t think so.
[Counsel for Schultz]: Because of the mention of the word
polygraph. The law on that is very, very clear that it cannot be
mentioned as part of testimony and if it is brought out in the
Commonwealth’s case in chief it is grounds for a mistrial, and
there’s actually no choice.
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[The Commonwealth]: I think, he’s true if you’re talking about
was she offered a polygraph, did she undergo a polygraph, what
were the results.
[Counsel for Schultz]: And he just said that he offered her—
[The Commonwealth]: He’s testifying as to the conversation
between himself and [Schultz].
[Counsel for Schultz]: But he said he offered her to come in for
a polygraph, that is a problematic phrase and [the
Commonwealth] and I are in agreement that when that is used it
creates—
[The Commonwealth]: No, we’re not in agreement, we’re in
agreement if he had said yes she came in and took a polygraph,
not whether, you know the standard litany of come in, talk to us,
polygraph, whatever. We have no idea whether she took one or
not, I don’t know. Just because he used the word polygraph
doesn’t mean mistrial.
[Counsel for Schultz]: It doesn’t matter whether she took one or
not, and if we recess for 15 minutes I’ll get you the cases.
The Court: What about a curative instruction?
[Counsel for Appellant]: My understanding was that because of
the junk science that is a polygraph[,] it’s considered to be
sufficient to taint the proceedings so that they can’t go further.
Id. at 41-42 (emphasis added). At no point did trial counsel respond to the
court’s mention of a curative instruction or ask that one be given.
Schultz argues that
the prejudicial effect of [Trooper Sebastianelli’s] statement is
that it leaves the jury with the reasonable assumption that had
[Schultz] taken or passed a polygraph examination, she could
have “cleared her name[,”] negating the necessity for the
prosecution.
This inference easily could have been remedied, with a prompt
curative instruction at the request of [t]rial [c]ounsel.
...
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A prompt instruction would have prevented any inference that
the petitioner had the opportunity to clear her name and was
either unwilling or unable to do so.
Brief of Appellant, at 12-14. Indeed, where a polygraph test has been
improperly referenced, a cautionary instruction can be “adequate to
overcome prejudice” caused by such references. Commonwealth v.
Fortenbaugh, 69 A.3d 191, 193 (Pa. 2013).
In Fortenbaugh, possible prejudice from improper references to a
polygraph was remedied by a curative instruction where the references were
not intentional, no indication was provided suggesting a test actually took
place, and the trial court adequately instructed the jury not to draw any
inferences from the mention of the test. See id. at 195. Similarly, in
Schultz’s trial, it does not appear that the Commonwealth intentionally
elicited the reference to a polygraph, nor did Schultz take a polygraph.
Thus, Schultz’s claim that a curative instruction should have been requested
and given is of arguable merit. Spotz, supra.
At the PCRA evidentiary hearing, Schultz’s trial counsel testified as the
reasons he did not request a curative instruction. He indicated that
[i]n my mind there were two. The first reason was I really did
not want the Superior Court to have something that it could
glom onto and say, [w]ell a curative instruction was given, and
so any error associated with the admission of that testimony was
harmless because it was corrected by the [c]ourt, because I
thought that the issue of making those comments regarding a
polygraph was sufficiently prejudicial that it would be a good
issue to have on appeal, if an appeal was necessary.
And the second part was, quite frankly, I didn’t want to call
additional attention to it, and I couldn’t come up with a curative
instruction that addressed it. How do you say to a jury, [y]ou
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remember hearing Trooper Sebastianelli talk about the
polygraph that [Schultz] was supposed to come in for and didn’t,
disregard that. You can’t consider that without bringing it right
back into their minds.
N.T. PCRA Hearing, 9/28/15, at 12.
Trial counsel’s rationale that not requesting a curative instruction
would make the issue stronger for purposes of direct appeal is illogical, since
the fact that counsel did not request the instruction resulted in waiver of the
claim on appeal. See Schultz, supra. However, counsel’s second reason,
that a curative instruction would only serve to draw unwanted attention to
the issue, indicates a strategic, reasonable basis for not requesting the
instruction. See Spotz, supra. Additionally, we note that this Court
determined that the single inadvertent reference to a polygraph did not
result in prejudice to Schultz. Schultz, supra; see also Fortenbaugh,
supra at 195 (“Not every mention of a polygraph is prejudicial or worthy of
a mistrial.”). Because counsel had a reasonable basis for not requesting a
curative instruction regarding the reference to a polygraph and because
Schultz did not suffer prejudice as a result, we agree with the PCRA court’s
assessment that counsel was not ineffective. Spotz, supra.
Schultz also asserts that trial counsel was ineffective for failing to raise
an alibi defense. Schultz claims that she was misidentified and that her
minor daughter, Christine, could have testified as to her whereabouts at the
time of the crime.
In considering whether counsel was ineffective for failing to call a
witness, including an alibi witness, a petitioner must show:
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(1) the witness existed; (2) the witness was available; (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 was so prejudicial to
petitioner to have denied him or her a fair trial.
Commonwealth v. Dennis, 17 A.3d 297, 302 (Pa. 2011).
Instantly, trial counsel testified at the evidentiary hearing that he
could not specifically remember each potential witness he interviewed.
However, he testified that he spoke with
at least one witness that we elected not to call because, when I
had spoken with that witness, the witness’ recollection wasn’t
favorable, and I don’t think it was incriminating. It just wasn’t
helpful, but I don’t remember anyone else either not appearing
or that I had not spoken with.
N.T. PCRA Hearing, 9/28/15, at 7-8. Trial counsel also indicated that no
evidence was brought to his attention that he did not investigate or review.
Id. at 8. The PCRA court credited counsel’s testimony and found that
Schultz’s testimony that Christine could have served as an alibi was not
credible and did not satisfy the requirements outlined in Dennis, supra.
The PCRA court’s conclusions are supported in the record. Spotz, supra.
Accordingly, we find that the court did not err in finding Schultz’s alibi-
witness claim to be meritless. Id.
For the foregoing reasons, the PCRA court did not err in dismissing
Schultz’s PCRA petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/9/2016
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