Com. v. Zheng, G. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
GUIPING ZHENG
Appellant No. 1402 WDA 2018
Appeal from the PCRA Order entered September 14, 2018
In the Court of Common Pleas of Allegheny County
Criminal Division at No: CP-02-CR-0003431-2014
BEFORE: OLSON, STABILE, and McLAUGHLIN, JJ.
MEMORANDUM BY STABILE, J.: FILED AUGUST 27, 2019
Appellant, Guiping Zheng, appeals from the September 14, 2018 order
entered in the Court of Common Pleas of Allegheny County, denying his
petition for collateral relief filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A §§ 9541-9546. Appellant contends the PCRA court
erred in failing to find that trial counsel ineffectively cross-examined
Appellant’s accuser and in failing to find that both trial and direct appeal
counsel failed to raise a violation of Appellant’s due process rights. Upon
review, we affirm.
On direct appeal, this Court provided the following factual background:
The evidence adduced at the trial in this matter established that
Appellant lay on top of the victim, E.S., fondled her over her
clothing and attempted to kiss her. This conduct occurred
frequently over the course of approximately four years,
commencing when the victim was six years old. Eventually, the
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victim revealed the ongoing abuse to her mother who reported
Appellant’s behavior.
Commonwealth v. Zheng, 2016 WL 4954188, at *1, (Pa. Super. July 11,
2016), appeal denied, 167 A.3d 709 (Pa. 2017).
The PCRA court provided the following procedural history:
On July 21, 2014, a jury convicted Appellant . . . of one count each
of indecent assault, unlawful contact with minor, endangering
welfare of children, corruption of minors (course of conduct), and
corruption of minors.1 This court sentenced Appellant on February
2, 2015 to a sentence of incarceration for a minimum period of 7
months and 15 days and a maximum period of 15 months, with
each count carrying a probation sentence of 3 years consecutive
to incarceration but concurrent with each probationary sentence.
On March 3, 2015, this court denied Appellant’s post-sentence
motion. Appellant filed a notice of appeal on March 26, 2015 and
the Superior Court of Pennsylvania affirmed on July 11, 2016.
[Appellant filed a petition for allowance of appeal, which our
Supreme Court denied on March 7, 2017.]
1
18 Pa.C.S. §§ 3126(a)(7), 6318(a)(4), 4304(a)(1), 6301(a)(1)(ii), and
6301(a)(1)(i), respectively.
PCRA Court Opinion, 12/20/18, at 1 (some capitalization omitted).
Following denial of his petition for allowance of appeal, Appellant filed a
timely PCRA petition raising seven issues. At the conclusion of a hearing
conducted on September 12, 2018, the PCRA court announced its ruling,
explaining its denial of Appellant’s requested relief with the exception of one
correction relating to the proper identification of a statutory provision. The
court’s order was entered on the docket on September 14, 2018. This timely
appeal followed. Both Appellant and the PCRA court complied with Pa.R.A.P.
1925.
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Appellant asks us to consider two issues on appeal:
I. Did the PCRA court err in denying Appellant’s petition for
post-conviction relief when trial counsel failed to cross-
examine the accuser about statements made at trial, which
were inconsistent with statements made at both a forensic
interview and the preliminary hearing, explaining why she
did not make a prompt complaint of the alleged sexual
abuse?
II. Did the PCRA court err in denying Appellant’s petition for
post-conviction relief when neither trial counsel nor
appellate counsel argued that the Commonwealth’s
questioning of a defense character witness assumed
[Appellant’s] guilt, violating Appellant’s due process rights?
Appellant’s Brief at 4.
Our standard of review from the denial of PCRA relief is well settled.
“[A]n appellate court reviews the PCRA court’s findings of fact to determine
whether they are supported by the record, and reviews its conclusions of law
to determine whether they are free from legal error.” Commonwealth v.
Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted). With regard to the
scope of our review, we are “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.
In his first issue, Appellant argues that his trial counsel was ineffective
for failing to cross-examine the victim, E.S., regarding prior inconsistent
statements “as to why she did not make a prompt complaint” about
Appellant’s actions. PCRA Court Opinion, 12/20/18, at 3. As this Court has
recognized:
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The law presumes counsel has rendered effective assistance.
Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super.
2010). The burden of demonstrating ineffectiveness rests on
Appellant. Id. To satisfy this burden, Appellant must plead and
prove by a preponderance of the evidence that: “(1) his
underlying claim is of arguable merit; (2) the particular course of
conduct pursued by counsel did not have some reasonable basis
designed to effectuate his interests; and, (3) but for counsel’s
ineffectiveness, there is a reasonable probability that the outcome
of the challenged proceeding would have been different.”
Commonwealth v. Fulton, 574 Pa. 282, 830 A.2d 567, 572
(2003). Failure to satisfy any prong of the test will result in
rejection of the appellant’s ineffective assistance of counsel claim.
Commonwealth v. Jones, 571 Pa. 112, 811 A.2d 994, 1002
(2002).
Commonwealth v. Smith, 167 A.3d 782, 787-88 (Pa. Super. 2017).
As the PCRA court explained:
Present counsel alleges inconsistencies between E.S.’s statements
at the preliminary hearing, the forensic interviews and at trial
regarding the reason for a lack of prompt complaint. . . .
Counsel for Appellant at the preliminary hearing attempted to
elicit testimony regarding prompt report. However, counsel was
unable to obtain that testimony due to the magisterial district
justice’s ruling which sustained the Commonwealth’s objection
that counsel’s questions extended beyond the scope of direct
examination. Appellant’s assertion that preliminary hearing
counsel failed to confront E.S. at the preliminary hearing is not
supported by the evidence.
At the forensic interview, E.S. explained the delay in reporting as
a lack of courage on her part, which she eventually overcame as
she felt haunted by her non-disclosure. E.S. testified at trial that
she initially did not know what Appellant had done to her was
wrong, and disclosed eventually because she started to feel that
what was happening to her was not right. Trial counsel reasonably
concluded that these statements can be reconciled and
inconsistencies are de minimus. Nonetheless, trial counsel
requested an instruction on prompt complaint, which this court
gave.
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Instead, counsel at trial focused on other weaknesses in the
victim’s credibility. Counsel elicited testimony that E.S. made a
birthday card for Appellant two months before she disclosed
abuse. He further elicited testimony that E.S. voluntarily
continued to go to Appellant’s residence despite her purported
fear of Appellant. E.S. acknowledged under cross-examination
that numerous people were in Appellant’s home at the time the
incidents occurred, none of whom observed Appellant
inappropriately touch E.S. Since counsel’s actions constitute
reasonable strategic decisions, this court correctly determined
that trial counsel was not ineffective as to this claim.
Id. at 3-4 (references to notes of testimony and some capitalization omitted).
Viewing the evidence in the light most favorable to the Commonwealth,
we find the PCRA court’s findings of fact are supported by the record and
discern no error in its conclusions of law. Specifically, counsel was not
ineffective regarding testimony at the preliminary hearing because the scope
of his cross-examination was circumscribed by the magisterial judge’s ruling.
Mindful that E.S. was ten years old at the time of the interview and trial, we
agree that any inconsistencies between her forensic interview and her trial
testimony were de minimus. Moreover, trial counsel requested a prompt
complaint instruction, which the trial court delivered, and trial counsel pursued
a reasonable trial strategy of attacking E.S.’s credibility in other respects.
Appellant has failed to satisfy the test for ineffectiveness by failing to
demonstrate that the underlying claim is of arguable merit or that, but for
counsel’s actions, there is a reasonable probability that the outcome would
have been different. Appellant’s first issue fails.
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In his second issue, Appellant asserts trial and direct appeal counsel
were ineffective for failing to argue the impropriety of the Commonwealth’s
“guilt-assuming hypotheticals.” Appellant contends that questions forcing
character witnesses to assume that a defendant is guilty deprive the accused
of the presumption of innocence, violating the accused’s due process rights.
Appellant’s Brief at 14.
During his trial, Appellant testified on his own behalf, denying E.S.’s
allegations. On direct appeal, this Court observed:
Appellant also presented character witnesses. For example,
neighbor Ning Jiang testified as to Appellant’s reputation for
having a peaceful and law-abiding character. On cross-
examination, the following exchange took place:
[The Commonwealth]: Ma’am, you know [Appellant]; is
that correct?
[Ning Jiang]: Yes.
[The Commonwealth]: And do you think [Appellant] would
tell you if he was molesting a juvenile female?
[Attorney for Appellant]: I’m going to object to that
question.
[Trial Court]: It is appropriate character witness cross.
Overruled.
[The Commonwealth]: Do you think [Appellant] would talk
to you about molesting a little girl?
[Ning Jiang]: No, I don’t.
Thereafter, Mr. Nan Wu also testified on Appellant’s behalf.
During cross-examination of Mr. Wu, the Commonwealth asked a
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similar question soliciting Mr. Wu’s opinion without objection. (“Q:
Do you think [Appellant] would tell you if he [was] sexually
molesting a juvenile female?”).
Commonwealth v. Zheng, 2016 WL 4954188, at *1 (references to notes of
testimony omitted).
Addressing the propriety of the Commonwealth’s cross-examination on
direct appeal, this Court explained:
Appellant also asserts that the Commonwealth’s cross-
examination of his character witness, Ms. Ning Jiang, was
improper.4 Appellant elicited testimony from Ms. Jiang that
Appellant had a reputation in the community for being peaceful
and law-abiding. Thereafter in response, the Commonwealth
challenged this testimony, questioning Ms. Jiang, “[D]o you think
[Appellant] would tell you if he was molesting a juvenile female?”
According to Appellant, this question was improper because it
called for Ms. Jiang’s opinion of Appellant’s character. Moreover,
according to Appellant, with this single query the Commonwealth’s
cross-examination of Ms. Jiang unfairly prejudiced Appellant
because it worked to undermine his credibility.
We conclude that Appellant is entitled to no relief. We agree that
the Commonwealth’s question, as phrased, elicited the personal
opinion of Ms. Jiang and that such opinion testimony is
inadmissible from a character witness. See Pa.R.E. 405(a).
However, we are also mindful that the Commonwealth is
permitted to cross-examine a character witness “to test the
accuracy of [her] testimony and the standard by which [she]
measures reputation.” Commonwealth v. Morgan, 739 A.2d
1033, 1036 (Pa. 1999); see also Trial Court Opinion, 08/04/2015,
at 8 (noting that the Commonwealth’s question challenged
Appellant’s law-abiding character). Accordingly, despite the
awkward phrasing of the Commonwealth’s question, we discern
no abuse of the trial court’s discretion in overruling Appellant’s
objection.
As a result of the Commonwealth’s cross-examination, Appellant’s
evidence of good character was merely tempered by Ms. Jiang’s
concession that Appellant may not disclose criminal activity to her.
Appellant suggests that this concession so undermined the
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credibility of his denial of culpability that a new trial is warranted.
We disagree. Even were we to conclude that the trial court abused
its discretion, any resulting prejudice to Appellant was de minimis.
Simply put, we are not persuaded that the Commonwealth’s single
question diminished the effectiveness of Ms. Jiang’s character
testimony such that Appellant is entitled to a new trial.
4
Appellant did not specifically object to similar questioning of Mr. Nan
Wu. Accordingly, any claim pertaining to his testimony is waived. See,
e.g., Commonwealth v. Montalvo, 641 A.2d 1176, 1184-85 (Pa.
Super. 1994).
Id. at **2-3 (references to notes of testimony and citation to Appellant’s brief
on direct appeal omitted).
To be eligible for relief under the PCRA, “the petitioner must plead and
prove by a preponderance of the evidence . . . [t]hat the allegation of error
has not been previously litigated or waived.” 42 Pa.C.S.A. § 9543(a)(3).
“[A]n issue has been previously litigated if . . . the highest appellate court in
which the petitioner could have had review as a matter of right has ruled on
the merits of the issue[.]” 42 Pa.C.S.A. § 9544(a)(2).
The PCRA court concluded that this Court addressed Appellant’s issue
on direct appeal and determined it was without merit. Consequently, “counsel
was not ineffective for raising meritless claims.” PCRA Court Opinion,
12/20/18, at 5. We agree. We recognize that the issue on direct appeal called
into play the trial court’s evidentiary rulings. Nevertheless, our rejection of
Appellant’s challenge to the evidentiary rulings underscores Appellant’s failure
to demonstrate that, “but for counsel’s ineffectiveness, there is a reasonable
probability that the outcome of the challenged proceeding would have been
different.” Smith, 167 A.3d at 787 (citing Fulton, 830 A.2d at 572). Again,
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“[f]ailure to satisfy any prong of the [ineffectiveness] test will result in
rejection of the appellant’s ineffective assistance of counsel claim.” Id. at
787-88 (citing Jones, 811 A.2d at 1002). Moreover, as to his current due
process assertions, “[an] appellant cannot obtain post-conviction review of
claims previously litigated on appeal by alleging ineffective assistance of prior
counsel and presenting new theories of relief to support previously litigated
claims.” Commonwealth v. Santiago, 855 A.2d 682, 697 (Pa. 2004)
(quoting Commonwealth v. Beasley, 678 A.2d 773, 778 (Pa. 1996)).
The PCRA court’s findings of fact relating to Appellant’s second issue are
supported by the record and its legal conclusions are without error. Therefore,
Appellant is not entitled to relief on his second issue.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/27/2019
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