Com. v. Leigh, W. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
:
v. :
:
:
WILLIAM DONALD LEIGH :
:
Appellant : No. 1113 WDA 2018
Appeal from the PCRA Order Entered July 11, 2018
In the Court of Common Pleas of Blair County Criminal Division at No(s):
CP-07-CR-0000463-2014
BEFORE: DUBOW, J., McLAUGHLIN, J., and COLINS*, J.
MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 04, 2019
Appellant, William Donald Leigh, appeals from the Order entered July
11, 2018, denying his Petition for collateral relief filed under the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. After careful review,
we affirm.
We glean the following factual and procedural history from this Court’s
February 3, 2016 unpublished memorandum and the certified record. This
case arises from the sexual abuse perpetrated by Appellant on minor victim
(“the Victim”). Appellant was the boyfriend of the Victim’s mother
(“Mother”). The Victim lived with Appellant, Mother, and Appellant’s then-
teenage daughter. According to the Victim, when she was between the ages
of five and eight years old, Appellant repeatedly attempted to engage and
actually engaged in sexual acts with her. On May 11, 2013, the Victim told her
friend that Appellant “had sex” with her. The Victim’s friend reported this
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* Retired Senior Judge assigned to the Superior Court.
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conversation to her mother, who then reported it to both Mother and the
Victim’s grandmother, Connie. Connie reported it to police, and police arrested
Appellant.
At Appellant’s trial on August 6 and 7, 2014, the Commonwealth
presented testimony from the Victim; Mary Twomey, a nurse practitioner
specializing in the care of sexually-abused children; and Shannon Cossaboom,
an expert in conducting forensic interviews with children where sexual abuse
is suspected. Cossaboom interviewed the Victim on May 30, 2013, in which
the Victim provided details about the sexual acts that occurred between
Appellant and the Victim. The Commonwealth played the recorded interview,
and the court admitted it into evidence. Appellant presented a defense
premised on, inter alia, a theory that the Victim was not a credible witness.
He presented testimony from, inter alia, himself, Mother, Connie, and one of
the Victim’s babysitters, Crystal.
The jury convicted Appellant of two counts each of Involuntary Deviate
Sexual Intercourse with a Child (“IDSI”) and Attempted Rape of a Child, and
one count each of Rape of a Child and Aggravated Indecent Assault of a Child.1
Id. On November 21, 2014, the court sentenced Appellant to an aggregate
term of 25½ to 51 years of imprisonment.
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1 18 Pa.C.S. §§ 3123(b), 901(a), 3121(c), 3125(b), respectively.
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Appellant filed a Post-Sentence Motion, which the court denied. This
Court affirmed the Judgment of Sentence. Commonwealth v. Leigh, No. 351
WDA 2015, unpublished memorandum at 19 (Pa. Super. filed Feb. 3, 2016).
On December 19, 2016, Appellant timely filed a pro se PCRA Petition,
alleging that his trial counsel had been ineffective for, inter alia, failing to call
Appellant’s daughter as a witness. PCRA Petition, filed 12/19/16, at 4. He
annexed affidavits from, inter alia, his daughter to his Petition. Id. at Exh. 3.
The court appointed counsel, and on October 6, 2017, the PCRA court
held an evidentiary hearing, at which Appellant, his daughter, and his trial
counsel, Mark Zearfaus, Esq., testified. Thereafter, the court denied
Appellant’s Petition. PCRA Opinion and Order, filed 7/11/18.
Appellant timely appealed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant raises a single issue on appeal: “[d]id the trial court err in
denying Appellant’s claims of ineffective assistance of counse[l]?” Statement
of Question Involved, Appellant’s Br. at 5.
We review the denial of a PCRA Petition to determine whether the record
supports the PCRA court’s findings and whether its order is otherwise free of
legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This
Courts grants great deference to the findings of the PCRA court if they are
supported by the record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.
Super. 2007). We give no such deference, however to the court’s legal
conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super.
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2012). “The scope of 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.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa.
2014) (citation omitted). Moreover, “where a PCRA court’s credibility
determinations are supported by the record, they are binding on the reviewing
court.” Commonwealth v. White, 734 A.2d 374, 381 (Pa. 1999).
Appellant contends that trial counsel was ineffective. We presume
counsel is effective. Commonwealth v. Cox, 983 A.2d 666, 678 (Pa. 2009).
To overcome this presumption, a petitioner must establish that: (1) the
underlying claim has arguable merit; (2) counsel lacked a reasonable basis for
his act or omission; and (3) petitioner suffered actual prejudice.
Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015). In order to
establish prejudice, a petitioner must demonstrate “that there is a reasonable
probability that, but for counsel’s error or omission, the result of the
proceeding would have been different.” Commonwealth v. Koehler, 36 A.3d
121, 132 (Pa. 2012) (citation omitted). A claim will be denied if the petitioner
fails to meet any one of these prongs. Commonwealth v. Daniels, 963 A.2d
409, 419 (Pa. 2009).
In his brief, Appellant contends that trial counsel was ineffective for
failing to call his daughter as a witness.2 Appellant’s Br. at 7. Appellant asserts
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2 Appellant raised four additional claims of ineffective assistance of counsel in
his PCRA Petition and Rule 1925(b) Statement but he has not raised or
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that her testimony would have discredited the Victim, specifically statements
the Victim made in the forensic interview with Cossaboom. Id. at 7-8. He
asserts that his daughter was willing and able to testify at trial, but counsel
was overconfident of an acquittal and did not believe it was necessary to call
Appellant’s daughter as a witness. Id. at 10-12.
In order to establish ineffectiveness of trial counsel for the failure to call
a witness, a petitioner must establish:
(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. Washington, 927 A.2d 586, 599 (Pa. 2007).
At the PCRA hearing, Attorney Zearfaus testified that, although he
believed that Appellant’s daughter would have been a strong witness for the
defense, and had encouraged her to testify, she had informed him before trial
that she did not want to testify. N.T., PCRA Hearing, 10/6/17, at 55-56.
Attorney Zearfaus could not recall the reason Appellant’s daughter did not
want to testify, but stated that he ultimately did not call Appellant’s daughter
as a witness because of the risks related to calling an unwilling witness, such
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addressed them in his Brief. The four claims are, thus, waived.
See Commonwealth v. Heggins, 809 A.2d 908, 912 n.2 (Pa. Super. 2002)
(“an issue identified on appeal but not developed in the appellant's brief is
abandoned and, therefore, waived.”); Pa.R.A.P. 2116(a).
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as the possibility of unexpected testimony harmful to the defense. Id. at 56-
57.
In contrast, Appellant and his daughter testified that she was willing to
testify on his behalf. Id. at 12, 33, 37, 39. Appellant’s daughter denied telling
Attorney Zearfaus that she did not want to testify, and recalled Attorney
Zearfaus telling her there was a possibility she would not be needed as a
witness. Id. at 40.
The PCRA court found Attorney Zearfaus’s testimony more credible than
that provided by Appellant and Appellant’s daughter and, thus, concluded that
Appellant’s daughter was neither available, nor prepared, to cooperate and
testify for Appellant at trial. PCRA Opinion and Order at 23.
The record supports the PCRA court’s credibility finding, and thus, we
defer to the court’s credibility determination. White, 734 A.2d at 381.
Because Appellant’s daughter was not willing to testify for the defense, and
trial counsel had a reasonable basis for not insisting that she testify, we
conclude the trial court did not err in finding that trial counsel provided
effective assistance of counsel
Accordingly, we affirm.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/04/2019
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