Com. v. Glendenning, L. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
LEONARD L. GLENDENNING :
:
Appellant : No. 69 WDA 2019
Appeal from the PCRA Order Entered December 19, 2018
In the Court of Common Pleas of Greene County Criminal Division at
No(s): CP-30-CR-0000312-2016
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and PELLEGRINI*, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED OCTOBER 29, 2019
Leonard L. Glendenning appeals from the denial of his request for relief
under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.
Glendenning’s PCRA petition asserted several claims that his trial counsel was
ineffective. The PCRA court rejected those claims. We affirm.
A jury convicted Glendenning in March 2017 of numerous sex-related
crimes against a minor victim: aggravated indecent assault – person less than
16 years of age; endangering the welfare of children; corruption of minors;
and indecent assault – person less than 16 years of age.1 The trial court
sentenced Glendenning to two and one half to five years’ incarceration, with
credit for time served. Glendenning did not file a direct appeal.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3125(a)(8), 4304(a)(1), 6301(a)(1)(ii), and 3126(a)(8),
respectively.
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Rather, in September 2018, Glendenning filed the instant counseled and
timely PCRA petition alleging trial counsel’s ineffectiveness. The PCRA court
held an evidentiary hearing at which Glendenning and his trial counsel, Harry
J. Cancelmi, Esquire, testified.
Glendenning testified about his medical issues at the time of trial,
including that he weighed at various times between 375 pounds and 651
pounds; he had 12 doctors; had had one surgery for a tumor in 2012 and
another surgery in 2013; was hospitalized for hemorrhaging in 2015; had
erectile dysfunction; and transitioned from using a wheelchair to a cane. See
N.T., Evidentiary Hearing, 12/10/18, at 6-7, 11, 12-13. He stated that the
tumor was 30 pounds and that at the time of the assault on the victim, it was
“impossible” for him to have sex. Id. at 25. Glendenning also testified that at
the time of the crime, he was taking multiple medications: “nerve block in the
spinal cord, cortisone, steroids, Neurontin or Gabapentin, nerve relaxers,
inhibitors, heart pills” and 200 units of insulin a day. Id. at 22. He claimed
that because of all of his medical issues and weight, he was not physically
capable of sexually assaulting the victim. Id.
Glendenning testified that he provided counsel with copies of his medical
records, a list of 26 witnesses, and the names of his 12 doctors. Id. at 7-9.
He said that he spoke about these witnesses with counsel “at least on one
occasion.” Id. at 10. He said Attorney Cancelmi nonetheless called none of his
doctors to testify at trial, including the doctor who removed the tumor, or
introduced any of his medical records into evidence. Id. at 21. Glendenning
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also expressed his belief that the witnesses he identified for counsel could
have testified that the victim had recanted:
Q: Take a look at the list and have –
A: [C.] would have been one, the four [R.] kids would have been
major, primary, one of the girls, hold on, I’ll think of her name,
she changed her name, but it’s [R.D.], she come and stayed with
us, and you know, nothing has of happened.
***
Q: Why was their testimony major, you used that term, why was
their testimony major?
A: [The victim] had went to their home and, you know, jealousy
[sic] of me letting them [to] come to my home and not letting her
come, she went down there and told them that we was in a
relationship and it was all consensual, and she told [B.R.] about it
and then turned around and I’m like, no, somebody is starting
rumors and stuff, I don’t want you here, I don’t want [sic] in this
position, and she went back and told them that she had lied on
me.
Q: So one or four of the [R.] children, however many there are,
would have been able to testify that the victim had recanted?
A: Correct.
Q: Is that correct? Were any of the [R.] kids –
A: None of them were called.
Q: None of them were called. You had also indicated in here that
there was a witness who was present at your home when the
alleged travesty had been committed; who was that? Right here,
that’s what you indicate?
A: That’s [sic] the [R. children] were there.
Id. at 23-25.
Glendenning agreed, however, that Attorney Cancelmi had had an
investigator interview the R. children:
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Q[PCRA Counsel]: Wait, one more thing, since we were talking
about the [R. children], do you know whether or not anybody
questioned the [R.] kids?
A: Their brother, [J.] was at my house when I called home one
day.
Q: My question was –
A: They were questioned by an investigator.
Q: Who was that investigator working for?
A: Harry.
Id. at 28. Although it appears that Glendenning was viewing the actual list of
names he gave to counsel, the list was not admitted into evidence at the PCRA
hearing and is not in the certified record. See id. at 23 (counsel telling
Glendenning to “look at the list”).
Glendenning also testified that counsel visited him “approximately” four
times in prison in preparation for trial:
He come [sic] approximately I would say four times. The first two
times we got interrupted and he left, and then he come [sic] –
let’s see, the trial was on Tuesday, I think, he come [sic] Sunday
and said just tell me about your life growing up with my
grandparents and stuff.
And then when he come Monday, the day before trial, he said
that’s what we want to hear. He said, I will lead you into
information, other than saying, hey I grew up here with my
grandparents, we helped everybody, that type of stuff, he didn’t
give me any other direction, and then I didn’t even finish telling a
few statements of what transpired the one day she is claiming
because there were other people there that I was cut off and he
never went back to that.
Id. at 14.
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Regarding offers that counsel conveyed to him, Glendenning testified
that he told counsel “I don’t know what these offers mean,” and that later
during jury selection counsel informed him of the Commonwealth’s most
recent offer. Id. at 16-17, 18-19. He also testified that counsel did not prepare
him to testify at trial. Id. at 20.
For his part, trial counsel testified that he met with Glendenning in
prison and discussed the case with him. Id. at 37. He also testified that “we
went through a list of numerous – a number of people that might possibly
have some information that would be relevant or that might be helpful, yet.”
Id. at 38. He agreed that Glendenning “provided a little booklet of information
and some – a list of medical providers and some medical records or at least
discharge type papers.” Id. at 37. Counsel also testified that he agreed that
at trial “Mr. Glendenning did testify at length about his own medical history
and medications and what was going on with him[.]” Id. at 40.
Regarding any evidence of Glendenning’s impotence, counsel testified
that “I never had one person who treated him that said at the time, . . . , that
he was impotent or uninterested sexually because of his conditions. There was
no one I could call to do that.” Id. at 39. Counsel testified that Glendenning
did not tell him that he was impotent but rather “said it would be physically
impossible because of size, but not because of impotence. His weight was the
issue, not his sexual ability or desire.” Id. at 43. However, counsel also
admitted that he did not speak with any of the doctors. Id. at 44.
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Additionally, counsel testified that any plea offers from the
Commonwealth were conveyed by counsel’s secretary “who I believe spoke to
Mr. Glendenning [at] various times[.]” Id. at 39.
Counsel then explained that he only called Glendenning’s ex-wife as a
defense witness because the other witnesses Glendenning had identified could
only offer inadmissible character testimony:
Q[PCRA Counsel]: . . . [W]hy is it out of these 26 witnesses
available you only had Sharon Glendenning testify?
A[Trial Counsel]: It’s one thing to say that those things don’t –
never happened to my family or my children or my situation, it’s
another to say they were a witness to what might be alleged in
this.
Q: That was largely character testimony?
A: It was largely character testimony, not character in the
community testimony, it was specific to their experience with him.
I think one of the witnesses left, I’m not sure if it was an
emergency or something because they couldn’t say [sic] for the
remained of the proceeding, but even after the victim testified,
I’m not sure – or the alleged victim at the time, I’m not sure if we
would have called any of them to tell you the truth. I’m not sure
I would have wanted to call any of them, I should say it that way.
Id. at 44-45 (emphasis added).
Regarding the testimony of the children, counsel testified that he sent
an investigator to speak with them. Id. at 42. Counsel did not remember the
investigator informing him that any of the witnesses discussed the victim’s
alleged recantation. Rather, the investigator reported that the witnesses had
said that the victim was biased against Glendenning because he had thrown
her out of his house. Id. at 42-43.
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Following the hearing, the PCRA court denied this petition and this timely
appeal followed.
Glendenning raises the following issues:
I. Did [Glendenning’s] prior counsel render ineffective
assistance of counsel in the pre-trial and trial stages of this
case in the following manner?
a. Counsel failed to prepare for trial by not
visiting [Glendenning] in the Greene County
Jail to discuss the case, review substantive
and substantial evidence, including
significant levels of medication taken by the
defendant daily, failed to review discovery
with [Glendenning], inform [Glendenning] of
offers from the District Attorney and failed to
prepare him to testify in his own defense.
b. Counsel failed to utilize certain medical
evidence he had been provided that would
have proven [Glendenning’s] long-term
impotence to counter prosecution evidence,
raising the question as to his physical ability
to commit these crimes and create
reasonable doubt that [Glendenning] could
have committed the acts he was accused of
based upon [Glendenning’s] enormous
weight, high levels of medication and ability
to function.
c. Counsel failed to utilize the witnesses
provided by [Glendenning] who could have
impeached the alleged victim’s testimony,
including one who was present at
[Glendenning’s] home when the alleged
crime was supposed to have been
committed, how dependent he was on the
extensive care he received from family
members, failed to interview family members
with extensive knowledge of the victim, and
others that heard the victim recant her
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statement that the alleged criminal action
took place.
d. Counsel failed to ask for photographic
evidence and any medical evidence related
to time lines to help exonerate
[Glendenning].
e. Counsel failed to subpoena defense
witnesses, so when some of them left during
the trial and/or failed to return, they had not
been legally compelled to be at the trial and
were unavailable to assist in the defense.
Glendenning’s Br. at 3-4.
When reviewing the denial of PCRA relief, “we examine whether the
PCRA court’s determinations are supported by the record and are free of legal
error.” Commonwealth v. Roney, 79 A.3d 595, 603 (Pa. 2013). We are
bound by the credibility determinations of the PCRA court and apply a de novo
standard to its legal conclusions. Id.
When raising a claim of ineffective assistance of counsel, the petitioner
must overcome the presumption that counsel is effective. See
Commonwealth v. Lesko, 15 A.3d 345, 374 (Pa. 2011) (stating counsel is
presumed effective). A petitioner overcomes this presumption by pleading and
proving that: (1) the underlying claim has arguable merit; (2) counsel had no
reasonable basis for his or her action or inaction; and (3) the petitioner
suffered prejudice as a result of counsel’s action or inaction. Id. at 373.
Prejudice exists where “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceedings would have been
different.” Commonwealth v. Burno, 94 A.3d 956, 972 (Pa. 2014) (quoting
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Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012)). The failure to
establish just one prong requires rejection of the entire ineffectiveness claim.
Id.
First, Glendenning argues that trial counsel was ineffective because of
counsel’s “utter failure to meet with [Glendenning] and discuss the merits of
the case, witnesses to call at trial and available defenses.” Glendenning’s Br.
at 11. He also alleges that counsel failed to inform him of plea offers from the
Commonwealth. Id. at 3. The record belies this claim.
Glendenning admitted in his testimony that counsel visited him at least
four times, and counsel likewise testified that he visited Glendenning in prison
and reviewed the case with him. Additionally, Glendenning testified that he
spoke with counsel about the offers from the Commonwealth during jury
selection and at another time when he explained to counsel that he did not
understand what the offers meant. Counsel also stated that he conveyed
offers to Glendenning through his secretary. The PCRA court credited all of
this testimony. This claim fails. Burno, 94 A.3d at 972.
Next, Glendenning claims that counsel failed to “utilize certain medical
evidence” that Glendenning provided to him regarding his impotence and
health. Glendenning’s Br. at 3. He maintains “that no doctors were called, and
no medical records or evidence of his prescription drug use were used.” Id. at
14. He maintains that in sex cases involving children, “in order to bolster the
defendant, you require other witnesses like medical personnel who can testify
as to improbability and impossibility, and to family who can explain the full
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details of taking care of a 400 pound plus man.” Id. at 10. We find no merit
to this claim.
Counsel admitted that Glendenning gave him a list of his prescriptions
and “a list of medical providers and some medical records or at least discharge
type papers and those sorts of things.” N.T., at 37-38. Additionally, the PCRA
court found Glendenning’s testimony credible that “Mr. Glendenning provided
. . . a list of medical records and treating physicians of [Glendenning].” See
Order, filed 12/11/18, at 1. However, the PCRA court concluded that “based
on the testimony of [trial counsel], . . . [trial counsel] was not advised of
[Glendenning’s] impotence and therefore counsel was not ineffective for
failure to present evidence of impotence.” 1925(a) Op. at 5. The court also
stated that it “recalled” that counsel presented “evidence of [Glendenning’s]
physical size and other physical abnormalities, which made sexual intercourse
impossible.” Id. at 5-6.
We are bound by the court’s credibility determinations, so long as they
have support in the record. See Commonwealth v. Johnson, 966 A.2d 523,
539 (Pa. 2009). The court’s finding that Glendenning told counsel that it was
his weight, and not impotence, that prevented him from having sexual
intercourse is supported by counsel’s testimony at the PCRA hearing to that
effect. We therefore find no error in the court’s determination that counsel
was not advised of Glendenning’s alleged impotence.
However, we cannot do the same in regards to Glendenning’s claim that
counsel failed to introduce medical evidence at trial because the trial
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transcripts are not in the certified record. The PCRA court recalled that counsel
presented “evidence of [Glendenning’s] physical size and other physical
abnormalities, which made sexual intercourse impossible.” 1925(a) Op. at 5-
6. However, Glendenning disputes that recollection and maintains that counsel
did not introduce medical evidence of sexual intercourse being impossible. The
Commonwealth sides with the trial court and contends that counsel did, in
fact, introduce such evidence. See Commonwealth’s Br. at 11.
It is “the appellant's duty to ensure that the certified record is complete
for purposes of review.” Commonwealth v. Lopez, 57 A.3d 74, 82
(Pa.Super. 2012) (quoting Commonwealth v. Reed, 971 A.2d 1216, 1219
(Pa. 2009)). If the appellant has failed in that duty, and we are unable as a
result to decide a particular issue on appeal, the appellant has waived the
issue. See Commonwealth v. O’Black, 897 A.2d 1234, 1238 (Pa.Super.
2006).
There are photographs in the certified record of Glendenning and
portions of his body. However, because we do not have the notes of testimony
from the trial, we cannot ascertain for ourselves the purpose for which such
evidence was admitted. Furthermore, nothing in the record suggests that
Glendenning ever asked that the trial transcript be placed in the certified
record. Therefore, since the record is inadequate for us to resolve the dispute
over what exactly happened at trial, Glendenning has waived this issue.
Glendenning next claims that counsel “failed to utilize the witnesses
provided by [Glendenning].” Glendenning’s Br. at 3. He maintains that these
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witnesses would have impeached the victim’s testimony, testified about the
victim’s alleged recantation, and discussed his dependence on family members
to care for him because of his weight. See id. at 3-4.
In order to sustain a claim of ineffectiveness of counsel for failing to call
witnesses at trial, a petitioner must prove “the witnesses existed, the
witnesses were ready and willing to testify, and the absence of the witnesses’
testimony prejudiced petitioner and denied him a fair trial.” Commonwealth
v. Johnson, 27 A.3d 244, 247 (Pa.Super. 2011) (quoting Commonwealth
v. Cox, 983 A.2d 666, 693 (Pa. 2009)).
Here, Glendenning failed to show that the witnesses were ready and
willing to testify, or that he sustained any prejudice from the omission of their
testimony. Not one of the 26 witnesses testified or appeared at the evidentiary
hearing and Glendenning did not present evidence that any of these witnesses
were ready and willing to testify. Moreover, Glendenning failed to prove any
prejudice. While Glendenning argues that the children would have testified
that the victim recanted her testimony, counsel testified that this was not the
case, and the court credited counsel’s testimony.
As for the character witnesses, counsel testified that they could have
offered only testimony specific to their experiences with Glendenning, and the
court again credited that testimony. See 1925(a) Op. at 4; see also N.T. at
45 (counsel testifying the testimony “was specific to their experience with
[Glendenning]”). Such testimony, however, would not have been admissible.
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Pennsylvania Rules of Evidence 404 and 405 govern when character
testimony may be introduced at trial. Commonwealth v. Medina, 209 A.3d
992, 997 (Pa.Super. 2019). Testimony of a defendant’s character is limited in
the following way:
Evidence of good character offered by a defendant in a criminal
prosecution must be limited to his general reputation for the
particular trait or traits of character involved in the commission of
the crime charged. Such evidence must relate to a period at or
about the time the offense was committed and must be
established by testimony of witnesses as to the community
opinion of the individual in question, not through specific acts
or mere rumor.
Id. (emphasis added) (quoting Commonwealth v. Radecki, 180 A.3d 441,
453-54 (Pa.Super. 2018)). Here, the alleged character testimony would have
been improper because “it was specific to [the witnesses] experience with
[Glendenning].” N.T., at 45. The PCRA court did not abuse its discretion in
denying this claim.
Next, Glendenning claims that “counsel failed to ask for photographic
evidence and any medical evidence related to time lines to help exonerate
[Glendenning].” Glendenning’s Br. at 4. Glendenning states that his medical
evidence would have been useful to his case and that counsel admitted that
he did not speak with any of Glendenning’s doctors. Id. at 15. Glendenning
provides no further analysis regarding this issue. It is therefore waived for
lack of development. See Commonwealth v. Charleston, 94 A.3d 1012,
1022-23 (Pa.Super. 2014) (finding waiver where appellant failed to develop
argument).
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In any event, this issue is meritless. While counsel admitted that he did
not speak with any of Glendenning’s doctors, he also testified that
Glendenning could not name any doctor who could testify that Glendenning
was physically incapable of committing the crimes of which he was accused.
Id. at 44. Additionally, at the evidentiary hearing, no evidence was presented
from any of Glendenning’s doctors that his medical issues prevented him from
doing so. The PCRA court did not err in denying this claim of ineffectiveness.
Last, Glendenning argues that “[c]ounsel failed to subpoena defense
witnesses.” Glendenning’s Br. at 4. Glendenning fails to develop or mention
this claim in the argument section of his brief. Therefore, the claim is waived.
See Charleston, 94 A.3d at 1022-23 (finding waiver where appellant failed
to develop argument).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/29/2019
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