Com. v. Ghee, J. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JELANI Q. GHEE
Appellant No. 1064 MDA 2015
Appeal from the Order Entered May 19, 2015
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0000066-2013
BEFORE: BOWES, J., OTT, J., and FITZGERALD, J.*
MEMORANDUM BY OTT, J.: FILED FEBRUARY 19, 2016
Jelani Q. Ghee brings this appeal from the order entered May 19,
2015, in the Court of Common Pleas of Franklin County, that denied, after
an evidentiary hearing, his petition for relief filed pursuant to the
Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541–9546.
Ghee claims trial counsel was ineffective in failing to cross-examine the
victim regarding his pending criminal charge. See Ghee’s Brief at 5. Based
upon the following, we affirm.
The facts and procedural history of this matter are thoroughly
recounted in this Court’s decision addressing Ghee’s direct appeal, and the
PCRA court’s opinion, and therefore we do not restate the background of this
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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case. See Commonwealth v. Ghee, 106 A.3d 162 [326 MDA 2014] (Pa.
Super. August 15, 2014) (unpublished memorandum); PCRA Court Opinion,
5/19/2015, at 1–2. We simply note that on August 15, 2013, a jury
convicted Ghee and his co-defendant, Jemoni L. Ghee, of aggravated
assault,1 arising from a November 7, 2012 attack upon the victim, Clarence
Green.
Ghee raises the following issue in this appeal:
Whether the [PCRA] court erred in finding that [Ghee] was not
prejudiced by trial counsel’s failure to cross-examine the victim
regarding his pending criminal charge, thus denying [Ghee’s]
request and dismissing his PCRA action when:
a. Aside from [Ghee] and his co-defendant, the victim was
the only eye witness to the actual incident; and
b. Despite the Commonwealth presenting other witnesses
and evidence, the evidence that supported the elements
required for a conviction of aggravated assault, as
opposed to simple assault, stemmed from the victim’s
testimony.
Ghee’s Brief at 5–6.
The principles that guide our review are well settled:
This Court’s standard of review regarding an order denying a
petition under the PCRA is whether the determination of the
PCRA court is supported by the evidence of record and is free of
legal error. Commonwealth v. Halley, 582 Pa. 164, 870 A.2d
795, 799 n.2 (2005). The PCRA court’s findings will not be
disturbed unless there is no support for the findings in the
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1
18 Pa.C.S. § 2702(a)(1).
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certified record. Commonwealth v. Carr, 2001 Pa. Super. 54,
768 A.2d 1164, 1166 (Pa. Super. 2001).
****
In reviewing a claim of ineffective assistance of counsel, we
adhere to the following principles:
In order for Appellant to prevail on a claim of ineffective
assistance of counsel, he must show, by a preponderance
of the evidence, 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. Commonwealth v. Kimball, 555 Pa. 299,
724 A.2d 326, 333 (1999). Appellant must demonstrate:
(1) the underlying claim is of arguable merit; (2) that
counsel had no reasonable strategic basis for his or her
action or inaction; and (3) but for the errors and
omissions of counsel, there is a reasonable probability
that the outcome of the proceedings would have been
different. Id. The petitioner bears the burden of proving
all three prongs of the test. Commonwealth v.
Meadows, 567 Pa. 344, 787 A.2d 312, 319-20 (2001).
Commonwealth v. Johnson, 2005 Pa. Super. 59, 868 A.2d
1278, 1281 (Pa. Super. 2005), appeal denied, 583 Pa. 680,
877 A.2d 460 (Pa. 2005). Moreover, “[t]rial counsel is presumed
to have been effective[.]” Commonwealth v. Basemore, 560
Pa. 258, 744 A.2d 717, 728 n.10 (Pa. 2000).
Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa Super. 2007).
Ghee claims that his trial counsel, Todd Sponseller, Esquire, was
ineffective for failing to cross examine the victim regarding his pending
criminal charge in Franklin County.2 In this regard, Ghee relies on two
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2
Ghee’s Amended PCRA petition alleged, in relevant part:
(Footnote Continued Next Page)
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cases: Commonwealth v. Murphy, 591 A.2d 278 (Pa. 1991), and
Commonwealth v. Davis, 652 A.2d 885 (Pa. Super. 1995).3
At the PCRA hearing, Ghee testified he had informed Sponseller that
the victim had a pending criminal matter, and asked Sponseller to cross
examine the victim on his pending criminal charge to elicit possible bias for
hopes of leniency. N.T., 3/19/2015, at 5. He further testified that
Sponseller did not cross examine the victim as to any pending charges. Id.
_______________________
(Footnote Continued)
a. The prosecution’s witness, the alleged victim, Mr. Green,
had been charged with resisting arrest and his criminal
case was pending prior to the incident giving rise to the
above-captioned matter.
b. At the time of trial in the above-captioned matter, Mr.
Green was awaiting sentencing.
c. [Ghee’s] counsel was made aware of Mr. Green’s pending
criminal case well in advance of trial; in fact, [Ghee]
discussed with his trial counsel the fact that Mr. Green
had a case pending.
d. Trial counsel did not cross-examine Mr. Green regarding
his pending criminal case.
e. Trial counsel did not attempt to demonstrate any
potential bias of Mr. Green through cross-examination, or
otherwise.
Ghee’s Amended PCRA Petition, 1/9/2015, at ¶16.
3
We note that in Murphy and Davis the issue of ineffectiveness of counsel
was raised on direct appeal.
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at 6. The PCRA court took judicial notice of the victim’s trial court docket, 4
and the trial testimony of the victim. Id. at 6–7. According to Ghee,
Sponseller did not ask the victim about his pending criminal charge because
he did not want to be too hard on the victim in front of the jury. Id. at 8.
Ghee, however, did not call Sponseller as a witness at the PCRA hearing.
The PCRA court denied relief, concluding Ghee had failed to satisfy the
prejudice prong of the ineffectiveness test. Id. at 6. This appeal followed.5
Ghee argues the PCRA court erred in determining he was not
prejudiced by trial counsel’s failure to cross-examine the victim regarding
the victim’s pending charge. The Commonwealth, for its part, argues that
Ghee’s claim fails for two reasons: one, because Ghee did not offer trial
counsel’s testimony at the PCRA hearing to establish the second prong of the
ineffectiveness test, i.e., that trial counsel did not have a reasonable basis
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4
The Commonwealth, in its brief, states:
At the time of [Ghee’s] trial the victim was awaiting sentencing
having entered a guilty plea on February 18, 2013, to M2
Resisting Arrest with a plead to sentence of six months of
intermediate punishment with the first 30 days on electronic
monitoring; sentencing to be deferred until after April 30, 2013.
Commonwealth’s Brief at 3–4.
5
Ghee timely complied with the order of the PCRA court to file a statement
of errors complained of on appeal, pursuant to Pennsylvania Rule of
Appellate Procedure 1925(b).
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for his actions; and two, because Ghee failed to prove the third prong of the
ineffectiveness test, i.e., prejudice.
The PCRA court, in denying Ghee’s request for PCRA relief, opined:
In his Amended PCRA Petition, [Ghee] alleges that
Attorney Sponseller was ineffective for failing to cross-examine
Clarence Green regarding his pending criminal charges in
Franklin County. Amended PCRA [Petition] ¶ 12. [Ghee] testified
that he had informed Attorney Sponseller that the victim had
pending criminal charges. According to [Ghee], Attorney
Sponseller did not ask the victim about his pending criminal
charges because he did not want to be too hard on the victim in
front of the jury.5
In support of his argument that Attorney Sponseller was
ineffective for failing to cross-examine the victim, [Ghee] cites to
Commonwealth v. Murphy, 591 A.2d 278 (Pa. Super. 1991)
and Commonwealth v. Davis, 652 A.2d 885 (Pa. Super.
1995). In both those cases, the Superior Court made it clear that
the contention that counsel was ineffective for failing to question
a witness regarding possible bias as the result of pending
criminal charges has merit and that there is no reasonable basis
or strategy for counsel’s failure.6 The Superior Court also
concluded that in both those cases, the defendants were
prejudiced by counsel’s failure to cross-examine a witness
regarding his pending criminal charges or juvenile probationary
status.
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5
The record is clear that neither Attorney Sponseller, nor
Jemoni’s attorney questioned the victim regarding his
pending criminal charges. Instead both attorneys spent
the majority of their cross-examination impeaching the
victim with prior inconsistent statements.
6
The Commonwealth asserts that [Ghee’s] claim for relief
on the basis of ineffective assistance of counsel should be
denied as Attorney Sponseller was not called as a witness
at the evidentiary hearing. Brief in Opposition pp. 2-3.
However, in light of Murphy and Davis, Attorney
Sponseller’s testimony regarding his trial strategy was
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not necessary for [Ghee] to satisfy the second prong of
[the ineffectiveness test].
_____________________________________
However, Murphy and Davis are distinguishable from
[Ghee’s] case. In Murphy, the defendant was charged in
connection with the shooting death of Steven Brown, when two
children who were interviewed a short time after the shooting
and gave vague descriptions of the gunman, were re-
interviewed four years later and identified the defendant as the
shooter. At the time the two children testified at trial one of
them was on juvenile probation and the other had just
completed juvenile probation. 591 A.2d at 278. The child on
juvenile probation was the only eyewitness to the crime and her
testimony was crucial to the case. Id. at 280. Defense counsel
never cross-examined her regarding her juvenile probationary
status in an attempt to show bias, whether based on a formal
agreement or her subjective belief that she would receive
favorable treatment. Id. The jury ultimately found the defendant
guilty of first degree murder and he was sentenced to death. Id.
at 278.
In Davis, the jury convicted the defendant of attempted
rape after hearing both his and the victim’s version of events on
the day in question. 652 A.2d 885. There were no other
witnesses who corroborated the victim’s testimony. Id. On
appeal the Superior Court held that counsel’s error in not cross
examining the victim regarding her pending criminal history in
order to suggest that the victim was biased was not harmless
error. Id.
In [Ghee’s] case, in addition to the victim’s testimony, the
jury heard testimony from at least ten other witnesses and
viewed nearly eighty exhibits. The jury saw surveillance footage
from Hollywood Casino, placing [Ghee], Jemoni, and the victim
together on the night of the assault. Comm. Ex. 68. There was
testimony regarding the evidence found at the crime scene. N.T.
8/12/13 p. 33; N.T. 8/14/13 p. 129. The jury viewed
photographs of the area where the victim was found by a
passing motorist which depicted blood and clothing strewn
about. Comm. Exs. 62-67, 69-72. The jury heard expert
testimony from the trauma physician who treated the victim at
York Hospital that the victim suffered from abrasions,
lacerations, a fractured nasal bone, a fractured hyoid bone,
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fractured ribs, and a severe liver injury. N.T. 8/13/13 p. 90.
According to the trauma physician, the liver injury was caused
by blunt force trauma (exact mechanism unknown) and the
hyoid bone fracture was the result of being strangled or struck.
N.T. 8/13/13 pp. 94-95. The jury viewed photos of the victim's
injuries. Comm. Exs. 1-5, 54-57. Additionally, trash bags
containing [Ghee] and Jemoni’s clothing worn on the day of the
assault were found in the dumpster near their townhome. N.T.
8/13/13 pp. 125, 162; N.T. 8/15/13 pp. 38-39. There was
expert testimony that the victim’s blood was identified on
[Ghee’s] sweatshirt. N.T. 8/14/13 p. 123. Further, the police
officer that executed the search warrant on [Ghee’s] person
testified that [Ghee] had injuries consistent with being involved
in an assault. N.T. 8/14/13 pp. 53-56. Most striking, [Ghee] took
the stand and acknowledging that he had fought with the victim
on the night of November 7, 2012 (albeit he asserts that the
victim was the initial aggressor). N.T. 8/15/13 pp. 32-36.
The Court finds that [Ghee] was not prejudiced by
Attorney Sponseller’s failure to cross-examine the victim
regarding his pending criminal charge as evidence from
numerous sources, including [Ghee’s] own testimony,
corroborated the victim’s testimony. See Commonwealth v.
Gentile, 640 A.2d 1309, 1314 (Pa. Super. 1994). Considering
the overwhelming evidence against [Ghee] and Jemoni,
independent of the victim’s testimony at trial, [Ghee] has not
demonstrated that, but for Attorney Sponseller’s failure, the
result of the proceedings would have been different. Therefore,
[Ghee] is not entitled to relief on the basis that Attorney
Sponseller was ineffective.
PCRA Court Opinion, 5/19/2015, at 4–6.
Based on our review, we conclude the PCRA court properly determined
that Ghee failed to satisfy the third prong (prejudice) of the ineffectiveness
test. In this respect, we adopt the opinion of the PCRA court.
We note, moreover, that we are persuaded by the Commonwealth’s
position that because Ghee did not present trial counsel at the hearing, he
failed to establish the second prong of the ineffectiveness test. As such, our
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reasoning departs from the rationale of the PCRA court, which found that “in
light of Murphy and Davis, Attorney Sponseller’s testimony regarding his
trial strategy was not necessary for [Ghee] to satisfy the second prong of
[the ineffectiveness test].” PCRA Court Opinion, 5/19/2015, at 4 n.6.
In Murphy, trial counsel discussed the scope of allowable cross
examination with the court at a recorded in-chambers conference, during
which he revealed his own ignorance regarding his ability to impeach the
witnesses. On appeal to the Pennsylvania Supreme Court, the Court
reasoned:
Defense counsel erroneously sought to impeach the testimony of
the juvenile witnesses on impermissible grounds [crimen falsi]
while at the same time, due to ignorance, failed to impeach their
credibility on legitimate grounds – to show bias of the witnesses
based upon his or her juvenile probationary status. …
We can perceive of no reasonable basis for counsel’s failure to
cross-examine [the female witness] on the basis of her then
existing probationary status.
Murphy, 591 A.2d at 280. Therefore, it was clear from the trial record in
that counsel’s failure to cross examine the witnesses was due to his
misconception of the law and, as such, there could be no reasonable basis
for his actions.
In Davis, where the appellant asserted trial counsel was ineffective in
failing to impeach the credibility of the victim with evidence of her pending
criminal charges, this Court opined:
Although the existing record does not enlighten us as to trial
counsel’s reasons for his conduct, it is highly improbable that
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trial counsel would intentionally forgo an attempt to demonstrate
the victim’s possible bias as a matter of trial strategy, since the
proposed impeachment could only have helped rather than hurt
appellant’s defense.
Davis, 652 A.2d at 889. This Court stated, “The second prong of the
ineffectiveness test has thus been met,” but went on to state:
As we are remanding this case for further proceedings, trial
counsel nonetheless should be given the opportunity to explain
why he chose not to cross-examine the witness with regard to
her pending criminal charges.
Id. at 889 and n.4. Additionally, this Court clarified that on remand the
evidentiary hearing should address, inter alia, “whether trial counsel had any
reasonable basis for failing to cross-examine the victim with respect to her
convictions.” Id. at 890 n.5.
Here, in contrast to Murphy, the trial record does not disclose trial
counsel’s reasoning regarding cross examination of the victim. Furthermore,
the Davis Court recognized the need for an evidentiary hearing to determine
the basis for trial counsel’s actions. Therefore, contrary to the PCRA court’s
analysis, we do not regard Murphy or Davis to stand for the proposition
that trial counsel’s failure to cross examine a witness regarding pending
charges to show bias, as in this case, is per se proof of the second prong of
the ineffectiveness test.
Our conclusion is reinforced by the recent decision in Commonwealth
v. Reyes-Rodriguez, 111 A.3d 775 (Pa. Super. 2015), appeal denied, 123
A.3d 331 (Pa. 2015), wherein this Court instructed:
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[A] lawyer should not be held ineffective without first having an
opportunity to address the accusation in some fashion. In fact,
our Supreme Court has cautioned against finding no reasonable
basis for trial counsel’s actions in the absence of supporting
evidence. The fact that an appellate court, reviewing a cold trial
record, cannot prognosticate a reasonable basis for a particular
failure to raise a plausible objection does not necessarily prove
that an objectively reasonable basis was lacking.
Id. at 783 (quotations, citations and footnote omitted). Accordingly, we find
that because Ghee did not call trial counsel as a witness at the PCRA
hearing, he failed to establish that trial counsel lacked a reasonable basis for
his actions.
Based on the foregoing, we conclude that Ghee failed to satisfy both
the second and third prongs of the ineffectiveness test. Accordingly, we
affirm the PCRA court’s denial of relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/19/2016
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