Com. v. Taylor, C. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
COREY TAYLOR :
:
Appellant : No. 603 EDA 2021
Appeal from the PCRA Order Entered March 22, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008064-2014
BEFORE: STABILE, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY KING, J.: FILED DECEMBER 8, 2021
Appellant, Corey Taylor, appeals from the order entered in the
Philadelphia County Court of Common Pleas, which dismissed his first
petition filed under the Post Conviction Relief Act (“PCRA”).1 We affirm.
The relevant facts and procedural history of this case are as follows.
During the summer of 2012, Appellant was in a relationship with the mother
of B.A. [“Victim”]. Victim, who was 11 years old at the time, attended a
cookout at Appellant’s father’s house. After the cookout, Appellant drove
Victim, her siblings, and Appellant’s children to his home. After all the
children had fallen asleep, Appellant awakened Victim, took her to a
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
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separate bedroom, and raped her. Appellant gave Victim money and
threatened to kill her if she told anyone.
On March 26, 2014, when [Victim] was 14 years old, she
disclosed the abuse to Tiffanie Brown, the assistant
preschool teacher at the Younger Days Daycare Center
(“Younger Days”) in Philadelphia, where [Victim] attended
an afterschool program. On March 31, 2014, Ms. Brown
and the director of Younger Days met with [Victim]’s
mother to inform her of the allegations. The police were
also notified at this time.
[Appellant]’s first jury trial, conducted in August of 2016,
ended in a mistrial when the jury was unable to reach a
verdict. His second jury trial began on December 6, 2016.
* * *
On December 12, 2016, during jury deliberations, the
jurors submitted the following question to [the trial court]:
“Number 2, [Appellant’s] previous convictions were
mentioned. Does he have prior arrest for sex crimes? Is
he [a] registered sex offender?” The parties agreed there
was no mention of [Appellant]’s prior convictions at trial,
although [the trial court] noted there was testimony that
[Appellant] “went away.” [The trial court] then asked trial
counsel how she would like to respond to the jury’s
question. Trial counsel requested the following: “There
was no mention of previous convictions at trial.” In
response to the jurors’ question, [the trial court] instructed
the jury that there was no mention of previous convictions.
* * *
On December 13, 2016, the jury found [Appellant] guilty
of rape of a child, unlawful contact with a minor, and
corruption of minors.1
1 18 Pa.C.S. §§ 3121(c), 6318(a)(1), 6301(a)(1)(i),
respectively.
On June 23, 2017, [the trial court] sentenced [Appellant]
to an aggregate term of 16 to 32 years of incarceration.2
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[Appellant] timely appealed to [this Court] on July 6,
2017. On December 9, 2019, [this Court] affirmed
[Appellant]’s judgment of sentence. On January 6, 2020,
[Appellant] filed a petition for allowance of appeal with the
Pennsylvania Supreme Court. [Appellant] discontinued his
petition for allowance of appeal on February 4, 2020.
2 [Appellant] was sentenced to two concurrent terms
of 16 to 32 years of incarceration for unlawful
contact with a minor and rape of a child, as well as a
concurrent term of two to four years of incarceration
for corruption of minors.
On April 10, 2020, [Appellant] filed a pro se [PCRA
petition]. On July 1, 2020, court appointed counsel …
entered his appearance on behalf of [Appellant] and filed
an amended petition on August 30, 2020….
Acknowledging the sentence of 16 to 32 years on the
unlawful contact charge exceeded the statutory maximum,
[the PCRA court] conducted a resentencing hearing on
March 22, 2021. [Appellant] was resentenced to a
concurrent term of five to ten years of incarceration on the
unlawful contact charge. [Appellant]’s aggregate sentence
remained 16 to 32 years of incarceration. [The PCRA
court] formally dismissed [Appellant]’s remaining PCRA
claims.
That same day, [Appellant] appealed to the Superior
Court. On March 30, 2021, this [c]ourt ordered
[Appellant] to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b) within twenty-
one days. Counsel filed a [Rule] 1925(b) statement on
behalf of [Appellant] that same day.
(PCRA Court Opinion, filed April 29, 2021, at 2-5) (internal record citations
and some footnotes omitted).
Appellant raises two issues for our review:
Did the PCRA court err in dismissing Appellant’s PCRA
Petition because trial counsel was ineffective for waiving
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Appellant’s presence and/or not objecting to Appellant not
being present at a vital juncture of his trial?
Did the PCRA court err in dismissing Appellant’s PCRA
Petition because trial counsel was ineffective for not
requesting a jury interrogatory and/or a mistrial because
the jury knew of Appellant’s prior criminal convictions?
(Appellant’s Brief at 4).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s
determination and whether its decision is free of legal error.
Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied,
612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the
findings of the PCRA court if the record contains any support for those
findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal
denied, 593 Pa. 754, 932 A.2d 74 (2007). We do not give the same
deference, however, to the court’s legal conclusions. Commonwealth v.
Ford, 44 A.3d 1190 (Pa.Super. 2012).
Pennsylvania law presumes counsel has rendered effective assistance.
Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When
asserting a claim of ineffective assistance of counsel, the petitioner is
required to demonstrate: (1) the underlying claim is of arguable merit; (2)
counsel had no reasonable strategic basis for his 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.
Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326 (1999). The
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failure to satisfy any prong of the test for ineffectiveness will cause the claim
to fail. Williams, supra.“The threshold inquiry in ineffectiveness claims is whether the
issue/argument/tactic which counsel has foregone and which forms the basis
for the assertion of ineffectiveness is of arguable merit….” Commonwealth
v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot
be found ineffective for failing to pursue a baseless or meritless claim.”
Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004).
Once this threshold is met we apply the ‘reasonable basis’
test to determine whether counsel’s chosen course was
designed to effectuate his client’s interests. If we conclude
that the particular course chosen by counsel had some
reasonable basis, our inquiry ceases and counsel’s
assistance is deemed effective.
Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).
“A finding that a chosen strategy lacked a reasonable basis is not
warranted unless it can be concluded that an alternative not chosen offered
a potential for success substantially greater than the course actually
pursued.” Commonwealth v. Howard, 553 Pa. 266, 274, 719 A.2d 233,
237 (1998).
Prejudice is established when [an appellant] demonstrates
that counsel’s chosen course of action had an adverse
effect on the outcome of the proceedings. The [appellant]
must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome. In [Kimball, supra], we held
that a “criminal [appellant] alleging prejudice must show
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that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.”
Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883
(2002) (some internal citations and quotation marks omitted).
In his first issue on appeal, Appellant claims that he had a right to be
present when the trial court addressed the jury’s question regarding prior
convictions. Appellant contends that “the U.S. Constitution, the
Pennsylvania Constitution and the Pennsylvania Rules of Civil Procedure all
guarantee the right of an accused to be present in the courtroom at every
stage of a criminal trial.” (Appellant’s Brief at 10). Appellant argues that
“[j]ury questions are a critical stage of a trial because they are usually few
and they are important in assessing the jury’s deliberations on crucial issues
in formulating a verdict.” (Id. at 11). Appellant maintains that trial counsel
waived his right to be present by failing to object without any reasonable
strategic basis, and Appellant suffered prejudice as a result. Appellant
concludes that trial counsel’s waiver of his presence amounts to ineffective
assistance, and this Court must grant relief. We disagree.
“A defendant’s right to be present at his or her trial is grounded in the
Confrontation Clause of the Sixth Amendment and in the Due Process
Clauses of the Fifth and Fourteenth Amendments.” Commonwealth v.
Hunsberger, 619 Pa. 53, 61-62, 58 A.3d 32, 37 (2012). In addition,
“Article I, [Section] 9 of the Pennsylvania Constitution and Pennsylvania Rule
of Criminal Procedure 602 guarantee the right of an accused to be present in
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the courtroom at every stage of a criminal trial.” (Id. at 63, 58 A.3d at 38)
(internal citations omitted). However, this right is not absolute. Id.A defendant has a due process right to be present in his
own person whenever his presence has a relation,
reasonably substantial, to the fullness of his opportunity to
defend against the charge. Accordingly, the defendant is
guaranteed the right to be present at any stage of the
criminal proceeding that is critical to its outcome if his
presence would contribute to the fairness of the procedure.
Commonwealth v. Tharp, 627 Pa. 673, 717, 101 A.3d 736, 762 (2014)
(internal quotation marks and citations omitted).
Instantly, Appellant was not present during a conversation between
the trial court and counsel regarding the appropriate response to a jury
question. Appellant’s trial counsel was present, however, and actively
represented his interests. Contrary to Appellant’s assertions, prior holdings
of our Supreme Court demonstrate that these types of discussions between
the trial court and counsel are not critical stages of trial. See Tharp, supra(holding that conference where Commonwealth and trial counsel questioned
jurors about off-the-record comment they overheard was not critical stage of
trial); Commonwealth v. Proctor, 526 Pa. 246, 585 A.2d 454 (1991)
(rejecting appellant’s claim that trial counsel was ineffective for failing to
object when trial court questioned juror on telephone in chambers with trial
counsel present, but without appellant being present). Based on this
caselaw, the PCRA court found that any proffered objection to Appellant’s
absence during this discussion between the trial judge and counsel would
have failed. Accordingly, the PCRA court concluded that Appellant’s
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ineffectiveness claim lacked arguable merit, and we find no error in the
court’s analysis. See Conway, supra. Because there is no arguable merit
to his claim, Appellant is not entitled to relief on his first ineffectiveness
claim. See Williams, supra.In his second issue on appeal, Appellant claims that the jury knew of
Appellant’s prior convictions. Given the jury’s specific mention of prior
convictions, Appellant reasons that the jury clearly “knew more than could
possibly have been gleaned from reference at trial that Appellant ‘went
away.’” (Appellant’s Brief at 16). Appellant contends that trial counsel’s
response to the question was wholly inadequate and “a mistrial should have
been requested because the questions from the jury clearly point toward
independent research on the part of a juror or jurors.” Id. Appellant argues
that a request for mistrial would have been meritorious and trial counsel’s
failure to do so had no reasonable strategic basis. Further, Appellant asserts
that “there is nothing more prejudicial than evidence of prior criminality.”
(Id. at 17). Appellant concludes that trial counsel’s failure to request a
mistrial amounted to ineffective assistance of counsel. We disagree.
This Court has explained:
In criminal trials, declaration of a mistrial serves to
eliminate the negative effect wrought upon a defendant
when prejudicial elements are injected into the case or
otherwise discovered at trial.… Accordingly, the trial court
is vested with discretion to grant a mistrial whenever the
alleged prejudicial event may reasonably be said to
deprive the defendant of a fair and impartial trial. In
making its determination, the court must discern whether
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misconduct or prejudicial error actually occurred, and if so,
... assess the degree of any resulting prejudice.
Commonwealth v. Tucker, 143 A.3d 955, 961 (Pa.Super. 2016), appeal
denied, 641 Pa. 63, 165 A.3d 895 (2017). This Court has previously held
that a mistrial is not required when there is a “singular, passing reference to
prior criminal activity” at trial. Commonwealth v. Parker, 957 A.2d 311,
319 (Pa.Super. 2008). Furthermore, when past criminal behavior is
referenced at trial, “the nature of the reference and whether the remark was
intentionally elicited by the Commonwealth” are relevant considerations
when determining whether a mistrial is warranted. Commonwealth v.
Kerrigan, 920 A.2d 190, 199 (Pa.Super. 2007).
Instantly, the trial court and all counsel agreed that there was no
mention of prior convictions at trial other than a passing reference during
testimony that Appellant “went away.”2 To resolve any misunderstandings,
trial counsel requested that the court respond to the jury’s question by
stating that there was no evidence of prior convictions. The court promptly
complied with this request. There is no evidence of record indicating that
any juror conducted independent research, and Appellant’s assertions to that
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2 Appellant’s brief fails to develop his argument that trial counsel was
ineffective for failing to request a jury interrogatory at this juncture. (See
Appellant’s Brief at 16-17). Accordingly, this argument is waived. See In
re Estate of Whitley, 50 A.3d 203, 209 (Pa.Super. 2012), appeal denied,
620 Pa. 724, 69 A.3d 603 (2013) (reiterating: “This Court will not consider
the merits of an argument which fails to cite relevant case or statutory
authority”).
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effect are pure speculation.
Based on these facts, the PCRA court determined:
Trial counsel’s decision to have [the trial court] instruct the
jury that there was no evidence of [Appellant]’s previous
convictions presented at trial was reasonably designed to
effectuate [Appellant]’s interests. Furthermore, a mistrial
would not have been successful. At most, the jurors’
question concerned a singular reference made in passing
at trial. The Commonwealth did not intentionally elicit the
testimony in question. Moreover, the reference to
[Appellant]’s past criminal behavior was brief.
(PCRA Court Opinion at 9). We agree with the PCRA court that Appellant
cannot succeed on his ineffectiveness claim. See Conway, supra; Boyd,
supra. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/08/2021
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