Com. v. Frantz, C. ( 2022 )

J-A23033-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHAD EARL FRANTZ :
:
Appellant : No. 1572 MDA 2021
Appeal from the PCRA Order Entered November 15, 2021
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0002297-2015
BEFORE: BOWES, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED: NOVEMBER 15, 2022
Appellant Chad Earl Frantz files this appeal from the order of the Court
of Common Pleas of Lancaster County denying his petition pursuant to the
Post-Conviction Relief Act (PCRA).1 Appellant claims his trial counsel was
ineffective in pursuing a line of questioning of the victim on cross-examination.
After careful review, we affirm.
On December 2, 2015, a jury convicted Appellant of Rape of a Child,
Involuntary Deviate Sexual Intercourse with a Child (IDSI), Aggravated
Indecent Assault of a Child, Indecent Assault of a Child, Unlawful Restraint,
Corruption of Minors and Unlawful Contact with a Minor in connection with
claims that Appellant sexually abused his minor stepdaughter over a six-year
period when the victim was between the ages of four and ten.
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
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After reviewing a pre-sentence investigation, on March 9, 2016, the trial
court held a hearing at which it determined that Appellant was a sexually
violent predator and sentenced him to an aggregate term of 30½ to 61 years’
imprisonment.
On appeal, on April 24, 2017, this Court reversed Appellant’s conviction
for indecent assault, affirmed the judgment of sentence in all other respects,
and determined resentencing was not necessary. Commonwealth v. Frantz,
702 MDA 2016, 2017 WL 1437530, at *1 (Pa.Super. Apr. 24, 2017)
(unpublished memorandum).
On August 23, 2017, Appellant filed a timely pro se PCRA petition. The
PCRA court appointed Appellant counsel who subsequently sought to withdraw
his representation and filed a no-merit brief. On March 27, 2018, the PCRA
court dismissed the petition. On July 19, 2019, this Court vacated the order
dismissing the petition and remanded for the appointment of counsel to file a
new petition as Appellant had been denied the right of earnest review of his
PCRA claims with the assistance of counsel. Commonwealth v. Frantz, 703
MDA 2018, 2019 WL 3229750, at *4 (Pa.Super. July 17, 2019) (unpublished
memorandum).
Upon remand, the PCRA court appointed new counsel, who filed an
amended PCRA petition on November 1, 2019. After Appellant filed a pro se
petition on November 18, 2019, counsel filed a second amended petition on
October 2, 2020.
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Appellant’s petition alleged that trial counsel was ineffective in asking
the victim a series of questions on cross-examination about whether she had
reported certain details about the abuse to the investigating detective. When
the victim indicated that she had not told the officer some of the details that
she shared at trial, the prosecution was permitted to play a recording of the
victim’s prior forensic interview with caseworkers where she had made a prior
consistent statement.
On July 20, 2021, the PCRA court held an evidentiary hearing at which
Appellant presented trial counsel as a witness. On November 12, 2021, the
PCRA court dismissed Appellant’s petition. This timely appeal followed.
Appellant presents the following issues for review on appeal:
I. Trial counsel testified that his reasonable strategic basis for
opening the door to the victim’s prior consistent statement
was an attempt to discredit her. He incorrectly accused her
of recently fabricating details of two incidents during cross-
examination. Did the PCRA court err when it held that trial
counsel had a reasonable basis for his questions?
II. The PCRA court found that the prosecutor’s admission of a
prior consistent statement – specifically, a recording of the
victim’s forensic interview – was not prejudicial. It reached
that conclusion on two bases: The recording was
cumulative of (i.e., consistent with) other evidence, and
other evidence, although created by the victim, supported
[Appellant’s] guilt. Did the PCRA court err when it held that
the admission of the recorded interview was not
prejudicial?
Appellant’s Brief, at 4.
In reviewing the denial of a PCRA petition, our standard of review is
well-established:
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[o]ur review of the grant or denial of PCRA relief is limited to
examining whether the PCRA court's findings of fact are supported
by the record, and whether its conclusions of law are free from
legal error. Commonwealth v. Cox, 636 Pa. 603, 146 A.3d 221,
226 n.9 (2016). The PCRA court's credibility determinations, when
supported by the record, are binding on this Court; however, we
apply a de novo standard of review to the PCRA court's legal
conclusions. Commonwealth v. Burton, 638 Pa. 687, 158 A.3d
618, 627 n.13 (2017).
Commonwealth v. Small, 647 Pa. 423, 440–41, 189 A.3d 961, 971
(2018).
Appellant’s petition raises claims of trial counsel’s ineffectiveness. Our
review of an ineffectiveness claim is guided by the following principles:
[a]s originally established by the United States Supreme
Court in Strickland v. Washington, 466 U.S. 668, [104
S.Ct. 2052, 80 L.Ed.2d 674] (1984), and adopted by
Pennsylvania appellate courts, counsel is presumed to have
provided effective representation unless a PCRA petitioner
pleads and proves all of the following: (1) the underlying
legal claim is of arguable merit; (2) counsel's action or
inaction lacked any objectively reasonable basis designed to
effectuate his client's interest; and (3) prejudice, to the
effect that there was a reasonable probability of a different
outcome at trial if not for counsel's error.
Commonwealth v. Wantz, 84 A.3d 324, 331 (Pa.Super. 2014)
(citations omitted). “A failure to satisfy any prong of the
ineffectiveness test requires rejection of the claim of
ineffectiveness.” Commonwealth v. Daniels, 600 Pa. 1, 963
A.2d 409, 419 (2009).
Commonwealth v. Selenski, 228 A.3d 8, 15 (Pa.Super. 2020).
With respect to the reasonable basis prong, “[g]enerally, where matters
of strategy and tactics are concerned, counsel's assistance is deemed
constitutionally effective if he chose a particular course that had some
reasonable basis designed to effectuate his client's interests.”
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Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d 121, 132 (2012)
(quotations and citation omitted). “In making this assessment we are not to
employ a hindsight evaluation to determine whether other alternatives may
have been more reasonable, but whether there was a reasonable basis for the
course of action actually selected.” Commonwealth v. Charleston, 94 A.3d
1012, 1027 (Pa.Super. 2014) (citation omitted). To show counsel’s strategy
lacked a reasonable basis, Appellant must prove that the strategy employed
by trial counsel “was so unreasonable that no competent lawyer would have
chosen that course of conduct.” Commonwealth v. Rega, 593 Pa. 659, 696,
933 A.2d 997, 1018–19 (2007) (citation omitted).
Further, to satisfy the prejudice prong, “the petitioner must show that
there is a reasonable probability that, but for counsel's unprofessional errors,
the result of the proceedings would have been different. [A] reasonable
probability is a probability that is sufficient to undermine confidence in the
outcome of the proceeding.” Selenski, 228 A.3d at 16 (quoting
Commonwealth v. Spotz, 624 Pa. 4, 84 A.3d 294, 311-12 (2014) (citations,
quotation marks, and quotations omitted)).
As noted above, Appellant asserts that trial counsel had no reasonable
basis to suggest on cross-examination that the minor victim was making up
details about her sexual abuse during her trial testimony. Appellant claims
that trial counsel’s questioning opened the door for the prosecution to
rehabilitate the victim’s credibility pursuant to Pa.R.E. 613(c) with the
admission of prior consistent statements.
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It is well established that:
Evidence of a witness's prior consistent statement is admissible to
rehabilitate the witness when the statement is offered to rebut a
charge of recent fabrication, bias, or improper motive.
Commonwealth v. Counterman, 553 Pa. 370, 719 A.2d 284,
301 (1998); Pa.R.E. 613(c). … “[A] prior consistent statement is
always received for rehabilitation purposes only and not as
substantive evidence.” Commonwealth v. Baumhammers, 599
Pa. 1, 960 A.2d 59, 89 (2008) (citing Pa.R.E. 613 cmt).
Commonwealth v. Busanet, 618 Pa. 1, 53, 54 A.3d 35, 66–67 (2012).
In this case, Appellant points to two portions of the victim’s trial
testimony. In the first instance, the victim testified that Appellant had dumped
a bottle of water on her on one of the occasions in which he sexually abused
her. Notes of Testimony (N.T.), Trial, 11/30/15, at 163. In the second
instance, the victim recalled that Appellant concocted a “game” in which he
blindfolded her, placed objects in her hand, and asked her to guess what the
objects were. N.T., 11/30/15, at 164.
With respect to both incidents, trial counsel was able to get the victim
to admit on cross-examination that she had not shared some of these specific
details with investigators. The victim explained that she had not remembered
the details when speaking with the detective. N.T., 11/30/15, at 164.
In response to defense counsel’s allegation that the victim failed to
report these specific details to the police, the trial court permitted the
Commonwealth to play a recording of the victim’s forensic interview at the
Lancaster County Children’s Alliance in which the victim gave prior consistent
statements reporting these specific allegations of abuse to caseworkers.
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At the hearing, trial counsel indicated that his strategy was to discredit
the minor victim by showing that her testimony should not be believed as she
was suggestible to the coaching of her mother who was in the midst of
separating from Appellant. Notes of Testimony (N.T.), PCRA hearing, 7/20/21,
at 9-10, 26. Trial counsel claimed the defense had no possibility of winning
the case without attacking the victim’s credibility. N.T., 7/20/21, at 43-44.
Trial counsel indicated that he noticed that the victim was embellishing
her testimony on the witness stand with details she had not told investigators.
Trial counsel was able to successfully impeach the victim’s credibility in
compelling her to agree that she was testifying to allegations she had not
shared with the police. This admission by the victim allowed trial counsel to
suggest that the victim was fabricating her testimony and that the abuse had
in fact, never occurred. As such, trial counsel had a reasonable basis for asking
these questions that was designed to effectuate the interest of the defense.
We also agree with the PCRA court’s assessment that Appellant did not
show the admission of the forensic interview was so prejudicial that it resulted
in a different outcome in this case. After trial counsel effectively impeached
the victim’s credibility, trial counsel did open the door to the admission of the
forensic interview; however, the recording did not reveal any new information
to the jury, but simply offered cumulative evidence already in the record.
The trial court also took precautionary measures to ensure the jury knew
of the limited purpose for which the forensic interview was offered. Before
the recording of the interview was played for the jury, the trial court
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specifically instructed the jury that the recording was being offered solely for
the purpose of assessing the credibility of the victim, and not as substantive
evidence of Appellant’s guilt. N.T., 12/1/15, at 364-66.
Moreover, the prosecution presented other evidence to corroborate the
victim’s testimony such as her prior disclosures of the abuse to her family
members and friends, including her mother, sister, and friend. In addition,
the prosecution pointed to the victim’s writings referring to the abuse as well
as the circumstantial evidence which supported Appellant’s opportunity to
commit the abuse.
Based on the foregoing reasons, we conclude that the PCRA court
correctly found trial counsel was not ineffective in seeking impeach the
victim’s credibility by highlighting that she was testifying to particular
allegations that she had not presented to investigators. Accordingly, we affirm
the PCRA court’s decision to deny Appellant’s petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/15/2022
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