Com. v. Taft, S. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STEVEN TAFT :
:
Appellant : No. 2017 EDA 2022
Appeal from the PCRA Order Entered August 12, 2022
In the Court of Common Pleas of Philadelphia County
Criminal Division at CP-51-CR-0000818-2017
BEFORE: NICHOLS, J., MURRAY, J., and McCAFFERY, J.
MEMORANDUM BY MURRAY, J.: FILED AUGUST 15, 2023
Steven Taft (Appellant) appeals from the order dismissing his first
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.
§§ 9541-9546. We affirm.
On November 9, 2018, a jury convicted Appellant of sexual assault.1
The female victim (“complainant” or “victim”) testified at trial that Appellant
raped her while she slept in his bedroom following a party at his apartment.
See Commonwealth v. Taft, 241 A.3d 356 (Pa. Super. 2020) (unpublished
memorandum at 1-3). Appellant testified to the contrary, but the jury
“rejected Appellant’s claim [that the victim] consent[ed] ….” Taft, supra
(unpublished memorandum at 4) (quoting Trial Court Opinion, 5/20/19, at 4).
____________________________________________
1 See 18 Pa.C.S.A. § 3124.1.
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Following trial, the jury convicted Appellant of sexual assault, and
acquitted him of indecent assault and aggravated indecent assault. On March
1, 2019, the trial court sentenced Appellant to 2 – 4 years in prison, followed
by one year of probation.
Appellant filed an appeal in which he challenged the sufficiency and
weight of the evidence. See generally Taft, supra. This Court affirmed
Appellant’s judgment of sentence. Id. Appellant did not seek allowance of
appeal with the Pennsylvania Supreme Court.
Appellant timely filed the instant PCRA petition pro se on September 21,
2021. The PCRA court appointed counsel, who filed an amended PCRA petition
on March 2, 2022. In the amended petition, Appellant alleged trial counsel
“was ineffective for failing to call a crucial witness,” Jereme Green (“Mr. Green”
or “Green”). Amended PCRA Petition, 3/2/22, at 4. Appellant claimed:
[Appellant] has submitted [in his September 21, 2021, PCRA
petition] an affidavit detailing proposed testimony by [Mr. Green
(Green Affidavit)]…. Although Mr. Green was not in the bedroom
when the incident took place, his testimony as to the conduct of
the complainant prior to the bedroom [incident] was crucial. …
Mr. Green’s proposed testimony will demonstrate Mr. Green had
direct contact with the complainant prior to the incident. He states
in [his] affidavit that the complainant was walking around the
house in nothing but panties and a t-shirt and was visibly
intoxicated. She was flirting with Mr. Green and touching his body
and attempted to kiss him.
Memorandum of Law in Support of Amended PCRA Petition, 3/2/22, at 14-15
(citation to Green Affidavit and paragraph break omitted); see also id. at 16
(stating, “[t]he only person called to testify as to what took place by trial
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counsel at [Appellant’s] trial was [Appellant] himself.”). Appellant asked the
PCRA court to “grant [Appellant] an evidentiary hearing, as he has presented
a claim of arguable merit ….” Amended PCRA Petition, 3/2/22, at 4.
On August 12, 2022, the PCRA court dismissed Appellant’s PCRA petition
without a hearing. Appellant timely appealed. Both Appellant and the PCRA
court have complied with Pa.R.A.P. 1925.
Appellant presents the following questions for review:
I. Whether the PCRA court erred in not granting relief on the
PCRA petition alleging [trial] counsel was ineffective for failing
to call Jereme Green as a fact witness[?]
II. Whether the PCRA court erred in not granting an evidentiary
hearing[?]
Appellant’s Brief at 7.
Appellant first argues the PCRA court erred in dismissing his petition
because he established trial counsel’s ineffectiveness for failing to call Green
as a witness. See Appellant’s Brief at 15-17. According to Appellant:
Mr. Green existed and was available to testify for the Appellant.
Trial counsel knew of the witness and Mr. Green wrote [in the
Green Affidavit] that he was willing to testify on behalf of the
Appellant. The absence of this witness[’s] testimony was so
prejudicial to the Appellant that he was deprived of a fair trial.
The jury in this case announced prior to its verdict that they were
deadlocked[,] and Mr. Green’s testimony would likely have led to
a different verdict. Mr. Green’s proposed testimony would have
undermined the credibility of the Commonwealth’s witnesses,
weakened the prosecution’s version of events, and changed the
outcome of the trial.
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Id. at 16 (citation to Green Affidavit omitted). Appellant further claims
Green’s “proposed testimony was not irrelevant and was not abusive.” Id. at
17.
The Commonwealth counters that the PCRA court correctly dismissed
Appellant’s petition, as he failed to establish trial counsel’s ineffectiveness for
failing to call Green. See Commonwealth Brief at 6-8. The Commonwealth
argues:
Green’s proposed testimony relating to the victim allegedly flirting
with him was both inadmissible and irrelevant. Whether the victim
made advances toward Green was irrelevant to whether she
consented to any sexual activity with [Appellant]. Moreover, it
would have contradicted [Appellant’s] testimony that he believed
the victim was [romantically] interested in him because she only
“flirted” with [Appellant] and exhibited no apparent interest in the
“other guys.” (N.T. 11/8/2018, 23-27, 38).
Id. at 8 (italics omitted).
Pennsylvania law presumes counsel is effective; a PCRA petitioner bears
the burden of proving otherwise. Commonwealth v. Brown, 196 A.3d 130,
150 (Pa. 2018).
[A] PCRA petitioner will be granted relief only when he proves, by
a preponderance of the evidence, that his conviction or sentence
resulted from[, inter alia,] the “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. Spotz, 84 A.3d 294, 311 (Pa. 2014) (quoting 42
Pa.C.S.A. § 9543(a)(2)(ii)). When evaluating an ineffectiveness claim,
“judicial scrutiny of counsel’s performance must be highly deferential.”
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Commonwealth v. Lesko, 15 A.3d 345, 380 (Pa. 2011) (citation and
quotation marks omitted).
To establish a claim of ineffectiveness, a PCRA petitioner must plead and
prove:
(1) the underlying claim has arguable merit; (2) no reasonable
basis existed for counsel’s action or failure to act; and (3) he
suffered prejudice as a result of counsel’s error, with prejudice
measured by whether there is a reasonable probability the result
of the proceeding would have been different. Commonwealth v.
Chmiel, 30 A.3d 1111, 1127 (Pa. 2011) (employing ineffective
assistance of counsel test from Commonwealth v. Pierce, 527
A.2d 973, 975-76 (Pa. 1987)). … Additionally, counsel cannot be
deemed ineffective for failing to raise a meritless claim. Finally,
because a PCRA petitioner must establish all the Pierce prongs to
be entitled to relief, we are not required to analyze the elements
of an ineffectiveness claim in any specific order; thus, if a claim
fails under any required element, we may dismiss the claim on
that basis.
Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015) (citations
modified).
Regarding the prejudice prong, a “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.” Commonwealth v.
Charleston, 94 A.3d 1012, 1019 (Pa. Super. 2014) (citation omitted). We
have observed:
A defendant raising a claim of ineffective assistance of counsel is
required to show actual prejudice; that is, that counsel’s
ineffectiveness was of such magnitude that it “could have
reasonably had an adverse effect on the outcome of the
proceedings.”
Id. (brackets omitted) (quoting Pierce, 527 A.2d at 977).
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Further, to prevail on a claim alleging ineffective assistance of counsel
for failure to call a witness, a PCRA petitioner must establish:
(1) the witness existed; (2) the witness was available to testify
for the defense; (3) counsel knew, 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. Miller, 231 A.3d 981, 992 (Pa. Super. 2020) (citations
omitted).
Instantly, the PCRA court thoroughly explained why it denied relief:
[Appellant’s] claim fails on the prejudice prong of the Pierce
test because part of Mr. Green’s proposed testimony as to the
victim’s alleged sexual advances towards him (Mr. Green), would
have been inadmissible under the Rape Shield Law[, 18
Pa.C.S.A. § 3104,] and [was] irrelevant as to what occurred
between [Appellant] and the victim in [Appellant’s] bedroom.
***
The purpose of the Rape Shield Law is to prevent a trial from
shifting its focus from the culpability of the accused toward the
virtue and chastity of the victim. Commonwealth v. Jerdon,
229 A.3d 278, 280 (Pa. Super. 2019). The Rape Shield Law is
intended to exclude irrelevant and abusive inquiries regarding
prior sexual conduct of sexual assault complainants. Id.Pennsylvania’s Rape Shield Law provides in pertinent part:
a. General Rule: Evidence of specific instances of the
alleged victim’s past sexual conduct, opinion evidence of
the alleged victim’s past sexual conduct, and reputation
evidence of the alleged victim’s past conduct shall not be
admissible in prosecutions under this chapter except
evidence of the alleged victim’s past sexual conduct with
the defendant where consent of the alleged victim is at
issue and such evidence is otherwise admissible pursuant
to the rules of evidence.
18 Pa.C.S. § 3104[(a)].
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In … Jerdon, … the Commonwealth appealed to the
Superior Court after a trial court granted a defendant’s pre-trial
motion to allow the alleged sexual conduct between a victim and
a third-party witness into evidence. The Superior Court held that
the trial court erred by allowing sexual conduct between the victim
and the third-party witness into evidence because the sexual
relationship between the victim and third-party was irrelevant to
the issue of the victim’s bias, motive, and credibility; the
prejudicial impact of the sexual relationship between the victim
and third-party far outweighed the probative, exculpatory value;
and because the evidence served no purpose other than to shift
the fact-finder’s focus from the culpability of [p]etitioner toward
the virtue and chastity of the victim, amongst other reasons.
Jerdon, at 279.
Here, like Jerdon, evidence of the alleged sexual conduct
between Mr. Green and the victim was irrelevant as to the bias,
motive or credibility of the victim, and the prejudicial impact
far outweighed the probative, exculpatory value.
Additionally, “prior sexual conduct with third persons is ordinarily
inadmissible to attack the character of the [victim] in sex offense
cases.” Commonwealth v. Black, 587 A.2d 396, 398 (Pa.
Super. 1985). Part of Mr. Green’s proposed testimony alleged
that the victim was flirting with him and touching Mr. Green’s body
while attempting to kiss him before he excused himself. Amended
PCRA Petition, 3/21/22, at 21. This proposed evidence did not
exculpate [Appellant] because whether or not the victim made
advances towards Mr. Green was irrelevant and in no way
probative as to whether the victim consented to any sexual
activity with [Appellant2]. In fact, the specific instances of the
victim’s alleged sexual conduct with Mr. Green were more
prejudicial to the victim because Mr. Green, a third-party, was not
present in [Appellant’s] bedroom at the time of the sexual
____________________________________________
2 We remind Appellant that this Court previously rejected his challenges to the
sufficiency and weight of the evidence. Taft, 241 A.3d 356 (unpublished
memorandum at 5-11); see also Commonwealth v. Strutt, 624 A.2d 162,
164 (Pa. Super. 1993) (stating “[t]he testimony of a sexual assault victim
standing alone is sufficient weight to support a conviction.”), and
Commonwealth v. Crosley, 180 A.3d 761, 768 (Pa. Super. 2018) (“even
the uncorroborated testimony of a single witness may alone be sufficient to
convict a defendant.” (citation omitted)).
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assault[,] which he explicitly makes clear in his proposed
testimony. Id.This proposed testimony served no purpose other
than to shift the fact-finder’s focus from the culpability of
[Appellant] toward the virtue and chastity of the victim[,]
which is exactly what the Rape Shield statute prohibits.
Therefore, Mr. Green’s proposed testimony of the victim’s alleged
sexual conduct towards him would have been inadmissible and
irrelevant as to what happened between [Appellant] and the
victim in [Appellant’s] bedroom that night. And for that reason,
this portion of Mr. Green[]’s testimony would not have been
admitted, and trial counsel was not ineffective because
[Appellant] was not prejudiced.
PCRA Court Opinion, 10/27/22, at 5-7 (emphasis added; italics omitted;
footnote added).
The PCRA court’s reasoning is supported by the record and law. Further,
there is no merit to Appellant’s claim that “Mr. Green’s proposed testimony is
relevant and admissible under the Rape Shield Law….” Appellant’s Brief at 16.
As Appellant failed to prove prejudice, his claim of trial counsel’s
ineffectiveness fails.3 See Charleston, supra; see also Treiber, supra.
Appellant’s first issue does not merit relief.
In his second issue, Appellant claims the PCRA court erred in dismissing
his petition without holding an evidentiary hearing. See Appellant’s Brief at
17-19. Appellant asserts:
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3 The PCRA court also determined that Appellant failed to satisfy the
reasonable basis prong. PCRA Court Opinion, 10/27/22, at 7-9. However, as
noted, a petitioner’s failure to establish any one of the three prongs is fatal.
See Treiber, supra.
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Although the right to an evidentiary hearing is not absolute, a
court may not summarily dismiss a PCRA Petition when the facts
alleged in the petition, if proven, would entitle the Appellant to
relief.
Id. at 18 (citing Commonwealth v. Barbosa, 819 A.2d 81, 85 (Pa. Super.
2003) (stating although “[i]t is true that the right to an evidentiary hearing
on a PCRA petition is not absolute,” a “court may not summarily dismiss a
PCRA petition … when the facts alleged in the petition, if proven, would entitle
the petitioner to relief.” (citations and quotation marks omitted)).
To the contrary, the Commonwealth argues:
[Appellant] failed to demonstrate to the PCRA court the existence
of a disputed issue of material fact necessary to warrant an
evidentiary hearing, and the claim he asserts on appeal is utterly
meritless. Thus, he did not demonstrate that the [PCRA] court
abused its discretion by declining to grant an evidentiary hearing.
Commonwealth Brief at 9.
This Court has explained:
The right to an evidentiary hearing on a post-conviction
petition is not absolute. It is within the PCRA court’s discretion to
decline to hold a hearing if the petitioner’s claim is patently
frivolous and has no support either in the record or other evidence.
It is the responsibility of the reviewing court on appeal to examine
each issue raised in the PCRA petition in light of the record
certified before it in order to determine if the PCRA court erred in
its determination that there were no genuine issues of material
fact in controversy and in denying relief without conducting an
evidentiary hearing.
Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (citations and
brackets omitted).
Here, the PCRA court explained it
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did not conduct an evidentiary hearing as to the issue pertaining
to Mr. Green’s proposed testimony because there were no
genuine issues of material fact for the court to decide the
PCRA [petition]. The PCRA court was able to determine the
merits of the case without having a hearing because even if
the court were to accept as true the proposed testimony of Mr.
Green, the PCRA [petition] would not have been granted because
[Appellant] failed to establish the claims in the PCRA petition.
PCRA Court Opinion, 10/27/22, at 10 (emphasis added).
Again, the record and law support the PCRA court’s rationale. As
Appellant failed to establish a genuine issue of material fact to warrant an
evidentiary hearing, Wah, supra, his second issue lacks merit.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/15/2023
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