The URL can be used to link to this page

Home My WebLink About97-0126 criminalCOMMONWEALTH Vo THOMAS L. BROWN · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA : : · 97-0126 CRIMINAL TERM : IN RE' POST CONVICTION REI.IEF ACT BEFORE GUIDO, OPINION AND ORDER OF COURT AND NOW, this ~'"~ day of DECEMBER, 1999, for the reasons set forth in the attached opinion, Petitioner' s claim for relief under the Post Conviction Relief Act is DENIED. By the Edward E. Guido, J. District Attorney Robert Peter Kline, Esquire For the Defendant :sld COMMONWEALTH Vo THOMAS L. BROWN · IN THE COURT OF COMMON i'LEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA : : · 97-0126 CRIMINAL TERM · · : IN RE: POST CONVICTION RELIEF ACT BEFORE GUIDO, OPINION AND ORDER OF COURT On September 3, 1997, Thomas Lee Brown, Jr., (hereinafter Petitioner) was convicted of several sex related offenses after a non-jury trial before the Honorable George E. Hoffer, P.J.~ On May 26, 1998, Petitioner was sentenced to serve not less than five nor more than ten years in a state correctional institution. This was the mandatory minimum sentence that could be imposed.2 Petitioner has filed a petition under the Post Conviction Relief Act (42 Pa. C.S.A. § 9541, et seq.). The only issue raised is the alleged ineffectiveness of Petitioner's trial counsel in failing to call a defense witness at trial. An evidentiary hearing was held on the petition. The matter is now ready for disposition. FACTUAL BACKGROUND The victim in this case was twelve (12) years old on the date of the incident giving rise to these charges.3 According to her trial testimony, on December 27, 1996, ~ He was convicted of one count each of Involuntary Deviate Sexual Intercourse (18 Pa. C.S.A. § 3123(a)(6)), Indecent Assault (18 Pa. C.S.A. § 3126(a)(7)) and Corruption of Minors ( 18 Pa. C.S.A. § 6301). 2 42 Pa. C.S.A. § 9718. 3 Trial transcript, p. 5. 97-O 126 CRIMINAL she had a phone conversation with the Petitioner in which he asked if she would "give him head.''4 She agreed,s Petitioner, accompanied by three (3) of his friends, went to the victim's home.6 The victim and Petitioner went into a bedroom where she proceeded to perform oral sex upon him.7 The whole episode came to light when one of the friends 8 mentioned it to the victim's sister who in mm told the victim's parents. Petitioner was eighteen (18) years old on the date of the incident.9 He acknowledged going to the victim's house on the night in question.~° He also acknowledged going into the bedroom with the victim.~l However, he denied that any sexual activity took place.12 Michael Whistler was one of the friends who had that accompanied Petitioner to the victim's house. He testified that Petitioner and the victim went into the bedroom.~3 He further testified that Petitioner admitted that the victim had performed oral sex upon him while they were in there.TM Jason Mahanes was one of the other friends who had accompanied Petitioner to the victim's house that night. The Commonwealth had served a subpoena upon him to secure his attendance at trial.~5 Despite the subpoena, Mr. Mahanes overslept and did not 4 Trial transcript, p. 6. 5 Trial transcript, p. 6. 6 Trial transcript, p. 6. 7 Trial transcript, p. 8. 8 Trial transcript, p. 9. 9 Trial transcript, p. 23. ~0 Trial transcript, p. 19. ~ Trial transcript, p. 20. ~2 Trial transcript, p. 20. ~3 Trial transcript, p. 15. 24 Trial transcript, p. 15. ~s The facts recited in this paragraph are taken from our notes from the September 3, 1999, evidentiary hearing on Petitioner's PCRA petition. The notes of testimony have yet to be transcribed. 97-0126 CRIMINAL show up for trial. Petitioner' contends that Mr. Mahanes's testimony was vital to his defense and that his counsel was ineficctive for failing to request a continuance to procure that testimony. Ti~¢ crux of Mr. Mahanes's testimony would have been that he passed the bedroom on his way to and from the bathroom. When he did, he saw the victim and Petitioner just sitting on the bed talking. However, he admitted that the Petitioner and victim had been in the room alone 'for at least fifteen minutes before he went to the bathroom. He was also ready to testify that Petitioner never made any statements to him regarding what occurred i.n the bedroom. DISCUS.SION Petitioner's claim for relief revolves around the alleged ineffectiveness of his trial counsel. In order for him to be eligible for relief under the PCRA he must plead and prove by a preponderance of the evidence that his conviction resulted from: 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. 42 Pa. C.S.A. {} 9543(a)2(ii). The Pennsylvania Supreme Court has recently reiterated and clarified the requirements necessary for relief under that section as follows: (1) that the claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; and, (3) that, but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different .... [w]here the petitioner has demonstrated that counsel's ineffectiveness has created a reasonable probability that the outcome of the proceedings would have been different, then no reliable adjudication of guilt or innocence could have taken place. Com. v. Kimball, 555 Pa. 299, 724 A.2d 326, 333 (1999). Petitioner has the burden of proving all three (3) prongs. However, where he has clearly failed to meet the prejudice prong, the Court may dispose of the case on that basis 97-0126 CRIMINAL alone. Commonwealth v. Paole!lo, 542 Pa. 47 665 A.2d 439 (1995). Furthermore, when the alleged ineffectiveness deals with the failure to call a missing witness, Petitioner must show, inter alia, that the absence of the testimony prejudiced him. (3ommonwea.!tt~ v. ~Crawley, 541 Pa. 408,663 A.2d 676, (1995), cert. denied, 517 U.S. 1212, 116 S.Ct. 1832, 134 L. Ed. 2d 936 (1996). Where the testimony of the missing witness "would have done little more than corroborate" the testimony of Petitioner and "thus, would have been cumulative," the claim mUst fail. Commonwealth v. Neal., 713 A.2d 657, 663 (Pa. Super. 1998). In other words, counsel ordinarily will not be deemed ineffective for failing to call witnesses for the presentation of merely cumulative evidence. Id. In the instant case, the testimony of the missing witness would have been cumulative at best. The Petitioner testified that no sex act occurred in the bedroom. Jason Mahanes's testimony that he saw the victim and Petitioner sitting on the bed only corroborates Petitioner's testimony to that same effect.~6 It did not add anything toward resolution of the central issue, i.e. what occurred between Petitioner and victim in the bedroom. This is especially tree since Mahanes would also have testified that they were alone in the room at least fifteen minutes before he went to use the bathroom. Likewise, Mahanes's testimony that Petitioner never made any statements to him regarding oral sex in the bedroom merely corroborates Petitioner's testimony.~7 In view of the above, we are satisfied that Petitioner has failed to show that the testimony of Jason Mahanes would have created a reasonable probability that the outcome of the trial would have been different. It would have done nothing more than 16 Trial transcript, p. 20. 17 Trial transcript, p. 21. 97-0126 CRIMINAL corroborate Petitioner's own testimony. Therefore, under the cases cited above, Petitioner's request for relief under the Post Conviction Relief Act must be denied. ORDER AND NOW, this 22 ND day of DECEMBER, 1999, for the reasons set forth in the attached opinion, Petitioner' s claim for relief under the Post Conviction Relief Act is DENIED. By the Court, /s/Edward E. Guido Edward E. Guido, J. District Attorney Robert Peter Kline, Esquire For the Defendant :sld