HomeMy WebLinkAboutCP-21-CR-0000311-2017
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
V. :
:
:
JOSHUA M. CULLEY : CP-21-CR-0311-2017
IN RE: AMENDED POST-CONVICTION RELIEF ACT PETITION
OPINION AND ORDER OF COURT
Masland, J., December 17, 2021:--
On November 3, 2017, Petitioner Joshua M. Culley was convicted by a jury of
Rape, inter alia, following a three-day trial presided over by the Honorable Thomas A.
Placey. Petitioner is presently serving a term of imprisonment of 92 to 184 months at SCI
– Smithfield. Our Supreme Court denied his Petition for Allowance of Appeal on
December 31, 2019. Petitioner brought this, timely, action under 42 Pa.C.S. §9541 et
seq. on June 1, 2020, and, following a hearing on August 16, 2021, submitted the
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Amended Post Conviction Relief Act Petition now before us.
Petitioner argues that his trial counsel, George Matangos, Esquire, was ineffective
because he (I) failed to present character witnesses, (II) failed to address the
Commonwealth’s allegedly false and misleading opening statement, (III) failed to explore
whether the victim’s alleged infidelity to her boyfriend may have provided a motive to
fabricate the charges, (IV) failed to adequately examine inconsistencies in the testimony
and written statements of certain witnesses, (V) failed to object to the Commonwealth
producing certain evidence only on the day of trial, and (VI) failed to seek suppression of
1
Filed October 4, 2021, hereinafter “Amended Petition.”
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an inculpatory phone call recorded between victim and Petitioner. For the reasons set
forth below, the Motion will be denied.
I. THE CHARACTER WITNESSES
The general standard for evaluating a claim of ineffective assistance is well settled
and applicable to each of Petitioner’s arguments. Counsel is presumed effective, and
Petitioner bears the burden of demonstrating that any legal strategy forgone was of
arguable merit, that counsel lacked a reasonable basis for declining to pursue the
strategy, and that, but for the errant decision, an outcome more favorable to Petitioner is
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reasonably likely to have been obtained. The presentation of character evidence, which
is not “mere make-weight,” and which “may, in and of itself, create a reasonable doubt of
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guilt,” is a strategy of arguable merit. This is doubly so where, as here, the case turns in
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large part on the relative credibility of victim and accused. It is further evident that
Attorney Matangos, having discussed the possibility of presenting character witnesses
with Petitioner and his father, either knew or should have known of the seven individuals
who, it is stipulated by the parties, were available to testify as to Petitioner’s reputation
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for truthfulness and non-violence. Nevertheless, we find counsel’s decision not to call
these witnesses reasonable under the circumstances.
2
Commonwealth v. Wiess, 606 A.2d 439, 441-442 (Pa. 1992).
3
Id., at 442.
4
Id.
5
Proceedings of Hearing of October 4, 2021 (hereinafter “N.T. Hearing”), at 28:14-23 (defense counsel),
7:11-22 (Petitioner), 21:21-22:16 (father), 26:3-11 (stipulation). See Commonwealth v. Treiber, 121 A.3d
435, 498 (Pa. 2015) (counsel is not ineffective for failing to call witnesses unless witnesses were available
and known, or should have been known, to counsel).
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Initially, we observe that bolstering evidence as to truthfulness is admissible “only
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after the witness's character for truthfulness has been attacked” and the record is devoid
of any such attack upon Petitioner. Merely “denying or contradicting” the defense theory
of the case, contra “assail\[ing\] the defendant’s community reputation for truthfulness
generally,” does not satisfy the Rule. Commonwealth v. Kennedy, 151 A.3d 1117, 1128
(Pa. Super. 2016). Turning to Petitioner’s reputation for non-violence, Attorney Matangos
declined to broach that subject for fear of opening the door to evidence of Petitioner’s
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criminal record and his preference for “rougher \[consensual\] sex.” As to the former, we
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note that two of Petitioner’s convictions, False Report and False Identification, were
already admissible – not in rebuttal of character evidence, but as crimen falsi per Pa.R.E.
609(a) – and so, in this respect, counsel’s concern was unfounded. As to the latter, it is
not clear that testimony concerning Petitioner’s sexual proclivities could have been
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admitted, nor, in the alternative, that Petitioner would have been meaningfully
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prejudiced by its admission.
6
Pa.R.E. 608(a).
7
N.T. Hearing, at 39:10.
8
18 Pa.C.S. §4906(a), Docket No. CP-21-CR-0000142-2010.
9
18 Pa.C.S. §4914(a), Docket No. CP-21-CR-0001223-2012.
10
This appears to be an issue of first impression in the Commonwealth. See, however, State v. Gaspar,
982 A.2d 140, 149 (R.I. 2009) (evidence of defendant’s penchant for “rough or aggressive \[consensual\]
sexual activity” inadmissible in sexual assault case as “very likely to confuse the jury and invite an emotional
response”).
11
Despite its potential for prejudice, this evidence could have served to demonstrate that superficially
violent aspects of Petitioner’s encounter with the victim were not, in fact, indicative of compulsion or non-
consent. Attorney Matangos appears to have considered such a strategy. N.T. Hearing, at 39:5-40:3.
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However, Petitioner’s several non-crimen-falsi convictions, especially the two of
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Possession with Intent to Deliver (“PWID”) and three of Driving under the influence
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(“DUI”), would have been rendered admissible by the adoption of the strategy forgone.
Where the Commonwealth cross-examines a character witness “regarding his knowledge
of particular acts of misconduct by the defendant to test the accuracy of his testimony and
the standard by which he measures reputation” Commonwealth v. Peterkin, 513 A.2d
373, 382-383 (Pa. 1986), the inquiry is not limited to acts relevant to the character trait
vouched for on direct examination. Commonwealth v. Jones, 636 A.2d 1184 (Pa. Super.
1994) (witnesses to defendant’s reputation for non-violence subject to cross-examination
as to defendant’s involvement in drug trade).
While Petitioner’s past crimes were non-violent and, indeed, “relatively minor” in
comparison to those with which he was charged in the case sub judice, we must disagree
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that such evidence necessarily “would have had little if any impact on a fact-finder.”
PWID is a felony offense, itself tending to evoke animus; while the DUIs may have spoken
to Petitioner’s drinking habits, thus corroborating the victim’s narrative in terms of the role
15
that she assigned to alcohol in the events of that evening. The weighing of such risks is
a subtle business, one lying within the realm of reasonable professional judgment, which
we find was exercised here by Attorney Matangos.
12
35 P.S. §780-113(a)(30), Docket Nos. CP-21-CR-0001646-2017 and CP-21-CR-0000973-2010.
13
75 Pa.C.S. §3802(B), (D)(3); Docket Nos. CP-21-CR-0002969-2009, CP-21-CR-0000142-2010, and CP-
21-CR-0000592-2010. N.B. Petitioner admitted to one conviction of DUI on direct examination. Proceedings
of Trial of October 31, 2017 to November 2, 2017 (hereinafter “N.T. Trial”), at 295:10.
14
Amended Petition, at 15.
15
E.G. “I felt like it was the alcohol that made him do what he did.” N.T. Trial, at 40:1-11.
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II. THE COMMONWEALTH’S OPENING STATEMENT
Petitioner next argues that defense counsel was ineffective for failing to address,
by objection or otherwise, an allegedly false statement made by the Commonwealth in its
opening: namely, that “\[Petitioner’s\] semen was present \[in one or several of the collected
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samples\].” The Commonwealth’s forensic DNA expert, Chelsie Weaver, testified that
Petitioner’s DNA was found only in the “non-sperm fraction” of a sample drawn from the
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victim’s external genitalia. Having carefully examined Weaver’s entire testimony, which
was not elaborated in the recent PCRA hearing, this layman in the field of forensic science
cannot say with confidence whether the “non-sperm fraction” was derived from semen or
from some other DNA-bearing material. The distinction between these categories is,
evidently, one of process, not substance, with the “non-sperm fraction” being whatever is
obtained from the first “laundering” of the sample, and the “sperm fraction” being the
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residuum of the second.
Assuming arguendo that the Commonwealth’s statement was factually untrue, so
as to lend arguable merit to Petitioner’s claim, and that Attorney Matangos lacked any
reasonable basis for failing to respond to that falsehood, it is plain that Petitioner suffered
no prejudice. He admitted to having sexual relations with the victim; indeed, that the
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encounter was consensual was the crux of his defense. Further, while Petitioner
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specifically – if immaterially – denied ejaculating, such that the Commonwealth’s
16
Id., at 20:10-11.
17
Id., at 212:6-10.
18
Id., at 209:3-9.
19
Id., at 322:1-323:13.
20
Id., at 327:12-13.
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assertion might be viewed as having had a discrediting effect, the victim herself
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corroborated Petitioner’s testimony on this topic. An unrebutted false statement, if such
there was here, speaking neither to any material fact nor to the credibility of any witness
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can work no prejudice.
III. THE VICTIM’S ALLEGED INFIDELITY
Petitioner next complains of counsel’s failure to explore the victim’s alleged
infidelity as a possible motive for fabricating the charges, presumably on the basis of the
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DNA evidence adduced at trial. The aforementioned expert witness, Chelsie Weaver,
testified that a sample drawn from the victim’s underwear contained DNA from one minor
and two major contributors; that the minor contributor was unidentifiable for lack of genetic
material; and that Petitioner could – while the victim could not – be excluded as a major
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contributor. Contrary to the theory now advanced by Petitioner, it does not follow from
this testimony that the victim had recently had sexual relations with someone other than
Petitioner and the victim’s then-boyfriend. We find nothing to suggest that the two
25
unidentified contributions were of sexual origin, nor was Petitioner excluded as the
minor contributor, that analysis being inconclusive.
21
Id., at 79:14-16.
22
Having thus resolved the issue on other grounds, we need not consider whether the Commonwealth’s
statement that Petitioner’s semen “was present” is a fair representation of Weaver’s testimony that the DNA
in question occurs in the general population at a frequency of 0.000104%, such that Petitioner “\[cannot\] be
excluded” as having contributed to the sample. Id., at 212:11-17.
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The Amended Petition cites no facts of record to support this theory, though, at the late hearing, Petitioner
interpreted the results discussed intra as indicating the presence of “two different semen samples.” N.T.
Hearing, at 8:8-24. Attorney Matangos found this evidence wanting, as well as inadmissible. Id., at 36:2-
19.
24
N.T. Trial, at 216:3-14.
25
These results refer to the “sperm fraction” of the sample drawn from the victim’s underwear. However,
as discussed supra, it appears that “fractions” are defined by the process of their collection, not by their
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Regardless, even if understood as providing limited support for a theory of infidelity
and fabrication, the evidence would have been inadmissible for that purpose under the
Rape Shield Law. 18 Pa.C.S. §3104. Commonwealth v. Berkowitz, 641 A.2d 1161, 1165
(Pa. 1994) (defense theory that victim was motivated to fabricate rape complaint by fear
of boyfriend’s reaction to infidelity “precisely the type of allegation regarding past sexual
conduct from which the Rape Shield Law is … designed to protect victims”), reversing in
relevant part Commonwealth v. Berkowitz, 609 A.2d 1338 (Pa. Super. 1992), relied upon
by Petitioner.
IV. THE WITNESSES’ INCONSISTENT STATEMENTS
Attorney Matangos is further charged with inadequate cross-examination of the
victim and her cousin, the Commonwealth’s only other direct witness, concerning
inconsistencies in their trial testimony, their oral and written police statements, the victim’s
statements to Nurse Gray, and certain text messages. However, the record indicates that
counsel made extensive and compelling use of these materials, demonstrating inter alia
(1) that the cousin, contradicting the victim’s testimony, did not recall hearing the victim
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screaming or crying out for help; (2) that the cousin, as she was departing the scene,
recalled speaking to Petitioner, contra the victim’s claim that Petitioner had already exited
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the basement apartment; (3) that the victim reported to Nurse Gray immediately
following the incident that Petitioner had performed cunnilingus, contra her testimony on
direct examination that “there was honestly no … play beforehand, it was just strictly
contents. Indeed, the presence in the “sperm fraction” of the female victim’s DNA is otherwise inexplicable.
We thus find nothing to suggest any particular origin for any of the contributions in question.
26
N.T. Trial, at 36:6-14 (victim), 123:4-124:6 (cousin).
27
Id., at 37:11-21, 79:17-25 (victim), 124:7-125:11 (cousin).
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sex;” (4) that the victim’s testimony that she and Petitioner had made plans to smoke
marijuana, but not drink, contradicted her police statement, which referenced only
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drinking; and (5) that the victim’s testimony that the group’s plans for smoking marijuana
never came to fruition was contradicted by the cousin’s police statement and was, as the
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victim admitted on cross-examination, untrue. On this record, and absent a specific
proffer as to which inconsistencies went unexamined and to what prejudicial effect, we
must conclude that Petitioner’s claim lacks arguable merit. Our experience is that when
a cross-examination is successful on a few matters, it is successful indeed.
V. THE COMMONWEALTH’S LATE PRODUCTION OF EVIDENCE
Petitioner claims penultimately that the Commonwealth violated its obligations
under Brady v. Maryland, 373 U.S. 83 (1963) by supplying the defense with certain text
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messages and a transcription of the cousin’s police interview only on the day of trial. It
is undisputed that the Commonwealth delayed in producing certain items, which, if not
duplicative of already available evidence, may well have been favorable to Petitioner
insofar as they served to undermine his accuser’s credibility. Commonwealth v. Haskins,
60 A.3d 538, 547 (Pa. Super. 2012) (Brady applicable to withholding of impeachment
evidence). However, counsel’s thorough cross-examination of the victim and her cousin,
discussed in detail supra, belies any – again unspecified – claim of prejudice. Despite
28
Id., at 36:2-5 (victim), 151:2-152:4 (Nurse Gray).
29
Id., at 27:24-28:5, 47:6-50:25; Commonwealth’s Exhibit 4.
30
Id., at 27:24-28:1, 57:19-61:9; Commonwealth’s Exhibit 5.
31
The record is somewhat opaque, but it appears that the “new material” consisted of text messages in
paper form that counsel had already obtained in electronic form, and a transcription of the cousin’s police
interview, the recording of which counsel had already viewed. N.T. Hearing, at 33:13-25. Elsewhere,
however, Attorney Matangos indicated that he received a recording (not a transcription) of the cousin’s
interview. Id., at 35:11-19. Finally, in his proffer, Petitioner refers only vaguely to “witness interviews and/or
written statements by victim and her cousin.” Amended Petition, at 2.
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Petitioner’s incredulity that counsel was “somehow able to review this new material before
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he cross-examined \[the Commonwealth’s witnesses\],” the record suggests that
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Attorney Matangos, an experienced member of our trial bar, who already possessed
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much if not all of the relevant evidence, did precisely that.
VI. THE RECORDED PHONE CALL
Finally, Petitioner finds error in counsel’s failure to seek the suppression of the
recording of a phone call between himself and the victim, to which only the victim
consented, and which, therefore – Petitioner asserts without supporting citation – was of
doubtful admissibility. We disagree. The legislature has provided unambiguously for the
lawful interception of electronic communications by or at the behest of a law enforcement
officer, where, as here, “one of the parties to the communication has given prior consent.”
18 Pa.C.S. §5704(2)(ii). Counsel, having investigated this matter and consulted with his
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colleagues, “did not see a way” to construct a non-frivolous argument for suppression.
Nor, do we.
VII. CONCLUSION
Even the best shortstop does not end a season, let alone a career, without making
a few errors. However, in life, as in baseball, those errors do not lead inevitably to defeat.
Petitioner has looked, in hindsight, for fatal errors and has fallen short. Attorney Matangos
took the field on Petitioner’s behalf, and although he did not earn Petitioner an acquittal,
he acquitted himself well on a field of nightmares created by the Petitioner’s actions. In
32
Id., at 17.
33
N.T. Hearing, at 27:8-25.
34
See footnote 31 supra.
35
N.T. Hearing, at 30:20-31:15.
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sum, we find not only that counsel had a reasonable basis for his actions, but also that
an outcome more favorable would not have been achieved regardless. Therefore, we
issue the following order.
ORDER OF COURT
AND NOW, this day of December, 2021, after hearing and careful review,
and for the reasons set forth in our accompanying Opinion, Petitioner’s Amended Post-
Conviction Relief Act Petition is DENIED.
By the Court,
Albert H. Masland, J.
Courtney E. Hair LaRue, Esquire
Office of the District Attorney
Allen C. Welch, Jr., Esquire
For the Petitioner
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COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
V. :
:
:
JOSHUA M. CULLEY : CP-21-CR-0311-2017
IN RE: AMENDED POST-CONVICTION RELIEF ACT PETITION
ORDER OF COURT
AND NOW, this day of December, 2021, after hearing and careful review,
and for the reasons set forth in our accompanying Opinion, Petitioner’s Amended Post-
Conviction Relief Act Petition is DENIED.
By the Court,
Albert H. Masland, J.
Courtney E. Hair LaRue, Esquire
Office of the District Attorney
Allen C. Welch, Jr., Esquire
For the Petitioner