HomeMy WebLinkAbout92-2047 CriminalCOMMONWEALTH
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~-:lrdEISISS JANE SHENK
~TN:i E073701-5
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CHARGES: (B) SIMPLE ASSAULT
(C) ENDANGERING WELFARE
OF CHILDREN
· NO. 2047 CRIMINAL 1992
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., August 11, 2000.
In this criminal case, Defendant was found guilty in 1993 following a non-
jury trial of simple assault and endangering the welfare of a child; a demurrer was
sustained with respect to a charge of aggravated assault.~ Defendant was
'sentenced to a term of imprisonment in the Cumberland County Prison of not less
than one-and-a-half months nor more than 23 months for the child endangerment
offense; the offense of simple assault was deemed to merge for sentencing
2
purposes.
A direct appeal was taken to the Pennsylvania Superior Court by
Defendant, resulting in an affirmance of the judgment of sentence on August 5,
1994.3 Defendant chose not to file a petition for allowance of appeal to the
Pennsylvania Supreme Court.4
~ See Order of Court, June 7, 1993.
2 See Order of Court, February 15, 1994.
3 See Order of Court, August 5, 1994, No. 102 Harrisburg 1994 (Pennsylvania
Superior Ct.).
4 See Order of Court, August 23, 1994..
On August 23, 1994, Defendant commenced service of the term of
imprisonment,5 and she was paroled with supervision on September 30, 1994.6
Her supervision ',vas terminated effective August 18, 1995.7 Her parole expired on
July 22, 1996.8 ~ '? .... '
On December 13, 1999, Defendant filed a petition under the Post
Conviction Relief Act (PCRA).9 The bases for relief vqere "Ineffective Counsel"
and "Prosecutorial Misconduct?° Relief requested was "Overturnifig the Origina!
Ruling on this Case for Just Cause" or "an Evidentiary Hearing [resulting in] the
Overturning of this Case Decision, and a Finding of Innocence ... on the Record
concerning this matter."l l
Following a hearing held on April 20, 2000, Defendant's petition ~vas
denied.12 FroTM this denial, Defendant has filed an appeal to the Pennsylvania
Superior Court.~3
The grounds for the appeal are (1) that the court erred in permitting
Defendant's court-appointed attorney on the PCRA petition to withdraw following
s SeeM.
6 See Order of Court, September 19, 1994.
7 See Order of Court, August 21, 1995.
8 In Cumberland County, where an appeal is filed from a judgment of sentence and
a defendant, sentenced to a prison term, remains on bail during the pendency of
the appeal, the maximum date of the sentence is computed from his or her
commencement of service of the prison term.
9 Defendant's Petition for Post Conviction Relief, filed December 13, 1999; see
Act of May 13, 1982, P.L. 417, as amended, 42 Pa. C.S. {}9541 etseq.
t0 Defendant's Petition for Post Conviction Relief, filed December 13, 1999, at 3,
7.
~ ~ Id. at9.
~2 Order of Court, April 26, 2000.
2
his submission of a no-merit letter regarding her petition,~4 (2) that the court erred
in failing to accede to Defendant's attempts to obtain certain files, such as the
district attorney's "work product file,''~5 and .(3) that certain procedural
impediments to granting a petition under the Post Conv. iction Relief ~ct '3id not''
apply to Defendant, because, "[a]s explained to the Court at time of Hearing, the
Former [Post Conviction Hearing Act (PCHA)]Statute'has not been Effectively
Repealed.''~6 This opinion, in support of the court's order denYin'g Defendant's
petition under the Post Conviction Relief Act, is written pursuant to Pennsylvania.
Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
This case arises out of an episode on August 24, 1992, in which Defendant
allegedly slapped, grabbed, shoved into a ~vall, kicked, bit and stomped upon her
12-year-old daughter, Melissa.~? She was found guilty, as noted above, of
endangering the welfare of a child and simple assault. The evidence presented at
the 1993 trial may be summarized as follows:
On Monday, August 24, 1992, Defendant lived at 226 Reno Avenue, New
Cumberland, Cumberland County, Pennsylvania, xvith her husband (Melissa's
stepfather), an 18- or 19-year-old daughter (Melissa's sister),~8 a 17- or 18-year-
old son (Melissa's brother),19 and a four-year-old step-granddaughter.2° On the
t3 Notice of Appeal, filed March 24, 2000.
~4 Defendant's Matters Complained off (per Rule 1925(b)), filed June 13, 2000, at
1-2.
~5Id. at 2-3.
~6 Id. at3.
~7 NT 22-31, Trial, Commonwealth v. Shenk, No. 2047 Criminal Term 1992 (June
7, 1993) (hereinafter Trial NT
~8 Trial NT 24, 48.
~9 Id. at 24, 36, 48.
o
3
afternoon of that day, Melissa was in the third-floor bedroom vacuuming when
Defendant became upset with her because the vacuum cleaner was not "picking
up.''21 Melissa testified that Defendant slapped her and "grabbed behind my neck
and held my arm and put my head down towards the carpet and told me t:6:l'ick it'
up or pick it up [referring to the dirt on the floor].''22 Defendant's son, who was
present in the room at the time, also testified that he obServed-Defendant "smack"
Melissa on the back of the head and push her head toward the fl~or.23 Melissa
further testified that Defendant bit her on the back of the arm.24
Melissa stated that Defendant shoved her against the xvall and held her there
with one hand on her neck and one hand on her hair? This testimony was
corroborated by the son, who testified that he saw Defendant "pick her [up] by the
neck and push her against the wall.''26 He stated that he heard the back of
Melissa's head hit the xvall.27 In addition, Melissa testified that at some point
during the occurrence in the third-floor bedroom Defendant kicked her in the
stomach? Again, this was corroborated by the testimony of the son.29
20 Id. at 48-49.
21 Id. at 25-26.
22 Id. at 27, 29.
23 Trial N.T. 39.
24 ./d. at 29.
25 Id. at 29-30.
26Id. at 39.
27Id. at41.
2~ Trial N.T. 32.
29 Id. at 39-40.
4
Melissa also testified that, after the events in the bedroom transpired, she
proceeded downstairs and was followed by Defendant? Once downstairs,
Defendant stomped on Melissa's foot, according to the victim.3~ The son testified
that he had attempted to intervene during the episode, that Melissa had-hot'"~$Ught ''~'
back, and that their mother had "beat" her before? Melissa referred to the
episode as one in which she was "hurt.''33
Defendant's testimony was that during the episode in question she grabbed.
her daughter by the back of the arms and "tossed" her on the bed, slapped her and
grabbed her by the back of the neck ~vhile she was sitting on the bed? Defendant
denied forcing Melissa's head to the floor and saying "lick it up or pick it up"; she
also denied that she had kicked, bitten, or grabbed her daughter by the throat?
Defendant conceded that Melissa was "very diminutive," and estimated the
difference in weight between herself and her daughter at about 80 pounds?
Defendant testified that she had the flu on this occasion,37 that her daughter was
not vacuuming efficiently,38 and that she "wanted to get her attention.''39
The following day, Melissa was taken to the emergency department at Holy
Spirit Hospital by her biological father and was examined by Salvatore N. Alfano,
30 Id. at 30.
3 i ld. at31.
32 Id. at 40-42.
33 Trial N.T. 26.
34 Id. at 52, 61.
35Id. at61.
36 Id. at 63.
371d. at47.
38 Trial N.T. 52.
39 .Id. at 53.
M.D., a board-certified emergency physician.4° Melissa informed Dr. Alfano that
Defendant had pushed her to the ground, pushed her into wall, "[run] over her foot
with a vacuum cleaner, ... kicked her[,] and bit[ten] her in the arm.''41 Following
an examination, Dr. Alfano wrote that "these wounds do seem compatil~ie ~i't'h the ':'
history that ~vas said by the patient.''42 Additionally, the Commonwealth offered
as exhibits Melissa's medical records from Holy Spirit I~Iospit~/1; xvhich contained
photographs of her injuries.43 Although some of the bruises were not readily
apparent on the photographs, Dr. Alfano testified as to their visibility at the.
physical examination.44
Dr. Alfano testified that the force required to cause bruises of the nature of
those that were present on Melissa xvould involve a fairly significant impact, more
than just a casual bump of the sort one ~vould get by walking into something?
Additionally, Dr. Alfano testified that the bruises were not in locations one would
expect for the types of injuries suffered in the pursuit of normal daily activities.46
As to the bite mark which appeared on the back of Melissa's arm, Dr. Alfano
testified "it would be difficult for someone to do it to themselves because it's on
the back part of the arm and you really can't get that close enough to your teeth??
40 Id. at 5-6.
4~Id. at 10.
42!d. at 12.
43 See Commonwealth's Exhibits 1 and 2, Trial, Commonwealth v. Shenk, No.
2047 Criminal Term 1992 (June 7, 1993).
44 Trial N.T. 19.
45Id. at 16.
46j[d. at 17.
47Id. at 17.
At the conclusion of the non-jury trial, Defendant was found guilty of
simple assault and endangering the welfare of a child; a demurrer ',vas sustained as
to the charge of aggravated assault.48 Defendant then filed post-trial motions
requesting an arrest of judgment or, in the alternative, a new trial.4° -De~hdant'!'
contended that the evidence at trial had been insufficient to show that the victim
suffered bodily injury?
The court denied Defendant's post-trial motions on October ~, 1993fi~ She
was sentenced on February 15, 1994.52 Defendant filed a direct appeal to the
Pennsylvania Superior Court, resulting in an affirmance of the judgment of
sentence on August 5, 1995.53
As noted above, Defendant chose not to file a petition for allowance of
appeal to the Pennsylvania Supreme Court. On August 23, 1994, she commenced
service of the term of imprisonment previously imposed. Defendant was paroled
~vith supervision on September 30, 1994, and her supervision was terminated
effective August 18, 1995. Defendant's parole expired on July 22, 1996.54
48 See Order of Court, June 7, 1993.
49 See Defendant's Post-Trial Motions, para. 4; Defendant's brief in support of
post-trial motions. This case preceded adoption of the post-sentence motion
procedure presently in effect in Pennsylvania criminal cases. See Pa. R. Crim. P.
1410.
50 Defendant's brief in support of post-trial motions.
51 See Order of Court, October 6, 1993.
52 See Order of Court, February 15, 1994.
53 See Order of Court, August 5, 1994, No. 102 Harrisburg 1994 (Pennsylvania
Superior Ct.).
54 See Notes 5-8 supra and accompanying text.
7
On December 13, 1999, Defendant filed the petition for post-conviction
relief xvhich is the subject of this opinion? The court appointed an attorney to
represent her free of charge on the petition on December 16, 1999.56
Defendant's petition, which consisted of an eight-page narrative wit'h'seven'
attachments, stated that "I am finally compelled to force the premise of ,Justice
Delayed, is Justice Denied' to the Court's attention to this m~/tt'er.''57 In a section
of the petition entitled "Ineffective Counsel," Defendant alleged that her tri~/1
counsel "[flailed to assert and/or employ ... a strategy of Defense for the.
Defendant ...."58
Among the transgressions of counsel, according to Defendant, were
counsel's failure to introduce at trial an affidavit from the victim's ballet teacher
prepared two months after the episode to the effect that dancing irritated the
child's feet,59 a medical record showing that Defendant had strep throat a day after
the episode,6° and a medical record sho~ving that the victim had developed calluses
on her large toes prior to the episode.61 Other lapses attributed to counsel included
the failure to call Defendant's former husband (the child's biological father) as a
witness, whereby "his true motives" could have been revealed,62 the failure to call
the affiant in the case as a defense witness to bring out the "impossibilities
55 Defendant's Petition for Post Conviction Relief, filed December 13, 1999.
56 See Order of Court, December 16, 1999.
57 Defendant's Petition for Post Conviction Relief, filed December 13, 1999, at 2.
58 Id. at 3.
59Id'
60 Id.
61id'
62 Defendant's Petition for Post Conviction Relief, filed December 13, 1999, at 3.
8
concerning actions averred and the Reality of outcome,''63 and the failure to
vigorously pursue Defendant's direct appeal because of counsel's realization that
the prosecutor had "'pulled a fast one' ... by use of deception, fraud, and general
Prosecutorial Misconduct in manifesting his approach to ~'winning the ~se''?;;6q ?
In a section of the petition entitled "Prosecutorial Misconduct," Defendant
alleged, inter alia, that the prosecutor had refrained 'from'~'alling her former
husband and a children's services caseworker as witnesses becaUse he knew they
would not do well on cross-examination,65 that he introduced copies rather than~
originals of photographs of the victim,66 that he tampered ~vith a witness (the
victim) by having Defendant's former husband (the child's biological father) in
the courtroom during her testimony,67 and that he attempted to suborn perjury "by
interrupting ... [a] truthful response [by Defendant's son] to the Question 'Is your
sister with you?' (at the residence).''68 The victim was, at the time of trial
according to Defendant, residing on a temporary basis at a mental health facility.69
On January 31, 2000, Defendant's attorney submitted a no-merit letter to
the court, requesting leave to xvithdraw. The letter read as follows:
On December 16, 1999, you appointed me to represent the
above defendant in regard to her Post Conviction Relief Act
Petition. Since that time, I have had an opportunity to review
the petition and have had extensive telephone conversations
and written correspondence with my client. However, my
review of the circumstances surrounding this matter leads me
63/rd. at 4-5.
64 ]'d. at 5.
65 Id. at 7.
66 }~d.
67 Defendant's Petition for Post Conviction Relief, filed December 13, 1999, at 8.
68 Id.
69 Id. at 7.
9
to the conclusion that this Court does not have jurisdiction to
grant the relief requested by Ms. Shenk.
The record indicates that Ms. Shenk was sentenced o_n:
February 15, 1994, to serve a term of incarceration of not less
than one and one half months to six months (sic)? Ms.
Shenk acknowledges in her petition that the minimum
sentence has already been served and the record reflects that
she is no longer serving this sentence of imprisonment,
probation or parole since August 22, 1995. This Court
therefore cannot grant relief as 42 Pa. C.S. §9543(a)(1)(i)
requires that the petitioner prove that she is currently serving
a sentence of imprisonment, probation or parole for the crime.
As she is not awaiting execution of a sentence of death or is
not serving any other sentence which must expire before she
can commence serving the sentence, this Court would no
longer have jurisdiction to grant her relief. The Pennsylvania
Supreme Court agrees with this conclusion in Commonwealth
v. Ahlborn, 548 Pa. 544, 699 A.2d 718 (1997).
The petition further indicates that a direct appeal was
taken to the Superior Court. The Superior Court denied the
appeal on August 5, 1994 and therefore the judgment of
sentence became final on September 4, 1994. Under the
statute, 42 Pa. C.S. §9545(b)(1) requires that the petition be
filed within one year of the date the judgment becomes final.
I have reviewed the exceptions set forth in the statute with
Ms. Shenk and have determined that none of them apply.
This Court therefore would not have jurisdiction to grant
relief.
As it was clear to me that this Court would not have
jurisdiction to grant relief in this matter, I am not in a position
to determine the underlined (sic) merits of the case-in-chief.
It is my understanding that Ms. Shenk desires to proceed with
this matter. To that extent, I would be willing to serve as
stand-by counsel to assist her in the presentation of her
claims. She is also aware that she may dismiss the petition on
her own or retain private counsel to present her petition.
70 Defendant's petition erroneously indicated that her maximum sentence had been
six months rather than 23 months.
10
Therefore, pursuant to Commonwealth v. Turner, 518 Pa. 491,
544 A.2d 927 (1988), I request that you grant me leave to
withdraw as counsel for the petition (sic) and assign me as
stand-by counsel.TM __
In response to the no-merit letter, the court issued a rule upon Defendant to
show cause why her attorney should not be permitted to with.dyaw.72 Defendant
responded with a letter opposing the request to withdraw, noting her impressio.n..
that the attorney "revealed his discomfort with or an inability to discern
Jurisdiction for the case presented," and stating that she had offered to research the'
law for him.73 By order of court dated February 16, 2000, the attorney's request to
withdraw was granted, and he was appointed stand-by counsel?
Defendant then sent a letter to the court dated February 21, 2000, entitled
Objection to Withdrawal of James K. Jones as Counsel and Request to Emend the
Petition. With respect to the issue of withdrawal of counsel, Defendant asserted
that she was "being forced to proceed without Legal Expertise" and stated that
"this is also Not a Case of Unusual Circumstance!''75 With respect to her
request to amend "the Petition," the court was not able to discern from the docket
entries what petition was being referred to; Defendant's letter on this subject
continued as follows:
With respect to the "requests of Court" in the previously
submitted Petition (concerning the issuance of Subpoenas for
the necessary Evidence, by the Court) Petitioner asks the
Court's permission to Emend that Petition, by changing
the Status of Procuring those items and files necessary for the
resolution of this matter, from: requested action by the
71 No-Merit Letter, January 31, 2000 (James K. Jones, Esq.).
72 Order of Court, February 3, 2000.
73 Letter, dated February 7, 2000.
74 Order of Court, February 16, 2000.
75 Letter, dated February 21, 2000.
11
Court to issue the necessary Subpoenas, to: be vested in the
Petitioner's action by service of Subpoenas (Duces Tecum)
with the Court's Authority?
On March 15, 2000, Defendant filed a document entitled ~CCoh'~lnued":
Petition in Objection to Withdrawal for Cause," reiterating her objection to the
withdrawal of counsel and requesting "that the Court reply' to [Defendant's]
previous Request for Court Orders concerning Subpoenas for NeceSsary Evidence
in expectation of her upcoming Hearing on the PCRA Petition.''77 In response to
this document, the court issued an order denying reconsideration of its ruling on
the issue of withdrawal of counsel and advising Defendant to obtain subpoenas
from the clerk of courts in accordance with the usual practice,va
On March 28, 2000, Defendant filed a Petition for Appointment of New
Counsel, requesting that "New Counsel be appointed so the Merits of the subject
PCRA Petition may rightfully be established and reviewed by the Court prior to
Hearing.''79 This petition was denied,a°
Also on March 28, 2000, Defendant filed a document entitled "Request for
an Order of Court To Obtain Documentation from Medical Records." This
document requested "an Order of Court to procure Documentation in Evidence for
illumination at the PCRA Petition Hearing";8~ specifically, it sought details from
the victim's mental health records with respect to a day pass xvhich purportedly
?6/d'
77 Defendant's Continued Petition in Objection to Withdrawal for Cause.., filed
March 15, 2000.
?a Order of Court, March 16, 2000.
79 Defendant's Petition for Appointment of New Counsel, filed March 28, 2000.
a0 Order of Court, March 29, 2000.
al Defendant's Request for an Order of Court To Obtain Documentation from
Medical Records, filed March 28, 2000.
12
facilitated the victim's attendance at Defendant's trialfi2 This request was
deniedfi3
The court then began receiving motions from third parties in r_~sponse to
subpoenas which Defendant was serving upon them. A motion to qu~h filed by'
the District Attorney's Office related that it had been served with subpoenas
directing the production of "all case files and work product concerning the above-
referenced petitioner and case by the Office of the District Atto'rney and Tom
Placey, Esquire [the assistant district attorney who had prosecuted De£endant's.
case] .,,84
A motion to quash filed by the Cumberland County Children and Youth
Services (CCC&YS) attached a subpoena directing it to produce "[t]he complete
files" relating to the juvenile victim; the subpoena also directed the agency to
contact the attorney who had withdrawn from the case for information regarding
the subpoena.85 The agency's motion to quash related that, "[o]ver many years of
juvenile proceedings, Melissa Shenk has made similar requests of the juvenile
court, and these have all been denied," that the juvenile in question had reached
the age of majority and had not consented to the release of her file, and that such
records were subject to statutory confidentiality provisions?
A motion to quash and for a protective order filed by the Hershey Medical
Center attached two subpoenas directing it to produce mental health records of the
victim relating to her period of inpatient treatment at the hospital and to the
82 Id.
83 Order of Court, March 29, 2000.
84 Commonwealth's Motion To Quash Subpoenas, filed April 11, 2000.
85 CCC&YS Motion To Quash Subpoena for Juvenile File, filed April 7, 2000.
86Id. at 1-3.
13
aforesaid day pass? Both subpoenas directed the institution to contact the
attorney who had withdrawn from the case for information regarding them.aa Both
contained the representation that THE COURT OF CUMBERLAND _C_OUNTY,
PA (Judge J. Wesley Oler, Jr.) HAS DETERMINED THAT AN Oi~DI~' OF"'
COURT FOR THE SPECIFIED INFORMATION REQUIRED BY THIS
SUBPOENA IS NOT NECESSARY? One subi~oena"ttirected that the
information be brought to the office of the former attorney.9° -.
This motion to quash noted that the former attorney in question had advised.
the medical center that he had not authorized the issuance of the subpoenas; the
motion also noted that the record did not support the representation in the
subpoenas that the court had already ruled upon their enforceability.91 The motion
pointed out that the victim's mental health records were subject to confidentiality
provisions of the Mental Health Procedures Act.92
The court granted the motions to quash filed by the said third parties?
However, it declined to grant a request for a protective order to preclude
Defendant's service of any future subpoenas upon the medical center?
87 Motion To Quash/Motion for a Protective Order Regarding Subpoenas Served
upon the Milton S. Hershey Medical Center of the Pennsylvania University
Pertaining to Mental Health Records, filed April 19, 2000.
aa Id., Exhibit A.
a9 Id.
90 Id.
9~ Motion To Quash/Motion for a Protective Order Regarding Subpoenas Served
upon the Milton S. Hershey Medical Center of the Pennsylvania University
Pertaining to Mental Health Records, filed April 19, 2000, at 2.
92 Id. at 2.
93 Order of Court, April 11, 2000 (motion of District Attorney); Order of Court,
April 11, 2000 (motion of Cumberland County Children and Youth Services);
Order of Court, April 19, 2000 (motion of Hershey Medical Center).
14
Defendant then filed a document entitled "Objection to Motion To Quash
Subpoena by Cumberland County District Attorney.''95 Without particulars, this
document accused the Commonwealth of having perpetrated a "crime" against
Defendant and implied that the files subpoenaed from the district attorney W'ould
reveal the offense.96 The court issued an order (a) construing the document as a
motion to reconsider the order quashing the subpoenas 'upon th'e district attorney
and (b) denying the request for reconsideration?
A hearing on Defendant's Post Conviction Relief Act petition was held on
April 20, 2000. At the hearing, Defendant's former attorney served in the capacity
of standby counsel?
At the commencement of the hearing, the Commonwealth argued that
Defendant's petition was unsustainable under the Post Conviction Relief Act,
because it had not been filed within the one-year period specified in the act and
because the consequences of a conviction necessary to support such a petition had
long since terminated? On these procedural points, Defendant's position was
expressed, in part, as follows:
This is not a case that comes underneath the umbrella of
the reason why the legislature produced the enhancement
clause, which is effectively a recidivist clause, and my
knowledge is limited, Your Honor, but I have traced back to
the Sheehan case, which the Ahlborn court did note in their
discrepancy and in the majority. Now in the Sheehan case--
94 See Order of Court, April 19, 2000.
9s Defendant's Objection to Motion To Quash Subpoena by Cumberland County
District Attorney, filed April 19, 2000.
96 I'd. at 2.
97 Order of Court, April 20, 2000.
98 N.T. 3, PCRA Hearing, April 20, 2000 (hereinafter PCRA N.T. ).
99 PCRA N.T. 6-7.
15
THE COURT: What enhancement clause are you
referring to?
MS. SHENK: The enhancement clause that makes thi_s_
not a PCHA but a PCRA, and it does not constitute t156
implied repeal of the PCHA because those components still
are in force. And because of the drunken driving, the DUI,
and the score system in our court System, and it:s-a .good
thing, I believe one of the judges in their opinion in Ahlborn
expressed that, if you keep on doing the same thing over and
over again, you have not learned your lesson.
This does not constitute a recidivist case or petition. I
have not been condemned, convicted of any other crimes,
Your Honor. This is strictly a matter of clearing up a wrong
that must be righted xvhere my constitutional rights were
abridged due process, fair trial.l°°
In the evidentiary phase of the hearing on Defendant's petition, three
witnesses were called on behalf of Defendant; none was called on behalf of the
Commonwealth. The prosecuting attorney at Defendant's trial testified that his
office had not issued a day pass in connection with the victim's appearance at the
trial, that he had no recollection on the subject of a day pass in connection with the
case, that the district attorney's file contained no reference to a day pass, that the
subpoena for the victim's appearance at trial indicated her address to be on Good
Hope Road in Cumberland County, and that he had not been aware of where she
was actually staying at the time of trial.~°~
The assistant district attorney testified further that he had not been provided
with originals of photographs of the victim which were taken at a hospital that she
went to after the incident, that he had never seen the originals, that he could have
subpoenaed the originals had he wished to, and that he had been satisfied to use
copies of the photographs at trial because a reliable eyewitness description of the
~oo Id. at 5-6.
1Ol Id. at 10, 13-14.
16
injuries ~vas available through testimony of the victim's treating physician.~°2 In
this regard, he noted that "[p]hotographs are two-dimensional. They don't
necessarily depict what the human eye can see, especially the train__ed human
eye.,,103 - _
Defendant's trial counsel testified that she felt that the copies, of
photographs introduced by the Commonwealth at trihl tended to weaken the
Commonwealth's case in that they failed to document the Commonwealth'g
position that the victim sustained visible injuries.~°4 She replied, "Oh, I certainly.
do," when asked by Defendant xvhether she recalled that Defendant had been
dissatisfied with her representation. "You were dissatisfied from the beginning,
Ms. Shenk," she said.~°s
Defendant's trial counsel read into the record, at Defendant's request, a
letter dated February 14, 1994, which was apparently sent to the court by
Defendant prior to her sentence, advising that Defendant had "self initiated
psychotherapy," was enrolled in a "certificate program" at Penn State, and xvas
maintaining a 3.75 average.~°6 The letter expressed the view that her trial counsel
had been too busy to perform adequately, that the prosecutor had been guilty of
misconduct and that she would be vindicated on appeal.~°7 Defendant concluded
by asking that the sentencing court not "take my family, my freedom, and my
future away from me.''~°8
~°2Id. at 16-24.
~°3Id. at 18.
~04 PCRA N.T. 30.
los Id. at 33.
~06 Id. at 32-33.
107 Id.
~0s Id. at 33.
17
Defendant's trial counsel testified that she was very familiar with
incompetency on the part of witnesses through her experience as an attorney.~°9
She stated that she had observed the victim as a witness at both the'preliminary
hearing and trial,i~° and that the child's testimony had .been articulate, cbherent,
sensible, responsive to questions asked, persuasive and devoid of indicia of
incompetency. ~ ~ ~ -'~
Finally, Defendant testified at the hearing on her own behalf. She stated
that she regarded the Commonwealth's use of copies of the photographs of the
victim at trial instead of the originals as a willful and malicious act designed to
deprive the trier of fact of the best evidence available on the subject of injuries to
the child.~2 She also stated that the letter she had written to the court in
anticipation of sentencing in 1994 should have been regarded as a petition under
the Post Conviction ReliefAct.~3
At the conclusion of the hearing, the court took the matter under
advisement.TM The following order, from which Defendant has appealed, ~vas
thereafter entered:
AND NOW, this 26th day of April, 2000, upon
consideration of Defendant's Petition under the Post
Conviction Relief Act, and following a hearing held on April
20, 2000, the petition is denied.
~09 PCRA N.T. 37.
ilo Id. at 35-37.
~ Id. at 45.
~2 Id. at 48-49.
~3 Id. at 50.
~4 Order of Court, April 20, 2000.
18
DISCUSSION
Prerequisites.for Petition under Post Conviction Relief Act
Time for filing. Under the Post Conviction Relief Act, with a few
exceptions, a petition for relief must be filed within one year of thee d~i-~e the.:.
judgment becomes final. See Act of May 13, 1982, P.L. 417, {}2, as amended, 42
Pa. C.S. {}9545(b)(1). Section 3(1) of the Act of Nove/nber 1-7; 1995, P.L. 1118,
provides that a petitioner whose judgment of sentence became final on or before
the effective date of the act is to be deemed to have filed a timely petition if his or
her first petition is filed within one year after the effective date of the act. A
judgment of sentence becomes final, for purposes of the act, "at the conclusion of
direct review, including discretionary review in the Supreme Court of the United
States and the Supreme Court of Pennsylvania, or at the expiration of time for
seeking the review." Act of May 13, 1982, P.L. 417, {}2, as amended, 42 Pa. C.S.
{}9545(b)(1).
In the present case, Defendant's judgment of sentence became final in
1994; Defendant's petition under the Post Conviction Relief Act, presented on
December 13, 1999, was not filed within one year of finality, nor within one year
of the effective date referred to above; nor did the record support a conclusion that
an exception to the general rule as to time for filing was applicable to Defendant's
petition.~5 For these reasons, the court was in agreement with the
Commonwealth's position that Defendant was not entitled to relief under the Post
Conviction Relief Act due to the untimeliness of the filing.
Continued existence of consequences of conviction. Under the Post
Conviction Relief Act, as a general rule eligibility for relief is dependent upon
!15 Defendant's contention that her 1994 letter to the court regarding sentencing
should be construed as a petition under the Post Conviction Relief Act, even if
accepted as correct, did not seem to the court to lead to a conclusion that the
present petition should be regarded as timely. Any such petition prior to
sentencing would have itself been untimely, in the sense of being premature. See
Commonwealth v. O'Neill, 393 Pa. Super. 111,573 A.2d 1112 (1990).
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proof that the petitioner "is at the time relief is granted ... (i) currently serving a
sentence of imprisonment, probation or parole ...[,] (ii)' awaiting execution of a
sentence of death ...[,] or (iii) serving a sentence which must expire before the
person may commence serving the disputed sentence." Act of May 13, 1982, P.L.
417, {}2, as amended, 42 Pa. C.S. §9543(a)(1). No such status had applied to
Defendant for a number of years, and the court did not p~rceive' a compelling basis
for deviation from the general rule in the case. For this reason, the 'court was also
in agreement with the Commonwealth's position that Defendant was not entitled.
to relief under the Post Conviction Relief Act due to the absence of the requisite
continuing consequences.
Pre-hearing Rulings of Court
Withdrawal of court-appointed cozmsel. The Pennsylvania Supreme Court
has sanctioned the withdrawal of court-appointed counsel, upon approval of the
court, on the basis of a no-merit letter in a Post Conviction Hearing Act case.
Commonwealth v. Tttrner, 518 Pa. 491,544 A.2d 927 (1988). In sanctioning such
a withdrawal, the Court emphasized that in Pennsylvania a process less
cumbersome than that provided for in Anders v. California, 386 U.S. 738, 87 S.
Ct. 1396, 18 L. Ed. 2d 493 (1967),.was acceptable in cases involving a collateral
attack on a criminal conviction. Tztrner, 518 Pa. at 495, 544 A.2d at 928-29.
"When, in the exercise of his professional judgment," the Court in Tztrner held,
"counsel determines that the issues raised under the PCHA are meritless, and
when the PCHA court concurs, counsel will be permitted to withdraw and the
petitioner may proceed pro se, or by privately retained counsel, or not at all." Id.
at 495,544 A.2d at 928-29.
Furthermore, the Pennsylvania Superior Court has elaborated upon the
requisites for withdrawal of counsel in a Post Conviction Relief Act case, in terms
of disclosure of the nature and extent of review by counsel, the issues which
petitioner wished to advance, and the basis for counsel's conclusion that relief
could not be granted, and in terms of an independent review of the record by the
20
court and its concurrence with the analysis of counsel. Commonwealth v.
Mosteller, 430 Pa. Super. 57, 633 A.2d 615 (1993).
In the present case, Defendant's extensive petition described in detail the
inadequacy of her trial counsel's representation and the miscon~l~ct:~;t}f the':
prosecutor; her positions with regard to these issues, whether sustainable or not,
were not in question. The no-merit letter of Defeni:tant's"attorney, however,
represented that he had reviewed the petition, and had had extensive telephone
conversations and written correspondence with Defendant, and that he had
concluded that relief could not be afforded to her for the reasons stated in the first
section of this Discussion. For the reasons stated in that section, this conclusion
was in accordance with the court's own review of the record and analysis.
The process employed, in the court's view, comported with the
requirements for withdrawal of counsel in a case where the petitioner's conviction
was being attacked collaterally. In permitting the withdrawal, it may be noted, the
court afforded Defendant the attorney's services as standby counsel - a degree of
protection not mandated by Turner.
Rulings on motions to quash sUbpoenas. Discovery in Post Conviction
Relief Act cases is, as a general rule, not permitted. Act of May 13, 1982, P.L.
417, {}2, as amended, 41 Pa. C.S. {}9545(d)(2). In addition, the Mental Health
Procedures Act and the Child Protective Services Law both contain strict
confidentiality provisions which are based upon obvious reasons of public policy.
See Act of July 9, 1976, P.L. 817, {}111, as amended, 50 P.S. §7111 (2000 Supp.);
Act of December 19, 1990, P.L. 1240, {}2, as amended, 23 Pa. C.S. {}6339 (2000
Supp.).
In the present case, the court was of the view, based upon the facts recited
previously, that Defendant's use of the subpoena process to obtain information
from the district attorney's office concerning its work product, documents from
the mental health institution where the victim was allegedly receiving inpatient
treatment during trial concerning the duration of her treatment and the issuance of
21
a "day pass," and the victim's entire file from the county's children's services
agency was not proper. The subpoenas were variously instruments of
discovery,~ 16 overly broad, of no consequence to the case, misleading as to source,
and/or misleading as to pre-approval by the court; they did not, in the court"i-view,"
warrant a breach of the general rules of nondisclosure applicable to them.
Ineffective Assistance of Counsel and Prosecutbrial Misconduct
Ineffective assistance of counsel. "It is by now axiomatic that a defendant
in a criminal case is entitled to effective representation at trial." Commonwealth v..
Collins, 519 Pa. 58, 63, 545 A.2d 882, 885 (1988). With respect to a claim of
ineffective assistance, however, "Pennsylvania courts presume that an accused's
counsel is effective and place the burden of proving ineffectiveness on the
convicted defendant." Packel & Poulin, Pennsylvania Evidence, 148 (2d ed.
1998).
The Pennsylvania Supreme Court has stated a general rule for the analysis
of a claim of ineffective assistance of counsel:
The petitioner must ... show, by a preponderance of the
evidence, 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. This requires the
petitioner to show: (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.
Commonwealth v. Kimball, 555 Pa. 299, ,724 A.2d 326, 333 (1999). It has
often been stated that a "defendant is not entitled to and cannot realistically expect
to receive a perfect trial but only a fair trial." Commonwealth v. Todt, 318 Pa.
Super. 55, 69, 464 A.2d 1226, 1233 (1983).
~16 As noted previously in the text, at least one of the subpoenas directed the
recipient to bring documents to the office of Defendant's former counsel.
22
In the present case, the court found the testimony of Defendant's trial
counsel to have been entirely credible. The only claim of arguable merit as to
ineffectiveness which the court ~vas able to perceive from the evidence at the
hearing was that counsel should have objected to the Commonwealth's"~e of':'
copies of photographs of the victim when originals of the photographs existed.
However, counsel's decision not to exclude evidence 'gttbmitted by the
Commonwealth which failed to support its position constitUted a reasonable
choice of strategy. Furthermore, the exclusion of the photographs, had an.
objection to their admission been successful, would have had no effect on the
outcome of the trial.
Prosecutorial misconduct. With respect to alleged prosecutorial
misconduct, the court found the testimony of the assistant district attorney who
had prosecuted Defendant's case also entirely credible. The court xvas unable to
perceive any basis for a finding of misconduct on his part. In addition, the factual
matters which Defendant apparently believes would have been decisive on the
subject of her guilt or innocence - e.g., whether the victim was a patient at the
time of trial and whether original photographs of the victim, like copies introduced
at trial, would have failed to demonstrate visible injuries - ~vere simply not of the
significance which she ascribes to them, in light of all the evidence in the case.
For the foregoing reasons, and without in any way questioning the sincerity
of Defendant's belief that a just result did not obtain in her trial, the court denied
Defendant's petition under the Post Conviction Relief Act.
BY THE COURT,
23
Jaime Keating, Esq.
Chief Deputy District Attorney
Melissa J. Shenk
226 Reno Avenue
New Cumberland, PA 17070
Defendant, Pro Se
James K. Jones, Esq.
7 Irvine Row
Carlisle, PA 17013
Stand-by Counsel
:rc
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