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HomeMy WebLinkAbout92-2120 CriminalCOMMONWEALTH Ve VIRGINIA LEE WILKINSON OTN: E002122-1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 92-2120 CRIMINAL TERM CHARGE: (A) INVOLUNTARY DEVIATE SEXUAL INTERCOURSE (B) INDECENT ASSAULT IN RE: POST CONVICTION RELIEF ACT PETITION BEFORE OLER, J. ORDER OF COURT AND NOW, this ~ day of June, 1997, upon consideration of Defendant's amended petition under the Post Conviction Relief Act, following a hearing and for the reasons stated in the accompanying opinion, the petition is DENIED. Jaime M. Keating, Esq. Assistant District Attorney BY THE COURT, Lindsay Dare Baird, Esq. Court-appointed Counsel for the Defendant Virginia Lee Wilkinson, #OC-4806 State Correctional Institution at Cambridge Springs 451Fullerton Avenue Cambridge Springs, PA 16403-1229 (Certified Mail) COMMONWEALTH · Ve VIRGINIA LEE WILKINSON OTN: E002122-1 IN TEE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 92-2120 CRIMINAL TERM CHARGE: (A) INVOLUNTARY DEVIATE SEXUAL INTERCOURSE (B) INDECENT ASSAULT IN RE: POST CONVICTION RELIEF ACT PETITION BEFORE OLER, J. OPINION and ORDER OF COURT Oler, J., June 4, 1997. At issue in the present criminal case involving charges of involuntary deviate sexual intercourse and indecent assault is whether Defendant's amended petition under the Post Conviction Relief Act~ should be granted. The relief sought by Defendant is a discharge or a new trial.2 The basis for the relief sought is ineffective assistance of trial counsel.3 Defendant maintains that (a) counsel failed to recognize that she did not comprehend the proceedings sufficiently to assist in her defense, (b) counsel did not explain that she could actively participate in the selection of the jury, and (c) counsel declined to permit a friend of Defendant to be present ~ Act of May 13, 1982, P.L. 417, as amended, 42 Pa. C.S. ~§9542 et seq. (1997 Supp.). 2 N.T. 41, Hearing on Defendant's amended petition under Post Conviction Hearing Act, May 8, 1997 (hereinafter N.T. __). 3 Defendant's Amended Petition for Post-Conviction Collateral Relief, paragraph 7 (filed February 18, 1997). NO. 92-2120 CRIMINAL TERM during a certain attorney/client conference to assist her in understanding counsel's questions and explanations.4 A hearing was held on Defendant's amended petition on Thursday, May 8,.1997. For the reasons stated in this opinion, the amended petition will be denied. FINDINGS OF FACT Defendant was found guilty following a jury trial of involuntary deviate sexual intercourse and indecent assault in connection with an act of cunnilingus upon her four-year-old daughter. Following the denial of post-trial motions, she was sentenced on May 31, 1994, to the mandatory minimum sentence provided by statute.5 Defendant had been in special education during her high school years; she progressed into the twelfth grade, but did not graduate.6 From the age of 18, she had been receiving social security benefits for a "mild handicap," in the form of a slight Id., paragraph 8. 5 Defendant received a sentence of not less than five years nor more than 10 years on the charge, of involuntary deviate sexual intercourse. The charge of indecent assault was deemed to merge for'purposes of sentencing with the more serious charge, and no additional sentence was imposed for that offense. Following sentence, Defendant's counsel filed a direct appeal to the Pennsylvania Superior Court, which affirmed the judgment of sentence on December 13, 1994. Counsel filed a petition for allowance of appeal in the Pennsylvania Supreme Court, which denied the petition on May 22, 1995. 6 N.T. 5. 2 NO. 92-2120 CRIMINAL TERM degree of mental retardation-7 However, her testimony at trial and at the Post Conviction Relief Act hearing did not lead the court to feel that she was unable to function competently. Defendant's trial counsel was an experienced member of the Cumberland County Public Defender's office. She was a graduate of American University Law School, was a member of the Pennsylvania Bar, and had been a public defender in Cumberland County since 1991.8 Her practice was almost exclusively criminal.9 With respect to Defendant's claim that her counsel did not appreciate her inability to comprehend the proceedings sufficiently to assist in her own defense, Defendant testified at the Post Conviction Relief Act hearing that she did not read "that well,''~° and could write "a little bit.''~ She said that she "was always confused" by what her counsel told her before trial.~2 She was not, however, specific as to any areas of confusion, and she conceded that she understood that she was accused of licking her daughter's vagina - a wrongful act.~3 N.T. 5-7; see N.T. 40 ("mild retardation"). N.T. 30-31. N.T. 38. N.T. 5. N.T. 6. N.T. 8. N.T. 14. NO. 92-2120 CRIMINAL TERM On the subject of Defendant's ability to comprehend, Defendant's former counsel testified that she was aware that Defendant was "a little slow" and that she "did have more difficulty understanding things than the average client would-"~4 Counsel testified that she dealt with the situation in the following manner: Q If at any time she didn't understand something, would you explain it to her? A Yes. Q If she didn't understand the explanation, would you re-explain it to her? A Yes. Q How many times would you explain things to her? A I would tell her -- after we talked about a particular subject or matter involved in our case I would ask her if she understood it. I would ask her to repeat back what I had told her. If she didn't understand it we would go over it, and if it only took one time I would do it once, but if it took two or three times, I did it as many times until she was able to understand what we were talking about. Q At any point in time did she ever indicate to you that she needed help in understanding what you were explaining to her? A No. 15 ~4 N.T. 31. ~5 N.T. 31-32. NO. 92-2120 CRIMINAL TERM In addition, counsel testified that Defendant assisted her in the defense of the case.~6 Defendant, for instance, advised counsel of a Commonwealth witness's mental deficiency,~7 informed counsel of the existence of a defense witness,~8 and testified at trial on her own behalf.~' Defendant's counsel testified that at no time did she feel that circumstances warranted concern as to Defendant's competency to stand trial.2° The court finds that this assessment was correct, and further finds that Defendant was able to, and did, (a) understand the nature and object of the proceedings against her and (b) participate and assist in her defense.2~ With respect to Defendant's claim that her counsel did not explain that she could actively participate in the selection of the jury, Defendant testified that she wanted potential jurors questioned on voir dire by her counsel to determine whether they would be prejudiced against her because of her race (black), mental ~6 N.T. 32. ' ~? Id. Two potential Commonwealth witnesses were the subject of defense competency motions, and this one was disqualified. N.T. 23-24, 32. ~8 N.T. 33. This witness was located by defense counsel and testified at trial. Id. ~9 N.T. 14. 2O 21 §7402 (a) N.T. 35. See Act of July (1997 Supp.). 9, 1976, P.L. 817, §402(a), 50 P.S. NO. 92-2120 CRIMINAL TERM retardation or alleged crimes.22 Defendant did not, however, say that she had suggested such questions; in addition, a transcript of the voir dire proceeding reveals that counsel asked the potential jurors whether "allegations of a mother sexually abusing her own daughter" would adversely affect their ability to be fair and impartial,23 and whether "anyone ... [could] not look at Virginia Wilkinson and see an individual who [was] presumed innocent and who [would] remain innocent only until the Commonwealth meets their burden beyond a reasonable doubt.''24 Defendant also testified that her counsel exercised a preemptory challenge against a black woman, contrary to Defendant's express wishes.~5 No further specifics were provided by the defense with respect to this alleged incident, nor was any evidence presented as to its effect, if any, in the trial. On the subject of jury selection, Defendant's former counsel testified as follows: Q At any point in time during jury selection, did she help you with the selection of the jury? A Not with the selection of the jury. She didn't want to participate in that. N.T. 9-10. N.T. 10-11, Voir Dire Proceeding, April 6, 1994. N.T. 11, Voir Dire Proceeding, April 6, 1994. N.T. 9, 11-12. 6 NO. 92-2120 CRIMINAL TERM Q What did she say? A She didn't say anything. I asked her. I explained to her first of all prior to even coming to court what the jury selection process entailed, and during the course of the jury selection we were at the table. I usually take notes on the various jurors and things like that, and I would .ask her if she had anybody that she either wanted or didn't want or anything like that, but she didn't have anybody at that time. She didn't at least express to me anyone that she wanted to keep or anybody in particular that she wanted to strike from the jury panel. Q Do you recall whether there was a black juror on the panel? A I don't recall at this late day whether there was a black juror called. Q Would something like caught your attention though? that have A Yes, because it's very rare that we have black jurors in our panel, and if we do have them it's usually just a few.26 The court finds the recollection of Defendant's former counsel with regard to the jury selection process to be more accurate than that of Defendant. Counsel's testimony in this regard is found to be entirely credible. In addition, no adverse effect upon Defendant has been shown from any alleged conduct of counsel in this regard. With respect to Defendant's claim that counsel refused to permit a friend to participate in an attorney/client conference, 26 N.T. 34-35. 7 NO. 92-2120 CRIMINAL TERM Defendant testified that such a person could have assisted her comprehension of the case.27 She stated that her boyfriend had a twelfth grade education, and knew "how to explain things to [her] that [she could] understand.''28 On the subject of participation by the boyfriend in an attorney/client conference, Defendant's former counsel testified as follows: Q This incident regarding you talking to her boyfriend, Brad, did he ever come to your office and try to serve you any papers or something of that nature? A He had come to my office with Virginia. I believe it might have been post- trial because Virginia was incarcerated for part of the time on the other case she referred to, and then she made bail on this case. So she was out for a period of time. The time that she was in jail I never heard from Brad. I knew she was dating him because she had told me, but I never heard from him at all via written correspondence or coming into the office. He came into the office with Virginia one time when she was out of jail, and he had some papers and he had stuff written down about her appeal and stuff, and it didn't make any sense, and I was trying to explain, you know, what the process would be once Virginia was sentenced, and they both were in the office and he got a little loud, a little rowdy, and he had smelled like he had been drinking. I asked him to leave the 27 N.T. 8. ~8 Id. NO. 92-2120 CRIMINAL TERM office and let me speak with Virginia alone because I didn't want her getting upset. Q At any point prior to trial did she request that Brad be there to help her read things to you? A No. Prior to trial she was incarcerated, and at no time did she ask me to bring Brad down to the jail with me or anything like that to help her understand anything.29 The Court accepts counsel's version of this matter as accurate. In addition, no adverse consequence to Defendant from the exclusion of her boyfriend from the attorney/client conference suggests itself. DISCUSSION "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 §307, at 116 (1987). In the context of a proceeding under the Post Conviction Relief Act,3° Judge Hess of this court has noted that the burden is a "heavy" one. Commonwealth v. Borrero, 42 Cumberland L.J. 419, 420 (1993). 29 N.T. 35-36. 30 Act of May 13, 1982, P.L. 417, as amended, 42 Pa. C.S. §§9541 et seq. (1997 Supp.). 9 NO. 92-2120 CRIMINAL TERM A general rule for the analysis of a claim of ineffectiveness of counsel has been provided by the Pehnsylvania Supreme Court as follows: There are three elements to a valid claim of ineffective assistance. We inquire first whether the underlying claim is of arguable merit; that is, whether the disputed action or omission by counsel was of questionable legal soundness. If so, we ask whether counsel had any reasonable basis for the questionable action or omission .... If he did, our inquiry ends. If not, the [defendant] will be granted relief if he also demonstrates that counsel's improper course of conduct worked to his prejudice .... Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988); see Commonwealth v. Beasley, 544 Pa. 554, 678 A.2d 773 (1996); Commonwealth v. Hess, No. 94-1437 Criminal Term (Cumberland Co., March 11, 1997) (Sheely, P.J.). However, under the Post Conviction Relief Act, a person seeking relief on the basis of ineffective assistance of counsel must prove, by a preponderance of the evidence, that the "conviction or sentence resulted from ... [i]neffective assistance ... 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.''3~ Thus, the Pennsylvania Superior Court has stated that in this context "it is not enough for [a defendant] to show that he suffered some Id., 42 Pa. C.S. §9543(a)(2)(i). 10 NO. 92-2120 CRIMINAL TERM prejudice as a result of counsel's action or inaction, but rather that counsel's action or inaction so affected the trial itself ('the truth-determining process') that the result of the trial is inherently unreliable." Commonwealth v. Weinder, 395 Pa. Super. 608, 627, 577 A.2d 1364, 1374 (1990). In the present case, the facts as found by the Court do not support a conclusion that any of Defendant's three underlying claims are of arguable merit. To the extent that any such claims might be construed as of arguable merit, counsel's explanation of her actions indicated that they had a reasonable basis; it was, for instance, not unreasonable for her to shield her client from an individual who had been drinking, was becoming loud and rowdy, and was proffering unintelligible advice. In addition, no prejudice has been shown to Defendant from any of the alleged actions by her former counsel which are complained of. Finally, it can not be said that counsel's conduct undersigned the truth-determining process so that no reliable adjudication of guilt or innocence could have taken place. CONCLUSIONS OF LAW 1. This Court has jurisdiction over the parties and subject matter of this proceeding. 2. Defendant has not met preponderance of evidence that her burden of proving by a her conviction or judgment of sentence resulted from ineffective assistance of counsel which so 11 NO. 92-2120 CRIMINAL TERM undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. ORDER OF COURT AND NOW, this 4th day of June, 1997, upon consideration of Defendant's amended petition under the Post Conviction Relief Act, following a hearing and for the reasons stated in the accompanying opinion, the petition is DENIED. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Jaime M. Keating, Esq. Assistant District Attorney Lindsay Dare Baird, Esq. Court-appointed Counsel for the Defendant Virginia Lee Wilkinson, #OC-4806 State Correctional Institution at Cambridge Springs 451 Fullerton Avenue Cambridge Springs, PA 16403-1229 (Certified Mail) : rc 12