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HomeMy WebLinkAboutCP-21-CR-0000152-2008 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CP-21-CR-0152-2008 : : SCOTT M. CARLSON : IN RE: PETITION FOR POST-CONVICTION RELIEF BEFORE HESS, P.J. OPINION AND ORDER On September 10, 2008, the petitioner/defendant was found guilty of criminal solicitation, obstructing the administration of law or other governmental function, tampering with public records, theft by deception, and counts of criminal conspiracy as to several of these charges. On December 30, 2008, Mr. Carlson was sentenced to an aggregate total sentence of not less than four nor more than twenty-three months in the Cumberland County Prison. His conviction and sentence were affirmed on appeal. He was subsequently committed to prison and is currently on parole. Before the Court is his petition for post-conviction collateral relief. The allegations of the Commonwealth, with respect to the underlying charges, are relatively uncomplicated. In January of 2006, the Cumberland County Domestic Relations Office received an interstate request for establishment of paternity. As a result, the defendant, Scott Carlson, was to appear in the Domestic Relations Office and provide a DNA sample for comparison with a child who was the subject of a support order. On April 24, 2007, a male individual, purporting to be Carlson, appeared in the Cumberland County Domestic Relations Office for DNA testing. In addition to the DNA sample, this individual submitted a thumbprint and was photographed. Subsequent DNA testing indicated that the man who appeared on April 24, 2007, was excluded as the father. In the meantime, the Domestic Relations Office had come to suspect that the person who had appeared for genetic testing was not Scott Carlson. This suspicion was confirmed by the mother of the child who was given a copy of a picture of the man who had appeared for the DNA test. In July of 2007, the thumbprint which had been taken in April was identified as belonging to one Bruce S. Adkins. In September of 2007, Bruce Adkins was interviewed by members of the District Attorney’s Office. During the interview, Adkins admitted he was the one who had given the DNA sample and that he and Scott Carlson conspired to deceive the Domestic Relations Office. Adkins agreed that he had signed documents as Scott Carlson and presented Carlson’s Virginia driver’s license for identification. Mr. Carlson has filed a PCRA petition the length of which defends itself well against the risk of being read. Nonetheless, we have discharged our duty to review it with care. We have also taken testimony in the case with the understanding that we would reconvene the hearing in the event that we found any merit in the lengthy pleadings and testimony thus far adduced. We are now constrained to bring an end to this exercise. In his ninety-six page jeremiad, the defendant describes his right to relief as both “indisputable” and “irrefutable.” (PCRA Petition, p. 3). The petition sets forth scores of allegations of ineptitude and malice on the part of the prosecution and defense counsel. The allegations are, however, entirely conclusory; consisting, in other words, of assertions for which no supporting evidence is offered. A careful scouring of the document does not reveal a single factual allegation in support of a claim of ineffectiveness of trial counsel or a violation of the petitioner’s constitutional rights. 2 Reflecting upon the various filings in this case, we are satisfied that this is less a post- conviction relief proceeding and more a war of attrition. The defendant is seeking to conduct discovery in this case, thus prolonging the matter. On July 26, 2012, we entered an order granting him leave to furnish the Court with a list of his proposed witnesses together with a summary of their testimony. Mr. Carlson has filed a list of witnesses pursuant to our order but has failed to summarize any of the testimony which he believes would be favorable to him. He proposes, without telling us why, to depose the affiant and the trial prosecutor. With respect to each of these gentlemen, Mr. Carlson proposes a deposition lasting “[t]wo days with eight-hour sessions per day allowing for one mid-morning and one mid-afternoon fifteen-minute break, along with one sixty-min. lunch break. Sessions will commence at 0900 and conclude at 1700 hours each day.” (Motion for Subpoenas, p. 4). He also proposes to depose his trial counsel for two days and various other witnesses for half of a day. Blessedly, he appears to be able to limit 1 the deposition of our elected district attorney, Mr. Freed, to one hour. At the hearing of this case, we did manage to extract from Mr. Carlson the core of his post-conviction complaint. It seems to have to do, almost entirely, with the fact that the jury was not able to read or listen to the entire taped confession of Bruce Adkins, the man who submitted himself for Mr. Carlson’s DNA test. In addition, Mr. Carlson contends that there was no probable cause for his arrest. Obviously, any issue with regard to probable cause for arrest has been rendered moot by subsequent findings of a prima facie case at the preliminary hearing and guilt beyond a reasonable doubt at the trial. Commonwealth v. Abdul-Salaam, 678 A.2d 342 (Pa. 1996). 1 We note that the trial in this case took two and one-half days. 3 As noted, the remaining issues have to do with Mr. Adkins’s confession. Specifically, the defendant contends that the confession was wrongly suppressed by the prosecution, that trial counsel was ineffective in failing to argue prosecutorial misconduct in that regard and in failing to object to the fact that the trial judge did not permit the prior taped confession to be heard by the jury in its entirety, and that trial counsel was otherwise ineffective in failing to exploit Adkins’s statement. It is well established that, in order to prevail on a claim of ineffective assistance of counsel, the defendant must demonstrate (1) that the underlying claim is of arguable merit; (2) that counsel’s course of conduct was without a reasonable basis designed to effectuate his client’s interest; and (3) that he was prejudiced by counsel’s ineffectiveness. Commonwealth v. Johnson, 771 A.2d 751 (Pa. 2001). Here, the underlying claim lacks any merit whatsoever. Mr. Adkins’s confession transcript was available to the defendant throughout the trial and was not, in any way, “suppressed” by the prosecutor. Moreover, a review of Mr. Adkins’s confession and trial testimony reveals that they are in virtual lock step. Any attempt to cross-examine Mr. Adkins regarding any inconsistency with his trial testimony would not only have been to no avail but would have been suicidal. The overarching theme of Mr. Carlson’s post-conviction relief petition is that he is clearly innocent of the underlying charge, is a victim of a vindictive prosecutor and an inept defense counsel, and has been wrongfully convicted. His contentions are, at best, disingenuous. In fact, the evidence of Mr. Carlson’s guilt is overwhelming. There is simply no other plausible explanation for Mr. Adkins’s appearance at the Domestic Relations Office with Mr. Carlson’s driver’s license and representing himself to be Scott Carlson than that the defendant put him up 4 to it. The only other explanation is that Mr. Adkins’s somehow found Mr. Carlson’s driver’s license and woke one morning with an irrepressible desire to take a DNA test. This occurred, of course, on the same day when pigs flew. ORDER AND NOW, this 20th day of August, 2012, the Petition of the defendant for Post- Conviction Relief is DENIED. BY THE COURT, _______________________________ Kevin A. Hess, P. J. Matthew P. Smith, Esquire Chief Deputy District Attorney Scott Carlson, Pro Se Defendant :rlm 5 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CP-21-CR-0152-2008 : : SCOTT M. CARLSON : IN RE: PETITION FOR POST-CONVICTION RELIEF BEFORE HESS, P.J. ORDER AND NOW, this 20th day of August, 2012, the Petition of the defendant for Post- Conviction Relief is DENIED. BY THE COURT, _______________________________ Kevin A. Hess, P. J. Matthew P. Smith, Esquire Chief Deputy District Attorney Scott Carlson, Pro Se Defendant