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HomeMy WebLinkAboutCP-21-CR-0002732-2008 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : v. : : : RENEE LAMASON : CP-21-CR-2732-2008 IN RE: OPINION PURUSANT TO Pa.R.A.P. 1925 BEFORE HESS, P.J. On March 14, 2012, Defendant/Petitioner filed a pro se Petition for Post Conviction Collateral Relief. Subsequent to a hearing, the petition was denied by Order of Court, dated June 8, 2012. On July 11, 2012, Defendant filed what was treated by the Pennsylvania Superior Court as a notice of appeal. This supplementary opinion in support of our June 8, 2012 Order of Court is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). The facts and procedural history of this case may be summarized as follows. On April 9, 2009, following a trial by jury, Defendant was found guilty of two counts of Indecent Assault and two counts of Endangering the Welfare of Children. On April 16, 2009, prior to sentencing, Defendant filed post-trial motions which challenged the denial of her motion to sever and the sufficiency and weight of the evidence. Following a hearing on the matter, Ms. Lamason’s motions were denied by an Order of Court dated June 15, 2009. On September 1, 2009, Defendant was sentenced to an aggregate term of 6 months to 18 months’ imprisonment. Defendant subsequently filed a post-sentence motion, which was denied by operation of law on January 12, 2011. Defendant thereafter filed an appeal to the Superior Court, which, in a Memorandum Decision filed September 16, 2011, resulted in the affirmance of our decision denying Defendant’s prior motion to sever as well as our findings concerning the sufficiency of the evidence presented at trial. On March 14, 2012, Defendant timely filed what we treated as a pro se petition for relief pursuant to the Post-Conviction Relief Act. In her PCRA petition, Defendant raised multiple bases upon which she asserted that she was entitled to relief, including the following: ineffective assistance of trial counsel, weight of the evidence, sufficiency of the evidence, and the denial of her motion to sever. Counsel was appointed to represent Defendant concerning her Petition, and, on May 23, 2012, a hearing thereon was held. Defendant testified on her own behalf but did not present any other witnesses. The Commonwealth presented the testimony of Sheri Coover, Esq., Defendant’s trial counsel. At the hearing, the Defendant indicated that at the heart of her petition was a dissatisfaction with the failure of her trial counsel to call various witnesses from her family, including her mother, two sisters, and a brother-in-law, whom, she alleges, would have testified that the children, who were the subject of her trial, were 1 clean and cared for, and had never reported that she abused them, nor were they in fact abused. On June 8, 2012, the court having received a Turner-Findley “no merit” letter, an order was entered granting a Motion for Leave to Withdraw as Counsel filed by Defendant’s court- appointed PCRA counsel. That same day the court, similarly satisfied that Defendant’s PCRA 1 On direct-examination, Defendant testified to the following: Q: If I can stop you for just one moment. Let’s start with the ineffective assistance of counsel claims that you gave. Can you please explain why you were not effectively represented by Ms. Coover? A: Well, while I was being represented by her, I felt like during the trial there were several times that I would contact her on the phone, and she wouldn’t give me calls back on my case or answer my questions on how we should go about, or things like questions that should be asked during the trial, or answers that I wanted to know on how the witnesses that I had wanted to come forward. I had several witnesses that said they wanted to come forward on my behalf to say that they were present in the mobile home park where we were living for several years. And also prove that there were several times that I was leaving my husband at the time to get away from the abuse that I was sustaining from my husband. (Notes of Testimony, In Re: Post-Conviction Relief Act Petition, 4-5, May 23, 2012 (hereinafter “PCRA N.T. __”)). 2 petition was devoid of any merit, entered an order denying relief. Thereafter, Defendant filed a notice of appeal to the Pennsylvania Superior Court. In order to be eligible for post conviction relief, a petitioner must plead and prove that the conviction complained of resulted from a violation of the Constitution, ineffective assistance of counsel, an unlawfully induced guilty plea, improper obstruction by government officials of the petitioner’s right of appeal, unavailable exculpatory evidence, an illegal sentence, or a lack of jurisdiction. 42 Pa.C.S.A. § 9543(a)(2)(i)-(viii). Additionally, a petitioner must establish that the claims of error raised in his PCRA petition have not been previously litigated or waived, and that “the failure to litigate the issue prior to or during trial, during unitary review or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel.” 42 Pa.C.S. § 9543(a)(3) and (4); Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa. 2011). In general, in order to be eligible for post-conviction relief based upon inadequate representation, “the petitioner must plead and prove by a preponderance of the evidence . . . [i]neffective 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. § 9543(a)(2)(ii). There are three elements a petitioner must prove in order to prevail on a claim of ineffective assistance of counsel. Chmiel, 30 A.3d at 1127; Commonwealth v. Blount, 538 Pa. 156, 647 A.2d 199 (1994); Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2025 (1984). First, the petitioner must prove that the “underlying claim is of arguable merit.” Blount, 538 Pa. at 163, 647 A.2d at 203. Second, it must be proved that counsel’s action or inaction was not grounded on any “reasonable basis designed to effectuate [the client’s] interest.” Id. Third, the petitioner must prove that “counsel’s ineffectiveness prejudiced him.” Id. We presume 3 counsel to be effective, and the burden is placed upon a petitioner to prove otherwise. Commonwealth v. Carpenter, 555 Pa. 434, 449, 725 A.2d 154, 161 (1999). In order to determine whether counsel was ineffective for failing to call a witness at trial, a petitioner must demonstrate the following: “(1) that the witness existed; (2) that the witness was available; (3) that counsel was informed of the existence of the witness or should have known of the witness’s existence; (4) that the witness was prepared to cooperate and would have testified on [the] appellant’s behalf; and (5) that the absence of the testimony prejudiced [the] appellant.” Commonwealth v. Brown, 767 A.2d 576, 581-82 (Pa.Super.Ct. 2001) (quoting Commonwealth v. Fletcher, 561 Pa. 266, 292, 750 A.2d 261, 275 (2000)). Furthermore, trial counsel will not be found to have been ineffective for failing to investigate or call a witness unless a petitioner sets forth some showing that the witness’s testimony would have been helpful to his defense. Id. (citing Commonwealth v. Auker, 545 Pa. 521, 548, 681 A.2d 1305, 1319 (1996)). “A failure to call a witness is not per se ineffective assistance of counsel for such decision usually involves matters of trial strategy.” Auker, 545 Pa. at 548, 681 A.2d at 1319. In this case, testimony was elicited from both Defendant and her trial counsel which indicated that the decision to call the requested witnesses was discussed, and that trial counsel determined that for strategic and legal reasons it was in her client’s best interests not to have those witnesses take the stand at trial. (PCRA N.T. 5-6, 19). On direct examination, Defendant’s trial counsel testified to the following: Q: The witnesses, did you discuss the witnesses with Ms. Lamason? A: Over the course of the representation I discussed witnesses with Ms. Lamason on numerous occasions. To be honest with you, the time kind of runs together for me because there were several hearings and several different times that we talked about witnesses. I do not recall a Robert Briner. I talked to her mother on numerous occasions. I would say at least in upwards of forty or fifty times. And her sisters, I talked to them on the phone. I would say not nearly as much as the 4 mom, but I did talk to them on occasion. I know that there was, like I said, things start to run together for me. There was a couple proceedings where we talked about having the sisters as witnesses for various reasons. I recall at one point that the sister was going to testify and didn’t show up. I cannot recall if that was the trial or a Children & Youth proceeding. But I know that I did talk to witnesses, and I had concerns about credibility and also about whether they could testify about what our issue was at trial. And for trial reasons I decided that I didn’t think it was in Renee’s best interests to call them. (PCRA N.T. 19-20). The children themselves testified at trial that they were abused and lived in unclean and uncomfortable conditions. Other witnesses established that the children were found to be unclean and living in deplorable conditions. The children’s foster mother established that the children did, in fact, report abuse to her without prompting. In the face of overwhelming evidence, Defendant’s trial counsel appropriately questioned the credibility of the testimony of the various witnesses which Defendant now contends should have been called. Clearly, the decision not to call certain witnesses was the result of a chosen trial strategy and not the product of deficient representation. As to the issues of weight and sufficiency of the evidence, as well as the motion to sever, we are convinced that because these issues have already been raised and adjudicated on appeal, they are simply not cognizable claims under the Post Conviction Relief Act. As stated above, to be eligible for PCRA relief, a petitioner must prove that the issue raised has not been previously litigated or waived. An issue has been previously litigated if “the highest appeallate court in which the petitioner could have had review as a matter of right has ruled on the issue.” 42 Pa.C.S.A. § 9544(a)(2). On direct appeal to the Superior Court, Defendant raised the issues of sufficiency of the evidence, weight of the evidence, and the denial of her motion to sever. 5 Commonwealth v. Lamason, No. 277 MDA 2011, unpublished memorandum at 1 (Pa. Super. filed September 16, 2011). For the foregoing reasons, we conclude that our Order of Court, dated June 8, 2012, denying Defendant’s Petition for Post Conviction Collateral Relief, was not in error, and was, therefore, properly entered. September 6, 2012 Kevin A. Hess, P.J. Matthew P. Smith, Esquire Chief Deputy District Attorney Renee Lamason, Pro Se 60 S. Main Street, Apt. #1 Milroy, PA 17063 :rlm 6