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[U] Commonwealth v. A.H.

Superior Court of Pennsylvania

October 25, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
A.H., Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
K.H., Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
C.G., Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order November 28, 2012, in the Court of Common Pleas of Bucks County, Criminal Division at Nos. CP-09-CR-0005254-2007, CP-09-CR-0005253-2007, CP-09-CR-0005277-2007

BEFORE: DONOHUE, WECHT and STRASSBURGER [*], JJ.

MEMORANDUM

STRASSBURGER, J.

In these consolidated appeals, Appellants A.H., K.H., and C.G. (collectively Appellants) appeal from the order denying their petitions for relief filed pursuant to the Post-Conviction Relief Act (PCRA).[1] We affirm.

The underlying facts of this case are thoroughly summarized in the November 28, 2012 opinion of the PCRA court. See PCRA Court Opinion, 11/28/2012, at 2-7. In that opinion, the PCRA court concluded that Appellants were not entitled to relief, and denied their petitions. Appellants filed timely notices of appeal, and Appellants and the PCRA court complied with Pa.R.A.P. 1925.[2]

On appeal, Appellants set forth the following eight questions for review.

I. Whether the PCRA Court's decision is not supported by the record and is not free from legal error because the credible evidence including the testimony of J.G. and Nova Representative Karen Bringhurst proves that the prosecutor coached the child witness, took no prophylactic measures to ensure the testimony of the child witness was not tainted by third parties, all of which induced the child to give false testimony, and deprived Appellants of the Fourteenth Amendment right to due process of law and the Sixth Amendment right to counsel free from interference by the prosecution?
II. Whether the PCRA Court's analysis of the claims of ineffective assistance of counsel is contrary to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) because it did not consider the totality of the evidence including all of the new evidence and then determine the probable impact of the new evidence on a properly instructed jury?
III. Whether trial counsel were ineffective for failing to file a motion to suppress evidence obtained as a result of the warrantless search and seizure of J.G.?
IV. Whether trial counsel were ineffective for failing to challenge the prosecution on the grounds that it was motivated by racial and religious discrimination?
V. Whether trial counsel were ineffective for failing to file a motion to strike the jury who collectively expressed disapproval of corporal punishment?
VI. Whether trial counsel were ineffective for failing to object to the vital interest charge?
VII. Whether trial counsel were ineffective for not objecting to the prosecution on the grounds that 18 Pa.C.S.A. 509 is void for vagueness?
VIII. Whether the conviction of [A.H.] must be vacated because the testimony at the evidentiary hearing indicates that he did not enter into an agreement to impose excessive corporal punishment, and did not direct [C.G.] or [K.H.] to impose excessive corporal punishment?

Appellants' Brief at 2-3 (capitalization omitted).

"When reviewing the denial of PCRA relief, we must determine whether the ruling of the PCRA court is supported by the record and is free of legal error." Commonwealth v. Luster, 71 A.3d 1029, 1039 (Pa.Super. 2013) (internal quotation omitted). "This Court treats the findings of the PCRA court with deference if the record supports those findings. It is an appellant's burden to persuade this Court that the PCRA court erred and that relief is due." Commonwealth v. Feliciano, 69 A.3d 1270, 1274-75 (Pa.Super. 2013) (citing Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa.Super. 2012)).

We observe that most of Appellants' questions three through seven allege errors involving the ineffective assistance of trial counsel. Accordingly, we set forth our well-settled standard of review as to those claims.

To prevail on an ineffective assistance claim, a defendant must establish "(1) [the] underlying claim is of arguable merit; (2) the particular course of conduct pursued by counsel did not have some reasonable basis designed to effectuate his [client's] interests; and (3) but for counsel's ineffectiveness, there is a reasonable probability that the outcome of the proceedings would have been different." A failure to satisfy any prong of the test for ineffectiveness will require rejection of the claim.
Commonwealth v. Johnson, 27 A.3d 244, 247 (Pa.Super. 2011) (internal citations omitted). The Pennsylvania Supreme Court has emphasized, "'[i]f it is clear that [the petitioner] has not demonstrated that counsel's act or omission adversely affected the outcome of the proceedings, the claim may be dismissed on that basis alone and the court need not first determine whether the first and second prongs have been met.'" Commonwealth v. Rios, 591 Pa. 583, 920 A.2d 790, 799 (2007), quoting Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 701 (1998).

Commonwealth v. Luster, 71 A.3d 1029, 1039-40 (Pa.Super. 2013).

For Appellants' first two issues on appeal, they contend that the Assistant District Attorney prosecuting their case coached the complaining witness, J.G. and thereby induced perjury, denied a fair trial, and interfered with the effective assistance of counsel. See Appellants' Brief at 16-35. Appellants also assert the PCRA court erred in believing the testimony of the Assistant District Attorney. See Appellants' Brief at 36-39. We conclude that the PCRA court opinions accurately and thoroughly dispose of these issues, and adopt that reasoning as our own. See PCRA Court Opinion, 11/28/2012, at 9-22; see also PCRA Court Opinion, 2/15/2013, at 11-25.

Next, Appellants contend trial counsel were ineffective for failing to file a motion to suppress evidence collected from J.G., as they had a "reasonable expectation of privacy" in her. Appellants' Brief at 39-45. The PCRA court concluded that this claim was without merit. We agree and adopt the analysis of the PCRA court on this issue. See PCRA Court Opinion, 11/28/2012, at 22-25; see also PCRA Court Opinion, 2/15/2013, at 27-29.

Appellants next argue that counsel were ineffective for failing to file a motion to dismiss the prosecution of Appellants as it was motivated based on animus toward Appellants' race and religion. Appellants' Brief at 45-49. The PCRA court concluded that this claim was without merit. We agree and adopt the analysis of the PCRA court on this issue. See PCRA Court Opinion, 11/28/2012, at 25-27; see also PCRA Court Opinion, 2/15/2013, at 29-31.

Next, Appellants contend that trial counsel were ineffective for failing to move to strike the venire as all of the jurors disapproved of corporal punishment. Appellants' Brief at 49-51. The PCRA court concluded that this claim was without merit. We agree and adopt the analysis of the PCRA court on this issue. See PCRA Court Opinion, 11/28/2012, at 33-34; see also PCRA Court Opinion, 2/15/2013, at 31-32.

Next, Appellants contend that trial counsel were ineffective for failing to object to a vital interest jury instruction. Appellants' Brief at 51-52. The PCRA court concluded that this claim was without merit. We agree and adopt the analysis of the PCRA court on this issue. See PCRA Court Opinion, 11/28/2012, at 34-37; see also PCRA Court Opinion, 2/15/2013, at 32-35.

Next, Appellants contend trial counsel were ineffective for failing to object to the prosecution of Appellants because the conduct prohibited by 18 Pa.C.S. § 509 is unconstitutionally vague. Appellants' Brief at 60. The PCRA court concluded that this claim was without merit. We agree and adopt the analysis of the PCRA court on this issue. See PCRA Court Opinion, 11/28/2012, at 27-33; see also PCRA Court Opinion, 2/15/2013, at 35.

Finally, A.H. argues that his convictions should be vacated because they were based "completely upon testimony of [J.G.] and the truth of that testimony is open to serious question because of the testimony of a disinterested medical witness, [and] a subsequent recantation of the child's testimony as supported by the record[.]" Appellants' Brief at 60. This issue was not addressed by the PCRA court, although it was raised in A.H.'s PCRA petition. For the following reasons, we conclude that A.H. is not entitled to relief.

A.H.'s claim is premised on the assertion that the PCRA court erred in believing the trial testimony of J.G., rather than her recantation of that testimony. At trial, J.G. testified that she was beaten with a belt by K.H. and C.G. at the direction of A.H. However, at the PCRA hearing, J.G. testified that certain answers she gave to the detectives about the beatings were not true. N.T., 6/10/2011, at 25-26. Specifically, J.G. testified that she was not truthful when she told the detective that A.H. directed C.G. and K.H. to beat her. Id. at 26.

Recantation testimony is considered in the nature of after-discovered evidence, which we consider with the following in mind.

[A]s a general matter, recantation evidence "is notoriously unreliable, particularly where the witness claims to have committed perjury." Commonwealth v. Dennis, 552 Pa. 331, 356, 715 A.2d 404, 416 (1998); accord Commonwealth v. McCracken, 540 Pa. 541, 548, 659 A.2d 541, 545 (1995); Commonwealth v. Mosteller, 446 Pa. 83, 89, 284 A.2d 786, 788 (1971). This Court has also emphasized, however, that, even as to recantations that might otherwise appear dubious, the PCRA court must, in the first instance, assess the credibility and significance of the recantation in light of the evidence as a whole.

Commonwealth v. D'Amato, 856 A.2d 806, 825 (Pa. 2004).

Instantly, the PCRA court concluded that

J.G. has changed her story on numerous occasions since [Appellants] were charged. J.G. gave her initial statements regarding the number of times she was hit with the belt by K.H. and C.G., recanted prior to trial, stated that her recantation was false and that her mother, K.H., had told her to recant, then recanted again at the PCRA Hearing. … The [PCRA court] finds that … the totality of the evidence and her prior statements lead the [PCRA court] to place no credibility on [J.G.'s] testimony at the PCRA hearing.

PCRA Court Opinion, 11/28/2012, at 18-19. Thus, the PCRA court considered J.G.'s credibility in the first instance and because the findings are supported by the record, we will not disturb them on appeal. A.H. has failed to demonstrate he is entitled to a new trial based on this recantation testimony.

As this memorandum relies extensively on the well-reasoned opinions dated November 28, 2012 and February 15, 2013 authored by the Honorable Robert O. Baldi of the Court of Common Pleas of Bucks County, we direct that those opinions be attached to this memorandum in the event of future proceedings.

Order affirmed.

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