February 27, 2014
COMMONWEALTH OF PENNSYLVANIA Appellee
DUANE BROCK THOMAS Appellant
Appeal from the PCRA Order February 28, 2013 In the Court of Common Pleas of Washington County Criminal Division at No(s): CP-63-CR-0000165-2009
BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and WECHT, J.
Duane Brock Thomas appeals from the order entered February 28, 2013, in the Washington County Court of Common Pleas denying him relief on his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. Thomas seeks relief from the judgment of sentence of an aggregate 14½ to 29 years' imprisonment imposed on January 22, 2010, following his conviction of rape,  aggravated assault,  and related offenses for the January 9, 2009, attack on his ex-girlfriend. On appeal, Thomas raises six challenges to the ineffective assistance of prior counsel.For the reasons set forth below, we affirm.
The facts underlying Thomas's arrest and conviction were summarized in the unpublished memorandum decision affirming Thomas's conviction on direct appeal, and we will briefly note that, on the evening of January 9, 2009, Thomas beat and raped the victim, his ex-girlfriend, while brandishing a gun, and while their then three-year-old son was sleeping in another room in the house. See Commonwealth v. Thomas, 32 A.3d 274 (Pa.Super. 2011) (unpublished memorandum at 1-6), appeal denied, 34 A.3d 83 (Pa. 2011).
Thomas was subsequently arrested and charged with two counts each of aggravated assault, rape and involuntary deviate sexual intercourse (IDSI), and one count each of sexual assault, terroristic threats, unlawful restraint, false imprisonment, simple assault and recklessly endangering another person (REAP). A jury trial commenced on September 21, 2009.
After the victim's direct examination, the Commonwealth presented an oral motion in limine to preclude Thomas from cross-examining the victim regarding her prior psychiatric treatment, or offering his own testimony regarding the victim's mental state. The trial court granted the Commonwealth's motion. On September 25, 2009, the jury returned a verdict of guilty on two counts of aggravated assault, and one count each of rape (threat of forcible compulsion), sexual assault, terroristic threats, unlawful restraint, false imprisonment, simple assault and REAP. The jury found Thomas not guilty of both counts of IDSI and one count of rape (forcible compulsion). On January 22, 2010, Thomas was sentenced to an aggregate term of 14½ to 29 years' imprisonment. He filed a post sentence motion challenging the trial court's grant of the Commonwealth's motion in limine, which the court denied on April 6, 2012.
Thomas filed a direct appeal challenging only the trial court's grant of the Commonwealth's motion in limine. A panel of this Court affirmed the judgment of sentence, and, on December 23, 2011, the Pennsylvania Supreme Court denied Thomas's petition for allowance of appeal. See Thomas, supra.
Thomas filed the present, timely PCRA petition, pro se, on April 9, 2012, raising six claims of the ineffective assistance of trial counsel. PCRA counsel was appointed, and filed an amended petition on June 11, 2012. On December 7, 2012, the PCRA court issued notice, pursuant to Pa.R.Crim.P. 907, of its intent to dismiss the petition without first conducting an evidentiary hearing. Thomas filed a pro se response on December 24, 2012, asserting that he had not spoken with appointed counsel. On January 2, 2013, his current PCRA counsel was appointed. Two days later, the judge assigned to his PCRA petition retired, and his case was reassigned to Judge Katherine B. Emery. Thereafter, on February 28, 2013, the PCRA court dismissed Thomas's petition on the existing record, and this timely appeal followed.
When reviewing an order dismissing a PCRA petition, we must determine whether the ruling of the PCRA court is supported by record evidence and is free of legal error. Commonwealth v. Burkett, 5 A.3d 1260, 1267 (Pa.Super. 2010). "Great deference is granted to the findings of the PCRA court, and these findings will not be disturbed unless they have no support in the certified record." Commonwealth v. Carter, 21 A.3d 680, 682 (Pa.Super. 2011) (citation omitted).
In the present case, all of Thomas's claims focus on the ineffectiveness of trial and direct appeal counsel. Our review of an allegation of counsel's ineffectiveness is well-settled:
In Pennsylvania, counsel is presumed effective, and a defendant bears the burden of proving otherwise. In order to be entitled to relief on a claim of ineffective assistance of counsel, the PCRA petitioner must plead and prove by a preponderance of the evidence that (1) the underlying claim has arguable merit; (2) counsel whose effectiveness is at issue did not have a reasonable basis for his action or inaction; and (3) the PCRA petitioner suffered prejudice as a result of counsel's action or inaction. When determining whether counsel's actions or omissions were reasonable, we do not question whether there were other more logical courses of actions which counsel could have pursued: rather, we must examine whether counsel's decisions had any reasonable basis. Further, to establish prejudice, a petitioner must demonstrate that but for the act or omission in question, the outcome of the proceedings would have been different. Where it is clear that a petitioner has failed to meet any of the three, distinct prongs of the [ineffectiveness] test, the claim may be disposed of on that basis alone, without a determination of whether the other two prongs have been met.
Commonwealth v. Steele, 961 A.2d 786, 796-797 (Pa. 2008) (internal citations and punctuation omitted).
First, Thomas argues trial counsel was ineffective for failing to object to a comment by Police Detective David Leonard regarding Thomas's post arrest silence. Specifically, Thomas contends trial counsel should have (1) filed a motion to suppress any reference to his post arrest silence; (2) filed a motion in limine seeking to preclude any reference to his post arrest silence; (3) moved for a mistrial when Detective Leonard referred to his post arrest silence; or (4) requested a cautionary instruction after Detective Leonard referred to his post arrest silence.
The objectionable comment occurred during the prosecutor's direct examination of Detective Leonard:
[Prosecutor:] What steps did you take after you left the hospital with [the victim]?
[Detective Leonard:] After I left the hospital, I made sure that the barracks had responded to Mr. Thomas' residence. And thereafter, I proceeded back to the barracks and I encountered Mr. Thomas, at which point I asked if he would like to discuss this case at all.
[Prosecutor":] You understand that he did have the absolute right to not talk to you at all?
[Detective Leonard:] That's correct. And that is exactly what he chose to do. I did ask him, however, if he would like to make any complaint as far as injuries or anything. He stated that he would rather talk to an attorney.
[Prosecutor:] Which he has the right to do? [Detective Leonard:] That's correct.
N.T., 9/22/2009, at 464-465.
It is well-established that:
An impermissible reference to an accused's post-arrest silence constitutes reversible error unless shown to be harmless.... Because of its nature, an impermissible reference to the accused's post-arrest silence is innately prejudicial.
Commonwealth v. Smith, 995 A.2d 1143, (Pa. 2010), cert. denied, ___U.S. ___, 131 S.Ct. 518 (2010) (citations and internal punctuation omitted). We agree that Detective Leonard's comment referred to Thomas's refusal to discuss his case with the police after his arrest, and, was, therefore objectionable. However, we conclude that trial counsel's failure to object to the comment was not reversible error.
Preliminarily, we note Thomas's contentions that trial counsel should have either filed a motion to suppress or a motion in limine precluding such testimony are meritless. Here, there was no prior statement to suppress, since the spontaneous comment was made by the detective during his direct examination. Further, trial counsel would have had no reason to file a motion in limine because comments regarding a defendant's post-arrest silence are not permissible at trial, and counsel would have had no reason to believe that any witness would comment on Thomas's refusal to speak with the police. Therefore, we must consider whether trial counsel was ineffective for failing to object to Detective Leonard's comments and either move for a mistrial or ask the trial court to give a cautionary instruction to the jury.
The decision whether to grant a mistrial is within the discretion of the trial court, but should only be granted "where the alleged prejudicial event may reasonably be said to deprive the defendant of a fair and impartial trial." Commonwealth v. Boczkowski, 846 A.2d 75, 94 (Pa. 2004). In the present case, there would have been no basis for a mistrial. The comment by Detective Leonard was brief, not solicited by the Commonwealth, and not exploited by the Commonwealth in its closing argument. See Commonwealth v. Shotwell, 717 A.2d 1039 (Pa.Super. 1998) (reference to defendant's post arrest silence may be cured by cautionary instructions after considering "1) the nature of the reference to the defendant's silence; 2) how it was elicited; 3) whether the district attorney exploited it; and 4) the promptness and adequacy of the cautionary instruction.").
Although trial counsel, in the present case, did not ask the court to give a cautionary instruction, the prosecutor made clear during the detective's testimony that Thomas had an "absolute right" not to talk to the police, and a concomitant right to consult with an attorney. N.T., 9/22/2009, at 464-465. As the PCRA court stated in its opinion, "counsel would have had a strategic basis for not objecting in that the prosecutor properly addressed the fact that it was the defendant's right to choose not to speak to [Detective Leonard] and to obtain legal counsel." PCRA Court Opinion, 5/28/2013, at 11 (emphasis supplied). We agree, and, accordingly conclude that Thomas has failed to demonstrate he was prejudiced by counsel's omission since any request for a mistrial or further cautionary instructions would have been futile.
Thomas also argues trial counsel was ineffective for failing to object, move for a mistrial, and/or request a cautionary instruction when the prosecutor referred to his post arrest silence. Again, no relief is warranted.
Here, Thomas challenges the following exchange that occurred during his cross-examination:
[Prosecutor:] So this all seems to be a relatively easy explanation. Why is it that you didn't say, I can't believe I'm accused of this, this is what really happened?
[Defense Counsel:] Objection, your Honor. I don't believe that's appropriate to ask why the Defendant did not give the statement to the police or whoever she is asking about.
THE COURT: Restate the question. I'm not sustaining it. I just didn't hear your question.
[Prosecutor:] Your Honor, I will withdraw that and reserve that for argument at this point.
THE COURT: Move on.
N.T. 9/23/2009, at 646-647.
To the extent Thomas argues that trial counsel was ineffective for failing to object to the prosecutor's question, that contention is belied by the record. Moreover, we conclude that counsel was not ineffective for failing to request a mistrial or cautionary instructions. During its opening charge, the trial court instructed the jury that questions posed by the attorneys are not evidence, but rather, "[i]t is the witnesses' answers that provide the evidence." N.T., 9/21/2009, at 10. Here, Thomas never answered the prosecutor's question. Further, when asked to repeat the question, the prosecutor withdrew it and moved on. Therefore, trial counsel would have had no basis to request a mistrial.
Additionally, we note that during his direct examination, Thomas testified that on the evening after the alleged attack, he received a voice mail from a police corporal "saying he wanted to get in contact with me for an incident that happened earlier." N.T. 9/23/2009, at 620. However, before returning the corporal's call, he testified he called his sister. Id. During cross-examination, the prosecutor asked him why he called his sister before calling the police. Thomas responded:
I called my sister to tell her that me and [the victim] got into a fight and the police officer just called me. And she said she would call me right back. She had called an old friend of hers and called right back. He told me not to speak with the police without counsel.
Id. at 648-649. When the prosecutor later stated, "And you had already counseled with somebody and had gotten some information; correct[, ]" Thomas responded, "No, I didn't get any information. He told me not to talk to anybody." Id. at 649. Therefore, any negative inference drawn by the jury when the prosecutor asked Thomas why he did not tell the police his side of the story was effectively cured when Thomas explained that he was counseled not to talk to the police. Therefore, no relief is warranted on this claim.
Next, Thomas challenges the admission of expert testimony by Commonwealth witness, Nurse Laura Yang. Specifically, he argues counsel was ineffective for failing to object to Nurse Yang's testimony as "an impermissible medical diagnosis, " and for failing to move for a mistrial after Nurse Yang provided "extremely prejudicial and inflammatory" testimony. See Thomas's Brief at 24, 28.
Pursuant to the Professional Nursing Law, nurses are precluded from making medical diagnoses. 63 P.S. § 212(1). They are, however, permitted to "diagnos[e] and treat human responses to actual or potential health problems[.]" Id. In Commonwealth v. Jennings, 958 A.2d 536 (Pa.Super. 2008), this Court held that a sexual assault nurse examiner (SANE) was competent to testify that the victim's vaginal redness "was consistent with 'forced vaginal intercourse from behind.'" Id. at 539. Indeed, we found that expert witness's "nursing diagnosis, her identification of the victim's vaginal redness, was essential to the effective execution and management of the nursing regimen." Id. at 540.
Here, Nurse Yang was offered by the Commonwealth as a SANE nurse. N.T., 9/22/2009, at 367. The prosecutor specifically conceded that Nurse Yang was not competent to opine whether or not a sexual assault occurred. Id. Rather, the Commonwealth explained that she would testify regarding "certain things that happened during the examination, the demeanor, [and] why certain things may have particular significance[.]" Id.
Thomas argues, however, that Nurse Yang's testimony was that of an impermissible medical diagnosis. We disagree. A review of her testimony reveals that Nurse Yang described the sexual assault examination she performed on the victim, the injuries she witnessed on the victim during that exam, the victim's account of the attack, and her assessment of the victim's demeanor and state of mind. See id. at 368-384. Nurse Yang did not testify that the victim's injuries were caused by a sexual assault.
Thomas also claims, however, that some of Nurse Yang's testimony, if not impermissible, was prejudicial and inflammatory. Specifically, he cites the following excerpts from her testimony:
[Prosecutor:] Based on your background and experience and training and prior examinations, can you explain why there would be no physical injury [in the victim's vaginal area]?
[Nurse Yang:] In a lot of cases it's because the girls are so fearful and scared they will so go along with the assailant to do anything so they won't injure them further.
In [the victim's] case, she had been beaten with a gun. She was threatened with a gun. She was told she wasn't going to leave alive. You know, she just went along with whatever was the easiest so she wouldn't get injured further. That happens in a lot of sexual assault cases.
[Prosecutor:] Anything else you're looking at beyond the vaginal area? What else are you evaluating when you're looking at this?
[Nurse Yang:] … We look for, you know, any evidence to corroborate the story she is telling. She had – her ear was ripped and her earring was ripped out.
Id. at 376-377.
We fail to discern how the above stated testimony was impermissible. As a SANE expert witness, Nurse Yang properly opined why some sexual assault victims do not present with visible injuries. Her comments regarding the particular victim in this case were based upon the victim's recollection of the alleged attack. Further, Nurse Yang properly testified that during a sexual assault examination, she looks for any physical evidence that corroborates the "story" provided by the victim. Here, Nurse Yang testified that the victim's earring had been ripped out, which was consistent with the victim's version of the events. Therefore, trial counsel would have had no basis to object to this testimony. See Commonwealth v. Spotz, 896 A.2d 1191, 1210 (Pa. 2006) ("Counsel will not be deemed ineffective for failing to raise a meritless claim.") (citation omitted).
Next, Thomas contends trial counsel was ineffective for failing to object to purported improper remarks made by the prosecutor during closing arguments. In support of this claim, he cites to various excerpts from the prosecutor's closing arguments that he claims were "improper, prejudicial and unconstitutional remarks which deprived [him] of a fair trial by an impartial jury and due process." Thomas's Brief at 37. He also asserts the prosecutor made an "improper reference to knowledge outside of the evidence on record." Id. at 38.
However, in the 14 pages of argument on this issue, Thomas fails to explain why the cited comments were improper, or specify which comment(s) implied to the jury that the prosecutor had outside knowledge of his guilt.
We have previously cautioned that a brief which includes citations to pages in the notes of testimony, but no specific arguments concerning reasons why each challenged comment deprived an appellant of his right to a fair trial, constitutes the type of cursory legal discussion which is wholly inadequate to preserve an issue for appellate review.
Commonwealth v. Johnson, 985 A.2d 915, 925 (Pa. 2009). See also Commonwealth v. LaCava, 666 A.2d 221, 235 (1995) ("[A]bsent even a meager attempt to show how [alleged prejduical statements by the prosecutor] deprived [defendant] of a fair trial or worked to form in the jury's minds a fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict, no relief is due."). The courts of this Commonwealth have consistently refused to make arguments for a defendant. LaCava, 666 A.2d at 235. Thus, no relief is due on this claim.
Thomas further claims both trial and direct appeal counsel were ineffective for failing to challenge the weight and sufficiency of the evidence. Again, he utterly fails to develop this issue in his brief. Indeed, Thomas neglects to explain how the evidence presented was insufficient or why the verdict was against the weight of the evidence. Rather, he baldly asserts that it is so, and avers counsel had no reasonable basis for failing to preserve these claims. Thomas's failure to provide an analysis of this claim precludes our review. See Commonwealth v. Phillips, 879 A.2d 1260, 1263 (Pa.Super. 2005) (finding appellant's challenge to the trial court's denial of a motion for acquittal waived when appellant failed to discuss how or why evidence was insufficient; "the failure to include relevant facts for an analysis of the issues precludes review on appeal.") (citation omitted).
Lastly, Thomas challenges trial counsel's failure to present evidence of the victim's mental health issues. Specifically, he contends counsel was ineffective for failing to compel the victim to undergo a psychological exam, subpoena the victim's medical records, and/or utilize the services of a mental health expert in order to establish that the victim "suffered from or received services or medication as a result of mental instability or impairment at time periods proceeding and immediately following the alleged crime" which impeded her ability to recall events and supported his justification defense. Thomas's Brief at 58.
During a break in the victim's direct examination at trial, the Commonwealth presented an oral motion in limine to preclude Thomas from questioning the victim regarding her prior psychiatric treatment, or offering his own testimony regarding the victim's mental state. N.T., 9/21/2009, at 113. Defense counsel sought to present this testimony to demonstrate the victim's state of mind on the night of the incident in question, that is, that "she [was] the aggressor in this, that this [behavior] was … customary." Id. at 126. Defense counsel stated that Thomas was prepared to testify he had taken the victim to psychiatric appointments within the last year. Id. at 123. Counsel argued the testimony was relevant to provide an explanation for the victim's "verbal tirade:" "She was prescribed medication and she stopped taking it." Id. at 126. Following argument on the issue, the trial court granted the Commonwealth's motion in limine.
On direct appeal, Thomas challenged the ruling, arguing that his testimony concerning the victim's mental state was relevant "to show the victim's state of mind and perception of the events." Thomas, supra, (unpublished memorandum at 8). This Court affirmed, concluding there was (1) no evidence the victim was using psychotropic drugs at the time of the incident, (2) and "no proffer that the victim's ability to perceive the events as they transpired was hindered by her alleged mental instability." Id. (unpublished memorandum at 11). Furthermore, this Court noted: "As [Thomas] does not argue on appeal that he should have been allowed to cross-examine the victim about her mental history to establish his state of mind at the time he contended she was holding a gun on him, we do not reach that issue." Id. (unpublished memorandum at 11-12) (emphasis supplied).
Here, Thomas purports to respond to this Court's underlying ruling on direct appeal. He argues trial counsel was ineffective for (1) failing to demonstrate that the victim's ability to recall the incident was hampered by her alleged mental illness and (2) failing to argue that the victim's mental health history was relevant to establish his state of mind at the time of the incident, such that he had a reasonable basis to belief the use of force was necessary.
With regard to his first contention, Thomas has again failed to proffer any evidence that the victim's purported mental illness hampered her ability to recall the incident. Although he repeats his assertion that the victim was "prescribed medication and she stopped taking it" and that "he was taking her to [psychiatric] appointments … within the last year, " he fails to support those statements with anything but bald allegations. Thomas's Brief at 64, citing N.T., 9/21/2009, at 119, 126. Indeed, during the argument on the motion in limine, the trial court read portions of the victim's preliminary hearing testimony where she acknowledged that she had been treated for depression and had received medication, but that she stopped taking the medication "four or five years" before the assault. N.T. 9/21/2009, at 116. Without any evidence linking the victim's past psychiatric treatment to her ability to recall the incident in question, Thomas's claim fails.
With regard to Thomas's contention that trial counsel was ineffective for failing to argue that his testimony concerning the victim's mental health was relevant to establish his state of mind at the time of the assault, he claims the victim threatened him with a gun, and she sustained her injuries when he wrestled the weapon from her. Therefore, he argues the testimony was relevant to support his justification defense, i.e., that his use of force was necessary to protect himself from her.
However, again, Thomas has failed to demonstrate that the victim suffered from a mental illness that would have caused her to act in an aggressive manner. Furthermore, he testified at trial that during their entire relationship, they had never had a physical altercation and that he was "not afraid of physical harm" from the victim. N.T., 9/23/2009, at 581, 630. Therefore, as the PCRA court opined, "[a]ny evidence that [Thomas] argues trial counsel should have presented to establish that the victim's mental illness caused her to attack him would have been contradicted by [Thomas's] testimony about his state of mind." PCRA Court Opinion, 5/28/2013, at 21. Accordingly, Thomas has failed to demonstrate that he was prejudiced by counsel's omission. See Steele, 961 A.2d at 717 ("[T]o establish prejudice, a petitioner must demonstrate that but for the act or omission in question, the outcome of the proceedings would have been different.") (citations omitted).
Because we agree with the conclusion of the PCRA court that Thomas has failed to demonstrate that prior counsel rendered ineffective assistance of counsel, we affirm the order denying PCRA relief.
Ford Elliott, P.J.E., concurs in the result. Judgment Entered.