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[U] Commonwealth v. Thomas

Superior Court of Pennsylvania

February 27, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
DUANE BROCK THOMAS Appellant

NON-PRECEDENTIAL DECISION

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.

MEMORANDUM

OTT, 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, [1] aggravated assault, [2] 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.[3]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The facts underlying Thomas's arrest and conviction were summarized in the unpublished memorandum decision affirming Thomas's conviction on direct appeal, and we will briefly note that, on the evening of January 9, 2009, Thomas beat and raped the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 See Commonwealth v. Thomas, 32 A.3d 274 (Pa.Super. 2011) (unpublished memorandum at 1-6), appeal denied, 34 A.3d 83 (Pa. 2011).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).[4] 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.[5] 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.[6] 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.[7]

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 ...

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