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Harrold v. Marlow

United States District Court, M.D. Pennsylvania

March 2, 2015

DARRELL B. HARROLD, Petitioner,
v.
SUPERINTENDENT MICHAEL J. MARLOW, Respondent.

MEMORANDUM

SYLVIA H. RAMBO, District Judge.

Petitioner Darrell B. Harrold ("Harrold"), who is presently incarcerated at the State Correctional Institution in Albion, Pennsylvania, initiated this action by filing a pro se petition for writ of habeas corpus pursuant to the provisions of 28 U.S.C. ยง 2254. (Doc. 1.) In the petition, Harrold challenges his 2005 convictions and sentence in the Court of Common Pleas of Lycoming County, Pennsylvania ("trial court"). For the reasons that follow, the petition will be denied.

I. Background

The trial court summarized the facts leading to Harrold's arrest and eventual conviction as follows:

On May 8, 2004 Patrolman Thomas Bortz (Bortz) of the Williamsport Bureau of Police (WBP) arrived at a residence to meet with representatives from Children and Youth Services in investigation of a mother using/selling cocaine from the home. [Harrold] answered the door dressed only in underwear and, according to Bortz, had an erection. He reported that he was alone at the residence with the mother's two children. Bortz detected an odor of alcoholic beverages coming from [Harrold]. Bortz described [Harrold]'s behavior as apologetic, talkative, and nervous. The Children and Youth representatives expressed some concern about the alcholic odor with regard to caring for the children, but then exited the residence. The following day, Children and Youth Services received a report of sexual abuse involving [Harrold]. The report alleged that [Harrold] had performed oral sex on two boys, ages six and eight. An investigation followed. Victim [N.F.], age six, was interviewed first. He reported that [Harrold] touched him during a game of dare.' The victim reported oral sex occurring between each of the boys and [Harrold]. He also reported anal sex performed on him by [Harrold]. [R.F], [Harrold]'s nephew also described the game of dare.' [R.F.] also described oral and anal sex acts between the boys and [Harrold]. Both victims alleged that [Harrold] had given them sips of beer during the game.

(Doc. 18-4 at 22-23.) On November 23, 2004, after a two-day jury trial, Harrold was found guilty of five counts of involuntary deviate sexual intercourse, two counts of aggravated indecent assault, two counts of indecent assault, one count of endangering the welfare of a child, and one count of corruption of minors. (Doc. 18-5 at 33.) Harrold was sentenced to fifteen to thirty years of incarceration and ten years of consecutive probation. ( Id. )

Harrold then filed an appeal, claiming that the trial court erred by failing to merge the charges of aggravated indecent assault and involuntary deviate sexual intercourse for sentencing purposes. (Doc. 18-4 at 1-13.) The Superior Court upheld the sentence, stating that the facts supported the inference that there were "two distinct crimes, justifying two distinct sentences." (Doc. 18-6 at 1-2.)

On October 21, 2006, Harrold filed a petition under Pennsylvania's Post-Conviction Relief Act (PCRA), claiming principally that his trial counsel was ineffective for failing to call character witnesses to testify to his character for truthfulness. (Doc. 18-7 at 2.) On April 27, 2007, Harrold's appointed PCRA counsel filed a "no-merit letter" and motion to withdraw pursuant to the rule set forth in Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988). ( Id. ) The PCRA court subsequently denied Harrold's petition without a hearing and granted PCRA counsel's motion to withdraw. ( Id. at 2-3.)

After Harrold appealed the denial of his petition, the PCRA court requested that the Superior Court remand the case so that it could determine if Harrold's underlying claim of ineffective assistance of trial counsel had arguable merit. ( Id. at 3.) The PCRA court eventually held two evidentiary hearings to determine whether trial counsel had a reasonable basis for not calling character witnesses. ( Id. at 4.)

At the hearings, the PCRA court heard testimony from four witnesses that Harrold claimed would have testified at trial to his truthful character. ( Id. at 5.) Much of the argument at the hearings centered on the fact that Harrold had admitted in a videotaped interview that he had performed the sexual acts for which he was charged. ( Id. ) At trial, Harrold claimed that he falsely confessed during the interview because he wanted to get the interview over with. ( Id. ) At the PCRA court's evidentiary hearing, Harrold's potential witnesses each testified that they were unaware of the videotaped confession and that they were unsure if Harrold would lie in such a situation. ( Id. )

After the hearings, the PCRA court again denied Harrold's petition, and Harrold again appealed. ( Id. ) The Superior Court upheld the denial of Harrold's petition and reaffirmed the trial court's rationale. ( Id. at 11.) Specifically, the court found that it was reasonable for his trial counsel to not call witnesses to testify about Harrold's truthful character, as the jury may well have inferred from this testimony that it was even more likely that Harrold was telling the truth in his videotaped confession, and that Harrold was not prejudiced by the lack of character testimony. ( Id. at 8-10.) Harrold filed a petition for allowance of appeal with the Pennsylvania Supreme Court, but that petition was denied. (Doc. 19 at 3.)

Harrold filed the instant petition for writ of habeas corpus on June 15, 2013. (Doc. 1.) Harrold raises two grounds for relief in his petition: 1) his trial counsel was ineffective for failing to inform Harrold of his right to call character witnesses on his behalf, and 2) his trial counsel was ineffective for failing to prepare an adequate defense. (Doc. 1 at 5-6.) In their response, Respondents contend that the first ground was properly adjudicated by the state courts and that the second ground was never exhausted in the state courts and is now procedurally defaulted. (Doc. 19 at 5-8.) For the reasons that follow, the petition will be denied.

II. Discussion

A. Exhaustion of State ...


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