Opinion
J-S50034-18 No. 276 WDA 2018
11-26-2018
COMMONWEALTH OF PENNSYLVANIA v. HENRY B. RICHTER, Appellant.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order, December 21, 2017, in the Court of Common Pleas of Somerset County, Criminal Division at No(s): CP-56-CR-0000476-2013. BEFORE: BOWES, J., OTT, J., and KUNSELMAN, J. MEMORANDUM BY KUNSELMAN, J.:
Henry Richter appeals from the order denying his first petition for relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541 - 9546 following his convictions of Aggravated Indecent Assault and Endangering the Welfare of Children. We affirm the order denying Richter's post-conviction relief on the basis of the PCRA court's opinion.
The pertinent facts of this case as summarized by the PCRA court are as follows:
On October 17, 2013, the District Attorney filed a Criminal Information charging [Richter] with Statutory Sexual Assault, Aggravated Indecent Assault (complainant less than sixteen years old), and Endangering the Welfare of Children. The charges arose out of reports that [Richter] had sexual relations with his fourteen year old niece, N.H., an instance of which was witnessed by one of [Richter's] sons on Father's Day, June 16, 2013. Trial Tr. 1.40-43, Jan. 19, 2016.
On the date of the incident, [Richter's] minor son B.R. descended the stairs in the family residence and witnessed the victim, N.H., bent over with her pants down, and [Richter] standing directly behind her with his pants down, from which B.R. immediately concluded that the two were having sex. Id. at 1.113-17. N.H. was fourteen years of age at the time. Id. at 1.46, 1.85. B.R. ran upstairs and notified his brother through a series of messages on social media, and later the brothers notified police. Id. at 1.116, 1.79-80. An investigation was conducted which ultimately led to [Richter's] arrest. Id. at 1.40-58. [Richter] was initially represented by Attorney Brian Salisbury in the preliminary stages of the case, and on May 5, 2014, a request for a continuance was submitted to allow for additional plea negotiations and to allow [Richter] to find a new attorney. See Req. for Continuance, May 5, 2014. This Court granted that request, as well as additional continuance requests from both [Richter] and the Commonwealth, ultimately postponing the trial until January 19 and 20, 2016.
Trooper William Ted Goins was the criminal investigator for the Somerset County State Police who investigated the incident, and he testified on behalf of the Commonwealth at trial. Trial Tr. 1.38-59. Trooper Goins testified that on June 19, 2013, he received a report from a Children and Youth Services (hereafter "CYS") caseworker of potential sexual abuse involving a child, and subsequently travelled to Quecreek to interview [Richter]'s sons, B.R. and A.R. Id. at 1.40-43. During the interview of B.R., Trooper Goins was informed that on June 16, 2013, B.R. witnessed [Richter], his father, having sexual intercourse with N.H., [Richter's] fourteen year old niece. Id. at 1.43. As a result of the information obtained from B.R. and A.R., Trooper Goins determined he had probable cause to "certainly detain and probably arrest" [Richter] for crimes related to his conduct on June 16, 2013. Id. at 1.44. At that time, Trooper Goins decided to take [Richter] and N.H. separately to the police barracks for interviews. Id.
Trooper Goins testified that he first interviewed N.H with a representative from CYS present, and stated that at first, N.H. denied that she ever engaged in sexual intercourse with [Richter]. Id. at 1.48-50. However, eventually N.H. admitted to Trooper Goins that she had an ongoing
consensual sexual relationship with [Richter], and "described Henry as sweet and that she was in love with him." Id. at 1.50. [Richter] denied the allegations and stated to Trooper Goins that "[B.R.] did not see what he thought he saw," and requested an attorney. Id. at 1.50-51.
N.H. and B.R. both testified to the events on June 16, 2013 at trial. Id. at 1.84, 1.108. N.H. testified to the incident reported by B.R. that occurred on Father's Day 2013, as well as testified to an ongoing consensual sexual relationship with [Richter]. Id. at 1.90-92. When asked why she didn't report the relationship, N.H. stated that she "didn't feel that anybody needed to know," and when asked about her feelings regarding [Richter], N.H. stated "I felt good because somebody was actually paying attention to me and loving me." Id. at 1.90-91.
On cross-examination, counsel for [Richter] questioned N.H. about interviews taken by CYS, wherein N.H. was asked whether she had been abused by [Richter] or anyone else in the household. Id. at 1.95. In relation to those interviews, [Richter's] trial counsel, Attorney Gary Gerson, asked N.H., "And you repeatedly denied that you had been abused in any manner, particularly sexually, by Henry, correct?" to which N.H. admitted that she had denied ever being sexually abused by [Richter]. Id. Attorney Gerson also questioned N.H. about her prior allegations of sexual abuse against individuals other than [Richter], to which N.H. denied that those allegations were made in an attempt to get attention. Id. at 1.98. N.H. admitted that she had issues with bedwetting, and at the time of the incident she was a chronic bedwetter. Id. at 1.93.
N.H. also testified that while living in the residence, she often asked [Richter] for permission to do things, [Richter] set the rules of the house, and she was required to abide by and listen to [Richter] as well as her aunt, Bobbi-Jo ([Richter]'s fiancé), who also lived in the residence. Id. at 1.87. [Richter] admitted that he provided food, shelter and transportation for N.H., and that CYS had [Richter] listed as a caretaker for N.H., however [Richter] maintained that he was not a caretaker or provider for N.H. during the time period she lived in the residence. Id. at 2.30-32.
B.R., [Richter]'s son, described what he witnessed on June 16, 2013 at trial, stating, "I saw [N.H.] bent over with her pants down and my father inside of her, and whenever they saw me he pushed her away from him and they pulled up their pants . . . ." Id. at L113. B.R. further testified that he ran back upstairs after seeing his father and N.H. having sex, and then N.H. came upstairs and brought B.R. a handwritten note requesting that B.R. join her downstairs for breakfast. Id. at 1.117. When B.R. went downstairs, [Richter] was doing dishes and said, "I know what you saw isn't right and you shouldn't have saw it." Id. at 1.118.
On cross-examination, Attorney Gerson thoroughly questioned B.R. as to the amount of time that elapsed between him seeing [Richter] and N.H. in the kitchen and B.R. running back upstairs, as well as what exactly he saw and did not see. Id. at 1.120-26. Attorney Gerson also questioned B.R. at length regarding the conversation he had with his brother, A.R., that morning via Facebook messenger. Id. at 1.115-16, 1.122-29.
In addition to [Richter's] sons, the victim, and Trooper Goins, the Commonwealth provided forensic evidence and two scientific experts, Jennifer Badger, a serologist at the Pennsylvania State Police Crime Lab, and Dr. Alex Glessner, a forensic DNA scientist with the Pennsylvania State Police. Id. at 1.134-35, 1.148-49. Jennifer Badger testified to testing a blanket that was retrieved from [Richter's] residence, indicating that serological testing determined that there was semen on the blanket, and explained the procedure that was followed in collecting samples from the blanket and sending the samples for DNA testing. Id. at 1.139-45. Dr. Glessner explained the testing he performed on the samples, indicating that the DNA on the blanket matched that of both [Richter] and N.H. Id. at 1.151-62.
Before [Richter] testified, the [c]ourt explained [Richter's] right against self-incrimination, and questioned [Richter] on his understanding of his right not to testify, whether [Richter] had been adequately informed of the potential risks associated with testifying by Attorney Gerson, and generally whether [Richter] was making an informed, voluntary decision to waive his Fifth Amendment rights and testify on his own behalf. Id. at 2.1-2. [Richter]
indicated that he was adequately informed of his rights and intended to testify. Id.PCRA Court Opinion, 12/22/17, 2-7.
In his testimony, [Richter] adamantly denied that he ever had sexual intercourse with N.H. Id. at 2.18-19, 2.20. [Richter] offered an alternative series of events, stating that his pants were never down, and N.H. pulled her pants down as a sort of practical joke, which was caught by B.R. at a moment where it may have looked like something was going on, even though [Richter] did not have his pants down and was not having intercourse with N.H. Id. at 2.16-20. [Richter] asserted that he told B.R. "What you saw isn't what you think you saw," and denied ever apologizing. Id. at 2.20. [Richter] denied all of the allegations by the District Attorney that he ever had sexual intercourse with N.H. Id. at 2.21-26. [Richter] also testified that he saw B.R. and N.H. in B.R.'s bedroom with B.R.'s pants down two days before Father's Day, and testified that his semen would only be found on the blanket as a result of sexual activities he had with his fiancé Bobbi-Jo, not N.H. Id. at 2.13-14, 2.30-31, 2.33-34. Further, [Richter] offered the explanation of N.H.'s DNA being present on the blanket as a result of her chronic bedwetting. Id.
On January 20, 2016, a jury found [Richter] guilty of Aggravated Indecent Assault and Endangering the Welfare of Children, but returned a not guilty verdict on the Statutory Sexual Assault charge. Trial Tr. 2.92-93. On April 18, 2016, [Richter] was sentenced by this [c]ourt.
The trial court sentenced Richter thirty-six months to one-hundred twenty months incarceration and a $500 fine for aggravated indecent assault, and was additionally sentenced to nine to eighteen months incarceration and a $100 fine for endangering the welfare of children. Richter filed a direct appeal from the judgment of sentence, arguing insufficient evidence existed to sustain either of the convictions. This Court affirmed the trial court on December 6, 2016. Commonwealth v. Richter , No. 755 WDA 2016 (Pa. Super. Ct. Dec. 6, 2016) (unpublished).
On April 17, 2017, Richter filed a Petition for Post-Conviction Relief, alleging ineffective assistance of counsel for Richter's three previous lawyers. The PCRA court held an evidentiary hearing on September 26, 2017. By order entered December 21, 2017, the PCRA dismissed Richter's petition. This timely appeal follows. Both Richter and the PCRA court have complied with Pa.R.A.P. 1925.
Richter raises the following allegations of ineffective assistance of counsel:
1. Counsel Salisbury and Counsel Gerson were ineffective for failing to assert a conflict of interest objection against Assistant District Attorney Carolann Young on the basis that Young had previously represented [Richter] during child custody proceedings and further when Young participated in the instant case as an Assistant District Attorney.See Richter's Brief at 4. Our scope and standard of review in a PCRA case is well settled:
2. Counsel Gerson was ineffective for failing to impeach the victim with the victim's own prior inconsistent statements and prior accusations that were offered in State Trooper Goins testimony.
3. Counsel Gerson was ineffective for failing to call [Richter's] fiancée, Bobbi Jo Harbaugh as a witness, as she was present in the house the morning of the alleged criminal act.
4. Counsel Calabrese failed to "perfect" [the direct appeal] from [Richter's] judgment of sentence because he failed to specify in the Pa.R.A.P. 1925(b) statement which elements of the offenses lacked sufficient evidence.
In PCRA appeals, our scope of review is limited to the findings of the PCRA court and the evidence on the record of the PCRA court's hearing, viewed in the light most favorable to the prevailing party. Because most PCRA appeals involve questions of fact and law, we employ a mixed standard of review. We defer to the PCRA court's factual findings and credibility determinations supported by the record. In contrast, we review the PCRA court's legal conclusions de novo.Commonwealth v. Reyes-Rodriguez , 111 A.3d 775, 779 (Pa. Super. 2015) (internal citations and quotations omitted).
To obtain relief under the PCRA premised on a claim that counsel was ineffective, a petitioner must establish, by a preponderance of the evidence, that counsel's ineffectiveness so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. Commonwealth v. Johnson , 966 A.2d 523, 532 (Pa. 2009). "Generally, counsel's performance is presumed to be constitutionally adequate. Id. To succeed on a PCRA claim of ineffective assistance, a petitioner must demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel had no reasonable strategic basis for his or her action or inaction; and (3) petitioner was prejudiced by counsel's act or omission. Id. at 533.
Moreover, trial counsel's strategic decisions cannot be the subject of a finding of ineffectiveness if the decision to follow a particular course of action was reasonably based and was not the result of sloth or ignorance of available alternatives. Commonwealth v. Collins , 545 A.2d 882, 886 (Pa. 1988) (cited with approval by Commonwealth v. Hall , 701 A.2d 190, 204 (Pa. 1997)). Counsel's approach must be "so unreasonable that no competent lawyer would have chosen it." Commonwealth v. Ervin , 766 A.2d 859, 862-63 (Pa. Super. 2000) (quoting Commonwealth v. Miller , 431 A.2d 233, 234 (Pa. 1981). Our Supreme Court has defined "reasonableness" as follows:
Our inquiry ceases and counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel's decision had any reasonable basis.Commonwealth v. Pierce , 527 A.2d 973, 975 (Pa. 1987) (quotation omitted). See also Commonwealth v. Clark , 626 A.2d 154, 157 (Pa. 1993) (explaining that a defendant asserting ineffectiveness based upon trial strategy must demonstrate that the "alternatives not chosen offered a potential for success substantially greater than the tactics utilized)." A defendant is not entitled to appellate relief simply because a chosen strategy was unsuccessful. Commonwealth v. Buksa , 655 A.2d 576, 582 (Pa. Super. 1995).
Finally, a finding of "prejudice" requires the petitioner to show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. In assessing a claim of ineffectiveness, when it is clear that appellant has failed to meet the prejudice prong, the court may dispose of the claim on that basis alone, without a determination of whether the first two prongs have been met. Commonwealth v. Travaglia , 661 A.2d 352, 357 (Pa. 1995).
After careful review, we conclude that the Honorable Scott P. Bittner prepared a thorough and well-reasoned opinion that correctly disposed of each of Richter's ineffectiveness claims. Judge Bittner discussed all three prongs of the ineffectiveness test to each of Richter's allegations. As to Richter's first claim, the PCRA court found no merit to the conflict of interest issue. The PCRA court combined Richter's next two claims and concluded that trial counsel's chosen strategy was reasonable, and the alternatives suggested by Richter did not offer "a potential for success substantially greater than the tactics utilized" by trial counsel. Clark , supra. As to Richter's final claim, Judge Bittner also concluded that he did not show how he was prejudiced by appellate counsel's alleged ineffectiveness since both the trial court and this Court evaluated Richter's direct appeal on its merits, despite counsel's failure to specifically address which elements of the two crimes were not sufficiently established.
We agree with the PCRA court's analysis and conclusions regarding all four issues Richter raised in his appeal. Therefore, we adopt Judge Bittner's December 22, 2017 opinion as our own in disposing of the present appeal. The parties are directed to attach a copy of the trial court opinion to this memorandum in the event of further proceedings.
Order affirmed. Judgment Entered. /s/
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/26/2018
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