Opinion
J-S01010-17 No. 1030 MDA 2016
01-30-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. MARQUALE JAMAL SMITH Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order June 1, 2016
In the Court of Common Pleas of Snyder County
Criminal Division at No(s): CP-55-CR-0000164-2013 BEFORE: GANTMAN, P.J., DUBOW, J., and MUSMANNO, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Marquale Jamal Smith, appeals from the order entered in the Snyder County Court of Common Pleas, which denied his first petition brought pursuant to the Post Conviction Relief Act ("PCRA"). We affirm.
This Court previously set forth the relevant facts of this case as follows:
Appellant and [V]ictim were formerly in a relationship and had a child together. [V]ictim would bring their child to Appellant's mother's home, where Appellant lived, while [V]ictim worked. She would then return to his house to pick up the child after her shift was over. On May 13, 2013, [V]ictim arrived at Appellant's home at approximately 4:00 p.m. to pick up her child. Soon after entering the home, Appellant took her cell phone and keys.
He accused [V]ictim of having a sexual relationship with another man, and was attempting to check her phone for text messages or other proof that she was seeing someone else.
[V]ictim's child, who was approximately six months old at the time, awoke. [V]ictim then went into Appellant's bedroom to breastfeed. She sat on Appellant's bed with her clothes on and lifted her shirt so that the baby could have access to her breasts. Appellant then entered and began to call [V]ictim a slut or a whore. At that point, he began to remove her pants. [V]ictim told Appellant to stop, but he removed [V]ictim's pants. She repeated that she did not want to have sex. He then stated that if other men could "get some, then he should, too." Appellant then penetrated [V]ictim's vagina with his penis. [V]ictim continued to tell Appellant to stop, and the baby began to cry as did [V]ictim. Shortly thereafter, Appellant exited the room and [V]ictim dressed herself and took the baby into the living room. She asked for her keys so that she could leave.
Appellant continued to accuse [V]ictim of being in a relationship with another man from her work and took the baby from her. He then told [V]ictim that she could not leave with the child unless she had sex with him again. After one-half-hour of discussing [V]ictim having sex with Appellant before she could leave, [V]ictim finally acquiesced. According to her, she only engaged in intercourse with Appellant so she could take her baby and leave.
After the second assault, Appellant refused to let [V]ictim immediately leave with the child. He then threw [V]ictim's cell phone against a wall, breaking it. Finally, Appellant returned [V]ictim's car keys. Upon leaving, [V]ictim went with her child and traveled immediately to the home of the closest person she knew in the area, which was her former boyfriend. She told him what occurred, and then went home to pick up her brother to take him to work for a nightshift at 10:00 p.m. After dropping off her brother, she went to the Pennsylvania State Police and reported the incident. She then went to a hospital for testing and informed a nurse of the assaults.
The following morning, police arrested Appellant while he was seated on the front porch of [V]ictim's home. He admitted to having sexual relations with [V]ictim the night before, but maintained that the sex was consensual. According to him, [V]ictim stripped down naked on his bed while breastfeeding, and the child then fell asleep before the two had sex the first time. In addition, he indicated that the second time they had sexual relations she instigated it and began having oral sex with him.Commonwealth v. Smith , No. 1033 MDA 2014, unpublished memorandum at 1-3 (Pa.Super. filed March 31, 2015) (internal citation omitted).
Procedurally, a jury convicted Appellant on February 18, 2014, of sexual assault, indecent assault, and unlawful restraint. The court also convicted Appellant of criminal mischief. On May 23, 2014, the court sentenced Appellant to an aggregate term of three (3) to six (6) years' imprisonment. This Court affirmed the judgment of sentence on March 31, 2015. See id. Appellant did not seek further direct review. On March 4, 2016, Appellant timely filed a counseled PCRA petition raising claims of ineffective assistance of counsel. The court held a PCRA hearing on June 1, 2016, at the conclusion of which the court denied PCRA relief. Appellant timely filed a notice of appeal on June 23, 2016. On June 27, 2016, the court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b); Appellant timely complied.
Appellant raises two issues for our review:
[WHETHER] THE [PCRA] COURT ERRED IN DENYING THE [PCRA] PETITION WHERE THE [PCRA] COURT FOUND NO PREJUDICE TO [APPELLANT] IN THE LACK OF
PREPARATION FOR TESTIFYING AT TRIAL WHERE [APPELLANT] BELIEVED THAT HE WAS NOT GOING TO BE TESTIFYING AND THE LACK OF PREPARATION AFFECTED HIS DEMEANOR AND TESTIMONY ON THE STAND[?](Appellant's Brief at 3).
[WHETHER] THE [PCRA] COURT ERRED IN DENYING THE [PCRA] PETITION WHERE THE [PCRA] COURT FOUND NO PREJUDICE TO [APPELLANT] WHEN TRIAL COUNSEL FAILED TO BRING OUT EVIDENCE OF [APPELLANT'S] INTENTION TO SEEK CUSTODY OF THE MINOR CHILD OF [APPELLANT] AND VICTIM WHERE SUCH TESTIMONY WOULD HAVE ESTABLISHED A MOTIVE FOR VICTIM TO TESTIFY FALSELY[?]
Our standard of review of the denial of a PCRA petition is limited to examining whether the record evidence supports the court's determination and whether the court's decision is free of legal error. Commonwealth v. Ford , 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 A.2d 319 (2008). This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings. Commonwealth v. Carr , 768 A.2d 1164 (Pa.Super. 2001). If the record supports a post-conviction court's credibility determination, it is binding on the appellate court. Commonwealth v. Dennis , 609 Pa. 442, 17 A.3d 297 (2011).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Michael T. Hudock, we conclude Appellant's issues merit no relief. The PCRA court opinion comprehensively discusses and properly disposes of the questions presented. ( See PCRA Court Opinion, filed August 4, 2016, at 2-7) (finding: (1) Appellant's testimony, that trial counsel failed to discuss with him possibility of testifying at trial or prepare Appellant to testify, was not credible; Appellant's mother admitted she attended meetings with Appellant and trial counsel, during which counsel, Appellant, and Appellant's mother discussed possibility of Appellant testifying at trial; Appellant's mother insisted she did not want Appellant to testify; trial counsel said he discussed with Appellant general parameters of testifying, and stated it was ultimately Appellant's decision whether to testify; court credited counsel's testimony that he and Appellant had pre-trial discussions concerning whether Appellant should testify and how Appellant should testify; counsel and Appellant made final decision that Appellant would testify at close of Commonwealth's presentation of testimony/evidence; Appellant's ineffectiveness claim lacks arguable merit and, in any event, Appellant demonstrated no prejudice; (2) trial counsel testified that Appellant and Victim had no custody action pending at time of incident or when Commonwealth filed criminal charges against Appellant; counsel said no evidence supported Appellant's contention that Victim falsified allegations against him due to alleged custody dispute; trial counsel's strategy was to demonstrate Appellant and Victim engaged in consensual sex on day in question; counsel elicited testimony at trial showing Appellant and Victim were parents of child, were involved in relationship, and frequently had consensual sex; in light of counsel's trial strategy, his decision not to elicit testimony about alleged custody dispute was reasonable; as well, Appellant failed to show prejudice). Accordingly, we affirm on the basis of the PCRA court's opinion.
The PCRA hearing testimony makes clear Appellant initially wanted to testify at trial but Appellant's mother objected. Trial counsel believed Appellant should testify because of the "he said/she said" nature of the case. Trial counsel advised Appellant how to testify in the event Appellant decided to take the stand. Prior to trial, it was "up in the air" regarding whether Appellant would testify. After the conclusion of the Commonwealth's case, trial counsel advised Appellant to testify, and Appellant heeded counsel's advice.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/30/2017
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