Opinion
J-S44033-16 No. 1710 EDA 2015
07-19-2016
COMMONWEALTH OF PENNSYLVANIA v. DAVID WILLOUGHBY, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order May 29, 2015 in the Court of Common Pleas of Philadelphia County, Criminal Division, No(s): CP-51-CR-0014671-2010 BEFORE: FORD ELLIOTT, P.J.E., STABILE and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
David Willoughby ("Willoughby") appeals from the Order dismissing his first Petition for relief filed pursuant to the Post Conviction Relief Act ("PCRA"). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court set forth the relevant factual and procedural history in its Pa.R.A.P. 1925(a) Opinion, which we incorporate herein by reference. See PCRA Court Opinion, 12/10/15, at 1-4.
At trial, Willoughby was represented by Holly Dobrosky, Esquire (hereinafter "trial counsel").
In response to the filing of Willoughby's appeal, the PCRA court ordered him to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Willoughby timely filed a Concise Statement, after which the PCRA court issued its Pa.R.A.P. 1925(a) Opinion.
On appeal, Willoughby presents the following issues for our review:
I. Whether the [PCRA] court erred by [dismissing Willoughby's] PCRA Petition[?]Brief for Appellant at 4 (issues renumbered for ease of disposition; some capitalization and footnotes omitted).
II. Whether the [PCRA] court erred by not granting [Willoughby's] PCRA [Petition] based on trial counsel's failure to confront [the] complainant[,] K[.]C[.] ["K.C.,"] on the proposed testimony of defense witness Ali Bey ["Bey"], thus prohibiting Bey's testimony at trial[?]
III. Whether the [PCRA] court erred by not granting [Willoughby's] PCRA [Petition] based on trial counsel's failure to object to numerous comments made by [the] trial judge[?]
IV. Whether the [PCRA] court erred by not granting [Willoughby's] PCRA [Petition] based on trial counsel's failure to object to an incomplete and misleading jury instruction regarding aggravated assault[?]
Our standard of review of the [dismissal] of a PCRA petition is limited to examining whether the evidence of record supports the [PCRA] court's determination and whether its decision is free of legal error. This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings. We give no such deference, however, to the court's legal conclusions.Commonwealth v. Secreti , 134 A.3d 77, 79-80 (Pa. Super. 2016) (citations omitted).
Each of Willoughby's above-mentioned claims, raised in his timely PCRA Petition, alleges that trial counsel rendered ineffective assistance. To succeed on such a claim, Willoughby must demonstrate by the preponderance of the evidence that
(1) [the] underlying claim is of arguable merit; (2) the particular course of conduct pursued by counsel did not have some reasonable basis designed to effectuate his interests; and (3) but for counsel's ineffectiveness, there is a reasonable probability that the outcome of the proceedings would have been different.Commonwealth v. Ali , 10 A.3d 282, 291 (Pa. 2010). A failure to satisfy any prong of the test for ineffectiveness will require rejection of the claim. Commonwealth v. Martin , 5 A.3d 177, 183 (Pa. 2010). Counsel is presumed to be effective, and the burden is on the appellant to prove otherwise. Commonwealth v. Hanible , 30 A.3d 426, 439 (Pa. 2011).
Willoughby first argues that the PCRA court erred by failing to rule that trial counsel was ineffective for not confronting the victim, K.C., at trial with the proposed testimony of defense witness Bey. See Brief for Appellant at 30-33. According to Willoughby, Bey would have testified that, prior to trial, K.C. admitted to Bey that she was not raped (hereinafter referred to as "the alleged prior inconsistent statement"). Id. at 30. Willoughby points out that the trial court's ruling that, because trial counsel never confronted K.C. on cross-examination with the alleged prior inconsistent statement, the defense was precluded from presenting this evidence. Id. Willoughby contends that the PCRA court conceded that trial counsel had no reasonable basis not to confront K.C. with the alleged prior inconsistent statement. Id. at 32 (citing PCRA Court Opinion, 12/10/15, at 8). However, according to Willoughby, the PCRA court erred in finding that trial counsel's omission did not cause Willoughby actual prejudice (and, therefore, Willoughby failed to meet all three prongs of the ineffectiveness test), as the alleged prior inconsistent statement "is significant and calls into question the only[] direct evidence [that] a reasonable jury could use to convict [Willoughby]." Brief for Appellant at 32-33; see also id. at 32 (asserting that "[s]ince this is a case of she said, he said, the jury's evaluation of [K.C.'s] testimony is so significant[] that the failure to allow a defense witness who intended on contradicting [K.C.] is the clearest example of prejudice one could find in a case.").
We will not separately address the first "issue" listed in Willoughby's Statement of Questions Presented, supra, as it is a general claim that the PCRA court improperly dismissed the PCRA Petition; his argument section concerning this issue merely restates the three remaining substantive issues he raises. See Brief for Appellant at 23.
Specifically, trial counsel stated that, if called as a witness, Bey would testify that, "on the evening of the preliminary hearing, [K.C.] called [Bey] and said that everything was blown out of proportion; she [K.C.] didn't tell the police it was a rape .... [S]o it shows [K.C.'s] own admission that she's lying here in court today ...." Brief for Appellant at 30 (quoting N.T., 10/5/11, at 325).
In its Opinion, the PCRA court thoroughly addressed this ineffectiveness claim, set forth the applicable law, and determined that it fails because Willoughby did not establish the prejudice prong of the ineffectiveness test. See PCRA Court Opinion, 12/10/15, at 6-14; see also Commonwealth v. Hutchinson , 811 A.2d 556, 562 (Pa. 2002) (noting that in the absence of a showing of prejudice, a PCRA petitioner's ineffectiveness claim "necessarily fails"). We affirm on this basis with regard to Willoughby's first claim. See PCRA Court Opinion, 12/10/15, at 6-14.
Next, Willoughby asserts that the PCRA court improperly failed to grant him collateral relief based on his claim that trial counsel was ineffective for failing to object to numerous prejudicial and improper comments made during trial by the trial court judge, the Honorable John J. O'Grady, Jr. ("Judge O'Grady"). Brief for Appellant at 24. According to Willoughby, on approximately thirteen separate occasions, Judge O'Grady made comments that allegedly showed the court's (1) bias against Willoughby; (2) "extreme favoritism towards the prosecution"; and (3) "condemnation directed at [] trial counsel." Id.; see also id. at 25 (asserting that Judge O'Grady "interjected himself into direct and cross-examination by commenting on the evidence, answering for the witnesses, characterizing and summarizing the witness's testimony, and providing his own argument[.]"). Willoughby points out that, on direct appeal, this Court ruled that he had waived his challenge to Judge O'Grady's comments, because trial counsel failed to lodge a timely objection at trial. Id. at 24-25; see also Commonwealth v. Willoughby , 102 A.3d 525 (Pa. Super. 2014) (unpublished memorandum at 5-7); id. at 7 (stating that "we are compelled to conclude that [Willoughby's] [] issue is waived, without prejudice to his ability to raise an ineffective assistance of counsel argument in a timely-filed PCRA petition.").
In his brief, Willoughby specifically identifies only three instances of Judge O'Grady's allegedly improper commentary. See Brief for Appellant at 26-27. Concerning the remaining instances, Willoughby merely provides page citations to the trial transcript, requiring this Court to guess as to which specific comments he objects. Id. at 24. He also fails to specify what type of relief he wanted trial counsel to request, had counsel objected to the comments. Moreover, in Willoughby's court-ordered Pa.R.A.P. 1925(b) Concise Statement, he did not identify the place in the record where any of the challenged comments appear. See Pa.R.A.P. 1925(b)(4)(ii) & (vii) (providing, respectively, that "[t]he Statement shall concisely identify each ruling or error that the appellant intends to challenge with sufficient detail to identify all pertinent issues for the judge[,]" and that "[i]ssues not included in the Statement and/or not raised in accordance with the provisions of this paragraph [] are waived." (emphasis added)); see also Commonwealth v. Hansley , 24 A.3d 410, 415 (Pa. Super. 2011) (stating that a "court's review and legal analysis can be fatally impaired when the court has to guess at the issues raised." (citation omitted)). We decline to find waiver on this basis.
Our review of the trial transcript confirms the PCRA court's determination that Willoughby failed to establish that his underlying claim is of arguable merit, as none of Judge O'Grady's comments exhibited bias, overreaching, or impropriety by the court. See PCRA Court Opinion, 12/10/15, at 14-15; see also Commonwealth v. Travaglia , 661 A.2d 352, 367 (Pa. 1995) (holding that "simply because a judge rules against a defendant [at trial] does not establish any bias against that defendant. If the appellate court determines that the party alleging judicial bias received a fair trial, then the allegation of judicial bias is not borne out."); Commonwealth v. King , 549 A.2d 195, 197 (Pa. Super. 1988) (holding that defense counsel was not ineffective for failing to object when there was no arguable merit to the underlying claim that the trial court judge had improperly asked a question of a witness). Rather, regarding Judge O'Grady's comments that Willoughby appears to challenge, the court was merely clarifying facts for the jury, curbing trial counsel's repetitive cross-examination in belaboring a point, and otherwise keeping the questioning proper and on-track. See Commonwealth v. Purcell , 589 A.2d 217, 224 (Pa. Super. 1991) (stating that it is not improper for a trial judge to clarify facts, and "[i]t is not partisan to maintain the wheel, steering evenly, between competing and often aggressive counsel, anxious to set the course." (citation omitted)); see also Commonwealth v. Meadows , 787 A.2d 312, 318 (Pa. 2001) (stating that "the court may summarize the evidence and note possible inferences to be drawn from it ..., provid[ed] that the statements have a reasonable basis and it is clearly left to the jury to decide the facts, regardless of any opinion expressed by the judge." (citation omitted)).
Moreover, we observe that on direct appeal, the trial court, in response to Willoughby's claim asserting improper/prejudicial comments by Judge O'Grady, stated that "[e]ven assuming that the trial court's remarks were unwise, none of them were made during the final charge, and none of them instructed (or even hinted to) the jury as to what the facts were against [Willoughby]." Trial Court Opinion, 7/1/13, at 8. This assertion is supported by the record.
Moreover, our review discloses that at no point did Judge O'Grady express an opinion as to Willoughby's guilt or innocence, or the credibility of any of the witnesses; thus, there was no basis for trial counsel to object. See Commonwealth v. Hughes , 865 A.2d 761, 793 (Pa. 2004) (citing Meadows , 787 A.2d at 318 (stating that "the court may not comment on, or give its opinion of, the guilt or innocence of the accused.")).
Finally, immediately prior to deliberations, Judge O'Grady instructed the jury as follows: "You, the jurors, are the sole judges of the facts. It is your responsibility to consider the evidence and determine the facts. You alone will apply these facts to the law ...." N.T., 10/6/11, at 358. Thus, even assuming, arguendo, that any of Judge O'Grady's remarks were improper, the above instruction minimized the possibility of undue prejudice to Willoughby. See Commonwealth v. Leonhard , 485 A.2d 444, 446-47 (Pa. Super. 1984) (holding that even "harsh" comments of the trial court, referring to the defendant's evidence as "very, very sparse," did not cause defendant undue prejudice, where the court instructed the jurors that they were the sole judges of the facts). It is presumed that the jury followed the court's instructions. Commonwealth v. Spotz , 896 A.2d 1191, 1224 (Pa. 2006). Accordingly, Willoughby's second claim of trial counsel's ineffectiveness does not entitle him to relief.
In his final issue, Willoughby argues that trial counsel was ineffective for failing to object to an "incomplete and misleading" jury instruction that Judge O'Grady issued regarding the charge of aggravated assault. See Brief for Appellant at 28-30. Willoughby points out that trial counsel's failure to object resulted in the waiver of his challenge to the instruction on direct appeal. Id. at 28; see also Willoughby , 102 A.3d 525 (unpublished memorandum at 7). Specifically, Willoughby challenges Judge O'Grady's supplemental instruction given in response to a jury question regarding the "serious bodily injury" element of aggravated assault. Brief for Appellant at 28-29. Willoughby contends that Judge O'Grady "improperly re-read only the prosecution-select[ed] portion of the charge, instead of re-reading the entire aggravated assault charge, so that the fragmented portion could be placed in its proper context." Id. at 28.
Our standard of review concerning a challenge to a jury charge requires us to determine
whether the trial court committed a clear abuse of discretion or an error of law which controlled the outcome of the case. In so doing, we must view the charge as a whole, recognizing that the trial court is free to use its own form of expression in creating the charge. [Our] key inquiry is whether the instruction on a particular issue adequately, accurately and clearly presents the law to the jury, and is sufficient to guide the jury in its deliberations. It is well-settled that the trial court has wide discretion in fashioning jury instructions.Commonwealth v. Scott , 73 A.3d 599, 602 (Pa. Super. 2013) (citations and quotation marks omitted).
Pennsylvania Rule of Criminal Procedure 647(C) authorizes the trial court to provide additional instructions to the jury after the jury has retired to consider its verdict. Pa.R.Crim.P. 647(C).
The scope of supplemental instructions given in response to a jury's request rests within the sound discretion of the trial judge. ... [W]here a jury returns on its own motion indicating confusion, the court has the duty to give such additional instructions on the law as the court may think necessary to clarify the jury's doubt or confusion.Commonwealth v. Davalos , 779 A.2d 1190, 1195 (Pa. Super. 2001) (citations omitted).
In its Opinion, the PCRA court determined that this ineffectiveness claim fails because Willoughby did not demonstrate that the underlying claim was of arguable merit. See PCRA Court Opinion, 12/10/15, at 15. In so ruling, the PCRA court relied upon the analysis previously offered by the trial court on direct appeal, wherein the court stated as follows:
[A]fter counsel made their closing arguments, the trial court instructed the jury on the aggravated assault charge by reading Pennsylvania Suggested Standard Criminal Jury Instruction 15.2702A, "Aggravated Assault - Attempted Serious Bodily Injury." During deliberations, the jury requested the trial court to repeat the aggravated assault instruction. After the re-reading [of] the aggravated assault instruction, juror number six inquired about the serious bodily injury portion of the charge. The trial court re-read the definition of serious bodily injury. ...Trial Court Opinion, 7/1/13, at 7-8. We agree with the court's determination.
... Even if the alleged error was not waived[, i.e., by trial counsel's failure to object to the supplemental instruction,] the trial court's charge clearly, adequately, and accurately stated the law on aggravated assault. Moreover, the trial court was well within its discretion to repeat the aggravated assault instruction to the jury, particularly when requested to do so by the jury.
Contrary to Willoughby's claim, Judge O'Grady was not required to reread the full instruction on aggravated assault; the court properly focused only on the portion of the instruction about which juror number six had inquired. See Davalos , supra (noting that "[t]he scope of supplemental instructions given in response to a jury's request rests within the sound discretion of the trial judge."); Commonwealth v. Akers , 572 A.2d 746, 755 (Pa. Super. 1990) (stating that a trial court "may properly confine supplemental instructions to the particular question asked by the jury despite a defendant's request for additional instructions.") (citation omitted); see also Scott , 73 A.3d at 602 (stating that a "trial court is not required to give every charge that is requested by the parties[,] and its refusal to give a requested charge does not require reversal unless the appellant was prejudiced by that refusal.") (citation omitted). Here, Judge O'Grady's supplemental instruction accurately conveyed the law on serious bodily injury. Furthermore, Willoughby has not established that he was prejudiced by Judge O'Grady's decision to confine the supplemental instruction to only the question asked by the jury. See Hutchinson , supra; Akers , supra.
Based upon the foregoing, we conclude that the PCRA court properly determined that Willoughby failed to prove his claims of trial counsel's ineffectiveness. Accordingly, the court did not err or abuse its discretion in dismissing Willoughby's first PCRA Petition.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 7/19/2016
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