Commonwealth v. Adams-Smith
Commonwealth v. Adams-Smith
Opinion
Appellant, Rasheed Adams-Smith, appeals from the order entered in the Montgomery County Court of Common Pleas, which denied his first petition brought pursuant to the Post-Conviction Relief Act ("PCRA"), at 42 Pa.C.S.A. §§ 9541 - 9546. We affirm in part, vacate in part, and remand with instructions.
The trial court and this Court set forth the relevant facts and previous procedural history of this case as follows.
On April [4], 2014, following trial before the [trial court] and a jury, [Appellant]-then represented by William E. Moore, Esquire-was convicted of rape of a child under the age of thirteen, involuntary deviate sexual intercourse [ ("IDSI") ] with a child under the age of thirteen, indecent assault of a child under the age of thirteen, and indecent exposure.
At trial, the Commonwealth presented evidence that [Appellant]-a close friend of the victim's family-began improperly *1016 touching the victim (A.G.) at a time when A.G. was approximately five (5) years old and [Appellant] was a teenager. 5 This improper contact continued over a period of years, beginning with repeated touching by [Appellant] of A.G.'s bare buttocks and ultimately escalating to, inter alia , [Appellant] exposing himself and masturbating to ejaculation in front of A.G. and repeatedly penetrating A.G.'s anus with [Appellant's] penis. A.G. testified that these anal penetrations occurred "too many times to count."
5 At the time of trial, A.G. was ten (10) years old and [Appellant] was twenty (20).
[Appellant] was charged with and convicted of crimes he committed after his eighteenth birthday, specifically the period between July 2011 and September 2012. Evidence of [Appellant's] earlier improper conduct with [Victim] was admitted-upon the Commonwealth's motion-solely to provide the jurors with the complete background and history of the case.
On August 1, 2014, [Appellant] appeared before the [trial court] for a hearing to determine whether [Appellant] would be classified as a sexually violent predator [ ("SVP") ]. Following hearing, the [trial court] accepted the recommendation of the Pennsylvania Sexual Offenders Assessment Board and determined that [Appellant] was, in fact, [an SVP].
The case then proceeded immediately to sentencing. Following hearing, the [trial court] imposed a standard range sentence of not less than ten (10) nor more than twenty (20) years['] imprisonment on [Appellant's] conviction for rape of a child. The [trial court] imposed a consecutive standard range sentence of not less than ten (10) and not more than twenty (20) years['] imprisonment on [Appellant's] conviction for [IDSI] with a child. The [trial court] further imposed a concurrent sentence of not less than one (1) nor more than two (2) years['] imprisonment on [Appellant's] conviction for indecent assault, and a sentence of two (2) years['] probation on his conviction for indecent exposure.
[Appellant] thus received an aggregate sentence of not less than twenty (20) nor more than forty (40) years['] imprisonment, with the [trial court] explaining the reasons for the sentences imposed at some length on the record.
Commonwealth v. Adams-Smith
, No. 85 EDA 2015,
Appellant timely filed pro se his first PCRA petition on November 18, 2016.
[The PCRA] court granted [Appellant's] request for court-appointed PCRA counsel by order dated May 1, 2017, and filed of record on May 2, 2017, after an evidentiary hearing regarding [Appellant's] indigency. Court-appointed PCRA counsel filed a "Petition for Permission to Withdraw as Counsel" on July 7, 2017, to which he attached a "no-merit" letter [pursuant to Commonwealth v. Turner ,518 Pa. 491 ,544 A.2d 927 (1988) and *1017 Commonwealth v. Finley , [379 Pa.Super. 390 ],550 A.2d 213 ( [Pa.Super.] 1988) ( en banc ) ] dated July 5, 2017. [Appellant] responded by filing a pro se document entitled "Petitioner's Response to Finley Letter" on July 20, 2017.
On October 23, 2017, [the PCRA] court filed of record its "Notice of Intention to Dismiss," which also granted court-appointed counsel's request for permission to withdraw. That notice was based upon [Appellant's] pro se PCRA petition, court-appointed PCRA counsel's "no-merit" letter, [Appellant's] pro se response thereto, and [the PCRA] court's independent review of the record and legal research. On November 13, 2017, [Appellant] acting pro se filed "Petitioner's Response to Notice of Intent to Dismiss." Review and consideration of [Appellant's] response failed to persuade [the PCRA] court that [Appellant] was entitled to a hearing on his PCRA petition or entitled to any form of PCRA relief. Accordingly, [the PCRA] court by order entered November 22, 2017, dismissed [Appellant's] "Petition for Post-Conviction Relief (PCRA)" filed November 18, 2016, without [a] hearing.
[Appellant] filed a notice of appeal on December 18, 2017. [The PCRA] court directed [Appellant] to file a concise statement of errors complained of on appeal by order dated and entered [December 21, 2017]. [Appellant] complied by filing his concise statement on January 5, 2018.
(PCRA Court Opinion, filed February 21, 2018, at 2).
Appellant raises the following issues for our review:
1. WHETHER THE PCRA COURT ERRED AS A MATTER OF LAW, WHEN IT DISMISSED THE PCRA PETITION WITHOUT A HEARING[?]
2. WHETHER APPELLANT IS ENTITLED TO A NEW TRIAL OR DISMISSAL OF THE CHARGES WHERE TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO PRESENT ANY COUNTER ARGUMENTS PRIOR TO OR DURING, OR FAILING TO OBJECT TO THE COMMONWEALTH'S INTRODUCTION AT TRIAL OF PRIOR BAD ACTS[?]
3. WHETHER APPELLANT IS ENTITLED TO A NEW TRIAL OR DISMISSAL OF THE CHARGES WHERE TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO PURSUE [A] PRETRIAL INTERVIEW TO EXPLORE TAINT OF MINOR VICTIM IN ACCORDANCE WITH 42 PA.C.S.A. § 5985.1 & PA.R.E. 601 [?]
4. WHETHER APPELLANT IS ENTITLED TO A NEW TRIAL OR DISMISSAL OF CHARGES WHERE, TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO CONDUCT A PROPER CROSS-EXAMINATION OF COMMONWEALTH WITNESS DR. SCRIBANO & MOVE TO STRIKE HIS TESTIMONY AS NON-RELEVANT PURSUANT TO [PENNSYLVANIA RULES OF EVIDENCE?]
5. APPELLANT IS ENTITLED TO A NEW TRIAL OR DISMISSAL OF THE CHARGES DUE TO THE CUMULATIVE NATURE OF THE ERRORS IN THIS CASE[?]
(Appellant's Brief at 2).
Preliminarily, we observe that appellate briefs must conform in all material respects to the briefing requirements set forth in the Pennsylvania Rules of Appellate Procedure. Pa.R.A.P. 2101. See also Pa.R.A.P. 2114 - 2119 (addressing specific requirements of each subsection of brief on appeal). Regarding the argument *1018 section of an appellate brief, Rule 2119(a) provides:
Rule 2119. Argument
(a) General rule. -The argument shall be divided into as many parts as there are questions to be argued; and shall have at the head of each part-in distinctive type or in type distinctively displayed-the particular point treated therein, followed by such discussion and citation of authorities as are deemed pertinent.
Pa.R.A.P. 2119(a). "[I]t is an appellant's duty to present arguments that are sufficiently developed for our review. The brief must support the claims with pertinent discussion, with references to the record and with citations to legal authorities."
Commonwealth v. Hardy
,
Instantly, Appellant did not properly develop his argument section for his fourth appellate issue, concerning the Commonwealth's expert witness, Dr. Scribano. Appellant notes several reasons why he thinks Dr. Scribano was an unreliable witness, but Appellant does not discuss how this relates to ineffective assistance of counsel or cite to relevant law.
See
Pa.R.A.P. 2119(a). We decline to make Appellant's argument for him.
See
Hardy,
In his remaining issues combined, Appellant announces the PCRA court improperly relied on counsel's Turner / Finley no-merit letter when the court dismissed his PCRA petition without an evidentiary hearing. Appellant contends trial counsel was ineffective for failing to object at trial to evidence of prior bad acts, specifically related to Appellant's acts of abuse of Victim, which occurred before Appellant's eighteenth birthday. Appellant further contends appellate counsel was ineffective for not preserving the prior-bad-acts claim on direct appeal.
Appellant also avers trial counsel was ineffective because counsel did not request a competency hearing regarding Victim, where Victim's testimony may have been tainted during an interview with a social worker. Appellant claims the many instances of ineffective assistance of counsel amount to cumulative error. Appellant concludes this Court should dismiss his convictions or order a new trial. We disagree.
Our standard of review of the denial of a PCRA petition is limited to examining whether the evidence of record supports the court's determination and whether its decision is free of legal error.
Commonwealth v. Conway
,
The law presumes counsel has rendered effective assistance.
Commonwealth v. Williams
,
"The threshold inquiry in ineffectiveness claims is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit...."
Commonwealth v. Pierce
,
Once this threshold is met we apply the 'reasonable basis' test to determine whether counsel's chosen course was designed to effectuate his client's interests. If we conclude that the particular course chosen by counsel had some reasonable basis, our inquiry ceases and counsel's assistance is deemed effective.
Pierce, supra
at 524,
Prejudice is established when [a defendant] demonstrates that counsel's chosen course of action had an adverse effect on the outcome of the proceedings. The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. In [ Kimball, supra ] , we held that a "criminal defendant alleging prejudice must show that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable."
Commonwealth v. Chambers
,
"Where matters of strategy and tactics are concerned, counsel's assistance is deemed constitutionally effective if
*1020
he chose a particular course that had some reasonable basis designed to effectuate his client's interests."
Commonwealth v. Sneed
,
A finding that a chosen strategy lacked a reasonable basis is not warranted unless it can be concluded that an alternative not chosen offered a potential for success substantially greater than the course actually pursued. A claim of ineffectiveness generally cannot succeed through comparing, in hindsight, the trial strategy employed with alternatives not pursued.
Id.
at 19-20,
Generally, character evidence is not admissible to prove conduct. Pa.R.E. 404(b).
Rule 404. Character evidence not admissible to prove conduct; exceptions; other crimes
* * *
(b) Other crimes, wrongs, or acts.
(1) Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.
(2) Evidence of other crimes, wrongs, or acts may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.
(3) Evidence of other crimes, wrongs, or acts proffered under subsection (b)(2) of this rule may be admitted in a criminal case only upon a showing that the probative value of the evidence outweighs its potential for prejudice.
Pa.R.E. 404(b)(1)-(b)(3). There are limited exceptions to the admission at trial of evidence of other crimes or prior bad acts.
One such exception arises in the prosecution of sexual offenses. Evidence of prior sexual relations between defendant and his...victim is admissible to show a passion or propensity for illicit sexual relations with the victim. This exception is limited, however. The evidence is admissible only when the prior act involves the same victim and the two acts are sufficiently connected to suggest a continuing course of conduct. The admissibility of the evidence is not affected by the fact that the prior incidents occurred outside of the statute of limitations.
[T]he trial court is not...required to sanitize the trial to eliminate all unpleasant facts from...consideration where those facts are relevant to the issues at hand and form part of the history and natural development of the events and offenses for which the defendant is charged.
Res gestae evidence is of particular import and significance in trials involving sexual assault. By their very nature, sexual assault cases have a pronounced dearth of independent eyewitnesses, and there is rarely any accompanying physical *1021 evidence.... [In these] cases the credibility of the complaining witness is always an issue.
"The general rule in Pennsylvania is that every person is presumed competent to be a witness."
Commonwealth v. Delbridge
,
A competency hearing concerns itself with the minimal capacity of the witness to communicate, to observe an event and accurately recall that observation, and to understand the necessity to speak the truth. A competency hearing is not concerned with credibility. Credibility involves an assessment of whether...what the witness says is true; this is a question for the fact finder. An allegation that the [child witness'] memory of the event has been tainted raises a red flag regarding competency, not credibility. Where it can be demonstrated that a [witness'] memory has been affected so that their recall of events may not be dependable, Pennsylvania law charges the trial court with the responsibility to investigate the legitimacy of such an allegation.
Id.
at 663,
In order to trigger an investigation of competency on the issue of taint, the moving party must show some evidence of taint. Once some evidence of taint is presented, the competency hearing must be expanded to explore this specific question. During the hearing the party alleging taint bears the burden of production of evidence of taint and the burden of persuasion to show taint by clear and convincing evidence. Pennsylvania has always maintained that since competency is the presumption, the moving party must carry the burden of overcoming that presumption.
Id.
at 664,
Instantly, Appellant sexually abused Victim for approximately four years, beginning when Appellant was fifteen years old. Based on this activity, the Commonwealth charged Appellant with numerous sexual offenses, which occurred from July 2011 to September 2012, after Appellant's eighteenth birthday. Before trial, the Commonwealth filed a motion in limine to introduce evidence of Appellant's acts of abuse of Victim, which had occurred before Appellant's eighteenth birthday. The court granted the motion in limine for the limited purpose of providing the jury with a complete history of the case. After the jury convicted Appellant of various sex offenses, the court held a hearing and imposed SVP status on Appellant. Appellant received an aggregate term of 20 to 40 years' imprisonment plus 2 years' probation along with notice of his SVP status and SORNA registration and reporting requirements for life as a Tier III sexual offender.
Here, the court granted in part the Commonwealth's pretrial motion
in limine
and later admitted evidence at trial of Appellant's prior sexual acts against Victim. The court allowed this evidence for the limited purpose of providing the jury with the
res gestae
or complete history of the case as well as Appellant's course of conduct.
See
Wattley,
With respect to claims of taint regarding Victim's testimony, Appellant's bland assertions, absent specifics, are no more than mere conjecture and constitute waiver on appeal. Appellant's brief fails to support his claims with pertinent discussion, references to the record, and citations to relevant legal authorities.
See
Hardy,
Nevertheless, we are mindful of recent case law calling into question the retroactive application of sex offender registration under SORNA to offenses committed before the effective date of SORNA. Given the timeliness of Appellant's PCRA petition, we elect to review the legality of Appellant's sentence on this basis
sua sponte
.
See
Commonwealth v. DiMatteo
,
The Pennsylvania Supreme Court held that the registration requirements under SORNA constitute criminal punishment.
Commonwealth v. Muniz
,
A criminal statute is
ex post facto
if it applies to events which occurred before the law was effective and the law disadvantages the offender.
Id.
at 710,
Instantly, Appellant committed his offenses between July 2011 and September 2012, before the effective date of SORNA (December 20, 2012).
See
42 Pa.C.S.A. §§ 9799.10, 9799.41. Megan's Law III applied at that time and required lifetime registration as a sex offender for Appellant's sex offenses.
See
42 Pa.C.S.A. § 9795.1(b)(2) (expired December 19, 2012). Under SORNA, Appellant's sex offenses also carry a lifetime registration requirement but with increased reporting requirements.
See
42 Pa.C.S.A. §§ 9799.14(d)(2), (4), (8) ; 9799.15(a)(3), (6). Because Appellant committed his offenses before the effective date of SORNA, the increased reporting requirements of SORNA constitute greater punishment for Appellant.
See
Muniz, supra
. Thus, the imposition of SORNA registration requirements
*1023
on Appellant violates the
ex post facto
clauses of both the United States and Pennsylvania Constitutions.
1
See id.
;
Rivera-Figueroa,
The
Muniz
decision that the registration requirements under SORNA constituted criminal punishment led to a related issue concerning the validity of the process and imposition of SVP status on a defendant.
See
Commonwealth v. Butler
,
Here, Appellant's judgment of sentence became final on December 24, 2015, after the United States Supreme Court had decided
Alleyne
on June 17, 2013.
See
Pa.R.A.P. 903(a) ;
Alleyne, supra
. Applying
Alleyne
in a new context, this Court decided
Butler
on October 31, 2017, to deem unconstitutional the current mechanism for imposition of SVP status used in the present case.
See
Butler,
To quiet any conflict in the law, we now hold a PCRA petitioner can obtain relief from an illegal sentence under
Butler
, if the petition is timely filed, as long as the relevant judgment of sentence became final
after
June 17, 2013, the date
Alleyne
was decided. Because
Butler
simply applied
Alleyne
principles to the SVP process,
Butler
did not announce a new constitutional rule that required a
Teague
retroactivity analysis.
See
Chaidez,
Additionally, we hold Appellant is entitled to PCRA relief under Muniz and Rivera-Figueroa , due to the ex post facto imposition of SORNA registration requirements which rendered the sentence illegal. Nevertheless, Appellant is not entitled to any relief on the ineffective assistance of counsel issues he raised in his timely PCRA petition and on appeal. Accordingly, we affirm in part but vacate (1) the judgment of sentence, to the extent it requires registration and reporting requirements under SORNA , and (2) Appellant's SVP status; and we remand the case to the trial court to instruct Appellant on his proper registration and reporting requirements.
Order affirmed in part; SORNA requirements and SVP status vacated; case remanded with instructions. Jurisdiction is relinquished.
Further, the General Assembly created Subchapter I through Act 10 and amended in Act 29, in response to
Muniz
and its progeny.
See
H.B. 1952, 202 Gen. Assem., Reg. Sess. (Pa. 2018), Act 29 of 2018; H.B. 631, 202 Gen. Assem., Reg. Sess. (Pa. 2018), Act 10 of 2018. Subchapter I addresses sex offenders who committed an offense
before
December 20, 2012.
See
42 Pa.C.S.A. §§ 9799.51 -9799.75. Additionally, this Court recently held the
effective
date of SORNA controls for purposes of this
ex post facto
analysis.
See
Commonwealth v. Wood
,
Apprendi v. New Jersey
,
Teague v. Lane
,
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania, Appellee v. Rasheed ADAMS-SMITH, Appellant
- Cited By
- 31 cases
- Status
- Published