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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
                     v.                     :
                                            :
JOSEPH JENNINGS, JR.,                       :           No. 402 MDA 2015
                                            :
                          Appellant         :


                 Appeal from the PCRA Order, March 18, 2014,
               in the Court of Common Pleas of Lycoming County
                Criminal Division at No. CP-41-CR-0000342-2003


BEFORE: FORD ELLIOTT, P.J.E., WECHT AND FITZGERALD,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED DECEMBER 21, 2015

      Joseph Jennings, Jr., appeals from the order filed in the Court of

Common Pleas of Lycoming County which dismissed, without a hearing, his

petition   filed   pursuant   to   the   Post   Conviction   Relief   Act   (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546.

      The facts have been previously summarized by this court, as follows:

                    Appellant and the victim initially met while
             helping Appellant’s uncle and aunt move into their
             new home. After developing a friendship through
             several phone conversations, Appellant and the
             victim decided to go out together on the evening of
             April 13, 2002. The victim picked Appellant up at his
             home and they decided to go to several different
             bars where they consumed alcohol and met with
             friends.

                   Appellant claims that the victim had too much
             to drink and smoked marijuana with him. N.T.,
             1/23/04, at 389, 392. However, while the victim


* Former Justice specially assigned to the Superior Court.
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          testified that she did have several drinks that
          evening, she reported feeling fine and in control.
          N.T., 1/22/04, at 73, 82. The victim explained that
          she became “annoyed” when Appellant teased her
          for not smoking marijuana with him. Id. at 77.
          Near the end of the evening, as she had become
          bored and anxious to end the date, the victim
          claimed that she poured her drink out in the
          bathroom sink. Id. at 78-79. The victim testified
          Appellant spent most of the evening socializing with
          his friends, as she sat by herself at the bar, and
          claimed “mostly the whole evening . . . [I] pretty
          much knew that I wasn’t going to go out with him
          again.” Id. at 63, 76-80.

                 The victim and Appellant also gave conflicting
          stories about their romantic conduct that night.
          Appellant claimed the victim had previously promised
          to give him a “full body massage” and was
          affectionate with him that evening, kissing and
          dancing closely. N.T., 1/23/04, at 381. While the
          victim admitted that Appellant kissed her a few times
          during the evening, she denied that she or Appellant
          ever made sexually suggestive comments or
          conducted themselves in a like manner.           N.T.,
          1/22/04, at 65, 69-73, 80-81, 83.

                At the end of the date, Appellant asked to
          borrow a movie and followed victim into her
          apartment although she had never invited him to
          come in. Id. at 83-84. While the victim went to go
          check her phone messages, Appellant started
          watching the DVD in the living room. Id. at 84.
          When the victim returned, she noticed that Appellant
          was more intoxicated than she thought, observing
          him swaying to the music and talking in a jumbled
          manner. Id. at 85-86. When Appellant mumbled
          that the victim wanted to see him naked all night,
          the victim became angry and told Appellant to leave.
          Id. at 86. Appellant ignored the victim’s response
          and tried to dance with her. Id. After the victim
          pushed herself away, Appellant walked into the
          victim’s bedroom and collapsed on her bed. Id. at
          89-90.


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                After the victim checked to make sure that
          Appellant was asleep, she left him on the bed,
          reasoning that it would be best if he could “sleep it
          off.”   Id. at 90.     The victim changed into her
          strapless nightgown and admitted she was not
          wearing underwear at the time. Id. at 90, 153. As
          the victim saw that it was raining and Appellant
          would have to walk home, the victim nudged
          Appellant’s shoulder and told him to sleep on the
          futon in her living room. Id. at 92-93.

                After Appellant got out of the bed, the victim
          climbed under the covers from the opposite side of
          her bed. Appellant got back into the bed, kissing the
          victim’s neck and shoulder. As she tried to pull away
          and told him to stop, Appellant continued and
          grabbed her left hip and breast. Id. at 95. The
          victim struggled to get away and told Appellant “this
          is me saying no.” Id. at 96. Appellant pulled down
          the covers, pulled the victim’s nightgown up, and
          undid his pants. Id. at 98. The victim testified that
          as Appellant was laying [sic] on top of her, he was
          able to penetrate her vagina with his penis. Id.
          Appellant proceeded to turn the victim over and had
          sexual intercourse in another position. Id. at 100.
          Appellant testified at trial that the victim consented
          to the sexual intercourse. N.T., 1/23/04, at 398.

                After Appellant left, the victim sought comfort
          in her best friend, who testified at trial that the
          victim looked “disturbing . . . [as] her hair was a
          mess, her face was white, pale she looked like a deer
          in the headlights . . . [and] she looked like she had
          been crying.” Id. at 306. The following morning,
          the victim told her mother what had happened and
          they subsequently went to the emergency room.
          N.T., 1/22/04, at 112-13. Nurse Cathy Brendle, a
          sexual assault nurse examiner (SANE), performed a
          rape kit on the victim and submitted her
          observations and findings to the police.

                As a result, Appellant was arrested, brought to
          a jury trial, and convicted on one count of sexual


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           assault and two counts of indecent assault. The jury
           acquitted Appellant on a charge of rape. Shortly
           thereafter, on April 8, 2004, the Honorable
           Nancy Butts sentenced Appellant to an aggregate
           term of 6-12 years in prison.

Commonwealth v. Jennings, 958 A.2d 536, 537-539 (Pa.Super. 2008)

(footnotes omitted).

     On September 27, 2004, appellant filed a direct appeal to this court.

The appeal was dismissed for failure to file a docketing statement in

compliance with Pa.R.A.P. 3517.    The appeal was reinstated by this court,

but we found that appellant’s issues were waived for failure to file a

Rule 1925(b) statement. Subsequently, appellant filed a PCRA petition, and

on June 13, 2007, the trial court granted the PCRA petition and allowed

appellant to file an appeal nunc pro tunc.           In an opinion dated

September 9, 2008, we affirmed the judgment of sentence. Appellant filed a

petition for allowance of appeal to the Pennsylvania Supreme Court which

was denied on April 1, 2011.

     On March 15, 2012, appellant filed a pro se, PCRA petition. The PCRA

court appointed counsel, and an amended PCRA petition was filed on

February 13, 2013.     (Docket #87.)      Appellant subsequently requested

permission to represent himself.    A waiver of counsel hearing was held

pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988). Although

permission was granted, appellant decided to hire private counsel.      On

November 14, 2013, counsel filed the amended PCRA petition which is at



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issue here. (Docket #96.) Appellant argued, inter alia, that trial counsel

was ineffective for failing to investigate and take statements from the

following witnesses:

            i.     Mary Ungard. Ms. Ungard would have testified
                   regarding a phone conversation which she had
                   with the victim, wherein the victim admitted
                   coercion was used to obtain her statement and
                   that the police falsified her statement which
                   was supplied to the Defendant in discovery.

            ii.    Amber Carrey. Ms. Carrey would have stated
                   that she saw the Defendant entering his house
                   shortly after the alleged rape and that he was
                   dry. This statement would have impeached
                   the victim’s statement that the Defendant
                   walked home in the rain.

            iii.   Scott Mogret. Mr. Mogret observed the victim
                   and the Defendant at Peachy’s Bar prior to the
                   alleged rape and he would have testified that
                   the victim appeared intoxicated and was acting
                   in a friendly and intimae [sic] fashion with the
                   Defendant.

            iv.    Keith Spong. Mr. Spong was a bartender who
                   would have testified that the victim drank a
                   Long Island Tea shortly before the alleged
                   rape, which the victim denied.

            v.     Robert A. Donoto, D.O., F.A.C.G., who would
                   have testified, in his expert medical opinion, it
                   was inappropriate for a nurse to diagnose the
                   cause of the redness around the victim’s
                   genital area.

Final amended petition for post-conviction collateral relief, 11/14/13 at 4-5.




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     Appellant requested a hearing pursuant to Pa.R.Crim.P. 908 and

included in his petition a list of the witnesses who would testify, their

addresses, and a brief summary of their proposed testimony. (Id. at 7-9.)

     A conference was held on November 21, 2013, during which the PCRA

court heard oral argument. On December 20, 2013, the PCRA court found

that there were no meritorious issues or genuine issues concerning any

material fact which warranted an evidentiary hearing. The PCRA court also

noted that appellant “did not file affidavits/certifications signed by the

witnesses.” (PCRA court opinion, 12/20/13 at 7.) The PCRA court notified

the parties that it intended to dismiss the petition without a hearing

pursuant to Pa.R.Crim.P. 907(a).       Having received no response from

appellant, the PCRA court dismissed the petition on March 18, 2014.

(Docket #99.)

     On appeal,1 appellant raises the following issues:

           I.    WHETHER THE PCRA COURT ERRED WHEN IT
                 SUMMARILY DENIED THE PCRA CLAIMS AND
                 DISMISSED   MR.   JENNINGS’  PETITION
                 WITHOUT CONDUCTING AN EVIDENTIARY
                 HEARING?

           II.   WHETHER THE PCRA COURT COMMITTED
                 REVERSIBLE ERROR BY DISMISSING TWO OF
                 MR. JENNINGS’ PCRA CLAIMS FOR THE


1
   Appellant was not provided with a copy of the PCRA court’s order
dismissing his PCRA petition, so he was not apprised of his rights to appeal.
Appellant, through new counsel, petitioned for and was granted the right to
appeal the March 18, 2014 order nunc pro tunc by order dated February 6,
2015. (Docket #103.)


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                   ALLEGED FAILURE TO FILE CERTIFICATIONS
                   BY POTENTIAL WITNESSES?

            III.   WHETHER THE PCRA COURT COMMITTED
                   REVERSIBLE ERROR WHEN IT DETERMINED
                   THAT MR. JENNINGS WAS NOT DENIED THE
                   EFFECTIVE ASSISTANCE OF COUNSEL BY
                   TRIAL COUNSEL’S FAILURE TO INVESTIGATE
                   AND/OR CALL CERTAIN WITNESSES WHOSE
                   NAMES WERE PROVIDED BY MR. JENNINGS
                   PRIOR TO TRIAL AND WHOSE TESTIMONY
                   WOULD HAVE BEEN EXCULPATORY TO THE
                   DEFENSE?

Appellant’s brief at 4.

      Our standard of review for an order denying post-conviction relief is

whether the record supports the PCRA court’s determination and whether

the PCRA court’s determination is free from error.        Commonwealth v.

Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court’s findings

will not be disturbed unless there is no support for the findings in the

certified record. Id.

      In his first and second issues, appellant argues that the PCRA court

erred because it dismissed his PCRA petition summarily without holding an

evidentiary hearing.      He argues that the ineffective assistance of counsel

claims in his PCRA petition had arguable merit and an evidentiary hearing

was necessary to afford him the opportunity to present to the PCRA court

testimony of several witnesses whose testimony would have made a

difference in the case had it been presented to the jury.     We will address

appellant’s first and second issues together.



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      There is no absolute right to an evidentiary hearing on a PCRA

petition.     Commonwealth v. Barbosa, 819 A.2d 81 (Pa.Super. 2003).

“[W]here it is clear that allegations of ineffectiveness are baseless or

meritless then an evidentiary hearing is unnecessary and the unfounded

allegations should be rejected and dismissed.”             Commonwealth v.

Clemmons, 479 A.2d 955, 957 (Pa. 1984); Commonwealth v. Stanley,

632 A.2d 871 (Pa. 1993). To avoid such a result, “counsel must set forth an

offer to prove at an appropriate hearing sufficient facts upon which a

reviewing court can conclude that trial counsel may have, in fact, been

ineffective.” Commonwealth v. Pettus, 424 A.2d 1332, 1335 (Pa. 1981).

However, “[t]he controlling factor in determining whether a petition may be

dismissed without a hearing is the status of the substantive assertions in the

petition.”    Commonwealth v. Weddington, 522 A.2d 1050, 1052 (Pa.

1987).

      To prevail on a claim of trial counsel’s ineffectiveness for failure to call

a witness, the petitioner must show: (1) that the witness existed; (2) that

the witness was available; (3) that counsel was informed of the existence of

the witness or should have known of the witness’ existence; (4) that the

witness was prepared to cooperate and would have testified on the

petitioner’s behalf; and (5) that the absence of the testimony prejudiced the

petitioner.    Commonwealth v. Fletcher, 750 A.2d 261, 275 (Pa. 2000).

Trial counsel will not be found ineffective for failing to investigate or call a



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witness unless there is some showing by the petitioner that the witness’

testimony would have been helpful to the defense.       Commonwealth v.

Auker, 681 A.2d 1305, 1319 (Pa. 1996). “Failure of trial counsel to conduct

a more intensive investigation or to interview potential witnesses does not

constitute ineffective assistance of counsel, unless there is some showing

that such investigation or interview would have been helpful in establishing

the asserted defense.” Commonwealth v. Purcell, 724 A.2d 293, 306 (Pa.

1999).

         Here, the PCRA court reviewed the averments in the PCRA petition,

and considered the proposed testimony of each witness as set forth by

appellant. The PCRA court concluded that the absence of their testimony did

not prejudice appellant.    Specifically, the PCRA court concluded that the

testimony of Amber Carrey, Scott Mogret, and Keith Spong would have

merely impeached the credibility of the victim by calling into question her

recollection about the details before or after the sexual assault. The PCRA

court noted that testimony at trial had already been provided that differed

from the victim’s recollection. We agree with the observations of the trial

court.

         While the failure to introduce evidence that challenges a witness’

credibility can be prejudicial, where the proffered testimony is merely

cumulative to other impeachment evidence, trial counsel will not be




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considered to be ineffective. Commonwealth v. Small, 980 A.2d 549 (Pa.

2009); Commonwealth v. Harty, 621 A.2d 1023 (Pa.Super. 1993).

     The testimony of Amber Carrey would have been cumulative to the

testimony of other witnesses presented at trial. Josh Paul testified that he

observed the appellant at approximately 12:45 a.m. in front of appellant’s

house and that he was with Miranda Butler and Carrey; and when he

observed appellant, he appeared to be dry, not wet, and did not appear to

have just walked blocks in the rain.    (Notes of testimony, 1/22-23/04 at

254-255.) Similarly, Butler testified that she was with Paul and Carrey, who

drove her to her house; and when they arrived, she observed the appellant

walking up to his house and that he was not wet.         (Id. at 257-261.)

Therefore, because Carrey would have testified as to the same matters as

Paul and Butler, appellant failed to demonstrate that he suffered prejudice.

The PCRA court was able to determine, based on the proffer, that appellant’s

ineffectiveness claim had no merit. An evidentiary hearing was unnecessary

to present the actual testimony of Carrey.2



2
   Appellant argues that without hearing these witnesses’ testimony, the
PCRA court “merely surmised” that their testimony had no evidentiary value.
However, we note that when requesting an evidentiary hearing, the PCRA
petition must set forth, inter alia, the substance of testimony of each
intended witness. Pa.R.Crim.P. 902(a)(15). This is to provide the PCRA
court with the necessary information to determine if, from the facts alleged
in the petition, an evidentiary hearing is necessary. The PCRA court did not
“merely surmise” the testimony had no evidentiary value; rather, appellant
failed to set forth facts from which the PCRA court could conclude that the
testimony had evidentiary value.


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      Likewise, we agree with the PCRA court that the testimony of

Scott Mogret would have been merely cumulative to other evidence

established through other witnesses.       It was unnecessary that the PCRA

court hold an evidentiary hearing in order to arrive at that conclusion.

Appellant claims that Mogret would have testified that before the assault he

had observed appellant and the victim at Peachy’s Bar and the victim

appeared to be intoxicated and was acting in a friendly and intimate fashion

with appellant. However, at trial, Ty Kimble testified that he saw the victim

and appellant together on the evening in question and that they had a good

rapport, that they were enjoying themselves, were touching each other, and

that the victim was the aggressor.     (Id. at 235-241.)   Further, the victim

readily admitted that she had a substantial quantity of alcohol to drink. (Id.

at 129-143.) We wholly agree with the PCRA court that appellant failed to

establish that there was a reasonable probability that the result would have

been different had Mogret testified at trial.

      Keith Spong, if called as a witness, would have testified that he was

the bartender who prepared a Long Island iced tea which the victim drank.

Appellant argues that this testimony would have contradicted the victim’s

testimony at trial that she did not drink the Long Island iced tea.    Again,

appellant has failed to demonstrate that this testimony, if presented to the

jury, would have changed the outcome of the trial.         This evidence was

cumulative of other evidence, particularly the victim’s admission that she



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consumed a substantial quantity of alcohol.     That fact was undisputed at

trial. The PCRA court did not err when it rejected this issue without holding

an evidentiary hearing.

      Regarding the testimony of appellant’s medical expert, Dr. Donoto, the

PCRA court found that his testimony, if presented, would have been

cumulative to the testimony of Cathy Brendle, the nurse who examined the

victim.   At trial, Nurse Brendle testified that the redness could have been

caused by regular sexual relations. (Id. at 355-356.) She also testified that

the redness could have been caused by irritation or infection. (Id. at 356.)

According to appellant, Dr. Donoto would have testified regarding the

victim’s medical injuries and what may have caused them.            Since this

testimony was simply cumulative to testimony that was presented, appellant

failed to demonstrate that he suffered prejudice from the failure to call

Dr. Donoto.

      Finally, with regard to the testimony of Mary Ungard, the PCRA court

concluded that appellant failed to demonstrate that he was prejudiced by the

absence of this witness. We agree with the PCRA court that appellant failed

to establish that the outcome of the trial would have differed if Ungard had

testified. According to appellant, Ungard would have testified that the victim

stated to her that the police coerced the victim to fabricate the accusations

against appellant and that the police falsified the victim’s written statement.

First, by all accounts, the victim approached the police to report the rape,



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not the other way around.     Moreover, the victim testified in detail at trial

how appellant forced himself on her and that she did not consent to sexual

relations with the appellant. The victim was extensively cross-examined by

trial counsel. Any additional evidence attacking the victim’s credibility would

have been merely cumulative.      The PCRA court did not err in denying an

evidentiary hearing to present the testimony of Ungard.

      In his final issue, appellant contends that the PCRA court erred when it

required certifications from the actual witnesses.          Technically, it is

unnecessary to address this issue because we have already found that the

PCRA court was justified in denying appellant’s request for an evidentiary

hearing and concluding, based on the averments in the PCRA petition and

the trial transcript, that trial counsel was not ineffective for failing to

investigate and present the testimony of these witnesses. However, we do

wish to note, for the future benefit of counsel and the PCRA court, that

contrary to the PCRA court’s understanding, it is not necessary that the

certifications required under Pa.R.Crim.P. 902(a)(15) be signed by the

witnesses whose testimony will be elicited at the evidentiary hearing.

      Where a petitioner requests an evidentiary hearing, the petition must

include only a signed certification as to each intended witness; and the

petitioner must also provide the witness’ name, address, date of birth, and

the substance of the proposed testimony. Commonwealth v. Brown, 767

A.2d 576 (Pa.Super. 2001). The certification requirement can be met by an



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attorney or pro se petitioner certifying what the witness will testify

regarding.   Commonwealth v. Pander, 100 A.3d 626 (Pa.Super. 2014);

42 Pa.C.S.A. § 9545(d)(1); Pa.R.Crim.P. 902(a)(15).          Instantly, the PCRA

petition included the appropriate certifications. It was the substance of the

petition, however, which was lacking.

      Accordingly, having found no merit in the issues on appeal, we will

affirm the order below.

      Order affirmed. Appellant’s application to strike the Commonwealth’s

brief as untimely is denied.3

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/21/2015




3
  See Pa.R.A.P. 2188. The penalty for an appellee’s failure to file a timely
brief is not to strike the brief. Rather, “[i]f an appellee fails to file his brief
within the time prescribed . . . he will not be heard at oral argument except
by permission of the court.”


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