J. S64013/15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                   v.                   :
                                        :
PHILIP J. GIUNTA, II,                   :            No. 801 MDA 2015
                                        :
                        Appellant       :


                  Appeal from the PCRA Order, April 16, 2015,
                in the Court of Common Pleas of Centre County
               Criminal Division at No. CP-14-CR-0001084-1012


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


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED NOVEMBER 23, 2015

     Philip J. Giunta appeals from the April 16, 2015 order dismissing his

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

42 Pa.C.S.A. §§ 9541-9546. Finding that trial counsel provided ineffective

assistance, we reverse and remand for a new trial.

     This case concerns an incident that occurred at a house party on

South Allen Street in State College, Pennsylvania, during the early morning

hours of September 5, 2011. The victim, C.M.,1 traveled from her home in

Bellefonte, Pennsylvania, on September 4, 2011, for an overnight visit with

her friends, Arianna Smith and Mary Hickey, who lived in the North Halls



* Former Justice specially assigned to the Superior Court.
1
  It is common practice of this court to identify victims of sexually based
offenses by their initials.
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dormitory at Penn State University. (Notes of testimony, 3/4/13 at 29-30,

154.) After spending several hours at Smith’s dorm, the victim, Smith, and

Hickey walked to a house party being held by Josh Baker and Jeff Green,

both of whom went to high school with the victim. (Id. at 31.) The victim

and her friends arrived at the party between 10:00 and 10:30 p.m. (Id. at

32.) While at the party, the victim consumed several alcoholic beverages to

the point that she became intoxicated. (Id. at 31.)

      Appellant arrived at the party between approximately 10:30 and

11:00 p.m. on September 4. (Id. at 32.) Upon his arrival, the victim took

her friends outside to the porch to tell them that appellant was involved in a

previous incident with her friend at Lock Haven University. (Id. at 33, 155.)

Hickey’s testimony indicated that the victim specifically told her friends that

appellant had raped A.G.2 at Lock Haven. (Id. at 155.)

      After appellant’s arrival, the victim went to get a beer from Green’s

bedroom.   (Id. at 33.)   Appellant followed her into Green’s bedroom and

kissed the victim, and she reciprocated for approximately ten seconds. (Id.

at 33-34.) During this encounter, appellant said to the victim, “You know,

we’re going to hook up tonight.”     (Id. at 34.)   The victim responded by

saying, “Yeah right,” but she testified that her response was meant to be

sarcastic. (Id.)


2
  Appellant was never charged with a crime relating to an alleged sexual
assault of A.G. Due to the fact that a sexually based offense has been
alleged, we will identify the alleged victim only by her initials.


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      Later, in the early morning hours of September 5, 2011, the victim

went outside to get some fresh air and smoke a cigarette, where she was

joined by appellant. (Id. at 35.) During this conversation, appellant twice

told the victim to “follow me,” and twice the victim declined. (Id. at 35-36.)

Appellant then said “follow me” a third time and, grabbing the victim’s arm,

took her to the side of the house. (Id. at 36.) There, the victim testified

that appellant pushed her down on the ground, forced the victim’s legs

apart, and “put his penis inside of [her],” against her will. (Id. at 36-37.)

The victim testified that she had passed out and she recalled waking up by

herself at the side of the house. (Id. at 37.)

      The victim’s friends took her to Mount Nittany Medical Center, where

she was treated by Monique Wooster, a registered nurse in the hospital’s

emergency department.      (Id. at 50-51.)   Nurse Wooster testified that the

victim had a laceration of the left vaginal wall.         (Id. at 66.)      The

Commonwealth’s expert witness, Jenifer Markowitz,3 testified that the

victim’s injuries were consistent with the victim’s allegations. (Id. at 100.)

      Appellant testified in his own defense at trial.    He testified that the

victim was very “flirtatious” with him throughout the evening. (Id. at 227.)

He testified that the victim told him that they were going to have sex that

night, and that the victim was asking if he would spend the night with her.



3
  Markowitz is a forensic nursing consultant, and was accepted by the trial
court as an expert witness. (Id. at 84, 95.)


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(Id. at 230.)    Appellant admitted to joining the victim on the porch for a

cigarette. (Id. at 231.) After both the victim and appellant were finished

smoking, appellant testified that he and the victim started kissing and then

he digitally penetrated her. (Id.) At that point, according to appellant, the

victim and appellant began discussing where to go to have sex.               (Id.)

Appellant testified that he and the victim went to the side of the house

where     the   victim    performed    oral   sex   on   him   for   approximately

10-15 minutes before appellant briefly penetrated the victim with his penis.

(Id. at 232-233.) Appellant then testified that he and the victim went back

into the house together. (Id. at 234.) According to appellant’s testimony,

any physical contact that he had with the victim was consensual.

        On June 7, 2012, appellant was charged with rape by forcible

compulsion, sexual assault, aggravated indecent assault without consent,

and aggravated indecent assault by forcible compulsion.4 Appellant was also

charged with indecent assault without consent and simple assault; 5 however,

those charges were withdrawn by the Commonwealth.                    A preliminary

hearing was held on June 13, 2012, and appellant was ordered to stand trial,

where he was represented by Patrick Klena, Esq. of the Centre County Public

Defender’s Office.       The jury convicted appellant of all charges following a

two-day jury trial on March 5, 2013. (Notes of testimony, 3/5/13 at 60-61.)


4
    18 Pa.C.S.A. §§ 3121(a)(1), 3124.1, and 3125(a)(1) & (2), respectively.
5
    18 Pa.C.S.A. §§ 3126(a)(1) and 2701(a)(1), respectively.


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      On June 6, 2013, appellant was sentenced to an aggregate of eight to

sixteen years’ imprisonment.    Appellant filed post-sentence motions which

were denied by the trial court on August 16, 2013. On September 10, 2013,

appellant filed notice of appeal with this court; however, new counsel

entered his appearance and that appeal was discontinued on January 31,

2014. Appellant filed the instant petition for collateral relief pursuant to the

PCRA on July 21, 2014. The PCRA court conducted a hearing on January 9,

2015, and denied appellant’s petition on April 16, 2015.        Appellant filed

notice of appeal on May 4, 2015. On May 22, 2015, appellant filed a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

The PCRA court declined to file an additional opinion, instead referring to the

opinion that accompanied the April 16, 2015 order denying appellant’s PCRA

petition.

      Appellant raises the following issues on appeal:

            1.    Was trial counsel ineffective when, as part of
                  his trial strategy, he elicited testimony from
                  the victim that she believed the Defendant had
                  previously raped [A.G.]?

            2.    Was trial counsel ineffective when he failed to
                  secure the presence of [A.G.] to testify at trial?

            3.    Was trial counsel ineffective in failing to object
                  to the testimony of Jennifer [sic] Markowitz, an
                  expert witness in the area of well woman
                  health?

            4.    Was trial counsel ineffective for failing to
                  request jury instruction Pa.S.S.J.I. § 8.311(B)?



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Appellant’s brief at 4.

         PCRA petitions are subject to the following standard of review:

              “[A]s a general proposition, we review a denial of
              PCRA relief to determine whether the findings of the
              PCRA court are supported by the record and free of
              legal error.” Commonwealth v. Dennis, 609 Pa.
              442, 17 A.3d 297, 301 (Pa. 2011) (citation omitted).
              A PCRA court’s credibility findings are to be accorded
              great deference, and where supported by the record,
              such determinations are binding on a reviewing
              court. Id. at 305 (citations omitted). To obtain
              PCRA relief, appellant must plead and prove by a
              preponderance of the evidence: (1) his conviction or
              sentence resulted from one or more of the errors
              enumerated in 42 Pa.C.S. § 9453(a)(2); (2) his
              claims have not been previously litigated or waived,
              id. § 9543(a)(3); and (3) “the failure to litigate the
              issue prior to or during trial . . . or on direct appeal
              could not have been the result of any rational,
              strategic or tactical decision by counsel[.]” id.
              § 9543(a)(4). An issue is previously litigated if “the
              highest appellate court in which [appellant] could
              have had review as a matter of right has ruled on
              the merits of the issue[.]” Id. § 9544(a)(2). “[A]n
              issue is waived if [appellant] could have raised it but
              failed to do so before trial, at trial, . . . on appeal or
              in a prior state postconviction proceeding.”          Id.
              § 9544(b).

Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015).

         All four of appellant’s claims derive from the underlying issue of

whether his trial counsel, Attorney Klena, provided effective assistance at

trial.

                    The governing legal standard of review of
              ineffective   assistance of  counsel  claims is
              well-settled:




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                        [C]ounsel is presumed effective,
                 and to rebut that presumption, the PCRA
                 petitioner    must    demonstrate      that
                 counsel’s performance was deficient and
                 that such deficiency prejudiced him.
                 Strickland v. Washington, 466 U.S.
                 668 (1984). This Court has described
                 the Strickland standard as tripartite by
                 dividing the performance element into
                 two          distinct         components.
                 Commonwealth v. Pierce, 527 A.2d
                 973, 975 (Pa. 1987). Accordingly, to
                 prove counsel ineffective, the petitioner
                 must     demonstrate     that   (1)     the
                 underlying legal issue has arguable
                 merit; (2) counsel’s actions lacked an
                 objective reasonable basis; and (3) the
                 petitioner was prejudiced by counsel’s
                 act or omission.       Id.    A claim of
                 ineffectiveness will be denied if the
                 petitioner’s evidence fails to satisfy any
                 one of these prongs.

           Commonwealth v. Busanet, 54 A.3d 34, 45 (Pa.
           2012) (citations formatted).      Furthermore, “[i]n
           accord with these well-established criteria for review,
           [an appellant] must set forth and individually discuss
           substantively each prong of the Pierce test.”
           Commonwealth v. Fitzgerald, 979 A.2d 908, 910
           (Pa.Super. 2009).

Commonwealth v. Perzel, 116 A.3d 670, 671-672 (Pa.Super. 2015).

     First, we address appellant’s fourth issue where he claims that trial

counsel was ineffective for not requesting a jury instruction regarding

consent as a defense.   The Commonwealth avers that the failure by trial

counsel to request such an instruction did not affect the outcome of the

proceedings. Pursuant to Pierce, we will first address whether appellant’s




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claim that Attorney Klena was ineffective for failing to request a jury

instruction on consent6 has any arguable legal merit.



6
    The jury instruction at issue is as follows:

               CONSENT A DEFENSE

               1.    The consent of the victim is a defense to a
                     charge of [charge]. Consent is present if the
                     victim at the time of the alleged crime [is willing
                     that [give specifics]] [is willing that [give
                     specifics] and makes [his] [her] willingness
                     known to the defendant by words or behavior]
                     [give specifics].

               2.    The consent of the victim is not legally effective
                     and is not a defense if the victim is:

                     a.     [Manifestly unable to make a
                            reasonable judgment as to the
                            nature or harmfulness of the conduct
                            charged that constitutes the crime;
                            [or]

                     b.     Known to the defendant to be unable
                            to make a reasonable judgment as
                            to the nature or harmfulness of the
                            conduct charged that constitutes the
                            crime]

               3.    Additionally, the consent of the victim is not
                     legally effective and is not a defense if it is
                     induced by: [a. force; [or] b. duress; [or]
                     c. deception.]

               4.    The burden is on the Commonwealth to prove
                     beyond reasonable doubt that the alleged victim
                     did not give a legally effective consent. Thus,
                     you cannot convict the defendant unless you are
                     satisfied beyond reasonable doubt that [name of
                     victim] did not give a legally effective consent.

Pa.S.S.J.I. § 8.311(B).


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        In cases in which consent is at issue, a defendant is entitled to have

the   trial   judge   deliver   a   focused   charge   to   the   jury   on   consent.

Commonwealth v. Prince, 719 A.2d 1086, 1091 (Pa.Super. 1998).                       In

Prince, the defendant was charged and convicted of sexual assault. Id. at

1087.     One of the elements of sexual assault is whether the complainant

consented to the sexual contact with the defendant.7 As this court noted in

Prince,

              [w]hile a defendant may assert consent as a
              defense, nevertheless, where lack of consent is an
              element of the crime, the defendant does not bear
              the burden of proving consent: the Commonwealth
              bears the burden of proving lack of consent, beyond
              a reasonable doubt. It was therefore imperative that
              the jury be instructed clearly and definitively as to
              where the burden lay on the issue of consent.

Id. at 1090. The Commonwealth charged appellant with sexual assault and

aggravated indecent assault without consent--two crimes in which lack of

consent is an element.          Moreover, appellant has maintained an overall

defense that any contact that he had with the victim was consensual.

Appellant is correct in his averment that he was entitled to have the jury

receive a consent instruction, therefore, his ineffective assistance of counsel

claim has legal merit.



7
  Sexual assault is defined as, “[e]xcept as provided in section 3121 (relating
to rape) or 3123 (relating to involuntary deviate sexual intercourse), a
person commits a felony of the second degree when that person engages in
sexual intercourse or deviate sexual intercourse with a complainant without
the complainant's consent.” 18 Pa.C.S.A. § 3124.1.


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      Second, appellant must prove by a preponderance of the evidence that

the underlying act or omission by trial counsel which rendered his or her

assistance ineffective lacked a reasonable basis. When determining whether

trial counsel’s actions or omissions had any reasonable basis, we are

governed by the following standard:

                  In gauging the performance of an
                  attorney at trial, the process must entail
                  a comparison of the course adopted by
                  counsel with the alternatives available.
                  . . . The test is not whether alternatives
                  were more reasonable, employing a
                  hindsight evaluation of the record. . . .
                  “[A] finding of ineffectiveness could
                  never be made unless we concluded that
                  the alternatives not chosen offered a
                  potential   for     success   substantially
                  greater than the tactics actually utilized.”

            Commonwealth v. Collins, 545 A.2d 882, 885 (Pa.
            1988)     (emphasis     in     original),   quoting
            Commonwealth ex rel. Washington v. Maroney,
            235 A.2d 349 (Pa. 1967). The balance tips in favor
            of finding that counsel’s assistance was effective
            should we conclude that his or her decisions had any
            reasonable basis.

Commonwealth v. Kilgore, 719 A.2d 754, 756-757 (Pa.Super. 1998).

After a careful review of the record, we conclude that trial counsel did not

have any reasonable strategic basis in failing to request a jury instruction on

the defense of consent.

      During the PCRA hearing, Attorney Klena testified regarding his failure

to request a jury instruction related to consent.    During his testimony, he

stated that while he may have requested a jury instruction off the record, he


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could not recall whether he had actually done so on the record. (Notes of

testimony, 1/9/15 at 35.)            During cross-examination, Attorney Klena

admitted that his failure to ask that a consent instruction be read to the jury

was a mistake on his part:

             Q:       Let’s talk about the jury instruction issue. Your
                      best recollection is you intended to have the
                      consent instruction?

             A:       I did.

             Q:       And it’s just a mistake?

             A:       I believe it was a mistake. I probably should
                      have on the record as opposed to in chambers
                      requested and objected to its exclusion.

Id. at 52-53. Based upon Attorney Klena’s admission that his failure to ask

for a jury instruction related to consent was a mistake and our review of the

record, we find no reasonable basis to fail to ask for such an instruction, and

therefore find that appellant has satisfied the second prong of the Pierce

test.

        Finally, in order for a petitioner to prevail on a claim of ineffective

assistance    filed   under    the   PCRA,   the   petitioner   must   prove,   by   a

preponderance of the evidence, that trial counsel’s act or omission caused

petitioner to be prejudiced.

             To demonstrate prejudice, the petitioner must show
             that “there is a reasonable probability that, but for
             counsel’s unprofessional errors, the result of the
             proceeding would have been different.” Strickland,
             [supra at 694]; accord Commonwealth v. Cox,
             983 A.2d 666, 668 (Pa. 2009).          A reasonable


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           probability is a probability sufficient to undermine
           confidence in the outcome of the proceeding. See
           Commonwealth v. Ali, 10 A.3d 282, 291 (Pa.
           2010).

Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012).

     In Prince, this court stated that a failure to instruct the jury on a

consent defense could undermine confidence in the outcome of the

proceedings.

           We recognize that after setting forth the elements of
           the crime of sexual assault, the trial court did charge
           the jury that the Commonwealth bore the burden of
           proving each element beyond a reasonable doubt.
           The court also charged the jury that it was not
           appellant’s burden to prove his innocence as to each
           element of all of the crimes charged beyond a
           reasonable doubt.       Nevertheless, we find that
           appellant was entitled to a focused charge on
           consent, also emphasizing specifically where the
           burden lay. . . . We agree with the Commonwealth
           that the verdict indicates that the jury painstakingly
           sifted through the elements of the crimes; however,
           we cannot feel certain that the contested jury
           charge could not have made a difference.

Prince, 719 A.2d at 1091 (citations omitted) (emphasis added). Moreover,

during deliberations, the jury asked a question regarding consent, in which

the jury asked what “non-consent” meant, and whether consent meant an

active assertion or if only passive, noncommittal behavior was required.

(Notes of testimony, 3/5/13 at 59.) The trial court provided the following

answer:

           Non-consent means lack of consent. And you’ll have
           to use [your] own common sense and life
           experiences to determine what non-consent means


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            in this situation. I’m sorry. There was no definition
            that we felt we could give at this point which was not
            given in the original instructions. So we’ll just have
            to piece it together with what are in the other
            instructions. Thank you. Sorry. The best we can
            do.

Id. at 60. Coupled with this court’s language in Prince, the jury’s question

about the meaning of “non-consent” raises the possibility that confidence in

the outcome of appellant’s trial may be undermined.       Therefore, appellant

has demonstrated that he was prejudiced by trial counsel’s failure to request

a jury instruction related to the consent defense.

      Appellant has met all three prongs of the Pierce test for ineffective

assistance of counsel claims under the PCRA.            Accordingly, we are

constrained to reverse the order dismissing appellant’s PCRA petition, and

we remand to the trial court for a new trial.        Discussion of appellant’s

remaining issues is not necessary, as the issues are now moot.

      Order reversed. Remanded for new trial. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/23/2015




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