J. S83004/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                    v.                   :
                                         :
STUART JAMES PROPER,                     :         No. 1705 WDA 2015
                                         :
                         Appellant       :


               Appeal from the PCRA Order, September 23, 2015,
                in the Court of Common Pleas of Venango County
                Criminal Division at No. CP-61-CR-0000625-2012


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED DECEMBER 21, 2016

        Stuart James Proper appeals from the order of September 23, 2015,

denying his PCRA1 petition. We affirm.

        Following a jury trial held June 10, 2013 to June 11, 2013, appellant

was found guilty of various sexual offenses, including rape of a child,

involuntary deviate sexual intercourse (“IDSI”), aggravated indecent assault

of a child, indecent assault, and corruption of minors.2 The charges related

to the sexual abuse of his girlfriend’s minor daughter, C.C.      In a prior




* Retired Senior Judge assigned to the Superior Court.
1
    Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
2
  18 Pa.C.S.A. §§ 3121(c), 3123(b), 3125(b), 3126(a)(7), & 6301(a)(1)(ii),
respectively.
J. S83004/16


memorandum, this court summarized the factual and procedural history of

the case as follows:

                  The victim, C.C., who was eleven years old at
            the time of the underlying events, lived with her
            mother (“Mother”), four siblings, and Proper, who
            was Mother’s boyfriend. The jury heard the following
            testimony:

                  [Mother] . . . testified that [C.C.]
                  revealed that [Proper] had “put his
                  fingers up inside her and [made] them
                  go real fast” and that such action had
                  “hurt her up inside.”      [Mother] also
                  testified that [C.C.] said [Proper]
                  grabbed [C.C.’s] breasts and squeezed
                  them and, at some point, was apparently
                  attempting to enter [C.C.] with his
                  “thing” from behind as they were lying
                  together.[]   [Mother] also testified to
                  another encounter [Proper] had with
                  [C.C.] while [Mother] was out shopping
                  with other children for school clothes for
                  [C.C.’s sister, S.C.].    At that time,
                  according to [Mother], [C.C.] told her
                  that [Proper] made her kiss his “thing”
                  and he again put his fingers up inside her
                  and when done, told [C.C.] not to tell
                  “Mama” what happened as it was a
                  secret. . . .

                  The jury also heard testimony from
                  [C.C.]. After establishing the requisite
                  foundation that [C.C.] was a competent
                  witness able to tell the truth and
                  distinguish the difference between a
                  truth and a lie, she corroborated much of
                  the testimony given by [Mother]. [C.C.]
                  testified that the incident occurred in
                  [Mother’s] bedroom on the bed where
                  [Proper] squeezed her “boobs” and put
                  his fingers up in her “private spot real
                  hard” and it hurt. [Proper] also kissed


                                    -2-
J. S83004/16


                her and “rubbed his [private spot]
                against her [private spot].” She also
                testified that when her mother and her
                siblings went to Walmart, that was the
                occasion when [Proper] made her “lick
                his dick.” This event also occurred in her
                mother’s bedroom, on the bed. [C.C.]
                also testified that it was at this time
                [Proper] put his “dick” in her “private
                spot” and that when he did so it “hurt.”
                Furthermore, the jury actually heard
                testimony that [Proper] put his penis
                inside [C.C.’s] vagina on both occasions
                when there was a sexual encounter
                between [Proper] and the victim.
                Furthermore, [C.C.] testified that when
                she tried to get away and stop licking
                [Proper’s] “dick,” [Proper] put his hand
                on her head to prevent her from getting
                away and pushed her back down.

                The jury heard testimony from Officer
                Kevin Daley (“Officer Daley”), senior
                patrol officer in the Oil City Police
                Department (“OCPD”).            Officer Daley
                testified that what [C.C.] testified to in
                court was exactly what she told him at
                the time she and her mother came to the
                police station to file the initial report.

          Trial Court Opinion, 3/19/14, at 5-7.

                 On June 11, 2013, a jury convicted Proper of
          the aforementioned offenses. The court imposed two
          sentences of ten to forty years’ incarceration for rape
          of a child and IDSI, ten to twenty years’
          incarceration for aggravated indecent assault, and
          two sentences of nine months’ to five years’
          incarceration for indecent assault and corruption of
          minors, with all sentences to run concurrently.
          Proper filed a post-sentence motion on September 9,
          2013, which was denied on December 6, 2013. He
          filed his notice of appeal on January 2, 2014, and his
          Pa.R.A.P. 1925(b) concise statement of errors


                                    -3-
J. S83004/16


            complained of on appeal on January 22, 2014. The
            court filed its Rule 1925(a) opinion on March 19,
            2014.

Commonwealth v. Proper, No. 36 WDA 2014, unpublished memorandum

at 2-3 (Pa.Super. filed July 21, 2014) (brackets in original).

      On direct appeal, appellant challenged the sufficiency of the evidence

to sustain the verdict. In an unpublished memorandum filed July 21, 2014,

this court affirmed appellant’s judgment of sentence.       Commonwealth v.

Proper, 105 A.3d 796 (Pa.Super. 2014) (unpublished memorandum).

Appellant did not file a petition for allowance of appeal with the Pennsylvania

Supreme Court.

      On September 5, 2014, appellant filed a timely pro se PCRA petition.

Counsel was appointed and filed several amended petitions on appellant’s

behalf.   An evidentiary hearing was held on June 30, 2015, at which trial

counsel, Charles William Phillips, II, Esq., testified. On September 23, 2015,

appellant’s petition was denied.     A timely notice of appeal was filed on

October 20, 2015.       Appellant complied with Pa.R.A.P., Rule 1925(b),

42 Pa.C.S.A., and on February 17, 2016, the PCRA court filed a Rule 1925(a)

opinion, relying on its prior opinion and order filed on September 23, 2015.

      Appellant has raised the following issues for this court’s review:

            [1.]   Is trial counsel ineffective when he fails to call
                   [appellant] to testify when his defense is that
                   the victim made up the story and cross
                   examination     was     largely  ineffectual   in
                   substantially impeaching the victim[?]



                                      -4-
J. S83004/16


            [2.]   Is trial counsel ineffective when he fails to
                   cross-examine a witness on inconsistent prior
                   statements when the defense theory is that the
                   witness made up the story out of animosity
                   toward [appellant][?]

Appellant’s brief at 4 (capitalization deleted).

      “When reviewing an order [granting or] denying PCRA relief, we must

determine whether the PCRA court’s determination is supported by the

record and is free from legal error.” Commonwealth v. Poplawski, 852

A.2d 323, 327 (Pa.Super. 2004) (citation omitted).       In his first issue on

appeal, appellant complains that trial counsel interfered with his right to

testify on his own behalf. Appellant argues that Attorney Phillips’ advice that

appellant not testify was unreasonable where appellant had no prior criminal

record and the case boiled down to credibility. We disagree.

            [W]e begin with the presumption that counsel was
            effective.      A claimant establishes ineffective
            assistance of counsel when he demonstrates that
            [1] the underlying claim is of arguable merit;
            [2] that counsel’s action or inaction was not
            grounded on any reasonable basis designed to
            effectuate the appellant’s interest; and finally,
            [3] that counsel’s action or inaction was prejudicial
            to the client. For an action (or inaction) by counsel
            to be considered prejudicial to the client, there must
            be a reasonable probability that the outcome of the
            proceedings would have been different. All three
            prongs of this test must be satisfied. If an appellant
            fails to meet even one prong of the test, his
            conviction will not be reversed on the basis of
            ineffective assistance of counsel.




                                      -5-
J. S83004/16


Commonwealth v. O’Bidos, 849 A.2d 243, 249 (Pa.Super. 2004), appeal

denied, 860 A.2d 123 (Pa. 2004) (citations and internal quotation marks

omitted).

                  The decision to testify in one’s own behalf:

                  is ultimately to be made by the accused
                  after full consultation with counsel. In
                  order to support a claim that counsel was
                  ineffective for “failing to call the
                  appellant to the stand,” [the appellant]
                  must demonstrate either that (1) counsel
                  interfered with his client’s freedom to
                  testify, or (2) counsel gave specific
                  advice so unreasonable as to vitiate a
                  knowing and intelligent decision by the
                  client not to testify in his own behalf.

            Commonwealth v. Preston, 418 Pa.Super. 125,
            613 A.2d 603, 605 (1992), appeal denied, 533 Pa.
            658,     625    A.2d     1192     (1993)      (quoting
            Commonwealth v. Bazabe, 404 Pa.Super. 408,
            590 A.2d 1298, 1301 (1991), appeal denied, 528
            Pa. 635, 598 A.2d 992 (1991)). “A claim of strategic
            error absent a showing of specific incidents of
            counsel’s impropriety will not satisfy this standard.”
            Preston, supra at 605.

Commonwealth v. Thomas, 783 A.2d 328, 334-335 (Pa.Super. 2001).

      Instantly, the trial court conducted a thorough and probing colloquy of

appellant and informed him of his absolute right to testify on his own behalf:

            THE COURT: Why don’t you come on up here, we
            need to make sure we can hear your responses on
            there. Mr. Proper, you do understand that you have
            an absolute right to testify in this case; you have an
            absolute right not to testify in this case?

            [APPELLANT]: M-hmm.



                                     -6-
J. S83004/16


          THE COURT: If you decide not to testify, you are
          entitled to have me give the jury the following
          instruction and you may decide to waive the court
          giving this instruction. Now, the instruction that I
          would read to the jury would be as follows: In this
          case the Defendant, Stuart Proper, did not take the
          stand to testify. It is entirely up to the Defendant in
          every trial whether or not to testify.

          [APPELLANT]: Right.

          THE COURT: The Defendant has an absolute right to
          remain silent.       That right is founded in our
          constitution and reflects the code of our founding
          fathers, that a person charged with a crime has a
          moral duty to force the government to prove the
          charges and he need not do or say anything to assist
          in that endeavor. Therefore, you must not draw any
          inference of guilt or wrong doing of Stuart Proper
          from the fact that he did not testify. Now that is the
          instruction that I would read if you wanted me to
          read that. Now, let me ask first of all, have you
          thoroughly discussed with your attorney the pros and
          the cons of testifying or not testifying.

          [APPELLANT]: Yes sir.

          THE COURT: Do you realize that you not testifying is
          a trial strategy decision? In other words, it’s a
          decision you’re making as part of your trial strategy?

          [APPELLANT]: Yes sir, yeah.

          THE COURT: Alright, after having discussed this trial
          strategy decision with your attorney, have you
          decided that you do want to or do not want to
          testify?

          [APPELLANT]: I do not want to testify.

          THE COURT: Alright, after having discussed this
          strategy decision with your attorney, have you
          concluded that testifying is in your -- or not
          testifying is in your best interest?


                                   -7-
J. S83004/16



            [APPELLANT]: Yes it is, yep.

            THE COURT:      Alright, and you do this of your own
            choice?

            [APPELLANT]: Right.

            THE COURT: Alright, now have you discussed with
            your attorney whether you want the court to read
            that instruction or not?

            MR. PHILLIPS: We have and we do.

            [APPELLANT]: We do then.

            THE COURT: Alright[,] you want the court to read
            that instruction?

            [APPELLANT]: Sure, yeah, Your Honor.

Notes of testimony, 6/11/13 at 4-6.

      At the PCRA hearing, Attorney Phillips testified that it was appellant’s

decision not to testify at trial.    (Notes of testimony, 6/30/15 at 9-10.)

Attorney Phillips testified that prior to trial, he and appellant went through a

mock direct and cross-examination and “he didn’t do very well.” (Id. at 9.)

During   appellant’s    interview   with   Officer   Daley,   he   made   several

incriminating statements, including admitting that he “could have” sexually

assaulted C.C., but blaming it on his alcohol problem. (Notes of testimony,

6/10/13 at 64.)        According to appellant, he drank heavily and would

“black out” sometimes. (Id. at 66-67.) Appellant blamed his ex-girlfriend

for allowing C.C. to sleep in their bedroom. (Id. at 64-65.) Appellant also

claimed that on one occasion, C.C. lifted up her shirt and rubbed her breasts


                                      -8-
J. S83004/16


against him. (Id. at 66.) When Officer Daley asked appellant about C.C.’s

allegation that appellant forced her to engage in oral sex, he alternately

stated that “it could have happened, it probably happened, and ‘I’m not

sure.’”      (Id.)      Attorney   Phillips      testified   that   during   the   mock

cross-examination, appellant had difficulty answering questions about the

police interview. (Notes of testimony, 6/30/15 at 8-9.) Appellant ultimately

decided it was in his best interests not to testify:

             Q.      Now, you said that you did practice questions
                     with him, correct?

             A.      Yes.

             Q.      He failed horribly?

             A.      I think that after we practiced doing the cross
                     or I was -- you know, I just gave him a test of
                     what the district attorney at that time would
                     ask because I had done different things with
                     her so I kind of knew her style. After doing
                     that he came to the conclusion, and I agree
                     with him, that it probably wouldn’t be a good
                     idea for him to testify.

Id. at 51.    Furthermore, Attorney Phillips was concerned that if appellant

took the stand, the Commonwealth would play the videotaped interview with

Officer Daley, in its entirety, for the jury.                (Id. at 9.)     Therefore,

Attorney Phillips had a reasonable basis for advising appellant not to testify,

and appellant waived that right after a thorough on-the-record colloquy with

the trial court.       The cases relied upon by appellant are inapposite.

Cf. Commonwealth v. Breisch, 719 A.2d 352 (Pa.Super. 1998) (where the



                                           -9-
J. S83004/16


defendant   was    convicted   of    forgery    and   theft   stemming   from   her

unauthorized use of 68 checks, trial counsel was ineffective for advising her

not to testify since Breisch’s sole defense to the crimes for which she was

charged was based on her belief that she was authorized to charge expenses

to the business and intent to defraud is an element of forgery);

Commonwealth v. Neal, 618 A.2d 438 (Pa.Super. 1992) (trial counsel’s

failure to inform his client of the right to testify constituted interference with

such right, and counsel offered no reason to justify why he did not put the

defendant on the stand). There is no merit here.

      Next, appellant claims that trial counsel was ineffective for failing to

cross-examine C.C. and Officer Daley regarding alleged prior inconsistent

statements of C.C. These alleged inconsistencies related to the number of

times she was assaulted by appellant (between 2 and 5), the degree of

penile penetration, and the number of times appellant forced her to engage

in oral sex. (Appellant’s brief at 15.)

      The defense theory was that C.C. and her mother made up these

allegations against appellant because they did not like him and wanted to

get him out of the house.           On cross-examination of the victim, C.C.,

Attorney Phillips established that C.C. loved her mother and they got along

well. (Notes of testimony, 6/10/13 at 50.) Attorney Phillips also established

that appellant fought with C.C.’s mother and her siblings and C.C. “didn’t

like it.” (Id. at 55.) C.C. testified that appellant “called them retarded and



                                       - 10 -
J. S83004/16


saying like mean things.” (Id.) Attorney Phillips also attempted to attack

C.C.’s credibility by establishing that on at least one occasion, appellant

assaulted her while her mother and siblings were in the house and with the

bedroom door open. (Id. at 53.) In addition, C.C. testified that she used to

have an imaginary friend named Sarah who “was like a ghost.” (Id. at 48.)

      During the PCRA hearing, Attorney Phillips explained his reasons for

not going after C.C. harder on cross-examination regarding these alleged

inconsistencies:

            Well, now this minor child was, I think she was 12 or
            13, I don’t recall exactly. She also is, was a little
            slow, so because of that I couldn’t impeach as
            aggressively as I would like to. I had to not go easy,
            but it would not serve my client if I made her cry. I
            was trying to make the things come out that people
            should take note of like, for instance, it came out I
            believe during her testimony that while she was in
            the room with [appellant] her mother was in the
            other room across the way with the door open. That
            should’ve sounded to the jury like, how would this
            stuff happen if the door is open and the mother is
            over there? So, I got that to come out. I got that
            she had imaginary friends, you know, without
            harping on it, because if the jury hears she has
            imaginary friends for one reason or another she has
            an imagination maybe she made all this up. I got
            that out of her. And there were a few other points, I
            don’t remember, it was a while back and so I did
            impeach the witness.      I did get vital chunks of
            information out of her. There were a couple other
            things that were minor like whether she called her
            mother after one of these instances happened. I
            believe the child said she did and the mother said
            later when I went to impeach her that no, she never
            called. So, there were a few things.




                                    - 11 -
J. S83004/16


            Q.    You didn’t impeach her          with   any     prior
                  inconsistent statements?

            A.    Unfortunately, most of her statements on the
                  tape, at preliminary hearings, at the trial, what
                  she supposedly told other people and all her
                  teachers had testified were very similar.

Notes of testimony, 6/30/15 at 16-17.

      Similarly, with regard to C.C.’s inconsistent statements as to the

degree of penetration, Attorney Phillips testified as follows:

            Q.    So, you will acknowledge that there were some
                  inconsistencies with the victim’s statements as
                  to whether there was penetration versus
                  halfway    penetration   versus    whole   way
                  penetration?

            A.    I would expect a 12 year old to probably be
                  confused about it, yes.

            Q.    And you would agree that you never
                  impeached her or questioned her about these
                  inconsistencies regarding penetration?

            A.    Well, the way the statute was written if there
                  was any penetration no matter how slight he’d
                  still be breaking the law, so arguing about
                  whether it was three-quarters, five-eighths, it
                  wouldn’t help the case.
Id. at 21-22.

      At trial, C.C. testified that appellant assaulted her on two separate

occasions. (Notes of testimony, 6/10/13 at 49.) This was consistent with

her preliminary hearing testimony; however, in a prior written statement,

C.C. alleged that appellant assaulted her between three and five times.




                                     - 12 -
J. S83004/16


(Notes of testimony, 6/30/15 at 17-18.)           Attorney Phillips chose not to

pursue this line of attack for obvious reasons:

            Whether it happened two times or three times or five
            times what she said happened was very consistent
            and had I said, wait a minute, you said five times
            before then maybe she would’ve “remember” [sic]
            other times it happened and it would sound even
            worse.

Id. at 19. As the PCRA court remarked, “Trial counsel felt that allowing the

witness the chance to explain three additional sexual assaults would

detrimentally affect his case.    Attorney Phillips also believed it would be

unwise to aggressively cross-examine an eleven year [old] sexual assault

victim. We concur with Attorney Phillip[s’] rationale.” (PCRA court opinion,

9/23/15   at   18-19    (emphasis     in   original).)     We   agree.     Clearly,

Attorney Phillips   articulated   a   sound     and      reasonable   strategy   for

cross-examining the victim, C.C. This claim fails.3


3
  In his PCRA petition, appellant also alleged that his sentence was in
violation of Alleyne v. United States,       U.S.    , 133 S.Ct. 2151 (2013),
which held that “[a]ny fact that, by law, increases the penalty for a crime is
an ‘element’ that must be submitted to the jury and found beyond a
reasonable doubt.” Id. at 2155. Issues pertaining to Alleyne go directly to
the legality of the sentence and are non-waivable. Commonwealth v.
Fennell, 105 A.3d 13, 15 (Pa.Super. 2014), appeal denied, 121 A.3d 494
(Pa. 2015). See also Commonwealth v. Snavely, 982 A.2d 1244, 1246
(Pa.Super. 2009) (“Challenges to an illegal sentence cannot be waived and
may be reviewed sua sponte by this Court.”) (citation omitted). Appellant
was sentenced on August 30, 2013, after Alleyne was decided on June 17,
2013, and he filed a timely PCRA petition. See Commonwealth v. Ruiz,
131 A.3d 54, 59-60 (Pa.Super. 2015) (a defendant can raise an Alleyne
challenge in a timely PCRA petition so long as his judgment of sentence was
not yet final when Alleyne was decided on June 17, 2013).
Cf. Commonwealth v. Washington,             A.3d     , 2016 WL 3909088 (Pa.


                                      - 13 -
J. S83004/16


     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/21/2016




July 19, 2016) (refusing to apply Alleyne retroactively to cases on collateral
review where the defendant’s judgment of sentence had already become
final before Alleyne was decided). However, it appears that appellant
received a sentence within the guidelines and he was not sentenced based
upon a mandatory minimum. (PCRA court opinion, 9/23/15 at 21-23.)


                                    - 14 -
