J-S31020-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                          Appellee

                     v.

GUIPING ZHENG

                          Appellant                 No. 1402 WDA 2018


         Appeal from the PCRA Order entered September 14, 2018
            In the Court of Common Pleas of Allegheny County
             Criminal Division at No: CP-02-CR-0003431-2014


BEFORE: OLSON, STABILE, and McLAUGHLIN, JJ.

MEMORANDUM BY STABILE, J.:                      FILED AUGUST 27, 2019

      Appellant, Guiping Zheng, appeals from the September 14, 2018 order

entered in the Court of Common Pleas of Allegheny County, denying his

petition for collateral relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A §§ 9541-9546.       Appellant contends the PCRA court

erred in failing to find that trial counsel ineffectively cross-examined

Appellant’s accuser and in failing to find that both trial and direct appeal

counsel failed to raise a violation of Appellant’s due process rights.    Upon

review, we affirm.

      On direct appeal, this Court provided the following factual background:

      The evidence adduced at the trial in this matter established that
      Appellant lay on top of the victim, E.S., fondled her over her
      clothing and attempted to kiss her. This conduct occurred
      frequently over the course of approximately four years,
      commencing when the victim was six years old. Eventually, the
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        victim revealed the ongoing abuse to her mother who reported
        Appellant’s behavior.

Commonwealth v. Zheng, 2016 WL 4954188, at *1, (Pa. Super. July 11,

2016), appeal denied, 167 A.3d 709 (Pa. 2017).

        The PCRA court provided the following procedural history:

        On July 21, 2014, a jury convicted Appellant . . . of one count each
        of indecent assault, unlawful contact with minor, endangering
        welfare of children, corruption of minors (course of conduct), and
        corruption of minors.1 This court sentenced Appellant on February
        2, 2015 to a sentence of incarceration for a minimum period of 7
        months and 15 days and a maximum period of 15 months, with
        each count carrying a probation sentence of 3 years consecutive
        to incarceration but concurrent with each probationary sentence.
        On March 3, 2015, this court denied Appellant’s post-sentence
        motion. Appellant filed a notice of appeal on March 26, 2015 and
        the Superior Court of Pennsylvania affirmed on July 11, 2016.
        [Appellant filed a petition for allowance of appeal, which our
        Supreme Court denied on March 7, 2017.]
           1
            18 Pa.C.S. §§ 3126(a)(7), 6318(a)(4), 4304(a)(1), 6301(a)(1)(ii), and
           6301(a)(1)(i), respectively.

PCRA Court Opinion, 12/20/18, at 1 (some capitalization omitted).

        Following denial of his petition for allowance of appeal, Appellant filed a

timely PCRA petition raising seven issues.            At the conclusion of a hearing

conducted on September 12, 2018, the PCRA court announced its ruling,

explaining its denial of Appellant’s requested relief with the exception of one

correction relating to the proper identification of a statutory provision. The

court’s order was entered on the docket on September 14, 2018. This timely

appeal followed. Both Appellant and the PCRA court complied with Pa.R.A.P.

1925.



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      Appellant asks us to consider two issues on appeal:

      I.      Did the PCRA court err in denying Appellant’s petition for
              post-conviction relief when trial counsel failed to cross-
              examine the accuser about statements made at trial, which
              were inconsistent with statements made at both a forensic
              interview and the preliminary hearing, explaining why she
              did not make a prompt complaint of the alleged sexual
              abuse?

      II.     Did the PCRA court err in denying Appellant’s petition for
              post-conviction relief when neither trial counsel nor
              appellate counsel argued that the Commonwealth’s
              questioning of a defense character witness assumed
              [Appellant’s] guilt, violating Appellant’s due process rights?

Appellant’s Brief at 4.

      Our standard of review from the denial of PCRA relief is well settled.

“[A]n appellate court reviews the PCRA court’s findings of fact to determine

whether they are supported by the record, and reviews its conclusions of law

to determine whether they are free from legal error.” Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted). With regard to the

scope of our review, we are “limited to the findings of the PCRA court and the

evidence of record, viewed in the light most favorable to the prevailing party

at the trial level.” Id.

      In his first issue, Appellant argues that his trial counsel was ineffective

for failing to cross-examine the victim, E.S., regarding prior inconsistent

statements “as to why she did not make a prompt complaint” about

Appellant’s actions. PCRA Court Opinion, 12/20/18, at 3. As this Court has

recognized:


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     The law presumes counsel has rendered effective assistance.
     Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super.
     2010). The burden of demonstrating ineffectiveness rests on
     Appellant. Id. To satisfy this burden, Appellant must plead and
     prove by a preponderance of the evidence that: “(1) his
     underlying claim is of arguable merit; (2) the particular course of
     conduct pursued by counsel did not have some reasonable basis
     designed to effectuate his interests; and, (3) but for counsel’s
     ineffectiveness, there is a reasonable probability that the outcome
     of the challenged proceeding would have been different.”
     Commonwealth v. Fulton, 574 Pa. 282, 830 A.2d 567, 572
     (2003). Failure to satisfy any prong of the test will result in
     rejection of the appellant’s ineffective assistance of counsel claim.
     Commonwealth v. Jones, 571 Pa. 112, 811 A.2d 994, 1002
     (2002).

Commonwealth v. Smith, 167 A.3d 782, 787-88 (Pa. Super. 2017).

     As the PCRA court explained:

     Present counsel alleges inconsistencies between E.S.’s statements
     at the preliminary hearing, the forensic interviews and at trial
     regarding the reason for a lack of prompt complaint. . . .

     Counsel for Appellant at the preliminary hearing attempted to
     elicit testimony regarding prompt report. However, counsel was
     unable to obtain that testimony due to the magisterial district
     justice’s ruling which sustained the Commonwealth’s objection
     that counsel’s questions extended beyond the scope of direct
     examination.     Appellant’s assertion that preliminary hearing
     counsel failed to confront E.S. at the preliminary hearing is not
     supported by the evidence.

     At the forensic interview, E.S. explained the delay in reporting as
     a lack of courage on her part, which she eventually overcame as
     she felt haunted by her non-disclosure. E.S. testified at trial that
     she initially did not know what Appellant had done to her was
     wrong, and disclosed eventually because she started to feel that
     what was happening to her was not right. Trial counsel reasonably
     concluded that these statements can be reconciled and
     inconsistencies are de minimus.        Nonetheless, trial counsel
     requested an instruction on prompt complaint, which this court
     gave.


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      Instead, counsel at trial focused on other weaknesses in the
      victim’s credibility. Counsel elicited testimony that E.S. made a
      birthday card for Appellant two months before she disclosed
      abuse.      He further elicited testimony that E.S. voluntarily
      continued to go to Appellant’s residence despite her purported
      fear of Appellant. E.S. acknowledged under cross-examination
      that numerous people were in Appellant’s home at the time the
      incidents occurred, none of whom observed Appellant
      inappropriately touch E.S. Since counsel’s actions constitute
      reasonable strategic decisions, this court correctly determined
      that trial counsel was not ineffective as to this claim.

Id. at 3-4 (references to notes of testimony and some capitalization omitted).

      Viewing the evidence in the light most favorable to the Commonwealth,

we find the PCRA court’s findings of fact are supported by the record and

discern no error in its conclusions of law.      Specifically, counsel was not

ineffective regarding testimony at the preliminary hearing because the scope

of his cross-examination was circumscribed by the magisterial judge’s ruling.

Mindful that E.S. was ten years old at the time of the interview and trial, we

agree that any inconsistencies between her forensic interview and her trial

testimony were de minimus.       Moreover, trial counsel requested a prompt

complaint instruction, which the trial court delivered, and trial counsel pursued

a reasonable trial strategy of attacking E.S.’s credibility in other respects.

Appellant has failed to satisfy the test for ineffectiveness by failing to

demonstrate that the underlying claim is of arguable merit or that, but for

counsel’s actions, there is a reasonable probability that the outcome would

have been different. Appellant’s first issue fails.




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      In his second issue, Appellant asserts trial and direct appeal counsel

were ineffective for failing to argue the impropriety of the Commonwealth’s

“guilt-assuming hypotheticals.”    Appellant contends that questions forcing

character witnesses to assume that a defendant is guilty deprive the accused

of the presumption of innocence, violating the accused’s due process rights.

Appellant’s Brief at 14.

      During his trial, Appellant testified on his own behalf, denying E.S.’s

allegations. On direct appeal, this Court observed:

      Appellant also presented character witnesses. For example,
      neighbor Ning Jiang testified as to Appellant’s reputation for
      having a peaceful and law-abiding character.       On cross-
      examination, the following exchange took place:

         [The Commonwealth]:       Ma’am, you know [Appellant]; is
         that correct?

         [Ning Jiang]: Yes.

         [The Commonwealth]: And do you think [Appellant] would
         tell you if he was molesting a juvenile female?

         [Attorney for Appellant]:     I’m going to object to that
         question.

         [Trial Court]:    It is appropriate character witness cross.
         Overruled.

         [The Commonwealth]: Do you think [Appellant] would talk
         to you about molesting a little girl?

         [Ning Jiang]: No, I don’t.

      Thereafter, Mr. Nan Wu also testified on Appellant’s behalf.
      During cross-examination of Mr. Wu, the Commonwealth asked a




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      similar question soliciting Mr. Wu’s opinion without objection. (“Q:
      Do you think [Appellant] would tell you if he [was] sexually
      molesting a juvenile female?”).

Commonwealth v. Zheng, 2016 WL 4954188, at *1 (references to notes of

testimony omitted).

      Addressing the propriety of the Commonwealth’s cross-examination on

direct appeal, this Court explained:

      Appellant also asserts that the Commonwealth’s cross-
      examination of his character witness, Ms. Ning Jiang, was
      improper.4 Appellant elicited testimony from Ms. Jiang that
      Appellant had a reputation in the community for being peaceful
      and law-abiding. Thereafter in response, the Commonwealth
      challenged this testimony, questioning Ms. Jiang, “[D]o you think
      [Appellant] would tell you if he was molesting a juvenile female?”
      According to Appellant, this question was improper because it
      called for Ms. Jiang’s opinion of Appellant’s character. Moreover,
      according to Appellant, with this single query the Commonwealth’s
      cross-examination of Ms. Jiang unfairly prejudiced Appellant
      because it worked to undermine his credibility.

      We conclude that Appellant is entitled to no relief. We agree that
      the Commonwealth’s question, as phrased, elicited the personal
      opinion of Ms. Jiang and that such opinion testimony is
      inadmissible from a character witness. See Pa.R.E. 405(a).
      However, we are also mindful that the Commonwealth is
      permitted to cross-examine a character witness “to test the
      accuracy of [her] testimony and the standard by which [she]
      measures reputation.” Commonwealth v. Morgan, 739 A.2d
      1033, 1036 (Pa. 1999); see also Trial Court Opinion, 08/04/2015,
      at 8 (noting that the Commonwealth’s question challenged
      Appellant’s law-abiding character).     Accordingly, despite the
      awkward phrasing of the Commonwealth’s question, we discern
      no abuse of the trial court’s discretion in overruling Appellant’s
      objection.

      As a result of the Commonwealth’s cross-examination, Appellant’s
      evidence of good character was merely tempered by Ms. Jiang’s
      concession that Appellant may not disclose criminal activity to her.
      Appellant suggests that this concession so undermined the

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      credibility of his denial of culpability that a new trial is warranted.
      We disagree. Even were we to conclude that the trial court abused
      its discretion, any resulting prejudice to Appellant was de minimis.
      Simply put, we are not persuaded that the Commonwealth’s single
      question diminished the effectiveness of Ms. Jiang’s character
      testimony such that Appellant is entitled to a new trial.
         4
          Appellant did not specifically object to similar questioning of Mr. Nan
         Wu. Accordingly, any claim pertaining to his testimony is waived. See,
         e.g., Commonwealth v. Montalvo, 641 A.2d 1176, 1184-85 (Pa.
         Super. 1994).

Id. at **2-3 (references to notes of testimony and citation to Appellant’s brief

on direct appeal omitted).

      To be eligible for relief under the PCRA, “the petitioner must plead and

prove by a preponderance of the evidence . . . [t]hat the allegation of error

has not been previously litigated or waived.”            42 Pa.C.S.A. § 9543(a)(3).

“[A]n issue has been previously litigated if . . . the highest appellate court in

which the petitioner could have had review as a matter of right has ruled on

the merits of the issue[.]” 42 Pa.C.S.A. § 9544(a)(2).

      The PCRA court concluded that this Court addressed Appellant’s issue

on direct appeal and determined it was without merit. Consequently, “counsel

was not ineffective for raising meritless claims.”               PCRA Court Opinion,

12/20/18, at 5. We agree. We recognize that the issue on direct appeal called

into play the trial court’s evidentiary rulings. Nevertheless, our rejection of

Appellant’s challenge to the evidentiary rulings underscores Appellant’s failure

to demonstrate that, “but for counsel’s ineffectiveness, there is a reasonable

probability that the outcome of the challenged proceeding would have been

different.” Smith, 167 A.3d at 787 (citing Fulton, 830 A.2d at 572). Again,

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“[f]ailure to satisfy any prong of the [ineffectiveness] test will result in

rejection of the appellant’s ineffective assistance of counsel claim.”    Id. at

787-88 (citing Jones, 811 A.2d at 1002). Moreover, as to his current due

process assertions, “[an] appellant cannot obtain post-conviction review of

claims previously litigated on appeal by alleging ineffective assistance of prior

counsel and presenting new theories of relief to support previously litigated

claims.”   Commonwealth v. Santiago, 855 A.2d 682, 697 (Pa. 2004)

(quoting Commonwealth v. Beasley, 678 A.2d 773, 778 (Pa. 1996)).

      The PCRA court’s findings of fact relating to Appellant’s second issue are

supported by the record and its legal conclusions are without error. Therefore,

Appellant is not entitled to relief on his second issue.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/27/2019




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