J-S14029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

ROBERT JAMES STEVENS,

                         Appellant                  No. 1842 EDA 2014


                Appeal from the PCRA Order of June 9, 2014
              In the Court of Common Pleas of Monroe County
            Criminal Division at No(s): CP-45-CR-0000245-2010
                        and CP-45-CR-0000246-2010

BEFORE: DONOHUE, OLSON AND MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                             FILED APRIL 27, 2015

      Appellant, Robert James Stevens, appeals from the order entered on

June 9, 2014 denying his petition filed under the Post-Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. § 9541-9546. We affirm.

      This Court previously outlined the factual background of this case as

follows:

      In the early morning hours of September 10, 2009, Complainant
      was at her home with her friend. Appellant arrived and became
      angry. Complainant told him that she was going to drive her
      friend home. As Complainant was driving her friend home,
      Appellant began following them in his own vehicle. Appellant
      used his vehicle to strike Complainant’s vehicle and eventually
      forced her vehicle off the roadway. . . . Appellant was taken into
      custody in that case on January 10, 2010.

      Although Appellant was the subject of a temporary protection
      from abuse order restricting his contact with Complainant, he
      called her from jail and told her to post his bail. Complainant
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     refused.    Appellant, however, managed to arrange his bail
     through a third party based on promises that he would repay the
     cost of his bail and post bail for a fellow inmate. Appellant was
     released from jail on January 14, 2010, on the condition that he
     have no contact with Complainant, but he went directly to
     Complainant’s house. . . .

     Appellant entered Complainant’s home and began punching her
     in the face and head. He emptied Complainant’s purse on the
     floor, took $400[.00] in cash, and forced her to write a personal
     check for $2,000[.00]. He then bound her with duct tape and
     went outside to deliver the cash and check to the individuals who
     had posted his bail. He returned to the home and continued to
     strike Complainant until she lost consciousness. Complainant
     stated that when she momentarily regained consciousness, she
     was on the floor of her living room and Appellant was having
     sexual intercourse with her.

     Appellant then took Complainant to her father’s truck, which she
     had been using after the September 10, 2009 incident, and
     placed her in the front passenger seat. Appellant drove the
     truck, but went off the roadway, struck a tree, and then
     careened into a mailbox of a residence. The owner of the
     residence came out to investigate the accident.        Appellant
     approached him, told him that his dog was injured, and asked
     him for a ride. He dropped Appellant off at a nearby home and
     drove back to his own home.

     Upon further investigation around his mailbox, the owner of the
     residence saw Complainant in the front passenger seat of her
     father’s truck with her head leaning against the passenger side
     window. There was blood on the window and around her head.
     He went inside his home to have his wife call 911. By the time,
     he was ready to go back outside, Appellant had borrowed a
     second vehicle, picked up Complainant, and driven away from
     the scene of the accident.

     Appellant rented a motel room, and on the morning of January
     15, 2010, drove Complainant to the home of their mutual
     friends. Complainant went inside the residence, but was so
     bruised that their friends did not immediately recognize her.
     Appellant told them that she had been injured in a car accident.
     Complainant told one of the friends that Appellant had caused
     her injuries. The friend drove Complainant to a Pennsylvania


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        State Police barracks where she gave a statement implicating
        Appellant.

        Meanwhile, the other friend arranged for Appellant to go to a
        cabin, but called the State Police when Appellant left his
        residence. The State Police ultimately stopped and captured
        Appellant as he was driving on State Route 33. When searching
        Complainant’s home, investigators discovered ropes tied to the
        bedposts of Complainant’s bed. Complainant stated those ropes
        were not on the bed prior to the assault and suggested Appellant
        may have had intercourse with her on the bed.

        Appellant, after waiving his Miranda1 rights, admitted that he
        had gone to Complainant’s home after being released on bail.
        Appellant also stated that they had consensual sexual
        intercourse three times, that Complainant had been driving her
        father’s truck at the time of the accident, and that she sustained
        her injuries in that accident.

Commonwealth v. Stevens, 69 A.3d 1284 (Pa. Super. 2013) (unpublished

memorandum), at 1-4 (certain footnote omitted).

        The procedural history of this case is as follows.       Appellant was

charged via two criminal informations with criminal mischief,2 aggravated

assault,3 kidnapping,4 unauthorized use of a motor vehicle,5 simple assault,6




1
    Miranda v. Arizona, 384 U.S. 436 (1966).
2
    18 Pa.C.S.A. § 3304(a)(5).
3
    18 Pa.C.S.A. § 2702(a)(1).
4
    18 Pa.C.S.A. § 2901(a)(3).
5
    18 Pa.C.S.A. § 3928(a).
6
    18 Pa.C.S.A. § 2701(a).




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making     terroristic   threats,7   burglary,8   trespassing,9   sexual   assault,10

unlawful restraint,11 robbery,12 two counts of rape,13 and two counts of

recklessly endangering another person.14             The two informations were

consolidated for trial and, on November 2, 2010, Appellant was found guilty

of all charges and was eventually sentenced to an aggregate term of 46 to

92 years’ imprisonment.          After post-sentence proceedings concluded, this

Court affirmed the judgment of sentence. Commonwealth v. Stevens, 69

A.3d 1284 (Pa. Super. 2013) (unpublished memorandum).

        On July 24, 2013, Appellant filed a pro se PCRA petition. Counsel was

appointed and filed an amended petition.               On March 21, 2014, an

evidentiary hearing was held.         On June 9, 2014, the PCRA court denied

Appellant’s PCRA petition. This timely appeal followed.15


7
    18 Pa.C.S.A. § 2706(a)(1).
8
    18 Pa.C.S.A. § 3502(a).
9
    18 Pa.C.S.A. § 3503(a)(1)(i).
10
     18 Pa.C.S.A. § 3124.1.
11
     18 Pa.C.S.A. § 2902(a)(1).
12
     18 Pa.C.S.A. § 3701(a)(1)(i).
13
     18 Pa.C.S.A. § 3121.
14
     18 Pa.C.S.A. § 2705.
15
   On July 3, 2014, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
(Footnote Continued Next Page)


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      Appellant presents one issue for our review:

      Whether the [PCRA c]ourt erred by finding that trial counsel’s
      failure to file a pretrial [m]otion to [s]ever and a pre-trial
      [m]otion under Pennsylvania's Rape Shield Law did not amount
      to ineffective assistance of counsel which so undermined the
      truth determining process that no reliable adjudication of guilt or
      innocence took place[?]

Appellant’s Brief at 4.

      “[W]e 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. Eichinger, 108 A.3d 821, 830 (Pa. 2014) (internal

quotation marks and citation omitted). “The scope of review is 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.” Commonwealth

v. Freeland, 106 A.3d 768, 775 (Pa. Super. 2014) (citation omitted).

      Appellant’s lone claim on appeal is that his trial counsel rendered

ineffective assistance. Our Supreme Court has explained:

      [T]o prove counsel ineffective, [a PCRA] petitioner must
      demonstrate: (1) the underlying claim has arguable merit; (2)
      no reasonable basis existed for counsel’s actions or failure to
      act; and (3) the petitioner suffered prejudice as a result of
      counsel’s error such that there is a reasonable probability that
      the result of the proceeding would have been different absent
      such error. Counsel is presumed to have rendered effective
      assistance.


(Footnote Continued)
Pa.R.A.P. 1925(b). On July 17, 2014, Appellant filed his concise statement.
On August 6, 2014, the trial court issued a statement adopting its June 9,
2014 opinion. Appellant’s lone issue on appeal was included in his concise
statement.



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      A court is not required to analyze the elements of an
      ineffectiveness claim in any particular order of priority; instead,
      if a claim fails under any necessary element of the
      ineffectiveness test, the court may proceed to that element first.
      Finally, counsel cannot be deemed ineffective for failing to raise
      a meritless claim.

Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014) (citations

omitted).

      Appellant first argues that trial counsel was ineffective for failing to file

a pre-trial motion to sever the two cases. We conclude that failure to seek

severance did not prejudice Appellant. Appellant contends that the failure to

sever the cases prejudiced him because it permitted details regarding the

first incident to be admitted into evidence, thereby allowing the jury to infer

that there was a motive for his commission of the crimes in the second

incident.   This argument, however, ignores Pennsylvania Rule of Evidence

404(b). That rules provides, in relevant part:

      (1) Prohibited Uses. Evidence of a crime, wrong, or other act is
      not admissible to prove a person’s character in order to show
      that on a particular occasion the person acted in accordance with
      the character.

      (2) Permitted Uses. This evidence may be admissible for another
      purpose, such as proving motive, opportunity, intent,
      preparation, plan, knowledge, identity, absence of mistake, or
      lack of accident. In a criminal case this evidence is admissible
      only if the probative value of the evidence outweighs its potential
      for unfair prejudice.

Pa.R.Evid. 404(b) (emphasis added).

      In this case, Appellant’s whole argument is that evidence of the first

incident permitted the jury to infer that he had a motive for commission of


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the second incident. This falls within the express terms of permissible uses

of a prior bad act since proof of a motive is the first example listed in Rule

404(b). See Commonwealth v. Hairston, 84 A.3d 657, 669 (Pa. 2014)

(prior bad act evidence admissible as it was used to prove motive);

Commonwealth v. Green, 76 A.3d 575, 585 (Pa. Super. 2013), appeal

denied, 87 A.3d 318 (Pa. 2014) (same); Commonwealth v. Wholaver,

989 A.2d 883, 897 (Pa. 2010) (same); Commonwealth v. Malloy, 856

A.2d 767, 775-776 (Pa. 2004) (same).

      The probative value of the first incident also outweighed the potential

for its unfair prejudice. The evidence was highly probative as it provided the

full picture of Appellant’s related crimes and why he went to Complainant’s

house and assaulted her. The evidence of the first incident did not have “a

tendency to suggest decision on an improper basis or divert the jury’s

attention away from its duty of weighing the evidence impartially.” Parr v.

Ford Motor Co., 2014 WL 7243152, *9 (Pa. Super. Dec. 22, 2014) (en

banc) (internal quotation marks and citations omitted) (defining unfair

prejudice). Instead, the evidence was merely adverse to Appellant’s case –

as is most evidence offered by the Commonwealth. Therefore, even if trial

counsel had successfully had the two informations severed for trial, the first

incident would have been admissible at the trial on the charges relating to




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the second incident.     Accordingly, Appellant was not prejudiced by trial

counsel’s failure to seek severance.16

      Appellant next contends that his trial counsel was ineffective for failing

to file a motion seeking permission to offer evidence of Complainant’s prior

consensual sexual encounters with Appellant. In particular, Appellant argues

that he previously engaged in consensual bondage and rough sexual

intercourse with Complainant.      He contends that because Complainant

alleged that she was restrained with ropes during one of the sexual assaults,




16
   It is for these same reasons that Appellant’s underlying claim lacks
arguable merit. As this Court has explained:

      Our Supreme Court has established a three part test . . . for
      deciding the issue of joinder versus severance of offenses from
      different informations. The court must determine whether the
      evidence of each of the offenses would be admissible in a
      separate trial for the other; whether such evidence is capable of
      separation by the jury so as to avoid danger of confusion; and, if
      the answers to these inquiries are in the affirmative, whether the
      defendant will be unduly prejudiced by the consolidation of
      offenses.

Commonwealth v. Kunkle, 79 A.3d 1173, 1190 (Pa. Super. 2013)
(citation omitted).

As discussed above, the evidence of the first incident would have been
admissible at the trial relating to the second incident and Appellant was not
unduly prejudiced from the consolidation of the offenses. Finally, it was
easy for the jury to separate the offenses because, as Appellant notes, the
incidents were separated by both time and location. Therefore, Appellant’s
underlying claim lacks arguable merit.




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this evidence of consensual bondage was highly relevant to the issue of

consent.

     Appellant’s trial counsel attempted to cross-examine Complainant

regarding her prior consensual bondage with Appellant. The Commonwealth

objected on the basis that the evidence was irrelevant. See Pa.R.Evid. 401.

The trial court sustained the objection and ruled the evidence irrelevant. On

direct appeal, this Court held that the trial court erred by sustaining the

objection based upon Rule 401.      Commonwealth v. Stevens, 69 A.3d

1284 (Pa. Super. 2013) (unpublished memorandum), at 10-13. This Court,

however, determined that the trial court should have sustained the objection

based upon the Rape Shield Law because Appellant failed to file a written

motion outlining his intention to cross-examine Complainant regarding their

previous consensual bondage. Id. at 13.

     Under Pennsylvania’s Rape Shield Law,

     (a) General rule. Evidence of specific instances of the alleged
     victim’s past sexual conduct, opinion evidence of the alleged
     victim’s past sexual conduct, and reputation evidence of the
     alleged victim’s past sexual conduct shall not be admissible in
     prosecutions under this chapter except evidence of the alleged
     victim’s past sexual conduct with the defendant where consent of
     the alleged victim is at issue and such evidence is otherwise
     admissible pursuant to the rules of evidence.

     (b) Evidentiary proceedings. A defendant who proposes to offer
     evidence of the alleged victim’s past sexual conduct pursuant to
     subsection (a) shall file a written motion and offer of proof at the
     time of trial. If, at the time of trial, the court determines that
     the motion and offer of proof are sufficient on their faces, the
     court shall order an in camera hearing and shall make findings
     on the record as to the relevance and admissibility of the


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      proposed evidence pursuant to the standards set forth in
      subsection (a).

18 Pa.C.S.A. § 3104.

      We conclude that Appellant’s underlying claim lacks arguable merit.

The Commonwealth’s theory of the case was not that Appellant tied up

Complainant and then raped her while she was conscious.            Instead, the

Commonwealth’s theory was that Appellant beat Complainant unconscious,

restrained her with ropes, and then raped her.        As this Court stated on

Appellant’s direct appeal, “it strains reason to believe that Appellant’s proffer

of prior consensual bondage was probative on the question of consent in

light of the trial evidence that Appellant beat Complainant into a state of

unconsciousness and then raped her.”          Commonwealth v. Stevens, 69

A.3d 1284 (Pa. Super. 2013) (unpublished memorandum), at 13 n.7.

Therefore, even if trial counsel had filed a written motion seeking permission

to cross-examine Complainant regarding the prior consensual bondage, the

evidence would have been inadmissible under the Rape Shield Law.

      Furthermore, Appellant has not proven actual prejudice as a result of

trial counsel’s failure to file a written motion pursuant to the Rape Shield

Law. In addition to Complainant’s testimony, there was substantial evidence

of Appellant’s guilt consistent with the Commonwealth’s theory of the case

and inconsistent with Appellant’s story. Specifically, Complainant had head

wounds consistent with blunt force trauma inflicted by Appellant and

inconsistent with injuries suffered in a car accident. Appellant admitted to


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police that he had engaged in sexual intercourse with Complainant during

this time period, when an active protection from abuse order was in place.

Thus, even if Appellant were permitted to cross-examine Complainant

regarding their prior consensual bondage, there is no reasonable probability

that the result of the trial would have been different. Accordingly, the trial

court properly concluded that Appellant failed to prove that trial counsel was

ineffective and, therefore, correctly denied the petition.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/27/2015




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