J-S01010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    MARQUALE JAMAL SMITH                       :
                                               :
                      Appellant                :       No. 1030 MDA 2016
                                               :

                   Appeal from the PCRA Order June 1, 2016
                In the Court of Common Pleas of Snyder County
              Criminal Division at No(s): CP-55-CR-0000164-2013


BEFORE:      GANTMAN, P.J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                          FILED JANUARY 30, 2017

        Appellant, Marquale Jamal Smith, appeals from the order entered in

the Snyder County Court of Common Pleas, which denied his first petition

brought pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        This Court previously set forth the relevant facts of this case as

follows:

           Appellant and [V]ictim were formerly in a relationship and
           had a child together. [V]ictim would bring their child to
           Appellant’s mother’s home, where Appellant lived, while
           [V]ictim worked. She would then return to his house to
           pick up the child after her shift was over. On May 13,
           2013,    [V]ictim  arrived   at   Appellant’s   home    at
           approximately 4:00 p.m. to pick up her child. Soon after
           entering the home, Appellant took her cell phone and keys.
____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.
J-S01010-17


       He accused [V]ictim of having a sexual relationship with
       another man, and was attempting to check her phone for
       text messages or other proof that she was seeing someone
       else.

       [V]ictim’s child, who was approximately six months old at
       the time, awoke.      [V]ictim then went into Appellant’s
       bedroom to breastfeed. She sat on Appellant’s bed with
       her clothes on and lifted her shirt so that the baby could
       have access to her breasts. Appellant then entered and
       began to call [V]ictim a slut or a whore. At that point, he
       began to remove her pants. [V]ictim told Appellant to
       stop, but he removed [V]ictim’s pants. She repeated that
       she did not want to have sex. He then stated that if other
       men could “get some, then he should, too.” Appellant
       then penetrated [V]ictim’s vagina with his penis. [V]ictim
       continued to tell Appellant to stop, and the baby began to
       cry as did [V]ictim. Shortly thereafter, Appellant exited
       the room and [V]ictim dressed herself and took the baby
       into the living room. She asked for her keys so that she
       could leave.

       Appellant continued to accuse [V]ictim of being in a
       relationship with another man from her work and took the
       baby from her. He then told [V]ictim that she could not
       leave with the child unless she had sex with him again.
       After one-half-hour of discussing [V]ictim having sex with
       Appellant before she could leave, [V]ictim finally
       acquiesced.     According to her, she only engaged in
       intercourse with Appellant so she could take her baby and
       leave.

       After the second assault, Appellant refused to let [V]ictim
       immediately leave with the child. He then threw [V]ictim’s
       cell phone against a wall, breaking it. Finally, Appellant
       returned [V]ictim’s car keys. Upon leaving, [V]ictim went
       with her child and traveled immediately to the home of the
       closest person she knew in the area, which was her former
       boyfriend. She told him what occurred, and then went
       home to pick up her brother to take him to work for a
       nightshift at 10:00 p.m. After dropping off her brother,
       she went to the Pennsylvania State Police and reported the
       incident. She then went to a hospital for testing and
       informed a nurse of the assaults.

                                  -2-
J-S01010-17



         The following morning, police arrested Appellant while he
         was seated on the front porch of [V]ictim’s home. He
         admitted to having sexual relations with [V]ictim the night
         before, but maintained that the sex was consensual.
         According to him, [V]ictim stripped down naked on his bed
         while breastfeeding, and the child then fell asleep before
         the two had sex the first time. In addition, he indicated
         that the second time they had sexual relations she
         instigated it and began having oral sex with him.

Commonwealth v. Smith, No. 1033 MDA 2014, unpublished memorandum

at 1-3 (Pa.Super. filed March 31, 2015) (internal citation omitted).

      Procedurally, a jury convicted Appellant on February 18, 2014, of

sexual assault, indecent assault, and unlawful restraint.      The court also

convicted Appellant of criminal mischief.     On May 23, 2014, the court

sentenced Appellant to an aggregate term of three (3) to six (6) years’

imprisonment. This Court affirmed the judgment of sentence on March 31,

2015. See id. Appellant did not seek further direct review. On March 4,

2016, Appellant timely filed a counseled PCRA petition raising claims of

ineffective assistance of counsel. The court held a PCRA hearing on June 1,

2016, at the conclusion of which the court denied PCRA relief.         Appellant

timely filed a notice of appeal on June 23, 2016.     On June 27, 2016, the

court ordered Appellant to file a concise statement of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(b); Appellant timely complied.

      Appellant raises two issues for our review:

         [WHETHER] THE [PCRA] COURT ERRED IN DENYING THE
         [PCRA] PETITION WHERE THE [PCRA] COURT FOUND NO
         PREJUDICE   TO   [APPELLANT] IN   THE  LACK  OF

                                     -3-
J-S01010-17


          PREPARATION FOR TESTIFYING AT TRIAL WHERE
          [APPELLANT] BELIEVED THAT HE WAS NOT GOING TO BE
          TESTIFYING AND THE LACK OF PREPARATION AFFECTED
          HIS DEMEANOR AND TESTIMONY ON THE STAND[?]

          [WHETHER] THE [PCRA] COURT ERRED IN DENYING THE
          [PCRA] PETITION WHERE THE [PCRA] COURT FOUND NO
          PREJUDICE TO [APPELLANT] WHEN TRIAL COUNSEL
          FAILED TO BRING OUT EVIDENCE OF [APPELLANT’S]
          INTENTION TO SEEK CUSTODY OF THE MINOR CHILD OF
          [APPELLANT] AND VICTIM WHERE SUCH TESTIMONY
          WOULD HAVE ESTABLISHED A MOTIVE FOR VICTIM TO
          TESTIFY FALSELY[?]

(Appellant’s Brief at 3).

      Our standard of review of the denial of a PCRA petition is limited to

examining whether the record evidence supports the court’s determination

and whether the court’s decision is free of legal error. Commonwealth v.

Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959

A.2d 319 (2008). This Court grants great deference to the findings of the

PCRA court if     the   record contains any support for      those   findings.

Commonwealth v. Carr, 768 A.2d 1164 (Pa.Super. 2001).           If the record

supports a post-conviction court’s credibility determination, it is binding on

the appellate court. Commonwealth v. Dennis, 609 Pa. 442, 17 A.3d 297

(2011).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Michael T.

Hudock, we conclude Appellant’s issues merit no relief.      The PCRA court

opinion comprehensively discusses and properly disposes of the questions


                                    -4-
J-S01010-17


presented. (See PCRA Court Opinion, filed August 4, 2016, at 2-7) (finding:

(1) Appellant’s testimony, that trial counsel failed to discuss with him

possibility of testifying at trial or prepare Appellant to testify, was not

credible; Appellant’s mother admitted she attended meetings with Appellant

and trial counsel, during which counsel, Appellant, and Appellant’s mother

discussed possibility of Appellant testifying at trial; Appellant’s mother

insisted she did not want Appellant to testify; trial counsel said he discussed

with Appellant general parameters of testifying, and stated it was ultimately

Appellant’s decision whether to testify; court credited counsel’s testimony

that he and Appellant had pre-trial discussions concerning whether Appellant

should testify and how Appellant should testify; counsel and Appellant made

final decision that Appellant would testify at close of Commonwealth’s

presentation of testimony/evidence;2 Appellant’s ineffectiveness claim lacks

arguable merit and, in any event, Appellant demonstrated no prejudice; (2)

trial counsel testified that Appellant and Victim had no custody action

pending at time of incident or when Commonwealth filed criminal charges

against Appellant; counsel said no evidence supported Appellant’s contention
____________________________________________


2
   The PCRA hearing testimony makes clear Appellant initially wanted to
testify at trial but Appellant’s mother objected. Trial counsel believed
Appellant should testify because of the “he said/she said” nature of the case.
Trial counsel advised Appellant how to testify in the event Appellant decided
to take the stand. Prior to trial, it was “up in the air” regarding whether
Appellant would testify. After the conclusion of the Commonwealth’s case,
trial counsel advised Appellant to testify, and Appellant heeded counsel’s
advice.



                                           -5-
J-S01010-17


that Victim falsified allegations against him due to alleged custody dispute;

trial counsel’s strategy was to demonstrate Appellant and Victim engaged in

consensual sex on day in question; counsel elicited testimony at trial

showing Appellant and Victim were parents of child, were involved in

relationship, and frequently had consensual sex; in light of counsel’s trial

strategy, his decision not to elicit testimony about alleged custody dispute

was reasonable; as well, Appellant failed to show prejudice).   Accordingly,

we affirm on the basis of the PCRA court’s opinion.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/30/2017




                                    -6-
                                                                  Circulated 01/04/2017 03:34 PM



                                                              FILED


                                                       '2016 AUG -I.I PM I: 12
                                                         PROTHONOTARY
                                                         SNYDER CO., PA




COMMONWEALTH OF                                  INTHECOURTOFCOMMON
PENNSYLVANIA                                    PLEAS OF THE 17TH JUDICIAL
                                                DISTRICT OF PENNSYLVANIA
                                                  SNYDER COUNTY BRANCH
                 vs.
                                                    CRIMINAL DIVISION
MARQUALE J. SMITH,                              NO. CP-55-CR-0000164-2013
                Defendant




                                  1925(a) OPINION



   HUDOCK, P.J. -August 4. 2016

   1. Procedural History

         On February 18, 2014, a jury convicted Petitioner Marquale Smith of

   Sexual Assault, Indecent Assault, and Unlawful Restraint. The jury found

   Mr. Smith Not Guilty of Rape and False Imprisonment. On May 23, 2014,

   this court sentenced Mr. Smith to an aggregate sentence of three to six

   years in a state correctional institution.

         Mr. Smith did not file a post-sentence motion, but he did file a direct

   appeal. In connection with his direct appeal, Smith did not file a timely
Statement of Matters Complained Of. He did raise issues of sufficiency and

weight of the evidence.   On March 31, 2015, a panel of the Superior Court

affirmed the judgment of sentence in a non-precedential decision at No.

1033 MDA 2014.

      On March 4. 2016, Smith filed a Petition for Post-Conviction Relief in

which he raised the issue of trial counsel's ineffectiveness and, in support

of his petition, raised seven instances of counsel's ineffectiveness. This

court held a hearing on Smith's petition on June 1, 2016. At the conclusion

of the hearing, the court denied the petition. The reasons for the denial are

set forth at pages 79-82 of the transcript of the hearing.

      Smith filed his Notice of Appeal on June 23, 2016. Pursuant to an

order of this court, Smith filed his Statement of Matters Complained of on

Appeal in which he claimed this court erred in finding no prejudice to Smith

in the lack of preparation for testifying and the failure to bring out custody

issues related to Smith's child with the victim.

2. Discussion

2.1. Ineffective Assistance of Counsel- Failure to Prepare Petitioner to
Testify

      Section 9543(a) of the Post Conviction Relief Act ( Act") provides in
                                                             11




pertinent part:




                                                                              !_o5A
           To be eligible for relief...the petitioner must plead
           and prove by a preponderance of the evidence all of
           the following: (1) that the petitioner has been
           convicted of a crime under the laws of this
           Commonwealth and is currently serving a sentence
           of imprisonment...(2) that the conviction resulted
           from ... [i]neffective assistance of counsel which, in
           the circumstances of the particular case, so
           undermined the truth-determining process that no
           reliable adjudication of guilt or innocence could
           have taken place, and (3) that the allegation of error
           has not been previously litigated or waived.


A PCRA defendant must demonstrate that trial counsel's representation

was so deficient such that it undermined the truth-determining process

rendering unreliable the adjudication of the Defendant's guilt.

      Insofar as the Defendant is alleging ineffective assistance of trial

counsel, he must rebut the presumption of professional competence and in

doing so must demonstrate:     1) that the claim is of arguable merit; 2) that

counsel had no reasonable basis for her action or inaction; and 3) that, but

for the errors and omissions of counsel, there is a reasonable probability

that the   outcome    of the    proceedings    would   have     been different.

Commonwealth v. Marinelli, 810 A.2d 1257, 1267 (Pa. 2002). A failure to

satisfy any prong of -this      test will require rejection of the claim.

Commonwealth v.    ·~r., ~~\e; 863 A.2d 455, 460 (Pa. 2004).   If it is clear that a

defendant has not demonstrated that counsel's act or omission adversely
affected the outcome of the proceedings, the claim may be dismissed on

this basis alone. Id., citing Commonwealth v. Albrecht 720 A.2d 693. 701

(Pa. 1998).

      At the PCRA hearing, Mr. Smith testified that the first time that he was

aware that he would testify at trial was when counsel called his name to

testify. He also stated that he had no discussions with counsel before trial

about testifying and he received no advice about how to testify. Smith's

PCRA testimony about testifying at trial is set forth at PCRA pg. 8, line 12 to

pg. 9, line 24.

      Smith's testimony on this issue is contradicted by that of his mother

and trial counsel.     Sharon Cumberlander, Mr. Smith's mother, testified

about meetings with trial counsel, some of which Mr. Smith attended, at

which the issue was discussed. Miss Cumberlander did not believe that her

son should testify. Her testimony on this issue is set forth at PCRA pg. 33,

line 17-25; pg. 34 line1-6, and 24-25;pg 35, line 1-10;pg. 37, line 16-22; pg

39, line 15-25; and pg. 40, line 1-12.

      Trial counsel's testimony on the issue appears at PCRA pg. 59, line

10 to pg. 60, line 15. In addition to a discussion of the general parameters

of testifying at trial, Attorney Best also testified that it is the client's decision
whether to testify at trial or not. As a practical matter, the final decision to

testify is not made until the conclusion of the Commonwealth's case at trial.

      This court found Mr. Smith's testimony not credible. It was obvious to

this court that counsel and Mr. Smith had pre-trial discussions concerning

both the decision to testify or not at trial and how to testify at trial.

      At the PCRA hearing Smith did not offer any credible testimony on

how his demeanor and testimony at trial affected the outcome of the trial.

Thus, Mr. Smith has failed to meet his burden of proof on two of the three

prongs of the test for ineffectiveness of counsel.

      Smith did not meet his burden of proof that counsel did not prepare

him for trial. Even if Mr. Smith met his burden on that issue, he has failed to

show any prejudice.

2.2. Ineffective Assistance of Counsel - Failure to Bring Out Testimony
Concerning Custody Issue

      Smith's second complaint about trial counsel's stewardship concerns

counsel's failure to elicit testimony about Smith's intention to seek custody

of his and the victim's child. He claims that this would have established a

motive for the victim to testify falsely.

      Counsel explained that the theory of the defense was that his sex with

the victim was consensual. Smith was in a relationship with the victim. He

watched their child when she was at work. When the victim would pick up




                                                                                   ~SD
the child after work at Smith's house, they would have consensual sex.

Counsel testified that at the time of the incident and the filing of the charges

there was no custody dispute and no formal custody proceeding pending in

court.    He also testified that evidence on the custody dispute was not solid

and that he could speculate on that dispute,

         Again, this court found that Mr. Smith did not meet his burden of

proof. It may be that this claim is of arguable merit. Counsel's strategy was

that sex with the victim was consensual. Counsel elicited testimony that the

parties were the parents of a child and that they were still in a relationship.

Mr. Smith spent time with his child while the victim was at work and that

they continued to have consensual sex on a frequent basis .. Counsel's trial

strategy not to bring up a custody dispute when no custody proceeding was

pending and Smith had an ongoing relationship with his son without the

necessity of a court order is, in this court's view, reasonable.     Moreover,

Smith did not meet his burden of proof that, but for counsel's failure to

pursue the custody action issue, there is a reasonable probability that the

outcome of the trial would have been different.




                                                                                   ~5£
    3. Conclusion.

          For the reasons set forth above and on the record of the PCRA

    hearing at pages 79-82 this court denied Mr. Smith's Petition for Post-

    Conviction Relief.

          The Clerk of Courts is directed to submit the record to the Superior

    Court.

                                      BY THE COURT:




    cc:




)




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