Commonwealth v. Reed

42 A.3d 314

2012 PA Super 46

COMMONWEALTH of Pennsylvania

v.William T. REED, Appellant.

Superior Court of Pennsylvania.

Submitted Sept. 26, 2011.

Filed Feb. 27, 2012.

Stanton M. Lacks, Bensalem, for appellant.

David W. Heckler, Assistant District Attorney, Doylestown, for Commonwealth, appellee.

BEFORE: FORD ELLIOTT, P.J.E., BENDER and BOWES, JJ.

OPINION PER CURIAM:

William T. Reed appeals the order of October 14, 2010, denying his PCRA ¹ petition. We affirm.

On August 31, 2007, following a jury trial, appellant was found guilty of rape of a child, involuntary deviate sexual intercourse (“IDSI”), aggravated indecent assault, indecent assault, unlawful contact with a minor, and corruption of minors. The charges were brought in connection with appellant's sexual abuse of his girlfriend's 8–year–old daughter, M.M. On December 10, 2007, appellant received an aggregate sentence of 10 to 20 years' incarceration. No post-sentence motions were filed; however, on January 3, 2008, appellant filed a timely notice of appeal. On June 19, 2009, this court affirmed the judgment of sentence. Commonwealth v. Reed, 981 A.2d 320 (Pa.Super.2009) (unpublished memorandum). Appellant did not file a petition for allowance of appeal with the Pennsylvania Supreme Court.

On June 11, 2010, appellant filed a timely, counseled PCRA petition raising various claims of trial counsel ineffectiveness. An evidentiary hearing was held on October 13, 2010, at which trial counsel, William Craig Penglase, Esq., testified. On October 14, 2010, appellant's PCRA petition was denied. A timely notice of appeal was filed on November 10, 2010. Appellant complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the PCRA court has filed an opinion.

Before proceeding to appellant's ineffectiveness claims on appeal from denial of PCRA relief, we recount the testimony presented at trial, as aptly summarized by the PCRA court:

During the trial in August 2007, the Commonwealth presented the testimony of M.M., her brother, W.M., Kim DeGroff, an agent of the Bucks County Children and Youth Social Services Agency, and Detective Kyle Sheluga, a detective in Bensalem Township.

M.M.[Footnote 8] testified that she knew Defendant as “B” and that he was her mother's boyfriend. At the time of the incident, she was in second grade and living temporarily in the hotel room with her siblings, mother, and “B.” She testified that Defendant watched her and her siblings while her mother was at work and she described the layout of the room, which included a blanket strung between two beds that divided the room into an adult side and a child side. M.M. and her siblings often complained about the “sounds” made by their mother and Defendant while they were in bed together on the adult side of the room. (N.T. 37–31, 8/29/07.)

M.M. testified that on the night of the incident she was watching television with her brother, W.M. When W.M. entered the bathroom to shower, Defendant asked M.M. to come over to his bed where he penetrated M.M. anally with his penis, forced his penis into her mouth (which allowed M.M. to physically describe his genitals to the jury), and digitally penetrated her vagina. Soon after the assault, M.M. told W.M. and her sister who urged her to tell their mother. M.M. also testified that shortly after the rape she went to the bathroom where she noticed she was bleeding. She was able to tell the jury which parts of Defendant's body touched her, and she used a series of anatomical diagrams to explicate her testimony. (N.T. 31–39, 8/29/07.)

After [Mother] returned home, Defendant left the room and M.M. told her mother about Defendant's assault. She testified that her mom began to cry and said she would have to “get rid of [M.M.].” Although [Mother] changed her mind and decided Defendant would have to leave, M.M. testified that he nonetheless continued to live with them. Despite M.M.'s account, which was corroborated by W.M., and her own training as a nurse, [Mother] did not physically inspect M.M. or take her to a hospital for an examination. (N.T. 34, 41–43, 8/29/07.)

Next, Ms. DeGroff testified that on January 16, 2007, she was assigned to M.M.'s case in response to a confidential referral. In addition to reciting M.M.'s version of the incident during the trial, Ms. DeGroff testified that, on January 16, 2007, she, accompanied by Detective Sheluga and his partner, met with M.M. at her school. Ms. DeGroff asked M.M. if she knew why Ms. DeGroff was there, and M.M. replied that it was because of “B.” Following the interview, Ms. DeGroff and the detectives went to M.M.'s apartment where she resided with her mother, siblings, and Defendant. Ms. DeGroff told [Mother] and Defendant that she had concerns about M.M.'s safety and requested Defendant have no contact with the children. (N.T. 79–81, 8/29/07.)

Detective Sheluga also testified about the January 16, 2007 meeting and subsequent trip to M.M.'s home. After Defendant was informed he needed to leave the apartment and have no contact with the children, he left to go to work without argument. Defendant, however, took his apartment key, and, at the request of [Mother], Detective Sheluga and his partner went to Defendant's workplace, a Holiday Inn, to retrieve the key. Defendant met with the detectives in the lobby, relinquished the key, and asked what was going on. Detective Sheluga explained there were allegations of abuse against Defendant who initially believed [Mother] had made the allegations. Detective Sheluga further testified that, upon learning that M.M. made the allegations, Defendant indicated he knew what incident M.M. was referring to and explained that, in November 2006, he had been watching [Mother]'s children and had fallen asleep on the adult side of the room while drinking. Defendant awoke to find M.M., clothed in only her underpants, “coming on to him.” Detective Sheluga testified that Defendant stated he felt violated and told M.M. to stop, and, due to his tight-fitting boxers, he did not believe M.M. had seen or touched his penis, which was not erect. (N.T. 19–25, 8/30/07.)

During trial, Ms. DeGroff further testified that she conducted a second interview with M.M. on February 6, 2007. Ms. DeGroff testified that, during the interview, M.M. stated that she would hear her mother and Defendant having intercourse or “doing what adults do when they like each other.” M.M. also stated that when she told her mother about the assault, her mother told M.M. that “she would never do what adults do that like each other with him ever again.” During this interview, Ms. DeGroff ultimately determined that M.M. should not return to the apartment. (N.T. 93, 8/29/[07].)

Detective Sheluga testified that after the second interview on February 6, 2007, he went to [Mother]'s apartment to provide her with forms advising that M.M. would not return to the home. Defendant was present at the apartment and requested to speak privately with Detective Sheluga. Detective Sheluga testified that Defendant stated he was aware that he was not permitted to be at the apartment but that he came over when the children were not present. Defendant further stated that he was aware of M.M.'s accusation and that M.M. was likely thinking back to a prior sexual assault which involved M.M.'s half-brother. (N.T. 28, 8/30/2007.) Detective Sheluga asked Defendant to speak with him again and Defendant agreed to meet with Detective Sheluga the next day. No meeting occurred, however; when Detective Sheluga called Defendant, Defendant stated that he wanted counsel:

Q: On February 7th did Mr. Reed meet with you?

A: No, he didn't.

Q: Did you receive a telephone call from him?

A: I had called him to confirm or to set up a time for our meeting that day.

Q: What did he say to you?

A[:] At that time he told me that he had spoken—or he didn't want to speak to me at that time because he wanted to talk to an attorney.

Q: At that point did you—what did you tell him to do at that point?

A: I told him once he speaks to his attorney to have his attorney contact me.

Q: And is that the normal procedure when a defendant indicates they want an attorney?

A: Yes. Once they want an attorney, they invoke their right for an attorney, I can't ask them anymore questions, but I do ask them to have their attorney contact me so that if we have some further incidents or questioning we can try to work something out or arrange something.

(N.T. 29–30, 8/30/2007.)

Detective Sheluga next testified that on April 12, 2007, after he had attempted unsuccessfully to arrest Defendant, Defendant called Detective Sheluga and stated that he had moved to Virginia and would not return because “he didn't do anything.” Defendant stated that he knew M.M. had gone to the hospital for examination and that “nothing was tampered with down there.” Defendant also said that M.M. had a crush on him and was jealous because of his relationship with her mother. (N.T. 34–35, 8/30/2007.) During trial, Detective Sheluga also recited M.M.'s version of the assault based on his interview with her. (N.T. 15–16, 8/30/2007.)

Defendant offered one witness, [Mother], who testified that she and Defendant were presently engaged to be married. She testified that when M.M. told her about the rape, she questioned and examined M.M., including her vagina and anus, without finding any signs of abuse. [Mother] noted a concern that M.M. was having nightmares about a prior sexual assault perpetrated by M.M.'s half-brother. She then testified that she did not call the police or take M.M. for further examination because she did not believe anything inappropriate had occurred. (N.T. 134, 139–144, 8/30/2007.)

[Footnote 8] After the selection of a jury, the Commonwealth established M.M.'s competency as a witness. (N.T. 21–25, 8/29/07.) At Defendant's request, we explained competency and what it meant to find M.M. as a competent witness to the jury. (N.T. 25–26, 8/29/07.) We noted, specifically, that we were not passing...