Com. v. Smith, C.

Opinion

J-S23018-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CHRISTY L. SMITH : : Appellant : No. 73 MDA 2022

Appeal from the PCRA Order Entered December 21, 2021 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0005216-2010

BEFORE: STABILE, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY McLAUGHLIN, J.: FILED: NOVEMBER 15, 2022

Smith appeals from the order denying her Post Conviction Relief Act

(“PCRA”) petition. Smith asserts her trial counsel (“Counsel”) provided

ineffective assistance. We affirm.

The police charged Smith, a high-school teacher, with multiple sex

crimes against a 15-year-old student in Smith’s 10th-grade English class. At

Smith’s jury trial,1 two other employees of the school—teacher Kimberly Walls

and social worker Ruby Taylor—testified regarding the alleged relationship

between Smith and the victim. Counsel did not object to their testimony but

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* Retired Senior Judge assigned to the Superior Court.

1 Smith was initially tried and convicted in 2012. This Court vacated those convictions after concluding the trial court erred by denying Smith’s motion to sever the charges from those relating to another student. See Commonwealth v. Smith, No. 2055 MDA 2012, 2013 WL 11253420 (Pa.Super. 2013) (unpublished memorandum). J-S23018-22

cross-examined each witness regarding her basis of knowledge and extent of

her observations.

The victim also testified. Counsel cross-examined him and introduced

evidence that he had previously been convicted of two crimen falsi crimes:

burglary and theft. After the evidence was introduced, the court instructed the

jury that it could consider that evidence for the purpose of deciding whether

the victim’s testimony had been truthful. The court gave a similar instruction

prior to deliberation. Counsel did not ask the court to instruct the jury as to

the definitions of theft or burglary.

The jury found Smith guilty of one count of statutory sexual assault, two

counts of involuntary deviate sexual intercourse with a person less than 16

years of age, one count of unlawful contact with a minor, and one count of

corruption of minors.2 The court sentenced Smith in 2019 to an aggregate of

14 to 28 years’ incarceration.3 We affirmed the judgment of sentence. See

2 Respectively, 18 Pa.C.S.A. §§ 3122.1(a), 3123(a)(7), 6318(a)(1), and 6301(a)(1).

3 The court initially sentenced Smith for these convictions in 2014, and this Court affirmed the judgment of sentence in 2015. See Commonwealth v. Smith, No. 1012 MDA 2014, 2015 WL 6166608 (Pa.Super. 2015) (unpublished memorandum). Smith filed a timely PCRA petition, and the PCRA court granted relief in the form of resentencing and dismissed Smith’s other PCRA claims without prejudice. The court resentenced Smith in 2017. Smith appealed, and this Court remanded the matter for the trial court to determine the applicability of registration requirements. See Commonwealth v. Smith, No. 1315 MDA 2017, 2018 WL 4560325 (Pa.Super. 2018) (unpublished memorandum). This resulted in the 2019 sentencing.

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Commonwealth v. Smith, No. 1268 MDA 2019, 2020 WL 5535685

(Pa.Super. 2020) (unpublished memorandum).

Smith timely filed the instant PCRA petition in 2021. The court appointed

PCRA counsel, who amended the petition. Smith advanced two claims of

ineffective assistance of trial counsel.4 Smith first posited that Counsel had

been ineffective for failing to object to the testimony of Walls and Taylor,

arguing the testimony had been irrelevant and prejudicial. Second, Smith

claimed that Counsel had been ineffective for failing to request a jury

instruction explaining the elements of the crimes of the victim’s crimen falsi

convictions.

At an evidentiary hearing, Counsel testified that she had not objected

to Walls’ or Taylor’s testimony based on relevancy because she “didn’t feel

that an objection would be beneficial,” and that she “could accomplish the

result [she] wanted to accomplish, which was basically to dilute their

credibility and I could do that through cross-examination.” N.T., 8/20/21, at

8-9. Counsel stated her “strategy was to just utilize cross-examination to

minimize the impact of testimony.” Id at 9. Counsel also testified she did not

object because she “didn’t think that what they said was necessarily harmful

and in some cases could have actually been helpful to our position that there

was nothing untoward between [Smith] and [the victim].” Id. ____________________________________________

4 Because in the first PCRA proceeding, the court dismissed Smith’s non- sentencing claims – including the claims that are the subject of this appeal – without prejudice, see note 3, Smith permissibly re-raised the instant claims in the instant PCRA proceeding following resentencing.

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Regarding the crimen falsi convictions, Counsel testified that she could

not think of a reason why she would not have requested the court instruct the

jury on the elements of burglary and theft. Id. at 7. However, Counsel testified

that “most people know what theft and burglary are.” Id. at 11.

The court denied the petition. Smith appealed, raising two issues:

A. Whether trial counsel was ineffective when she failed to object to the irrelevant and highly prejudicial testimony of Kimberly Walls and Ruby Taylor?

B. Whether trial counsel was ineffective when she failed to request that the court instruct the jury concerning the elements of the offenses of burglary and theft which were admitted into evidence in order to impeach the credibility of the alleged victim?

Smith’s Br. at 4.

We review the denial of PCRA relief to ensure “the PCRA court’s

determination is supported by the evidence of record and . . . free of legal

error.” Commonwealth v. Ligon, 206 A.3d 515, 518 (Pa.Super. 2019)

(quoting Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011)).

Smith presents two claims of ineffective assistance of counsel. A PCRA

petitioner bears the burden to plead and prove that counsel was ineffective.

Id. at 519; 42 Pa.C.S.A. § 9543(a)(2)(ii). The petitioner must establish: “(1)

the underlying legal claim is of arguable merit; (2) counsel’s action or inaction

lacked any objectively reasonable basis designed to effectuate the client’s

interest; and (3) prejudice, to the effect that there was a reasonable

probability of a different outcome if not for counsel’s error.” Ligon, 206 A.3d

at 519 (quoting Commonwealth v. Grove, 170 A.3d 1127, 1138 (Pa.Super.

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2017)). An ineffectiveness claim will not succeed unless the petitioner proves

all three prongs. Id. A petitioner proves counsel lacked a reasonable basis

only if she proves an alternative strategy offered a substantially greater

protentional for success. Commonwealth v. Elliott, 80 A.3d 415, 427 (Pa.

2013). Whether prejudice resulted from counsel’s actions is determined in

light of the overall trial strategy. Commonwealth v. Hull, 982 A.2d 1020,

1026 (Pa.Super. 2009).

Smith first argues the PCRA court erred in denying her claim that

Counsel was ineffective for failing to object to Walls’ and Taylor’s testimony.

Smith asserts Walls testified Smith “was too familiar with certain students and

allowed [the victim] and other students to sit on the wrong side of her desk.”

Smith’s Br. at 12-13. Smith claims Taylor “testified about certain hearsay

declarations” and that the victim told her “a certain male teacher may have

been jealous of his relationship with [Smith] and that he and [Smith] were

friends.” Id. at 13.

Smith argues this testimony “added nothing to the search for truth” and

“was introduced solely to show that [Smith] in the most general terms wasn’t

acting as a proper high school teach should.” Id. at 14. According to Smith,

“this evidence had nothing to do with whether [Smith] had sex with the victim

and the Commonwealth sought to have the jury draw the unfair inference that

since [Smith] did not do what [Taylor] and [Walls] thought was appropriate

that she must have been a sex offender.” Id. Smith further argues that the

testimony was not relevant as res gestae evidence, because “there was no

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temporal or other connection” between the testimony and the alleged criminal

acts. Id.

Smith further argues that Counsel had no reasonable strategic basis for

failing to object to the testimony, because a successful objection would have

obviated any need for cross-examination. Smith also argues Counsel’s

extensive cross-examination of the witnesses indicates how prejudicial the

direct testimony was to Smith’s defense.

“Evidence is relevant if: (a) it has any tendency to make a fact more or

less probable than it would be without the evidence; and (b) the fact is of

consequence in determining the action.” Pa.R.E. 401. Irrelevant evidence is

inadmissible. Pa.R.E. 402. Relevant evidence is admissible if its probative

value is not outweighed by a danger of unfair prejudice. Pa.R.E. 403. “‘Unfair

prejudice’ means a tendency to suggest decision on an improper basis or to

divert the jury’s attention away from its duty of weighing the evidence

impartially.” Id., Comment.

The PCRA court concluded that the challenged testimony was relevant.

The court noted “both witnesses within their duties of employment had the

opportunity to observe the interactions and relationship of [Smith] and the

victim” and “testified as to their observations of the interactions between the

[Smith] and the victim, as well as information surrounding the investigation

conducted by the school district regarding the relationship.” Id. Order,

12/20/21, at 5-6. The court found “[t]he information they provided the jury

broadened the scope as to the events occurring during the relevant time

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period that directly relate to the charges in this matter” and “provided insight

as to how both parties interacted publicly as the nefarious nature of their

relationship was kept secret behind closed doors.” Id. at 6. The court further

found that the probative nature of the testimony was not outweighed by the

danger of unfair prejudice “because both witnesses independently provided

information surrounding [Smith’s] behavior that had a potentially innocent

explanation.” Id. at 5.

We agree that the witnesses’ testimony was relevant. Observations of

public interactions between a teacher and student can be probative of whether

a romantic relationship is occurring behind closed doors. The victim’s own

statements to Taylor about his relationship with Smith were certainly

probative of the nature of their relationship. We additionally agree that this

evidence was not outweighed by the potential for unfair prejudice, as vague

accusations that Smith and the victim were “too familiar” or sat on the “wrong”

side of the desk together is not evidence of the sort that would prevent the

jury from weighing the evidence impartially. As far as the relevance of “certain

hearsay declarations” to which Taylor testified, Smith has failed to explain

what that testimony entailed, or why it would be inadmissible on the basis of

relevance.

Even assuming an objection to Walls’ and Taylor’s testimony on the

basis of relevance had arguable merit, Smith has failed to prove that counsel

lacked a reasonable basis for allowing the testimony, or that there is a

reasonable probability that the jury would not have convicted her without

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hearing the testimony. The PCRA court explained that neither Walls nor Taylor

testified that she observed any illegal or inappropriate behavior between

Smith and the victim. Order at 8-9. Walls vaguely testified she believed that

the two were too close, but admitted that Smith was tutoring the victim and

that she observed them doing schoolwork together when the victim went to

Smith’s classroom at the end of the school day. Id. at 6-7. The PCRA court

observed that Taylor even testified that the victim had denied meeting with

Smith in the evenings. Id. at 9. Smith has failed to prove Counsel was

ineffective for failing to object.

In her second issue, Smith argues the court erred in finding Counsel was

not ineffective for failing to request the court instruct the jury on the

definitions of burglary and theft, the victim’s crimen falsi convictions. Smith

argues that while the court instructed the jury that it could “consider the type

of crime committed, how long ago it was committed, and how it may affect

the likelihood that the witness has testified truthfully in this case,” the jury

could not have considered the “type of crime” without an explanation of the

elements of that crime. Smith’s Br. at 18-19. Smith contends that while “many

jurors may understand that theft is synonymous with stealing, it does not

necessarily follow that all jurors understand the elements of burglary.” Id. at

18. Smith argues Counsel should have requested an instruction on the

definition of burglary so “that the jury could understand the particular gravity

of the actions for which the victim was convicted” and that the burglary

conviction “was not akin to a less serious offense such as shoplifting or theft.”

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Id. at 18, 19. Smith also argues Counsel failed to testify to a reasonable

strategic basis for failing to request the instruction, and that the absence of

the instruction caused prejudice, as the jury’s acceptance of the victim’s

testimony as truthful was crucial to her conviction.

Evidence of a prior conviction is admissible to attack the witness’s

credibility if the conviction involves a crimen falsi offense, i.e., a crime

involving dishonesty or a false statement. Pa.R.E. 609(a). Burglary and theft

are crimen falsi. Commonwealth v. Cole, 227 A.3d 336, 340 (Pa.Super.

2020). A defendant is entitled to a jury instruction on the use of a crimen falsi

conviction in assessing a witness’s credibility. Id.

The PCRA court observed that the trial court gave the proper crimen

falsi instruction, and held counsel was not ineffective for failing to request an

additional jury instruction explaining the elements of the crimes. The court

additionally concluded that an instruction on the elements of the victim’s prior

convictions would have been confusing for the jury, which was tasked with

identifying the elements of the crimes with which Smith had been charged,

not the victim. Order at 12.

We agree that Smith’s claim lacks arguable merit. As the PCRA court

stated, the jury received a crimen falsi instruction telling it the victim had been

convicted of crimes involving “an element of dishonesty” and to consider that

when assessing his credibility. See PCRA Court Op. 12/20/21, at 11 (quoting

N.T. 7/18/12, at 995). That was sufficient to inform the jury of the purpose

for which it could consider the convictions. Smith presented no evidence that

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laypersons lack understanding of burglary and theft such that they do not

understand it is indicative of deceitfulness. The only testimony on this point

was Counsel’s uncontradicted assertion that most laypersons are familiar with

the crimes. Smith has likewise failed to prove prejudice.

In addition, we agree with the PCRA court that an instruction as to the

elements may have confused the jury. This Court previously ruled that “the

details pertaining to [the victim’s] burglary convictions were largely

immaterial to [the victim’s] character trait of being stealthy” and that further

explanation of the victim’s burglary convictions would have created a high risk

of unfair prejudice by diverting the jury’s attention from the issues in the case.

See Smith, 2015 WL 6166608 at *6. We therefore conclude that counsel

cannot be found ineffective for having failed to request this instruction.

Order affirmed.

Judge Stabile joins the memorandum.

Judge Colins notes dissent.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/15/2022

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