J-S48031-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
MICHAEL R. TACKETT
Appellant No. 188 WDA 2015
Appeal from the PCRA Order of January 20, 2015 In the Court of Common Pleas of Crawford County Criminal Division at No.: CP-20-CR-0000571-2010
BEFORE: PANELLA, J., DONOHUE, J., and WECHT, J.
MEMORANDUM BY WECHT, J.: FILED SEPTEMBER 22, 2015
Michael Tackett appeals the January 20, 2015 order dismissing his
timely petition for relief pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S. §§ 9541-46, without an evidentiary hearing. Herein, Tackett
raises three claims of ineffective assistance of counsel and alleges that the
PCRA court erred by dismissing his petition without an evidentiary hearing.
Finding no actionable merit to any of these claims, we affirm.
On May 19, 2010, Tackett was charged with two counts of rape, two
counts of involuntary deviate sexual intercourse (“IDSI”), two counts of
sexual assault, one count of terroristic threats, and one count of simple
assault.1 The charges stemmed from Tackett’s physical and sexual assault ____________________________________________
1 18 Pa.C.S. §§ 3121(a)(1); 3123(a)(1); 3124.1; 2706(a)(1), and 2701(a)(1), respectively. J-S48031-15
of T.L., a real estate agent, on May 24, 2007. Prior to trial, the
Commonwealth filed a motion in limine, in which the Commonwealth sought
permission from the trial court to introduce prior bad acts testimony
pursuant to Pa.R.E. 404(b) regarding Tackett’s prior rape of C.F., another
real estate agent, under similar circumstances and Tackett’s attempts to
commit the same on real estate agents R.B. and A.T. The Commonwealth
sought to introduce this evidence to demonstrate Tackett’s common scheme,
plan, design, and/or identity. The trial court granted the motion.
Counsel for Tackett also filed a pre-trial motion in limine, in which
counsel requested that the trial court dismiss the simple assault charge.
Because the crime occurred on May 24, 2007, counsel contended that the
statute of limitations had expired for that crime. The trial court agreed, and
dismissed the simple assault count.
Tackett elected to be tried by a jury. The trial commenced on March
21, 2011 and ended on March 24, 2011 with Tackett being convicted of all of
the remaining charges. The evidence presented at trial fairly can be
summarized as follows.
On May 16, 2007, T.L. received a call from a potential buyer
requesting to view a property that she had listed for sale. Although the
caller identified himself as Randy Thompson, it actually was Tackett making
the phone call. They agreed to meet at the property on March 24, 2007. On
that day, Tackett arrived at the property in a blue Mercury Mountaineer.
T.L. showed Tackett around the outside of the property first, and then the
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inside of the property. T.L. noticed that Tackett would not touch anything
inside of the home. After a thorough walkthrough of the interior of the
property, T.L. and Tackett went back outside. While outside, Tackett
smoked a cigarette and then placed the butt of the cigarette into his pocket.
T.L. then began packing up her computer and materials because she
had to attend a closing on another property. Before she could leave, Tackett
asked T.L. if he could take one last look around the interior of the property.
They went back inside and walked around the main portion of the residence
until Tackett asked to look at the basement. When they got to the bottom of
the stairs, Tackett focused his attention on a hole in the wall of a storage
room, which concerned him. T.L. believed that it may be for a sump pump,
and decided to enter the storage room to take another, closer, look. When
she bent down to examine the hole, she felt something stun her abdomen.
She then felt Tackett on top of her. He was holding a stun gun, and
proceeded to stun her a second time.
T.L. tried to bite Tackett’s hand, but was met with another shot from
the stun gun. Tackett then grabbed T.L. by the hair, placed his other arm
around her waist, and dragged her to a carpeted area of the basement. T.L.
begged him not to continue with the attack, but Tackett responded by
threatening to kill her and her children if she did not cooperate.
In the carpeted room, Tackett stunned her again, causing her to drop
to her knees. Tackett pulled the neck portion of T.L.’s shirt down and
fondled her breasts. He then took his penis out of his pants and instructed
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T.L. to perform oral sex on him. Tackett told her that he knew where she
lived and that, if she did not perform oral sex on him or if she tried to bite
his penis, he would kill her children. Tackett inserted his penis into her
mouth. While holding onto her ponytail, Tackett forced T.L.’s head back and
forth over his penis. T.L. noted that Tackett’s pubic region either had been
trimmed or shaved completely.
T.L. continued to beg Tackett to end the assault. Instead, Tackett
demanded that T.L. remove her pants. T.L. told Tackett that she was
menstruating and that she suffered from hemorrhaging due to child birth.
Tackett told her that if he could not have intercourse with her vaginally, that
he would do it another way. Tackett then flipped T.L. over, slammed her
down on her stomach, and crawled on top of her. At some point, Tackett
had placed a condom over his penis. He then forced his penis into her anus.
As he did so, Tackett talked about how he still intended to purchase the
home. In an effort to keep him calm, T.L. responded to his discussion about
the home, and talked about the quality of the surrounding neighborhood.
When he had completed his assault, Tackett stood up and instructed
T.L. to get dressed. However, Tackett then panicked because he could not
find another condom that he had brought with him. He grabbed T.L. by the
hair and dragged her back into the storage room. He held her by her hair
while he searched for the condom. Once he found it, he put it in his pocket
and told her that it was time to leave.
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T.L. called her husband and told him that she had been attacked. She
met her husband and showed him the burn marks from the stun gun on her
stomach. She did not tell him that she was sexually assaulted. T.L. insisted
that they not call the police because she was afraid that, if she did, Tackett
would kill her children. However, after some discussions, her husband
convinced her to contact law enforcement. She then went to the
Pennsylvania State Police barracks, where she met Trooper Kurt Sitler. She
told the trooper that she was physically assaulted with a stun gun and that
she and her children were threatened. She also gave a description of
Tackett and his vehicle. However, T.L. told the trooper that she did not
know if she was sexually assaulted. She told him only that Tackett had
exposed his penis to her, which caused her to elbow him and run away.
Trooper Sitler drove T.L. to a local hospital where T.L. met with nurse
Sarah Mattocks. Even though T.L. did not admit at that time that she had
been sexually assaulted as well, the nurse performed a rape kit examination
on T.L. Mattocks did not observe any bleeding or tearing in or around T.L.’s
anus. Additionally, Mattocks did not detect any trauma on T.L.’s vagina.
Neither the police nor the medical personnel who treated T.L. located any
biological evidence, including DNA, that was attributable to anyone other
than T.L. or her husband. Thereafter, T.L. was released from the hospital
and sent home to recover from her injuries.
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Two or three weeks after the assault, T.L. told her husband that she
had been sexually assaulted in addition to the physical assault. She did not
inform Trooper Sitler at that time that she had been sexually assaulted.
Approximately two years later, in 2009, T.L. learned via a warning
from her real estate company that another person had been sexually
assaulted in Mercer County under circumstances very similar to those from
which she had suffered. Shortly after the Mercer County incident, Trooper
Sitler reinitiated contact with T.L. and asked her to come to the barracks to
view suspects in a photo array. She was able to identify Tackett from that
array. T.L. then began to cry and told Trooper Sitler that she had been
sexually assaulted by Tackett.
Trooper Todd Gilberto was working at the police barracks on the day of
the assault. At approximately 3:13 p.m., he received a call from T.L. She
told him that a man named Randy Thompson had assaulted her with a stun
gun. She told him that she was not raped or sexually assaulted. However,
she told Trooper Gilberto, as she did initially with Trooper Sitler, that her
assailant had exposed his penis, and that she elbowed him and ran away.
A.T. is a real estate agent in Ohio. On November 23, 2008, she
showed a man who identified himself as Randall Thompson a property in
Boardman, Ohio. Thompson, who actually was Tackett, requested a second
viewing of the home a few days later. However, A.T. took a second agent,
L.E., with her because she was uncomfortable being alone with Tackett.
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Tackett was visibly annoyed and frustrated with the presence of L.E.
Thereafter, A.T. would not show Tackett any other properties.
R.B. is also a real estate agent. Tackett, who used the name Randy
Mitchell, requested an appointment with R.B. to view two of the properties
that she had listed for sale. On February 12, 2009, R.B. met Tackett at one
of the properties at 9:00 a.m. Shortly thereafter, R.B.’s husband also
showed up to the viewing. Tackett immediately became agitated. Tackett
viewed the property, but then asked if R.B.’s husband was going to
accompany them to the second viewing. The question and the interaction
with Tackett made R.B. very uncomfortable.
C.F., a real estate agent as well, met Tackett at an open house in May
2009. Once again, Tackett used an alias. This time it was Randy Michaels.
C.F. showed Tackett a residence in Mercer County on June 11, 2009. During
that showing, Tackett raped C.F. and threatened to kill her and her family if
she told anyone. Tackett also stole her credit cards. Tackett was convicted
in Mercer County of rape and related offenses for his attack on C.F.
Tackett testified in his own defense. He admitted that he pleaded
guilty to the sexual attack on C.F. However, he insisted that he did not rape
or otherwise sexually assault T.L. Tackett stated that he suffered from a
prescription pill addiction, and that he lured real estate agents into showing
him properties with the intent to steal from them. He confessed to using the
stun gun on T.L. in an attempt to rob her. However, she elbowed him in the
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groin and fled the residence. No sexual assault occurred, according to
Tackett.
At the conclusion of trial, as noted earlier, the jury convicted Tackett
of all of the charged offenses. On August 2, 2011, the trial court sentenced
Tackett to an aggregate term of incarceration of twenty and one-half to
forty-five years. Tackett filed a direct appeal to this Court. A panel of this
Court concluded that, because Tackett’s brief failed in numerous substantive
ways to conform to our rules of procedure, Tackett had waived all of his
issues. Nonetheless, despite finding waiver, the panel briefly reviewed the
merits of those issues and concluded that, even if Tackett’s brief was
compliant, he would not be entitled to relief. See Commonwealth v.
Tackett, No. 1789 WDA 2011, slip op. at 5-9 (Pa. Super. June 11, 2012).
Tackett then filed a petition for allowance of appeal with the Pennsylvania
Supreme Court, which was denied on July 2, 2013.
On July 24, 2014, Tackett filed a timely pro se PCRA petition. The
PCRA court appointed counsel to represent Tackett during the PCRA
proceedings. On October 8, 2014, counsel filed an amended PCRA petition
on Tackett’s behalf. The PCRA court held a hearing for the purposes of
argument only. On December 1, 2014, the PCRA court issued an opinion
addressing the merits of Tackett’s PCRA petition, and concluding that Tackett
is not entitled to relief. In addition to the opinion, the court issued notice of
its intent to dismiss the petition without a full evidentiary hearing pursuant
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to Pa.R.Crim.P. 907. On January 20, 2015, the PCRA court formally
dismissed Tackett’s petition.
On January 26, 2015, Tackett filed a notice of appeal. On the same
date, Tackett filed a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b), even though he was not ordered to do so.
On January 28, 2015, the PCRA court issued a statement pursuant to
Pa.R.A.P. 1925(a) directing this Court to the analysis set forth by the PCRA
court in its December 1, 2014 opinion.
Tackett raises two overarching questions for our review:
1. Whether the PCRA court erred in determining that [Tackett’s] counsel was not ineffective?
2. Whether the PCRA court erred in not having an evidentiary hearing to address the issues raised in [Tackett’s] amended petition for post-conviction collateral relief?
Brief for Tackett at 7. In his brief, Tackett expands his first issue to include
three specific claims of ineffective assistance of counsel, each of which was
raised and preserved in the proceedings below. Those claims are as follows:
1. Whether trial counsel was ineffective for filing a pre-trial motion to dismiss the simple assault charge?
2. Whether trial counsel was ineffective for failing to call Tackett’s wife as a witness at trial?
3. Whether appellate counsel was ineffective for filing a substantially non-compliant appellate brief?
Brief for Tackett at 27-32.
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The governing legal standards attendant to our review in the PCRA
context are well-defined: “[A]n appellate court reviews the PCRA court’s
findings of fact to determine if 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) (citing
Commonwealth v. Colavita, 993 A.2d 874, 887 (Pa. 2010)). “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.” Id. (citing Commonwealth v. Sam, 952 A.2d 565, 573 (Pa. 2008)).
Furthermore, the PCRA court’s credibility determinations, when supported by
the record, are binding upon this Court. Commonwealth v. Johnson, 966
A.2d 523, 532, 539 (Pa. 2009). We apply a de novo standard of review with
regard to the PCRA court’s legal conclusions. Commonwealth v. Rios, 920
A.2d 790, 810 (Pa. 2007).
Three of Tackett’s claims allege ineffective assistance of counsel
(“IAC”). Our standard of review in this context is well-defined:
[A] PCRA petitioner will be granted relief only when he proves, by a preponderance of the evidence, that his conviction or sentence resulted from the “[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.” 42 Pa.C.S. § 9543(a)(2)(ii). “Counsel is presumed effective, and to rebut that presumption, the PCRA petitioner must demonstrate that counsel’s performance was deficient and that such deficiency prejudiced him.” Colavita, 993 A.2d at 886 (citing Strickland v. Washington, 466 U.S. 668, 690 (1984)). In Pennsylvania, we have refined the Strickland performance and
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prejudice test into a three-part inquiry. See Commonwealth v. Pierce, 527 A.2d 973, 975-77 (Pa. 1987). Thus, to prove counsel ineffective, the petitioner must show that: (1) his underlying claim is of arguable merit; (2) counsel had no reasonable basis for his action or inaction; and (3) the petitioner suffered actual prejudice as a result. Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010). “If a petitioner fails to prove any of these prongs, his claim fails.” Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013).
Spotz, 84 A.3d at 311 (internal citations modified). We need not analyze
“the elements of an ineffectiveness claim in any particular order of priority;
instead, if a claim fails under any necessary element of the [Pierce] test,
the court may proceed to that element first.” Commonwealth v. Lambert,
797 A.2d 232, 243 n.9 (Pa. 2001). Furthermore, “counsel will not be
considered ineffective for failing to pursue meritless claims.”
Commonwealth v. Pursell, 724 A.2d 293, 304 (Pa. 1999) (citing
Commonwealth v. Parker, 469 A.2d 582, 584 (Pa. 1983)).
In his first issue, Tackett contends that trial counsel was ineffective by
filing a motion in limine seeking to have the simple assault charge dismissed
based upon the statute of limitations. Tackett admits that he asked counsel
to file the motion, see Brief for Tackett at 27, but maintains that counsel
should not have acquiesced to his request. Tackett admitted at trial that he
physically assaulted T.L. However, he denied that he sexually assaulted her.
Thus, according to Tackett, the jury only convicted him of the sexually-
related charges because they had no other options. In other words, Tackett
argues that the jury was unable to convict him of simple assault, and the
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absence of that charge on the verdict slip “swayed” the jurors into finding
him guilty of the sexually-related charges. Id.
Tackett’s argument fails for a number of reasons. First, even if we
ignore the fact that Tackett specifically requested that counsel file the
motion, Tackett has not established all three elements of the governing test.
Although Tackett sets forth all of the governing principles of the test, see id.
at 25, he only pays lip service to each prong in his actual argument. Id. at
28. Tackett does not discuss each prong individually. Rather, he merely
parrots the three prongs in three brief lines of text. It is unclear whether
the remainder of his argument is directed at the arguable merit prong or the
prejudice prong. He gives the reasonable basis prong no substantive
attention.
Moreover, there is nothing in the record to substantiate his version of
the jury’s deliberations. We observe nothing in the record, other than
Tackett’s belief that the jury was poised to reject T.L.’s testimony as
incredible, that would support his claim that the jury only convicted him of
the sexually-related offenses because they had no option to convict him only
of assault. To the contrary, T.L. testified at length, and in great detail,
about the violent sexual abuse that Tackett perpetrated on her in the
basement of that house. The jury was entitled to credit that testimony, and
it appears that they did. The record offers no support to Tackett’s spurious
argument that the jury would have acquitted him of those charges if only
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they had other charges to fall back on relating only to the physical attack.
This claim lacks arguable merit entirely.
In his second claim, Tackett argues that trial counsel was ineffective
for failing to call his wife as a witness at trial. T.L. testified that, when
Tackett exposed his penis, she noticed that he either had no pubic hair or
that the hair was extensively groomed. Tackett argues that his wife would
have testified that, during the entire year of 2007, she never observed
Tackett’s pubic area without hair.
When raising a claim of ineffectiveness for the failure to call a potential witness, a petitioner satisfies the performance and prejudice requirements of the Strickland test by establishing that: (1) the witness existed; (2) the witness was available to testify for the defense; (3) counsel knew of, or should have known of, the existence of the witness; (4) the witness was willing to testify for the defense; and (5) the absence of the testimony of the witness was so prejudicial as to have denied the defendant a fair trial. Johnson, 966 A.2d at 536; Commonwealth v. Clark, 961 A.2d 80, 90 (Pa. 2008). To demonstrate Strickland prejudice, a petitioner “must show how the uncalled witnesses’ testimony would have been beneficial under the circumstances of the case.” Commonwealth v. Gibson, 951 A.2d 1110, 1134 (Pa. 2008). Thus, counsel will not be found ineffective for failing to call a witness unless the petitioner can show that the witness’ testimony would have been helpful to the defense. Commonwealth v. Auker, 681 A.2d 1305, 1319 (Pa. 1996). “A failure to call a witness is not per se ineffective assistance of counsel for such decision usually involves matters of trial strategy.” Id.
Commonwealth v. Sneed, 45 A.3d 1096, 1108-09 (Pa. 2012).
Tackett does not address the first four elements of this test. However,
even if we assume that, because the witness was his wife, that she was
willing to testify and that counsel knew that she existed, Tackett cannot
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show that the absence of her testimony would have altered the outcome of
the case.
Tackett relies upon T.L.’s initial failure to tell her husband, the medical
personnel, or the troopers that she was sexually assaulted. Tackett argues
that these facts significantly impaired her credibility before the jury, and
that, had the jurors known that he kept a full pubis of hair in 2007, T.L.’s
credibility would have been further damaged, and the jury likely would have
acquitted him. We disagree.
The evidence at trial demonstrated unequivocally that Tackett is a
serial rapist with a very clear modus operandi. Tackett lured female real
estate agents into secluded and private for-sale residences with the intent to
rape them therein. Tackett’s meticulous refusal to touch anything within the
home, and his diligent efforts to ensure that nothing that he brought to the
home was left there (including condoms and cigarette butts), highlights the
fact that he went to these homes with the exclusive intent to physically and
sexually assault these unsuspecting women. T.L. testified extensively about
the various steps that he took to get her into the basement and to remove
any evidence that could link him to the crime.
T.L. testified that he used a stun gun to force her to her knees. He
then forced her to perform fellatio on him. Tackett continued the assault by
pushing her on her stomach and anally raping her. He then dragged her
around the basement by her ponytail looking for a misplaced condom.
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Tackett takes issue with none of this evidence. Rather, he focuses
only upon the fact that T.L. did not report the sexual aspect of the assault
promptly. Tackett conspicuously ignores the fact that Tackett repeatedly
threatened to kill her and her children if she told anyone. She was so
terrified after the assault that he would come back and kill her or her
children that she elected not to tell anyone, including her own husband
about the sexual assault. T.L. told the jury that his own threats were why
she was afraid to tell the entire truth. The jury was free to believe this
evidence.
Consequently, even if we assume, arguendo, that T.L. was mistaken
about the amount of pubic hair surrounding Tackett’s penis, Tackett cannot
demonstrate that the absence of his wife’s testimony was prejudicial. T.L.’s
testimony, especially when considered in conjunction with the testimony
regarding his other rape and similar attempts, was overwhelming, and her
observation about Tackett’s pubic hair was a minor, if not insignificant, part
of her testimony. Testimony proving otherwise would not have altered the
outcome of the trial, particularly because the lack of a prompt complaint was
directly due to his threats. Unable to demonstrate prejudice, this claim
necessarily fails.
In his third issue, Tackett argues that his appellate counsel was
ineffective for failing to file a brief that complied substantially with our
briefing rules. We may dispose of this issue quickly. It is true that, on
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direct appeal, a panel of this Court concluded that Tackett had waived each
of his issues because Tackett’s brief clearly was non-compliant. However,
the panel proceeded to discuss each issue and declare each to be without
merit. Presently, Tackett maintains that counsel was ineffective in failing to
file a compliant brief, but, in doing so, entirely fails to discuss the issues that
he raised in that brief, the merits of each, and how a compliant brief would
have altered the outcome of the appeal. Indeed, Tackett does not
demonstrate, or even attempt to demonstrate, that he would have been
successful in any of the issues that he raised on appeal. Failing to do so,
Tackett has not demonstrated that his claim has arguable merit or that he
was prejudiced by counsel’s failures.
Finally, Tackett argues that the PCRA court erred by not holding a full
evidentiary hearing. A PCRA court has the discretion to dismiss a petition
without a hearing when the court is satisfied “that there are no genuine
issues concerning any material fact, the defendant is not entitled to post-
conviction collateral relief, and no legitimate purpose would be served by
any further proceedings.” Pa.R.Crim.P. 909(B)(2). “[T]o obtain reversal of
a PCRA court’s decision to dismiss a petition without a hearing, an appellant
must show that he raised a genuine issue of fact which, if resolved in his
favor, would have entitled him to relief, or that the court otherwise abused
its discretion in denying a hearing.” Commonwealth v. D'Amato, 856
A.2d 806, 820 (Pa. 2004). For the reasons set forth above, we discern no
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genuine issues of material fact that would warrant an evidentiary hearing.
Moreover, it is clear that Tackett is not entitled to PCRA relief, and that a
hearing would not serve any legitimate purpose. Tackett’s final issue fails.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/22/2015
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