Commonwealth v. Wesley

72 Pa. D. & C.4th 17, 2005 Pa. Dist. & Cnty. Dec. LEXIS 141
CourtPennsylvania Court of Common Pleas, Centre County
DecidedMay 4, 2005
Docketno. CP-14-CR-1316-2001
StatusPublished

This text of 72 Pa. D. & C.4th 17 (Commonwealth v. Wesley) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Centre County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Wesley, 72 Pa. D. & C.4th 17, 2005 Pa. Dist. & Cnty. Dec. LEXIS 141 (Pa. Super. Ct. 2005).

Opinion

GRINE, J.,

Presently before this court is the petition of Larry G. Wesley (petitioner) for relief under the Post Conviction Relief Act (PCRA). Petitioner alleges his trial counsel was ineffective and the prosecutor engaged in prosecutorial misconduct. He seeks relief [18]*18from this court in two forms: a new trial, or, alternatively, the restoration of his direct appeal rights. A hearing was held on the matter on February 28, 2005, at which time this court heard the testimony of petitioner’s trial counsel, R. Bruce Manchester, Esquire as well as the testimony of petitioner’s mother and the petitioner himself. At the conclusion of the hearing, this court ordered counsel for both parties to submit suggested findings of fact, conclusions of law, and memorandums of law. Counsel for the Commonwealth and the petitioner submitted their suggested findings, conclusions and memorandums in a timely manner, and this court has reviewed the arguments contained in each, in coming to its decision on the matter. After reviewing the trial transcripts and the arguments submitted by counsel, this court finds that petitioner’s trial counsel was ineffective and grants petitioner’s request for a new trial.

PRELIMINARY DISCUSSION

Petitioner was convicted following a jury trial of criminal trespass, rape, sexual assault, indecent exposure with an individual under the age of 16 years present, and indecent assault. These charges stemmed from an incident that occurred in the early morning hours of July 25,2001. Though petitioner was also charged with burglary as a result of the incident, the jury found him not guilty of that charge.

Petitioner was working as a musician in the State College area performing at local nightclubs. He lived in a rented house with several students of the Pennsylvania State University, though he himself was not a student at the time of the incident. Through his work at clubs he [19]*19met Alicia Pituch and later her roommates Christiana Hollobaugh and Nikki Soltis (the complainants). The four soon became friends and as individuals in their late teens and early twenties so often do, they would get together and “party” into the wee hours of the morning after local bars had announced their “last calls” and closed their doors. Petitioner and complainant Hollobaugh became especially good friends due to their mutual interest in music.

Petitioner had, over the course of his musical career, succumbed to the darker side of music that included drugs and alcohol. By the time he reached the age of 20, hard liquor and drugs were no strangers to him, a fact that at some point became apparent to these three friends.

In the late night of July 24 or early morning hours of July 25,2001, petitioner called complainant Hollobaugh to see if he could “come over and hang out.” She told petitioner that he could not come over to hang out at that precise moment due to the lateness of the hour and the fact that they were all in bed. Petitioner, however, went over to the house anyway some time between 4 a.m. and 7:30 a.m.

According to the testimony of the complainants, petitioner went into the bedroom where complainant Hollobaugh was sleeping and laid down in bed with her. She testified at trial that she was laying on her left side curled up in the fetal position and was sleeping in a state of undress, on top of the covers. According to her testimony, she awoke when she felt the petitioner attempt to put his penis inside her vagina. She testified that she did not feel him touch her, or even knew he was lying next to her until the moment of penetration. She asked peti[20]*20tioner what he was doing and pushed him away from her. Petitioner then left the room, and complainant Hollobaugh stayed in bed until her alarm went off later that morning.

According to the testimony of complainant Soltis, she awoke at approximately quarter after seven in the morning to find petitioner standing in the doorway to her room. He asked her if he could get into bed with her. Complainant Soltis moved to make room to accommodate petitioner as best she could given the fact that her niece was sleeping in the same bed on the other side of her. Upon getting into bed with her, petitioner began to grope her breasts. Complainant Soltis told him to stop. Petitioner then stopped groping her and began to masturbate. Complainant Soltis pointed out to petitioner that her niece was in the same bed, and that his behavior, given the situation, was most certainly inappropriate. She asked petitioner to leave, which he did, and she took no further action.

Later, during the day of July 25,2001, both complainants Soltis and Hollobaugh went to the Women’s Resource Center to report the incidents of the early morning hours. Petitioner was arrested at his apartment that afternoon by two detectives from the State College Police Department. Petitioner was interrogated by the police and ultimately gave a written statement later that evening. Following his giving a written statement, petitioner was arraigned before District Justice Daniel Hoffman and committed to the Centre County Prison in lieu of $50,000 bail.

Attorney R. Bruce Manchester (trial counsel) entered this case following a call from petitioner’s family. [21]*21Petitioner’s mother, Sylvia Wesley, testified at the PCRA hearing that they were not from the Centre County area and had no knowledge of local attorneys either by name or reputation. Attorney Manchester, she testified was the first attorney the family spoke with who would agree to take the case.

Upon posting bail on July 30,2001, petitioner and his parents met with Attorney Brian Manchester (son and law partner of trial counsel) for approximately three hours and then with trial counsel for another three. The representation agreement between petitioner and counsel called for counsel to represent petitioner on the charges of burglary, criminal trespass, rape, sexual assault, indecent exposure and indecent assault. Following his conviction on five of the six charges, a direct appeal was filed in the case, to which this court issued an order pursuant to Pennsylvania Rule of Appellate Procedure 1925(b) ordering trial counsel to file a concise statement of matters complained of on appeal. That statement ultimately was never filed, and this court was compelled to inform the Superior Court thus. The Superior Court in turn ruled any matter complained of on appeal had been waived. It is this court’s understanding that trial counsel was paid separately for this appeal, and after having failed to perfect the appeal, counsel refused to return the money until threatened with suit by PCRA counsel. Counsel then only returned approximately $2,300 of the $3,500 paid-for appeal and then only in two installments.

DISCUSSION

In asserting a claim for post-conviction relief for ineffectiveness of counsel, a petitioner must clear several [22]*22hurdles. Counsel are presumed effective, and a petitioner must establish otherwise. Commonwealth v. Carter, 855 A.2d 885 (Pa. Super. 2004). First, apetitioner must show his claim is of arguable merit. Next, a petitioner must show that the action or inaction on the part of counsel was “not grounded on any reasonable basis” to effectuate his interests. Third, a petitioner must show that, but for counsel’s action or inaction, the outcome of the proceedings would have been different. In other words, a petitioner must prove he was prejudiced by counsel’s action or inaction.

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Bluebook (online)
72 Pa. D. & C.4th 17, 2005 Pa. Dist. & Cnty. Dec. LEXIS 141, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-wesley-pactcomplcentre-2005.