Com. v. Farmer

• Decision Date: 14 July 2000
• Citation: 758 A.2d 173
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. James Lee FARMER, Appellant.
• Court: Pennsylvania Superior Court

758 A.2d 173

COMMONWEALTH of Pennsylvania, Appellee, v. James Lee FARMER, Appellant.

Superior Court of Pennsylvania.

Argued May 17, 2000.

Filed July 14, 2000.

Reargument Denied September 20, 2000.

Raymond Radakovich, Pittsburgh, for appellant.

Lisa M. Schlosser, Asst. Dist. Atty., Erie, for Com., appellee. Before KELLY, FORD ELLIOTT, and OLSZEWSKI, JJ.

OLSZEWSKI, J.:

¶ 1 James Farmer appeals his convictions for rape, involuntary deviate sexual intercourse, indecent assault, and unlawful restraint. We affirm.

¶ 2 On March 9, 1998, appellant and the victim, were among several people at the CYS bowling club in Erie, Pennsylvania. The victim was at the club with her sister, Judith Freeman, and her friend, Patricia Wydro. The women bowled from 6:15 p.m. until 9:00 p.m. During that time, the victim consumed two or three alcoholic drinks. After bowling, the women proceeded to the bar and met with a male friend. Appellant was also in the bar with friends. The victim and appellant were unacquainted to this point.

¶ 3 Appellant began having a conversation with Ms. Freeman and Ms. Wydro, who were conversing with other friends. At some point Ms. Freeman went over to the victim and pointed out appellant's resemblance to a relative. Soon after, appellant told his friends that he was leaving and the victim indicated that she was tired and wanted to go home. Appellant and the victim subsequently had sexual relations in his car in the parking lot. The court below found:

As the victim left the bowling alley, [a]ppellant grabbed her shoulders, physically pushed her backwards and pushed her to his vehicle. Once inside the vehicle, [he] grabbed [her] head [and] ... used his body to hold her down .... she pushed in resistance, including pushing her bowling ball at [him] .... she was unable to run away from [him].

Trial Court Opinion, 10/13/99, at 3. Appellant then had sex with the victim, who was menstruating at the time. Following the encounter, she returned to the bowling alley, where several people described her as "hysterical, distraught and disheveled." Id. She recounted the incident and someone called the police. She was taken to a hospital and had a post-rape medical examination. Appellant claimed that the encounter was consensual, but was later arrested for the attack.

¶ 4 On March 23, 1999, a jury found appellant guilty of rape, involuntary deviate sexual intercourse, indecent assault, and unlawful restraint. After the court below denied his post-sentence motions, he filed this appeal.

¶ 5 Appellant frames several issues for our review:

1. Whether a new trial should be granted due to trial counsel's ineffective assistance based on (1) failing to request that the Court provide a specific jury instruction concerning the need to consider Mr. Farmer's criminal intent where counsel elicited substantial evidence that the defendant held a "reasonable mistake as to consent" and then emphasized this theory as the theme of his closing argument to the jury; (2) for failing to object to statements made by the prosecution during closing argument alleging that defendant's "presumption of innocence" was no longer present; (3) for failing to call vital eyewitness William Scott Stadler in support of Mr. Farmer; (4) for failing to call any character witnesses in support of Mr. Farmer; and (5) for never giving defendant the opportunity to request a "lesser included offense" charge?

2. Whether a new trial should be granted based upon the following errors of Court: (1) refusing to grant a mistrial based upon the inflammatory and irrelevant testimony of Judy Freeman and Pat Wydro; (2) for prohibiting defense counsel's use of clearly exculpatory evidence in the form of the alleged victim's medical/mental history; and (3) for allowing the prosecution to present prejudicial and irrelevant testimony regarding the alleged victim's "post-rape" medical examination?

3. Whether defendant should be acquitted on the rape charge, in light of Commonwealth v. Berkowitz, after the court below erred in ruling that a sufficient amount of force was present to reach the level of "forcible compulsion" when evidence showed that no violence or threats of violence were made by the defendant to the alleged victim?

4. Whether defendant's sentence should be reconsidered and modified as a result of the below Court's failure to consider the full mitigating range of sentencing including the absence of actual violence, defendant's advanced age, defendant's negative medical condition, and the alleged victim's failure to appear at sentencing or to submit an "impact" statement?

5. Whether an evidentiary hearing should be granted in order to determine the above matters and to complete the above factual and evidentiary record?

Brief for Appellant at 3-4.¹

¶ 6 Appellant's first five claims involve alleged trial counsel ineffectiveness. Before we begin, we note that

[t]he law assumes that counsel was effective, and the burden is on appellant to prove otherwise. To do so, he must demonstrate that his underlying claim has arguable merit, that counsel had no reasonable basis for his action or inaction, and that he was prejudiced as a result. Counsel is not ineffective for failing to advance a meritless claim.

Commonwealth v. McSloy, 751 A.2d 666, 668 (Pa.Super.2000).

¶ 7 Appellant first argues that trial counsel was ineffective for failing to request a jury instruction regarding a reasonable mistake as to consent. He claims that Commonwealth v. Fischer, 721 A.2d 1111 (Pa.Super.1998), appeal dismissed as improvidently granted, 560 Pa. 410, 745 A.2d 1214 (2000),

"sent a clear signal that Pennsylvania law was ready to require a charge as to defendant's mental state when at issue." Brief for Appellant at 25.²

¶ 8 We first look to Commonwealth v. Williams, 294 Pa.Super. 93, 439 A.2d 765 (1982), as the Court relied on it in Fischer, 721 A.2d at 1118. In Williams, the defendant argued that the trial judge

should have instructed the jury that if [he] reasonably believed that the [victim] had consented to his sexual advances that this would constitute a defense to the rape.... If the element of the defendant's belief as to the victim's state of mind is to be established as a defense to the crime of rape then it should be done by our legislature which has the power to define crimes and offenses. We refuse to create such a defense.

Williams, 439 A.2d at 769 (citations omitted). In Fischer, appellant claimed that his trial counsel was ineffective for failing to request a mistake of fact instruction, as in Williams and the case at hand. See Fischer, 721 A.2d at 1113

. The Court found some merit to his claim, but in reliance on Williams, ultimately decided that

Because this appeal raises ineffective assistance of counsel, we are required to find that appellant's trial lawyer made a mistake. That mistake is the failure to ask the trial court for an instruction that the Williams case held is unwarranted.

In other words, we would have to find that counsel's failure to argue for a change in the law constituted ineffectiveness. This, of course, is not possible. We simply cannot announce a new rule of law and then find counsel ineffective for failing to predict same.

Assuming that we have the authority to declare that the instruction is one to which appellant should be entitled, we cannot hold that counsel erred in failing to demand it. The relief appellant seeks represents a significant departure from the current state of the law.

Id. at 1118. Appellant now argues that his trial counsel should have been on notice that the law in Pennsylvania was changing due to the Court's decision in Fischer. We are not convinced that the law in Pennsylvania actually was changing, as Fischer expressly held that such an instruction would be "a significant departure from the current state of the law." Id. Indeed, if trial counsel attempted to follow Fischer, he or she would not ask for the instruction. Appellant's claim thus fails.

¶ 9 Appellant next contends that trial counsel was ineffective for failing to object to certain statements made by the prosecutor during his closing argument:

You've heard terms like reasonable doubt, presumption of innocence, standard of proof. Yes, it is my burden, I must prove him guilty. Yes, he is presumed innocent. Some call it the cloak of innocence, that we are cloaked in innocence when we go to trial unless and until proven guilty. I submit to you, the testimony submitted to you has taken that cloak away. Mr. Farmer is no longer cloaked in innocence. Just as sure as he's sitting there, he's guilty of each and every count that he is charged with. So forget about the presumption of innocence, because it's gone. It was there before trial, but here we are after trial and it is gone.

N.T., 3/25/99, at 23-24. Appellant claims that the prosecutor improperly shifted the burden of proof by making such statements, and thus that his trial counsel was ineffective for failing to object. We disagree.

¶ 10 First, "[i]n determining whether a prosecutor's statement was proper, we view it not in isolation, but rather in the context in which it was made." Commonwealth v. Moody, 439 Pa.Super. 563, 654 A.2d 1120, 1122 (1995). The statements here, when taken as a whole, are not improper. The prosecutor described the correct burden of proof, then told the jury that he met his burden. We see no error in doing so. Moreover, the trial court corrected any error when it issued jury instructions after closing arguments:

Now, it is a fundamental principle of our system of criminal law that a person is presumed to be innocent. The mere fact that a person is arrested and accused of a crime is not any evidence against him. The defendant is presumed innocent throughout this trial unless and until you conclude based on careful and impartial consideration of the evidence that the Commonwealth has proven him guilty beyond a reasonable doubt.

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So you may not find the defendant guilty

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