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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

WENDY A. SCHULTZ

                            Appellant                 No. 563 EDA 2016


                  Appeal from the PCRA Order January 7, 2016
                In the Court of Common Pleas of Monroe County
              Criminal Division at No(s): CP-45-CR-0000087-2012


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                          FILED AUGUST 09, 2016

        Wendy A. Schultz appeals from the order, entered in the Court of

Common Pleas of Monroe County, which dismissed her petition filed

pursuant to the Post Conviction Relief Act (PCRA).1 After careful review, we

affirm.

        Following a jury trial, Schultz was convicted of burglary, conspiracy,

robbery, criminal trespass, and related charges based upon her role in a

home invasion in Price Township, Monroe County. Schultz was sentenced on

January 24, 2013, to an aggregate term of 10 to 20 years’ incarceration.

Following a timely appeal, this Court affirmed Schultz’ judgment of sentence
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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on February 21, 2014. See Commonwealth v. Schultz, 97 A.3d 809 (Pa.

Super. 2014) (unpublished memorandum).              The Pennsylvania Supreme

Court denied Schultz’s petition for allowance of appeal on July 25, 2014.

       Schultz filed a timely pro se PCRA petition on July 16, 2015. The PCRA

court appointed counsel, who filed an amended petition and represented

Schultz at an evidentiary hearing on September 28, 2015.2            After the

Commonwealth and Schultz filed briefs on the matter, the court dismissed

the petition on January 7, 2016. Thereafter, Schultz filed a timely notice of

appeal and court-ordered concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b).            On appeal, Schultz raises the

following issues for our review:

       1. Was trial counsel ineffective for failing to request a curative
          instruction following testimony from Trooper Sebastianelli that
          [Schultz] was given the opportunity to clear her name by
          taking a polygraph [test]?

       2. Was trial counsel ineffective for failure to raise an alibi
          defense?

Brief of Appellant, at 5.

       Our standard and scope of review regarding the denial of a PCRA

petition is well-settled.      We review the PCRA court’s findings of fact to

determine whether they are supported by the record, and review its

____________________________________________


2
 T. Axel Jones, Esquire, was initial court-appointed counsel. Attorney Jones
was administratively suspended following the evidentiary hearing, and Lara
M. Kash, Esquire, was appointed to represent Schultz. Attorney Kash
continues to represent Schultz on appeal.



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conclusions of law to determine whether they are free from legal error.

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). The scope of our

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.

      To be eligible for relief under the PCRA, Schultz must prove by a

preponderance of the evidence that her conviction resulted from “ineffective

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 to be effective and the burden of demonstrating

ineffectiveness rests on appellant.”    Commonwealth v. Ousley, 21 A.3d
1238, 1244 (Pa. Super. 2011).           To demonstrate ineffectiveness, the

appellant must satisfy a three-part test by showing 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.”

Spotz, supra at 311.

      In her first issue, Schultz asserts that trial counsel should have

requested a curative instruction after Trooper Sebastianelli made a remark

that Schultz could have taken a polygraph test to demonstrate her

innocence. Counsel made a request for a mistrial, which was denied, but did

not request a curative instruction. The testimony at issue occurred in the

following exchange:

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     [The Commonwealth]: And was there a time in July of 2011
     when you became involved with the investigation of a burglary
     and a robbery . . . relating to the residence of [victim]?

     [Trooper Sebastianelli]:      Yes, it wasn’t my follow up
     investigation, but I ended up becoming involved when I received
     a call from [Schultz].

                                    ...

     Q: And was this telephone call placed to the police barracks?

     A: Yes, it came right to my desk.

     Q: And did [Schultz] tell you why she was calling?

     A: Yes, she said that her name was being thrown around as
     being involved with this robbery, the home invasion robbery at
     the victim’s home, and she said Sebastianelli you know I didn’t
     do this and it went on from there.

     Q: What else did she tell you in the telephone call?

     A: She said you know I didn’t do this and the old man up there
     said that I didn’t do it. I said Wendy I don’t know what the
     victim had to say about this robbery. I said, but if you’re
     looking to clear your name out of something, you want to
     come in, you can take a polygraph, you can talk to the
     investigator.

     [Counsel for Schultz]: Objection.

N.T. Trial, 11/26/12, at 39-40 (emphasis added). After the objection to the

mention of the polygraph, the following sidebar discussion was held:

     [Counsel for Schultz]: Sadly I think we just had [a] mistrial.

     The Court: Because?

     [The Commonwealth]: I don’t think so.

     [Counsel for Schultz]: Because of the mention of the word
     polygraph. The law on that is very, very clear that it cannot be
     mentioned as part of testimony and if it is brought out in the
     Commonwealth’s case in chief it is grounds for a mistrial, and
     there’s actually no choice.



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      [The Commonwealth]: I think, he’s true if you’re talking about
      was she offered a polygraph, did she undergo a polygraph, what
      were the results.

      [Counsel for Schultz]: And he just said that he offered her—

      [The Commonwealth]: He’s testifying as to the conversation
      between himself and [Schultz].

      [Counsel for Schultz]: But he said he offered her to come in for
      a polygraph, that is a problematic phrase and [the
      Commonwealth] and I are in agreement that when that is used it
      creates—

      [The Commonwealth]: No, we’re not in agreement, we’re in
      agreement if he had said yes she came in and took a polygraph,
      not whether, you know the standard litany of come in, talk to us,
      polygraph, whatever. We have no idea whether she took one or
      not, I don’t know. Just because he used the word polygraph
      doesn’t mean mistrial.

      [Counsel for Schultz]: It doesn’t matter whether she took one or
      not, and if we recess for 15 minutes I’ll get you the cases.

      The Court: What about a curative instruction?

      [Counsel for Appellant]: My understanding was that because of
      the junk science that is a polygraph[,] it’s considered to be
      sufficient to taint the proceedings so that they can’t go further.

Id. at 41-42 (emphasis added). At no point did trial counsel respond to the

court’s mention of a curative instruction or ask that one be given.

      Schultz argues that

      the prejudicial effect of [Trooper Sebastianelli’s] statement is
      that it leaves the jury with the reasonable assumption that had
      [Schultz] taken or passed a polygraph examination, she could
      have “cleared her name[,”] negating the necessity for the
      prosecution.

      This inference easily could have been remedied, with a prompt
      curative instruction at the request of [t]rial [c]ounsel.

                                     ...


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     A prompt instruction would have prevented any inference that
     the petitioner had the opportunity to clear her name and was
     either unwilling or unable to do so.

Brief of Appellant, at 12-14.   Indeed, where a polygraph test has been

improperly referenced, a cautionary instruction can be “adequate to

overcome prejudice” caused by such references.          Commonwealth v.

Fortenbaugh, 69 A.3d 191, 193 (Pa. 2013).

     In Fortenbaugh, possible prejudice from improper references to a

polygraph was remedied by a curative instruction where the references were

not intentional, no indication was provided suggesting a test actually took

place, and the trial court adequately instructed the jury not to draw any

inferences from the mention of the test.     See id. at 195.     Similarly, in

Schultz’s trial, it does not appear that the Commonwealth intentionally

elicited the reference to a polygraph, nor did Schultz take a polygraph.

Thus, Schultz’s claim that a curative instruction should have been requested

and given is of arguable merit. Spotz, supra.

     At the PCRA evidentiary hearing, Schultz’s trial counsel testified as the

reasons he did not request a curative instruction. He indicated that

     [i]n my mind there were two. The first reason was I really did
     not want the Superior Court to have something that it could
     glom onto and say, [w]ell a curative instruction was given, and
     so any error associated with the admission of that testimony was
     harmless because it was corrected by the [c]ourt, because I
     thought that the issue of making those comments regarding a
     polygraph was sufficiently prejudicial that it would be a good
     issue to have on appeal, if an appeal was necessary.

     And the second part was, quite frankly, I didn’t want to call
     additional attention to it, and I couldn’t come up with a curative
     instruction that addressed it. How do you say to a jury, [y]ou

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      remember hearing Trooper Sebastianelli talk about the
      polygraph that [Schultz] was supposed to come in for and didn’t,
      disregard that. You can’t consider that without bringing it right
      back into their minds.

N.T. PCRA Hearing, 9/28/15, at 12.

      Trial counsel’s rationale that not requesting a curative instruction

would make the issue stronger for purposes of direct appeal is illogical, since

the fact that counsel did not request the instruction resulted in waiver of the

claim on appeal. See Schultz, supra. However, counsel’s second reason,

that a curative instruction would only serve to draw unwanted attention to

the issue, indicates a strategic, reasonable basis for not requesting the

instruction.   See Spotz, supra.       Additionally, we note that this Court

determined that the single inadvertent reference to a polygraph did not

result in prejudice to Schultz.    Schultz, supra; see also Fortenbaugh,

supra at 195 (“Not every mention of a polygraph is prejudicial or worthy of

a mistrial.”). Because counsel had a reasonable basis for not requesting a

curative instruction regarding the reference to a polygraph and because

Schultz did not suffer prejudice as a result, we agree with the PCRA court’s

assessment that counsel was not ineffective. Spotz, supra.

      Schultz also asserts that trial counsel was ineffective for failing to raise

an alibi defense.    Schultz claims that she was misidentified and that her

minor daughter, Christine, could have testified as to her whereabouts at the

time of the crime.

      In considering whether counsel was ineffective for failing to call a

witness, including an alibi witness, a petitioner must show:

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      (1) the witness existed; (2) the witness was available; (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 was so prejudicial to
      petitioner to have denied him or her a fair trial.

Commonwealth v. Dennis, 17 A.3d 297, 302 (Pa. 2011).

      Instantly, trial counsel testified at the evidentiary hearing that he

could not specifically remember each potential witness he interviewed.

However, he testified that he spoke with

      at least one witness that we elected not to call because, when I
      had spoken with that witness, the witness’ recollection wasn’t
      favorable, and I don’t think it was incriminating. It just wasn’t
      helpful, but I don’t remember anyone else either not appearing
      or that I had not spoken with.

N.T. PCRA Hearing, 9/28/15, at 7-8.        Trial counsel also indicated that no

evidence was brought to his attention that he did not investigate or review.

Id. at 8.   The PCRA court credited counsel’s testimony and found that

Schultz’s testimony that Christine could have served as an alibi was not

credible and did not satisfy the requirements outlined in Dennis, supra.

The PCRA court’s conclusions are supported in the record.       Spotz, supra.

Accordingly, we find that the court did not err in finding Schultz’s alibi-

witness claim to be meritless. Id.

      For the foregoing reasons, the PCRA court did not err in dismissing

Schultz’s PCRA petition.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/9/2016




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