Com. v. Ritenour, J.
568 WDA 2017
| Pa. Super. Ct. | Nov 28, 2017Background
- Jeffrey R. Ritenour was convicted by a jury of statutory sexual assault, aggravated indecent assault, corruption of minors, and simple assault for incidents occurring in 2012; victim was 14–15, appellant 51.
- Appellant was sentenced to 3–10 years and notified of lifetime SORNA registration; direct appeal and discretionary review were denied, and appellant timely filed a first PCRA petition.
- On PCRA, Ritenour alleged trial counsel Michael Garofalo was ineffective for failing to introduce: fuel receipts and employment records (alibi), a witness (Rusty Ritenour) and a transcription of Facebook messages, photographs of an identifying mole, and evidence of a hernia scar.
- At trial counsel elicited testimony about appellant’s work travel and used timesheets; appellant never produced a May 24, 2012 fuel receipt to counsel.
- Counsel explained strategic reasons for not calling Rusty or introducing the Facebook transcript (it admitted at least one consensual sexual encounter) and for relying on the wife’s live testimony about the mole rather than photographs; counsel and appellant testified that counsel was unaware of any hernia scar.
Issues
| Issue | Plaintiff's Argument (Ritenour) | Defendant's Argument (Commonwealth / Counsel) | Held |
|---|---|---|---|
| 1. Failure to present fuel receipts | Receipts would corroborate alibi and show he was traveling and could not have committed assaults | Appellant never gave May 24 receipt to counsel; receipts produced at PCRA did not include May 24; counsel could not present what he never received | Denied — no arguable merit (counsel not ineffective) |
| 2. Failure to obtain employment records | Employment records/timesheets would prove travel schedule and rebut opportunity to offend | Counsel had and used timesheets at trial; timesheet did not establish exact hours in Morgantown; counsel reasonably used what existed | Denied — no arguable merit (strategic use of timesheets) |
| 3. Failure to call Rusty Ritenour as witness | Rusty would testify the victim admitted her allegation was false on Facebook Messenger | Counsel knew of Rusty but declined because the messages also included admissions of a consensual encounter, which could hurt defense | Denied — no prejudice; calling him could have harmed defense (strategic decision) |
| 4. Failure to introduce Facebook transcript | Transcript would impeach the victim and show recantation | Transcript contained statements suggesting consensual sex; counsel strategically avoided introducing evidence confirming sexual contact | Denied — strategic decision with reasonable basis |
| 5. Failure to produce photograph of mole | Photo would corroborate wife’s testimony that a groin mole would have been felt during intercourse, undermining victim’s account | Counsel relied on live testimony of wife as sufficient and believed photo unnecessary; presented testimony to impeach victim | Denied — reasonable strategic basis for relying on testimony rather than photo |
| 6. Failure to present hernia scar evidence | Scar would impeach victim’s testimony about sexual contact | Appellant forgot to tell counsel about scar; counsel and wife were not aware of scar; no basis to know to pursue it | Denied — appellant failed to show counsel knew or should have known |
Key Cases Cited
- Commonwealth v. Dennis, 17 A.3d 297 (Pa. 2011) (standard of review for PCRA denials and deference to credibility findings)
- Commonwealth v. Chmiel, 30 A.3d 1111 (Pa. 2011) (ineffective assistance test and prejudice standard)
- Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987) (three-prong ineffective assistance test adopted in Pennsylvania)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (performance and prejudice framework for ineffective assistance)
- Commonwealth v. Washington, 927 A.2d 586 (Pa. 2007) (failure-to-call-witness test and four-prong analysis)
- Commonwealth v. Johnson, 966 A.2d 523 (Pa. 2009) (explaining evaluation of uncalled witnesses and prejudice)
- Commonwealth v. Ali, 10 A.3d 282 (Pa. 2010) (presumption counsel effective; failure to raise meritless claim not ineffective)
- Commonwealth v. Jones, 912 A.2d 268 (Pa. 2006) (counsel not ineffective for failing to raise meritless claims)
- Commonwealth v. Treiber, 121 A.3d 435 (Pa. 2015) (discussion of Pierce/Strickland application)
- Commonwealth v. Williams, 732 A.2d 1167 (Pa. 1999) (trial-strategy must offer substantially greater chance of success to be deemed unreasonable)
- Commonwealth v. Brown, 676 A.2d 1178 (Pa. 1996) (strategy rationale standard)