Com. v. Miller, J.

J-S34034-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

JOSHUA W. MILLER

Appellant No. 1802 WDA 2013

Appeal from the PCRA Order October 16, 2013
In the Court of Common Pleas of Cambria County
Criminal Division at No(s): CP-11-CR-0001598-2009

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.: FILED AUGUST 5, 2014

Appellant, Joshua W. Miller, appeals from the order entered in the

Cambria County Court of Common Pleas, denying his first petition filed

pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

In its opinion, the PCRA court set forth the relevant facts and

procedural history of this case as follows:

[O]n November 10, 2010, following a three-day jury trial,
[Appellant] was convicted on all counts, consisting of
aggravated assault (F1), endangering welfare of children
(M1), recklessly endangering another person (M2), and
simple assault (M1). These charges were based upon
allegations that [Appellant], while alone and while caring
for his 8-week old child on the evening of January 14,
2009, violently shook the child, causing him to suffer
bleeding below his skull, known as a subdural hematoma.
____________________________________________

1
42 Pa.C.S.A. §§ 9541-9546.
J-S34034-14

On March 2, 2011, [Appellant] was sentenced to an overall
term of state incarceration of not less than 5 years, nor
more than 10 years.[2] Thereafter, [Appellant] filed an
appeal to the Superior Court, and his sentence was
affirmed on June 1, 2012.

(PCRA Court Opinion, filed October 16, 2013, at 1) (internal citations

____________________________________________

2
We are mindful of the United States Supreme Court’s recent decision in
Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314
(2013), in which the Court expressly held that any fact increasing the
mandatory minimum sentence for a crime is considered an element of the
crime to be submitted to the fact-finder and found beyond a reasonable
doubt. Id. at ___, 133 S.Ct. at 2155, 2163, 186 L.Ed.2d at ___. Here, the
court imposed the mandatory minimum sentence per 42 Pa.C.S.A. § 9718
(mandating five year minimum sentence for defendant convicted of
aggravated assault under 18 Pa.C.S.A. § 2702(a)(1) when victim is less than
thirteen years of age). Pursuant to Section 9718(c), the court determines
applicability of the mandatory minimum at sentencing by a preponderance of
the evidence (arguably in violation of Alleyne). In the present case,
however, the jury convicted Appellant of aggravated assault under 18
Pa.C.S.A. § 2702(a)(1). Additionally, there was no dispute as to the victim’s
age. Both Appellant and the Commonwealth presented evidence that the
victim was approximately eight weeks old at the time of the incident.
Further, the aggravated assault count in the criminal information indicated
the victim’s date of birth was November 17, 2008. Thus, by virtue of its
verdict convicting Appellant of aggravated assault, the jury determined
beyond a reasonable doubt that Appellant committed the offense against a
victim who was less than thirteen years old. See Commonwealth v.
Watley, 81 A.3d 108 (Pa.Super. 2013) (en banc) (holding imposition of
mandatory minimum sentence per 42 Pa.C.S.A. § 9712.1—mandating five
year minimum sentence for defendant convicted of possession with intent to
deliver when at time of offense defendant was in physical possession or
control of firearm—was proper, where jury determined beyond reasonable
doubt that appellant possessed firearms in connection with drugs).
Therefore, we see no issue implicating the legality of Appellant’s sentence.
See Commonwealth v. Edrington, 780 A.2d 721 (Pa.Super. 2001)
(explaining challenge to application of mandatory minimum sentence is non-
waivable challenge to legality of sentence which, assuming proper
jurisdiction, this Court can raise sua sponte).

-2-
J-S34034-14

omitted). On March 13, 2013, the Pennsylvania Supreme Court denied

Appellant’s petition for allowance of appeal. On April 17, 2013, Appellant

timely filed the current pro se PCRA petition. The PCRA court appointed

counsel, who filed an amended petition on July 5, 2013. A hearing on the

petition took place on July 23, 2013. Ultimately, the PCRA court denied

Appellant’s petition on October 16, 2013. On October 30, 2013, Appellant

timely filed a notice of appeal. The PCRA court ordered Appellant to file a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b), and Appellant timely complied.

Appellant raises three issues for our review:

WHETHER TRIAL COUNSEL…RENDERED INEFFECTIVE
ASSISTANCE BY CONCEDING AND AGREEING TO A ONE-
LINE STIPULATION READ TO THE JURY RELATIVE TO A
DISCOVERY VIOLATION BY THE COMMONWEALTH?

WHETHER TRIAL COUNSEL…RENDERED INEFFECTIVE
ASSISTANCE BY FAILING TO OBJECT (AND THEREBY
WAIVING THE ISSUE FOR DIRECT APPEAL) RELATIVE TO
THE ASSISTANT DISTRICT ATTORNEY’S INFLAMMATORY
DEMONSTRATION DURING CLOSING ARGUMENT, WHERE
SHE MIMICKED HOLDING AND SHAKING AN INFANT,
WHERE NO FACTS OF RECORD SUPPORTED SUCH AN
INFERENCE?

WHETHER APPELLATE COUNSEL…RENDERED INEFFECTIVE
ASSISTANCE BY FAILING TO ARGUE THE SUFFICIENCY OF
THE EVIDENCE AT TRIAL TO SUPPORT THE JURY’S
VERDICT ON AGGRAVATED ASSAULT ON DIRECT APPEAL
ALTHOUGH THE ISSUE WAS RAISED IN THE [RULE]
1925[(B)] STATEMENT OF ISSUES ON APPEAL?

(Appellant’s Brief at 6).

In his first issue, Appellant argues that as part of a pattern of

-3-
J-S34034-14

discovery violations throughout the trial, the Commonwealth introduced an

undisclosed supplemental report concerning the Commonwealth’s pretrial

communications with the victim’s mother. The Commonwealth introduced

the report after the mother had testified during defense counsel’s cross-

examination that she had no prior contact with the district attorney’s office.

Although the Commonwealth called the mother as a witness, Appellant

considered her a favorable witness. Appellant points to trial counsel’s

testimony at the PCRA hearing that counsel’s cross-examination would have

been different if counsel had access to the supplemental report because the

report contradicted the mother’s testimony. Appellant acknowledges trial

counsel requested a mistrial, which the court denied. Nevertheless,

Appellant claims trial counsel rendered ineffective assistance by agreeing to

the following stipulation: “The Commonwealth agrees that they did not

maintain proper contact with [the victim’s mother], regarding the case

against [Appellant].” Appellant asserts the “stipulation diminished the

meritorious issue on direct appeal that the [c]ourt erred in denying the

mistrial, because the Superior Court determined that the discovery violation

was corrected by the stipulation.” (Appellant’s Brief at 13). Appellant

concludes trial counsel’s ineffectiveness entitles Appellant to a new trial. We

disagree.

Our standard of review of the denial of a PCRA petition is limited to

examining whether the evidence of record supports the court’s

-4-
J-S34034-14

determination and whether its decision is free of legal error.

Commonwealth v. Conway, 14 A.3d 101, 108 (Pa.Super. 2011), appeal

denied, 612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference

to the findings of the PCRA court if the record contains any support for those

findings. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.Super. 2007),

appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). We owe no deference,

however, to the court’s legal conclusions. Commonwealth v. Ford, 44

A.3d 1190, 1194 (Pa.Super. 2012). If the record supports a post-conviction

court’s credibility determination, it is binding on the appellate court.

Commonwealth v. Knighten, 742 A.2d 679, 682 (Pa.Super. 1999), appeal

denied, 563 Pa. 659, 759 A.2d 383 (2000).

The law presumes counsel has rendered effective assistance.

Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When

asserting a claim of ineffective assistance of counsel, a petitioner is required

to make the following showing: (1) the underlying claim is of arguable merit;

(2) counsel had no reasonable strategic basis for his action or inaction; and,

(3) but for the errors and omissions of counsel, there is a reasonable

probability that the outcome of the proceedings would have been different.

Commonwealth v. Kimball, 555 Pa. 299, 312, 724 A.2d 326, 333 (1999).

The failure to satisfy any prong of the test for ineffectiveness will cause the

claim to fail. Williams, supra.

“The threshold inquiry in ineffectiveness claims is whether the

-5-
J-S34034-14

issue/argument/tactic which counsel has foregone and which forms the basis

for the assertion of ineffectiveness is of arguable merit….” Commonwealth

v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot

be found ineffective for failing to pursue a baseless or meritless claim.”

Commonwealth v. Taylor, 933 A.2d 1035, 1042 (Pa.Super. 2007), appeal

denied, 597 Pa. 715, 951 A.2d 1163 (2008) (quoting Commonwealth v.

Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004)).

Once this threshold is met we apply the “reasonable basis”
test to determine whether counsel’s chosen course was
designed to effectuate his client’s interests. If we conclude
that the particular course chosen by counsel had some
reasonable basis, our inquiry ceases and counsel’s
assistance is deemed effective.

Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).

Prejudice is established when [a defendant] demonstrates
that counsel’s chosen course of action had an adverse
effect on the outcome of the proceedings. The defendant
must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome. In [Kimball, supra], we held
that a “criminal defendant alleging prejudice must show
that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.”

Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883

(2002) (some internal citations and quotation marks omitted).

Pennsylvania Rule of Criminal Procedure 573 provides:

Rule 573. Pretrial Discovery and inspection

* * *

-6-
J-S34034-14

(B) Disclosure by the Commonwealth

(1) Mandatory. In all court cases, on request by
the defendant, and subject to any protective order
which the Commonwealth might obtain under this
rule, the Commonwealth shall disclose to the
defendant’s attorney all of the following requested
items or information, provided they are material to
the instant case. The Commonwealth shall, when
applicable, permit the defendant’s attorney to
inspect and copy or photograph such items.

(a) Any evidence favorable to the accused
that is material either to guilt or to
punishment, and is within the possession or
control of the attorney for the Commonwealth;

* * *

Pa.R.Crim.P. 573(B)(1)(a).

If a discovery violation occurs, the court may grant a trial
continuance or prohibit the introduction of the evidence or
may enter any order it deems just under the
circumstances. The trial court has broad discretion in
choosing the appropriate remedy for a discovery violation.
Our scope of review is whether the court abused its
discretion in not excluding evidence pursuant to Rule
573(E). A defendant seeking relief from a discovery
violation must demonstrate prejudice. A violation of
discovery does not automatically entitle appellant to a new
trial. Rather, an appellant must demonstrate how a more
timely disclosure would have affected his trial strategy or
how he was otherwise prejudiced by the alleged late
disclosure.

Commonwealth v. Causey, 833 A.2d 165, 171 (Pa.Super. 2003), appeal

denied, 577 Pa. 732, 848 A.2d 927 (2004) (internal citations and quotation

marks omitted).

-7-
J-S34034-14

Instantly, trial counsel strenuously argued for a mistrial based on the

Commonwealth’s alleged discovery violation. Trial counsel agreed to the

stipulation in question only after the court denied counsel’s motion for a

mistrial. The court also ruled out a curative instruction on the basis that it

would confuse the jury. At the PCRA hearing, trial counsel explained her

actions as follows:

[T]he mistrial was denied. So my position at that point
was do whatever we can to help correct the situation so
that the information that was included in that
supplemental report would go to the jury possibly
explained.

(N.T. PCRA Hearing, 7/23/13, at 16). In light of the court’s refusal to grant

a mistrial or curative instruction, counsel pursued another means of

mitigating the perceived harm caused by the Commonwealth’s production of

the supplemental report. Regardless of what effect the stipulation might

have had on Appellant’s chances of successfully appealing the court’s ruling,

counsel had a reasonable strategic basis for agreeing to the stipulation to

benefit Appellant at trial. See Kimball, supra. Moreover, the stipulation

was not essential to this Court’s rejection of Appellant’s claim on direct

appeal:

Here, [Appellant] has failed to establish that he was
prejudiced by the Commonwealth’s discovery
violation. When asked by the Commonwealth on redirect
whether she had been contacted by Detective Wagner,
[the victim’s mother] responded that she didn’t remember.
Thus, the Commonwealth’s use of the document to
impeach [the mother’s] credibility was de minimus as it did
not directly contradict any of her statements.

-8-
J-S34034-14

Additionally, the record reveals that the
Commonwealth did not intentionally withhold the
supplemental report, but that it was inadvertently not
printed from Detective Wagner’s [c]omputer and was not
provided to the Commonwealth until the week before trial.
Nevertheless, the trial court read the following stipulation
to the jury: “The Commonwealth agrees that they did not
maintain proper contact with [the victim’s mother],
regarding the case against [Appellant].”

Because the Commonwealths’ discovery violation did
not cause [Appellant] prejudice and was corrected by a
stipulation to the jury, we hold that the trial court did not
abuse its discretion in refusing to grant [Appellant’s]
motion for a mistrial.

Commonwealth v. Miller, No. 672 WDA 2011, unpublished memorandum

at 12 (Pa.Super. filed June 1, 2012) (footnote omitted) (emphasis added).

Appellant has not shown a reasonable probability that the outcome of the

trial or the appeal would have been different, absent the stipulation. See

Chambers, supra. Accordingly, Appellant fails to satisfy the test for

ineffectiveness of counsel on this ground. See Williams, supra.

In his second issue, Appellant asserts the Commonwealth presented a

theatrical evidentiary demonstration during its closing argument, which

mimicked a person violently shaking a child. Appellant contends this

demonstration put facts before the jury which were not in evidence and

invited the jury to reach a verdict based on shock and speculation instead of

an objective evaluation of the evidence. Appellant concludes trial counsel

was ineffective for failing to object to the Commonwealth’s inflammatory

-9-
J-S34034-14

conduct during closing argument, and this Court should reverse the order of

the PCRA court and remand for a new trial. We disagree.

The following principles govern our review of a claim of prosecutorial

misconduct:

In considering this claim, our attention is focused on
whether the defendant was deprived of a fair trial, not a
perfect one.

Not every unwise remark on a prosecutor’s part constitutes
reversible error. Indeed, the test is a relatively stringent
one. Generally speaking, a prosecutor’s comments do not
constitute reversible error unless the unavoidable effect of
such comments would be to prejudice the jury, forming in
their minds fixed bias and hostility toward [the defendant]
so that they could not weigh the evidence objectively and
render a true verdict. Prosecutorial misconduct, however,
will not be found where comments were based on evidence
or proper inferences therefrom or were only oratorical flair.
In order to evaluate whether comments were improper, we
must look to the context in which they were made.

Commonwealth v. Harris, 884 A.2d 920, 927 (Pa.Super. 2005), appeal

denied, 593 Pa. 726, 928 A.2d 1289 (2007). A new trial is required “only

when a prosecutor’s improper remarks are prejudicial, i.e., when they are of

such a nature or delivered in such a manner that they may reasonably be

said to have deprived the defendant of a fair and impartial trial.”

Commonwealth v. Davis, 554 A.2d 104, 111 (Pa.Super. 1989), appeal

denied, 524 Pa. 617, 571 A.2d 380 (1989).

“A prosecutor has great discretion during closing argument. Indeed,

closing ‘argument’ is just that: argument.” Commonwealth v. Brown, 911

A.2d 576, 580 (Pa.Super. 2006), appeal denied, 591 Pa. 722, 920 A.2d 830

- 10 -
J-S34034-14

(2007). A prosecutor, however, must limit statements to facts in evidence

and reasonable inferences therefrom and must not express personal opinions

on a defendant’s guilt or credibility. Commonwealth v. Bricker, 506 Pa.

571, 579, 487 A.2d 346, 349 (1985). “[T]he prosecutor may comment on

the credibility of witnesses. Further, a prosecutor is allowed to respond to

defense arguments with logical force and vigor.” Commonwealth v.

Chmiel, 585 Pa. 547, 620, 889 A.2d 501, 544 (2005), cert. denied, 549

U.S. 848, 127 S.Ct. 101, 166 L.Ed.2d 82 (2006) (internal citations omitted).

Trial counsel will not be deemed ineffective for failing to object where

a prosecutor’s remarks are “within the ambit of fair comment.”

Commonwealth v. Thomas, 539 A.2d 829, 836 (Pa.Super. 1988), appeal

denied, 520 Pa. 604, 553 A.2d 967 (1998). Further, in cases where the

outcome is controlled by credibility determinations, a prosecutor is permitted

to make comments reinforcing the conflicting accounts facing the jury.

Commonwealth v. Judy, 978 A.2d 1015, 1024 (Pa.Super. 2009). If the

court instructs the jury that closing remarks are not evidence in the case, a

presumption arises that the jury has followed the court’s instructions.

Commonwealth v. Baker, 531 Pa. 541, 559, 614 A.2d 663, 672 (1992).

Instantly, Appellant’s brief does not cite that part of the

Commonwealth’s closing argument where the alleged demonstration

occurred, and our review of the trial transcript was unavailing. Moreover, in

its opinion, the PCRA court reasoned as follows:

- 11 -
J-S34034-14

At trial, the Commonwealth’s expert, Dr. Janet E. Squires,
opined that the victim endured head trauma/acute
bleeding caused by shearing/shaking. She testified that
“at some point there was shaking, something happened,
and this baby was acutely abnormal, and the only thing
that makes sense to me is that some other person did
this.” Further, she opined that “this is an inflicted injury[;]
[...] we call it Abusive Head Trauma.” Given this evidence,
we believe that the prosecutor could fairly comment on the
same, and suggest what inferences the jury should draw
therefrom.

Additionally, we agree with the Commonwealth’s
contention that [Appellant] failed to present any witness at
the PCRA hearing to show that the jury was inflamed by
the prosecutor’s conduct. Thus, we believe that
[Appellant] has not satisfied either the arguable merit
prong or prejudice prong to justify PCRA relief.

(PCRA Court Opinion at 7) (internal citations omitted). We agree. The

prosecutor’s alleged demonstration would be consistent with the testimony

of the Commonwealth’s expert witness, who opined that the baby’s injuries

indicated someone had shaken the baby. The prosecutor did not put new

facts before the jury. See Harris, supra. Further, the court properly

instructed the jury that closing arguments were not evidence. See Baker,

supra. Accordingly, trial counsel was not ineffective for failing to object to

the prosecutor’s actions during closing argument, and this claim lacks

arguable merit. See Thomas, supra.

In his third issue, Appellant argues the trial consisted of a “battle of

the experts,” where the Commonwealth’s expert concluded the only

reasonable explanation for the baby’s injury was that somebody shook the

baby. Appellant claims the jury convicted him entirely on circumstantial

- 12 -
J-S34034-14

evidence, “given the lack of witnesses, statements, or visible bruising or

injury to the child.” (Appellant’s Brief at 17). Appellant contends the

aggravated assault conviction was worthy of a challenge on direct appeal

because the evidence was too weak and inconclusive to sustain the

conviction. Appellant points out that appellate counsel raised a sufficiency of

the evidence claim in Appellant’s Rule 1925(b) statement. Nevertheless,

appellate counsel ultimately declined to pursue the claim on direct appeal.

Appellant concludes appellate counsel was ineffective for failing to advance a

sufficiency of the evidence claim with respect to the aggravated assault

conviction. We disagree.

The following principles of review apply to challenges to the sufficiency

of evidence:

The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying [the above] test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless
the evidence is so weak and inconclusive that as a matter
of law no probability of fact may be drawn from the
combined circumstances. The Commonwealth may sustain
its burden of proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire
record must be evaluated and all evidence actually
received must be considered. Finally, the [finder] of fact
while passing upon the credibility of witnesses and the

- 13 -
J-S34034-14

weight of the evidence produced, is free to believe all, part
or none of the evidence.

Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)

(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.

2003)).

Instantly, the trial court’s Rule 1925(a) opinion on direct appeal set

forth the Commonwealth’s evidence against Appellant as follows:

To substantiate these charges, the record reveals that the
Commonwealth presented the testimony of several
witnesses, who all testified that the victim had been born
healthy and, apart from some constipation, never
experienced any health problems, not even a cold.
However, testimony was also presented that on the
evening of January 14, 2009, the 8-week old victim was
rushed to the Conemaugh Hospital Emergency Room by
ambulance, following [Appellant’s] call to 911 to report his
son’s limpness, unresponsiveness and shallow breathing.

Specifically, the Commonwealth presented evidence that
on the day of January 14, 2009, the victim was healthy
and that everything was fine. Although [Appellant] did not
normally provide childcare for his son during the early
evening hours, [Appellant] did so on this day, and when he
finished working for the day, he took the baby-victim to
visit the baby’s mother, Amy McCullough, at Eat n’ Park,
her place of employment. During his visit at Eat n’ Park,
Ms. McCullough and her co-workers took turns holding and
feeding the baby, and he appeared to be acting normally.
[Appellant] then took the baby home, and while he was
alone with him, the baby became very fussy and screamed
and cried for an hour and a half. [Appellant] tried to feed
him and give him a bath, but nothing would soothe the
child. Evidence was then presented that the child suddenly
went limp and started gasping for air, and [Appellant]
called 911.

While at Conemaugh Hospital, the victim was intubated,
received a blood transfusion, and was placed on anti-

- 14 -
J-S34034-14

seizure medication. Because of his critical condition, he
was transferred to Children’s Hospital in Pittsburgh. Dr.
Janet E. Squires, a board-certified pediatrician who is also
board-certified in pediatric child abuse, was consulted due
to concerns of child abuse. Dr. Squires examined the
victim, and concluded that the victim had been physically
abused, evidenced by head trauma, a subdural hematoma,
and retinal hemorrhaging in all four quadrants of both
eyeballs. She also opined that the injuries were caused by
a shearing or rotational injury from movement, such as the
shaking of the child.

(Trial Court Opinion, filed June 6, 2011, at 3-4) (internal citations

omitted). Moreover, in its opinion, the PCRA court reasoned as

follows:

At the PCRA hearing, appellate counsel testified that based
on his experience, issues relative to weight and sufficiency
are less likely to obtain any kind of relief. He also testified
that here, with aggravated assault, there was no doubt as
to the Commonwealth’s theory of the case, and that the
jury was free to evaluate the credibility of Dr. Squires’
testimony as to aggravated assault. Additionally, he
believed it was important to only present issues of primacy
on appeal, and not brief too many issues.

Appellate counsel’s views relative to not advancing
unmeritorious appellate issues is supported in law. Our
Supreme Court has [stated] that “[i]t is not necessary to
raise patently unavailing matters in order to ward off fears
of a later finding of ineffectiveness; a good attorney will
not disguise and thus weaken good points by camouflaging
them in a flurry of makeweight issues which clearly have
no merit.” Commonwealth v. Williams, 581 Pa. 57, 65
n.5, 863 A.2d 505, 510 n.5 (2004).

Moreover, here, prior to appearing before [the] Superior
Court, appellate counsel presumably read this [c]ourt’s
Rule 1925(a) [o]pinion, wherein we set forth the ample
evidence of record to sustain the aggravated assault
conviction. Additionally, we opined that the defense and
the Commonwealth presented conflicting medical expert

- 15 -
J-S34034-14

opinions as to what had transpired on the date in question,
that the jury was free to assess the experts’ credibility,
and that the jury rendered its decision of guilt in
accordance with its observations and assessment. Given
our extensive opinion on this issue, we believe that it was
reasonable for appellate counsel to forego his sufficiency of
the evidence arguments before the Superior Court in order
to advance more compelling claims.

(PCRA Court Opinion at 8-9) (some internal citations omitted). We accept

the court’s analysis. Appellant’s challenge to the sufficiency of the evidence

for the aggravated assault conviction under the rubric of appellate counsel’s

ineffectiveness lacks arguable merit; appellate counsel was not ineffective

for declining to pursue this meritless claim. See Taylor, supra; Kimball,

supra. Moreover, to the extent Appellant argues there was conflicting

testimony, this claim goes to the weight of the evidence, not its sufficiency.

See Jones, supra (stating finder of fact, while passing upon credibility of

witnesses and weight of evidence produced, is free to believe all, part or

none of evidence). Based upon the foregoing, we affirm the order denying

PCRA relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/5/2014

- 16 -
J-S34034-14

- 17 -