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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
FREDERICK WALTER
Appellant No. 919 WDA 2014
Appeal from the Order April 24, 2014
In the Court of Common Pleas of Venango County
Criminal Division at No(s): CP-61-CR-0001011-2003
BEFORE: PANELLA, J., MUNDY, J., and STRASSBURGER, J.*
MEMORANDUM BY PANELLA, J. FILED JULY 14, 2015
Appellant, Frederick Walter, appeals from the order denying his
petition pursuant to the Post Conviction Relief Act (“PCRA”). On appeal,
Walter argues that the PCRA court erred in concluding that trial counsel was
not ineffective for failing to object to statements made by the prosecutor at
sentencing and for failing to request a mistrial based upon the cumulative
effect of multiple alleged discovery violations. After careful review, we
affirm.
After his first trial ended in mistrial due to jury deadlock, a second jury
convicted Walter of involuntary deviate sexual intercourse, aggravated
indecent assault, criminal attempt to commit aggravated indecent assault,
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*
Retired Senior Judge assigned to the Superior Court.
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corruption of minors, and two counts of indecent assault. On July 23, 2007,
the trial court sentenced Walter to an aggregate term of imprisonment of 11
1/2 years to 24 years.1 Walter subsequently filed a pro se PCRA petition.
The PCRA court appointed counsel to represent Walter, and counsel
filed an amended PCRA petition. The PCRA court held a hearing on the
amended petition, and on April 24, 2014, entered an order dismissing it.
This timely appeal followed.
On appeal, Walter presents two challenges to the PCRA court’s
decision. In both arguments, Walter claims that trial counsel was
ineffective.
Our standard of review of a PCRA court’s denial of a petition for post-
conviction relief is well-settled. We must examine whether the record
supports the PCRA court’s determination and whether the PCRA court’s
determination is free of legal error. See Commonwealth v. Hall, 867 A.2d
619, 628 (Pa. Super. 2005). The PCRA court’s findings will not be disturbed
unless there is no support for the findings in the certified record. See
Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001). Our
scope of review is limited by the parameters of the PCRA. See
Commonwealth v. Heilman, 867 A.2d 542, 544 (Pa. Super. 2005).
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1
The original sentence contained a mathematical error in calculating the
aggregate sentence. On September 18, 2007, this error was formally
corrected through an amended sentencing order.
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To be eligible for relief under the PCRA, a petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
resulted from one of the errors listed in 42 Pa.C.S.A. § 9543(a)(2)(i)-(viii).
See Commonwealth v. Albrecht, 720 A.2d 693, 698 (Pa. 1998). Under
section 9543(a)(2)(ii), a claim of ineffective assistance of counsel is
cognizable if it implicates the adjudication of guilt.
In addressing Walter’s claim of counsel’s ineffectiveness, we turn to
the following principles of law:
In order for Appellant to prevail on a claim of ineffective
assistance of counsel, he must show, by a preponderance of the
evidence, 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. Appellant must demonstrate:
(1) the underlying claim is of arguable merit; (2) that counsel
had no reasonable strategic basis for his or her 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. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005)
(internal citations omitted). Moreover, “[w]e presume counsel is effective
and place upon Appellant the burden of proving otherwise.”
Commonwealth v. Springer, 961 A.2d 1262, 1267-1268 (Pa. Super.
2008) (citations omitted).. This Court will grant relief only if an appellant
satisfies each of the three prongs necessary to prove counsel ineffective.
See Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 2007). Thus,
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we may deny an ineffectiveness claim if “the evidence fails to meet a single
one of these prongs.” Id., at 321 (citation omitted).
In his first challenge, Walter contends that trial counsel was ineffective
for failing to object to statements made by the prosecutor at sentencing.
Specifically, Walter highlights the prosecutor’s assertion that Walter
threatened the minor victim that he would harm her mother if she told
anyone about the abuse he perpetrated against her. Walter contends that
this assertion is unsupported by any evidence of record.
We need not reach the substance of this argument, as we agree with
the PCRA court that Walter has failed to establish that he was prejudiced by
any such failure on trial counsel’s part. The sentence imposed by the trial
court consisted of standard range sentences and mandatory minimums. In
imposing this sentence, the trial court stated
Alright, Mr. Walter, the theme of the sentencing here is going to
be standard range sentences. The sentences are going to be
driven by the guidelines. I don’t view your behavior as much
different from what the law contemplates when the guidelines
were established. I’m sentencing to the findings of the jury and
again, as I’ve just stated, the sentences are all in the standard
range of the guidelines.
…
Accepting the jury’s findings as fact in this case you’ve done
incredible damage and the damage has essentially ripped your
family.
N.T., Sentencing, 7/13/07, at 137-138.
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Initially, we note that “it is well-settled that arguments of counsel are
not evidence.” Com. v. Puksar, 951 A.2d 267, 280 (Pa. 2008). Even
assuming that the prosecutor’s assertion that Walter threatened the victim’s
mother lacked evidentiary support, there is no evidence that the trial court
was influenced by the prosecutor’s assertion. Indeed, the trial court was
well aware of all of the allegations in the case anyway, as it had sat through
the trial of the case and heard the testimony that allegedly supported the
prosecutor’s argument. Walter has therefore failed to establish the third
prong of his ineffective assistance of counsel claim. Thus, we conclude that
no relief is due on Walter’s first issue on appeal.
Next, Walter argues that the PCRA court erred in concluding that trial
counsel was not ineffective for failing to request a mistrial based upon the
cumulative effect of multiple alleged discovery violations on the part of the
Commonwealth.
Importantly, Walter’s argument is not that trial counsel failed to
request a mistrial for each of the underlying alleged discovery violations.
Walter concedes that trial counsel requested a mistrial each time he
concluded that the Commonwealth had failed to produce in discovery
evidence that it was presenting at trial. See Appellant’s Brief, at 9. Walter’s
argument is that trial counsel failed to request a mistrial based upon the
cumulative effect of all of the alleged discovery violations. See id.
The fault with Walter’s argument is that
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“no number of failed [ ] claims may collectively warrant relief if
they fail to do so individually.” Johnson, supra at 532 (quoting
Commonwealth v. Washington, 592 Pa. 698, 927 A.2d 586,
617 (2007)). However, we have clarified that this principle
applies to claims that fail because of lack of merit or arguable
merit. Sattazahn, supra at 671. When the failure of individual
claims is grounded in lack of prejudice, then the cumulative
prejudice from those individual claims may properly be assessed.
Id.; Johnson, supra at 532 (citing Commonwealth v. Perry,
537 Pa. 385, 644 A.2d 705, 709 (1994), for the principle that a
new trial may be awarded due to cumulative prejudice accrued
through multiple instances of trial counsel's ineffective
representation).
We have denied most of Appellant's claims based on lack of
merit, and there is no basis for a claim of cumulative error with
regard to these claims. With regard to the few claims that we
have denied based on lack of prejudice, see one sub-claim in
Issue 9, two sub-claims in Issue 11, and Issue 15, we are
satisfied that there is no cumulative prejudice warranting relief.
These claims are independent factually and legally, with no
reasonable and logical connection that would have caused the
jury to assess them cumulatively.
Commonwealth v. Spotz, 18 A.3d 244, 321 (Pa. 2011).
Walter identifies two separate instances of alleged discovery violations.
First, Walter points to a diary entry of the victim’s, which the Commonwealth
entered into evidence at trial. Trial counsel objected, stating that he had not
received the diary entry from the Commonwealth in discovery. The trial
court overruled the objection, concluding that the Commonwealth had not
committed a discovery violation. See N.T., Trial, 3/6/07, at 183. The trial
court premised this conclusion upon finding that the prosecutor was credible
in his claim that diary entry was in the Children and Youth file. See id., at
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182. Therefore, this claim failed for a lack of merit, not a lack of prejudice,
and cannot be included in a claim of cumulative prejudice.
Walter contends that subsequent disciplinary actions taken against the
prosecutor contradicts the trial court’s credibility findings. The PCRA court
notes that, while the prosecutor has admitted to removing original
documents from the Children and Youth file in other cases, he denied
removing the diary entry. See N.T., Trial, 3/7/07, at 86. The PCRA court
found that Walter’s allegation that the prosecutor had “secreted the
[document] from the CYS files simply is not supported on this record.” N.T.,
PCRA hearing, 4/24/14, at 49. We cannot conclude that this factual finding
is an abuse of discretion, and therefore conclude that Walter’s argument
does not alter the trial court’s initial ruling that no discovery violation
occurred.
This leaves Walter with only a single instance of a discovery violation
objection that the trial court overruled based upon a lack of prejudice: a
State Trooper’s supplemental report regarding recantation by the victim
which was not provided to Walter during discovery. Trial counsel objected
and requested that it be excluded from evidence. See N.T., Trial, 3/8/07, at
332. The trial court provided a copy of the report to trial counsel, and
stated “you show me prejudice we’ll deal with it.” Id., at 333. Thus, this
discovery violation could provide a partial basis for a cumulative prejudice
claim. However, as noted above, the only other alleged discovery violation
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was not dismissed for lack of prejudice, but due to a finding that no violation
had occurred. As a result, Walter’s argument that the cumulative effect of
multiple alleged violations has no merit, and affords him no relief on appeal.
Having found that the PCRA court did not commit an error of law, we
affirm the order denying Walter relief on his PCRA petition.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/14/2015
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