J-S08037-18
2018 PA Super 60
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
ERIC WAYNE SMITH :
: No. 1219 WDA 2017
Appellant
Appeal from the PCRA Order June 1, 2017
In the Court of Common Pleas of Washington County Criminal Division at
No(s): CP-63-CR-0000054-2013
BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS*, P.J.E.
OPINION BY STEVENS, P.J.E.: FILED MARCH 19, 2018
Appellant, Eric Wayne Smith, appeals from the order entered in the
Court of Common Pleas of Washington County denying his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546. After a careful review, we affirm.
This Court has previously set forth the facts underlying this case, in part,
as follows:
In the late summer/early fall of 2012, [R.M.] (age 15),
[K.C.] (age 12), and [S.D.] (no age of record) were ‘ding dong
ditching’ in Lawrence, Washington County. When [R.M.]
approached 20 Third Street to ring the doorbell, [Appellant]
approached the three juveniles from the side of the house and
asked them what they were doing. After [R.M.] explained the
prank, [Appellant] offered to share some of his marijuana with the
juveniles. [R.M.] called his girlfriend, [J.C.] (age 15), to bring a
pipe for smoking the marijuana.
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S08037-18
When [J.C.] arrived, the four juveniles proceeded to a
nearby park with [Appellant] to smoke the marijuana. While
smoking together, [Appellant] told [R.M.] that he was gay, and
wondered if [R.M.] knew anyone around [R.M.’s] age that was also
gay. When the juveniles asked [Appellant] about his age,
[Appellant] initially stated that he was 27, then changed it twice
more during the conversation. Prior to leaving the park,
[Appellant] provided his cell phone number to [J.C.] and [R.M.].
Over the next month, [J.C.] texted [Appellant] frequently to
obtain marijuana. On occasion, [J.C.] would bring her brother,
[K.C.], with her to pick up the marijuana at [Appellant’s] residence
or smoke it there with [him]. [Appellant] lived a short walking
distance from [J.C. and K.C.’s residence]. [K.C.] began to stop by
[Appellant’s] house alone to smoke marijuana. [Appellant] never
charged the juveniles for the marijuana. On those occasions
where [Appellant] would smoke with [J.C. and K.C.], it would
always be outside his house.
One evening in the fall of 2012[,] [K.C.] stopped at
[Appellant’s] residence to smoke marijuana. [Appellant] invited
him inside, and [K.C.] and [Appellant] smoked marijuana in
[Appellant’s] living room. [K.C.] asked [Appellant] how he knew
he was gay. [Appellant] asked [K.C.] if he was gay, to which [he]
responded he was bisexual. [Appellant] asked [K.C.] if he wanted
to engage in sexual activity, and [K.C.] said no. Despite this
refusal, [Appellant] fondled [K.C.’s] genitalia over his clothes.
[K.C.] immediately stood up to leave, but [Appellant] grabbed his
pant leg, causing [K.C.] to fall to the ground. [Appellant]
threatened [K.C.], and told him that if he told anyone what
happened he would kill him.
In December 2012, while admitted at Southwood Psychiatric
Hospital, [K.C.] disclosed the incident to his therapists. Following
a forensic interview and notification of law enforcement,
[Appellant] was charged [with several offenses].
On August 23, 2013, the trial court held a nonjury trial after
which it found [Appellant] guilty of [indecent assault, false
imprisonment, corruption of minors, and terroristic threats]. On
December 6, 2013, the trial court sentenced [Appellant] to a total
of six to twelve years of incarceration. [Appellant] did not file any
post-sentence motions in this case. On January 3, 2014, he filed
a timely notice of appeal.
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Commonwealth v. Smith, No. 42 WDA 2014, at 1-3 (Pa.Super. filed
11/17/14) (unpublished memorandum).
On direct appeal, Appellant indicated in his “Statement of Questions
Involved” that he was challenging the sufficiency of the evidence supporting
his convictions. However, in the argument section of his brief, he challenged
solely the trial court’s credibility determinations. Thus, concluding Appellant
had improperly conflated weight and sufficiency of the evidence claims, and
no relief was due,1 we affirmed his judgment of sentence. See id. Appellant
filed a petition for allowance of appeal, which our Supreme Court denied on
June 16, 2015.
On or about November 4, 2015, Appellant filed a timely pro se PCRA
petition, and the PCRA court appointed counsel to assist Appellant. On
September 14, 2016, PCRA counsel filed an amended petition, and on March
27, 2017, the matter proceeded to an evidentiary hearing. On June 1, 2017,
the PCRA court filed an order denying Appellant’s first PCRA petition in its
entirety. Following the reinstatement of Appellant’s PCRA appeal rights nunc
pro tunc,2 this appeal followed. The PCRA court directed Appellant to file a
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1 Appellant did not raise his weight of the evidence claim in the trial court, and
thus, it was waived on appeal.
2The Clerk of Courts failed to serve the PCRA court’s June 1, 2017, order upon
Appellant or his counsel. On July 19, 2017, Appellant filed a counseled second
PCRA petition seeking the restoration of his PCRA appeal rights nunc pro tunc.
Therein, Appellant averred that, on July 10, 2017, he discovered the PCRA
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Pa.R.A.P. 1925(b) statement, Appellant timely complied, and the PCRA court
filed a responsive Pa.R.A.P. 1925(a) opinion.
Appellant presents the following issues for our review:
1. Whether this matter is properly before this Court where
[Appellant] filed a PCRA petition seeking nunc pro tunc
reinstatement of his appellate rights after the Clerk of Courts
failed to serve a final order?
2. Did the PCRA court err in finding that trial counsel was effective
in advising [Appellant] to waive his jury trial rights and proceed
nonjury and in failing to object to a defective on-the-record oral
colloquy by Judge Borkowski?
3. Did the PCRA court err in concluding that trial counsel provided
effective assistance by erroneously advising [Appellant] not to
testify based on his prior criminal history, where [Appellant’s]
only crimen falsi crime was a conviction in 1987 and was
inadmissible under Rule of Evidence 609 since the
Commonwealth failed to provide notice under that rule?
4. Whether the PCRA court erred in determining that trial counsel
was effective in failing to present evidence that [Appellant]
____________________________________________
court had denied his first PCRA petition; however, due to the breakdown in
the court’s operation, he never received notice of the order. Appellant
admitted that the PCRA was the sole means through which he could have his
appeal rights reinstated, and that his second PCRA petition was untimely filed.
However, he sought to invoke the governmental interference and newly-
discovered fact exceptions provided for in 42 Pa.C.S.A. § 9545(b)(1)(i) and
(ii). The PCRA court agreed with Appellant and granted his second PCRA
petition, thus reinstating his right to appeal the denial of his first PCRA petition
nunc pro tunc. We find no error in this regard. See Commonwealth v.
Blackwell, 936 A.2d 497, 500 (Pa.Super. 2007) (holding that PCRA court’s
erroneous notice to petitioner amounted to governmental interference
meeting timeliness exception to PCRA); Commonwealth v. Fairiror, 809
A.2d 396, 397 (Pa.Super. 2002) (holding all requests for reinstatement of
appellate rights, including PCRA appellate rights, must meet the timeliness
requirements or an exception thereto under the PCRA).
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suffered from a hernia to show that it would have been
physically impossible or extremely difficult for [Appellant] to
have dragged the [victim] up the stairs as alleged?
5. Whether the PCRA court erred in holding that trial counsel was
effective in failing to present various text messages sent by two
of the witnesses who testified against [Appellant] that would
have attacked their credibility, including messages that showed
that the [victim] stole [Appellant’s] wallet?
6. Did the PCRA court err in finding that trial counsel rendered
effective assistance on direct appeal by inadequately arguing
[Appellant’s] sufficiency of the evidence claims where the
evidence was insufficient to support the crimes?
7. Whether the PCRA court erred in determining that trial counsel
was effective in declining to challenge the weight of the
evidence in a post-sentence motion[?]
8. Whether, due to the cumulative errors of trial counsel,
[Appellant] is entitled to a new trial?
Appellant’s Brief at 4-5.3
When reviewing the denial of a PCRA petition, we must
determine whether the PCRA court’s order is supported by the
record and free of legal error. Generally, we are bound by a PCRA
court’s credibility determinations. However, with regard to a
court’s legal conclusions, we apply a de novo standard.
Commonwealth v. Johnson, 635 Pa. 665, 139 A.3d 1257, 1272 (2016)
(quotation marks and quotations omitted).
Furthermore,
In order to be eligible for PCRA relief, the petitioner must
prove by a preponderance of the evidence that his conviction or
sentence resulted from one or more of the enumerated
circumstances found in Section 9543(a)(2), which includes the
ineffective assistance of counsel. 42 Pa.C.S.[A.] § 9543(a)(2)(i).
It is well-established that counsel is presumed effective, and
to rebut that presumption, the PCRA petitioner must demonstrate
____________________________________________
3 We have renumbered Appellant’s issues for ease of discussion.
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that counsel’s performance was deficient and that such deficiency
prejudiced him. To prevail on an ineffectiveness claim, the
petitioner has the burden to prove that (1) the underlying
substantive claim has arguable merit; (2) counsel whose
effectiveness is being challenged did not have a reasonable basis
for his or her actions or failure to act; and (3) the petitioner
suffered prejudice as a result of counsel’s deficient performance.
The failure to satisfy any one of the prongs will cause the entire
claim to fail.
Commonwealth v. Benner, 147 A.3d 915, 919–20 (Pa.Super. 2016)
(quotation marks, quotations, and citations omitted).
We need not analyze the prongs of an ineffectiveness claim
in any particular order. Rather, we may discuss first any prong
that an appellant cannot satisfy under the prevailing law and the
applicable facts and circumstances of the case. Finally, counsel
cannot be deemed ineffective for failing to raise a meritless claim.
Johnson, 139 A.3d at 1272 (citations omitted).
In his first claim, Appellant argues the PCRA court properly reinstated
his PCRA appeal rights nunc pro tunc. As discussed supra, we agree and,
accordingly, we shall proceed to a review of Appellant’s remaining issues
presented.
In his second claim, Appellant argues trial counsel was ineffective in
advising Appellant to waive his right to a jury trial and failing to object to the
Honorable Edward J. Borkowski’s defective on-the-record oral colloquy.
Initially, we note the following relevant legal precepts:
The right to trial by jury is enshrined in both the U.S. and
Pennsylvania Constitutions. See U.S. Const. amend. VI; Pa.
Const. art. I, § 6. The importance of the right is recognized by
the procedural protections in Rule 620 of th[e]. . .Criminal
Procedural Rules, which provides that:
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In all cases, the defendant and the attorney for the
Commonwealth may waive a jury trial with approval
by a judge of the court in which the case is pending,
and elect to have the judge try the case without a jury.
The judge shall ascertain from the defendant whether
this is a knowing and intelligent waiver, and such
colloquy shall appear on the record. The waiver shall
be in writing, made a part of the record, and signed
by the defendant, the attorney for the
Commonwealth, the judge, and the defendant’s
attorney as a witness.
Pa.R.Crim.P. 620.
***
The essential elements of a jury waiver, though important
and necessary to an appreciation of the right, are nevertheless
simple to state and easy to understand. “The. . .essential
ingredients, basic to the concept of a jury trial, are the
requirements that the jury be chosen from members of the
community (a jury of one’s peers), that the verdict be unanimous,
and that the accused be allowed to participate in the selection of
the jury panel.” Notwithstanding the Rule’s reference to a
“colloquy on the record,” the use of a written jury trial waiver form
has been deemed sufficient in the absence of an oral jury trial
waiver colloquy.
A waiver colloquy is a procedural device; it is not a
constitutional end or a constitutional “right.” Citizens can waive
their fundamental rights in the absence of a colloquy; indeed,
waivers can occur by conduct or by implication, as in the case of
a criminal trial conducted in absentia after the defendant fails to
appear.
Commonwealth v. Mallory, 596 Pa. 172, 941 A.2d 686, 696-97 (2008)
(footnote, citations, and quotation omitted).
In addressing Appellant’s second issue, the PCRA court concluded there
was no merit to Appellant’s claim and/or counsel had a reasonable basis for
his action. In this regard, the PCRA court specifically indicated the following:
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[Appellant] alleges that counsel did not have a reasonable
basis for advising [him] to waive his right to a jury trial, which
thereby caused prejudice to his case. He also alleges that despite
a comprehensive colloquy being conducted by [the Honorable
Katherine] Emery, the original judge assigned to the case, [ ]
Judge Borkowski’s failure to perform a full colloquy on the record
also caused him prejudice.
***
[Appellant] addresses the third element [relating to
prejudice] of the [ineffectiveness] test, but [he] ignores the other
two [elements]. He alleges that but for trial counsel’s advice and
the lack of an oral on-the-record colloquy in front of Judge
Borkowski, he would have elected a jury trial. However, his claim
fails the first and second elements of the [ineffectiveness] test:
that [his] underlying claim—that he did not give a knowing and
intelligent waiver—has any merit, and how counsel’s performance
was deficient.
Under a “totality of the circumstances” evaluation, it’s clear
that [Appellant] gave a knowing and intelligent waiver and was
sufficiently apprised of his right to a jury trial. . . .[T]he existence
of a written colloquy is considered prima facie evidence that the
waiver was informed and voluntary. None of the cases submitted
by [Appellant] hold that a defendant must be given a thorough
oral colloquy on the record in front of every judge he faces.
[Appellant] moved to waive his right to a jury trial on May 30,
2013, which was granted by Judge Emery. At the PCRA hearing,
the [PCRA] court inquired with PCRA counsel whether he was
contesting [Appellant’s] waiver of jury trial in front of Judge
Emery:
THE COURT: Okay. So you’re not contesting the
validity of the waiver of the jury trial in front of Judge
Emery; correct?
[PCRA COUNSEL]: No, I am not.
[N.T., 3/27/17, at 63.] Therefore, on the strength of th[is] waiver
alone, trial counsel’s performance was sufficient.
Also, the additional measures taken by trial counsel to
apprise [Appellant] of his right to a jury trial show that [Appellant]
made a knowing and intelligent waiver. At the PCRA hearing,
[Appellant] admitted to being counseled by his trial attorney on
his right to jury trial:
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[PCRA COUNSEL]: Did you and [trial counsel] discuss
proceeding nonjury in front of Judge Borkowski?
[APPELLANT]: We discussed it. Because [trial
counsel] told me that, you know it would be best to
go, you know, first nonjury based on, you know, the
fact that the victim was a child and my past history
might come to play. Either I would open doors. And
he said—told me that Judge Borkowski is a fair judge.
And he didn’t see no harm in my doing so. So I, along,
you know, with the advice of my counsel, I went with
Judge Borkowski nonjury.
Id. at 45. Trial counsel elaborated on the nature of his advice to
[Appellant] regarding [Appellant’s] right to a jury trial:
[ADA]: Okay. And you met with [Appellant] after your
rehiring on July 11, 2015, and discussed with him
whether or not he still wanted to waive his right to a
jury trial; correct?
[TRIAL COUNSEL]: It is. Except it was July of 2013.
[ADA]: I am sorry. I misspoke. I said ’15, didn’t I?
[TRIAL COUNSEL]: Right. Just for the record.
[ADA]: Okay. So you did that?
[TRIAL COUNSEL]: Yes.
[ADA]: On multiple occasions?
[TRIAL COUNSEL]: Yes.
[ADA]: Okay. And when you did that, can I assume
you went over the stuff you normally would at any
time when you’re going over a case with a client? You
would discuss with him his right to pick a jury?
[TRIAL COUNSEL]: Yes.
[ADA]: His absolute constitutional right to have a
jury?
[TRIAL COUNSEL]: Yes.
[ADA]: And to make the Commonwealth prove to the
jury beyond a reasonable doubt each and every
element of the crime?
[TRIAL COUNSEL]: Yes.
[ADA]: And for the decision to be unanimous?
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[TRIAL COUNSEL]: Yes.
[ADA]: And that would also include who the jury pool
would be made up of?
[TRIAL COUNSEL]: Yes.
***
[ADA]: Do you recall [Appellant] discussing with you
why he wanted a nonjury trial prior to you being
counsel?
[TRIAL COUNSEL]: I generally remember [Appellant]
saying that he felt as though it would be more fair and
that it would lead to a better decision. I also recall
that he had a great deal of confidence in his decision
to go that route. As to the specific reasons behind his
confidence, and that being the fair and best, you
know, fact finder, I don’t specifically recall.
Id. at 32-34.
Also at the PCRA hearing, [Appellant] conceded that he was
given a thorough oral colloquy in front of Judge Emery. His
counsel elicited the following testimony:
[PCRA COUNSEL]: Do you recall being placed on trial
in this matter?
[APPELLANT]: Yes, I do.
[PCRA COUNSEL]: Do you recall waiving your right to
a jury trial?
[APPELLANT]: Yes, I do.
Id. at 44. Counsel for the Commonwealth fleshed out
[Appellant’s] answer, thereby proving that he understood the
court’s oral colloquy of his right to a trial by jury:
[ADA]: [Appellant], you heard [trial counsel] testify;
correct?
[APPELLANT]: That is correct.
[ADA]: And you also said on direct examination that
you waived your right to a jury trial before [Judge]
Emery; correct?
[APPELLANT]: That is correct.
[ADA]: Did she explain to you your right to a jury trial?
[APPELLANT]: [Judge] Emery? Yes, she did. Yes.
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[ADA]: So she went over all those things? It was a
longer colloquy than Judge Borkowski about that?
[APPELLANT]: Yes, sir.
[ADA]: Okay. So you understood what you were
giving up by waiving your right to a jury trial?
[APPELLANT]: Yes.
[ADA]: Okay. And you thought, well, [Judge] Emery
is going to hear my case, I hear she’s a fair judge, I
would like her to make the decision. Is that a fair
summary?
[APPELLANT]: Yes.
[ADA]: Okay. So then you go before Judge Borkowski.
And [trial counsel] tells you. . .Judge Borkowski is fair,
too.
[APPELLANT]: Yes.
[ADA]: Okay. And that he’ll give you a fair shot?
[APPELLANT]: Yes.
[ADA]: Is that right?
[APPELLANT]: Yes.
[ADA]: And so, basically, for the same reasons you
waived your right to a jury trial before Judge Emery,
you waived your right to a jury trial before Judge
Borkowski?
[APPELLANT]: That is correct.
Id. at 52-53.
[Appellant’s] testimony at the PCRA hearing proves that he
had a knowing and intelligent understanding of why he was
waiving his right to a jury trial. He signed [a] waiver of the right
to a jury trial, which was accepted following [an] oral colloquy on
the record, is prima facie evidence of a knowing and intelligent
waiver. Moreover, even if the waiver is deemed insufficient, the
oral testimony of [Appellant] and trial counsel make it clear that
[Appellant] believed that given the nature of the charges, he
would have a more fair trial where the fact-finder is the judge.
Therefore, applying the [merit prong] of the [ineffectiveness] test,
[Appellant] fails to show that his underlying claim, that he did not
give a knowing and intelligent waiver of a jury trial, has any merit.
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Similarly, applying the second element of the
[ineffectiveness] test, trial counsel testified that, in his
experience, crimes of sexual violence inflame the jury and
prejudice [a defendant]:
[ADA]: But do you recall discussing with him the fact
that if you presented the case before a jury, you felt
that they could be, let’s say, blinded or inflamed by
the underlying allegations of the Commonwealth;
whereas, a judge, and specifically Judge Borkowski,
who has significant experience in criminal cases,
would not let that affect his judgment?
[TRIAL COUNSEL]: Exactly, I think that I’ve
experienced on several occasions jurors who are
offended by the mere nature of the allegations and
turned off by the mere nature of the allegations. And
then, frankly, they start to visibly size up your client.
You can see it happening.
Id. at 34. Clearly, trial counsel had valid reasons to advise
[Appellant] to not purse a jury trial. He reasoned that [Appellant]
would receive a more fair trial in front of a judge than a jury and
gave that reasoning to his client, who, as shown in the
aforementioned testimony, agreed.
Taking all of the evidence into consideration, [Appellant]
fails the first and second elements of the [ineffectiveness] test.
In regard to the first, [Appellant] had a clear understanding of
why he was waiving his right to a jury trial, he was given a
thorough oral colloquy in front of the first assigned judge, he was
counseled by his trial counsel, and the second assigned judge
gave a brief oral colloquy. In regard to the second prong, trial
counsel gave sound reason[s] for why he advised [Appellant] to
waive his right to a jury trial: juries often prejudge [defendants]
who are charged with violent sex crimes and have difficulty setting
aside their emotions.
PCRA Court Opinion, filed 6/1/17, at 7-12.
We agree with the sound reasoning of the PCRA court, and accordingly,
we conclude Appellant is not entitled to relief on this ineffective assistance of
counsel claim.
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In his third claim, Appellant contends trial counsel was ineffective in
advising him not to testify based on his prior criminal history/bad acts.
Appellant specifically contends that counsel inaccurately informed him that, if
he testified, he could be impeached with his prior criminal history. Appellant
contends that, absent this advice, he would have testified at trial.
It is well-settled that:
The decision of whether or not to testify on one’s own behalf
is ultimately to be made by the defendant after full consultation
with counsel. In order to sustain a claim that counsel was
ineffective for failing to advise the appellant of his rights in this
regard, the appellant must demonstrate either that counsel
interfered with his right to testify, or that counsel gave specific
advice so unreasonable as to vitiate a knowing and intelligent
decision to testify on his own behalf.
Commonwealth v. Nieves, 560 Pa. 529, 746 A.2d 1102, 1104 (2000)
(citations omitted).
During the PCRA hearing, trial counsel testified as follows regarding his
advice to Appellant as to his right to testify:
[PCRA COUNSEL]: And do you recall whether [Appellant] testified
during his trial?
[TRIAL COUNSEL]: He did not.
[PCRA COUNSEL]: And can you tell us what advice you gave to
[Appellant] regarding his decision to testify or not testify?
[TRIAL COUNSEL]: Yes. Some of the advice is advice that I give
to any client who may be going to trial or his going to trial. And
that is that it’s up to him as to whether or not he testifies.
I tell clients that they have certain decisions that are
completely within their domain and not mine. And those would
include whether or not to go to trial. If they go to trial, whether
it’s a jury or a bench trial. . . .And whether or not they would
testify at trial. So I would tell him that ultimately it’s up to him.
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I discussed with [Appellant] whether he wanted to testify at
trial. We had fairly extensive conversations about that. By “fairly
extensive conversation,” I don’t mean hours. I mean, that they
went on for a significant amount of conversation.
I offered my opinion. And my opinion was that he should
not testify. Although I did tell him, as I would tell any client, that
they can always change their mind up until we close our case in
chief. That that right remains with them until we close our case
in chief.
Did you ask why did I tell him or just whether I told him—I
suggested?
[PCRA COUNSEL]: I asked whether—and I think I may have asked
why.
[TRIAL COUNSEL]: Would you like me to elaborate on why?
THE COURT: I certainly would.
[TRIAL COUNSEL]: Okay. Thank you. I didn’t want to answer
something that wasn’t asked.
[PCRA COUNSEL]: That would have been my next question.
[TRIAL COUNSEL]: Okay. I suggested that he did not testify
primarily-well, there’s what I told him and there’s also what I fully
thought. I didn’t want to irreparably damage my client’s
relationship by him thinking that I was insulting him. So
sometimes I give them a softer version of what I think.
But, essentially, I informed him and thought that he would
not make a good witness. In my judgment in talking with him on
multiple occasions at the jail, he was not a good communicator.
He was not a good speaker. And it would affect his credibility.
He speaks very fast. He has trouble staying on track. And
in cases like this, with a child sexual assault where you have a he
said, he said, if you elect to take the stand, you have to be a very
good witness. Once you take the stand, you are opening up
yourself to giving the Commonwealth greater facts towards their
proof beyond a reasonable doubt.
I thought [Appellant] would do that by being a poor witness,
by being a poor communicator, and lacking some credibility.
By lacking credibility, I mean that—I think that if you don’t
directly confront those facts which are alleged against you, then
that lessens your credibility. And I thought that [Appellant] had
that problem in this case.
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And then once that happens, then your lack of credibility
becomes [the] Commonwealth’s evidence for proof beyond a
reasonable doubt.
I thought the victim in this case, by comparison, had serious
challenges to his credibility. So why undermine our attack on the
victim’s credibility by putting on a less than credible defendant in
this case.
That was the primary reason why I advised against him
testifying at trial.
[PCRA COUNSEL]: That was the primary reason, but it wasn’t the
reason you told him because you didn’t want to damage your
relationship?
[TRIAL COUNSEL]: No. I did mention to him that I thought he
would not make a good witness.
[PCRA COUNSEL]: Okay.
[TRIAL COUNSEL]: I’m just saying that the way I just expressed
it to you is probably not entirely consistent to what I expressed—
the way I expressed it to him.
N.T., 3/27/17, at 10-13.
Trial counsel further testified that Appellant informed him he had a
hernia and desired to use that as a defense. Id. at 18. Trial counsel
explained:
I also thought that—I was concerned that [Appellant]—
throughout our conversations—the manner in which he would
raise this before the judge.
For example, he had attempted to show me, on more than
one occasion, the hernia, which I believe is in a private, if not
genital area. And in a case of this nature, a child sexual assault,
there is a concern that your client—that [Appellant], when they
testify, might testify, act, and behave on the stand in a manner
consistent with which they are charged. That they might not
understand boundaries. They might act inappropriately.
I had a real concern in this case that [Appellant] would get
on the stand and insist upon showing this to the court in a way
that would appear to not only be inconsistent—or inappropriate
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with court decorum, but might also demonstrate him to Judge
Borkowski as somebody who doesn’t understand normal human
social boundaries and possibly normal sexual boundaries.
So there is a concern that he would act in a way that was
too consistent with what he was charged, and I wanted to avoid
that. And that was also based upon my overall conversations with
[Appellant] and my judgment with him as a potential witness.
Id. at 19.
Trial counsel confirmed that he was also concerned that Appellant might
“open the door” for him to be impeached with his prior crimes and/or bad
acts; however, trial counsel testified this was not a prevailing concern in this
case. Id. at 16. Rather, trial counsel indicated “the primary concern with him
was that I just did not think he would be a good witness, and I thought he
would be a poor witness for us.” Id. Trial counsel testified that, although he
had no specific recollection of discussing specific past crimes relative to
Appellant, he could “say with confidence that [he] did not tell [Appellant] to
not testify because of a 1987 retail theft conviction.” Id. at 17.
Appellant, on the other hand, testified at the PCRA hearing on direct-
examination that it was his intention to testify and he would have done so if
trial counsel had not told him his prior bad acts, including his past homicide
or 1987 theft conviction, could be introduced if he testified. Id. at 46-48.
However, upon cross-examination by the ADA, Appellant admitted that trial
counsel informed him that he believed Appellant should not testify because he
would not “be a good witness” or “come across [as] credible.” Id. at 63.
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Based on the aforementioned, the PCRA court found trial counsel’s
testimony to be credible and determined “[Appellant] was advised that the
main reason he shouldn’t testify is because he would make a bad witness.”
PCRA Court Opinion, filed 6/1/17, at 15. Further, the PCRA court noted that
trial counsel testified he advised Appellant not to testify, in part, because he
had concerns that Appellant would act inappropriately as it related to his
hernia, which was located in Appellant’s private area, thus demonstrating to
the trial court that he lacks appreciation for “normal human social boundaries
and possibly normal sexual boundaries.” Id. at 19.
The PCRA court concluded “[Appellant’s] allegations that trial counsel
advised him not to testify based on his criminal history is without merit. While
trial counsel credibly testified that ‘prior bad acts,’ not [Appellant’s] criminal
history, were mentioned, [Appellant’s] recollection of their discussions are
tentative and lack credibility.” Id. at 16. Further, the PCRA court concluded
“[t]he testimony produced at the PCRA hearing demonstrates that trial
counsel did not advise [Appellant] not to testify because of his criminal
history[.] Trial counsel credibly testified that the primary concern was
[Appellant’s] poor presentation as a witness, which [Appellant] admitted was
communicated to him.” Id. at 18. Thus, the PCRA court found no merit to
Appellant’s underlying claim. Id.
We are bound by the PCRA court’s credibility determinations. See
Johnson, supra. Moreover, we agree with the sound reasoning of the PCRA
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court, and accordingly, we conclude Appellant is not entitled to relief on his
ineffective assistance of counsel claim.
In his fourth claim, Appellant contends trial counsel was ineffective in
failing to present evidence that he suffered from a hernia that made it
physically impossible, or at least extremely difficult, for him to have dragged
the victim up the stairs as alleged by the Commonwealth. We conclude
Appellant is not entitled to relief.
In rejecting Appellant’s claim, the PCRA court concluded, inter alia, that
Appellant failed to prove he was prejudiced by the absence of the evidence at
trial. Specifically, the PCRA court relevantly indicated the following:
[Appellant] alleges that the evidence of the hernia would
have “significantly called into question the heart of the [victim’s]
claims” and “certainly would have led to a reasonable probability
of a different outcome[.]” His logic is that if evidence of a hernia
was presented, he would not have been able to engage in the acts,
[which he was] accused of, and would have been acquitted
thereof. However, in order to demonstrate prejudice, he must
prove that the outcome of the trial would have been different.
The court finds that presentation of the evidence of
[Appellant’s] alleged hernia would not have changed the outcome
of the case. [Appellant] was found guilty [on] five [counts]: false
imprisonment, 18 Pa.C.S.A. § 2903(a), terroristic threats, 18
Pa.C.S.A. § 2706(a)(1), corruption of minors, 18 Pa.C.S.A. §
6301(a)(1)(i), corruption of minors, 18 Pa.C.S.A. § 6301(a)(ii),
and indecent assault, 18 Pa.C.S.A. § 3126(a)(8). However, he
was acquitted of the two most serious felony sex offenses: sexual
assault, 18 Pa.C.S.A. § 3124.1, and statutory sexual assault, 18
Pa.C.S.A. § 3122.1. Based on the testimony of his physical
limitations as a result of the hernia, [Appellant] could [still] have
performed the acts of which he was convicted. Only the two
crimes he was acquitted of might have required [Appellant] to
have been without the alleged hernia. Thus, even if evidence of
the alleged hernia had been presented, it would not have affected
the outcome of the case.
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PCRA Court Opinion, filed 6/1/17, at 20-21 (citation to record omitted).
We agree with the sound reasoning of the PCRA court, and accordingly,
we conclude Appellant is not entitled to relief on his ineffective assistance of
counsel claim. See Commonwealth v. Johnson, 600 Pa. 329, 966 A.2d
523, 533 (2009) (holding a petitioner establishes prejudice when he
demonstrates “that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different”)
(quotation marks, quotation, and citation omitted)). Here, the record reveals
that, aside from the testimony related to Appellant dragging the victim up the
stairs, there was extensive testimony establishing that Appellant committed
the crimes for which he was convicted. Thus, the PCRA court properly
conclude that, even if counsel had introduced the evidence that Appellant had
a hernia, there is no reasonable probability that the introduction of such
evidence would have altered the outcome of the trial. Thus, Appellant is not
entitled to relief on this claim. See id.
In his fifth claim, Appellant contends trial counsel was ineffective in
failing to present various text messages, which two Commonwealth witnesses
sent to Appellant. He contends the text messages would have impeached the
witnesses’ credibility. Specifically, he alleges:
These text messages would have demonstrated that the [victim’s]
sister, [J.C.], who testified against [Appellant], repeatedly lied to
[Appellant] about her age as did her boyfriend, [J.M.], who also
testified against [Appellant]. The text message evidence also
would have revealed that the [victim] had stolen [Appellant’s]
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wallet and could have led to the admission of [the] evidence that
the [victim] called [Appellant] a racial epithet and said that he was
going to make a false allegation against [Appellant].
Appellant’s Brief at 29.
In rejecting Appellant’s claim, the PCRA court found there was no merit
to Appellant’s underlying claim that such text messages existed. Moreover,
the PCRA court concluded Appellant failed to prove he was prejudiced by the
absence of the evidence at trial. Specifically, the PCRA court relevantly
indicated the following:
With regard to the first element [of the ineffectiveness test],
[Appellant] has failed to show that there are text messages in
existence that would have supported his case. Therefore,
[Appellant] cannot prove that his claim has arguable merit. With
regard to the third element, [Appellant] has produced insufficient
evidence to prove that the evidence would change the outcome of
the case.
[Appellant] alleges that the text messages exist and that
they would exonerate him, but he gave very few details
concerning their substance or why he never presented them to his
counsel. At the PCRA hearing, he was questioned by the
Commonwealth regarding their substance and whereabouts:
Q. Did you have the text messages?
A. No, I can’t subpoena—
Q. No, I mean, you have them. You were interacting
with them. Did you have the text messages?
A. Well, I have them on my computer.
Q. Did you ever tell [trial counsel], I have them on my
computer?
A. Yes.
Q. So when he said he never heard—or remembered
ever talking to you about text messages, that isn’t
true?
A. No, it’s not true.
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Q. Okay. Are they still on your computer?
A. They should be on my computer.
Q. You never provided them to [PCRA counsel] or any
other attorneys in these years that have passed, these
text messages that would exonerate you?
A. Well, I’ve been trying for the longest time. I just
recently got [PCRA counsel] about maybe five, six
months ago.
Q. So where are the—the computer messages, they’re
still—
A. They’re at my mom’s house.
Q. Wouldn’t it have been nice to give them to [PCRA
counsel] to show them here today that you had them
and it would exonerate you?
A. Well, my mom, she’s hardly ever home anyway,
you know. So—but like I said, they’re there. I mean,
they have been there, we wouldn’t be having this
conversation. I mean they’re there regardless.
[N.T., 3/27/17, at 56-57.] Additionally, the [PCRA] court posed
several questions to [Appellant] concerning the alleged texts:
THE COURT: Your computer is still there? Your mom
still lives in the house?
THE WITNESS: Yes, ma’am.
***
THE COURT: These texts that you’re claiming that
[J.C.] sent to you, is this regarding her brother
stealing your wallet? What exactly is in the texts that
you think would have helped you?
THE WITNESS: Well, he had stolen my wallet, and I
had text [J.C.] back, I said, your brother stole my
wallet. And she said, well, let me go see.
So, she texted back, she says, yes, I do have it.
She described everything, and I said, yeah, that’s it.
And she said, well, I’ll bring it up. Do you have a
cigarette?
I said, sure, no problem. I’ll give you a
cigarette. And she brought it up. And when she
brought it up, I told [J.C.], I says, because I’m friends
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with you, I’m not going to go to the police and get him
in trouble, but I do not want that kid up here again.
If he comes up here again, if I see him stealing
anything, I will call the police and have him arrested.
Id. at 60.
In contrast, trial counsel testified that he didn’t remember
ever having a discussion with [Appellant] regarding any text
messages:
Q. Did [Appellant] indicate to you that he had text
messages from Commonwealth witnesses that
somehow would allow you to impeach their credibility?
A. I don’t recall that. Although—I also don’t recall-
unlike the hernia-
Q. Yes.
A.—that I was presented with that and elected not to
go forward with it.
I recall discussing the hernia, thinking about
whether we should pursue that via [Appellant] or
records, and electing against that tactically. I don’t
have [a] recollection of having that same thought
process about text messages pretrial.
Q. Meaning you don’t recall it even being mentioned
to you?
A. No. I don’t recall. I just don’t recall the issue before
trial.
Q. Okay. After trial did he ever bring to your attention
that he had some text messages that would somehow
impeach the credibility of the Commonwealth’s
witnesses?
A. Not that I recall.
Id. at 36-37.
Based on the testimony, it doesn’t appear that the text
messages exist. Despite them supposedly being accessible on his
mother’s computer, [Appellant] never gave them to trial counsel
or PCRA counsel. The only excuse he could muster is that his
mom is “hardly ever home anyway.” If [Appellant] truly believed
the text messages would support his innocence, he certainly
would have found time over the last five years to get the messages
and present them to counsel.
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In addition, it is not clear why [Appellant] believes these
text messages would prove that he is innocent. Presumably,
[Appellant] thinks that the text demonstrate that the victim stole
money from him, which he believes would somehow impeach the
victim or provide the victim a motive to fabricate the entire story.
However, the court is not convinced. Without production of the
text messages or more details regarding what they say, there is
no way for the court to know whether the outcome of the case
would have been different had they been introduced. There is no
evidence other than [Appellant’s] unbelievable and
unsubstantiated claims that the texts exist. Moreover, even if the
texts did prove that the victim stole from [Appellant], the court
finds little credence to [Appellant’s] assertion that the victim
would fabricate such heinous acts in order to avoid being charged
with [a] minor theft charge.
PCRA Court Opinion, filed 6/1/17, at 21-24.
We are bound by the PCRA court’s credibility determinations. See
Johnson, supra. Moreover, we agree with the sound reasoning of the PCRA
court, and accordingly, we conclude Appellant is not entitled to relief on his
ineffective assistance of counsel claim.
In his sixth claim, Appellant contends direct appeal counsel was
ineffective in failing to properly brief on appeal his claim that the evidence was
insufficient to sustain his convictions. Assuming, arguendo, Appellant has
demonstrated that appellate counsel’s performance was deficient in the
manner in which he presented the issue on direct appeal,4 we conclude
____________________________________________
4As Appellant accurately argues, on direct appeal, this Court concluded that
appellate counsel “confused” a challenge to the sufficiency of the evidence
with a challenge to the weight of the evidence. Thus, we concluded that
appellate counsel’s brief “raised sufficiency claims in which he presents weight
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Appellant has failed to demonstrate the necessary prejudice. Accordingly, he
is not entitled to relief on his ineffectiveness claim.
In reviewing sufficiency claims, we note:
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 [that of] 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 trier of fact while
passing upon the credibility of witnesses and the
weight of the evidence produced, is free to believe all,
part or none of the evidence.
Commonwealth v. Graham, 81 A.3d 137, 142 (Pa.Super. 2013) (quotation
marks and quotation omitted).
____________________________________________
of the evidence arguments, [and thus] his sufficiency claims must fail.”
Commonwealth v. Smith, No. 42 WDA 2014, 6 (Pa.Super. filed 11/17/14)
(unpublished memorandum) (footnote omitted).
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Appellant avers the victim’s testimony was so unreliable and
contradictory that the entire verdict is based on no more than surmise or
conjecture. Citing to Commonwealth v. Karkaria, 533 Pa. 412, 625 A.2d
1167 (1993), Appellant contends the victim’s testimony falls within the
inherently unreliable standard and, therefore, was insufficient to support the
trial court’s verdicts.5 In this vein, Appellant notes that the victim did not
____________________________________________
5 Appellant was convicted of indecent assault under 18 Pa.C.S.A. §
3126(a)(8), which provides, in relevant part:
A person is guilty of indecent assault if the person has indecent
contact with the complainant, causes the complainant to have
indecent contact with the person or intentionally causes the
complainant to come into contact with seminal fluid, urine or feces
for the purpose of arousing sexual desire in the person or the
complainant and:
***
(8) the complainant is less than 16 years of age and the person is
four or more years older than the complainant and the
complainant and the person are not married to each other.
18 Pa.C.S.A. § 3126(a)(8).
He was convicted of false imprisonment under 18 Pa.C.S.A. § 2903(A),
which provides, in relevant part, that “a person commits a misdemeanor of
the second degree if he knowingly restrains another unlawfully so as to
interfere substantially with his liberty.” 18 Pa.C.S.A. § 2903(A). He was also
convicted of corruption of minors under 18 Pa.C.S.A. § 6301(A)(1)(i) and (ii),
which provides, in relevant part:
(1) (i) Except as provided in subparagraph (ii), whoever, being of
the age of 18 years and upwards, by any act corrupts or tends to
corrupt the morals of any minor less than 18 years of age, or who
aids, abets, entices or encourages any such minor in the
commission of any crime, or who knowingly assists or encourages
such minor in violating his or her parole or any order of court,
commits a misdemeanor of the first degree.
(ii) Whoever, being of the age of 18 years and upwards, by any
course of conduct in violation of Chapter 31 (relating to sexual
offenses) corrupts or tends to corrupt the morals of any minor less
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report the alleged assault until after he committed delinquent acts of burglary,
and the victim failed to disclose initially that he returned to Appellant’s home
after the alleged assault.
While challenges based on inconsistent testimony generally implicate
the weight of the evidence, in Karkaria, supra, our Supreme Court observed
the following with respect to testimony and sufficiency of the evidence.
Normally, the evidence is deemed to be sufficient where there is
testimony offered to establish each material element of the crime
charged and to prove commission of the offense by the accused
beyond a reasonable doubt. The question of credibility is left to
the [finder of fact] and the verdict will not be disturbed if the
[finder of fact] determines the evidence is worthy of belief.
We have, however, made exception to the general rule that the
[finder of fact] is the sole arbiter of the facts where the testimony
is so inherently unreliable that a verdict based upon it could
amount to no more than surmise or conjecture.
Karkaria, 625 A.2d at 1170.
Contrary to Appellant’s contention, we do not agree that the verdict was
based on conjecture or that the victim’s testimony was so inherently unreliable
as to render the verdict unsupportable. The victim’s delay in reporting the
____________________________________________
than 18 years of age, or who aids, abets, entices or encourages
any such minor in the commission of an offense under Chapter 31
commits a felony of the third degree.
18 Pa.C.S.A. § 6301(A)(1)(i), (ii). Moreover, he was convicted of terroristic
threats under 18 Pa.C.S.A. § 2706(A)(1), which provides, in relevant part,
that “[a] person commits the crime of terroristic threats if the person
communicates, either directly or indirectly, a threat to: (1) commit any crime
of violence with intent to terrorize another[.]” 18 Pa.C.S.A. § 2706(A)(1).
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sexual assault, as well as the fact he returned to Appellant’s home after the
sexual assault, were facts to be weighed by the trial court in determining the
victim’s credibility. This is not a case, such as Karkaria, in which the
Commonwealth’s case was based upon the testimony of a witness whose
testimony was so inconsistent as to be completely irreconcilable, and the
finder of fact would have had to guess which version of the story to believe.
Accordingly, Appellant is not entitled to relief on his ineffectiveness claim.
In his seventh claim, Appellant contends trial counsel was ineffective in
failing to file a post-sentence motion preserving his weight of the evidence
claim for appellate review. We find Appellant is not entitled to relief.
It is well-settled that a weight of the evidence claim must be preserved
in a motion before the trial court, and that this Court will only review the trial
court’s exercise of discretion in considering whether a new trial is necessary.
See Pa.R.Crim.P. 607; Commonwealth v. Sherwood, 603 Pa. 92, 982 A.2d
483, 494 (2009).
With respect to a claim of ineffective assistance of counsel regarding the
failure to file post-sentence motions, our Supreme Court has maintained the
following:
[There is a] distinction between errors which completely foreclose
merits review and those which merely “narrow its ambit.” Thus,
[the Court] [has] held an attorney’s failure to file a post-sentence
motion preserving a particular sentencing claim “did not operate
to entirely foreclose appellate review,” but merely “waive[d] those
claims subject to issue preservation requirements which were not
otherwise properly preserved.”
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Commonwealth v. Rosado, 637 Pa. 424, 150 A.3d 425, 432 (2016) (citation
omitted). “[C]ounsel’s failure to file post-sentence motions [does] not fall
within the narrow ambit of ineffectiveness claims requiring no finding of
prejudice.” Commonwealth v. Corley, 31 A.3d 293, 296 (Pa.Super. 2011)
(citation and quotation marks omitted). Thus, in order to obtain relief on his
ineffectiveness claim, Appellant must demonstrate that the verdict was
against the weight of the evidence such that counsel may be deemed
ineffective in failing to file the post-sentence motion. See Corley, supra.
Appellant’s complaint that trial counsel was ineffective for failing to file
a motion that the verdict was against the weight of the evidence is addressed
to the discretionary power of the court. Commonwealth v. Widmer, 560 Pa.
308, 744 A.2d 745 (2000).
[O]ne of the least assailable reasons for granting or denying a new
trial is the lower court’s conviction that the verdict was or was not
against the weight of the evidence and that a new trial should be
granted in the interest of justice. A new trial is warranted in this
context only when the verdict is so contrary to the evidence that
it shocks one’s sense of justice and the award of a new trial is
imperative so that right may be given another opportunity to
prevail.
Commonwealth v. Konias, 136 A.3d 1014, 1022 (Pa.Super. 2016)
(citations, quotation marks, and quotations omitted).
In developing his weight of the evidence claim, Appellant specifically
points to inconsistencies between the victim’s testimony and defense
witnesses’ testimony regarding whether Appellant’s bedroom contained a bed
with posts and whether the victim screamed during the assault. He also points
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to inconsistencies in the victim’s testimony as to whether Appellant covered
the victim’s mouth with his hand or duct tape during the assault.
The PCRA court rejected Appellant’s underlying weight of the evidence
claim, and we find no abuse of discretion in this regard. Specifically, to the
extent there was inconsistency between the victim’s testimony and Appellant’s
witnesses’ testimony regarding the bed, as well as whether the victim
screamed during the assault, the trial court was free to weigh the evidence
and resolve any inconsistency in the evidence. See Widmer, supra. Further,
to the extent the victim’s testimony was inconsistent as to the manner in
which Appellant covered his mouth during the sexual assault, the trial court
was free to determine what impact, if any, the inconsistency had on the
victim’s credibility. See id. Accordingly, as there is no merit to Appellant’s
underlying weight of the evidence claim, Appellant is not entitled to relief on
his claim that trial counsel was ineffective in failing to file a post-sentence
motion preserving the claim for appeal.
Finally, Appellant argues that if this Court concludes he is not entitled
to relief based on the prejudicial effect of any single error, he is entitled to
relief because of the cumulative prejudicial effect of all of the errors set forth
in his appellate brief. It is well-settled that no number of failed ineffectiveness
claims may collectively warrant relief if they fail to do so individually.
Commonwealth v. Johnson, 600 Pa. 329, 966 A.2d 523, 532 (2009).
Accordingly, where ineffectiveness claims are rejected for lack of arguable
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merit, there is no basis for an accumulation claim. Commonwealth v.
Sattazahn, 597 Pa. 648, 952 A.2d 640, 671 (2008). “When the failure of
individual claims is grounded in lack of prejudice, however, then the
cumulative prejudice from those individual claims may properly be assessed.”
Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d 121, 161 (2012) (citations
omitted).
In the instant case, to the extent we have individually rejected
Appellant’s claims of ineffectiveness based on a lack of prejudice, we now hold
that they do not prejudice him when considered in the aggregate. See
Commonwealth v. Busanet, 618 Pa. 1, 54 A.3d 35, 75 (2012).
For all of the foregoing reasons, we affirm the PCRA court’s order.
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/19/2018
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