J-S01038-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
HARRY MICHAEL SZEKERES :
:
Appellant : No. 306 MDA 2018
Appeal from the PCRA Order January 22, 2018
in the Court of Common Pleas of Dauphin County
Criminal Division at No.: CP-22-CR-0002247-2012
BEFORE: PANELLA, P.J., MURRAY, J., and PELLEGRINI*, J.
MEMORANDUM BY PELLEGRINI, J.: FILED: JANUARY 29, 2019
Harry Michael Szekeres (Szekeres) appeals from the order of the Court
of Common Pleas of Dauphin County (PCRA court) denying his first petition
filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa. C.S. §§ 9541-
9546, alleging ineffective assistance of trial counsel for failing to call character
witnesses. For the following reasons, we affirm.
We take the relevant factual and procedural background from the PCRA
court’s opinion and our independent review of the certified record. On August
20, 2014, a jury convicted Szekeres of thirty-three counts involving the sexual
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S01038-19
abuse of his daughter.1 As described by a previous panel of this Court in
Szekeres’s direct appeal:
At trial, the jury heard testimony from the victim that
Szekeres had sexually abused her from age seven to age 19. The
victim testified that she had delayed reporting the abuse until she
realized that she had nieces that were old enough for her father
to victimize. The jury also heard a recorded phone conversation
between the victim and Szekeres in which he admitted to making
“a mistake touching my daughter.” The jury found Szekeres guilty
on all 33 charges.
(Commonwealth v. Szekeres, 2015 WL 8805779, at *1 (Pa. Super. filed
Dec. 15, 2015) (unpublished memorandum), appeal denied, 145 A.3d 165
(Pa. 2016)).
The trial court found Szekeres to be a sexually violent predator and
sentenced him to an aggregate term of not less than sixteen nor more than
thirty-two years’ imprisonment. The Superior Court affirmed the judgment of
sentence, and our Supreme Court denied further review. (See id.).
On July 20, 2017, with the assistance of counsel, Szekeres filed his first
PCRA petition arguing that trial counsel was ineffective for failing to call
____________________________________________
1 He was charged with six counts of Involuntary Deviate Sexual Intercourse
(IDSI) (victim less than 16), and two counts of IDSI (forcible compulsion) 18
Pa. C.S. § 3125; twelve counts of Incest, 18 Pa. C.S. § 4302; six counts of
Aggravated Indecent Assault, 18 Pa. C.S. § 3125; two counts of Indecent
Assault, 18 Pa. C.S. § 3126; one count of Rape (forcible compulsion), 18 Pa.
C.S. § 3121; one count of Statutory Sexual Assault, 18 Pa. C.S. § 3122.1;
and four counts of Sexual Assault, 18 Pa. C.S. § 3124.1.
-2-
J-S01038-19
character witnesses on his behalf. After a hearing, the PCRA court denied the
Petition because:
. . . [Szekeres] did not present any potential character
witnesses at the PCRA hearing. . . . [Therefore, he] has failed to
meet his burden of demonstrating that these witnesses . . . were
available to testify at [his] trial. [Szekeres] would have us believe
that the people that submitted letters on his behalf prior to
sentencing would have also been willing and available to testify at
trial. However, [he] offered no objective proof to sustain this
allegation as [Szekeres] called no witnesses at the PCRA
hearing.
(PCRA Court Opinion, 1/22/18, at 3) (citations and footnotes omitted;
emphasis in original). This appeal followed.2
____________________________________________
2 “On appeal from the denial of PCRA relief, our standard of review calls for us
to determine whether the ruling of the PCRA court is supported by the record
and free of legal error.” Commonwealth v. Williams, 196 A.3d 1021, 1026
(Pa. 2018) (citation omitted).
[C]ounsel is presumed to be effective, and the petitioner
bears the burden of proving to the contrary. To prevail, the
petitioner must plead and prove, by a preponderance of the
evidence, the following three elements: (1) the underlying claim
has arguable merit; (2) counsel had no reasonable basis for his or
her action or inaction; and (3) the petitioner suffered prejudice as
a result of counsel’s action or inaction. . . . Our review of counsel’s
performance must be highly deferential. To establish the third
element (prejudice), the petitioner must show that there is a
reasonable probability that the outcome of the proceedings would
have been different but for counsel’s action or inaction. . . [I]f a
claim fails under any necessary element of the ineffectiveness
test, the court may proceed to that element first. . . .
Commonwealth v. Brown, 196 A.3d 130, 150-51 (Pa. 2018) (citations and
quotation marks omitted).
-3-
J-S01038-19
On appeal, Szekeres again contends that trial counsel was ineffective in
failing “to present good character reputation testimony,” resulting in his
inability to request a jury instruction that good character testimony can raise
a reasonable doubt as to guilt. (Szekeres’s Brief, at 24).
When raising a claim of ineffectiveness for the failure to call
a potential witness, a petitioner [must establish] that: (1) the
witness existed; (2) the witness was available to testify for the
defense; (3) counsel knew of, or should have known of, the
existence of the witness; (4) the witness was willing to testify for
the defense; and (5) the absence of the testimony of the witness
was so prejudicial as to have denied the defendant a fair trial. To
demonstrate . . . prejudice, a petitioner must show how the
uncalled witnesses’ testimony would have been beneficial under
the circumstances of the case. Thus, counsel will not be found
ineffective for failing to call a witness unless the petitioner can
show that the witness’s testimony would have been helpful to the
defense. A failure to call a witness is not per se ineffective
assistance of counsel for such decision usually involves matters of
trial strategy.
Commonwealth v. Sneed, 45 A.3d 1096, 1108-09 (Pa. 2012) (citations and
quotation marks omitted).
Our review of the record supports the PCRA court’s finding that Szerekes
failed to establish that character witnesses were available for trial and, in any
event failed to establish that he was prejudiced by the failure to call such
witnesses even if they were available.
At the evidentiary hearing, Szekeres merely speculated that the
individuals who provided letters on his behalf for sentencing “[a]bsolutely”
would have testified, under oath, and subject to cross-examination, at his
trial. (N.T. Hearing, 1/17/18, at 16). In spite of being given the opportunity
-4-
J-S01038-19
to prove his claim, Szekeres failed to provide any testimony or other evidence
that these proposed trial witnesses were available and willing to testify on his
behalf. See Sneed, supra at 1109. Because he failed to do so, Szekeres
failed to meet his burden to prove that his underlying claim, that counsel was
ineffective for failing to call character witnesses on his behalf, merits relief.
See Brown, supra at 150-51.
Szekeres also failed to prove that he was prejudiced by the lack of this
character evidence. In his direct appeal, Szekeres argued that the victim’s
failure to report the abuse for ten years rendered her testimony insufficient.
(See Szekeres, supra at *1). In rejecting this claim, we observed:
. . . Even if we were to accept this argument, which we
explicitly do not, Szekeres cannot overcome the inculpatory
statements present in the recorded phone conversation with the
victim.
During the conversation, the victim repeatedly asked
Szekeres why he had sexually abused her. Several times,
Szekeres implicitly admitted that he had. (See
Commonwealth’s Exhibit 2, at 7:20, 7:50, 8:45). He further
admitted that he knew that what he had done was wrong. (See
id. at 10:40). The victim repeatedly asked Szekeres for
reassurances that her child would be safe in [his] presence.
Szekeres responded:
Hey it would never happen but . . . I don’t know how
I can reassure you other than that I would . . . I want to
be a part of the grandchildren’s lives . . . . I mean I would
never touch your children. I’ve never touched any children
you were not, I made a mistake touching my
daughter. And it seemed like it was okay for some reason
in my mind and I, I continued it for, for a few years,
several years. I don’t know why, I don’t know why it
happened I wouldn’t I would never touch anybody in
any[]way other than the huge mistake I made when
you were young . . . [D]o you know how many times I
thought of taking my own life I, I could, but, but being the
-5-
J-S01038-19
coward I am I can’t do it. I can’t do it. I, I thought of now
being here how many ways could I, could I steal life from
myself, which I, which I deserve to, to let the rest of the
family live and go on. And I just can’t make myself do it.
(Id. at 11:40–13:15). These inculpatory statements are
certainly sufficient to overcome any issues with the victim’s
credibility. . . .
(Id. at **1-2) (some record citation formatting provided; emphases added).
Even if Szekeres had provided objective evidence of the proposed
character witnesses’ willingness to testify at trial, he would still not be entitled
to PCRA relief because he failed to establish that “there is a reasonable
probability that the outcome of the proceedings would have been different” if
they had testified, because of his own inculpatory statements. See Brown,
supra at 150-51.3 Because the record supports the PCRA court’s denial of
Szekeres’s PCRA petition, its order is affirmed.
Order affirmed.
____________________________________________
3 Szekeres’s reliance on Commonwealth v. Weiss, 606 A.2d 439 (Pa. 1992),
and Commonwealth v. Glover, 619 A.2d 1357 (Pa. Super. 1993), is
misplaced. In both of those cases, proposed character witnesses testified at
the PCRA hearings that they had been available to testify at the defendants’
trials, and that they would have provided good character testimony. See
Weiss, supra at 442, Glover, supra at 1358. However, here, Szekeres failed
to provide the testimony of any proposed character witnesses at the PCRA
hearing to support his claim.
-6-
J-S01038-19
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/29/2019
-7-