Com. v. McCray, D.

J-S10040-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DERRICK WILSON MCCRAY :
:
Appellant : No. 2441 EDA 2018

Appeal from the PCRA Order Entered July 11, 2018
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0003589-2014

BEFORE: GANTMAN, P.J.E., STABILE, J., and COLINS*, J.

MEMORANDUM BY GANTMAN, P.J.E.: FILED APRIL 09, 2019

Appellant, Derrick Wilson McCray, appeals from the order entered in the

Bucks County Court of Common Pleas, which denied his first petition filed

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

The PCRA court accurately set forth the relevant facts and procedural

history of this case as follows:

On November 14, 2014, following a three-day jury trial,
Appellant was convicted of Rape—Threat of Forcible
Compulsion, Criminal Trespass, Indecent Assault—Threat of
Forcible Compulsion, False Imprisonment, Simple Assault,
and Possession of Instrument of Crime. The charges
stemmed from an incident that occurred on March 18, 2014.

On March 18, 2014, [Victim] resided in…Bucks County, with
her parents, and her daughter. [Victim] and Appellant were
married in 2012 and had a daughter in August 2013.
____________________________________________

1 42 Pa.C.S.A. §§ 9541-9546.

____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S10040-19

However, in December 2013, [Victim] moved out and filed
for divorce. She stated that even though she wanted a
divorce, she and Appellant continued to communicate in an
attempt to co-parent their daughter.

[Victim] typically worked from home…. Her job also entailed
conducting on site interviews for compliance with
background checks. On March 18, 2014, [Victim] had five
interviews scheduled and had to dress professionally that
day. Around 6:30 a.m., she dropped her daughter off at
daycare and then returned home to get ready for work.

While she was upstairs getting ready, [Victim] stated that
she heard a noise downstairs. She thought it may have just
been the cats because both her parents had left for work.
After she finished getting ready, [Victim] began to walk
downstairs. Appellant was standing at the bottom of the
stairs with a knife in his hand and pointed it towards
[Victim’s] chest. Appellant told [Victim] that he did not want
to hurt her, told her to turn around and go back upstairs to
her bedroom.

Appellant followed her to her bedroom and instructed
[Victim] to take off her clothes. As she began to comply,
she stated that she did not want to do this. Appellant put
the knife to one of her blouse buttons, flicked the button,
and instructed her to do what he said and she would make
it out alive. After [Victim] undressed, Appellant instructed
her to turn around and bend over. He then put his penis in
her vagina. After a few minutes, he had [Victim] turn
around and get on her knees, and then he ejaculated onto
her face. [Victim] asked for Appellant to get her a tissue,
which she used to wipe off her face, and asked to get
dressed.

[Victim] remained in fear that Appellant might continue to
harm her so she began to talk about their daughter. She
also gave him a picture of their daughter that was on her
bedroom mirror. While talking, Appellant told [Victim] that
he got the knife from a friend’s house and had entered the
house through the basement window in the laundry room.
Appellant also stated that he was working and living with his
girlfriend in …, PA. [Victim] stated that Appellant was
wearing a tan cartwright hat, gray hoodie that had fur

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around the hood, light gray jeans, and blue gloves. [Victim]
persuaded Appellant to leave before her parents returned
home. As Appellant was leaving, [Victim] let him take a
water bottle that was on the kitchen table and she also saw
him grab a black bag off the recliner. After Appellant left,
she called 911 to report the incident.

…Police responded to the scene and [Victim] agreed to be
transported to the …Hospital for a SANE exam. [Victim] was
then transported to the…Police Department to provide her
statement.

During the investigation on March 18, 2014, the…police
searched [Victim’s] parents’ house for evidence. They
collected a tissue on the dresser that [Victim] stated she
used to wipe her face, and also swabbed for fingerprints.
Later that afternoon, the police contacted Appellant and he
agreed to come to the station for questioning. Appellant
also consented to a search of his vehicle and his girlfriend’s
house. In the car, the police found a water bottle, knives,
and the picture of the daughter of Appellant and [V]ictim.
After searching Appellant’s girlfriend’s house, the police did
not find the sweater, hoodie with fur around the collar,
jeans, or black bag that [V]ictim described.

At trial, the Commonwealth and Appellant stipulated to the
fact that as part of the evidence the police collected, a tissue
from the bedroom dresser contained spermatozoa that
matched the DNA of [Appellant]. No DNA was detected for
all other items that were tested: jeans found at Appellant’s
girlfriend’s house, a knife found in Appellant’s car, a swab
from the basement window at [Victim’s] parents’ house, and
a swab from a glass patio.

Appellant testified during trial that the incident on March 18,
2014, was arranged and consensual. Appellant testified that
[Victim] agreed to let Appellant meet her at their daughter’s
daycare so Appellant could see his daughter for a few
minutes. After [Victim] took their daughter into daycare,
Appellant stated that he needed to talk to [Victim] about a
few things, and they agreed to go back to her parents’
house. Appellant testified that he and [Victim] had
consensual sex, and he entered the house through the front
door. Appellant testified he left because [Victim] was

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concerned her parents might return home from work.
Appellant then testified he went back to his girlfriend’s
house and told his girlfriend where he went that morning.

Later that afternoon, the police called Appellant because
they had a concern regarding [Victim]. Appellant agreed to
go to the police station and his girlfriend accompanied him.
At first, Appellant lied to the police, stating that he did not
see [Victim] that day because he knew that he was not
supposed to have contact with her. After the police told him
that they knew he had contact with her, broke into her
house and raped her with a knife, Appellant then spoke to
the police. He testified that he told the police that [Victim]
willingly arranged to meet him at their daughter’s daycare,
they went back to her house where she let him in through
the front door, and they had consensual sex.

[G.M.], Appellant’s girlfriend at the time of the incident,
testified that Appellant had been staying at her house and
got up early on March 18, 2014, to go to work. [G.M.]
testified that Appellant returned home around 7:40 a.m.
and told her that he was not needed for work, so he cleaned
his car. The police contacted [G.M.] in an attempt to reach
Appellant, and she put Appellant on the phone and then
accompanied Appellant to the police station. The police
indicated to [G.M.] that they were looking for a black bag.
She stated that she did not know anything about it. [G.M.]
also stated that the first time she saw the picture of
Appellant’s daughter was on March 18, 2014—the same day
[V]ictim testified to giving it to Appellant.

A few days later, [G.M.] then contacted the police regarding
a black bag found in her house. [G.M.]’s grandfather who
also resides with her, testified that at the end of March
2014, while he was doing laundry, he knocked something
behind the washing machine. After moving the machine
out, [G.M.’s grandfather] found a white plastic bag
containing clothes hidden behind the dryer and sitting on
top of the dryer vent hose. [He] stated that he thought
nothing about it because his grandchildren have a habit of
dropping their stuff off to be washed and stuff does get
knocked off. [G.M.’s grandfather] testified that he dumped
the clothing out of the bag into the washer and there was a
“jacket with a hood, fur, and a pair of jeans.” [He] washed

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the clothing because he thought they were his grandson’s
clothes.

[G.M.’s grandfather] contacted [G.M.] when he also noticed
a black satchel fall out of the white bag. [G.M.] contacted
the police who came to the house to collect the items.
Appellant testified that he believed that [G.M.] lied when
she testified that Appellant told her he had work the
morning of March 18, 2014, and returned by 7:40 a.m.
because he wasn’t needed. In addition, Appellant believes
that someone, most likely [G.M.], put the clothes behind the
washer and dryer to get him.

[O]n March 18, 2014, Appellant had a no contact order with
[V]ictim. This no contact order and temporary Protection
from Abuse Order arose from an incident that occurred on
February 14, 2014.

On February 14, 2014, [Victim] agreed to help Appellant pay
the bill for his phone. They arranged to meet at their old
apartment where Appellant was still living. Appellant
wanted to spend some time with [Victim], and she agreed
to work from the [a]partment that day. Both Appellant and
[Victim] testified that they communicated after [Victim]
moved out and filed for divorce. On February 14, 2014,
Appellant and [Victim] were in communication and Appellant
left to run some errands. [Victim] left the apartment that
afternoon but soon returned to retrieve the cat litter she had
left there.

Appellant was in the apartment when [Victim] returned to
get the bags. He asked [Victim] to spend more time with
him so they could work things out and not get a divorce.
[Victim] stated, “No, I can’t. I have to go” and began to
walk around Appellant to leave. As she walked by, Appellant
wrapped his arm around her throat, covered her nose and
mouth with his other hand, and threw her to the ground.
Appellant straddled [Victim] and stated that she was not
going to leave him, he was not going to let her leave, and
that she could not leave him. [Victim] was able to get
Appellant’s hands off her face to breathe and was able to
get halfway up off the ground.

However, Appellant again wrapped his arm around her

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throat, covered her nose and mouth, and dragged her down
the hallway into the bathroom. After [Victim] was able to
breathe again, she was able to convince Appellant to let her
go and not hurt her. [Victim] then began to leave the room
and walked down the hallway, but Appellant, for a third
time, grabbed her from behind and dragged her into the
bedroom. [Victim] begged [Appellant] to let her go and
stated that she would not call the cops. [Victim] also told
Appellant that she needed to get their daughter from
daycare and would bring her back so they could be a family.

[Victim] was then able to leave, drive to a nearby parking
lot, and call 911. [Victim] spoke to the police, filed a report,
and her neck bruises were photographed. Appellant was
criminally charged with assaulting [Victim] during this
incident. The Montgomery County Court of Common Pleas
entered a temporary Protection from Abuse Order, where
Appellant was ordered not to have contact with [Victim]. In
order to have bail set, Appellant had to abide by the no
contact order. This no contact order and temporary PFA
were in effect at the time of the March 18, 2014 incident
that was prosecuted within Bucks County.

* * *

For the criminal charges that arose in Bucks County
[regarding the March 18, 2014 incident], Appellant was
convicted by a jury. He was represented by [the] Bucks
County Public Defender…during pre-trial motions, trial,
sentencing, and the filing of post-sentence motions. …
Appellant was sentenced on March 23, 2015, to serve an
aggregate sentence of…nine (9) to twenty-four (24) years
in a state correctional institution.

Appellant subsequently filed timely Post-Sentence Motions
on March 30, 2015[, which were denied by operation of law]
on August 20, 2015. On September 14, 2016, the Superior
Court affirmed [the judgment of sentence]. The
Pennsylvania Supreme Court denied Appellant’s Petition for
Allowance of Appeal [on March 7, 2017. See
Commonwealth v. McCray, 158 A.3d 178 (Pa.Super.
2016), appeal denied, 641 Pa. 274, 167 A.3d 711 (2017)].

Appellant then [timely] filed his first pro se [PCRA] Petition

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on May 30, 2017. He was appointed counsel and an
amended PCRA was filed [on] November 13, 2017. New
counsel entered his appearance on January 23, 2018.
Appellant was permitted to file a second amended PCRA
submitted April 2, 2018. [On June 19, 2018, the court
issued notice of its intent to dismiss the petition without a
hearing per Pa.R.Crim.P. 907. Appellant did not respond].
The PCRA petition was dismissed on July 11, 2018…. On
August 7, 2018, Appellant timely filed a Notice of Appeal to
the Superior Court.

(PCRA Court Opinion, filed October 22, 2018, at 1-8) (internal citations

omitted). On August 10, 2018, the court ordered Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),

which Appellant timely filed on August 20, 2018.

Appellant raises three issues for our review:2

DID THE [PCRA] COURT ERR IN ITS DETERMINATION,
WITHOUT A HEARING, THAT TRIAL COUNSEL PROVIDED TO
APPELLANT EFFECTIVE REPRESENTATION AT TRIAL
DESPITE THE FACT THAT TRIAL COUNSEL OFFERED NO
OPPOSITION TO THE COMMONWEALTH SEEKING TO ADMIT
PRIOR BAD ACTS EVIDENCE AGAINST APPELLANT AT THE
TIME OF TRIAL, DID NOT REQUEST TO LIMIT THE AMOUNT
OF SUCH EVIDENCE PRESENTED AGAINST APPELLANT, AND
DID NOT REQUEST A CURATIVE INSTRUCTION TO THE JURY
REGARDING THE PRESENTATION OF SUCH EVIDENCE?

DID THE [PCRA] COURT [ERR] IN ITS DETERMINATION
WITHOUT A HEARING, THAT TRIAL COUNSEL PROVIDED TO
APPELLANT EFFECTIVE REPRESENTATION, WHEN SHE
FAILED TO OFFER INTO EVIDENCE THE FACT THAT THE
VICTIM, APPELLANT’S WIFE, WAS INVOLVED WITH
APPELLANT IN ACTIVE CUSTODY LITIGATION AND THAT
THE VICTIM HAD SOUGHT AND BEEN DENIED A PRIOR PFA
FROM THE MONTGOMERY COUNTY COURT, PRIOR TO THE
DATE OF THE ALLEGED CRIME?
____________________________________________

2 We have reordered Appellant’s issues.

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DID THE [PCRA] COURT ERR IN DENYING APPELLANT AN
EVIDENTIARY HEARING PURSUANT TO THE POST
CONVICTION RELIEF ACT INASMUCH AS APPELLANT HAD
ISSUES MERITORIOUS OF REVIEW THAT COULD ONLY BE
PROPERLY CONSIDERED FOLLOWING AN EVIDENTIARY
HEARING?

(Appellant’s Brief at vi).

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

examining whether the record evidence supports the court’s determination

and whether the court’s decision is free of legal error. Commonwealth v.

Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 A.2d

319 (2008). 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 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932

A.2d 74 (2007). A petitioner is not entitled to a PCRA hearing as a matter of

right; the PCRA court can decline to hold a hearing if there is no genuine issue

concerning any material fact, the petitioner is not entitled to PCRA relief, and

no purpose would be served by any further proceedings. Commonwealth v.

Hardcastle, 549 Pa. 450, 701 A.2d 541 (1997). “To obtain reversal of a

PCRA court’s decision to dismiss a petition without a hearing, an appellant

must show that he raised a genuine issue of fact which, if resolved in his favor,

would have entitled him to relief, or that the court otherwise abused its

discretion in denying a hearing.” Commonwealth v. Cousar, 638 Pa. 171,

188, 154 A.3d 287, 297 (2017).

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For purposes of disposition, we combine Appellant’s issues. Appellant

argues trial counsel failed to object to the Commonwealth’s introduction of

“prior bad acts” evidence concerning the February 14, 2014 incident between

Appellant and Victim. Appellant asserts trial counsel’s failure to object

eliminated the court’s obligation to conduct a balancing test to decide whether

the probative value of the evidence outweighed its prejudicial effect.

Appellant contends that whether the evidence was admissible for an

appropriate reason (i.e., to demonstrate motive or intent) creates a question

of material fact that must be examined at a PCRA hearing. Appellant claims

trial counsel also failed to cross-examine Victim about the parties’ ongoing

custody litigation or Victim’s prior failed attempt to obtain a PFA order against

Appellant at the outset of their divorce litigation. Had trial counsel explored

these issues, Appellant avers the jury would have seen that Victim had a

motive to fabricate her testimony. Appellant insists his claims call into

question trial counsel’s strategy, which required the PCRA court to hold an

evidentiary hearing. Appellant concludes he raised colorable claims of trial

counsel’s ineffectiveness, and this Court must remand for an evidentiary

hearing. We disagree.

The law presumes counsel has rendered effective assistance.

Commonwealth v. Gonzalez, 858 A.2d 1219, 1222 (Pa.Super. 2004),

appeal denied, 582 Pa. 695, 871 A.2d 189 (2005). To prevail on a claim of

ineffective assistance of counsel, a petitioner must show, by a preponderance

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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.

Commonwealth v. Turetsky, 925 A.2d 876 (Pa.Super. 2007), appeal

denied, 596 Pa. 707, 940 A.2d 365 (2007). The petitioner must demonstrate:

(1) the underlying claim has arguable merit; (2) counsel lacked a reasonable

strategic basis for 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. Id. at 880. “The petitioner bears the

burden of proving all three prongs of the test.” Id. Importantly, “PCRA

hearings are not discovery expeditions, but are conducted when necessary to

offer the petitioner an opportunity to prove his explicit assertion of

ineffectiveness raising a colorable claim about which there remains an issue

of material fact.” Cousar, supra at 192, 154 A.3d at 299. Thus, “if the record

reflects that the underlying issue is of no arguable merit or no prejudice

resulted, no evidentiary hearing is required.” Commonwealth v.

Bauhammers, 625 Pa. 354, 385, 92 A.3d 708, 726-27 (2014).

Pennsylvania Rule of Evidence 404(b) provides as follows:

Rule 404. Character Evidence; Crimes or Other Acts

* * *

(b) Crimes, Wrongs or Other Acts.

(1) Prohibited Uses. Evidence of a crime, wrong, or other
act is not admissible to prove a person’s character in order

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to show that on a particular occasion the person acted in
accordance with the character.

(2) Permitted Uses. This evidence may be admissible for
another purpose, such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident. In a criminal case this evidence
is admissible only if the probative value of the evidence
outweighs its potential for unfair prejudice.

* * *

Pa.R.E. 404(b)(1)-(2). In other words, evidence of other crimes or bad acts

is admissible if offered for a non-propensity purpose, such as proof of an

actor’s knowledge, plan, motive, identity, or absence of mistake or accident.

Commonwealth v. Chmiel, 585 Pa. 547, 889 A.2d 501 (2005), cert. denied,

549 U.S. 848, 127 S.Ct. 101, 166 L.Ed.2d 82 (2006). Additionally, “our courts

will allow evidence of prior bad acts where the distinct crime or bad act was

part of a chain or sequence of events which formed the history of the case

and was part of its natural development.” Commonwealth v. Drumheller,

570 Pa. 117, 137, 808 A.2d 893, 905 (2002), cert. denied, 539 U.S. 919, 123

S.Ct. 2284, 156 L.Ed.2d 137 (2003) (holding admission of victim’s prior PFA

petitions against appellant was proper to demonstrate continual and

escalating nature of appellant’s abuse of victim).

When offered for a legitimate purpose, evidence of prior crimes or bad

acts is admissible if its probative value outweighs its potential for unfair

prejudice. Commonwealth v. Hairston, 624 Pa. 143, 84 A.3d 657 (2014),

cert. denied, ___ U.S. ___, 135 S.Ct. 164, 190 L.Ed.2d 118 (2014). “‘[U]nfair

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prejudice’ means a tendency to suggest decision on an improper basis or to

divert the jury’s attention away from its duty of weighing the evidence

impartially.” Id. at 159, 84 A.3d at 666 (quoting Pa.R.E. 403, Comment).

Evidence will not be prohibited merely because it is harmful
to the defendant. This Court has stated that it is not
required to sanitize the trial to eliminate all unpleasant facts
from the jury’s consideration where those facts are relevant
to the issues at hand and form part of the history and
natural development of the events and offenses for which
the defendant is charged. Moreover, we have upheld the
admission of other crimes evidence, when relevant, even
where the details of the other crime were extremely
grotesque and highly prejudicial.

Commonwealth v. Tyson, 119 A.3d 353, 360 (Pa.Super. 2015) (en banc)

(internal citation omitted). “Additionally, when examining the potential for

undue prejudice, a cautionary jury instruction may ameliorate the prejudicial

effect of the proffered evidence. … Jurors are presumed to follow the trial

court’s instructions.” Hairston, supra at 160, 84 A.3d at 666.

Instantly, the PCRA court addressed Appellant’s claims as follows:

Here, Appellant asserts he should be granted relief due to
ineffective assistance of counsel. This [c]ourt has declined
to hold an evidentiary hearing because the [c]ourt could
determine from Appellant’s Second Amended Petition for
Relief that Appellant has failed to overcome the presumption
that counsel is effective and could not meet the three prong
test.

* * *

… Appellant asserts that his trial counsel was ineffective
because she allowed prior bad acts to be admitted without
requesting to limit the amount of evidence presented and
failed to request a jury limiting instruction. From the record,
this [c]ourt determined that this claim is without merit and

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Appellant did not suffer actual prejudice as a result of
counsel’s performance since the result would not have been
different.

During the pre-trial portion of this case, the Commonwealth
submitted Motions in Limine for the admission of Appellant’s
prior bad acts. The Commonwealth argued that while prior
bad acts are generally not admissible they may be admitted
to prove motive, intent, plan, preparation, and knowledge.
It was [the Commonwealth’s] argument that the February
14, 2014 allegations were admissible at trial to demonstrate
intent:

[I]t shows that [V]ictim went to extensive lengths
within the law to try to keep [Appellant] from having
any further contact with her and that the sexual
encounter on March 18, 2014, could not in any way
be considered consensual sex. This testimony shows
evidence of [Appellant’s] intent and knowledge, i.e.,
that [Appellant] did not intend to engage in
consensual sex with [V]ictim on March 18, 2014. The
testimony about the prior incident and the PFA also
show [Appellant’s] motive and intent to break into
[V]ictim’s home to surreptitiously gain access to her
as he was not permitted to have any legal contact with
her. Commonwealth’s Motion in Limine to Admit Prior
Bad Acts 7/18/2014.

Appellant is correct in stating that trial counsel did not object
to [the Commonwealth’s] motion in limine. However, trial
counsel’s lack of objection does not rise to ineffective
counsel because these prior bad acts were admissible to
show intent.

Appellant does not plead or offer any legal authority that
would have precluded the prior bad acts that were
introduced at trial. In addition, he fails to plead or identify
in what way the prior bad acts should have been limited.
Essentially, Appellant has set forth a bald claim and fails to
provide any argument to support the merit to his claim.

Furthermore, the prior bad acts introduced from February
14, 2014 were admissible under Pennsylvania law [to show

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the chain or sequence of events that formed the history of
the case].

… While trial counsel may not have asked for the limiting
instruction at the pretrial motion, she did request it during
the course of trial. This [c]ourt instructed the jury to
consider the February 14, 2014 [incident] in a limited
manner:

You’ve also heard evidence presented by the
Commonwealth alleging that [Appellant] assaulted
[Victim] on February 14, 2014, leading to the filing of
criminal charges and the entry of protection from
abuse order in Montgomery County. The evidence of
the February 14, 2014, incident is before you for a
very limited purpose; that is, for the purpose of
rebutting the defense contention that the sexual acts
occurring on March 18th were consensual.

This evidence must not be considered by you in any
way other than for this purpose. You must not
consider this evidence as showing that [Appellant] is
a person of bad character, or of criminal tendencies
from which you might be inclined to infer guilt. Its
sole purpose for your consideration is the
Commonwealth’s contention that it rebuts the
defense’s claim of consent. (N.T. Jury Trial, 11/13/14,
pp 156-57).

These instructions further support the fact that Appellant’s
ineffective counsel claim is meritless. Even if Appellant’s
claim [had arguable merit], he would fail to satisfy the third
prong of the test that the result would have been different.

It is clear that trial counsel did ask for a limiting instruction
regarding the prior bad acts from February 14, 2014, and
that the jury was instructed by this [c]ourt to use those acts
for a very limited purpose. With these limiting instructions,
Appellant was still found guilty. Therefore, Appellant cannot
prove that counsel’s action or inaction resulted in a
prejudicial outcome. Appellant’s failure to satisfy prongs
one and three of the ineffective assistance test results in his
claim being dismissed.

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* * *

Appellant [also] asserts [that] trial counsel was ineffective
when she failed to admit evidence of the custody litigation
between [V]ictim and Appellant. It is Appellant’s belief that
the custody litigation serves as an explanation as to why
[V]ictim would fabricate criminal allegations against
Appellant. …

While trial counsel may not have introduced the history of
the divorce and custody proceedings, the jury heard this
evidence during direct examination of [V]ictim. In addition,
on direct examination trial counsel fully explored Appellant’s
versions of the February 14 and March 18, 2014 incidents.

During Appellant’s testimony, trial counsel elicited from
Appellant details regarding their marriage and the roller
coaster of intimacy and jealousy. Furthermore, it was
elicited from Appellant that he believed [V]ictim fabricated
the February 14 and March 18, 2014 incidents to keep him
from his daughter. However, Appellant contradicted his own
theory by stating [V]ictim did not deny his access to his
daughter, and he was permitted to visit their child. The
evidence elicited at trial would discredit or negate any
impeachment that could have been derived from the
custody litigation. As such, Appellant’s claim for ineffective
counsel is meritless.

Appellant also argues that counsel should have offered into
evidence that [V]ictim had been denied a prior PFA request
from Montgomery County Court prior to the March 18, 2014
[incident]. The only evidence of the prior PFA request is the
docket entry Appellant attached. The docket shows that
[Victim] filed for a PFA on December 19, 2013. On that
same day, the temporary order was denied and the PFA
praecipe to withdraw was submitted. Appellant pleads no
other facts besides “the victim had filed for Protection from
Abuse on December 19, 2013…but that request for
protection was denied.” It is Appellant’s contention that trial
counsel should have introduced evidence of the withdrawn
PFA as an explanation for why [V]ictim would fabricate
criminal allegations.

This [c]ourt sees no merit in Appellant’s argument. In

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addition, even if this argument had [arguable] merit,
Appellant could not satisfy the third prong prejudice
requirement of the ineffective assistance of counsel test.
There is not a reasonable probability that the result would
have been different if trial counsel had elicited that [V]ictim
had withdrawn her December PFA petition. The jury was
able to hear from both [V]ictim and Appellant. They were
made aware of both sides of the story regarding the
February and March allegations. In addition, Appellant
conveyed quite strongly that [V]ictim was jealous of his
current girlfriend he was living with and did not want
“females” around their daughter.

If the jury was to believe that [V]ictim had fabricated the
criminal allegations, there was sufficient testimony for the
jury to do so. They jury chose to find [V]ictim more credible
[than] Appellant and there is [no] reasonable probability
that [the jury’s] decision would have been impacted by
additional testimony regarding the withdrawn PFA petition.

Appellant has failed to meet his burden to overcome the
presumption that trial counsel was ineffective. For this
specific claim, he has failed to demonstrate there is
[arguable] merit. In addition, even if this [c]ourt believes
the claim had merit, Appellant has failed to satisfy prong
three of the test. Based on the PCRA petition and the
exhibits, there is not a reasonable probability that trial
counsel’s decision to omit the PFA impacted the result of the
trial. As such, Appellant has not been prejudiced.

(PCRA Court Opinion at 11-16) (some internal citations omitted). The record

supports the court’s analysis. See Ford, supra. Appellant’s ineffectiveness

claims lacked arguable merit and prejudice, so the PCRA court properly

declined to hold an evidentiary hearing. See Cousar, supra; Bauhammers,

supra. Accordingly, we affirm.

Order affirmed.

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J-S10040-19

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/9/19

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