J-S47033-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JAMES CUBBINS, :
:
Appellant : No. 96 WDA 2018
Appeal from the PCRA Order December 15, 2017
in the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0003993-2013
BEFORE: OLSON, J., MCLAUGHLIN, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED APRIL 15, 2019
James Cubbins (Appellant) appeals from the order entered on December
15, 2017, which denied his petition filed pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
On March 28, 2014, a jury convicted Appellant of rape by forcible
compulsion, unlawful contact with a minor, and corruption of minors. A prior
panel of this Court set forth the relevant underlying facts as follows.
The victim, [J.B.], testified that she had known
[Appellant] since July 2010, as he was a contractor
who worked with her father[, S.B.]. In 2012, while
she was fifteen years old, due to family
circumstances, [the victim] was residing with her
father and [Appellant] in an apartment. [The victim]
stated that one day in July, after she returned home
from her summer job, she was watching TV in her
room when [Appellant] entered the room. She stated
that he was “drunk as usual,” sat down on her bed,
and asked her if she wanted to have sex. She
declined. [The victim] testified that he got on top of
*Retired Senior Judge assigned to the Superior Court.
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her, forced her legs open, took off her pants and
underwear and raped her. She disclosed the rape to
her boyfriend, on February 13, 2013, at a point when
[Appellant] was not residing in the apartment, and
he[r boyfriend] encouraged her to tell her father what
had happened. She told her father the following day,
and he promptly took her to the police….
Trial Court Opinion, 1/26/[20]15, at 3 (citations omitted).
[Appellant] was arrested and charged with the above-
mentioned crimes. The case proceeded to a jury trial in March
2014. The jury found [Appellant] guilty of all of the crimes. The
trial court sentenced [Appellant] to ten to twenty years in prison
on the rape conviction, a consecutive probation term of three
years on the unlawful contact with a minor conviction, and no
further penalty for the corruption of minors conviction.
[Appellant] was also required to register as a sexual offender for
life.
Commonwealth v. Cubbins, 133 A.3d 82 (Pa. Super. 2015) (unpublished
memorandum at 1-2) (some brackets omitted). Appellant filed a direct appeal
to this Court. On September 29, 2015, we affirmed Appellant’s judgment of
sentence, and on June 1, 2016, our Supreme Court denied his petition for
allowance of appeal. Id., appeal denied, 140 A.3d 11 (Pa. 2016).
On October 6, 2016, Appellant timely filed a pro se PCRA petition, and
the PCRA court appointed counsel on October 13, 2016. On December 16,
2016, Appellant filed an amended PCRA petition, and after obtaining leave of
court, filed a second amended petition on April 28, 2017. In that petition,
Appellant claimed trial counsel rendered ineffective assistance by failing to call
any alibi and character witnesses to testify on Appellant’s behalf at trial, and
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also claimed that he was serving an illegal sentence pursuant to Alleyne v.
United States, 570 U.S. 99, 102 (2013) (holding that “[a]ny fact that, by
law, increases the penalty for a crime is an ‘element’ that must be submitted
to the jury and found beyond a reasonable doubt”). Attached to the second
amended petition were affidavits from Rhonda Rowland, Appellant’s aunt; Lisa
Davis, Appellant’s sister; Robert Davis, Appellant’s brother-in-law; and David
Manna and Raymond Gorby, Appellant’s friends, all of whom claimed they had
been willing and available to testify regarding Appellant’s whereabouts on
certain dates in July 2012 or his reputation in the community for being chaste.
On September 22, 2017, the PCRA court held a hearing. At the hearing,
six witnesses testified: Appellant, Rowland, Lisa, Manna, Gorby, and Erin
Melegari, a paralegal who had worked with Appellant’s trial counsel.1
Following briefing by the parties, on December 15, 2017, the PCRA court
determined that Appellant’s ineffective assistance of counsel claims did not
entitle him to relief, but agreed that his Alleyne claim required a resentencing
hearing. Order, 12/15/2017.
On January 10, 2018, Appellant timely filed an appeal to this Court. The
PCRA court directed Appellant to file a concise statement of errors pursuant
to Pa.R.A.P. 1925(b), and Appellant complied on February 5, 2018. Therein,
1Appellant’s trial counsel died prior to the PCRA hearing. N.T., 9/22/2017, at
89.
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Appellant raised challenges relating to the first two ineffective assistance of
counsel issues in his second amended PCRA petition, but not the resentencing
issue. Meanwhile, the lower court scheduled a resentencing hearing on March
1, 2018. At that hearing, the trial court declined to resentence Appellant due
to his pending appeal. Shortly thereafter, the trial court issued an order,
which requested that this Court remand this case to allow the trial court to
resentence Appellant; Appellant filed an emergency motion for stay of his
appeal, citing the same reason as the trial court. On August 2, 2018, we
denied the motion. See Commonwealth v. Grove, 170 A.3d 1127, 1138
(Pa. Super. 2017) (holding that “the PCRA court’s order granting relief with
regard to sentencing and denying all other claims … was a final appealable
order”). Thereafter, we directed the PCRA court to file a Rule 1925(a) opinion
and the parties to file new briefs. The PCRA court and the parties so complied.
On appeal, Appellant presents two claims for our review. On review of
orders denying PCRA relief, our standard is to determine whether the PCRA
court’s ruling is free of legal error and supported by the record.
Commonwealth v. Orlando, 156 A.3d 1274, 1280 (Pa. Super. 2017)
(citation omitted). “A PCRA court’s credibility findings are to be accorded great
deference, and where supported by the record, such determinations are
binding on a reviewing court.” Id. (citation omitted).
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To prevail on a petition for PCRA relief, a petitioner must plead and
prove, by a preponderance of the evidence, that his conviction or sentence
resulted from one or more of the circumstances enumerated in 42 Pa.C.S.
§ 9543(a)(2). These circumstances include ineffectiveness of counsel, which
“so undermined the truth-determining process that no reliable adjudication of
guilt or innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii).
Because Appellant’s claims assert ineffectiveness of trial counsel, we
bear in mind the following. We presume counsel is effective.
Commonwealth v. Washington, 927 A.2d 586, 594 (Pa. 2007). To
overcome this presumption and establish the ineffective assistance of counsel,
a PCRA petitioner must prove, by a preponderance of the evidence: “(1) the
underlying legal issue has arguable merit; (2) that counsel’s actions lacked an
objective reasonable basis; and (3) actual prejudice befell the [appellant] from
counsel’s act or omission.” Commonwealth v. Johnson, 966 A.2d 523, 533
(Pa. 2009) (citations omitted). “[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.”
Id. A claim will be denied if the petitioner fails to meet any one of these
requirements. Commonwealth v. Springer, 961 A.2d 1262, 1267 (Pa.
Super. 2008).
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Appellant first contends that trial counsel was ineffective in failing to
present alibi and character witnesses. Appellant’s Brief at 3. Specifically,
Appellant claims that trial counsel had information relating to Appellant’s
whereabouts on certain dates in July 2012, from Rowland, Lisa, Manna, and
Gorby, but failed to investigate that information or prepare any of them to
testify at trial regarding Appellant’s location or his reputation in the community
for being chaste and appropriate around children. Id. at 7, 10-18. Appellant
further claims that trial counsel was ineffective for failing to file a notice of
intent to offer an alibi defense pursuant to Pa.R.Crim.P. 567. Id. at 14-15.
In cases involving the failure to call a potential witness, a petitioner
satisfies the underlying-merit and prejudice prong
by establishing 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. 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. Matias, 63 A.3d 807, 810-11 (Pa. Super. 2013) (en
banc) (internal quotation marks and citations omitted). Furthermore, while it
is unfortunate that trial counsel died prior to the PCRA hearing, it does not
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relieve Appellant of his burden to prove trial counsel was ineffective.
Commonwealth v. Simpson, 112 A.3d 1194, 1197 (Pa. 2015) (stating that
where “trial counsel is deceased, and, thus, unavailable to testify, the
petitioner’s burden of establishing a claim of ineffective assistance of counsel
is not lessened or reduced”) (citation omitted).
In considering Appellant’s claim of ineffective assistance of counsel for
failing to call witnesses, the PCRA court found the following.
At trial, counsel did not present a defense based on alibi but
instead argued that the victim falsely accused Appellant in
response to Appellant[‘s] threatening to evict her and her father
from Appellant’s residence. It is clear that trial counsel
investigated an alibi defense but chose not to pursue it. He
obtained the victim’s work schedule for the summer of 2012[,]
and wrote notes on it indicating Appellant’s location on various
days. At the preliminary hearing, the victim testified that the
incident probably occurred in summer 2012, and on cross-
examination by Appellant’s counsel at that time (Ronald
Hayward),2 the victim narrowed her testimony to July.3 Based on
the victim’s preliminary hearing testimony that the incident
occurred after she left work around 7:00 p.m., [trial] counsel was
able to focus on five days in July when she left work around 7:00
p.m.[: July 5, 13, 16, 24 and 30]. He then consulted with his
paralegal regarding alibi witnesses for those five days. [N.T.,
9/22/2017, at 64-66.]
_______________
2 Appellant’s counsel during the preliminary hearing
was not trial counsel, and counsel at the preliminary
hearing is not the subject of an ineffectiveness claim.
3 Hayward asked the victim if she remembered telling
the police that the incident happened in July and the
witness stated that she did. She then stated again
that the incident happened in July 2012.
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One may reasonably conclude that as an experienced
attorney[, trial counsel] chose not to pursue an alibi defense, at
least in part, due to the difficulty in obtaining competent and
persuasive testimony regarding Appellant’s location during the
relevant time period nearly two years earlier.4 If cross-examined
at trial on [the victim’s] work schedule, a diligent and prepared
attorney could reasonably anticipate that the victim might correct
her testimony to indicate that the incident may have occurred in
June or August instead, especially given her initial reluctance to
state with specificity a month in the summer of 2012 when this
incident occurred.
_______________
4 The incident in question occurred in the summer of
2012 and the trial began on March 26, 2014.
Furthermore, trial counsel may have considered the alibi
witnesses and deemed them not to be credible. For example,
[Rowland] testified at the PCRA hearing that Appellant remodeled
her bathroom for five days that July, yet Appellant testified at the
PCRA hearing it was a three-day job. [N.T., 9/22/2017, at 40,
140.] Additionally, the victim’s work timesheet did not correspond
to any of the dates Appellant claimed to have been at Rowland’s
residence (the 5th, 13th or 16th of July 2012).[2] [N.T.,
9/22/2017, at 75.] In fact, the handwritten notes on the
timesheet written at a time closer to the underlying incident
indicate Appellant was at two different locations on July 13, 2012
and July 16, 2012, when he was supposedly working on Rowland’s
bathroom. Likewise, witness Lisa Davis, Appellant’s sister,
testified at the PCRA hearing that she had a two-day business trip
into Pittsburgh in July 2012, but the handwritten notes from alibi
witnesses on the victim’s timesheet indicate the trip was for four
2
To the extent Appellant argues that the PCRA court erred in so stating, see
Appellant’s Brief at 11-12, we observe that the handwritten notes on the
victim’s timesheet contain no indication that Appellant worked at Rowland’s
home on any date. In fact, the timesheet notes indicate that on July 13,
Appellant worked until 6:30 p.m. in Oakwood Heights, and on July 16, he
worked until 6:00 p.m. in Fox Chapel with the victim’s brother. Id. at App.
H. Rowland lives about 1½ hours away in Strothers, Ohio, and did not live in
Oakwood Heights or Fox Chapel. N.T., 9/22/2017, at 137-38; see also
Second Amended PCRA Petition, 4/28/2017, at Exh. B.
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days. [N.T., 9/22/2017, at 81, 116, Exh. A.] Even with the
benefit of hindsight, and the trial transcript, the alibi[-]witness
testimony proffered at the PCRA hearing was inconsistent and not
supported by corroborating evidence and it did not cover each of
the July dates when the victim worked until 7:00.
Furthermore, the strength of alibi testimony provided by a
sister and an aunt is another factor counsel would have considered
in making his decision. “[T]he credibility of [a] witness would be
seriously questioned by a jury due to the nature of the relationship
between appellant and the witness.” Commonwealth v.
Hoffman, 589 A.2d 737, 746 (Pa. Super. 1991). The Hoffman
court noted, “Defense counsel’s decision not to call witnesses
cannot be faulted when their testimony could be easily
subverted.” Id. Given the number of days for which Appellant
would need to account, and the apparent differences between the
trial attorney’s handwritten notes of alibi testimony and the PCRA
testimony, the decision not to call alibi witnesses was not an
unreasonable one. It is clear that trial counsel did investigate,
obtain timesheets and interview witnesses before deciding not to
pursue an alibi defense.
PCRA Court Opinion, 9/21/2018, at 4-6 (unnecessary capitalization omitted;
some paragraph breaks supplied).
We agree with the sound reasoning of the PCRA court. As the PCRA
court found and as is supported in the record, trial counsel’s strategy was to
argue that the victim falsely accused Appellant because Appellant had
threatened to evict her and her father from Appellant's home. Id. at 4; N.T.,
3/26-28/2014, at 52-54 (trial counsel’s stating repeatedly during opening
statement that the victim falsely accused Appellant), 165 (trial counsel’s
eliciting testimony from the victim that she and her father had nowhere else
to live and could not afford another place), 166-68 (trial counsel’s questioning
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the victim about the timing of her rape accusation with respect to her knowing
she was going to be evicted on February 15, and her reporting the incident on
February 14), 304-07 (trial counsel’s examining the victim’s father about
eviction from Appellant’s residence), 357 (trial counsel’s examining a
detective about whether the victim had reported to him the victim’s possible
eviction), 420 (trial counsel’s questioning Appellant’s sister regarding her
telling the victim and the victim’s father they had to move out of Appellant’s
residence), 484-85 (trial counsel’s arguing during closing argument that the
victim lied about being raped by Appellant because she was afraid of being
evicted).
Trial counsel’s decision to pursue this theory of the case, instead of an
alibi defense, was reasonable, particularly where the exact date of the incident
was unknown. The record shows that trial counsel did investigate alibi
witnesses and Appellant’s whereabouts, but the witnesses could not establish
conclusively an alibi for all potential dates. Because of time gaps and witness
inconsistencies, it was reasonable for trial counsel not to call any alibi
witnesses. See Commonwealth v. Early, 546 A2d 1236, 1238 (Pa. Super.
1988) (stating “failure to call an alibi witness is not ineffective assistance of
counsel where it is not determined that the witness is able to say unequivocally
that the alleged perpetrator was with the witness at the precise time of the
crime”). Accordingly, Appellant fails to prove the second prong of the test.
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See Johnson, 966 A.2d at 533; see also Commonwealth v. Thomas, 44
A.3d 12, 22 (Pa. 2012) (“Generally, where matters of strategy and tactics are
concerned, counsel’s assistance is deemed constitutionally effective if he
chose a particular course that had some reasonable basis designed to
effectuate his client’s interests.”) (citations and internal quotation marks
omitted).
Appellant further claims that trial counsel was ineffective for failing to
call character witnesses regarding his reputation in the community for being
chaste and acting appropriately around children. Appellant’s Brief at 16-18.
Appellant admitted at the PCRA hearing that he had discussed with trial
counsel the strategic decision not to call character witnesses, and that trial
counsel had cautioned him that if he did so, evidence of Appellant’s prior
criminal activity may have been introduced at trial. N.T., 9/22/2017, at 52.
In addition, Gorby was unable to testify at the PCRA hearing as to Appellant’s
reputation for chastity in the community. Id. at 17. Lisa was also questioned,
but her assessment of Appellant’s reputation in the community of Pittsburgh
was limited because she lives in Indianapolis. See id. at 82, 110-13, 121-25.
In considering this issue, the PCRA court determined that
trial counsel’s failure to call character witnesses was not error.
Pa.R.E. 404(a)(2)(A) states, “[A] defendant may offer evidence of
the defendant’s pertinent trait, and if the evidence is admitted,
the prosecutor may offer evidence to rebut it.” Pa.R.E. 404
(a)(2)(A). The official comments to the rule notes that:
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In a sexual abuse case, the defendant’s reputation for
chastity in the community is relevant and admissible.
However, ‘testimony to [defendant’s] specific acts in
behaving appropriately around children in their family
is not proper character evidence as to his general
reputation for chastity in the community[.]’
Commonwealth v. Johnson, 27 A.3d 244, 249-250
(Pa. Super. 2011).
Pa.R.E. 404 (a)(2)(A), Comment.
… Davis was the only witness who testified at the PCRA hearing
regarding Appellant’s reputation in the community for chastity.
Davis testified that she lives out of state and only visits
occasionally, which would make it difficult for her to assess
Appellant’s reputation in the community of Pittsburgh. [The PCRA
court] found that Davis, Appellant’s sister who resides out of state,
would not be able to provide relevant character witness testimony,
and as a result, trial counsel was not ineffective for failing to call
her at trial. Davis’ testimony would more properly be deemed
opinion, and not character testimony. “Pennsylvania law
generally limits proof of character evidence to a person’s
reputation, and opinion evidence cannot be used to prove
character.” Commonwealth v. Reyes-Rodriguez, 111 A.3d
775, 781 (Pa. Super. 2015) (en banc) (citing Pa.R.E. 405(a)).
PCRA Court Opinion, 9/21/2018, at 6-7 (footnote and citation to the record
omitted).
With respect to the PCRA court’s conclusion regarding Lisa’s testimony,
we discern no error or abuse of discretion. In addition, we point out that the
trial court and trial counsel conducted an extensive colloquy with Appellant at
trial regarding his decision not to testify or call character witnesses, and that
Appellant responded several times that he did not want to call any character
witnesses. N.T., 3/26-28/2014, at 390-401; see also N.T., 9/22/2017, at
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47, 51. Appellant knew trial counsel had character witnesses present at trial
that day, ready and willing to testify, but Appellant confirmed that he did not
want to call them. Appellant further stated that he understood he could risk
opening the door to his prior criminal convictions if he decided to call character
witnesses. Id. at 396-400. Thus, based on Appellant’s representations at
trial, Appellant’s contention that trial counsel was ineffective for not calling
character witnesses lacks arguable merit and his ineffectiveness claim fails.
See Commonwealth v. Pander, 100 A.3d 626, 642 (Pa. Super. 2014)
(concluding claim that counsel was ineffective in failing to call alibi witnesses
lacked arguable merit where the trial court conducted a colloquy of Pander
regarding whether he agreed with the decision not to proffer those witnesses),
citing Commonwealth v. Rios, 920 A.2d 790 (Pa. 2007) and
Commonwealth v. Paddy, 800 A.2d 294 (Pa. 2002). See also Johnson,
966 A.2d at 533.
Appellant next claims that the PCRA court erred in denying his claim of
ineffective assistance of counsel based on trial counsel’s cumulative errors.
Appellant’s Brief at 3. He argues that, in addition to trial counsel’s failing to
call witnesses, trial counsel’s “antics” at trial amounted to ineffective
assistance. Id. at 22. Specifically, Appellant alleges trial counsel
gave a rambling and nonsensical opening, repeatedly asserted
inappropriate objections, feigned ‘difficulty’ hearing, constantly
interrupted the proceedings, aggressively dealt with witnesses as
well as the Commonwealth and [t]rial [c]ourt, failed to explore or
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appropriately file any relevant motions, failed to adequately
prepare for the incarceration issue on cross examination[,] and
gave an equally rambling and nonsensical closing.
Id.
We observe that
[i]t is well-settled that no number of failed ineffectiveness claims
may collectively warrant relief if they fail to do so individually.
Accordingly, where ineffectiveness claims are rejected for lack of
arguable merit, there is no basis for an accumulation claim. 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. Smith, 181 A.3d 1168, 1187 (Pa. Super. 2018) (citations
and quotation marks omitted).
In addressing these claims of error, the PCRA court determined as
follows.
Appellant [] failed to establish that any objection or request
for mistrial lacked arguable merit or a reasonable basis.
Appellant’s allegation of error in trial counsel’s failure to seek a
curative instruction following testimony that Appellant was in jail
at one point could easily be defended as a reasonable trial strategy
of not wanting to emphasize unfavorable testimony. Each of the
allegations of error regarding trial counsel’s difficulty hearing, or
his related movements around the courtroom during testimony,
do[es] not have arguable merit. Ultimately, [the PCRA court]
observed no indication that counsel’s purported difficulty hearing
or his movements within the courtroom affected the trial or
prejudiced Appellant at all. Therefore, [the PCRA court] cannot
consider the third prong of prejudice in these examples and similar
instances of error alleged by Appellant. Appellant’s claim of
cumulative prejudice is without merit.
PCRA Court Opinion, 9/21/2018, at 8.
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After a thorough PCRA evidentiary hearing, at which Appellant presented
six witnesses and whose testimony spans 200 pages, the judge, who was the
same judge who presided at Appellant’s trial, reached the conclusion that
Appellant was not entitled to relief on his cumulative error claim. As discussed
supra, we rejected Appellant’s claim of ineffectiveness in failing to call
witnesses because trial counsel had a reasonable basis for doing so, not based
on a lack of prejudice to Appellant. Thus, there can be no aggregation of
prejudice with this claim. See Smith, 181 A.3d at 1187. In addition,
Appellant’s claim that trial counsel was ineffective in failing to file timely
motions in limine fails because the parties and the trial court reached an
agreement on the motions prior to the start of trial, and thus, trial counsel
withdrew them. See N.T., 3/26-28/2014, at 3-14.
Moreover, Appellant’s claim that trial counsel “failed to adequately
prepare for the incarceration issue on cross examination” also fails. See
Appellant’s Brief at 22. By way of background, prior to trial, the
Commonwealth sought to question the victim about her delayed report to
police and anticipated the victim would testify that she did not feel safe
reporting until after Appellant had been incarcerated on different charges.
See N.T., 3/26-28/2014, at 4-5. The parties and the trial court agreed that
Appellant’s incarceration at the time the victim reported the incident would
not be admissible at trial. Id. at 3-14. Subsequently, during trial counsel’s
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cross examination of the detective to whom the victim reported, the detective
referenced Appellant’s incarceration in response to trial counsel’s questioning
regarding the victim’s fear of Appellant and her delay in reporting the rape.3
Id. at 359-61. Before the detective could finish his answer, trial counsel
objected immediately and moved for a mistrial. Id. at 361. In his direct
appeal, Appellant claimed the trial court erred in not granting this motion for
mistrial. See Cubbins, supra. This Court disagreed, finding that because
Appellant’s trial counsel had elicited the detective’s testimony, Appellant
assumed the risk and could not benefit on appeal when the cross examination
had elicited an unwelcome response. Id.
Appellant now claims that trial counsel lacked “preparation to avoid
mention of the incarceration” and the “wherewithal to request cautionary
instruction, which was prejudicial to Appellant.” Appellant’s Brief at 25. Trial
counsel sought to raise an inference of reasonable doubt by challenging the
thoroughness of the detective’s investigation and timing of the victim’s report.
As discussed supra, trial counsel’s theory of the case was that the victim
falsely accused Appellant in retaliation for her and her father’s eviction from
the residence. As such, trial counsel had a reasonable basis for asking the
3
The detective stated, “Through my investigation, I had found that she was
afraid of him because they lived together. …Because of the fact that he was
no longer in the residence, because he was in Allegheny County Jail --,” at
which point trial counsel objected and moved for a mistrial. N.T., 3/26-
28/2014, at 361.
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detective why the victim reported she was afraid of Appellant. Thus, we
discern no basis upon which to conclude that had trial counsel prepared more,
he would not have elicited this testimony. However, it is apparent from the
record that trial counsel could have asked for a curative instruction, but failed
to do so. Although Appellant does not argue ineffective assistance of counsel
on this basis, even if he did, he would not be entitled to relief. The detective’s
reference to Appellant’s incarceration was very brief, it did not mention an
offense, trial counsel interrupted the witness’s answer, trial counsel instantly
objected and moved for a mistrial, and the trial court immediately held a
sidebar with the parties. We do not find that this brief, general reference was
“likely to cause a jury to be so incensed as to lose sight of the ultimate
question before” it. See Commonwealth v. Morris, 519 A.2d 374, 378 (Pa.
1986). Under these circumstances, we conclude that Appellant has not shown
that there is a reasonable probability that, but for counsel’s failure, the result
of the proceeding would have been different. See Johnson, 966 A.2d at 533.
Finally, we agree with the PCRA court’s finding that Appellant’s
remaining claims of error lack arguable merit. While Appellant may wish in
hindsight that his counsel had been more concise in his opening statement
and closing argument, had made fewer objections, had employed a less
aggressive style at trial, or had moved about the courtroom differently, none
of the matters of which he complains individually has arguable merit. As we
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have held, “no number of failed ineffectiveness claims may collectively
warrant relief if they fail to do so individually.” Thus, they cannot form the
basis of an accumulation claim. Smith, supra.
Based on the foregoing, we discern no error in the PCRA court’s decision
to deny Appellant relief on his ineffective assistance of counsel claims.
Accordingly, we affirm the PCRA court’s order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/15/2019
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Com. v. Cubbins, J.
Combined Opinion