J-S50042-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DANIELLE MARIE FALCON :
:
Appellant : No. 722 WDA 2019
Appeal from the Order Entered April 18, 2019
In the Court of Common Pleas of Westmoreland County Criminal Division
at No(s): CP-65-CR-0002450-2013
BEFORE: LAZARUS, J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED NOVEMBER 25, 2019
Appellant, Danielle Marie Falcon, appeals, pro se, from the order entered
April 18, 2019, dismissing her first petition filed under the Post Conviction
Relief Act (“PCRA”)1 without a hearing. We affirm.
On May 4, 2016, a jury convicted Appellant of one count of attempted
murder, two counts of aggravated assault, two counts of simple assault, and
one count of recklessly endangering another person2 related to a June 18,
2013 incident in which Appellant struck Kaitlin Ruby (“the victim”) with her
car. This Court previously summarized the factual background developed at
trial as follows:
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546.
2 18 Pa.C.S. §§ 901(a), 2702(a)(1) and (4), 2701(a)(1) and (2), and 2705,
respectively.
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On June 18, 2013, the victim had plans with Erick Adams
(hereinafter “Mr. Adams”) and their children. The victim stated
that when they returned to Mr. Adams’ house and saw Appellant
in the driveway, Mr. Adams drove the victim to the tanning salon
instead. The victim attempted to call Mr. Adams to pick her up
but when he didn’t answer, she decided to walk to his residence.
As the victim was turning on Buckeye Tram Road, she observed
Appellant drive past her and then complete a U-turn in the middle
of the road. At this point, Randy Gowton (hereinafter “Mr.
Gowton”) offered the victim a ride, and dropped her off in front of
Mr. Adams’ residence. The victim then observed Appellant’s
vehicle directly behind Mr. Gowton’s truck. The victim recalls
hearing Appellant gas her vehicle, and as the victim looked back,
she saw Appellant’s vehicle, coming towards her, and then striking
her. The victim remembers being under the vehicle and then lying
in the grass while attempting to move. As the victim watched
Appellant’s vehicle turn around, she remembers yelling “please
stop, don’t do this.” At this point, Appellant exited her vehicle,
and told the victim she was going to take her to the hospital.
Appellant attempted to pick up the victim and place her in the
vehicle. Mr. Gowton returned and stayed with the victim until the
ambulance arrived. The victim was then flown by Life Flight to a
hospital where she stayed for approximately one month. . . .
Mr. Gowton corroborated the victim’s testimony regarding the
incident on June 18, 2013. Mr. Gowton testified that he was
driving down Buckeye Tram Road, saw a woman whom he knew
to be associated with his neighbor, Mr. Adams, and offered her a
ride because it started to rain. The woman, later identified as the
victim, accepted the ride. While Mr. Gowton was driving the victim
to Mr. Adams’ house, he noticed a maroon SUV behind him. When
Mr. Gowton approached the residence, he pulled over so the SUV
could pass, but instead it stopped. After the victim exited the
vehicle and as Mr. Gowton was driving away, he looked in his
driver side vehicle and observed the vehicle driving through the
driveway and striking the victim. Mr. Gowton then parked his
vehicle, saw his neighbor Alex, and ordered him to call 911. When
Mr. Gowton approached the area of the incident, he observed
Appellant attempting to place the victim into her vehicle. Mr.
Gowton then pulled the victim out of the vehicle, laid her on the
ground, and stayed with her until the firemen and ambulance
arrived.
Mr. Adams testified that earlier on the same date, as he was
returning to his residence on Buckeye Tram Road with the victim
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and their two children, he saw Appellant at his house and
continued to drive past his house, and took the victim to Sun
Kissed Tanning, approximately one-mile from his residence. Mr.
Adams returned home where Appellant was waiting, and Appellant
collected her belongings that were still at the residence. When he
left with the children to pick up the victim, he was not able to find
the victim. Mr. Adams then returned home within minutes after
receiving a call from his neighbor about the incident at his
residence. When he returned home, he saw the victim lying on
the ground and Appellant’s vehicle in the yard. Emergency
personnel arrived shortly thereafter. . . .
Casandra Rowe (hereinafter “Ms. Rowe”) testified as to her
relationship with the victim prior to and at the time of the incident.
She stated that, around May and June of 2013, the victim lived
with Ms. Rowe. At that time, the victim did not have her own
cellular phone. However, Ms. Rowe did, in fact, possess a cellular
phone in which the victim’s Facebook account was added. Ms.
Rowe stated that she observed private messages on the victim’s
Facebook account from Appellant. Ms. Rowe admitted the she was
the one who responded to the Facebook messages from Appellant,
not the victim. Specifically, Ms. Rowe explained that the initial
message was sent from Appellant on June 15th and two days later,
Ms. Rowe sent her last text message at approximately 1:00 a.m.
on June 18, 2013. Appellant then sent the victim a message at
8:35 a.m. on June 18, 2013, the date of the incident, which
stated, “[y]ou look like a beatup China rag doll bitch I will ‘F’ you
up I dare you to step to me I F-in dare you bring it.”
Commonwealth v. Falcon, No. 1730 WDA 2016, unpublished memorandum
at 1-2 (Pa. Super. filed May 15, 2017) (quoting Trial Court Opinion, 12/20/16,
at 1-4) (footnotes and some internal brackets omitted).
On May 4, 2016, Appellant was convicted of the aforementioned
charges. On October 11, 2016, the trial court sentenced Appellant to 7½ to
15 years of imprisonment on the attempted murder charge with the remaining
charges merging with the attempted murder charge for the purpose of
sentencing. Appellant appealed, and this Court issued a decision affirming the
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judgment of sentence on May 15, 2017. Appellant did not file a petition for
allowance of appeal with our Supreme Court.
Appellant filed, pro se, the instant timely first PCRA petition on May 3,
2018. On May 9, 2018, the PCRA court entered an order appointing Amy
Keim, Esquire, as counsel for Appellant and directing Attorney Keim to file an
amended PCRA petition or a no-merit letter pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d
213 (Pa. Super. 1988) (en banc). On July 2, 2018, the PCRA court granted
Attorney Keim’s request to withdraw as counsel, appointed Matthew Schimizzi,
Esquire, as PCRA counsel for Appellant, and directed Attorney Schimizzi to file
an amended PCRA petition or a no-merit letter.
On January 16, 2019, Attorney Schimizzi filed a petition for leave to
withdraw as PCRA counsel and a no-merit letter. On February 25, 2019, the
PCRA court issued a notice of its intention to dismiss the PCRA petition without
further proceedings pursuant to Rule of Criminal Procedure 907(1) (“Rule 907
Notice”). On March 21, 2019, Appellant filed a response to the Rule 907 Notice
and an application seeking leave to amend her PCRA petition. The PCRA court
granted Appellant’s application, and Appellant filed, pro se, an amended PCRA
petition on April 12, 2019.
On April 18, 2019, the PCRA court entered an order dismissing
Appellant’s PCRA petition and amended PCRA petition. The court stated that
it had reviewed the amended petition and Appellant had failed to present any
additional issues that would entitle her to PCRA relief and therefore the
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amended PCRA petition was dismissed on the same grounds as stated in the
Rule 907 Notice. In addition, the court granted Attorney Schmizzi’s petition
to withdraw as Appellant’s counsel. Appellant filed, pro se, a timely appeal of
the April 18, 2019 order.3
In her appeal, Appellant argues that her trial counsel provided
ineffective assistance; though her arguments are not divided into separate
sections in her brief, we are able to identify nine alleged instances of
ineffective assistance.4 We review the denial of a PCRA petition to determine
____________________________________________
3 The PCRA court did not file an order directing Appellant to file a concise
statement of errors complained of on appeal, and instead on May 21, 2019,
filed a decree pursuant to Rule of Appellate Procedure 1925(a) stating that
the reasons for the decision to dismiss the original and amended PCRA
petitions appeared in the Rule 907 Notice.
4 The argument section of Appellant’s brief is presented in a free-flowing
format that is not divided into separate sections or even separate paragraphs
for each claim of ineffective assistance. See Appellant’s Brief at 11-14.
Additionally, the “Summary of Argument” portion of Appellant’s brief is an
interpretation of the facts of the case from her own point of view, with no
actual presentation of a summary of her arguments. See id. at 7-10;
Pa.R.A.P. 2118 (“The summary of argument shall be a concise, but accurate,
summary of the arguments presented in support of the issues in the statement
of questions involved.”). Despite these deficiencies in Appellant’s brief, we
nonetheless conclude that our review of this appeal is not impeded.
Appellant also asserts in her statement of questions presented that she is
challenging the effectiveness of her counsel in her direct appeal. See
Appellant’s Brief at 4 (“Whether the PCRA Court erred in failing to grant relief
based on Layered Ineffective Assistance of Counsel of Trial and Appellate
Counsels?”). However, Appellant did not present any argument regarding the
alleged ineffective assistance of appellate counsel and instead her arguments
solely relate to trial counsel. In any event, any claim by Appellant of
ineffective assistance of counsel on behalf of her appellate counsel would fail
because Appellant failed to establish that her trial counsel provided ineffective
representation. See Commonwealth v. Mason, 130 A.3d 601, 618-19 (Pa.
2015).
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whether the record supports the PCRA court’s findings and whether its decision
is free of legal error. Commonwealth v. Brown, 196 A.3d 130, 150 (Pa.
2018).
In assessing a claim of ineffective assistance under the PCRA, we begin
our analysis with the presumption that counsel has rendered effective
assistance. Commonwealth v. VanDivner, 178 A.3d 108, 114 (Pa. 2018).
To overcome that presumption, the convicted defendant must establish each
of the following three elements:
(1) the underlying claim has arguable merit; (2) no reasonable
basis existed for counsel’s action or failure to act; and (3) the
petitioner suffered prejudice as a result of counsel’s error, with
prejudice measured by whether there is a reasonable probability
that the result of the proceeding would have been different.
Id. “Arguable merit exists when the factual statements are accurate and could
establish cause for relief. Whether the facts rise to the level of arguable merit
is a legal determination.” Commonwealth v. Urwin, ___ A.3d ___, 2019
PA Super 276, *8 (filed September 10, 2019) (citation omitted).
With regard to the second, reasonable basis prong, we do not
question whether there were other more logical courses of action
which counsel could have pursued; rather, we must examine
whether counsel’s decisions had any reasonable basis. We will
conclude that counsel’s chosen strategy lacked a reasonable basis
only if Appellant proves that an alternative not chosen offered a
potential for success substantially greater than the course actually
pursued. To establish the third, prejudice prong, the petitioner
must show that there is a reasonable probability that the outcome
of the proceedings would have been different but for counsel’s
ineffectiveness. We stress that boilerplate allegations and bald
assertions of no reasonable basis and/or ensuing prejudice cannot
satisfy a petitioner’s burden to prove that counsel was ineffective.
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Commonwealth v. Chmiel, 30 A.3d 1111, 1127-28 (Pa. 2011) (internal
citations and quotation marks omitted).
In her first issue, Appellant argues that trial counsel was ineffective for
failing to investigate or present evidence related to her mental health history
of post-traumatic stress disorder (PTSD) and anxiety disorder. A review of
the record reflects that a mental health evaluation was prepared on December
29, 2014 in advance of trial; following her conviction, the counsel that
Appellant retained for the sentencing and appeal was given leave to conduct
a second mental health evaluation, which was completed on September 20,
2016 and submitted to the trial court for sentencing. N.T., 10/11/16, at 3.
PCRA counsel reviewed these mental health records, as well as a subsequent
Department of Corrections psychological evaluation, and determined that,
though there was evidence of childhood abuse, no diagnosis of PTSD was
made. No-Merit Letter at 3-4; see also N.T., 10/11/16, at 8-9.
To the extent Appellant asserts that trial counsel was ineffective for
failing to investigate whether she suffered from PTSD, this claim lacks
arguable merit because a mental health evaluation was performed in advance
of trial. PCRA counsel’s investigation did not reveal that Appellant had been
diagnosed with PTSD, and no other evidence of record establishes that
Appellant received a PTSD diagnosis. As to the issue of whether trial counsel
was ineffective for not introducing evidence related to Appellant’s mental
health at trial, Appellant has not demonstrated that trial counsel lacked a
reasonable basis for not introducing such evidence. Trial counsel’s theory of
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the case was that Appellant did not intentionally strike the victim with her
vehicle, but that the impact was an accident as Appellant was pulling into
Adams’ driveway. See, e.g., N.T, 5/3/16, at 51, 54; N.T., 5/4/16, at 234-37.
Evidence related to Appellant’s mental state was not consistent with this
strategy. Appellant has not demonstrated that a strategy in which she would
concede that her collision with the victim was volitional but should be excused
based upon her history of abuse or mental health issues offered a potential
for success substantially greater than the strategy actually pursued.5 Chmiel,
30 A.3d at 1127. Finally, we note that Appellant’s pre- and post-trial
psychological evaluations were in fact considered by the trial court as
mitigating evidence when it issued Appellant’s sentence. N.T., 10/11/16, at
8.
Next, Appellant claims that trial counsel was ineffective because he did
not call any witnesses to testify regarding her character, her mental health
history, and “ongoing issues” with the victim. Appellant’s Brief at 12. Trial
counsel’s failure to call a particular witness does not constitute per se
ineffectiveness. Commonwealth v. Cox, 983 A.2d 666, 693 (Pa. 2009). In
order to establish that trial counsel was ineffective for failing to call a witness
at trial, the PCRA petitioner must demonstrate that:
____________________________________________
5In addition, we further note that the defense of diminished capacity based
upon mental defect would not have been available to Appellant unless she had
admitted criminal liability and only sought to contest the degree of culpability
based upon an inability to formulate the specific intent to kill.
Commonwealth v. Hutchinson, 25 A.3d 277, 312 (Pa. 2011).
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(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.
Commonwealth v. Medina, 209 A.3d 992, 998 (Pa. Super. 2019) (citation
omitted).
Appellant does not identify any witness who would have testified on her
behalf in her appellate brief. In her amended PCRA petition, Appellant
identified Bonnie Urbanek and Amber Urbanek, who Appellant claimed would
testify that she “[t]ried to present evidence to [trial] [c]ounsel, the plea deal,
the relationship between Eric Adams and [Appellant], mental health history,
and the pressure inflicted on [Appellant].” Amended PCRA Petition at 4
(unpaginated). However, Appellant failed to plead that trial counsel was
aware of either of the identified witnesses or that they were willing to testify
on Appellant’s behalf. See Medina, 209 A.3d at 998 (trial counsel was not
ineffective for failure to call character witnesses where the petitioner did “not
plead that trial counsel knew or should have known of the existence of these
potential character witnesses”). Furthermore, Appellant has not established
that the absence of the testimony of either of the witnesses was so prejudicial
as to have denied the defendant a fair trial. Appellant simply states the
subjects that these witnesses would testify about without any description of
the effect such testimony would have had on Appellant’s trial, and several of
these identified subjects relate to issues of trial counsel’s alleged
ineffectiveness that would be relevant only in this PCRA proceeding. See
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Commonwealth v. Goodmond, 190 A.3d 1197, 1202 (Pa. Super. 2018)
(defense counsel was not ineffective where the petitioner had “failed to
establish the absence of the proposed witnesses’ testimony was so prejudicial
as to deny him a fair trial”). Appellant has therefore failed to establish grounds
for PCRA relief on this claim.
In her third issue, Appellant argues that trial counsel was ineffective for
failing to disclose discovery material to her. Appellant did not raise this issue
in either her initial PCRA petition or her amended PCRA petition. Therefore,
this issue is waived. See Pa.R.Crim.P. 902(B) (“Each ground relied upon in
support of the relief requested shall be stated in the petition. Failure to state
such a ground in the petition shall preclude the defendant from raising that
ground in any proceeding for post-conviction collateral relief.”);
Commonwealth v. Santiago, 855 A.2d 682, 691 (Pa. 2004) (“[A] claim not
raised in a PCRA petition cannot be raised for the first time on appeal.”).
Appellant next argues that trial counsel was ineffective for failing to
impeach the credibility of Mr. Gowton regarding his testimony that he
observed Appellant’s vehicle striking the victim in Mr. Adams’ driveway on
Buckeye Tram Road. Mr. Gowton testified that, after he dropped the victim
off there and he was approaching an intersection, he had an unobstructed
view through his driver’s side mirror of Appellant’s maroon sports utility
vehicle striking the victim. N.T., 5/3/16, at 62-63, 66, 68-69. Appellant
contends that Mr. Gowton’s testimony was contradicted by Trooper Steven
Siko, an expert in crash reconstruction and analysis, who testified that the
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scene of the incident was obstructed by hedges and bushes when viewed from
the intersection of Buckeye Tram Road and Buckeye Road, the closest
intersection to Mr. Adams’ house. N.T., 5/4/16, at 166.
Even assuming that Trooper Siko’s testimony directly calls into question
whether Mr. Gowton had an unobstructed view of the collision, the issue of
whether Appellant made impact with the victim was not in dispute at the trial.
Appellant provided a written statement to police on the day of the incident in
which she admitted that her vehicle made impact with the victim. N.T.,
5/3/16, at 102-14. In addition, surveillance video from Mr. Adams’ house was
played for the jury showing the direct aftermath of the collision in which
Appellant exited her vehicle and attended to the victim. Id. at 94-100. The
victim likewise testified that she recalled hearing Appellant gas her vehicle and
drive “full throttle” at her before the impact. N.T., 5/4/16, at 195.
Furthermore, as discussed above, trial counsel’s defense rested on the
argument that Appellant’s contact with the victim was accidental while
Appellant was attempting to pull into Mr. Adams’ driveway. N.T, 5/3/16, at
51, 54; N.T., 5/4/16, at 234-37. As Appellant conceded that her vehicle made
impact with the victim, she has failed to show prejudice from any failure to
impeach Mr. Gowton regarding his view of the incident.
In her fifth issue, Appellant argues that trial counsel was ineffective for
failing to subpoena “phone records that would have shown ongoing issues with
the victim, [Ms.] Rowe, and [] Appellant as well as the relationship [] between
Appellant and [Mr.] Adams.” Appellant’s Brief at 13. The PCRA court
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concluded that Appellant had failed to show arguable merit, a lack of a
reasonable basis, or prejudice related to this claim. Rule 907 Notice at 9-10.
We agree with this assessment. In her PCRA petition, Appellant does not
explain how trial counsel subpoenaing her phone records would have
potentially affected the outcome of the trial aside from her conclusory
allegation that records of her messages with Mr. Adams and the victim would
show that their testimony “consisted of perjury.” PCRA Petition, Addendum.
Similarly, in her brief, Appellant only vaguely asserts that her relationship with
Mr. Adams was “a key factor in the issues between Appellant and the victim
and was downplayed and misrepresented” during trial. Appellant’s Brief at
13. Such boilerplate allegations of ineffectiveness are an insufficient basis
upon which to support an award of PCRA relief. Chmiel, 30 A.3d at 1128.
In her next two issues, Appellant contends that trial counsel was
ineffective for failing to object to the introduction of messages exchanged
between Appellant and the victim that Appellant claims were unfairly
prejudicial to her and for failing to introduce forensic evidence. Neither of
these issues, however, was pled in Appellant’s original or amended PCRA
petitions, and therefore these issues are waived. See Pa.R.Crim.P. 902(B);
Santiago, 855 A.2d at 691.
In her eighth appellate issue, Appellant argues that trial counsel put
“undue pressure” on her to take her case to trial and not accept the plea deal
offered by the prosecution that would have required her to serve a three-to-
six-year term of imprisonment. Appellant’s Brief at 14. Appellant contends
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that she was “naïve to the law and what she should do and trusted her lawyer
thinking he would not lead her in the wrong directions.” Id. Appellant asserts
that she was prejudiced based on the substantially longer sentence she
received following trial.
This claim lacks arguable merit. “[C]ounsel has a duty to communicate
plea bargains to his client, as well as to explain the advantages and
disadvantages of the offer.” Commonwealth v. Marinez, 777 A.2d 1121,
1124 (Pa. Super. 2001). However, the decision of whether to accept or reject
a plea deal is ultimately left to the defendant. Commonwealth v. Copeland,
554 A.2d 54, 60 (Pa. Super. 1988). Beyond her bald assertion that trial
counsel applied “undue pressure” on her to not accept the plea offer, Appellant
has not alleged that trial counsel provided misleading or incomplete
information to her or refused to answer any questions she may have had
regarding the offer. Cf. Commonwealth v. Steckley, 128 A.3d 826, 830-
32 & n.2 (Pa. Super. 2015) (trial counsel was ineffective where she did not
inform defendant during plea negotiations that he would face a 25-year
mandatory minimum sentence if convicted following trial and prosecution was
offering substantially shorter recommended sentence if defendant entered a
guilty plea); Copeland, 554 A.2d at 60-61 (trial counsel was ineffective where
he only supplied an “‘offhanded’ presentation” of the plea deal without a full
explanation of the risks and benefits of accepting the deal). Appellant’s
decision whether to accept the Commonwealth’s plea offer was her own, and
she is not aggrieved merely because she took the risk of going to trial and
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lost. Copeland, 554 A.2d at 60; see also Commonwealth v. Kehr, 180
A.3d 754, 758 (Pa. Super. 2018) (“[N]o one would suggest that a defendant’s
decision to reject a plea offer in favor of a jury trial ‘became’ involuntary once
the defendant lost and received a harsher sentence than offered by the
plea.”).
In her final issue, Appellant argues that trial counsel was ineffective
because he did not permit Appellant to testify on her own behalf. It is well-
settled that
[t]he 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. Sandusky, 203 A.3d 1033, 1075 (Pa. Super. 2019)
(citation omitted). Furthermore, “where a defendant voluntarily waives his
right to testify after a colloquy, he generally cannot argue that trial counsel
was ineffective in failing to call him to the stand.” Id. (citation omitted).
At the close of the prosecution’s case, trial counsel explained to the trial
court that Appellant tentatively had decided not to testify at trial based upon
concerns that she would be cross-examined regarding Facebook messages she
had sent to the victim; trial counsel then requested that he and Appellant be
afforded the opportunity to discuss the subject again during a lunch recess.
N.T., 5/4/16, at 215-16, 218. Following the recess, trial counsel informed the
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court that Appellant had read the Facebook messages and it was a “tough
decision,” but she ultimately decided not to testify. Id. at 219, 225. The
court then conducted the following colloquy:
Q. [Appellant], have you had an opportunity to discuss your
right to testify at this trial with [trial counsel]?
A. Yes.
Q. And has he given you some advice on that issue?
A. Yes.
Q. Do you understand that it is only your decision as to whether
or not you testify at your trial?
A. Yes.
Q. [Trial counsel] cannot make that decision for you. Do you
understand that?
A. Yes.
Q. Although he can give you certain advice, if you want to
testify, that is your absolute right to do so.
A. Okay.
Q. Have you had sufficient time to discuss that with [trial
counsel]?
A. Yes.
Q. Have you made a decision on whether or not you wish to
testify at your trial?
A. Yes.
Q. What is your decision?
A. I’m not going to testify.
Q. Do you have any questions about that?
A. No.
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Q. Do you need any additional time to speak to [trial counsel]
before making that decision?
A. Um, could I have a moment with him?
Id. at 226-27. The trial court then provided Appellant opportunity to discuss
the issue further with trial counsel and continued the colloquy:
Q. You just had a couple of moments to talk to [trial counsel],
is that right?
A. Yes.
Q. Are you still intending not to testify?
A. Yes.
Q. Any questions about that?
A. No.
Id. at 227-28.
Based on this colloquy, the PCRA court concluded that Appellant’s claim
of ineffective assistance related to her decision not to testify lacked arguable
merit. Rule 907 Notice at 11-12. We agree. The record reflects that, following
consultation with trial counsel and a colloquy by the trial court, Appellant made
a knowing and intelligent decision not to testify on her own behalf. No
evidence exists that trial counsel interfered with Appellant’s right to testify or
gave her unreasonable advice regarding the decision whether to testify, but
rather trial counsel expressed a valid concern regarding cross-examination
related to the Facebook messages with the victim.
For the foregoing reasons, Appellant is not entitled to PCRA relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/25/2019
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Com. v. Falcon, D.
Combined Opinion