Com. v. Culley, J.

J-S23017-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSHUA M. CULLEY :
:
Appellant : No. 121 MDA 2022

Appeal from the PCRA Order Entered December 17, 2021
In the Court of Common Pleas of Cumberland County Criminal Division at
No(s): CP-21-CR-0000311-2017

BEFORE: STABILE, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY McLAUGHLIN, J.: FILED NOVEMBER 09, 2022

Joshua M. Culley appeals from the order denying his Post Conviction

Relief Act (“PCRA”) petition. See 42 Pa.C.S.A. §§ 9541–9546. Culley

maintains that his trial counsel was ineffective. We affirm.

A panel of this Court previously summarized the facts as follows:

The victim met Culley when she started working at Renewal
by Anderson in November of 2016. Culley was one of the
employees assigned to train her. During a cigarette break
on the Friday of her first week, the victim and Culley
exchanged phone numbers and made plans to hang out
after work.

The victim and her cousin, S.S., later went to Culley’s
parent’s home. Culley was waiting outside for them when
they arrived and led them into his room, which was located
in the basement attached to the garage.

Shortly after getting there, Culley went upstairs and brought
down a bottle of whiskey. The victim testified that she had
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* Retired Senior Judge assigned to the Superior Court.
J-S23017-22

about five shots, and both Culley and S.S. had more.
Eventually, S.S. became ill and spent the remainder of the
night in the bathroom. Thereafter, the victim periodically
checked in on her cousin in the bathroom.

Around the third time the victim checked in on S.S., Culley
pushed her back onto his bed and climbed on top of her. He
took her pants and underwear down and began having
vaginal intercourse with her. When the victim told him to
stop and yelled for help he hit her in the face. S.S. heard
her cousin yelling, but was too incapacitated to help. Culley
held her down by holding both of her arms above her head
with one hand, and at one point held her throat down with
the other hand. The assault lasted around five minutes, at
which time Culley went upstairs. The victim collected her
things and carried S.S. up the stairs they had come down
and drove home.

After leaving work the next day, the victim went to Holy
Spirit hospital for a rape kit. She later went home and told
her mother what had happened.

On Sunday morning, the victim went to the Silver Spring
Township Police Department where she spoke with
Detective Andrew Bassler and gave a written statement.

While at the police station, the victim made a consensual
(recorded) phone call to Culley, with Detective Bassler and
Detective Carrie Webber present. Culley ultimately returned
her call after she texted him that she needed to talk. During
the phone call, Culley stated, “I don’t want this to sound
completely horrible, but did you like agree at all at first or
did I like rape you.”

Commonwealth v. Culley, No. 1081 MDA 2018, 2019 WL 2564536, at *1

(Pa.Super. filed June 21, 2019) (unpublished memorandum).

On November 3, 2017, a jury found Culley guilty of one count each of

rape, sexual assault, and unlawful restraint. He was sentenced to 92 to 184

months of incarceration followed by 60 months of probation on the rape

charge; a concurrent 60 to 120 months of incarceration on the sexual assault

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charge; and a concurrent six to 12 months of incarceration followed by 48

months of probation on the unlawful restraint charge. Culley filed a post-trial

motion, which was denied. Culley appealed, and we affirmed his judgment of

sentence on June 21, 2019. Id. The Pennsylvania Supreme Court denied

Culley’s petition for allowance of appeal on December 31, 2019.

On June 1, 2020, Culley filed a pro se PCRA petition, his first. Counsel

was appointed who filed an amended PCRA petition on January 12, 2021. An

evidentiary hearing on the petition was held on August 16, 2021. On

December 17, 2021, the PCRA court denied the petition. This appeal followed.

Culley raises six issues for our review:

1. Did the PCRA [c]ourt err by denying Culley’s claims that
[t]rial [c]ounsel was ineffective for failing to call
character witnesses to the stand, even after PCRA
hearing testimony that [Culley] and his father had urged
otherwise and had several (including female witnesses)
available and willing to testify on behalf of [Culley], and
when [t]rial counsel George M[a]tangos’ hearing
testimony indicated that he knew that [Culley] and his
father wanted character witness testimony.

2. Did the PCRA [c]ourt err by denying Culley’s claims that
[t]rial [c]ounsel was ineffective for failing to adequately
address possible Brady violation including delayed
witness statements and as a result continued on with the
trial without proper preparation, even when [t]rial
counsel George M[a]tangos admitted in hearing
testimony regarding this issue: “I said I made some
mistakes. And that may have been one of the bigger
ones...”

3. Did the PCRA [c]ourt err by denying Culley’s claims that
[t]rial [c]ounsel was ineffective for failing to adequately
explore whether complainant’s sexual infidelity to her
boyfriend was a possible reason to fabricate complaint.

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4. Did the PCRA [c]ourt err by denying Culley’s claims that
[t]rial [c]ounsel was ineffective for failing to adequately
question complainant regarding inconsistent statements
including those that she made at the time of the trial.

5. Did the PCRA [c]ourt err by denying Culley’s claims that
[t]rial [c]ounsel was ineffective for failing to adequately
address and/or file a motion to suppress questionable
one-party-consent recorded phone calls.

6. Did the PCRA [c]ourt err by denying Culley’s claims that
[t]rial [c]ounsel was ineffective for failing to adequately
address Commonwealth’s false and/or misleading
opening statement regarding semen that was found in
complainant.

Culley’s Br. at 5.

On appeal from the denial or grant of relief under the PCRA, our review

is limited to determining “whether the PCRA court’s ruling is supported by the

record and free of legal error.” Commonwealth v. Presley, 193 A.3d 436,

442 (Pa.Super. 2018) (citation omitted).

Culley’s issues on appeal challenge the effectiveness of his trial counsel.

“[C]ounsel is presumed to be effective and the burden of demonstrating

ineffectiveness rests on appellant.” Commonwealth v. Rivera, 10 A.3d

1276, 1279 (Pa.Super. 2010). An ineffectiveness claim requires a petitioner

to plead and prove that: (1) the underlying claim is of arguable merit; (2)

counsel had no reasonable basis for the challenged action or inaction; and (3)

the petitioner suffered actual prejudice as a result. Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014). Prejudice in this context means that

“absent counsel’s conduct, there is a reasonable probability the outcome of

the proceedings would have been different.” Commonwealth v. Velazquez,

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216 A.3d 1146, 1149 (Pa.Super. 2019) (citation omitted). A failure to meet

any of these prongs bars a petitioner from obtaining relief. Commonwealth

v. Sneed, 45 A.3d 1096, 1106 (Pa. 2012).

In deciding whether counsel lacked a reasonable basis, “a court will not

find counsel to be ineffective if the particular course chosen by counsel had

some reasonable basis designed to effectuate” the defendant’s interest.

Commonwealth v. Williams, 899 A.2d 1060, 1063-64 (Pa. 2006) (quoting

Commonwealth v. Rivera, 773 A.2d 131, 140 (Pa. 2001). “If counsel’s

chosen course had some reasonable basis, the inquiry ends and counsel’s

assistance is deemed effective.” Id. at 1064.

Character Witnesses:

Culley first argues trial counsel was ineffective for failing to call

character witnesses at his trial. Culley contends that counsel knew he wanted

character testimony and had several character witnesses available and willing

to testify on his behalf at trial. Culley’s Br. at 12. He also argues he presented

seven character witnesses at the PCRA hearing to testify that they were

available and willing to testify at trial as to Culley’s reputation for peacefulness

and honesty. Id. at 12-13. He points out that the Commonwealth stipulated

at the PCRA hearing that these witnesses were available at trial to testify as

character witnesses. Id. According to Culley, trial counsel’s failure to call these

witnesses resulted in actual prejudice to him because testimony about his

reputation for honesty and non-violence would have bolstered the credibility

of his claim that he did not rape the victim. Id. at 13-14, 28.

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A criminal defendant may offer evidence of a pertinent character trait

as substantive evidence that the defendant did not commit a charged crime.

See Pa.R.E. 404(a)(2)(A). “Evidence of good character is substantive and

positive evidence, not a mere make weight to be considered in a doubtful

case,” and “is an independent factor which may of itself engender reasonable

doubt or produce a conclusion of innocence.” Commonwealth v.

Goodmond, 190 A.3d 1197, 1201 (Pa.Super. 2018) (citation omitted).

However, “[t]he failure to call character witnesses does not constitute per se

ineffectiveness.” Commonwealth v. Treiber, 121 A.3d 435, 498 (Pa. 2015).

Rather, to succeed on such a claim, a petitioner must establish the following:

(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.

Goodmond, 190 A.3d at 1202 (citation omitted).

The decision whether to call a certain witness usually involves a matter

of trial strategy. See Commonwealth v. Jones, 652 A.2d 386, 389

(Pa.Super. 1995). The failure to present character witnesses may be excused

if counsel “had a reasonable basis for failing to present character witnesses at

appellant’s trial.” Commonwealth v. Weiss, 606 A.2d 439, 442 (Pa. 1992).

If a defendant raises the issue of his good character, evidence of prior, non-

crimen falsi convictions may be admissible. Commonwealth v. Murphy, 182

A.3d 1002, 1008 (Pa.Super. 2018).

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Here, trial counsel admitted in his testimony at the PCRA hearing that

Culley wished to present character witnesses. However, counsel stated Culley

never gave him a list of the witnesses’ names, except for his aunts’ names,

despite counsel’s request. N.T. PCRA Hearing, 8/16/21, at 41-42. Counsel also

testified he explained to Culley he was concerned that the testimony of any

potential character witness as to Culley’s reputation for law-abidingness would

allow Culley’s prior criminal convictions to be admissible on cross-

examination, in addition to his history of alcohol use. Id. at 40-41. Counsel

stated he ultimately decided it was in Culley’s best interest not to call

character witnesses. Id. at 41.

The PCRA court found counsel’s decision reasonable. PCRA Court

Opinion, filed 12/17/21, at 2. The court opined that Culley’s non-crimen falsi

convictions, especially two convictions for possession with intent to deliver

and three convictions for driving under the influence(“DUI”), would have been

rendered admissible by the presentation of character testimony. Id. at 4. It

noted the admission of Culley’s DUI’s, in particular, would have corroborated

“the victim’s narrative in terms of the role that she assigned to alcohol in the

events of that evening.” Id. Accordingly, the court concluded that counsel

acted in the realm of reasonable professional judgment in deciding to not call

character witnesses. Id.

The PCRA court did not err. Trial counsel’s decision not to call character

witnesses was a reasonable trial strategy. See Commonwealth v. Van

Horn, 797 A.2d 983, 988 (Pa.Super. 2002) (concluding that trial counsel had

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a reasonable trial strategy for not calling character witnesses because he

believed they would be questioned about appellant’s prior convictions, and

thus, was not ineffective); see also Commonwealth v. Morales, 701 A.2d

516, 526 (Pa. 1997) (concluding “[t]rial counsel cannot be deemed ineffective

for failing to present character witnesses who could have been cross-examined

about appellant’s prior bad acts.”). Since the record supports the PCRA court’s

determination that trial counsel had a reasonable basis for not calling

character witnesses, Culley’s first issue is without merit.

Brady Issue:

Culley next argues trial counsel was ineffective for failing to object to a

possible Brady1 violation, including a witness statement by S.S., the victim’s

cousin who was present on the night of the incident, that the prosecution

turned over to defense counsel in the middle of the trial. Culley’s Br. at 14.

Culley contends that because the Commonwealth failed to timely produce this

evidence, defense counsel was unable to adequately prepare and cross-

examine S.S. about numerous inconsistencies in her statements. Id. at 14,

34.

During the trial, the Commonwealth conceded it had inadvertently failed

to turn over to defense counsel a disk of a 46-minute police interview of S.S.:

[The Commonwealth]: Your Honor, at this point it appears
that the Commonwealth from the police department was
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1 Brady v. Maryland, 373 U.S. 83 (1963).

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provided two copies of one interview mistakenly and not
provided the audio recording and audio and video recording
of the interview with [S.S.] I did not have it prior to this
very moment, which means defense counsel doesn’t have
it.

N.T. Trial, 10/31/17, at 165-66; see also Commonwealth’s Br. at 19-20, 23.2

The Commonwealth thereafter provided defense counsel with the disk.

N.T. Trial, at 168. Counsel asked to review the disk overnight and resume

cross-examination of the detective the next morning, and the court agreed.

Id. at 168, 172-73. Counsel indicated the next day at trial that he reviewed

the interview and he did not intend to recall S.S. for any additional cross-

examination. Id. at 176. Counsel testified at the PCRA hearing that he had

had adequate time to review S.S.’s police interview and that he was able to

effectively cross-examine her at trial. N.T. PCRA Hearing, at 33-34.

The PCRA court found that while the Commonwealth delayed in

producing certain evidence, defense counsel’s thorough cross-examination of

S.S. belied any claim of prejudice. PCRA Ct. Op. at 8. The court noted counsel

already possessed most of the relevant evidence prior to trial and was able to

adequately review S.S.’s late-produced interview. Id. 8-9.

No relief is due on this claim. Despite Culley’s claim that having S.S.’s

interview prior to trial “would have aided counsel in cross-examination

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2Trial counsel testified that he already knew about other statements and text
messages that he received from the Commonwealth prior to trial. It was only
S.S.’s police interview that was considered new material. N.T. PCRA Hearing,
at 33-34.

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regarding numerous inconsistences[,]”3 Culley fails to identify any specific

inconsistent statement or evidence that the interview revealed. Moreover, the

record demonstrates that counsel extensively cross-examined S.S. on

numerous inconsistencies. They included whether she was “black out drunk”

or just sick from drinking alcohol, whether she smoked a marijuana “blunt”

rather than a “bowl,” whether Culley brought her food while she was sick in

the bathroom, and her general recollection of the night in question. See N.T.

Trial, at 112-125. Thus, counsel had a reasonable basis not to object to a

purported Brady violation when he had an adequate opportunity to review

the evidence and made a strategic decision not to recall S.S.

Rape Shield Law:

Culley next argues trial counsel was “ineffective for failing to adequately

explore whether [the victim’s] sexual infidelity to her boyfriend was a possible

reason to fabricate [the] complaint.” Culley’s Br. at 39. According to Culley,

counsel should have cross-examined the victim on this issue “to place into

evidence that the alleged victim had possible issues with her boyfriend, the

subject of which was the alleged victim’s infidelity and the alleged victim[]

engaging in sexual intercourse with other men other than the alleged victim’s

boyfriend.” Id.

Trial counsel testified at the PCRA hearing that he did not pursue this

issue because he had no actual proof of the victim’s infidelity. N.T. PCRA

____________________________________________

3 See Culley’s Br. at 34.

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Hearing, at 36. Counsel further explained he was limited in his questioning of

the victim due to the Rape Shield Law. Id.

The PCRA court found that evidence of any alleged infidelity by the

victim would have been inadmissible under the Rape Shield Law. PCRA Ct. Op.

at 7. The Rape Shield Law was enacted to “prevent a trial from shifting its

focus from the culpability of the accused toward the virtue and chastity of the

victim . . . [and] to exclude irrelevant and abusive inquiries regarding prior

sexual conduct of sexual assault complainants.” Commonwealth v. K.S.F.,

102 A.3d 480, 484 (Pa.Super. 2014) (citations omitted). The statute generally

precludes evidence of the alleged victim’s past sexual conduct, including

specific instances, opinion evidence and reputation evidence. 18 Pa.C.S.A. §

3104(a). However, “the protection afforded to the complainant by the Rape

Shield Law does not act to prohibit relevant evidence which may exculpate a

defendant of the crime with which he is charged.” Commonwealth v.

Spiewak, 617 A.2d 696, 699 (Pa. 1992). The Law requires a defendant who

seeks to offer evidence of the victim’s prior sexual conduct “file a written

motion and offer of proof at the time of trial.” 18 Pa.C.S.A. § 3104(b).

This case presents facts akin to Commonwealth v. Berkowitz, 641

A.2d 1161 (Pa. 1994). There, the defendant, who had been charged with rape,

sought to introduce evidence of the jealous nature of the victim’s boyfriend.

Id. at 1165. Like here, the defendant claimed that sexual intercourse with the

victim had been consensual and alleged it was the victim’s fear of her

boyfriend’s jealousy that had motivated her to accuse the defendant of rape.

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Id. In finding that the trial court had properly excluded this evidence, our

Supreme Court stated:

The allegation that the victim and her boyfriend had argued
over the issue of her infidelity is so closely tied to the issue
of the victim’s fidelity itself that, for the purposes of the
Rape Shield Law, they are one and the same. This is
precisely the type of allegation regarding past sexual
conduct from which the Rape Shield Law is
specifically designed to protect victims.

Id. (citations omitted) (emphasis added).

Here, Culley offers no specific reason that he believes the Rape Shield

Law would not bar the proposed evidence in this case. Moreover, the record

is devoid of evidence of any alleged infidelity on the part of the victim. In fact,

the victim testified that she did not have a boyfriend at the time of the

incident. See N.T. Trial, at 69-70. It was reasonable for trial counsel not to

pursue this defense since it was unsupported by record evidence. Accordingly,

counsel was not ineffective.

Victim’s Statements:

Culley next argues trial counsel was ineffective for failing to adequately

question the victim regarding inconsistent statements, including those that

she made at the time of the trial. Culley’s Br. at 5.

Although this issue is listed as the fourth issue in Culley’s statement of

the questions involved, the argument section of Culley’s brief does not contain

a separate section on this issue, in violation of Pennsylvania Rule of Appellate

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Procedure 2119(a).4 Instead, Culley has combined this issue with the

discussion of the Brady claim in a single section titled “Brady [V]iolation

Inconsistent Statements.” See Culley’s Br. at 36-38. However, because

Culley’s failure to comply with Rule 2119(a) does not impede our review, we

decline to find waiver. But see In re R.D., 44 A.3d 657, 674 (Pa.Super. 2012)

(finding waiver where Rule 2119(a) violation impeded “meaningful appellate

review”).

Culley generally argues that trial counsel should have cross-examined

the victim about her prior inconsistent statements. However, Culley fails to

specify what those inconsistent statements were, only stating that the “police

reports and the transcript of the preliminary hearing bear out these

inconsistencies[.]” Culley’s Br. at 37-38. Moreover, the record indicates that

trial counsel thoroughly cross-examined the victim at trial about numerous

inconsistences. See N.T. Trial, at 46-50, 61-62, 74-75, 92-94. Counsel

reiterated at the PCRA hearing that he brought out inconsistencies between

the victim’s testimony at trial and her statements to police. N.T. PCRA Hearing,

at 37-38. Thus, we find no error in the PCRA court’s determination that this

claim lacks arguable merit. See PCRA Ct. Op. at 8.

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4 See Pa.R.A.P. 2119(a) (stating that in an appellate brief, “[t]he argument
shall be divided into as many parts as there are questions to be argued; and
shall have at the head of each part -- in distinctive type or in type distinctively
displayed -- the particular point treated therein, followed by such discussion
and citation of authorities as are deemed pertinent”).

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Recorded Phone Call:

As set forth above, while at the police station, the victim made a

recorded phone call to Culley, with detectives present. During the phone call,

Culley stated, “I don’t want this to sound completely horrible, but did you like

agree at all at first or did I like rape you.” Culley contends that trial counsel

was ineffective for failing to file a motion to suppress and/or adequately

address this one-party consent phone call. Culley’s Br. at 45.

Where a petitioner alleges counsel ineffectively failed to file a

suppression motion, “the inquiry is whether the failure to file the motion is

itself objectively unreasonable, which requires a showing that the motion

would be meritorious.” Commonwealth v. Johnson, 179 A.3d 1153, 1160

(Pa.Super. 2018). “Where the challenge is to a failure to move for suppression

of evidence, the defendant must establish that there was no reasonable basis

for not pursuing the suppression claim and that if the evidence had been

suppressed, there is a reasonable probability the verdict would have been

more favorable.” Commonwealth v. Melson, 556 A.2d 836, 839 (Pa.Super.

1989).

Here, trial counsel testified at the PCRA hearing that he investigated

whether to file a motion to suppress the phone call and even consulted with

his law partner and paralegal about it. N.T. PCRA Hearing, at 30-31. However,

counsel stated they were ultimately unable to find any legal basis on which to

file a suppression motion, and he did not want to file a frivolous motion. Id.

at 31-32.

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Pennsylvania is a generally a “two-party” consent state, meaning that

all parties to a communication must consent to it being recorded. 18 Pa.C.S.A.

§§ 5703, 5704(4). However, Section 5704 sets forth several exceptions,

including subsection 2, which allows law enforcement to use wiretaps without

obtaining prior judicial approval if one of the parties to the conversation

consents to the interception. See 18 Pa.C.S.A. § 5704(2)(ii); see also

Commonwealth v. Bellamy, 252 A.3d 656, 667 (Pa.Super. 2021).

Here, Culley fails to provide any legal analysis of any potential basis for

the suppression of the wiretap evidence. He does not explain how the

requirements of section 5704(2)(ii) were not met, or otherwise set forth an

argument that a suppression motion would have been meritorious.

Accordingly, Culley has failed to meet his burden and his claim of

ineffectiveness fails. See Commonwealth v. Watley, 153 A.3d 1034, 1044

(Pa.Super. 2016) (stating counsel will not be found ineffective for failing to

file a motion to suppress if the grounds asserted for that motion lack merit).5

Opening Statement:

Culley’s final issue challenges counsel’s failure to adequately address

the prosecutor’s comment in opening statements that Culley’s “semen was

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5 See also Commonwealth v. Spotz, 896 A.2d 1191, 1210 (Pa. 2006)
(stating “[c]ounsel will not be deemed ineffective for failing to raise a meritless
claim”).

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found in [the victim].” Culley’s Br. at 44. Culley claims this statement was

misleading because Culley’s semen was not found in the victim.6

Trial counsel testified he made a strategic decision not to object to the

statement because he would later address the issue by questioning the DNA

expert and in his closing argument. N.T. PCRA Hearing, at 32. The DNA expert

testified that Culley could not be excluded as a contributor of the non-sperm

fraction on the victim’s external genitalia swabs. N.T., Trial at 219-220.

“The purpose of an opening statement is to apprise the jury of how the

case will develop, its background, and what will be attempted to be proved[.]”

Commonwealth v. Parker, 919 A.2d 943, 950 (Pa. 2007) (citation omitted).

Opening statements are not evidence, however, and courts generally “afford

[counsel] reasonable latitude in presenting opening arguments to the jury.”

Id.; see also Commonwealth v. Ogrod, 839 A.2d 294, 334 (Pa. 2003)

(stating “[a] prosecutor must have reasonable latitude in fairly presenting a

case to the jury and must be free to present his or her arguments with logical

force and vigor”) (citation omitted).

In finding that counsel was not ineffective for failing to object to the

Commonwealth’s opening statement, the PCRA court stated:

Assuming arguendo that the Commonwealth’s statement
was factually untrue, so as to lend arguable merit to
[Culley’s] claim, and that [trial counsel] lacked any
____________________________________________

6 Culley mischaracterizes the prosecutor’s opening statement. The prosecutor
did not say that Culley’s semen was found “in” the victim. Culley’s Br. at 42,
44. The prosecutor actually stated, “[Y]ou will also hear the DNA evidence,
that [Culley’s] semen was present.” N.T. Trial, at 20.

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reasonable basis for failing to respond to that falsehood, it
is plain that [Culley] suffered no prejudice. He admitted to
having sexual relations with the victim; indeed, that the
encounter was consensual was the crux of his defense.
Further, while [Culley] specifically – if immaterially – denied
ejaculating, such that the Commonwealth’s assertion might
be viewed as having a discrediting effect, the victim herself
corroborated [Culley’s] testimony on this topic. An
unrebutted false statement, if such there was here,
speaking neither to any material fact nor to the credibility
of any witness can work no prejudice.

PCRA Ct. Op. at 5-6 (footnotes omitted).

We agree with the PCRA court that Culley sustained no prejudice. The

presence or absence of Culley’s DNA on the victim was inconsequential

because Culley admitted having sexual intercourse with the victim. Further,

any misstatement by the Commonwealth was clarified by the testimony of the

DNA expert, as well as defense counsel’s argument. Accordingly, this claim

fails.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/9/2022

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