Com. v. Moyer, B.

J. S73011/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
BRYAN JOHN MOYER, : No. 1947 WDA 2015
:
Appellant :

Appeal from the PCRA Order, November 13, 2015,
in the Court of Common Pleas of Potter County
Criminal Division at Nos. CP-53-CR-0000058-2005,
CP-53-CR-0000138-2005

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
BRYAN MOYER, : No. 1948 WDA 2015
:
Appellant :

Appeal from the PCRA Order, November 13, 2015,
in the Court of Common Pleas of Potter County
Criminal Division at Nos. CP-53-CR-0000057-2005,
CP-53-CR-0000058-2005, CP-53-CR-0000138-2005

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
BRYAN MOYER, : No. 1949 WDA 2015
:
Appellant :

Appeal from the PCRA Order, November 13, 2015,
in the Court of Common Pleas of Potter County
Criminal Division at Nos. CP-53-CR-0000057-2005,
CP-53-CR-0000058-2005, CP-53-CR-0000138-2005
J. S73011/16

BEFORE: FORD ELLIOTT, P.J.E., LAZARUS AND JENKINS, JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 09, 2016

Bryan Moyer appeals pro se from the November 13, 2015 order

denying his second amended petition filed pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we

affirm.

A prior panel of this court summarized the relevant factual background

of this case as follows:

Appellant repeatedly molested five boys, T.O.,
B.B., J.G., C.L., and M.K., who attended the same
daycare center as [a]ppellant’s son. Most of the
abuse occurred at [a]ppellant’s home while the
victims were visiting his son. All of the boys, who
were between three and six years old when they
were assaulted, averred that [a]ppellant fondled
their genitals; one victim, B.B., also claimed that
[a]ppellant sucked his penis and inserted a finger
into B.B.’s rectum. Appellant was charged in three
separate informations [at Nos. CP-53-CR-0000057-
2005, CP-53-CR-000058-2005, and CP-53-CR-
0000138-2005] because police were unaware of the
full extent of the abuse until the media reported that
[a]ppellant had been charged with sexually
assaulting a minor, and additional victims reluctantly
admitted that they too had been molested.

Commonwealth v. Moyer, 947 A.2d 829 (Pa.Super. 2008), appeal

denied, 960 A.2d 838 (Pa. 2008) (unpublished memorandum at 1-2).

The remaining procedural history of this case was summarized by the

PCRA court as follows.

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Prior to [appellant’s] preliminary hearing, sometime
in February of 2005, [appellant], his counsel,
James Rague and District Attorney Jeff Leber met
and discussed the possibility of a plea agreement. At
[appellant’s] preliminary hearing on March 24, 2005
[appellant] did not mention any plea agreement and
[appellant’s] cases were bound over for trial.
[Appellant] filed a pretrial motion seeking to dismiss
the case on Pa.R.Crim.P. 600 grounds; however, the
motion was dismissed by memorandum opinion on
February 3, 2006. Following a jury trial which
occurred from April 4th through April 7th, 2006,
[appellant] was convicted of [10 counts of
endangering the welfare of children, 19 counts of
indecent assault, 9 counts of corruption of minors,
4 counts of rape, and 5 counts of involuntary deviate
sexual intercourse (“IDSI”).1] [F]ollowing a
sentencing reduction, [appellant] was sentenced to a
period of incarceration of 19 years and 3 months to
46 years.

[Appellant] filed post sentence motions,
including a motion relating to Pa.R.Crim.P. 704,
which was denied. [Appellant] appealed to the
Pennsylvania Superior Court[,] which affirmed the
trial court on January 3, 2008. [Appellant] sought
an allowance of appeal with the Pennsylvania
Supreme Court[,] which was denied on
November 17, 2008. [Appellant] filed a timely
pro se PCRA Petition on October 21, 2009 and
counsel was appointed by Judge John Leete (now
Senior Judge) on October 28, 2009. After the
appointment, the defense counsel accepted a law
clerk position and failed to take action on behalf of
the Petitioner. No amended petition was filed and it
is unclear whether defense counsel was aware of the
appointment as he was in the middle of transition to
his new position. Thereafter, Judge Stephen Minor
was elected President Judge of Potter County and
took the bench in January 2010. No amended
Petition was filed and neither defense counsel, nor
[appellant] communicated with the [PCRA c]ourt.

1
18 Pa.C.S.A. §§ 4304, 3126(a)(7), 6301, 3121, and 3123, respectively.

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J. S73011/16

Thereafter on September 12, 2014[,] Judge Minor
became aware of the matter when [appellant] filed a
pro se Amended PCRA Petition. New defense
counsel was appointed and, with the assistance of
counsel, [appellant] filed a Second Amended PCRA
Petition on February 5, 2015. Following multiple
continuances a hearing was held on [appellant’s]
Second Amended PCRA Petition on July 10, 2015.

PCRA court opinion, 11/13/15 at 1-2.

Following the hearing, the PCRA court dismissed appellant’s second

amended PCRA petition on November 13, 2015. The PCRA court authored a

comprehensive, 19-page opinion in support of its November 13, 2015 order

denying appellant’s petition. (See id.) This timely appeal followed on

November 30, 2015. On December 3, 2015, the PCRA court ordered

appellant to file a concise statement of errors raised on appeal in accordance

with Pa.R.A.P. 1925(b). On December 18, 2015, appellant complied with the

PCRA court’s directive and filed his Rule 1925(b) statement.2

Appellant raises the following issues for our review:

1. Whether [the] PCRA Court committed an abuse
of discretion or an error of Law by not granting
PCRA relief where Trial Counsel failed to reduce
a negotiated plea to writing, failed to properly
raise Rule 600 issues, referenced other alleged
victims, failed to effectively argue Rule 704
issues, failed to object to altered and
shortened video interviews, failed to

2
The record reflects that on December 21, 2015, appellant indicated to the
PCRA court and his then-counsel, Richard W. McCoy, Esq., that he wished to
proceed pro se. Following a hearing in accordance with Commonwealth v.
Grazier, 713 A.2d 81 (Pa. 1998), the PCRA court determined that appellant
intelligently, knowingly, and voluntarily waived his right to representation
and granted his request to proceed pro se on February 1, 2016.

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J. S73011/16

appropriately challenge the replacement of a
juror, failed to present and challenge
mandatory minimum sentencing, failed to
object to expert witness, failed to call available
expert and lay witnesses, and, failed to object
to hearsay and other inadmissible testimony?

2. Whether the PCRA Court committed an abuse
of discretion or committed an error of Law by
not granting PCRA relief where prosecutorial
misconduct rendered the trial fundamentally
unfair and the verdict unworthy of confidence
by purchasing food and drinks for witnesses
and lunch for the jury, by concealed, altered or
shortened video interviews, by violating
Rule 600, by violating Rule 704, and by
concealing evidence favorable and exculpatory
to [appellant]?

3. Whether the PCRA Court abused its discretion
or committed an error of Law by denying PCRA
relief where the PCRA proceedings were
rendered fundamentally unfair by sequestering
defense witnesses and not Commonwealth []
witnesses, by permitting the [Commonwealth
witnesses] to use and enter a partial Rule 600
transcript without disclosure or availability of
the complete Rule 600 transcript, and by
accepting testimony contrary to authenticated
demonstrable evidence?

4. Whether the PCRA Court abused its discretion
or committed an error of Law by denying PCRA
relief where [appellant] pled and presented
unconstitutional mandatory minimum
sentencing and due process issues?

5. Whether the PCRA hearing was rendered
fundamentally unfair by the ineffectiveness of
PCRA Counsel that failed to properly
communicate with [appellant], failed to
subpoena and present expert witnesses, and
affidavits, regarding Rule 600 and negotiated
plea agreement issues?

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J. S73011/16

Appellant’s brief at 4-6. For the ease of our discussion, we have elected to

address appellant’s claims in a slightly different order than presented in his

brief.

Proper appellate review of a PCRA court’s dismissal of a PCRA petition

is limited to the examination of “whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Miller,

102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s

findings will not be disturbed unless there is no support for the findings in

the certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super.

2014) (citations omitted). “This Court grants great deference to the findings

of the PCRA court, and we will not disturb those findings merely because the

record could support a contrary holding.” Commonwealth v. Hickman,

799 A.2d 136, 140 (Pa.Super. 2002) (citation omitted). In order to be

eligible for PCRA relief, a defendant must plead and prove by a

preponderance of the evidence that his conviction or sentence arose from

one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2). Further,

these issues must be neither previously litigated nor waived. 42 Pa.C.S.A.

§ 9543(a)(3).

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J. S73011/16

We begin by addressing appellant’s multiple claims of trial counsels’

purported ineffectiveness.3 We note that although “Issue 1” in appellant’s

“Statement of Questions Involved” raises 10 distinct claims of

ineffectiveness, appellant has briefed only 5 of these ineffectiveness claims

in the “Argument” portion of his pro se brief. Accordingly, we will limit our

appellate review to those claims.

Specifically, appellant contends that his trial counsel were ineffective

for: (i) failing to properly raise a Pa.R.Crim.P. 600 issue with respect to

Nos. CP-53-CR-0000057-2005 and CP-53-CR-000058-2005; (ii) failing to

argue that the trial court’s delay in sentencing him resulted in prejudice,

pursuant to Pa.R.Crim.P. 704; (iii) failing to reduce his negotiated guilty plea

to writing; (iv) failing to object to the fact that members of the jury were

released for lunch at the same time as the Commonwealth’s witnesses; and

(v) failing to call an expert witness to discuss how false memory syndrome

could affect his accusers’ memories. (Appellant’s brief at 13, 19, 22, 24, 26,

and 27.)

To prevail on a claim of ineffective assistance of counsel under the

PCRA, a petitioner must plead and prove by a preponderance of the evidence

that counsel’s ineffectiveness “so undermined the truth-determining process

that no reliable adjudication of guilt or innocence could have taken place.”

3
The record reflects that appellant was represented at various points during
trial by both James Rague, Esq. and George Lepley, Esq. (collectively, “trial
counsel”).

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J. S73011/16

42 Pa.C.S.A. § 9543(a)(2)(ii). Specifically, a petitioner must establish that

“the underlying claim has arguable merit; second, that counsel had no

reasonable basis for his action or inaction; and third, that Appellant was

prejudiced.” Commonwealth v. Charleston, 94 A.3d 1012, 1020

(Pa.Super. 2014), appeal denied, 104 A.3d 523 (Pa. 2014) (citation

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.”

Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009) (citations and

internal quotation marks omitted).

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

demonstrating ineffectiveness rests on appellant.” Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011), appeal denied, 30 A.3d

487 (Pa. 2011) (citation omitted). Additionally, we note that “counsel

cannot be held ineffective for failing to pursue a meritless claim[.]”

Commonwealth v. Hall, 867 A.2d 619, 632 (Pa.Super. 2005), appeal

denied, 895 A.2d 549 (Pa. 2006).

After a thorough review of the record, including the briefs of the

parties, the applicable law, and the well-reasoned opinion of the PCRA court,

it is our determination that appellant’s ineffectiveness claims warrant no

relief. The PCRA court comprehensively discussed the five ineffectiveness

claims briefed by appellant and concluded that they were either meritless

-8-
J. S73011/16

and/or his trial counsel had a reasonable strategic basis for his decisions.

(See PCRA court opinion, 11/13/15 at 3-12, 16-18.) We have reviewed the

record in its entirety and have considered the merit of appellant’s

arguments. Following our careful consideration, we find that the PCRA

court’s conclusions are supported by competent evidence and are clearly

free of legal error. Accordingly, we adopt the PCRA court’s November 13,

2015 opinion as our own with regard to appellant’s ineffectiveness of trial

counsel claims.

Appellant next argues that the PCRA court erred in failing to conclude

that the Commonwealth committed prosecutorial misconduct “by purchasing

food and drinks for witnesses and lunch for the jury, by conceal[ing],

alter[ing] or shorten[ing] video interviews, by violating Rule 600, by

violating Rule 704, and by concealing evidence favorable and exculpatory to

[appellant].” (Appellant’s brief at 25-28.)

This court has long recognized that, “to be entitled to PCRA relief, a

petitioner must plead and prove, inter alia, that the allegation of error has

not been previously litigated or waived. An issue is waived if it could have

been raised prior to the filing of the PCRA petition, but was not.”

Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007),

appeal denied, 940 A.2d 365 (Pa. 2007) (citation omitted); see also

42 Pa.C.S.A. § 9544(b) (stating, “an issue is waived if the petitioner could

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J. S73011/16

have raised it but failed to do so before trial, at trial, during unitary review,

on appeal or in a prior state post conviction proceeding.”).

Instantly, the record reflects that appellant could have pursued claims

of alleged prosecutorial misconduct on direct appeal, but failed to do so.

Accordingly, we find these claims waived.

Appellant next argues, albeit briefly, that the PCRA court abused its

discretion “by sequestering defense witnesses and not Commonwealth

[]witnesses, by permitting the [Commonwealth] to use and enter a partial

Rule 600 transcript without disclosure or availability of the complete

Rule 600 transcript, and by accepting testimony contrary to authenticated

demonstrable evidence.” (Appellant’s brief at 29.) Upon review, we find

that appellant’s argument on this issue is comprised primarily of boilerplate

allegations and fails to include any citation to the certified record where this

error allegedly occurred. Accordingly, we deem this claim waived. See

Commonwealth v. Einhorn, 911 A.2d 960, 970 (Pa.Super. 2006), appeal

denied, 920 A.2d 831 (Pa. 2007) (concluding that arguments which are

undeveloped and lack citation to factual background or the certified record

are waived); see also Pa.R.A.P. 2119(c), (d).

Appellant also raises multiple claims wherein he references appellate

and PCRA counsel’s purported ineffectiveness in failing “to properly

communicate with [him] regarding PCRA issues and exhibits” and “subpoena

and present expert witnesses[] and affidavits[] regarding [his] Rule 600 and

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negotiated plea agreement issues.” (Appellant’s brief at 34-37.) Appellant

further opines that counsel was ineffective “by failing to plead, present and

prove the illegal sentence issues.” (Id. at 39.)4

Our supreme court has set forth the proper framework for alleging a

layered ineffective assistance of counsel claim in the context of the PCRA:

Succinctly stated, a petitioner must plead in his
PCRA petition that his prior counsel, whose alleged
ineffectiveness is at issue, was ineffective for failing
to raise the claim that the counsel who preceded him
was ineffective in taking or omitting some action. In
addition, a petitioner must present argument, in
briefs or other court memoranda, on the three
prongs of the [ineffectiveness] test as to each
relevant layer of representation. . . . [T]his means
that the arguable merit prong of the [ineffectiveness]
test as to the claim that appellate counsel was
ineffective in not raising trial counsel’s
ineffectiveness consists of the application of the
three-prong [ineffectiveness] test to the underlying
claim of trial counsel’s ineffectiveness. If any one of
the prongs as to trial counsel’s ineffectiveness is not
established, then necessarily the claim of appellate
counsel’s ineffectiveness fails. Only if all three
prongs as to the claim of trial counsel’s
ineffectiveness are established, do prongs 2 and 3 of
the [ineffectiveness] test as to the claim of appellate
counsel’s ineffectiveness have relevance, requiring a
determination as to whether appellate counsel had a
reasonable basis for his course of conduct in failing
to raise a meritorious claim of trial counsel’s
ineffectiveness (prong 2) and whether petitioner was
prejudiced by appellate counsel’s course of conduct
in not raising the meritorious claim of trial counsel’s
ineffectiveness (prong 3).

4
The record reflects that Ronald Travis, Esq. represented appellant on direct
appeal, and Richard W. McCoy, Esq. represented appellant during the early
stages of his PCRA.

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J. S73011/16

Commonwealth v. Reid, 99 A.3d 470, 482 (Pa. 2014), quoting

Commonwealth v. McGill, 832 A.2d 1014, 1023 (Pa. 2003).

Our review of the record reveals that appellant has failed to brief his

layered ineffectiveness claims by applying the three-prong ineffectiveness

test to each level of representation. Moreover, as appellant has failed to

adequately demonstrate that the underlying claims of trial counsel’s

purported ineffectiveness were of arguable merit, his PCRA counsel cannot

be deemed to be ineffective in failing to pursue these meritless claims. A

determination that trial counsel rendered ineffective assistance is a

prerequisite to finding that any subsequent counsel was himself ineffective,

and as discussed, no such findings were demonstrated in this case. See,

e.g., Commonwealth v. Burkett, 5 A.3d 1260, 1270 (Pa.Super. 2010);

see also Hall, 867 A.2d at 632 (holding that counsel cannot be found

ineffective for failing to raise a claim that is devoid of merit). Accordingly,

appellant’s claim that his PCRA counsel rendered ineffective assistance must

also fail.

Lastly, appellant argues that the PCRA court erred in failing to

conclude that his mandatory minimum sentence, imposed pursuant to

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42 Pa.C.S.A. § 9718,5 was illegal under Alleyne v. United States, U.S.

, 133 S.Ct. 2151 (2013), and this court’s subsequent decision in

Commonwealth v. Wolfe, 106 A.3d 800 (Pa.Super. 2014), affirmed, 140

A.3d 651 (Pa. 2016). (Appellant’s brief at 30-33.)

In Alleyne, the United States Supreme Court held that the Sixth

Amendment requires that “[a]ny fact that, by law, increases the penalty for

5
Section 9718, Sentences for offenses against infant persons, provided
in relevant part, as follows:

(a) Mandatory sentence.--

(1) A person convicted of the following
offenses when the victim is less than
16 years of age shall be sentenced to a
mandatory term of imprisonment as
follows:

18 Pa.C.S. § 2702(a)(1) and (4)
(relating to aggravated assault)-
-not less than two years.

18 Pa.C.S. § 3121(a)(1), (2),
(3), (4) and (5) (relating to
rape)--not less than ten years.

18 Pa.C.S. § 3123 (relating to
involuntary deviate sexual
intercourse)--not less than ten
years.

18 Pa.C.S. § 3125(a)(1)
through (6) (relating to
aggravated indecent assault)--
not less than five years.

42 Pa.C.S.A. § 9718(a)(1).

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a crime is an ‘element’ that must be submitted to the jury and found beyond

a reasonable doubt.” Alleyne, 133 S.Ct. at 2155 (citation omitted).

Thereafter, in Wolfe, a panel of this court held that the version of

Section 9718 that was in effect from January 1, 2007 until August 17, 2014,

was unconstitutional in its entirety, in light of Alleyne and subsequent

decisions by this court. Wolfe, 106 A.3d at 806, citing, inter alia,

Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014), appeal

denied, 121 A.3d 496 (Pa. 2015) (en banc) (as “stand[ing] for the

proposition that mandatory minimum sentencing statutes in Pennsylvania of

this format are void in their entirety”). Appellant maintains that because

Section 9718 was invalidated by Alleyne, he is entitled to be resentenced

without the application of any mandatory minimum sentencing provisions.

(Appellant’s brief at 32-33.) We disagree.

Instantly, we recognize that appellant was sentenced in 2006, and

Alleyne was decided on June 17, 2013. Contrary to appellant’s contention,

this court has expressly rejected the notion that Alleyne applies

retroactively to cases on collateral review. See Commonwealth v.

Washington, 142 A.3d 810, 814-815 (Pa. 2016) (holding that the Alleyne

decision does not apply retroactively to collateral attacks upon mandatory

minimum sentences advanced in PCRA proceedings); see also

Commonwealth v. Riggle, 119 A.3d 1058, 1064 (Pa.Super. 2015) (stating

that, “while this Court has held that Alleyne applies retroactively on direct

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J. S73011/16

appeal, we have declined to construe that decision as applying retroactively

to cases during PCRA review”). Accordingly, we agree with the PCRA court

that Alleyne and its progeny do not apply retroactively to the instant

matter, which was already at the PCRA review stage at the time Alleyne

was decided.6

Based on the foregoing, we find no error on the part of the PCRA court

in dismissing appellant’s second amended petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/9/2016

6
To the extent that appellant further contends that his trial counsel were
ineffective for failing to challenge the illegality of his sentence on the basis of
Alleyne, we find that he is not entitled to relief. (See appellant’s brief at
24.) As discussed, this underlying sentencing claim is meritless, and
“counsel cannot be held ineffective for failing to pursue a meritless claim[.]”
Hall, 867 A.2d at 632.

- 15 -
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·-
PROCEDURAL HISTORY, DISCUSSION, AND ORDER ON THE PETITIONER'S ~
SECOND AMENDED PCRA PETITION

PROCEDURAL HISTORY

In late 2004 and early 2005 the Petitioner was charged at the three above-captioned

case numbers with several counts relating to sexual incidents involving multiple children. Prior

., to the Petitioner's preliminary hearing, sometime in February of 2005, the Petitioner, his

counsel, James Rague and District Attorney Jeff Leber met and discussed the possibility of a

plea agreement. At the Petitioner's preliminary hearing on March 24, 2005 the Petitioner did

not mention any plea agreement and the Petitioner's cases were bound over for trial. The

Petitioner filed a pretrial motion seeking to dismiss the case on Pa.R.Crim.P. 600 grounds;

however, the motion was dismissed by memorandum opinion on February 3, 2006. Following a

jury trial which occurred from April 4th through April th, 2006, the Petitioner was convicted of

numerous offenses and, following a sentencing reduction. was sentenced to_ a pgriQ.d_.Qf--=--=

incarceration of 19 years and 3 months to 46 years.

The Petitioner filed post sentence motions, including a motion relating to Pa.R.Crim.P.

704, which was denied. The Petitioner appealed to the Pennsylvania Superior Court which

affirmed the trial court on January 3, 2008. The Petitioner sought an allowance of appeal with

the Pennsylvania Supreme Court which was denied on November 17, 2008. The Petition filed a

1
 timely pro se PCRA Petition on October 21, 2009 and counsel was appointed by Judge John

Leete (now Senior Judge) on October 28,· 2009. After the appointment, the defense counsel

accepted a law clerk position and failed to take action on behalf of the Petitioner. No amended

petition was filed and it is unclear whether defense counsel was aware of the appointment as

he was in the middle of transition to his new position. Thereafter, Judge Stephen Minor was

elected President Judge of Potter County and took the bench in January 2010. No amended

Petition was filed and neither defense counsel, nor the Defendant communicated with the

Court. Thereafter on September 12, 2014 Judge Minor became aware of the matter when the

Petitioner filed a pro se Amended PCRA Petition. New defense counsel was appointed and,

with the assistance of counsel, the Petitioner filed a Second Amended PCRA Petition on

, February 5, 2015. Following multiple continuances a hearing was held on the Petitioner's

Second Amended PCRA Petition on July 10, 2015. Accordingly, that Petition is ripe for decision.

DISCUSSION

The Petitioner has raised twelve issues in his Second Amended PCRA Petition. The

Petitioner indicated at the July 10, 2015 hearing that all of the issues he wished to raise are

included in his SecondAmended Petition.

3"everal-of the Petitions claims are oasea- on ineffective ass1sfance ofnis various

counsel. Counsel is deemed ineffective when the issue underlying the ineffectiveness claim is

of arguable merit, the course of action chosen by counsel had no reasonable basis, and the

ineffectiveness so prejudiced the petitioner's defense that he did not receive a fair trial. See

Com. v. Milligan, 693 A.2d 1313, 1319 (Pa. Super. 1997}; Com. v. Pierce, 498 A.2d 423, 425

2
 (Pa. Super. 1985) aff'd 527 A.2d 973 (Pa. 1987).

1. Ineffective Assistance of counsel - Failure to Reduce a Plea to Writing

The Petitioner argues that his counsel was ineffective for not reducing a plea offer he

accepted to writing. He testified that District Attorney Jeff Leber made a plea offer to him on or

about February 18, 2005 at an office in Coudersport in the presence of his wife and his

attorney James Rague.When questioned on cross-examination the Petitioner testified that his

wife was not present to testify at the July 10, 2015 hearing because she has a difficult time

remembering details.

The Petitioner testified that the plea proposal was that he would plead guilty to one

count each of rape and endangering the welfare of a child, the remaining charges would be