J-S39044-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DAKOTA AUSTIN COLE : : Appellant : No. 1560 MDA 2022
Appeal from the PCRA Order Entered October 21, 2022 In the Court of Common Pleas of Union County Criminal Division at No(s): CP-60-CR-0000160-2019
BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED: DECEMBER 29, 2023
Dakota Austin Cole (Appellant) appeals from the order entered in the
Union County Court of Common Pleas dismissing his petition filed under the
Post Conviction Relief Act (PCRA),1 which sought relief from his jury
convictions of involuntary deviate sexual intercourse (IDSI) - threat of forcible
compulsion, indecent assault - forcible compulsion, indecent assault - threat
of forcible compulsion, terroristic threats, unlawful restraint, false
imprisonment, simple assault, and recklessly endangering another person2
(REAP). On appeal, he argues trial counsel was ineffective on several grounds,
including failing to properly impeach the victim or present certain evidence.
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1 42 Pa.C.S. §§ 9541-9546.
2 18 Pa.C.S. §§ 3123(a)(2), 3126(a)(2), (3), 2706(a)(1), 2902(a)(1), 2903(a), 2701(a)(3), 2705, respectively. J-S39044-23
Appellant’s present counsel, K. Michael Sullivan, Esquire, has filed a motion to
withdraw, citing Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981). While we note
the proper procedures for withdrawing in a PCRA matter are set forth in
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), we grant Attorney
Sullivan’s petition and affirm the PCRA court’s order.
The relevant underlying facts of this case are as follows. Appellant was
engaged to Katelin Bedosky (Victim). N.T. Jury Trial, 10/27/20, at 24. On
April 11, 2019, Victim and Appellant ended their relationship and immediately
thereafter, Appellant retrieved a gun from his car, and forced Victim to
perform oral sex on him. Id. at 25-26, 30. Eventually, Victim was able to
call the police, who arrived and arrested Appellant at the scene. Id. at 32.
Appellant was charged with rape by forcible compulsion, rape by threat
of forcible compulsion, strangulation, IDSI -forcible compulsion, IDSI - threat
of forcible compulsion, terroristic threats, unlawful restraint, false
imprisonment, simple assault, REAP, indecent assault - forcible compulsion,
and indecent assault - threat of forcible compulsion.3 This matter proceeded
to a one-day jury trial on October 27, 2020, where Appellant was represented
by Steve Buttorff, Esquire (Trial Counsel).
3 18 Pa.C.S. §§ 3121(a)(1), 3121(a)(2), 2718(a)(2), 3123(a)(1), respectively.
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Relevant to Appellant’s claims on appeal, Victim testified to the following
details of the incident. On April 11, 2019, she was staying at her mother’s
home on Reber Road in Mifflinburg, Union County, Pennsylvania. N.T. Jury
Trial at 24, 81. Appellant went there that day to see their dog, and during
that same visit, they ended their relationship. Id. at 24-25. Appellant became
upset and Victim was “really worried that he would hurt himself[.]” Id. at 25.
Victim went to her bedroom to use the restroom, and when she came
out Appellant was in the room. N.T. Jury Trial at 26. Appellant told her he
“had something for [her] in his car[,]” and left the house. Id. When he
returned to Victim’s bedroom, she saw “he had a magazine in one hand and
his gun in the other[.]” Id. Victim testified she was not sure whether the gun
was loaded. Id. at 28. There were two dogs there and Appellant ushered
them out of the room and shut the door. Id. at 26. Victim cried and pleaded
with Appellant to “not do whatever he was planning on doing.” Id. at 27.
Victim grabbed the magazine out of Appellant’s hand and opened the door to
throw it out of the room. See id. Appellant went to retrieve the magazine
and while he was distracted, Victim knocked the gun out of his hand, causing
it to fall “behind some boxes.” Id. at 27-28. Appellant “slammed the door on
[Victim’s right] hand,” “grabbed [Victim] by the neck[,]” and said she
“shouldn’t have fucking done that.” Id. at 28.
Appellant retrieved the gun and Victim again grabbed the magazine and
threw it out her bedroom window. N.T. Jury Trial at 28. Appellant told Victim
“he was going to tie [her] hands behind [her] back [with his belt] so [she]
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couldn’t call anybody or get away.” See id. at 29. Victim testified that she
complained the belt was hurting her, so Appellant loosened it, but she was not
able to free herself. Id. Appellant then told Victim he “could do something .
. . to make [her] really hate him” and took off his clothes. Id. Appellant took
off Victim’s pants and underwear and threw her phone across the room, where
it landed behind her dresser. Id. Appellant instructed Victim to get on her
knees and “shoved his penis in [her] mouth.” Id. at 29-30. He then pushed
Victim onto the bed where he placed his knees on her shoulders. Id. at 30.
Victim described that Appellant was “crushing” her. Id.
When Appellant got off Victim, he went to retrieve her phone by the
dresser. N.T. Jury Trial at 30. Victim grabbed the gun from his hand and ran
outside to her car, but realized it was locked and she did not have the keys.
Id. At this point, Appellant also went outside to get the magazine, and thus
Victim ran back inside and locked the door. Id. Once inside, she locked
herself in her bathroom, but Appellant was able to get back into the home.
Id. at 31.
Appellant started reading text messages from Victim’s phone and
screamed at her. N.T. Jury Trial at 31. Victim described that she was “afraid
for [her] life” and she put the gun inside a makeup bag and put that bag inside
a backpack. Id. She then opened the door and “hit [Appellant] with [the]
backpack[,] but not hard” because she did not want to further upset him. Id.
Victim “pried [Appellant’s] fingers from [her] phone” and ran upstairs. Id. at
32. She returned downstairs to get one of the dogs before going upstairs
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again and calling the police. Id. Victim initially told the police Appellant did
not hurt her, but after a female officer asked her again, Victim told them about
the assault. Id. at 41.
After the police arrived and arrested Appellant, Victim went to the
hospital, where sexual assault nurse examiner (SANE nurse) Hannah
McDowell interviewed her and took photos of her injuries. See N.T. Jury Trial
at 32-33, 103. Victim also testified that she left the belt Appellant used to
restrain her “in front of [her] bed just kind of laying on the floor.” Id. at 33.
Pertinent to Appellant’s claim on appeal, and as discussed further below, Trial
Counsel extensively cross-examined Victim about differences between
statements she gave to police and the SANE nurse and her testimony at trial.
The Commonwealth also presented Pennsylvania State Police Corporal
Joshua Kendrick, who testified that he spoke with Victim at the hospital. N.T.
Jury Trial at 93. The next day, he went to Victim’s home, where he recovered
the belt, which was “still on the floor[.]” Id. at 94-95. He testified he had no
reason to think the belt was “adjusted or manipulated in any way” and it was
“still in a loop [that was] just big enough for [Victim’s] hands to have
escaped[.]” Id. at 95. Trial Counsel then cross-examined Corporal Kendrick
about the statement Victim made to him and his recovery of the belt.
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Lastly, the Commonwealth presented the testimony of SANE Nurse
McDowell, who examined and interviewed Victim.4 N.T. Jury Trial at 103.
Nurse McDowell testified she wrote “down exactly what [Victim] sa[id].” Id.
at 110. Relevant to Appellant’s argument, Trial Counsel similarly cross-
examined Nurse McDowell regarding inconsistencies between Victim’s
statement and trial testimony.
Appellant testified in his own defense and denied that he assaulted
Victim. N.T. Jury Trial at 144. He stated that after they ended their
relationship, he retrieved his gun from his car to give to Victim, so that he
would not harm himself. Id. at 137. Appellant detailed that after getting the
gun, Victim initiated oral sex with him. Id. at 144. Appellant also stated that
he accidentally caused some of her injuries, both dogs were “jumpy,” and one
“playfully nips” when you interact with him. See id. at 133, 141. He further
explained that after oral sex, Victim allowed him to restrain her with his belt
because “[s]he kept grabbing and pulling, and [he] didn’t want either one of
[them] to get hurt.” Id. at 147. About three to four minutes later, he
removed the belt from Victim and threw it on her bed. Id. at 148-49.
At the conclusion of trial, the jury found Appellant guilty of IDSI - threat
of forcible compulsion, indecent assault - forcible compulsion, indecent assault
- threat of forcible compulsion, terroristic threats, unlawful restraint, false
4 Nurse McDowell was certified as a SANE expert at trial. N.T. Jury Trial at 103.
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imprisonment, simple assault, and REAP, and not guilty of strangulation. The
jury could not come to a verdict as to the two counts of rape and one count
of IDSI - forcible compulsion, and the trial court declared a mistrial at these
charges. Order, 10/29/20.
On January 28, 2021, the trial court sentenced Appellant to an
aggregate sentence of 57 to 180 months’ incarceration. Appellant filed a post-
sentence motion, which the trial court denied on February 9, 2021. Order,
2/9/21.
Appellant did not file a direct appeal, but instead, on January 6, 2022,
filed a timely pro se PCRA petition. He raised claims of Trial Counsel’s
ineffective assistance for failing to: (1) “properly impeach” Victim with her
prior inconsistent statements; (2) object to the Commonwealth’s closing
argument because it was “outside the realm[ ] of fairness[;]” and (3) present
a defense and expert witness testimony regarding Appellant’s mental health.5
Appellant’s Pro Se PCRA Petition, 1/6/22, at 3-4.
The PCRA court appointed Michael O’Donnell, Esquire, to represent
Appellant. Order, 1/19/22. Attorney O’Donnell did not file an amended
petition, but instead on May 2, 2022, filed a motion to withdraw. Attorney
O’Donnell explained Appellant wished to raise claims that Trial Counsel’s
cross-examination of Victim: (1) “did not adequately address concerns with ____________________________________________
5 Appellant also checked the box on his pro se petition indicating he was raising
a constitutional violation. Appellant’s Pro Se PCRA Petition at 3. However, he does not allege any claims under this argument.
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the belt[;]” (2) “did not adequately argue chain of custody” of the belt; and
(3) “did not address the inconsistencies” in Victim’s statement to the SANE
nurse. Attorney O’Donnell’s Motion for Leave to Withdraw from
Representation, 5/2/22, at 4 (unpaginated). Further, Attorney O’Donnell
presented claims on behalf of Appellant: that Trial Counsel was ineffective
when he did not call character witnesses, did not know the grading of an
offense at sentencing, and failed to play the 911 call recording at trial. Id.
Attorney O’Donnell stated most of these claims could have been addressed on
direct appeal as weight claims. Id. at 2, 4, 7. However, Appellant chose not
to file a direct appeal because Trial Counsel “advised him he could ultimately
be retried [on the counts on which the jury could not agree] and face a more
severe sentence.” See id. at 2. Attorney O’Donnell then concluded all of
Appellant’s claims were either waived or meritless. See id. at 7.
On May 6, 2022, the PCRA court filed a Pa.R.Crim.P. 907 notice of
dismissal. On May 18th,6 Appellant responded with a pro se motion requesting
leave to amend his PCRA petition. On July 22nd, the PCRA court granted
Appellant’s motion, and stayed Attorney O’Donnell’s petition to withdraw.
Order, 7/22/22. However, Appellant did not file an amended petition and on
6 Appellant mailed his motion for leave to amend on May 18, 2022, but the
PCRA court did not receive the document until June 15, 2022, after the time for filing a response expired. However, under the prisoner mailbox rule, when a pro se defendant is incarcerated, courts “deem a pro se document filed on the date it is placed in the hands of prison authorities for mailing.” Commonwealth v. Crawford, 17 A.3d 1279, 1281 (Pa. Super. 2011).
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October 21st, the PCRA court dismissed his petition and granted Attorney
O’Donnell’s petition to withdraw, but directed Attorney O’Donnell to perfect
Appellant’s appeal, should he request one. Order, 10/21/22.
On November 7, 2022, Appellant filed a pro se notice of appeal. On
November 10th, the PCRA court ordered Appellant to file a concise statement
of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). Even
though Attorney O’Donnell had been granted leave to withdraw from
representation on December 2nd, he filed a statement of intent to file a
Turner/Finley letter in lieu of a concise statement pursuant to Rule
1925(c)(4).
On April 26, 2023, Appellant filed a pro se application for remand to
represent himself pro se. See Appellant’s Application for Remand to Lower
Court for Appellant To Proceed Pro Se, 4/26/23 (unpaginated). In this
application, Appellant again asserted Trial Counsel was ineffective for failing
to challenge the chain of custody of the belt and not objecting during the
Commonwealth’s closing. Id. at 2. He also raised, for the first time, the
following additional claims that Trial Counsel was ineffective for failing to: (1)
“request expert instruction[;]” (2) “request false in one false in all jury
instruction[;]” and (3) request a jury instruction on inconsistent statements.7
Id.
7 Appellant asserted in this motion that the PCRA court did not respond to his
June 15, 2022, motion for leave to amend his PCRA petition. See Appellant’s (Footnote Continued Next Page)
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On May 9, 2023, this Court remanded the matter to the PCRA court to
clarify Appellant’s representation status. Order, 5/9/23. On June 15th, after
a hearing,8 the PCRA court again granted Attorney O’Donnell leave to
withdraw and appointed present counsel, Attorney Sullivan, to represent
Appellant. Order, 6/15/23. On August 2nd, Attorney Sullivan filed an
Anders9 brief and on August 4th, filed an Anders motion for leave to
withdraw from representation.
Application for Remand To Lower Court for Appellant to Proceed Pro Se at 3. However, as stated above, the PCRA court filed an order granting his motion on July 22nd and sent it to Attorney O’Donnell, who was still counsel of record, as well as Appellant. See Order, 7/22/22.
8A copy of this hearing transcript was not included in the certified record. This does not impact our review.
9 See Anders, 386 U.S. at 744; McClendon, 434 A.2d 1185, 1187. To withdraw from representation during PCRA proceedings, counsel must file a Turner/Finley petition and conclude all of the petitioner’s purported claims are meritless. Alternatively, when petitioning to withdraw from direct appeal representation, counsel must file an Anders brief and petition, which argues an appellant has no non-frivolous claims.
Here, Attorney Sullivan’s brief relied on Anders and its progeny. See Anders Brief at 6. However, he has concluded Appellant’s claims are both “frivolous” under Anders, as well as “meritless,” which comports with the correct Turner/Finley standard for PCRA withdrawals. See id. at 6, 18. In any event, we determine Attorney Sullivan substantially complies with the requirements of Turner/Finley. See Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011) (stating Anders provides higher protections than Turner/Finley, and thus a brief and petition that complies with Anders also complies with the Turner/Finley standard).
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We surmise the following claims from Attorney Sullivan’s brief — that
Trial Counsel failed to:10 (1) properly impeach Victim with prior inconsistent
statements; (2) object to the chain of custody of the belt used to restrain
Victim; (3) object to “prejudicial incendiary comments” in the
Commonwealth’s closing argument; (4) present a defense and expert witness
with respect to Appellant’s mental health; (5) call character witnesses at trial;
(6) play the 911 call recording at trial; (7) know the grading of one of
Appellant’s convictions at sentencing; (8) request a “False in one, False in All”
jury instruction; and (9) request an expert witness jury instruction. See
Anders Brief at 11-13.11
Preliminarily, we address Attorney Sullivan’s motion to withdraw as
counsel. In a PCRA matter, an application to withdraw as counsel must comply
with the Turner/Finley requirements:
Counsel petitioning to withdraw from PCRA representation must proceed . . . under [Turner and Finley, and] must review the case zealously. Turner/Finley counsel must then submit a “no- merit” letter to the trial court, or brief on appeal to this Court, detailing the nature and extent of counsel’s diligent review of the case, listing the issues which petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw.
10Attorney Sullivan did not include a “questions presented” section in his Anders brief.
11 Attorney Sullivan also recognized that Appellant attempted to raise a constitutional claim, but concluded it fell under an ineffectiveness argument. See Anders Brief at 11.
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Counsel must also send to the petitioner: (1) a copy of the “no merit” letter/brief; (2) a copy of counsel’s petition to withdraw; and (3) a statement advising petitioner of the right to proceed pro se or by new counsel.
Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citation
omitted). If this Court determines counsel has satisfied these technical
requirements, we “must then conduct [our] own review of the merits of the
case. If [we] agree[ ] with counsel that the claims are without merit, [we]
will permit counsel to withdraw and deny relief.” Id. (citation omitted).
Here, Attorney Sullivan has satisfied the above procedural
requirements. In his brief, he discusses Appellant’s potential claims, the
relevant case law and supporting documents, and the reasons why the issues
are without merit. Attorney Sullivan has also submitted a motion for leave to
withdraw, stating he sent copies of the brief and “an advisory letter” to
Appellant. Motion for Leave to Withdraw From Representation, 8/4/23, at 2
(unpaginated); Letter From Attorney Sullivan to Appellant, 8/4/23. Attorney
Sullivan attached a copy of the letter, which advised Appellant of his
conclusion the appeal would lack arguable merit, and Appellant’s right to
retain alternative counsel or proceed pro se. Appellant has not filed a
response to the motion to withdraw or brief. Thus, we proceed to conduct an
independent review of the record to determine if the appeal lacks merit. See
Doty, 48 A.3d at 454.
Our standard of review under the PCRA is limited to “whether the PCRA
court’s findings of fact are supported by the record, and whether its
conclusions of law are free from legal error.” Commonwealth v. Small, 238
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A.3d 1267, 1280 (Pa. 2020). Appellant raises several claims of ineffective
assistance of counsel. Attorney Sullivan and the PCRA court both agree that
most of Appellant’s claims are waived as they should have been raised on
direct appeal as challenges to the weight of the evidence. Anders Brief at
11; see PCRA Ct. Op., 10/21/22, at 3-4. The court then stated that,
alternatively, each of the claims are without merit. See PCRA Ct. Op. at 4.
As Appellant has presented each of his claims under the purview of ineffective
assistance of counsel, we will review them as such.
Counsel is presumed to have rendered effective assistance.
Commonwealth v. Urwin, 219 A.3d 167, 172 (Pa. Super. 2019). To succeed
on a claim otherwise, the petitioner must plead and prove:
his underlying legal claim has arguable merit; counsel’s actions lacked any reasonable basis; and counsel’s actions prejudiced him. Failure to satisfy any prong of the ineffectiveness test requires dismissal of the claim. . . .
We note that Appellant raises two claims for the first time on appeal —
that Trial Counsel failed to: (1) request a “False in one, False in All” jury
instruction; and (2) request an expert witness jury instruction.12 Anders Brief
at 13. Neither of these claims were presented in Appellant’s original pro se
PCRA petition or Attorney O’Donnell’s motion to withdraw, wherein he raised ____________________________________________
12 Appellant also raised a claim that Trial Counsel failed to request jury instructions on inconsistent statements. See Appellant’s Application for Remand to Lower Court For Appellant to Proceed Pro Se, at 2. It appears he has abandoned this claim on appeal.
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additional claims on Appellant’s behalf. Appellant raised these claims for the
first time in his application to proceed pro se, which he filed after his petition
was dismissed. See Appellant’s Application for Remand to Lower Court For
Appellant to Proceed Pro Se at 2. We conclude these claims, concerning Trial
Counsel’s failure to request jury instructions, are waived. See Pa.R.A.P.
302(a) (“Issues not raised in the trial court are waived and cannot be raised
for the first time on appeal.”).
Next, we address Appellant’s purported claims that Trial Counsel did not
properly impeach Victim, and did not properly cross-examine Victim or other
witnesses about the chain of custody and “preservation” of the belt. See
Anders Brief at 12. In the Anders Brief, Attorney Sullivan suggests Trial
Counsel did address each of these claims during trial. Id. at 13-14. We agree
with Attorney Sullivan.
At trial, Trial Counsel extensively cross-examined Victim. See N.T. Jury
Trial at 48-49 (Victim’s statement about where Appellant had his hands prior
to the assault), 51-52 (Victim testifying that she was not sure if Appellant’s
gun was loaded, but she told the SANE nurse and previously testified at a prior
proceeding the gun was not loaded), 53-57 (Victim’s differing statements as
to whether she thought Appellant was only going to harm himself or also harm
her and whether Appellant purposefully or accidentally slammed her hand in
the door), 59 (Victim did not initially tell the SANE nurse or police that
Appellant prevented her from calling for help), 66 (Victim’s differing
statements as to whether it was easy to grab her phone back from Appellant
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or if she had to pry it out of his hands), 67-69 (Victim testifying inconsistently
with her prior statements regarding how hard she hit Appellant with her
backpack).
Trial Counsel also cross-examined Corporal Kendrick regarding
inconsistencies between Victim’s statement to him and his observation of the
placement of the belt in Victim’s home when he secured it into evidence. See
N.T. Jury Trial at 97 (the officer agreeing he did not “know if anything was
moved around or if [the belt remained in the same place] between the time
[he] investigated and the time of the . . . incident[.]”), 98 (Victim never
reported that Appellant threw her phone or grabbed her neck). Lastly, Trial
Counsel cross-examined the SANE nurse about Victim’s statement. See id.
at 121 (pointing out Victim’s left hand was injured instead of her right hand;
Victim had no neck injuries despite claiming Appellant “grabbed” her there),
122-124 (Victim did not report that Appellant’s “knees were crushing her
shoulders[,]” that he threw her phone, or that he grabbed her arm or leg;
Victim only told the nurse that Appellant “pushed her back on the bed[;]”
Victim told the nurse Appellant’s gun was not loaded, and did not tell the nurse
that she had to use the bathroom before Appellant retrieved his gun), 125
(Victim did not tell the nurse that she tried to go outside to her car or that
Appellant was locked out), 125-26 (Victim stated she ran upstairs and her dog
followed her).
The record demonstrates that Trial Counsel conducted a detailed cross
examination of not only Victim, but of two other witnesses regarding the
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inconsistencies in her prior statements and trial testimony. Further, Trial
Counsel questioned Corporal Kendrick regarding preservation of the belt,
specifically, whether the evidence was tampered with before he arrived at
Victim’s home. Appellant does not allege what further evidence Trial Counsel
could have elicited during cross-examination and does not address the
detailed lines of cross-examination Counsel did pursue at trial. Appellant
merely implies he was not satisfied with Counsel’s performance. As Appellant
has not demonstrated any of the prongs of a proper ineffectiveness claim, no
relief is due. See Urwin, 219 A.3d at 172.
Next, Appellant claims Trial Counsel was ineffective for failing to object
to “prejudicial incendiary comments” the Commonwealth made during its
closing argument. Anders Brief at 16. Attorney Sullivan suggests in his
Anders brief that the Commonwealth’s closing was not “outside the realm of
fairness” and Trial Counsel was not ineffective for failing to object. Id.
Notably, Appellant has not pointed to specific comments made by the
Commonwealth that he believed were inflammatory.
Upon review of the record, we summarize that in its closing argument,
the Commonwealth argued Victim was a credible witness despite some
inconsistencies in her prior statements, Appellant’s testimony was not
credible, and that it presented evidence of each of the elements of the charged
crimes. See N.T. Jury Trial at 185-89. Appellant has failed to identify any
particularly objectionable comment in the Commonwealth’s argument, nor has
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he explained how the purported comments prejudiced him. For this reason,
no relief is due. See Urwin, 219 A.3d at 172.
Appellant’s next claim is that Trial Counsel was ineffective when he did
not present a mental health-based defense or call an expert witness regarding
Appellant’s mental health. Anders Brief at 12. Attorney Sullivan contends
that Trial Counsel did address Appellant’s mental health throughout trial and
Appellant has not alleged what other evidence could have been presented.
Id. at 16-17.
We note Trial Counsel questioned Victim about Appellant’s mental
health. See N.T. Jury Trial at 46 (asking Victim if she said she “couldn’t marry
someone who might shoot themselves some day”), 50 (asking Victim if
Appellant told her “he didn’t know if he could keep his promise not to hurt
himself”), 52 (Appellant told Victim “this would be his final good-bye”), 53-
54, (Trial Counsel asked Victim if she was “pleading with [Appellant] not to
kill himself” and if she was “willing to do anything” to prevent Appellant from
hurting himself), 57 (asking Victim if she was concerned whether Appellant
was going to kill himself), 71 (Victim told the 911 dispatcher she was scared
Appellant was going to hurt himself). Further, Trial Counsel’s closing
highlighted, inter alia, that: (1) Appellant had “mental health struggles[;]” (2)
he had a history with “threaten[ing] harm on himself[;]” (3) he intended to
kill himself and give his “final good-bye” that day; and (4) Victim knew that
“he[ was] on the verge of ending his life.” See id. at 177-81, 184.
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We emphasize Appellant also testified about his own mental health at
trial. See N.T. Jury Trial at 131 (Appellant stating Victim was concerned for
his mental health and on the day of the incident he was “struggling with a lot
of self-harm and suicidal thoughts”), 135-37 (Victim told Appellant on the day
of the incident — and he agreed — that he needed to get help for his mental
health), 138-39 (Appellant stating he did not yet decide whether he was going
to commit suicide and describing the gun as his “only option”), 142 (Appellant
told Victim it was “the last time” that she or her family would see him), 156
(Appellant stated he called a friend to “talk [him] off the ledge” after the
incident), 158 (Appellant loaded the gun and “started to contemplate . . .
pulling the trigger[;]” Appellant checked himself into the hospital that same
day).
We note:
[I]t is well settled that the “failure to call [an expert] witness is not per se ineffective assistance of counsel as such decision generally involves a matter of trial strategy.” A claim that counsel was ineffective for failing to call a potential expert witness to testify at trial requires a petitioner to “establish that the witness existed and was available, that counsel was informed of the witness’ existence, that the witness was ready and willing to testify[,] and that the absence of the witness prejudiced the defendant to a point where the defendant was denied a fair trial.”
Commonwealth v. Smith, 167 A.3d 782, 793 (Pa. Super. 2017) (citations
omitted).
Contrary to Appellant’s purported claim, Trial Counsel presented his
mental health as a central factor of the trial. Trial Counsel elicited testimony,
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from both Appellant on direct examination and Victim on cross-examination,
that Appellant generally struggled with his mental health, and specifically did
so on the day of the assault. In his closing argument, Trial Counsel also
focused on Appellant’s mental state prior to and during the incident. Thus,
the record belies Appellant’s claim that Trial Counsel did not present this
defense. Regarding his claim that Trial Counsel should have called an expert
witness, Appellant has not alleged that he has found a potential expert who
would have testified on his behalf, nor what additional evidence the witness
would present. For these reasons, Appellant has failed to demonstrate that
Trial Counsel was ineffective related to this claim and no relief is due. See
Urwin, 219 A.3d at 172; Smith, 167 A.3d at 793.
Appellant next claims Trial Counsel was ineffective when he failed to call
character witnesses at trial. Anders Brief at 12. Attorney Sullivan states in
his Anders brief that Appellant has not identified any potential character
witnesses. Id. at 15.
An attorney’s failure to call certain witnesses is not ineffectiveness per
se. Commonwealth v. Cox, 983 A.2d 666, 693 (Pa. 2009). To establish
ineffectiveness under such a claim, the petitioner must establish:
(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. Puksar, 951 A.2d 267, 277 (Pa. 2008).
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As Attorney Sullivan argued in his brief, Appellant has not identified any
character witnesses Trial Counsel should have presented at trial. Thus,
Appellant has failed to establish any of the prongs of ineffectiveness and this
claim must fail. See Urwin, 219 A.3d at 172; Puksar, 951 A.2d at 277.
Appellant next claims Trial Counsel was ineffective for appearing not to
know the grading of one of his convictions during sentencing. Anders Brief
at 12.
Relevant to this argument, the following interaction occurred at the
sentencing hearing:
[Commonwealth: C]learly here the main charge is [IDSI - threat of forcible compulsion]. That’s the [first-degree felony].
* * *
[Trial Counsel: I] just need to point out, I don’t think [IDSI - threat of forcible compulsion] was a [first-degree f]elony[.] Obviously there is a disagreement on the facts.
[Trial Court]: Yeah, it is. [That charge] is a[ first-degree felony].
N.T. Sentencing, 1/28/21, at 6-7.
Appellant has not explained, and this Court is not aware, how this
interaction caused him prejudice at any stage of his proceedings. Because
Appellant did not establish he was prejudiced by this exchange, his claim must
fail and no relief is due. See Urwin, 219 A.3d at 172.
Lastly, Appellant claims Trial Counsel was ineffective for failing to play
a recording of Victim’s 911 phone call. See Anders Brief at 12. Attorney
Sullivan avers that at trial, Trial Counsel adequately cross-examined Victim
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about the contents of the call, and thus provided a reasonable basis for his
conduct. See id. at 15-16.
Regarding the reasonable basis prong of the ineffectiveness test:
[T]he PCRA court does not question whether there were other more logical courses of action which counsel could have pursued; rather, [the court] must examine whether counsel’s decisions had any reasonable basis. Where matters of strategy and tactics are concerned, [a] finding that a chosen strategy lacked a reasonable basis is not warranted unless it can be concluded that an alternative not chosen offered a potential for success substantially greater than the course actually pursued. . . .
Commonwealth v. Mason, 130 A.3d 601, 618 (Pa. 2015) (citations &
quotation marks omitted).
When determining what is reasonable, counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. . . . Counsel’s judgment must be reviewed from counsel’s perspective at the time and should not be second- guessed if it falls within the realm of professional reasonableness. ...
Commonwealth v. McClellan, 887 A.2d 291, 300 (Pa. Super. 2005)
(citations omitted).
Relevant to this claim, Trial Counsel highlighted that when Victim called
911, she only told the dispatcher she was afraid Appellant was going to hurt
himself. N.T. Jury Trial at 71. Victim confirmed during cross-examination that
she did not tell the dispatcher that she was harmed, that she was “forced into
sex[,]” she was “scared for [her] life or in any physical danger[,]” and when
the dispatcher asked her if there was a “dispute[,]” Victim told them “not
really[.]” Id. at 70-72. Trial Counsel also explained during closing arguments
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that he did not play the 911 phone call because Victim “admitted to everything
[he] would have played [on] the audio.” Id. at 183.
As Attorney Sullivan points out in his brief, Trial Counsel explained
during his closing argument why he did not play the 911 recording. See
Anders Brief at 15; see also N.T. Jury Trial at 183. The PCRA court concluded
Appellant failed to demonstrate Trial Counsel acted without a reasonable
basis. See PCRA Ct. Op. at 4. We agree. Trial Counsel specifically stated
there was no reason to play the audio because Victim “admitted” she did not
tell the dispatcher Appellant assaulted her, that she was in danger, or that she
was afraid for her own safety. See N.T. Jury Trial at 70-72, 183. Appellant
has not demonstrated that Trial Counsel’s chosen strategy lacked any
reasonable basis, or an alternative strategy would have offered higher
potential for success. See Mason, 130 A.3d at 618. Thus, Trial Counsel’s
actions fell “within the realm of professional reasonableness” and no relief is
due. See Urwin, 219 A.3d at 172; McClellan, 887 A.2d at 300.
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In conclusion, we determine Appellant has waived his claims regarding
Trial Counsel’s failure to request jury instructions because he did not raise
them before the PCRA court, and his remaining claims of ineffectiveness are
meritless. Further, our independent review of the record reveals there are no
non-meritless issues to be raised on appeal. Accordingly, we grant Attorney
Sullivan’s petition to withdraw and affirm the PCRA court’s Order dismissing
Appellant’s PCRA petition.
Order affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 12/29/2023
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