J-S16014-25
2025 PA Super 227
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOSHUA LEE HOLLABAUGH : : Appellant : No. 1356 MDA 2024
Appeal from the PCRA Order Entered August 22, 2024 In the Court of Common Pleas of Huntingdon County Criminal Division at No(s): CP-31-CR-0000246-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOSHUA LEE HOLLABAUGH : : Appellant : No. 1357 MDA 2024
Appeal from the PCRA Order Entered August 22, 2024 In the Court of Common Pleas of Huntingdon County Criminal Division at No(s): CP-31-CR-0000247-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOSHUA LEE HOLLABAUGH : : Appellant : No. 1358 MDA 2024
Appeal from the PCRA Order Entered August 22, 2024 In the Court of Common Pleas of Huntingdon County Criminal Division at No(s): CP-31-CR-0000248-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA J-S16014-25
: v. : : : JOSHUA L. HOLLABAUGH : : Appellant : No. 1359 MDA 2024
Appeal from the PCRA Order Entered August 22, 2024 In the Court of Common Pleas of Huntingdon County Criminal Division at No(s): CP-31-CR-0000249-2017
BEFORE: LAZARUS, P.J., BOWES, J., and LANE, J.
OPINION BY LAZARUS, P.J.: FILED: OCTOBER 3, 2025
Joshua Lee Hollabaugh appeals from the orders, entered in the Court of
Common Pleas of Huntingdon County, denying his petitions for relief filed
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.
We affirm.
The Commonwealth charged Hollabaugh with various sexual offenses
committed against four separate minor females: T.S., K.S., E.S., and M.B.1
The four victims were linked by the fact that Hollabaugh’s parents babysat or
otherwise supervised the girls.
K.S., who was sixteen years old at the time of trial, was the first to
disclose the abuse to authorities. She testified that her mother married
Hollabaugh’s brother and the three lived at the Hollabaugh residence when
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1 Each of the four dockets corresponds to one of the victims. Additionally, Hollabaugh was born in December of 1984 and the earliest incident of abuse testified to by the victims occurred in roughly 2001, and the latest in 2009. Thus, Hollabaugh was between the ages of seventeen and twenty-five at the time of the offenses.
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she was “five or six” years old. N.T. Trial, 8/28/18, at 32. K.S., her mother,
and her mother’s husband lived upstairs, along with Hollabaugh, who is deaf.
K.S. testified that one day Hollabaugh signaled to her and two other girls, E.S.
and H.N., that they should help clean his bedroom. Once inside the bedroom,
Hollabaugh exposed himself. K.S. saw Hollabaugh grabbing H.N’s hand and
placing it on “his exposed area.” Id. at 39. Hollabaugh then directed K.S.
over, put her hand on his penis, and forced her to perform oral sex. She
testified that she was “[a]round like six” when this occurred, estimating her
age based on the fact she “was on a t-ball team [at that time], and you can
only be on t-ball from five to seven.” Id. She eventually disclosed the abuse
to her mother, who then contacted the authorities.
Pennsylvania State Police Trooper Jonathan Thomas discovered the
abuse of the other girls based on K.S.’s forensic interview and subsequent
investigation. T.S., who was twenty-one years old at the time of trial, testified
that she began visiting the residence when she was about four years old and
ended when she was about sixteen. Id. at 81. She testified to “a few
incidents” that she “remember[ed] just vaguely.” Id. at 82. The first occurred
when T.S. was “anywhere from ten to twelve,” when Hollabaugh “tried to show
[her] something on his computer.” Id. As T.S. looked at the monitor,
Hollabaugh “grabbed and fondled [her] breast.” Id. On another occasion,
when T.S. was approximately twelve years old, Hollabaugh again motioned to
have her look at his computer. When she “went in to look, [she] asked” for
“one of his cigarettes,” and he agreed “as long as he could touch [her] breast.”
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Id. at 83. Hollabaugh then placed his hand under her shirt and squeezed her
breast. Id.
Around the time T.S. was twelve or thirteen years old, Hollabaugh drove
her to a convenience store and bought cigarettes. T.S. asked to have one,
and he drove her to a cemetery. Once there, he wrote a text on his phone,
saying “he would give [her] a cigarette if [she] put [her] mouth on his penis.”
Id. at 85. She agreed and did so. Id.
E.S., one of the two girls present in the bedroom for the incident
involving K.S., was eighteen years old at the time of trial. She started going
to the Hollabaugh’s home around the age of four to five. She testified that
about five kids would be there on any given day, and recalled seeing K.S.,
who “lived there for a little.” Id. at 55. “[T.S.] was there a lot[,] too.” Id.
Regarding the bedroom incident, she testified that Hollabaugh “wrote
something down,” but, because the kids could not read yet, “he got his dick
out – his penis – and he kept pointing to it and pointing at us.” Id. at 57. He
“pointed at the posted [sic] note that he wrote on.” Id. at 58. Hollabaugh
then forced E.S. to perform oral sex. Id. She testified that K.S. “was on the
bed” and believed “[Hollabaugh] got on top of [K.S.] and he did have his penis
out,” but she “honestly [could not] remember” the details. Id. at 59. E.S.
also recalled that H.N., her cousin, was in the room.2
2 H.N. testified as a defense witness and stated Hollabaugh did not abuse her
and that this incident did not occur.
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M.B. was twenty-two years old at the time of trial and testified that her
grandmother lived across the street from Hollabaugh’s home. She visited her
grandmother during the summer and would often cross the street to play
outside with the other children. While she rarely went inside the Hollabaugh
home, one day she “went inside to use the [upstairs] bathroom.” Id. at 67.
She passed Hollabaugh’s bedroom, and he motioned her over. He “started
rubbing [her] leg” and eventually “forcefully grabb[ed her] vagina[.]” Id. at
68. She believed that she was about seven years old at the time. Id. at 69.
Hollabaugh was convicted of various crimes and sentenced to an
aggregate period of 26½ to 53 years of incarceration. This Court affirmed
Hollabaugh’s judgment of sentence on direct appeal. See Commonwealth
v. Hollabaugh, 240 A.3d 182 (Pa. Super. 2020) (Table). Hollabaugh filed
identical timely PCRA petitions at each of the four dockets. The PCRA court
held an evidentiary hearing and denied relief. Hollabaugh timely appealed3
and he and the PCRA court complied with Rule 1925. We sua sponte
3 Hollabaugh filed a separate notice of appeal at each docket listing all four criminal docket numbers. Each notice is separately timestamped and has a checkmark next to the appropriate case. This Court initially determined that, under Commonwealth v. Walker, 185 A.3d 969 (Pa. 2020), a notice of appeal is defective if it lists more than one docket number. See Commonwealth v. Creese, 216 A.3d 1142 (Pa. Super. 2019). We subsequently overruled Creese in Commonwealth v. Johnson, 236 A.3d 1141 (Pa. Super. 2020) (en banc), where the appellant filed separate notices of appeal listing all docket numbers and italicized the relevant docket. “The fact that each notice of appeal listed all four docket numbers does not invalidate his notices of appeal, and we decline to quash his appeals.” Id. at 1148. We therefore find that quashal is not warranted.
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consolidated the appeals. See Pa.R.A.P. 513. Hollabaugh presents four issues
for our review.
I. Whether [t]rial [c]ounsel was ineffective for failing to present, let alone discuss, the prospect of presenting character witnesses at [t]rial?
II. Whether [t]rial [c]ounsel was ineffective for failing to try and secure . . . case files from Huntingdon County Children’s Services, which contained prior inconsistent statements and other exculpatory evidence that could have been used at [t]rial?
III. Whether [t]rial [c]ounsel was ineffective in failing to adequately prepare for [t]rial with both []Hollabaugh and one or more [c]ertified [American Sign Language (ASL)] [i]nterpreters?
IV. Whether [t]rial [c]ounsel was ineffective in failing to demand the use of a [c]ertified [d]eaf ASL [i]nterpreter [t]eam with one of the members being a truly [d]eaf [c]ertified ASL [i]nterpreter at [t]rial since []Hollabaugh is fully [d]eaf and was unable to understand or appreciate the testimony at [t]rial as the [t]rial proceeded in real time?
Appellant’s Brief, at 4.
This Court’s standard of review regarding an order denying a petition
under the PCRA is whether the determination of the PCRA court is supported
by evidence of record and is free of legal error. Commonwealth v. Burkett,
5 A.3d 1260, 1267 (Pa. Super. 2010) (citations omitted). “The PCRA court’s
credibility determinations, when supported by the record, are binding on this
Court; however, we apply a de novo standard of review to the PCRA court’s
legal conclusions.” Commonwealth v. Miranda, 317 A.3d 1070, 1075 (Pa.
Super. 2024) (citation omitted).
Each of Hollabaugh’s claims challenges the stewardship of trial counsel,
Lance Marshall, Esquire. Counsel is presumed effective and we “must indulge
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a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome the
presumption[.]” Strickland v. Washington, 466 U.S. 668, 689 (1984). To
do so, the petitioner must establish both deficient performance and prejudice,
and the “[f]ailure to make the required showing of either . . . defeats the
ineffectiveness claim.” Id. at 700. Our Supreme Court has “refined the
Strickland performance and prejudice test into a three-prong analysis.”
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).
The petitioner must plead and prove that: “(1) his underlying claim is of
arguable merit; (2) counsel had no reasonable basis for his action or inaction;
and (3) the petitioner suffered actual prejudice as a result.” Id. “The failure
to satisfy any one of these criteria is fatal to the claim. To establish prejudice
in the context of this standard, a petitioner must establish that there is a
reasonable probability that the result of the proceeding would have been
different but for the complained-of conduct.” Commonwealth v. Thomas,
323 A.3d 611, 621 (Pa. 2024) (citations omitted).
In Hollabaugh’s first claim, he challenges trial counsel’s failure to call
character witnesses. The bulk of his argument addresses the importance of
such witnesses, especially in credibility battles like this one, and criticizes trial
counsel’s rationale for failing to investigate.
Hollabaugh is correct that character witnesses may be crucial in cases
where the only evidence linking the defendant to the crime is an accuser’s
testimony. In Commonwealth v. Alceus, 315 A.3d 853 (Pa. Super. 2024),
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we reversed an order denying PCRA relief and ordered a new trial for counsel’s
failure to call character witnesses in a case where the victim and the defendant
offered contradictory accounts. Id. at 868. “[T]his Court has long recognized,
and more recently reaffirmed in non-precedential decisions, that in ‘he said,
she said’ cases, trial counsel may be found to have provided ineffective
assistance for failing to present character witnesses.” Id. at 862–63. Trial
counsel representing Alceus, like Attorney Marshall here, “admitted . . . that
he never discussed the potential to call character witnesses” with his client.
Id. at 858. We held that “trial counsel’s failure to conduct any investigation
into the availability of character witnesses” was not a reasonable strategic
choice, as “there was no known bad character evidence for the Commonwealth
to present” and the character testimony would bolster the strategy of showing
the witnesses were lying. Id. at 865.
Hollabaugh primarily takes issue with the PCRA court’s conclusion that
Attorney Marshall articulated a sufficient basis for declining to present
character witnesses. We agree that his testimony in that regard does not
evidence a valid strategic basis.4 The problem, however, is that Hollabaugh
4 Attorney Marshall testified that he made a conscious decision not to call character witnesses, explaining that he “went to church with Jerry Sandusky” and “everybody or at least the people in my circle” would have believed he was innocent, including himself. N.T. PCRA Hearing, 3/30/23, at 16. This was essentially his only explanation for rejecting character witnesses, and he conceded that he did not discuss the issue with Hollabaugh or investigate any potential character witnesses. Id. at 17. As in Alceus, we conclude that this was not a sufficient strategic basis since counsel failed to investigate any character witnesses.
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must establish that his claim is of arguable merit and that he was prejudiced
by counsel’s failure to investigate, which required him to present the
testimony of the character witnesses that, in his view, Attorney Marshall
should have called. At the PCRA hearing, Hollabaugh did not present any
witnesses to testify to their availability and willingness to serve as character
witnesses. Hollabaugh testified that Kelly Parks “was a teacher that [he] had”
and who he “learned a lot from in all subjects.” N.T. PCRA Hearing, 5/1/23,
at 57. “And then Iva Hinton was [his] interpreter” from elementary through
high school. Id. He also identified Ben Grove, “a good friend” with whom he
“did a lot of social things,” as well as Ben’s sister, Ashley. Id. After listing
these individuals, PCRA counsel asked: “Do those individuals that you just
identified, are those individuals that you believe could possibly have served
as character witnesses for you at trial?” Id. at 57. Hollabaugh replied, “Yes.”
Id. at 58. On cross-examination, Hollabaugh conceded that he had not
spoken to these witnesses.
Q. You indicated that you had at least four character witnesses that you would call for trial?
A. Yes.
Q. Are any of those witnesses here today?
A. No, they are not. They would need to be informed about coming to court.
Q. And would it be fair to say you have no idea whether or not they would agree to be a character witness or what they would say about your character?
A. Okay, can you say that again?
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Q. Yes. You never spoke to them or your attorney never spoke to them about being a character witness?
A. No, no, I haven’t.
Q. Including your PCRA counsel? . . . Do you know if he interviewed any of those witnesses?
A. No, I don’t know.
Q. So[,] would it be fair to say even though you may want them as character witnesses, you have no idea what they would say?
A. That’s correct. I wouldn’t know.
Id. at 73.
Hollabaugh does not cite a case in which trial counsel was deemed
ineffective for failing to call character witnesses whose willingness to testify is
unknown.5 He cites Commonwealth v. Weiss, 606 A.2d 439 (Pa. 1992), a
case in which the appellant offered the testimony of several character
witnesses, at a hearing his on post-verdict motion, to support of his claim that
trial counsel was ineffective. Id. at 442. Because the witnesses testified, the
case is distinguishable. He also cites Commonwealth v. Hull, 982 A.2d 1020
(Pa. Super. 2009), but that case focused on whether counsel articulated a
5 Hollabaugh’s brief alludes to the possibility that prejudice is presumed if trial counsel fails to have the client decide whether character witnesses should be presented. See Appellant’s Brief, at 34 (“Trial counsel should have been deemed to be ineffective . . . in not discussing the subject of character witnesses, let alone failing to present character testimony at [t]rial and by failing to fully advise []Hollabaugh prior to [t]rial about the importance of obtaining character witnesses[.]”). He offers no citation for this proposition. “Some decisions, however, are reserved for the client—notably, whether to plead guilty, waive the right to a jury trial, testify in one’s own behalf, and forgo an appeal.” Robert Leroy Mccoy v. Louisiana, 584 U.S. 414, 422 (2018). We do not agree that the choice to call character witnesses is exclusively left to the defendant.
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sufficient reasonable basis for failing to call known character witnesses who
spoke to counsel in advance of trial. Id. at 1022. There, the attorney
“appeared to have a lack of understanding with regard to the importance of
reputation testimony [and] appeared to be unaware that evidence of good
character in and of itself could raise a reasonable doubt of the defendant’s
guilt[.]” Id. at 1025 (quoting PCRA court opinion). Additionally, the parties
may have stipulated to what the witnesses would say at trial. Id. at 1022 (“It
is not contested that there were available witnesses who were willing and able
to testify as to [Hull]’s good character at trial.”). There is no such agreement
here.6
One decision cited by Hollabaugh somewhat supports his position. In
Commonwealth v. Luther, 463 A.2d 1073 (Pa. Super. 1983), at the
evidentiary hearing, “[Luther] produced the names of nine potential character
witnesses who stated that they would have been willing to testify at his trial
6 Even if the Commonwealth had stipulated to the credibility of the proposed
character witnesses, it is not clear that the PCRA court could lawfully accept the stipulation. See Commonwealth v. Perrin, 291 A.3d 337, 346 n.7 (Pa. 2023) (“We do not address the question of whether the trial court, in its discretion, may accept a proposed stipulation as to witness credibility[.]”); id. at 347 (Pa. 2023) (Dougherty, J., concurring) (opining that “purported stipulations to witness credibility are invalid ab initio”). Thus, the Hull decision may rest on shaky grounds.
Relatedly, it is not clear whether any such stipulation could bind the courts on appeal. Cf. Commonwealth v. Brown, 196 A.3d 130, 145 (Pa. 2018) (“In short, the PCRA requires judicial merits review favorable to the petitioner before any relief may be granted. A confession of error by the Commonwealth does not constitute a judicial ruling in Brown’s favor, and thus is insufficient for any grant of relief under the PCRA.”) (emphasis omitted).
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and would be willing to testify on his behalf at a future trial.” Id. at 1079 n.2.
This footnote is the only reference to the issue. However, Luther was decided
in 1983, before the Supreme Court issued its decision in Strickland. Indeed,
the word “prejudice” does not appear in the Luther opinion, and, after
determining there was arguable merit to the ineffectiveness claim, we
“proceed[ed] to a study of whether there was any reasonable basis for the
failure of trial counsel to provide for the presentation of character testimony.”
Id. at 1078. We, therefore, presumed prejudice due to the absence of a
reasonable strategic basis. That theory is incompatible with Strickland. See
Commonwealth v. Pierce, 527 A.2d 973, 976 (Pa. 1987) (“[T]o the extent
that [Commonwealth ex rel. Washington v.] Maroney[, 235 A.2d 349
(Pa. 1967)] or [Commonwealth v.] Badger[, 393 A.2d 642 (Pa. 1978)] have
been interpreted to exclude prejudice from analysis of ineffectiveness claims,
that language is expressly overruled.”). Luther is therefore not controlling.
Finally, we add that our Supreme Court has stated that “one of the
primary reasons PCRA hearings are held in the first place is so that credibility
determinations can be made; otherwise, issues of material fact could be
decided on pleadings and affidavits alone.” Commonwealth v. Johnson,
966 A.2d 523, 539 (Pa. 2009). By failing to present the witnesses who
Attorney Marshall should have discovered, Hollabaugh has not established
that this claim has arguable merit. See Commonwealth v. Connolly, 689
A.2d 950, 952 (Pa. Super. 1997) (“In order to present an issue of arguable
merit premised upon counsel's failure to call character witnesses, it must be
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established that: . . . the witness was willing to testify on appellant’s behalf
at trial[.]”).
Hollabaugh’s second claim involves PCRA counsel’s discovery of
additional records regarding E.S. Hollabaugh obtained a subpoena for records
from the Huntingdon County Children and Youth Services Agency, which were
reviewed in camera by the trial court and then disclosed to Hollabaugh.
Counsel then
came upon a singular gem in the form of a prior inconsistent statement that would have bolstered, amplified, and fully supported [t]rial counsel’s primary “theory of the case” and likely acquitted []Hollabaugh of some or all of the charges[,] since the time frame first given by . . . [E.S] was at a time and date when that person was not even being watched by the mother of []Hollabaugh.
Appellant’s Brief, at 38.
Briefly, we note that the Commonwealth initially objected to any
mention of the statement itself, arguing that it did not possess the relevant
document and was unaware that the trial court had reviewed it. The
Commonwealth explained that a Multiple Disciplinary Task (MDT) team meets
“to have communication with stakeholders about moving forward with cases,”
and the prosecutor stated he would “shut that whole program down” if its
records were subject to disclosure. N.T. PCRA Hearing, 5/1/23, at 52. Thus,
it is unknown who authored the document. As the Commonwealth described
it, “the report . . . is somebody’s recollection of what somebody else
interviewed that the child said, it’s double, triple hearsay.” Id. at 53. The
PCRA court replied, “That’s why I’m not admitting it.” Id. Thus, we have only
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the offer of proof made by PCRA counsel, who appeared to agree with the
PCRA court’s ruling that the statement itself was inadmissible, regarding the
statement’s content.7 Hollabaugh described the document as follows: “There
is a note MDT meeting date. It’s either [5] or [3]/9/17. There’s a whole [sic]
punched through the top of the number. And under [‘]team
recommendations[’] it states [‘E.S.] gave oral sex to him/about ten years
old.[’]” Id. at 51.
Hollabaugh claims that this statement would have supported Attorney
Marshall’s defense of the charges involving E.S. and K.S where K.S. testified
that she, E.S., and H.N. were all present in Hollabaugh’s bedroom after he
asked the three girls to help clean. Hollabaugh then forced her to perform
oral sex. According to K.S.’s trial testimony, this occurred when she was
approximately six years old. E.S. testified to this same incident, relating that
this event occurred when she was between the ages of four and five. E.S. is,
however, about two-and-one-half years older than K.S., making K.S. a little
over two years old in E.S.’s account. Attorney Marshall argued that it was
impossible for both witnesses to be telling the truth, as E.S. did not begin
visiting the Hollabaugh residence until she was at least four.
As with the character witness issue, Hollabaugh dedicates the bulk of
his briefing on this point to the importance of investigating sources of potential ____________________________________________
7 The PCRA hearing took place over two days. At the first hearing, Attorney Marshall testified that he was unaware of the statement and the PCRA court sustained the Commonwealth’s objections when Hollabaugh asked Attorney Marshall about this document.
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impeachment material. However, as Hollabaugh does not develop any
argument that this note would have been admissible, its only value would be
in cross-examining E.S. See Appellant’s Brief, at 38 (“At a minimum, [E.S.]
could and should have been asked by [t]rial counsel about her prior
inconsistent statement that she was [t]en . . . when the incident allegedly
happened as contained within the CYS records[.]”).
Hollabaugh’s argument that this note was a “gem” severely overstates
its evidentiary value. Its authenticity was not established and it is not clear if
the unnamed MDT team member ever spoke to E.S. or if E.S. was in the room.
Because multiple victims were involved, it could just as easily be the case that
the author mixed up names and ages.
Because it is unclear if E.S. ever made the statement, we conclude that
the claim lacks arguable merit. “An inconsistent statement can also be
admissible to impeach a witness’ credibility. However, it must be established
that the witness, in fact, made the allegedly inconsistent statement.”
Commonwealth v. Woods, 710 A.2d 626, 630 (Pa. Super. 1998). Thus, “a
summary of a witness’ statement cannot be used for impeachment purposes
absent adoption of the statement by the witness as his/her own.” Id. While
it is theoretically possible that E.S. could have adopted the statement if cross-
examined, we conclude that is far too speculative to support this
ineffectiveness claim. See Commonwealth v. Urwin, 219 A.3d 167, 172–
73 (Pa. Super. 2019) (“Arguable merit exists when the factual statements are
accurate and could establish cause for relief. Whether the facts rise to the
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level of arguable merit is a legal determination.”) (citation omitted). Under
these facts, we find no arguable merit as a legal matter. Accordingly, this
claim cannot merit relief.
Hollabaugh’s remaining two claims both concern the use of ASL
interpreters to communicate with Hollabaugh. The third claim alleges
ineffectiveness based on trial counsel’s failure to use a certified ASL interpreter
when meeting with Hollabaugh to prepare for trial and his testimony. The
fourth claim similarly alleges that trial counsel ineffectively failed to use
“consecutive interpretation” at trial as opposed to the “simultaneous
interpretation” method employed. Hollabaugh argues these issues together.
See Appellant’s Brief, at 46 (“The final . . . [i]ssues that are being raised in
this [a]ppeal go together like ‘ham and eggs’ in that [t]rial counsel’s
unfamiliarity with the latter subject negatively impacted his handling of the
former situation in terms of how he attempted to prepare for [t]rial.”).
The following facts are relevant to these claims. At trial, three ASL
interpreters assisted Hollabaugh and Attorney Marshall. One acted as a “table
interpreter,” sitting at the defense table with Hollabaugh and Attorney
Marshall and facilitating communications between them. This same
interpreter participated in pre-trial meetings between Attorney Marshall and
Hollabaugh. The other two interpreters took turns interpreting what was said
during the trial.
At the PCRA hearing, Hollabaugh called William H. Lockard, who was
accepted as an expert witness in the field of deaf interpretation processes.
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Lockard had over forty years of experience in interpreting sign language and
aiding the deaf community. Lockard met Hollabaugh through his work with
the Department of Corrections, which had asked Lockard to survey the state
correctional facilities to assess how deaf inmates access services. Lockard
testified that all interpreters at Hollabaugh’s trial were able to hear and used
“simultaneous interpretation,” where the ASL interpreter signs for the deaf
defendant in real time. The “consecutive interpretation” procedure, in
contrast, has the hearing interpreter wait for the speaker to finish. The
hearing interpreter then signs to the deaf interpreter, who then signs to the
deaf individual. Lockard testified that this process increases accuracy.
Hollabaugh argued that this process was superior to the “simultaneous
interpretation” method used at his trial and trial counsel was ineffective for
failing to use it. As it relates to the third issue, Attorney Marshall testified at
the PCRA hearing that he was frustrated with Hollabaugh’s testimony. He
specifically cited Hollabaugh’s testimony about T.S. Hollabaugh testified he
would occasionally speak with her after she got off the school bus.
Unprompted, Hollabaugh explained that “[T.S.] had socks that she would stuff
in her bra and walk around like that, showing off and being silly and playing
games and picking and teasing other people[.]” N.T. Jury Trial, 8/28/18, at
182. He noticed these behaviors because he viewed it “as disrespectful and
not appropriate.” Id. He “would try to tell her how inappropriate that was;
that I thought it was bad behavior[.]” Id. Hollabaugh later returned to the
topic, saying “[T.S.] would . . . us[e] socks to look like she had fake breasts
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to walk around and tease and pick on other people.” Id. at 183. He “tried to
explain” to her the behavior was inappropriate and speculated that she did
not understand what he was saying. Id. Attorney Marshall explained that “he
would have said . . . [‘]don’t talk about that,[’]” and recalled speaking about
this issue during preparation. N.T. PCRA Hearing, 3/30/23, at 19. Hollabaugh
now argues that better preparation with a deaf interpreter would have
lessened the chances Hollabaugh would have given those answers. The fourth
claim similarly maintains that the “consecutive interpretation” procedure
should have been used at trial to improve accuracy.
We conclude that Hollabaugh has failed to establish prejudice. We
briefly address the PCRA court’s opinion, which noted the absence of a case
involving this precise issue in Pennsylvania. The PCRA court approvingly cited
a non-binding Texas Criminal Court of Appeals decision in Linton v. State,
275 S.W.3d 493 (Tex. Crim. App. 2009), which reversed an intermediate
appellate decision “which had held, in essence, that the trial court reversibly
erred in not providing the ‘best’ interpretive services—including a deaf-relay
interpreter—to ensure appellant’s full understanding of the trial proceedings.”
Id. at 495. In that case, counsel representing a deaf defendant argued during
trial that a deaf interpreter should be appointed. The trial court denied the
request and Linton received a new trial from the intermediate appellate panel.
The Criminal Court of Appeals then reversed, concluding that the relevant
legal test is grounded in due process. “The Constitution requires that a
defendant sufficiently understand the proceedings against him such that he is
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able to assist in his own defense.” Id. at 504. The panel concluded that this
standard was met under the facts in Linton.
The PCRA court concluded that this was the proper legal test, and that
Hollabaugh “has not shown that the issues he had in communicating with
Attorney Marshall and the [c]ourt, and in testifying before the jury, were so
great that they prevented him from understanding the nature and objective
of the proceedings against him and assisting meaningfully in his own defense.”
PCRA Court Opinion, 11/18/24, at 17-18. The PCRA court opined that any
issues Hollabaugh experienced during trial were “a function of his education
level and lack of knowledge of the legal system.” Id. at 18.
Hollabaugh does not meaningfully address the foregoing analysis except
to say that “[Linton] involved a [m]isdemeanor DUI charge[,] while the
present matter involved multiple ancient child sex offenses[,] so there really
was a heightened need for increased accommodations” to ensure a fair trial.
Appellant’s Brief, at 52.
We agree with the PCRA court that the Linton holding is highly
persuasive in its analysis of the underlying legal issue. Yet we need not apply
the case because the issue in Linton arose on direct appeal, not as a collateral
ineffectiveness claim. See Commonwealth v. Gribble, 863 A.2d 455, 472
(Pa. 2004) (“[A]s a general and practical matter, the fact that a claim is
litigated through the lens of counsel ineffectiveness, rather than as a
preserved claim of trial court error, makes it more difficult for the defendant
to prevail.”). The United States Supreme Court explained in Weaver v.
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Massachusetts, 582 U.S. 286 (2017), why different considerations apply at
different stages of the process:
Furthermore, when state or federal courts adjudicate errors objected to during trial and then raised on direct review, the systemic costs of remedying the error are diminished to some extent. That is because, if a new trial is ordered on direct review, there may be a reasonable chance that not too much time will have elapsed for witness memories still to be accurate and physical evidence not to be lost. There are also advantages of direct judicial supervision. Reviewing courts, in the regular course of the appellate process, can give instruction to the trial courts in a familiar context that allows for elaboration of the relevant principles based on review of an adequate record.
Id. at 302.
Thus, the test on direct appeal is not necessarily the same as on
collateral appeal. Hollabaugh must establish how the lack of his preferred
procedure prejudiced him under Strickland.
In an apparent attempt to avoid that requirement, Hollabaugh cites
Commonwealth v. Diaz, 226 A.3d 995 (Pa. 2020), wherein our Supreme
Court applied the doctrine of presumed prejudice due to counsel’s failure to
secure an interpreter for portions of the trial. Id. at 1005. “The PCRA court
found that[,] in the absence of an interpreter, Diaz could not understand
anything that occurred during voir dire or opening statements or much of the
potentially outcome[-]determinative testimony of the complaining witness.”
Id. at 1010–11. Due to his inability to understand, Diaz “could not have
communicated with his attorney about the substance of the proceedings.” Id.
at 1011. Pursuant to United States v. Cronic, 466 U.S. 648 (1984), there
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are “certain, limited circumstances where prejudice is so likely that the cost
of litigating the question of prejudice is unnecessary.” Diaz, 226 A.3d at 1008
(citing Cronic, 466 U.S. at 658). The Diaz Court determined that the inability
to communicate with counsel was effectively a total denial of counsel at a
critical stage and warranted application of Cronic.
The facts of this case are nothing like those in Diaz, as Hollabaugh and
Attorney Marshall were, at all times, able to communicate through
interpreters. We decline to extend presumptive prejudice to this scenario, and
Hollabaugh must show how the failure to use “consecutive interpretation” was
prejudicial. Accepting, arguendo, that this claim is of arguable merit and that
no strategic basis existed, Hollabaugh has failed to carry his burden to show
prejudice. He merely alleges, in boilerplate fashion, that “the result of the
proceeding would have been different had these additional protections and
prophylactic measures been pursued and used at [t]rial or in his [t]rial
preparation[.]” Appellant’s Brief, at 53. He does not explain why that is so,
and these speculative assertions do not meet his burden to prove that counsel
was ineffective. Commonwealth v. Paddy, 15 A.3d 431, 443 (Pa. 2011)
(“We stress that boilerplate allegations and bald assertions of no reasonable
basis and/or ensuing prejudice cannot satisfy a petitioner’s burden to prove
that counsel was ineffective.”). The third and fourth claims, therefore, do not
merit relief.
Orders affirmed.
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Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 10/03/2025
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