J-S24007-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DONALD ROGER LOOMIS : : Appellant : No. 1405 WDA 2023
Appeal from the PCRA Order Entered October 20, 2023 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0002775-2014
BEFORE: BOWES, J., SULLIVAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED: July 19, 2024
Donald Loomis appeals from the order denying his Post Conviction Relief
Act (“PCRA”) petition. We affirm.
This is the second time this Court is reviewing the PCRA court’s rejection
of Appellant’s claim that trial counsel was ineffective for advising him not to
testify. We previously outlined the pertinent factual and procedural history as
follows:
Appellant’s convictions resulted from his long-term sexual abuse of his cousins, K.R. and G.B. (collectively, “the victims”), which was disclosed to the Erie Police Department in February 2014, several years after the assaults occurred. Appellant was arrested and charged with various offenses in connection with K.R.’s allegations of abuse. No charges were filed with respect to G.B.’s allegations due to the statute of limitations having expired, but G.B.’s testimony was admitted at trial pursuant to Pa.R.E. 404(b).
____________________________________________
* Former Justice specially assigned to the Superior Court. J-S24007-24
Following a two-day trial, Appellant was convicted of rape of a person less than thirteen years old, two counts of involuntary deviate sexual intercourse with a person less than thirteen years old, sexual assault, two counts of indecent assault of a person less than thirteen years old, corruption of a minor, and endangering the welfare of children. Ultimately, Appellant was sentenced to an aggregate term of twenty-one to forty[-two] years of incarceration. On direct appeal, this Court affirmed Appellant’s judgment of sentence.
On January 24, 2018, Appellant filed a timely pro se PCRA petition. On May 22, 2018, Appellant filed an amended PCRA petition via PCRA counsel that raised, inter alia, the alleged ineffectiveness of trial counsel. The PCRA court issued notice of its intent to dismiss Appellant’s petition without a hearing pursuant to Pa.R.Crim.P. 907(1). Appellant filed a response to the PCRA court’s Rule 907(1) notice. On December 20, 2018, the PCRA court dismissed Appellant’s claims of ineffectiveness without a hearing.
Commonwealth v. Loomis, 229 A.3d 378, 2020 WL 1490953, at *1
(Pa.Super. 2020) (non-precedential decision) (citations and parenthetical
abbreviations omitted).
Appellant appealed to this Court. Among other things, he assailed the
PCRA court’s dismissal of his claim that counsel was ineffective for advising
him not to testify at trial. The court had dismissed it outright because
Appellant had completed a colloquy regarding his decision not to testify.
Noting that the existence “of a waiver colloquy does not prevent a petitioner
from later challenging the effectiveness of his attorney’s advice not to
testify[,]” because the relevant inquiry concerns the advice provided by
counsel that informed the waiver, we concluded that the PCRA court’s holding
was in error. Id. at *3 (citations omitted). Since the court dismissed the
petition without a hearing, and the record was otherwise silent as to counsel’s
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advice and reasoning for advising Appellant not to testify, we vacated that
portion of the PCRA court’s order and directed the court to hold an evidentiary
hearing on that claim upon remand.1
On July 10, 2023, the PCRA court held that limited evidentiary hearing,
with testimony from Appellant and his trial counsel, Eric Hackwelder, Esquire.2
Concluding that Attorney Hackwelder’s strategy was reasonable and Appellant
suffered no prejudice, the PCRA court denied Appellant’s PCRA petition. This
timely appeal followed. Appellant complied with the court’s order to file a
Pa.R.A.P. 1925(b) statement. In lieu of a Rule 1925(a) opinion, the PCRA
court directed us to its opinion and order dated October 20, 2023. Appellant
presents a single issue for our review:
Did the PCRA court err when it dismissed Appellant’s claim that trial counsel was ineffective for advising [Appellant] not to testify in his own defense at trial where (1) testimony confirmed that trial counsel advised Appellant not to testify, (2) trial counsel lacked a reasonable basis for this strategy, and (3) Appellant suffered prejudice?
Appellant’s brief at 6 (cleaned up).
We begin with the pertinent legal principles. “We review an order of the
PCRA court to determine whether the record supports the findings of the PCRA
court and whether its rulings are free from legal error.” Commonwealth v.
1 We affirmed the order insofar as it dismissed Appellant’s remaining claims.
2 Although we are cognizant of the difficulties emanating from the COVID-19
pandemic and do not disparage the PCRA court, since the judge was not assigned the case until March 2023, we nonetheless note with displeasure the three-year delay in conducting this hearing.
-3- J-S24007-24
Michaud, 70 A.3d 862, 867 (Pa.Super. 2013) (cleaned up). To succeed on a
claim that counsel offered ineffective assistance, “a petitioner must establish
beyond 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.” Id. (cleaned up). Generally, there
are three elements a petitioner raising such a claim must prove: (1) the
underlying claim has arguable merit; “(2) counsel had no reasonable strategic
basis for his or her action or inaction; and (3) counsel’s ineffectiveness
prejudiced him.” Id. (cleaned up). If a petitioner fails to prove any one of
these prongs, the ineffectiveness claim fails, and the court’s review need
proceed no further. See Commonwealth v. Pitt, 313 A.3d 287, 293
(Pa.Super. 2024). Finally, it is a petitioner’s burden to overcome the
presumption that counsel was effective. Id.
With regard to Appellant’s specific contention that counsel was
ineffective for advising him not to testify at trial, our Supreme Court has
explained as follows:
The decision of whether or not to testify on one’s own behalf is ultimately to be made by the defendant after full consultation with counsel. In order to sustain a claim that counsel was ineffective for failing to advise the appellant of his rights in this regard, the appellant must demonstrate either that counsel interfered with his right to testify, or that counsel gave specific advice so unreasonable as to vitiate a knowing and intelligent decision to testify on his own behalf. Our analysis of this claim begins with an examination of the testimony given at the evidentiary hearing.
Commonwealth v. Nieves, 746 A.2d 1102, 1104 (Pa. 2000) (cleaned up).
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Appellant testified that he met with counsel four or five times to prepare
his potential trial testimony and practice answering questions he might face.
Throughout that preparation, he assumed that he would be testifying at trial
in his defense. However, just prior to the court asking whether he wanted to
testify, Appellant alleged that Attorney Hackwelder advised him, without
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J-S24007-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DONALD ROGER LOOMIS : : Appellant : No. 1405 WDA 2023
Appeal from the PCRA Order Entered October 20, 2023 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0002775-2014
BEFORE: BOWES, J., SULLIVAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED: July 19, 2024
Donald Loomis appeals from the order denying his Post Conviction Relief
Act (“PCRA”) petition. We affirm.
This is the second time this Court is reviewing the PCRA court’s rejection
of Appellant’s claim that trial counsel was ineffective for advising him not to
testify. We previously outlined the pertinent factual and procedural history as
follows:
Appellant’s convictions resulted from his long-term sexual abuse of his cousins, K.R. and G.B. (collectively, “the victims”), which was disclosed to the Erie Police Department in February 2014, several years after the assaults occurred. Appellant was arrested and charged with various offenses in connection with K.R.’s allegations of abuse. No charges were filed with respect to G.B.’s allegations due to the statute of limitations having expired, but G.B.’s testimony was admitted at trial pursuant to Pa.R.E. 404(b).
____________________________________________
* Former Justice specially assigned to the Superior Court. J-S24007-24
Following a two-day trial, Appellant was convicted of rape of a person less than thirteen years old, two counts of involuntary deviate sexual intercourse with a person less than thirteen years old, sexual assault, two counts of indecent assault of a person less than thirteen years old, corruption of a minor, and endangering the welfare of children. Ultimately, Appellant was sentenced to an aggregate term of twenty-one to forty[-two] years of incarceration. On direct appeal, this Court affirmed Appellant’s judgment of sentence.
On January 24, 2018, Appellant filed a timely pro se PCRA petition. On May 22, 2018, Appellant filed an amended PCRA petition via PCRA counsel that raised, inter alia, the alleged ineffectiveness of trial counsel. The PCRA court issued notice of its intent to dismiss Appellant’s petition without a hearing pursuant to Pa.R.Crim.P. 907(1). Appellant filed a response to the PCRA court’s Rule 907(1) notice. On December 20, 2018, the PCRA court dismissed Appellant’s claims of ineffectiveness without a hearing.
Commonwealth v. Loomis, 229 A.3d 378, 2020 WL 1490953, at *1
(Pa.Super. 2020) (non-precedential decision) (citations and parenthetical
abbreviations omitted).
Appellant appealed to this Court. Among other things, he assailed the
PCRA court’s dismissal of his claim that counsel was ineffective for advising
him not to testify at trial. The court had dismissed it outright because
Appellant had completed a colloquy regarding his decision not to testify.
Noting that the existence “of a waiver colloquy does not prevent a petitioner
from later challenging the effectiveness of his attorney’s advice not to
testify[,]” because the relevant inquiry concerns the advice provided by
counsel that informed the waiver, we concluded that the PCRA court’s holding
was in error. Id. at *3 (citations omitted). Since the court dismissed the
petition without a hearing, and the record was otherwise silent as to counsel’s
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advice and reasoning for advising Appellant not to testify, we vacated that
portion of the PCRA court’s order and directed the court to hold an evidentiary
hearing on that claim upon remand.1
On July 10, 2023, the PCRA court held that limited evidentiary hearing,
with testimony from Appellant and his trial counsel, Eric Hackwelder, Esquire.2
Concluding that Attorney Hackwelder’s strategy was reasonable and Appellant
suffered no prejudice, the PCRA court denied Appellant’s PCRA petition. This
timely appeal followed. Appellant complied with the court’s order to file a
Pa.R.A.P. 1925(b) statement. In lieu of a Rule 1925(a) opinion, the PCRA
court directed us to its opinion and order dated October 20, 2023. Appellant
presents a single issue for our review:
Did the PCRA court err when it dismissed Appellant’s claim that trial counsel was ineffective for advising [Appellant] not to testify in his own defense at trial where (1) testimony confirmed that trial counsel advised Appellant not to testify, (2) trial counsel lacked a reasonable basis for this strategy, and (3) Appellant suffered prejudice?
Appellant’s brief at 6 (cleaned up).
We begin with the pertinent legal principles. “We review an order of the
PCRA court to determine whether the record supports the findings of the PCRA
court and whether its rulings are free from legal error.” Commonwealth v.
1 We affirmed the order insofar as it dismissed Appellant’s remaining claims.
2 Although we are cognizant of the difficulties emanating from the COVID-19
pandemic and do not disparage the PCRA court, since the judge was not assigned the case until March 2023, we nonetheless note with displeasure the three-year delay in conducting this hearing.
-3- J-S24007-24
Michaud, 70 A.3d 862, 867 (Pa.Super. 2013) (cleaned up). To succeed on a
claim that counsel offered ineffective assistance, “a petitioner must establish
beyond 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.” Id. (cleaned up). Generally, there
are three elements a petitioner raising such a claim must prove: (1) the
underlying claim has arguable merit; “(2) counsel had no reasonable strategic
basis for his or her action or inaction; and (3) counsel’s ineffectiveness
prejudiced him.” Id. (cleaned up). If a petitioner fails to prove any one of
these prongs, the ineffectiveness claim fails, and the court’s review need
proceed no further. See Commonwealth v. Pitt, 313 A.3d 287, 293
(Pa.Super. 2024). Finally, it is a petitioner’s burden to overcome the
presumption that counsel was effective. Id.
With regard to Appellant’s specific contention that counsel was
ineffective for advising him not to testify at trial, our Supreme Court has
explained as follows:
The decision of whether or not to testify on one’s own behalf is ultimately to be made by the defendant after full consultation with counsel. In order to sustain a claim that counsel was ineffective for failing to advise the appellant of his rights in this regard, the appellant must demonstrate either that counsel interfered with his right to testify, or that counsel gave specific advice so unreasonable as to vitiate a knowing and intelligent decision to testify on his own behalf. Our analysis of this claim begins with an examination of the testimony given at the evidentiary hearing.
Commonwealth v. Nieves, 746 A.2d 1102, 1104 (Pa. 2000) (cleaned up).
-4- J-S24007-24
Appellant testified that he met with counsel four or five times to prepare
his potential trial testimony and practice answering questions he might face.
Throughout that preparation, he assumed that he would be testifying at trial
in his defense. However, just prior to the court asking whether he wanted to
testify, Appellant alleged that Attorney Hackwelder advised him, without
explanation, “I strongly suggest you don’t.” N.T. PCRA Hearing, 7/10/23, at
11. Based on this recommendation, Appellant chose not to testify. Following
his conviction, he concluded that counsel was ineffective in offering this advice
because he contended he would have been able to defend himself through his
testimony since “[a]ll [he] had to do was tell the truth.” Id. at 23.
Attorney Hackwelder confirmed that he met with Appellant multiple
times regarding his potential trial testimony but insisted that Appellant knew
before trial that counsel was not comfortable with Appellant testifying. This
was due to the facts that (1) Appellant never provided satisfactory answers
concerning some of the statements he made in a “pretext phone call[,]”3 (2)
the Commonwealth planned to introduce other acts evidence involving
allegations from another individual similar to those made by the victim, and
(3) the prosecutor would subject him to rigorous cross-examination. Id. at
30-31. Although Attorney Hackwelder continued to try to prepare Appellant ____________________________________________
3 At trial, the Commonwealth introduced “a one-way consensual phone call intercept between K.R. and [Appellant], in which K.R. confronted [Appellant] about the past abuse. [Appellant] neither confirmed nor denied the allegations, but claimed he had no memory of them.” Commonwealth v. D.R.L., 161 A.3d 381, 2017 WL 658262, at *1 (Pa.Super. 2017) (unpublished memorandum).
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to testify at Appellant’s request, he elaborated that “there were concerning
things that [Appellant] said in that pretext phone call that seemed or appeared
to [Attorney Hackwelder] as almost admissions” and “when we prepped him
about these, he didn’t have good answers.” Id. at 40. He reiterated:
I think it’s very evident that the impression was that we had some problems, and I know repeatedly telling him that his answers were not satisfactory. I know we had a problem with how he was explaining the things that he had said to the phone call. He knows that. We talked about it many times, and we tried over and over to prepare in the event that he did testify.
....
[W]e had many meetings where we had to talk about these answers that he -- the phone call, and if he was going to testify, he was going to have to explain why he said what he said in the phone call, and when we would prepare, when we would prep for those, it was my determination that what he was saying was not satisfactory in my opinion for him testifying in court, especially against a seasoned trial litigator like [the prosecutor].
We had a lot against us as it was, and I felt at the time that if I put him on the stand that we’re going to put him in a worse place. I understand that he was found guilty. I get that, but it was my opinion, my call there to, you know, dissuade him from wanting to testify because of those reasons.
Id. at 31, 33 (capitalization altered).
The PCRA court found Appellant’s testimony to be unbelievable and
Attorney Hackwelder’s credible. In the court’s summation, “[t]he only
reasonable advice Attorney Hackwelder could give [Appellant] was to not
testify.” PCRA Court Opinion and Order, 10/20/23, at 6.
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Upon review of the certified record, we hold that the PCRA court’s finding
is supported by the record. Attorney Hackwelder considered the evidence to
be presented at trial and, after multiple sessions of attempting to prepare
Appellant to testify, determined it would be more damaging to have him testify
given, in part, his inability to adequately explain some of his statements in
the pretext call. Discerning no error in the court’s conclusion that counsel had
a reasonable basis for advising Appellant not to testify, we affirm the order
denying Appellant’s ineffectiveness claim.
Order affirmed.
7/19/2024
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