Com. v. Melo, A.

Opinion

J-S73041-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : ALEXANDER MELO, : : Appellant : No. 2161 MDA 2013

Appeal from the PCRA Order entered on October 31, 2013 in the Court of Common Pleas of York County, Criminal Division, No. CP-67-CR-0005500-2009

BEFORE: BOWES, WECHT and MUSMANNO, JJ

MEMORANDUM BY MUSMANNO, J.: FILED JANUARY 22, 2015

Alexander Melo (“Melo”), pro se, appeals from the Order dismissing his

first Petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

In 2005, Melo raped the thirteen-year-old daughter of his live-in

girlfriend (hereinafter “the victim”). Several years later, when the victim

was seventeen years old, her father questioned her about the rape, of which

he had recently learned upon reading about the incident in the victim’s

notebook/diary (hereinafter “the notebook”).1 Upon being questioned by the

police, the victim recounted the rape to them and identified Melo as the

perpetrator. In August 2009, the police charged Melo with rape, indecent

1 The notebook was not offered into evidence at trial, as the victim and her father stated that it was lost during a move. J-S73041-14

assault, and related offenses (collectively referred to as “the charged

offenses”).

The matter proceeded to a jury trial, at which Melo was represented by

Joseph Kalasnik, Esquire (hereinafter “Attorney Kalasnik” or “trial counsel”).

At the close of trial, the jury found Melo guilty of the charged offenses.

Following trial, Melo retained new counsel, Matthew R. Gover, Esquire

(“Attorney Gover”), and the trial court permitted Attorney Kalasnik to

withdraw as counsel. The trial court subsequently sentenced Melo to serve

an aggregate term of five to ten years in prison. Attorney Gover timely filed

a Notice of Appeal from Melo’s judgment of sentence. On appeal, this Court

affirmed the judgment of sentence, after which the Supreme Court of

Pennsylvania denied allowance of appeal. See Commonwealth v. Melo,

31 A.3d 747 (Pa. Super. 2011) (unpublished memorandum), appeal denied,

30 A.3d 1192 (Pa. 2011).

In June 2012, Melo timely filed a pro se PCRA Petition. Following the

filing of the PCRA Petition, the PCRA court appointed Melo counsel, Seamus

Dubbs, Esquire (“PCRA counsel”), who filed an Amended PCRA Petition.

Following a hearing held on June 27, 2013 (hereinafter referred to as “the

PCRA hearing”), the PCRA court entered an Order on October 31, 2013,

dismissing Melo’s PCRA Petition. In response, PCRA counsel timely filed a

Notice of Appeal and court-ordered Pa.R.A.P. 1925(b) Concise Statement of

Errors Complained of on Appeal.

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In April 2014, Melo filed with this Court an Application requesting

permission to proceed pro se on appeal, and for a remand for the PCRA

court to conduct a hearing pursuant to Commonwealth v. Grazier, 713

A.2d 81 (Pa. 1998). This Court granted Melo’s Application. After conducting

a hearing (hereinafter referred to as “the Grazier hearing”), the PCRA court

granted Melo permission to proceed pro se, finding that his decision was

made knowingly, intelligently and voluntarily.

On appeal, Melo presents the following issues for our review:

I. Was [Melo] denied due process of law during collateral review of the judgment of sentence?

II. Did the [PCRA] court [] err[] when it found [that] trial counsel [was] not ineffective for failing to request a missing document instruction?

III. Did the [PCRA] court [] err[] when it found [that] trial counsel [was] not ineffective [for] failing to object to prejudicial testimony?

IV. Did the [PCRA] court [] err[] when it found [that] trial counsel [was] not ineffective [for] failing to request [a jury] instruction on prior inconsistent statements?

V. Was [Melo] denied due process when the [trial] court [] held [that Melo’s] claim [concerning the lack of a] prior bad acts instruction [was] waived?

Brief for Appellant at 4 (capitalization omitted).

All of Melo’s issues raise claims of ineffectiveness of counsel (although

he does not identify all of them as such in his Statement of Questions

Presented). The applicable standards of review regarding the dismissal of a

PCRA petition and ineffectiveness claims are as follows:

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We must examine whether the record supports the PCRA court’s determination, and whether the PCRA court’s determination is free of legal error. The PCRA court’s findings will not be disturbed unless there is no support for the findings in the certified record.

***

It is well-established that counsel is presumed to have provided effective representation unless the PCRA petitioner pleads and proves all of the following: (1) the underlying legal claim is of arguable merit; (2) counsel’s action or inaction lacked any objectively reasonable basis designed to effectuate his client’s interest; and (3) prejudice, to the effect that there was a reasonable probability of a different outcome if not for counsel’s error. The PCRA court may deny an ineffectiveness claim if the petitioner’s evidence fails to meet a single one of these prongs. Moreover, a PCRA petitioner bears the burden of demonstrating counsel’s ineffectiveness.

Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010)

(citations omitted).

In his first issue, Melo essentially challenges the effectiveness of his

PCRA counsel. See Brief for Appellant at 13-15, 27.2

2 In connection with his claim of PCRA counsel’s ineffectiveness, Melo also argues that, after he had received a copy of the record following the Grazier hearing, he discovered additional claims of trial counsel’s ineffectiveness that PCRA counsel should have raised and preserved for appeal. See Brief for Appellant at 15, 17-27. For the reasons discussed below, we will not address these additional claims in this appeal. However, we observe that, at the PCRA hearing, Melo stated that (1) he wished to proceed with PCRA counsel as his attorney and withdraw his request to proceed pro se; (2) he was satisfied with the four allegations of trial counsel’s ineffectiveness that PCRA counsel raised in the Amended PCRA Petition; and (3) there were no additional issues that Melo wanted to pursue at that time. See N.T., 6/27/13, at 4-5, 13-17; see also id. at 13-16 (wherein PCRA counsel colloquied Melo about his additional pro se allegations of trial counsel’s ineffectiveness and why such claims were not viable).

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It is well established that “claims of PCRA counsel’s ineffectiveness

may not be raised for the first time on appeal.” Commonwealth v.

Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) (en banc) (collecting cases);

Commonwealth v. Ford, 44 A.3d 1190, 1200 (Pa. Super. 2012) (stating

that “issues of PCRA counsel effectiveness must be raised in a serial PCRA

petition or in response to a notice of dismissal before the PCRA court.”); see

also Pa.R.A.P. 302(a) (stating that a claim cannot be raised for the first time

on appeal).

In the instant case, Melo never raised his claim of PCRA counsel’s

ineffectiveness prior to the dismissal of his PCRA Petition and PCRA counsel’s

filing of a Notice of Appeal and Rule 1925(b) Concise Statement on Melo’s

behalf.3 See Ford, 44 A.3d at 1200 (holding that “absent recognition of a

constitutional right to effective collateral review counsel, claims of PCRA

counsel ineffectiveness cannot be raised for the first time after a notice of

appeal has been taken from the underlying PCRA matter.”). Accordingly,

because Melo raised this claim for the first time on appeal, we may not now

3 Though Melo challenged PCRA counsel’s representation at the Grazier hearing, arguing, inter alia, that counsel did not adequately communicate with him and failed to provide him with a copy of the record, same does not adequately preserve his instant claims of PCRA counsel’s ineffectiveness, which he raised for the first time in this appeal. See Henkel, supra; Ford, supra. Additionally, PCRA counsel stated at the Grazier hearing that he was actively working on Melo’s appellate brief.

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address it. See Henkel, supra; Ford, supra.4

Melo next argues that the PCRA court erred by not ruling that trial

counsel was ineffective for failing to request a missing evidence jury

instruction concerning the notebook. See Brief for Appellant at 28-29.

Specifically, Melo asserts as follows:

The alleged notebook was central to the [p]rosecutor’s case in this matter. [] [T]he only individuals who seen [sic] the entry [in the notebook] alleging the incident w[ere the victim and her father]. [] [T]his [was] a circumstantial case resting on the credibility of the evidence presented. Not to request a missing document instruction under these circumstances had no reasonable basis to effectuate [Melo’s] best interest.

Id. at 28 (citation omitted). According to Melo, there is a reasonable

probability that the jury would have rendered a different verdict if the trial

court had issued a missing document instruction. See id. at 29.

In its Pa.R.A.P. Opinion, the PCRA court addressed this claim and

determined that trial counsel was not ineffective in this regard. See PCRA

Court Opinion, 10/31/13, at 3-5. We agree with the PCRA court’s sound

rationale and determination, and therefore affirm on this basis with regard to

this issue. See id.

4 Though we express no opinion as to the merits of Melo’s claim of PCRA counsel’s ineffectiveness, Melo retains the right to raise this claim in a subsequent PCRA Petition. See Commonwealth v. Jette, 23 A.3d 1032, 1044 n.14 (Pa. 2011) (stating that “[w]hile difficult, the filing of a subsequent timely PCRA petition [alleging ineffectiveness of PCRA counsel] is possible, and in situations where an exception pursuant to [42 Pa.C.S.A.] § 9545(b)(1)(i-iii) can be established[,] a second [PCRA] petition filed beyond the one-year time bar may be pursued.”).

-6- J-S73041-14

In his third issue, Melo contends that trial counsel was ineffective

because he unreasonably failed to object to the testimony of the victim’s

mother, Christian F., concerning alleged incidents of physical abuse that

Melo had committed against her while they were in a romantic relationship,

despite the fact that the trial court had prohibited any prior bad act

testimony. See Brief for Appellant at 30, 32; see also id. at 32 (arguing

that “[t]o allow this prejudicial evidence to go unchallenged was to allow a

bias and ill will to be created in the minds of the jury against [Melo,] and []

result[ed] in his wrongful conviction of crimes he is actually innocent of ….”).

The PCRA court addressed this claim in its Opinion and stated its

reasons for determining that trial counsel was not ineffective. See PCRA

Court Opinion, 10/31/13, at 5-7. We agree with the PCRA court’s rationale

and determination, and therefore affirm on this basis concerning Melo’s

instant ineffectiveness challenge. See id.

Next, Melo contends that the PCRA court erred by failing to find that

trial counsel was ineffective for not requesting a jury instruction on the

victim’s prior inconsistent statements. See Brief for Appellant at 33-35; see

also id. at 33-34 (setting forth the various statements of the victim that,

Melo contends, are inconsistent).

In its Opinion, the PCRA court addressed this ineffectiveness challenge

and stated its reasons for rejecting it. See PCRA Court Opinion, 10/31/13,

at 10-12. We agree with the PCRA court’s rationale and determination,

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which is supported by the record, and affirm on this basis concerning Melo’s

ineffectiveness challenge. See id.

Regarding Melo’s final issue, he essentially raises an ineffectiveness of

counsel challenge concerning his direct appeal counsel’s (Attorney Gover),

failure to challenge the trial court’s alleged error in failing to issue a jury

instruction on prior bad acts under Pa.R.E. 404(b). See Brief for Appellant

at 36.5

The PCRA court addressed this claim in its Opinion and properly

concluded that Attorney Gover was not ineffective in this regard. See PCRA

Court Opinion, 10/31/13, at 7-9.6 Our review confirms that the PCRA court’s

persuasive rationale is supported by the law and the record, and we

therefore affirm on this basis in rejecting Melo’s final issue on appeal. See

id.

Accordingly, because we conclude that the PCRA court neither abused

its discretion nor committed an error of law by dismissing Melo’s first PCRA

Petition, we affirm the Order on appeal.

5 To the extent that Melo argues that “the court below held [that Melo’s] claim [concerning the lack of a] prior bad acts instruction [was] waived[,]” Brief for Appellant at 36 (capitalization omitted), this assertion is factually inaccurate. 6 Attorney Gover did not testify at the PCRA hearing because he passed away prior to the hearing.

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Order affirmed.

Wecht, J., joins the memorandum.

Bowes, J., concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/22/2015

-9- J - :5 7·3 0 !-I ! - ! Lf Circulated 12/18/2014 12:09 PM

IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA CRIMINAL DIVISION

COMMONWEALTH NO. CP-67-CR-0005500-2009

v.

ALEXANDER MELO, Defendant

COUNSEL,0F COUNSEL.0F :! RECORD: -"' . .. ~

Stephanie Lombardo, Esquire Seamus Dubbs, Esquire

:. "- .1.

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~- ...... t:; ~''U' .-,,- I.Y ~..i J.. f,

:::5 .J'-'> • . ,0 Counse! Counsel for the Commonwealth Counsel for the Defendant

:; ;:~.:.. .. (.) :::t:u 0.:: '-' SUPPORT OF ORDER OPINION IN SUPPORT , ';':":1--1 _ "._ c':: !"LL ~lt... 00 ::a: ::x:: :a-: "" co::: 0<>: 'ClWJ. Cl "-' peRA Petition. On June 27, 2013, a hearing was held on the Defendant's Amended PCRA - I --I U (.)

Having considered the evidence and argument offered on June 27,2013, 27, 2013, and having

considered applicable case law, this Court has DENIED Defendant's Amended PCRA

Petition. The Court now issues this Opinion in support of that Order.

1. PCRA Discussion

As stated in Strickland v. Washington, "the benchmark for judging any claim of

ineffectiveness must be whether counsel's conduct so undermined the proper functioning of

the adversarial process that the trial cannot be relied on as having produced ajust result."

466 U.S. 668, 686 (1984). Pennsylvania codified this principle in the Post-Conviction Relief

"[i]neffective assistance of counsel which, in Act, which provides post-conviction relief for "riJneffective Circulated 12/18/2014 12:09 PM

I

the circumstances the circumstancesofthe of the particular particularcase, case, so so undermined undermined the the truth-determining truth-determining process process that thatno no

reliable adjudication reliable adjudicationof ofguilt guilt or or innocence innocence could could have have taken taken place." place." 42 Pa.C.S.A. §§ 42 Pa.C.S.A,

9543(a)(2)(ii). Pennsylvania' 9S43(a)(2)(ii). Pennsylvania's Supreme Court 5 Supreme Court has has interpreted interpreted this this to to mean mean that that to to show show

ineffective assistance ineffective assistance of ofcounsel, counsel, aa petitioner petitioner must must show show that: that: -' (1) (1) the the claim claim underlying underlying the the ineffectiveness ineffectiveness claim claim has has arguable arguable merit; merit; (2) (2) counsel's actions counsel's actions lacked lacked any any reasonable reasonable basis; basis; and and (3) (3) counsel's counsel's actions actions resulted in resulted in prejudice prejudice to to petitioner. petitioner.

Commonwealth v.v. Cox, Commonwealth Cox, 983 983 A2d A.2d 666, 666, 678 678 (Pa. (Pa. 2009) 2009) (citing Commonwealth v.v. Collins, (citing Commonwealth Collins, 957 957

237,244 A.2d 237, 244 (Pa. 2008)). "A chosen strategy will not be found to have lacked a reasonable

basis unless it is proven 'that an alternative not chosen offered a potential for success

pursued. '" 983 A2d substantially greater than the course actually pursued.'" A.2d 666, 678 (Pa. 2009)

(quoting Commonwealth v. Williams, Willioms, 899 A.2d A2d 1060, 1064 (Pa. 2006) (quoting

Commonwealth v. Howard, 719 A.2d 233,237 233, 237 (Pa. 1998))). In Commonwealth v. Pierce, the

Pennsylvania Supreme Court wrote that, that, "(p]rejudice "[p]rejudice in the context of the context of ineffective ineffective assistance assistance

of of counsel counsel means means demonstrating that that there there is is aa reasonable reasonable probability probability that, that, but but for for counsel's counsel's

error, error, the the outcome outcome of ofthe the proceeding proceeding would would have have been been different." different." 786 786 A.2d A,2d 203,213 203, 213 (Pa. (Pa.

2001) (citing Commonwealth 2001) (citing Commonwealth v.v. Kimball, Kimball, 724 724 A.2d A.2d 326, 326, 332 332 (Pa. (Pa. 1999)). 1999». Lastly, Lastly, "the "the law law

presumes presumes that that counsel counsel was was effective effective and and the burden of the burden ofproving proving that that this this presumption presumption isis false false

rests rests with with the the petitioner." petitioner." 983 983 A.2d 666, 67,8 A,2d 666, 67,8 (Pa. (Pa. 2009) (citing Commonwealth 2009) (citing Commonwealth v,v. Basemore, Basemore,

744 744 A.2d A2d 717, 717, 728 728 (Pa. (Pa. 2000)). 2000».

A. A. Missing A1issingDocument DocumentInstruction Instruction 22 Circulated 12/18/2014 12:09 PM

The first issue raised by the Defendant is whether Attorney Kalasnik was ineffective

\vhen he did not request the missing document instruction for a notebook referenced in when

testimony but lost prior to trial.

At the June 27, 2013 hearing, the Defendant opined that there was no missing 27,2013

document instruction; however, the Defendant went on to testify that he remembered

Attorney Kalasnik crossing witnesses about the notebook and calling the notebook's

existence into doubt during closing. In describing thc the notebook, Attorney Kalasnik said that

it supposedly claimed relevant information and that, while the notebook was never produced,

the victim's father and friends were supposed to have knowledge of the notebook and they

testified. Attorney Kalasnik generally recalled inconsistency between witnesses as to what

information the notebook contained and he was also satisfied with how he addressed the infonnation

notebook on cross. Attorney Kalasnik also testified on direct that he does not believe a

missing document instruction would have helped because the defense was unable to produce

sufficient reasons for the jury to disbelieve the accuser. However, on cross, Attorney

Kalasnik stated that it could have helped if a missing document instruction were to have been

glven. given.

It seems axiomatic that the claim underlying the ineffectiveness claim has arguable

merit as to a missing document instruction because the document and its absence seem to

have instigated a lot of questioning and closing remarks. The second prong of the

ineffectiveness standard, whether counsel's actions lacked any reasonable basis, is less sure. J3 Circulated 12/18/2014 12:09 PM

determine whether "'an We are instructed to detennine '''an alternative not chosen offered a potential for qi3:, A.~d. (,c,c, q£r3 A-~,l G,G,(, success substantially greater than the course actually pursued. pursued.'"", Cox"at 678. Here, would

having had the missing document instruction have proven substantially more successful than

not having the jury hear such an instruction? Attorney Kalasnik testified that neither he nor' nor

the Defendant could produce sufficient evidence to discredit the accuser and that fact, not a .• _ • dQL"",~~f dQL

to this Court as though any gain from the missing document instruction would have been

minimal at best. As such, it does not appear as though Attorney Kalasnik' Kalasnik'ss actions lacked

of not requesting the instruction does not show any reasonable basis. The chosen course o[not

Attorney Kalasnik to have been ineffective. If, however, Attorney Kalasnik's actions were

unreasonable, we proceed to the third prong of the ineffectiveness standard.

The third prong asks whether counsel's actions resulted in prejudice to the petitioner.

Again, "[p ]rejudice in the context of ineffective assistance of counsel means demonstrating "[p]rejudice

that there is a reasonable probability that, but for counsel's error, the outcome of the 16& ;! o::~ A.;;lJ "03 75" A-;)c1 proceeding would have been different." PierceVat 213. The jury heard defense counsel call

the contents and very existence of the notebook into question repeatedly during cross and in

his closing. The jury was on notice that the fidelity and existence ofthe of the notebook was

questioned by the Defendant. It does not follow that there is a reasonable probability that the

outcome of the proceedings would have been different had the missing document instruction

been given. This Court finds that the Defendant did not demonstrate that counsel's actions 4 Circulated 12/18/2014 12:09 PM

resulted in prejudice. Attorney Kalasnik was not ineffective for not requesting the missing

document instruction.

B. Prior Bad Act Testimony

in not having objected to Christian .'s The second issue that must be dealt with is whether Attorney Kalasnik was ineffective

testimony regarding abuse she suffered at the

hands of the Defendant, which went beyond the Court's prohibition on such testimony.

During the June 27, 2013 hearing, the Defendant stated that he could not recall

whether counsel discussed with him the propriety of admitting Christian F8s testimony

Attorney Kalasnik asking Christian F_ that the Defendant had once pinned her to a wall by her neck. The Defendant did remember

exwgirlfriend and the accuser's the Defendant's ex-girlfriend

mother, questions about the Defendant that were designed to impeach Christian. Specifically,

Attorney Kalasnik testified that he queried Christian as to why she never followed up to the

police regarding the Defendant's alleged abuse of her. Moreover, Attorney Kalasnik accused

Christian of improper motives by suggesting she tried to extort money from the Defendant

and that Christian was angry at having been kicked out of the Defendant's home. Attorney

Kalasnik could not recall why he did not object to the choking incident allegations coming in,

which violated a judicial order that only prior bad acts the victim had witnessed were to come I in. That said, Attorney Kalasnik stated that it is sometimes best to not object so as not to

draw attention to adverse information infonnation and that at a later point he attempted to diminish the I alleged assault. 5 Circulated 12/18/2014 12:09 PM

There is no doubt that the claim underlying the ineffectiveness claim has arguable

merit as to the alleged choking incident because that occurrence was to have been kept out by

of the Court. The second prong of the ineffectiveness standard, whether counsel's order orthe

actions lacked any reasonable basis, is absent here. Again, we are instructed to determine

whether '''an alternative not chosen offered a potential for success substantially greater than

the course actually pursued.'" Cox, 983 A.2d 666, 678 (Pa. 2009). Here, the objectionable

testimony was stated in open court and in violation orthe of the preexisting moratorium established

by the Court. In commonly used court vernacular, testimony once uttered before aajury jury is

, akin to a bell, \vhich which cannot be uurung. unrung. The Court is compelled to ask what an objection

would have accomplished. Short of a mistrial, the jury could only have been ordered that the thc

testimony was stricken and not to be considered. Attorney Kalasnik's testimony that it is

sometimes best to let hannful harmful statements go and to minimize them later is a course of action

that this Court finds is equally likely, or better, of succeeding than asking for a curative

instruction. As to this charge, it does not appear as though Attorney Kalasnik's actions

lacked any reasonable has is. The chosen course of not objecting does not demonstrate that basis.

Attorney Kalasnik was ineffective. If, however, Attorney Kalasnik's actions were

unreasonable, we proceed to the third prong of the ineffectiveness standard.

The third prong requires the petitioner to demonstrate that counsel's actions resulted

in prejudice to the petitioner. Again, "[p]rejudicc "[p]rejudice in the context of ineffective assistance of

counsel means demonstrating that there is a reasonable reasonahle probability prohability that, but for counsel's 6 Circulated 12/18/2014 12:09 PM

error, the outcome of the proceeding would have been different." Pierce, 786 A.2d 203, 213

(Pa. 200 1). I). The jury heard defense counsel question the veracity of Christian's account of the

alleged assault and accuse her of improper motives on cross. The jury heard a stronger

rebuke of the testimony from Attorney Kalasnik than what the Court could have offered

following an objection. It, therefore, does not follow that there is a reasonable probability

that the outcome of the proceedings would have been different had the missing document

F.'s instruction been given. This Court finds that Attorney Kalasnik was not ineffective for

failing to object to Christian F . ' s testimony regarding incidents of abuse.

C. Failure .Failure to Appeal Lack of Prior Bad Acts Instruction

For his third PCRA complaint, the Defendant alleges that Attorney Gover was

ineffective for not appealing the lack of an instruction on prior bad acts testimony under Rule

of Criminal Procedure 404(b).

During the June 27, 2013 hearing, the Defendant testified that he believes the

outcome of his trial would have been different with different jury instructions. The

Defendant also testified that he does not remember Attorney Gover discussing an appeal for

the lack of an instruction on prior bad acts. Attorney Kalasnik testified that he could not

remember whether he had input into instructions, but that the Court indicated it would not

give a 404(b) instruction!. instructionl. That said, Attorney Kalasnik does not believe that a prior bad acts

Attorney Kalasnik did have input into the jury instructions and that the Court did not give 1I The Court notes that Attomey 4/141l0, at an instruction on prior bad acts for fear of drawing too much attention to them. (Notes of Testimony, 4/14/10, 7 Circulated 12/18/2014 12:09 PM

instruction would have helped because the defense presented a great volume of persuasive

evidence. Attorney Kalasnik went on to note that the jury even came back deadlocked at

Attorney-Kalasnik some point. Attorney -Kalasnik went on to testify on cross by the Petitioner that while he

believed, at the time of trial, the instructions were sufficient, it is possible that a prior bad

acts instruction might have helped the Defendant.

We do not doubt that the claim underlying the ineffectiveness claim has arguable

merit as to a prior bad acts instruction because the prior bad acts in question were not to have

been brought into the trial. As for the second prong of the ineffectiveness standard, we

cannot make a finding that Attorney Gover's actions lacked any reasonable basis based upon

testimony, because Attorney Gover was not available to testify at the June 27, 2013 hearing.

Our inquiry does not end here, however, because, by agreement of the parties at the June 27,

2013 hearing, Attorney Gover's absence was not deemed to have put either party at a

disadvantage. As Attorney Gover did not submit the lack of a prior bad acts instruction for

appeal, we find that "'an alternative not chosen offered a potential for success substantially

greater than the course actually pursued. '" Cox, 983 A.2d 666, 678 (Pa. pursued.'" CPa. 2009). This is so

because only those issues which are appealed will be considered. The alternative of lodging

an appeal offered substantially better potential for success than not appealing the issue. As to

this prong, it does appear as though Attorney qtover's

We, then, proceed to the third prong of the ineffectiveness standard.

349-50.) 8 Circulated 12/18/2014 12:09 PM

The third prong requires the petitioner to demonstrate that counsel's actions resulted

I in prejudice to the petitioner. Again, "lp "[p ]rejudice in the context of ineffective assistance of

counsel means demonstrating that there is a reasonable probability that, but for counsel's

error, the outcome of the proceeding would have heen been different." Pierce, 786 A2d A.2d 203, 213

(Pa. 200 I). This Court does not find Attorney G)bver's CPa. 2001). ¥ver's action in not appealing the lack of an

instruction on prior bad acts testimony resulted in prejudice to the petitioner. Though

Attorney Kalasnik testified on cross that perhaps an instruction on prior bad acts would have

been helpful, hclpful, his testimony on direct stands in contradiction and was more illuminating in

detail. On direct, Attorney Kalasnik testified that he did not believe that an extra instruction

would have helped because the defense presented a great volume of persuasive evidence and

still did not get a favorable decision. It is somewhat contradictory that Attorney Kalasnik stili

then noted the jury was, at one point, deadlocked. This implies that the decision was close

and perhaps could have been nudged towards finding the Defendant not guilty if some little

something more had been presented that was favorable to thc the Defendant. However, as the

Commonwealth noted at the June 27, 2013 hearing, Attorney Kalasnik did not preserve the

issue for appeal. A review of the trial transcript confirms this account. (Notes of Testimony,

4114110, at 349-50.) Consequently and regardless of potential validity, Attorney Gover could

have raised the issue on appeal. This Court finds that Attorney Gover was not ineffective not havc

Court's decision not to give a prior bad acts instruction. for failing to appeal this COlili's

D. Failure to Request Reques! Prior inconsistent lns!ruction Inconsistent Statements Instruction 9 Circulated 12/18/2014 12:09 PM

The fourth and final issue raised by the Defendant is whether Attorney Kalasnik was wa.'l

ineffective when he did not request an instruction on prior inconsistent statements for the

inconsistent statements of the victim.

In the hearing on June 27,2013, 27, 2013, the Defendant stated that he had no memory of prior

inconsistent statements of the victim being raised at trial or on appeal. Attorney Kalasnik

testified that he had told the Defendant that this was a he-said-she-said case in which the

reasoo to disbelieve the victim and her parents' credibility. To defense had to give the jury a reason

that end, Attorney Kalasnik urged the Defendant to wrack his brain for reasons why the

victim or her parents would accuse him. Attorney Kalasnik also testified that he could not

remember if the thc Court gave witness credibility or inconsistent statements instructions. A

review of the trial transcript reveals that the Court did give a witness credibility instruction. instmction.

(N.T., 4114/10, 4114110, at 359.)

Attorney Kalasnik's June 27, 2013 testimony included that the jury, at one point,

came back deadlocked. Perhaps the instruction instmction the Defendant believes should have been

requested would have aided the defense in such sueh a close dose call situation. As such, it seems that

the claim underlying the ineffectiveness claim has arguable merit as to not requesting an

instruction on prior inconsistent statements by the victim. The second prong of the ofthc

ineffectiveness standard, whether counsel's actions lacked any reasonable basis, is less sure. surc.

We are instructed to determine detennine whether whethcr "'an '''an alternative not chosen offered a potential for

success substantially greater than the course actually pursued. ", '" Cox, 983 A.2d 666, 678 (Pa. CPa. I 10 I Circulated 12/18/2014 12:09 PM

2009). Here, would having had the prior inconsistent statements instruction have proven

substantially more successful than not having the jury hear such an instruction? The Court

gave the standard witness credibility instruction. When Kalasnik' s \Vhen combined with Attorney Kalasnik's

cross of the victim and closing statement, the jury was well aware that the victim's testimony I

was in question. And, ultimately, the point ofa of a prior inconsistent statements instruction is to

highlight witness credibility. Any gain from a prior inconsistent statements instruction would

have been small and certainly would not have risen to the level of a substantially greater

potential for success. As such, it does not appear as though Attorney Kalasnik's actions

lacked any reasonable basis. The chosen course of not requesting the instruction does not

show Attorney Kalasnik to have been ineffective. If, however, Attorney Kalasnik's actions

were unreasonable, we proceed to the third prong of the ineffectiveness standard.

The third prong asks whether counsel's actions resulted in prejudice to the petitioner.

Again, "[p ]rejudice in the context of ineffective assistance of counsel means demonstrating

that there is a reasonable probability that, but for counsel's error, the outcome of the

proceeding would have been different." Pierce, at 213. The jury heard defense counsel cross i

the victim and make a closing argument premised upon perceived inconsistencies. The jury

was aware that the victim's statements were in question. It does not follow that there is a

reasonable probability that the outcome of the proceedings would have been different had the

prior inconsistent statements instruction been given. This Court finds that the Defendant did

not demonstrate that counsel's actions resulted in prejudice. Attorney Kalasnik was not 11 " Circulated 12/18/2014 12:09 PM

\='f:; of ;"C!H15:S.t-t:-VI ?;o. ,V\ c.o,~ 5: ste.V\ st",- sh,- e.M€V\ e.1"IEV\ neffective for not requesting the R1jg~jlig .'neffective roissi lig d

I. Conclusion

For the reasons stated above, the Court hereby DENIES DEN[ES the Defendant's petition.

COuRT, BY THE COURT,

DATED: October }),2013 ")),2013