Com. v. Thompson, D.

• Court: Superior Court of Pennsylvania
• Decided: June 25, 2019
• Docket: 1776 EDA 2018
• Status: Unpublished

Opinion

J-S06009-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DESEAN M. THOMPSON : : Appellant : No. 1776 EDA 2018

Appeal from the PCRA Order Entered May 25, 2018 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0004424-2012

BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.: FILED JUNE 25, 2019

Desean M. Thompson appeals from the order that denied his petition

filed pursuant to the Post Conviction Relief Act (“PCRA”). We affirm.

The PCRA court summarized the history of this case as follows.

[Appellant] was arrested and charged with five counts of rape by threat of forcible compulsion, four counts of involuntary deviate sexual intercourse by threat of forcible compulsion, five counts of sexual assault, two counts of aggravated indecent assault, five counts of indecent assault and one count of terroristic threats. These charges arose from [Appellant]’s assault on a 21 year old victim in a public park in Coatesville, Chester County, Pennsylvania, on August 5, 2012. [Appellant] and the victim, who did not know one another prior to the night in question, met in a bar and then walked to Ash Park where [Appellant] repeatedly raped the victim and threatened her with the blade of a knife, over a period of several hours.

Following a three day jury trial, on October 9, 2013, [Appellant] was found guilty of all counts charged. On November 18, 2014, [Appellant] was sentenced to an aggregate sentence of 20½ to 45 years imprisonment on five counts of rape and one count of terroristic threats. By order dated October 3, 2014, [Appellant] was determined to be a sexually violent predator J-S06009-19

pursuant to 42 Pa.C.S.A. § 9799.24, subject to the lifetime registration requirements under 42 Pa.C.S.A. §§ 9799.10 et seq.

On December I, 2014, [Appellant] filed a post sentence motion . . . for reconsideration and reduction of sentence and . . . challenging the sufficiency of evidence and . . . the weight of the evidence. By order dated February 2, 2015, [Appellant]’s motion for a new trial was denied; however, [Appellant]’s motion for reconsideration of sentence was granted. On April 17, 2015, [Appellant] was sentenced to an aggregate sentence of 18 to 45 years incarceration on five counts of rape and one count of terroristic threats. . . . On February 2, 2016, the Superior Court affirmed [Appellant]’s sentence. [Appellant, through counsel,] timely filed a PCRA [petition] on January 27, 2017[,] alleging trial counsel was ineffective[.]

PCRA Court Opinion, 5/25/18, at 1-2 (footnote and unnecessary capitalization

omitted). After a hearing at which Appellant and trial counsel testified, the

PCRA court denied Appellant’s petition by order and opinion of May 25, 2018.

This timely appeal followed, and both Appellant and the PCRA court complied

with Pa.R.A.P. 1925.1

Appellant presents this Court with the following questions:

Was it error to deny the PCRA Petition which established that Appellant’s conviction and sentence resulted from the ineffective assistance of counsel which, in the circumstances of this particular case, so undermined the truth determining process that no reliable adjudication of guilt or innocence could have taken place[?] Specifically, Appellant alleges that the court should have found that Appellant suffered from the ineffective assistance of counsel in that:

____________________________________________

1 On February 18, 2019, Appellant filed in this Court a petition to supplement the record, as the notes of testimony from the PCRA hearings were not included in the certified record. This Court granted the petition by order filed March 5, 2019, and the transcripts were received on May 10, 2019.

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A. [Counsel should] have filed and litigated a motion to suppress Appellant’s statements after Appellant invoked his Fifth Amendment right to counsel by advising the interrogating detective that he desired an attorney. And Appellant requested this motion to be filed by counsel and the failure to file such motion lacked any reasonable basis[.]

B. [Counsel should] have objected and moved for a mistrial based on several references at trial, especially during the Commonwealth’s closing argument, to the fact that Appellant failed to speak with or come into the Coatesville Police Station to speak with Detective [Sean] Dowds during his investigation[.]

C. [Counsel should] have objected to improper and unfounded expert testimony elicited from lay witnesses by the Commonwealth. Specifically:

1. Testimony presented by the SAFE nurse, Marvin Jackson[,] wherein he testified that there is often no bruising in the genital area and there have been studies comparing consensual versus nonconsensual sex which show that in 80-90% of the nonconsensual cases there will be no bruising in the genital area. This witness was not qualified as an expert in any field and had no basis to render the hearsay opinion he did regarding bruising;

2. Testimony presented by Coatesville Detective Sean Dowds when he testified as an expert regarding information available in cell phone records. Detective Dow[ds] testified that a phone record of any kind would not be able to corroborate whether or not a cell phone was dead or had power at any given time. There was no foundation laid for this opinion and this testimony was improper[.]

D. [Counsel should] have objected and moved for a mistrial based on the fact that Detective Dowds testified that he included information in his report and about his meeting at Ash Park with Mikea Hines, but that report was never turned over to the defense in violation of mandatory discovery[.]

Appellant’s brief at 7-9 (citations and unnecessary capitalization omitted).

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We begin with the legal tenets pertinent to our review. “Our standard

of review for issues arising from the denial of PCRA relief is well-settled. We

must determine whether the PCRA court’s ruling is supported by the record

and free of legal error.” Commonwealth v. Johnson, 179 A.3d 1153, 1156

(Pa.Super. 2018) (internal quotation marks omitted). Further, “[i]t is an

appellant’s burden to persuade us that the PCRA court erred and that relief is

due.” Commonwealth v. Miner, 44 A.3d 684, 688 (Pa.Super. 2012).

Appellant’s claims relate to allegations that his trial counsel rendered

ineffective assistance. Counsel is presumed to be effective, and a PCRA

petitioner bears the burden of proving otherwise. Commonwealth v.

Becker, 192 A.3d 106, 112 (Pa.Super. 2018). To do so, the petitioner must

plead and prove (1) the legal claim underlying his ineffectiveness claim has

arguable merit; (2) counsel’s decision to act (or not) lacked a reasonable basis

designed to effectuate the petitioner’s interests; and (3) prejudice resulted.

Id. The failure to establish any prong is fatal to the claim. Id. at 113.

“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.” Commonwealth v. Sandusky, 203 A.3d 1033,

1044 (Pa.Super. 2019) (cleaned up). Rather, “where matters of strategy and

tactics are concerned, counsel’s assistance is deemed constitutionally effective

if he chose a particular course that had some reasonable basis designed to

effectuate his client’s interests.” Becker, supra at 117 (internal quotation

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marks omitted). “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.” Id. (internal quotation marks omitted). In order to satisfy the

prejudice prong, “the petitioner must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome of the

proceeding.” Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012).

With these principles in mind, we turn to the claims of error presented

by Appellant. First, Appellant argues that the PCRA court erred in denying his

claim that trial counsel, Loreen M. Kemps, Esquire, was ineffective in failing

to move to suppress his statements made to police after Appellant had invoked

his right to counsel. Appellant’s brief at 21-27. The PCRA court addressed

Appellant’s contention as follows.

Even if we were to determine that [Appellant’s] argument has merit, a reasonable basis existed for not filing a suppression motion. It was established by the testimony of Ms. Kemps that the defense, from the beginning, was that [Appellant] and the victim had engaged in consensual intercourse. The only way to present this evidence to the jury would be through this recorded interview or through [Appellant]’s testimony. Ms. Kemps testified that the better strategy would be to allow the statement into evidence and [Appellant] would not have to testify. Ms. Kemps testified that she was not confident that [Appellant] could withstand cross examination. . . . Ms. Kemps was not willing to take that risk; therefore, as part of her trial strategy, she did not file a suppression motion and allowed the statement to be entered into evidence. The jury was able to hear the facts as presented

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by [Appellant], without putting [Appellant] on the witness stand. Ms. Kemps testified that she explained this strategy to [Appellant] on more than one occasion. [Appellant] testified that it was his decision alone not to testify at trial. Therefore, because trial counsel had a reasonable basis for not pursuing a motion to suppress, [Appellant]’s claim of ineffective assistance of counsel is without merit.

PCRA Court Opinion, 5/25/18, at 10-11.

We discern no reason to disturb the PCRA court’s determination. The

record supports its recitation of the facts. See N.T. PCRA Hearing, 4/4/18, at

22-26 (trial counsel testifying that the admission of the statement was the

best way to present Appellant’s claim of consent, as well as to demonstrate

his cooperation with the police investigation, as the statement contained the

information she would have elicited from Appellant if he testified, but he would

not be exposed to hostile cross examination); N.T. Trial, 10/9/13, at 81-88

(Officer Dowd testifying to Appellant’s description of a consensual encounter).

Counsel’s decision was reasonably designed to effectuate Appellant’s

interests. See Commonwealth v. Rosario, 652 A.2d 354, 367 (Pa.Super.

1994) (“We cannot say that counsel was ineffective for failing to seek

suppression of appellant’s statement . . . regardless of how it was obtained,

in light of the fact that it formed the basis for his defense.”). Moreover,

Appellant’s bald claims of prejudice do not satisfy his burden of establishing

that the result of the trial would have been different had the statement not

been entered to further his consent defense. Accordingly, no relief is due on

this issue.

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Next, Appellant contends that the PCRA court erroneously denied his

claim that trial counsel rendered constitutionally-deficient performance in

failing to move for a mistrial when Detective Dowds made references to

Appellant’s pre-arrest silence “as a tacit admission of guilt.” Appellant’s brief

at 28. Appellant relies upon our Supreme Court’s plurality decision in

Commonwealth v. Molina, 104 A.3d 430 (Pa. 2014) (OAJC), that “the use

of pre-arrest silence as substantive evidence of guilt violates a non-testifying

defendant’s constitutional rights.” Id. at 432.

The PCRA court concluded that, unlike the defendant in Molina,

Appellant never refused to speak with Detective Dowds, but rather was the

one who initiated contact and told the detective that he wanted to talk with

him when Appellant returned to Coatesville from Philadelphia. PCRA Court

Opinion, 5/25/18, at 14. The court thus found Molina distinguishable in that

Appellant never invoked his right to remain silent. Id. at 15. The PCRA court

further determined that trial counsel acted reasonably in deciding to use the

testimony about Appellant’s contact with the police elicited on cross

examination to support his theory of the case: that he had engaged in

consensual sex with the victim and cooperated with law enforcement. Id. at

14-15.

The trial testimony in question is as follows:

Q And can you please tell the jury when and how you first attempted to interview the [Appellant]?

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A I had heard that the [Appellant] had left town. I requested first to his girlfriend, Ashley Harris, if she would please have him call me. I also attempted to call him. He actually called me back. I spoke with him, I asked him to come in and speak with me so that I could interview him regarding the sexual assault.

Q When he called you back again, can you tell the jury when you first made phone contact with [Appellant]?

A I believe I first made phone contact with him September 10th.

Q Okay. And when you made phone contact with him on September 10th, what did you tell him?

A I asked him if he would please come in and talk to me about the events that happened on August 4th and 5th of 2012.

Q And in the course of those conversations, did [Appellant] give you any indication that he knew what you were talking about, that he knew what events that you wanted to talk to him that occurred in August?

A He did.

Q What did he tell you in this phone conversation?

A He told me that he had met a girl at the Kool Bar, he was intoxicated, he was high on wet, and he doesn’t remember exactly what happened but knows he didn’t rape that girl.

Q And after he told you that, what did you ask him to do?

A I asked him to come in and tell me his story.

Q And did the [Appellant] tell you where he was when you were on the phone?

Q Where did he say he was at that point?

A In Philadelphia.

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Q After you spoke to the [Appellant] on September 10th, 2012, did he come in to tell you what had happened?

A No, he did not.

Q Did you make any efforts to -- further efforts to reach out to him?

A I did.

Q Can you describe that to the jury.

A I called him another time and asked him to come in and speak with me. I said I hadn’t talked to him for a while, I thought he was going to come in and speak with me, and that I was trying to make another attempt to get him to come.

Q And what was the [Appellant]’s reaction to that? Did he come right away?

Q What did he tell you in terms of coming in?

A He said he needed to speak to an attorney. He would come in sometime in October, I believe.

Q And in October did the [Appellant] come in and speak to you?

Q At some point were you finally able to speak to the [Appellant]?

A I was.

Q And can you tell the jury how it was that you were finally able to speak to the [Appellant]?

A I spoke to him after we picked him up on the warrant that I filed.

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Q And do you recall and can you tell the jury what date it was that he was arrested on that warrant?

A I believe it was November 19th, 2012.

N.T. Trial, 10/9/13, at 76-78.

Counsel wove the testimony into closing arguments, advocating as

follows:

[Appellant] goes back to the same bar the very next day with a friend of his. . . . While he is there somebody comes in and that is the first he hears anything about a possible rape. Does he deny being in the park? No. He says, according to his statement, I didn’t rape that girl. I didn’t rape that girl. He calls the police when asked to.

If you follow the sequence, the police tell [Appellant’s] ex- girlfriend or girlfriend, to call him. At some point he calls them. He says he wants to come in. Says he is not in the Coatesville area, but he gives them a telephone number as to where he can be reached. They don’t say to him right then and there we have a warrant for your arrest, you have to come in. There is no testimony to that effect.

He says he needs to get back to Coatesville. He is not in Coatesville at that time. He is not hiding where he is. The Detective calls him two weeks later on the number that he gave. He answers the phone and, again, he talks to the Detective. There is no indication here that there were a series of phone calls that weren’t returned, that there were attempts or hang-ups or that they had to track down other numbers. And, again, he says I’ll probably be back in October. I want to come in and talk to you. And he is doing what the logical thing would be, I submit to you, hoping to get money for an attorney to help him because he believes there may be some accusations that are going to be filed against him.

N.T. Trial, 10/9/13, at 125-26.

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Appellant has failed to convince us that the PCRA court abused its

discretion in denying this claim. The testimony at issue contains no indication

that Appellant invoked his right to remain silent by refusing to speak to the

police. Cf. Molina, supra at 433 (“I asked him if he could come into our

office and sit down and talk with me about the case, and he refused. He said

he refused to come in.”). Further, given counsel’s use of the testimony to

support Appellant’s trial strategy, Appellant failed to establish the lack-of-a-

reasonable-basis prong of the claim. No relief is due.

Appellant’s remaining issues concern trial counsel’s failure to object to

expert testimony offered by lay witnesses, and the Commonwealth’s failure to

turn over a report covered by mandatory discovery. Appellant’s brief at 35-

44. Upon a review of the certified record, the parties’ briefs and the relevant

law, we discern no abuse of discretion on the part of the PCRA court as to

these issues, and we affirm the order denying his PCRA claims on the basis of

the opinion that the Honorable Jacqueline C. Cody entered on May 25, 2018.

See PCRA Court Opinion, 5/25/18, at 16-20 (discussing Appellant’s failure to

establish the prejudice prong regarding the claim that counsel should have

objected to improper expert testimony); id. at 22-26 (explaining that

Appellant failed to prove that the outcome would have been different had

counsel objected to a discovery violation, as the report at issue was consistent

with the evidence at trial).

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As Appellant has not met his burden of convincing this Court that the

PCRA court’s rulings were the product of an abuse of discretion or an error of

law warranting relief from this Court, see Miner, supra at 688, we affirm the

order denying his petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/25/19

- 12 - Circulated 05/31/2019 03:12 PM

COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COiv11v10N PT ,EAS

CHESTER COUNTY, PENN!)YLV /\NIA vs. CRBvffNAL ACTION

DESEAN THOMPSON NO. CP-15-CR-000,11124-20 l 2

Erik T. Walschburger, Esquire, Deputy District Attorney, on behalf of the Commonwealth of . Pennsylvania '. Colin R. Hueston, Esquire, on behalf or Defendant

MEMORANDU M_OPIN ION

This matter is before the Court for consideration of Defendant's Petition for

Relief Pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 954 I et seq. (PCR.1-\).

Defendant asserts that he was deprived of effective assistance of counsel and seeks 10 have his

sentence vacated and the matter remanded for a new trial. The Commonwealth responds that

Defendant's allegations of ineffective assistance of counsel are without merit; therefore, the

petition should be dismissed.

Defendant was arrested and charged with five counts of rape by threat of forcible

compulsion, four counts of involuntary deviate sexual intercourse by threat of forcible

compulsion, five counts of sexual assault, two counts of' aggravated indecent assault, five counts

of indecent assault and one count oi terroristic threats These charges arose from Defendant's

assault on a 21 year old victim in a public park in Coatesville, Chester County, Pennsylvania, on

August 5, 201�. Defendant and the victim, who did not know one another prior 10 the night in

question, met in a bar and then walked to Ash Park where Defendant repeatedly raped the victim

and threatened her with the blade of a knife, over a period of several hours.

''} • \.t.., .,.. lo \ Following a three day jury trial, on October 9, 20 l 3, Defendant was found guilty

o [ all counts charged. On November 18, 2014. De fend ant was sentenced lo an aggregate

sentence of 20 Y2 to 4 5 years imprisonment on five counts of rape and one count of terroristic

threats.' 13y Order elated October 3, 2014, Defendant was determined lo be asexually violent

predator pursuant to 42 Pa.C.S.A. § 9799.24, subject to the lifetime registration requirements

under 42 Pa.C.S.A. §§ 9799. 10 er seq.

On December l , 20 l ·1, Defendant filed a Post Sentence Motion Pursuant to Rule

720 for Reconsideration and Reduction of Sentence and New Trial Pursuant to Rule 606

Challenging the Sufficiency of Evidence and Rule 607 Challenging the Weight of the Evidence.

By Order dated February 2, 2015, Defendant's Motion for a New Tria] was denied; however.

Defendant's Motion for Reconsideration of Sentence was granted. On April 17, 20 l 5, Defendant: I was sentenced to an aggregate sentence of 18 lo 4 5 years incarcerat ion on five counts of rape and ' one count of terroristic th reals. De fondant received credit for time served from November l 9,

7.012 to April 17, 201 Sand was deemed ineligible for RRRl. On February 2, 2016, the Superior

Court affirmed Defendant's sentence. Defendant timely filed a PCRA on January 27, 2017

alleging trial counsel was ineffective based upon the following allegations:

1. Trial counsel failed lo file a suppression motion seeking to suppress statements Defendant made while being interviewed by Detective Sean Dowds when Defendant requested counsel and Detective Dowds continued to interview him.

2. Trial counsel failed to object and move for a mistrial based upon references made to Defendant's failure Lo speak with poi ice during the investigation

1. Trial counsel failed to object to expert testimony offered by lay witnesses, including testimony offered by SAFE nurse Martin Jackson and testimony offered by Detective Sean Dowds.

' All remaining charges merged with rape. 4. Trial counsel failed to object to a jury charge regarding flight of the Defendant.

5. Trial counsel failed to object lo Detective Sean Dowel's testimony regarding a meeting between himsel rand the victim in Ash Park, allegedly memorialized in a police report never turned over to Defendant.

6. Trial counsel failed to conduct a proper investigation, including trial counsel's failure to secure video surveillance from the Kool Bar and obtain all cell phone records to refute the victim's claim that her cell phone was dead and she received no cal Is.

The law presumes that counsel has rendered effective assistance. Commonwealth

}.'.�_,Lane, 8 I A.3

evidence that counsel's ineffectiveness so undermined the truth-determining process that no

reliable adjudication of gui It or innocence could have taken place." Comrnonweahhv. Johnson, I l 1 9(-i(; A.2d 523, 532 (Pa. 2009). In order to successfully prove a claim of ineffective assistance of ,

·f counsel, Defendant must prove the following 3 elements as set forth in (:omrn_grrwcal!h v. Pierce,

5 l 5 Pa. 153, 527 A.�d 973, 975-76 (1987):

(]) The underlying legal claim has arguable merit; (2) counsel had no reasonable basis for his or her action or inaction; and (3) the .1 petitioner suffercd prejudice been use of counsel's inelfectiveness. !. (91nmon\ve�!th.Y,.__Po_Q_Q.y, 609 Pa. 272, 292, 15 A.3d 431, 442 (2011) (citations omitted).

"The threshold inquiry in ineffectiveness claims is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of' ineffectiveness is of arguable merit Commonwtaj_th v. Pierce, 53 7 Pa. 514, 524, 645 A.2d 198, I 94 ( 1994) "counsel cannot he found ineffective lor foiling to pursue a baseless or meritlcss claim." Comr!wnwealth v. Poplawski, 852 II A.2d l::>J, .'i27 (Pa.Super 2004'1. 1 · Cnnunnn."°"."1<.h y, ,Taylor, 913 A. 2d I OJ 5. I 04 I -•r< ( Pa.Super. '.'007). With regard lo reasonable basis, we must examine whether counsel's actions had

any reasonable basis rather than whether there was a more logical course of action counsel could

have pursued. Paddy, al 292, 15 A.Jd al 442. In order for a chosen strategy to be found to have

been unreasonable, it must be proven that the path not chosen "offered a potential for success

substantially greater that the course actually pursued." Commonwcalth_v. Miller, 605 Pa. l, 18,

987 A.2d 638, 648-49 (2009) (citation omitted).

In order to prove prej udice, "a defendant must show that but for counsel' s error,

there is a reasonable probability, i.e., a probability that undermines confidence in the result, that

the outcome of the proceeding would have been different." l\l_ill�!:, at l , 18, 987 ;\.2d at 648

(citation omitted). If the defendant foils to satisfy any of these three elements, the claim will fail.

IJ.1vlo_r, at 104 I.

T. failure to File MotiontoSupprcss:

Defendant argues that trial counsel was ineffective for foiling to file a Motion to

Suppress the statement of Defendant to Detective Scan Dowds. Specifically, Defendant

contends that inculpatory statements made by him during the interview with Detective Dowds on

November 19, 2012 were admitted into evidence despite the fact that he requested counsel.

Defendant argues that Detective Dowels ignored his request for counsel and continued to

question him without counsel. Moreover, Defendant contends that he requested a suppression / motion he filed by trial counsel.

The Fifth Amendment right to counsel was recognized in _tvlirnnda v. Arizona, 3841 . I

U.S 436, 86 S.Ct. J 602, 16 L.Ecl.2d 694 ( 1966). Miranc:la requires that an individual subject to I custodial interrogation must be informed of his right lo remain silent and his right to the presence

or an attorney. MirmyJJ!, at 479, 86 S.CL at 1630.

4 [ WJhen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police- initiated custodial interrogation even if he has been advised of bis rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police .

. . .. \Ve .. emphasize that it is inconsistent with Miranc\n and its progeny for the authorities, at their instance, to reinterrogare an accused in custody if he has clearly asserted his right to counsel.

:!;Q�\19D1§__y_,_.l\rizon�, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1884-85, 68 L.Ed.2d 378 (1981)

(fn.8 omitted). The rule announced in Edwards expresses two different inquiries. "First, courts

must determine whether the accused actually invoked his right to counsel. ... Second, if the

accused invoked his right to counsel, courts may admit his responses to further questioning only

on finding that he (a) initiated further discussions with the police, and (b) knowingly and

intelligently waived the right he had invoked." Edv{ards, at 485, 486 n.9, 101 S.Ct. at urns n.9. A de fondant may waive his rights under Miran�i! and agree to answer questions

from the police. A valid waiver of �fo:�nda rights is made knowingly, intelligently and

voluntarily (Q!l1tl10l1\��_illtb v._12,c:)eSll.!?, 567 Pa. 415, 301, 787 A.7d 3911, 402 (2001) (citations

omitted) The waiver must be "the product of a free and deliberate choice rather than

intimidation, coercion, or deception" and "must have been made with a full awareness of both

the nature of the right being abandoned and the consequences of the decision to abandon it." Id.

The totality of the circumstances surrounding the waiver will be considered in determining

whether the waiver was voluntary. Id.

Some of the factors to be considered include: the duration and means or interrogation; the defendant's physical and psychological state; the conditions attendant to the detention; the attitude

5 exhibited hy the police during the interrogation: and any other factors which may serve to drain one's powers of resistance to suggestion and coercion.

Id.

When determining whether a defendant has knowingly and

in tell igently waived his rights under Miranda, the court focuses on the defendant's cognitive

processes such as whether the defendant was aware of the nature of the choice that he made in

relinquishing bis fvfira_!)_!:!.f! rights. C�ommon�'ealtb. .YJ2i_S_tefanQ, 782 A.2d 574 (Pa.Super. 2001).

The Commonwealth bear� the burden of establishing, by preponderance of the evidence, that the

waiver was knowing and intelligent. �qrr1monwealth v. Ed:wards, 521 Pa. 134, 555 A.2d 818

( 1 989). Whether the waiver was knowing, voluntary and intelligent is to be made while

considering the totality of the circumstances. fd.

Defendant was interviewed by Detective Sean Dowds on November 19, 2012 at

the- City of Coatesville Police Department. (Exhibit C-96A, p. l). The following exchange took

place between Defendant and Officer Dowds:

Det. Scan Dowds (SD): All right, Desean uh, what I'm gonna do is read you your Miranda rights, uh before we get into this, all right?

Desean Thompson (DT): All right.

SD: Pursuant to law, I am informing you that I am Detective Dowds, this is Detective Wright, Coatesville Police Department we're investigating a rape. You have the right to remain silent, however if you say anything such can and wi I l be used against you in a court of law. Do you understand?

OT: Yes, sir.

SD: You have a right to talk to a lawyer before answering any questions and have a lawyer with you before and during questioning, do you understand this? DT: Yes, sir.

SD: If you cannot afford a lawyer, you have the right to have a free lawyer appointed for you before any questions are asked and during any questioning. This free lawyer is of no expense or cost to you.

OT: And when· and when would that be appointed to me, how fast?

SD: Upon your request.

DT: l need one ASAP. (unintelligible)

SD: Do you understand this?

DT: Yeah.

SD: During questioning you may stop at any time and refuse to answer any further questions do you understand this?

DT: Yes.

SD: Understanding these rights and having them in mind, do you wish to give up these rights and talk lo us now?

DT I'll talk to ya, no problcrn-l 'll talk to ya.

SD: So, Yes?

SD: All right, sign right there by the X.

(Exhibit C·96A, p. l-2).

During the PCRA hearing, Defendant testified that when he was interviewed hy

Dctecti ve Dowds on Nov cm ber l 9, 20 l 2, he informed the detect! ve that he needed a lawyer as

soon as possible, although he testified that he continued to speak with Detective Dowds without

counsel present. Defendant further testified that he asked trial counsel. Loreen Kemps, Esquire,

to file a motion to suppress statements made to Detective Dowds. Defendant testified that when

I he met Ms. Kemps at Chester County Prison in February of 20 l 3, she told him that she found

something interesting in his statement and mentioned filing a motion to suppress al that lime.

Defendant testified that he saw Ms. Kemps in April 2013 and did not see her during the summer

of 2013. Defendant testified that when he saw Ms. Kemps in April, 2013, she informed him that

she wasn't sure if she would stil I be handling his case because of changes in the office of the

Public Defender. Defendant testified he received a notice of trial in August of 2013 notifying

him that he was now represented by Stephen F. Delano, Esquire.

Defendant testified that he did not sec Ms. Kemps again until October 2013,

approximately a week before trial was to start. At that time, Defendant learned that a

suppression motion had never been filed. Defendant tcsti ficd that he spoke with Ms. Kemps

regarding whether he would testify at trial. Defendant testified that Ms. Kemps told him it would

not be in his best interests to testify al trial.

Defendant further testified that he agreed to speak with the detectives and signed

the card enumerating his rights under Miranpa. Although Defendant testified that he did not

know whether he wanted to testify at trial, he does recall telling the Court during the trial that he

did not want to testify. Defendant testified that he relied upon counsel for her advice as lo

whether or not to test if)' at trial; however, Defendant acknowledged that it was his decision

whether to testify at trial.

Ms. Kemps testified during the PCRA hearing that after reviewing the discovery,

she determined that this was a case of consent Ms Kemps tes(ifi�d that the statement Defendant

made to Detective Dowds was consistent with this defense. Although Ms. Kemps testified that

initially, she generally told Defendant that there may be an issue with the statement he gave to

Detective Dowds, at that time, she did not have a transcript o r the statement and informed

8 Defendant that there might be an issue to look into. Ms, Kemps testified that she informed

Defendant that the potential to file a suppression motion was present; however, she did not

guarantee that the evidence would be suppressed.

Ms. Kemps testi ficd that the best trial strategy would he for Defendant's

statement to Detective Dowds to be admitted into evidence. Ms. Kemps testified that the jury

needed to hear the facts as stated by Defendant in order to put forth the defense of consent. [f

Defendant's statement were suppressed, the only way to get those facts into evidence would be

for Defendant to testify. Ms. Kemps feared that if Defendant testified, his testimony would not

be totally consistent with the statement to Detective Dowds. lf that were the case, the

Commonwealth would be permitted to use the statement to impeach the Defendant on cross-

examination, which would suggest to the jury that Defendant was not truthful. Admission of the

statement into evidence assured that there would be no cross examination of the statement at

trial

Ms. Kemps testified that she met with Defendant a number or times and explained:

II to him that the defense of consent could not be established without the facts as he knew them and

these facts had lo be presented to the jury either through his statement to Detective Dowds or his

testimony at trial. Ms. Kemps testified that allowing the statement to come in as evidence would

be the helter trial strategy and allow her to make the argument to the jury that Defendant and the '

victim engaged in consensual sexual intercourse.

Ms. Kemps further testified that early on in this case, Defendant did not state that

he wanted her to file a suppression motion. Ms. Kemps testified that although she did not meet

with Defendant in the summer of 2013, she did provide drafts of witness interviews to

Defendant. Ms. Kemps testified that she did speak with Defendant during the period between

9 April 2013 and the fall of2013 regarding the issue of suppression. Ms, Kemps testified that she

explained to Defendant her trial strategy regarding suppression. Ms. Kemps testified that it is

common trial strategy not to file a suppression motion where, as in this case, the testimony can

be presented lo the jury without the defendant testifying at trial.

Contrary to Defendant's argument. his claim lacks merit. Defendant never

invoked his right to counsel. Although Defendant asked Detective Dowds how quickly he could

get counsel, he never asked to have the questioning stopped and did not cease communicating

with Delee ti ve Dowds. Detective Dowds asked Defendant if he understood his rights and

Defendant answered in the affirmative. Defendant testified that he signed the waiver card and

agreed to speak with Detective Dowds.

Al no time during the approximately 30-minute interview with Detective Dowds

did Defendant ask for the interview to stop or ask Detective Dowds lo slop his questioning so

that he could obtain an attorney. "To hold that every utterance of the word 'lawyer'

automatically erects the 1���ards' 'cone of silence' around the accused, thus insulating him from

all further police-initialed questioning and communication .. would be far too rigid and would not

serve the interest or needs of justice." Commonwealthv. Hubble, 509 Pa. 497, 51 l, 504 A.2d

l 68. 175 (1986) (emphasis included). In light of the circumstances surrounding the

interrogation, Defendant's statement that "I need one ASAP" is insufficient to slop the

inlcffogalion. Defendant knowingly and intelligently waived his right to counsel. Therefore,

(rial counsel cannot be found to be ineffective for foiling to file a suppression motion.

Even if we were to determine that Defendant's argument has merit, a reasonable

basis existed for not ti ling a suppression motion. It was established by the testimony of Ms.

Kemps that the defense, from the beginning, was that Defendant and the victim had engaged in

lO consensual intercourse. The only way to present this evidence lo the jury would be through this

recorded interview or through Defendant's testimony. Ms. Kemps testified that (he better

strategy would be lo allow the statement into evidence and Defendant would not have to testify.

Ms. Kemps testified that she was not confident that Defendant could withstand cross-

examination. If Defendant's testimony at trial was inconsistent with his statement to Detective

Dowds, the Commonwealth could use the statement to impeach the Defendant's credibility in

front of the jury. Ms. Kemps was not willing to take that risk; therefore, as part of her trial

strategy, she did not file a· suppression motion and allowed the statement to be entered into

evidence. The jury was able to hear the facts as presented by Defendant, without putting

Defendant on the witness stand. 1V1s. Kemps testified that she explained this strategy to

Defendant on more than on occasion. Defendant tcsti fied that it was his decision alone not lo

testify al trial. Therefore, because trial counsel had a reasonable basis for not pursuing a motion

to suppress, Defendant's claim or i neffccti ve assistance or counsel is without merit.

I l Defendant's Pre: At-rest Silence;

Defendant next argues that trial counsel was ineffective for failing to object to

questions regarding and references to Defendant's pre-arrest silence. Specifically, Defendant

argues trial counsel was ineffective for failing to object to Detective Dowds testimony regarding

Defendant's failure to speak with him prior to being arrested. Defendant argues that Detective !1 I' Dowd's testimony regarding his pre-arrest silence was prejudicial and intended to infer to the I jury he was guilty. I Ii Detective Dowds testified as follows during the trial:

Q: And can you please tell the jury when and how you first attempted to interview the defendant?

l I A: l had heard that the defendant had le ft town. I requested Ii rst to his girlfriepd, Ashley Harris, if she would please have him call me. I also attempted to call him. He actually called me back. I spoke with him. l asked him to come in and speak with me so that I could interview him regarding the sexual assault.

Q: When he called you back again, can you tell the jury when you first made phone contact with Mr. Thompson?

A: I believe I first made phone contact with him September 10 1h.

Q: Okay. And when you made phone contact with him on September io", what did you tell him?

A: 1 asked him if he would please come in and talk to me about I the events that happened on August 4th and 5'11 of 2012.

I Q: And in the course of those conversations, did Mr. Thompson give you any indication that he knew what you were talking about, that he knew what events that you wanted to talk to him that I occurred in August?

A: He did:

Q: What did he tell you in this phone conversation?

A: He told me that he had met a girl at the Kool Bar, he was intoxicated, be was high on wet, and he doesn't remember exactly what happened but knows he didn't rape that girl.

Q: And after he told you that, what did you ask him to do?

A: I asked him to come in and tell me his story.

Q: And did the defendant tell you where he was when you were on the phone'?

A: He did.

Q Where did he say he was at that point'!

A· In Philadelphia.

Q: After }'OU spoke to the defendant on September I ot\ 20 l 2, did he come in to tell you what had happened? /\.; No, he did not.

Q: Did you make any efforts to -furthcr efforts to reach out to him?

A: I did.

Q: Can you describe that to the jury.

A: l called him another time and asked him to come in and speak I with me. I said I hadn't talked to him for a while, I thought he was I going to come in and speak with me, and that I was trying to make another attempt to gel him to come.

I Q: And what was the defendant's reaction to that? Did he come right away? 11 i\: No, he did not.

Q; What did he tell you in terms of coming in?

A: He said he needed to speak to an attorney. He would come in sometime 111 October, I believe.

Q: And in October did the defendant come in and speak to you'?

A: No, he did not.

Q: At some point were you finally able to speak to the defendant?

A: l was.·

Q: And can you tell the jury how it was that you were finally able to speak to the defendant'?

i\: 1 spoke to him after we picked him up on the warrant that l 1ikd

Q And do you recall and can you tell the jury what date: it was that he was arrested on that warrant?

A: 1 believe it was November 19111, 20 l 2.

(N.T. 10/9/2013, 76-78, 79).

1J Detective Dowds' testimony directly contradicts Defendant's argument.

Defendant was not silent. Detective Dowds testified that he had phone conversations with

Defendant prior to Defendant's arrest Detective Dowds testified that Defendant wanted to speak

with him about the incidents of the night in question; however. he needed to retain counsel and

would come to Coatesville when he retained counsel. Detective Dowds never testified that

Defendant did not want to speak with him; in fact, it was Defendant who initially called

Detective Dowds. There is no testimony of record that Defendant refused to speak with

Detective Dowds.

The testimony elicited from Detective Dowds on cross examination highlights

Defendant's reasonable tiia] strategy that he cooperated with police and did not rape the victim

but had consensual sexual intercourse with her. (N .T. I 019/20 I 3, 94- l 00). Counsel continued

with this reasonable trial strategy through closing arguments by specifically recounting how

Defendant cooperated with the police.

Does he deny being in the park? No. He says, according to his statement, I didn't rape that girl. I didn't rape that girl. He calls the police when asked to.

If you follow the sequence, the police tell Ashley, the. ex- girlfriend or girlfriend, to call him. At some point he calls them. T-!e says he wants to come in. Says he is not in the Coatesville area, but he gives them a telephone number as to where he can be reached. They don't say to him right then and there we have a warrant for your arrest, you have to come in. There is no testimony to that effect.

116 says he needs to get back to Coatesville. He is not in Coatesville al that time. He is not hiding where he is. The Detective calls him two weeks later on the number that he gave. He answers the phone and, again, he talks lo the Detective. There is no indication here that there were a series of phone calls that weren't returned, that there were attempts or hang-ups or that they had to track down other numbers. J want to come in and talk to you. And he is doing what the logical thing would be, l submit lo

]'1 you, hoping to get money for an attorney to help him because he believes there may be some accusations that arc going to be tiled against him.

(N.T 10/()/2013, 125-26). Defendant never stated he did not want to speak with Detective

Dowds and in fact, initially contacted Detective Dowds and gave him his phone number.

Defendant cites the case of C9mmonwealth v. Molina. 628 Pa. 465, l 04 A.3d 430

(2014) in support of his argument. :Vlolina is distinguishable from the case at bar. While the

defendant in Mclin.� spoke with a detective over the phone, when the detective asked the

defendant to come to the police station to tell his side of the story, he refused to cooperate or

speak further with the detective. The Supreme Court determined that when the defendant

refused to speak further with the detective, he invoked his right against self-incrimination,

thereby prohibiting the use of his pre-arrest silence as substantive evidence of guilt. �1olina, at

500, 104 A.Jd at 451.

At bar, De fcndaut initially contacted Detccti ve Dowds and told Detective Dowds

he wanted lo speak with him as soon as he returned to Coatesville. Defendant never refused to

speak with Detective Dowds at any point prior to his arrest. Any questioning by Detective

Dowds regarding Defendant's conduct prior to his arrest supports counsel's reasonable trial

strategy that Defendant cooperated with Jaw enforcement and continually told police he did not

rape the victim.

Defendant argues that counsel was ineffective for failing to object to the expert

testimony provided by two Jay witnesses. Specifically, Defendant contends that SAFE nurse

Marvin Jackson provided expert testimony regarding lack of injuries to rape victims and

Detective Dowds provided expert testimony regarding information available in cell phone records. Defendant argues that these witnesses were not qualified as experts and their testimony

constituted hearsay and was beyond the scope of an ordinary lay person's knowledge. Defendant

concludes that but for counsel's failure to object to this testimony, the outcome would have been

different.

Pa.R.E. 701 provides as follows:

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:

(a) Rationally based on the witness's perception;

(b) Helpful to clearly understanding the witness's testimony or to dctcrn: ining a fact in issue; and

( c) Not based on scient i fie, technical, or other specialized knowledge within the scope of Rule 702.

Pa.R E. 702 addresses testimony by an expert witness.

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge is beyond that possessed by the average layperson;

(b) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; and

(c) the expert's methodology is generally accepted in the relevant field.

The Cornmonwenlth presented the test imony of Marvin Jackson, a registered

nurse at Lancaster General Hospital, who examined the victim the night of the assault. Mr

lackson is a qualified Sexual Assault Forensic Examiner (SAFE) nurse. (N.T. 10/9/2013, S).

Mr. Jackson performed a Sexual Assault Forensic Exam on the victim on August 5, 2012. (N.T

I 0/9/20 I J, 8-9). Mr. Jackson testified as follows with regard lo inj uries to the victim:

16 Q: When 9'0U conducted the pelvic exam of Ms. Hincs->-

A: Yes.

Q: Did you observe any injuries to her pelvic or rectal area?

A: There was-let me double check. There was some redness lo the cervix and I saw a white substance there.

Q: On the body map of the genital area, do you note on there any injury or do you note anything indicating an absence of injury?

A: On the body map, yes. And on the genital injury documentation l did not put any injuries down.

Q: In Iact, you staled no obvious injury?

A: Correct.

Q: But your recollection now on the checklist is you do mention there was some redness to the cervix or does your checklist just mention the white substance?

A: The white substance.

Q: What, if anything, does the lack of obvious injury to the genital area tell you about whether or not a sexual assault occurred?

A. It docs not say one way or the other.

Q: Can you explain that ro the jury.

A: Lot of times there will be no injury to the genital area, because, unlike, I guess, I don't want to say typical, but the idea that there is a }01 of brui sing just doesn't happen A lot of ti mes the patient will have been threatened with further bodily harm, so they will. to avoid further injury, they will not resist. not put up a fight. And there have been studies that where, between nonconsensual and consensual sex, usually the nonconsensual sex won't have injuries in 80 to 90 percent of the cases.

Q: Now, you mentioned in many cases the victim will be threatened and will not-I forget your exact words. Did Ms. Hines

17 indicate in her conversation with you whether or not she had been threatened at all?

A: She was. She told me that he threatened to kill her with a box cutter if she did not comply.

(N.T. 10/9/2013, 21-24).

Defendant-has failed to prove that but for counsel's failure to object lo this line of

questioning, the outcome would have been cti fferent. l f coun sd had objected to Mr. Jackson's

testimony, the Commonwealth would have qualified Mr. Jackson as an expert. Mr. Jackson

testi ficd that he has been a registered nurse for 28 years and has worked at Lancaster General !! Hospital as a registered nurse in the emergency room for the past 8 years. (N.T. 10/9/2013, 4-5). I Mr. Jackson's duties include trauma nursing and being a SA�E nurse. (N.T. 10/9/2013, 5). Mr. J

Jackson recci ved 60 hours of adult and pediatric training in order to become a SAFE nurse. I I I (N.T t 0/9/2013, 6). Mr. Jackson testified that he has been a SAFE nurse for the past 2 years and

has conducted ! 5 sexual assault forensic exams on adults. (N.T. 10/9/:?013, 7-8). Once qualified

as an expert, Mr. Jackson would be permitted to give this testimony. See, Commonwealth v.

Mincx.ct. 562 Pa. 46, 753 0.2d 225 (2000) (Commonwealth may offer. as part of its case-in-chief I Ill a sexual assault prosecution, an expert's testimony that absence of physical trauma is I 11 consistent with alleged sexual abuse).

Defendant further argues that trial counsel was ineffective for failing to object I when Detective Dowds testified that cell phone records would not show whether a cell phone I was operating or dead. Defendant contends that Detective Dowds was testifying as a lay witness . I and did not have lhe specified skill, training or expertise to testify regarding cell phone usage and

cell phone records. Defendant argues that trial counsel's failure to object prejudiced him.

18 Defendant informed Detective Dowds during his interview that the victim's cell

phone was ringing while they were together. (Exhibit C-96A, p.5; 7; I 6). The victim testified

that she realized her cell phone was dead when she went to look at it while she and Defendant

wae outside of the Kool Bar smoking marijuana. (N.T. l 0/9/20 l 3, 69- 70). Defendant argues

that trial counsel should have objected when Detective Dowds testified as follows on re-direct

exam:

Q: Detective, you were asked questions as to whether or not you received--attcmpted to obtain phone records, correct?

Q: \Vould a phone record of any kind be able to confirm or corroborate one way or the other whether a cell phone was dead at any gi ven Ii me?

A: No, it would not.

JvfS. CARDAMONE: r have nothing further. THE COURT: Thank you. Any follow-up?

---Rf CROSS EXAtvfrN.t\ Tl ON---

BY Jv1S. KEMPS:

Q: Phone records will tell you, however, if a phone call was made and whether they were received and how long the calls were made, correct?

J\: Correct.

(C-.:T l0/9/20!3. 106-07) i

Defendant fails to provide evidence thot Detective Dowds testimony was i I

prejudicial. Defendant failed to provide evidence that the cell phone had power and was working I

during the assault. Defendant makes only the bald assertion that the victim's cell phone was

working during the assault. Defendant cannot be prejudiced by Detective Dowds' testimony

\9 unless he can provide. evidence that the victim's cell phone was working and Detective Dowels'

testimony was false. Even if Defendant provided this evidence, whether or not the victim's cell

phone was working during the assault does not disprove the fact that the victim was raped.

Even if Defendant could prove that the victim's cell phone had power during the

assault, there is no evidence of record that the victim could have reached her phone and called

for help. The jury heard Defendant's statement that he heard the victim's cellphone ringing

while they were together and the victim's testimony that her cell phone was dead. The victim

testified that when Defendant started choking her, she remembered she had a can of mace in her

purse, but her purse was so big and out of her reach, she would not be able to gel to it and

remove the mace. (N .T. I 0/9/2013, I 06- l 07). The jury further heard the victim's testimony that

she was afraid that Defendant would kill her if she screamed for help. (N.T. I 0/9/2013, 91 ). If

the victim was so afraid that she could not scream for help, it is unbelievable that she could reach

for her cell phone and call for help. Issues regarding a witness's credibility are left to the fact

finder, who is free to believe all, part or none of the witness's testimony. Commonwealth_v.

_pjre_@, 398 Pa.Super. 76, 82, 580 A.2d 848, 852 (1990), appeal denied, 527 Pa. 672, 594 A.2d

658 (1991).

TV Ftid1t_Instruction:

Defendant alleges that trial counsel was ineffective for failing to object to a flight

instruction being given to the jury. Defendant argues that he did not flee the jurisdiction.

Defendant contends that he spoke with Detective Dowds over the phone and Detective Dowds ! knew his phone number as well as his address. Therefore. Defendant concludes that there was no I evidence of record that would support a flight instruction.

'.'.O "[Wlherc evidence exists that a defendant committed a crime, knew he was

wanted , and fled or concealed himself, such evidence is admissible to establish consciousness of

guilt." k.9.n1monwealth v. Lukowich, 875 A.2d 1169, 1173 (Pa.Super. 2005), citing,

Commonwealth v. Johnson. 576 Pa. 23, 838 A.2d 663, 681 (2003). In determining whether a·

jury charge was properly given, the court examines the charge as a whole. Lu�2YY�.9h, at l l 7·1.

The trial court is given broad discretion in fashioning jury instructions, as long as the law is

presented i 11 11 clear. adequate and accurate manner. [t_t.

/\ t bar, there is evidence of record that Defendant knew that the victim was

accusing him of committing a crime and as soon M, he heard that, he left Coatesville. Defendant

told Dctecti ve Dowds during bis interview on November 19, 20 I 2 that the day after he bad

consensual sexual contact with the victim, he and his friend returned to the Kool Bar, where

Defendant overheard another individual slate that his sister had been raped the night before in the

park. (Exhibit C-96A, at 5-6). Defendant also told Detective. Dowds that a week after the

incident occurred he overheard a phone conversation between his girlfriend, Ashley Harris, and a I

male wherein the male caller informed his girlfriend that Defendant had raped his sister in the I park. (Exhibit C-96A, at 10-11; N.T. 10/9/20! 3 at I 04). Detective Dowds further testified that

Ashley Harris informed him the Defendant was living with her in Coatesville until he heard

about the rape al legation. (N.T. l 0/9/203, 104: Exhibit C-95, p. l ·i of l 5). When Detective

Dowels spoke with Defendant on September I 0, 1012, Defendant told him that Ashley Harris

told him there was a warrant out Jen his arrest. (N.T J 0/9/2013, J 06; Exhibit C-95, p 12 of 15).

Defendant did not come lO Coatesville and speak with Detective Dowds until he was arrested 2

months later. (N .T. I 0/9/2013, I 06).

21 Based upon this evidence, the following instruction was given to the jury:

There was evidence in this case that tended to show that the defendant moved out of Coatesville shortly after he became aware of the victim's complaint to the police. The credibility, weight, and effect of this evidence is solely for you to decide. Generally speaking, when a crime has been committed and the person thinks he is or may be accused of committing it and he flees or conceals himself, such flight or concealment is a circumstance tending to prove the person is conscious of guilt. Such flight or concealment does not necessarily show consciousness of guilt in every case.

A person may flee or hide for some other motive and may do so even though innocent. Whether the evidence of flight or concealment in the case should be looked al as lending to prove guilt depends on the facts and circumstances of this case and especially on motives that may have prompted the flight or concealment. You may not find the defendant guilty solely on the basis o I' evidence of flight or concealment.

(N.T. I 0/9/20 l 3, 160-61 ). The instant instruction advised the jury they could consider evidence

of consciousness of guilt but that it was not required to do so. The instruction further advised

that the jury could not find Defendant guilty based solely on the basis (if flight or concealment.

The instruction was clear, adequate and legally accurate. The charge was based

upon the fact that Defendant fled the jurisdiction as soon as he heard the allegations of rape. As

of September l 0, 20 l 2. Defendant knew there was a warrant out for his arrest, but did not return

to Coatesville until November, despite telling Detective Dowds he would return in October.

Therefore. the Court's instruction was proper and any objection by the Defendant would have

been meritless.

V. V,iolation of Mandatory Discoverv:

Defendant' argues that trial counsel was ineffective for failing to request a mistrial

when Dclecti ve Dowds testified about a police report that was never disclosed lo Defendant.

Specifically. Detective Dowds testified that he met with the victim while they walked through Ash Park, the location of the assault, and the information he received during that meeting was

placed into a police report that was not disclosed to Defendant. Defendant contends that this

report was "presumably exculpatory because it provided additional information about the

cornplainants version of the incident, the location as well as the crime scene." (Defendant's

Initial Memorandum of Law in Support of Petition for Post-Conviction Collateral Relief, p. 19).

Defendant argues that a failure to provide this report is a violation under Brady Y, _Marylrmd, 373

U.S. 83 (1963).

In order for Defendant lo be successful on his claims under the PCRA, be must

plead and prove by a preponderance of evidence that the conviction or sentence resulted Irorn

one or more of the seven enumerated error listed in 42 Pa.C.S.A. § 9543(a)(2). Defendant's

allegation of a I�ra_d.)'. violation falls within the following errors:

(i) A violation of the Constitution of this Commonwealth or the constitution or laws of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.

(ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth determining process that no reliable adjudication of guilt or innocence could have taken place.

:12 Pa.C.S.A. § 954J(a)(2)(i, ii).

Pa.R.Crim.P. 573(B)( 1) provides in pertinent part that the Commonwealth shall

disclose to the defendant all of the following requested items or information, provided they arc

material to the instant case:

(a) Any evidence favorable to the accused that is material either to guilt or to punishment and is within the possession or control of the attorney for the Commonwealth; ( b) any written confession or incu lpatory statement, and the identity of the person lo whom the confession or inculpatory statement was made that is in the possession or control of the attorney for the Commonwealth;

(c) the defendant's prior criminal record;

(d) the circumstances and result of any identification of the defendant by voice, photograph, or in-person identification;

( e) any result or reports of sci ell Ii fie tests, expert opinions, and written or recorded reports of polygraph examinations or other physical or mental examinations of the defendant that are within the possession or control or the attorney for the Commonwealth;

(1) any tangible objects, including documents, photographs, fingerprints, or other tangible evidence; and

(g) the transcripts and recordings of any electronic surveillance, and the authority by which the said transcripts and recording were obtained.

To establish a Bradv violation, the following three elements must be proven:

Ii ( l) the evidence at issue was favorable to the accused, either I because it is exculpatory or because it impeaches; (2) the evidence was suppressed by the prosecution, either wil lfully or inadvertently; and (3) prejudice ensued.

[om.!_1)_9nwealth v. Rgnev, 622 Pa. J, 22, 79 A.3d 595, 607 (2013), citing, Commonwealth v,

Ilutchinsoq, 61 l Pa. 2SO, 25 a.Jd 277, 310(201 l).

The evidence at issue must have been "material evidence that deprived the defendant of a fair trial." Id. (citation and emphasis omitted). :'Favorable evidence is material, and constitutional error results from its suppression by the government, if there is a reasonable probability that, bad the evidence been disclosed to the defense, the result of the proceeding would have been different. .,\ reasonable probability is a probability sufficient to undermine confidence in the outcome." Commonwealth y,J?

Roney, at 22-2-1, 79 A..3cl at. 607.

24 On cross-examination, Detective Dowds identifier] photos or Ash Park he took while he was walking through Ash Park with the victim. (N.T. 10/8/1011, 43). Detective

Dowds testified that he did not recall the exact dale that he walked through Ash Park with the

victim; however, it was after he interviewed the victim the first time. (N.T. 10/8!20 l 3, 44).

Detective Dowds further testified as follows:

Q: And you are the investing {sic} officer in the case, correct?

A: I am.

Q: In your police report, did you provide any indication that you had met with her and gone through the park after you interviewed her?

/\: I believe l did.

Q: So you believe that that is there?

(N.T. l 0/13/2013, 4•1).

Defendant has failed to plead and prove by a preponderance of evidence that

because of trial counsel's failure to object to not receiving this police report, no reliable

adjudication of guilt or innocence could have taken place. Although the Commonwealth had no

duty to do so, the Commonwealth contacted Detective Dowds, who provided a Supplemental

Narrative dated February 26, 2013, which was promptly presented Lo counsel for Defendant.

(Commonwealth 's Motion to Quash Subpoena, Exhibit 8) The February 26, 2013

Supplemental Narrative contains facts almost identical to those testified tu at trial by the victim.

The Supplemental Narrative did nut ofter any exculpatory evidence or provide evidence to allow

Defendant to impeach the victim's testimony. Defendant could have easily impeached the

25 victim's testimony using the August I 0, 2012 Supplemental Narrative found al Commonwealth's

Exhibit C-95.

Defendant has failed to prove that the result of the proceedings would have been

different if this Supplemental Report had been available to Defendant. This Supplemental

Report provided additional, consistent evidence to allow the Commonwealth lo prove that

Defendant sexually assaulted the victim. Defendant failed to show how this report was material

to his defense, how it was exculpatory or how the outcome would have been different if he had

this report. Absent this evidence, Defendant's claim must foil.

finally, Defendant argues that trial counsel was ineffective for failing lo conduct

a proper investigation and obtain video surveillance of the Kool Bur on the night of the sexual

assault as 'Nell as cell phone records that would refute the victim's testimony that her cell phone

was dead that night. Defendant contends that the video surveillance and the phone records

"could have" provided additional evidence tu corroborate the defense and further contradict the

testimony of the victim. Defendant argues failure to obtain this evidence deprived him of .3 fair

trial.

Again, Defendant has failed to plead and prove by a preponderance of evidence

that ineffective assistance of counsel so undermined the truth determining process that no ' reliable adjudication uf guilt or innocence could have taken place. Defendant has failed to

produce either video surveillance from the Kool Bar or the victim's cell phone records.

Defendant simply makes the bald assertion that the video surveillance and the cell phone records

"could have" provided additional evidence favorable to his defense. Defendant foiled to show a

reasonable probability that the outcome of the trial would have been different if counsel had

26 discovered video surveillance from the Kook Bar and the victim's cell phone records. Absent

this evidence, Defendant cannot prove that this claim has merit or that he was prejudiced by trial

counse ls conduct.

Accordingly, we enter the following:

ORDER ;..,i· AND NOW. this ;��.,�:'\iay of May, 2018, upon consideration of Defendant's

1 Molinn for Post-Conviction Col lateral Relief pursuant lo the Post Conv iction Rel icf Act

(PCRA), 42 Pa.C.S. §§ tJ5Ll l , et seq, it is ORDERED and DECREED that the petition is

DENIED and DIStv1JSSED. Defendant has the right to appeal from this Order by filing a Notice

of Appeal with the Superior Court within 30 days of the entry of this Order.

BY THE COURT:

P.J.

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