Com. v. Velasquez, W.

Opinion

J-S16011-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. :

: :

WILLIAM M. VELASQUEZ :

:

Appellant : No. 914 MDA 2024

Appeal from the PCRA Order Entered May 29, 2024 In the Court of Common Pleas of Centre County Criminal Division at No(s): CP-14-CR-0000625-2018

BEFORE: LAZARUS, P.J., BOWES, J., and LANE, J.

MEMORANDUM BY LAZARUS, P.J.: FILED: JUNE 24, 2025

William M. Velasquez appeals from the order, entered in the Court of

Common Pleas of Centre County, denying his petition filed pursuant to the

Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After review,

we affirm on the basis of the well-written May 29, 2024 opinion and order

authored by the Honorable Katherine V. Oliver. See PCRA Court Opinion and

Order, 5/29/24, at 1-17.1

On March 29, 2019, after a two-day jury trial, Velasquez was convicted

of one count of aggravated indecent assault-person less than 16 years of age2

____________________________________________

1 In its Pa.R.A.P. 1925(a) opinion, the PCRA court incorporated its May 29, 2024 opinion and order denying Velasquez’s PCRA petition. See PCRA Court Opinion, 7/16/24, at 1.

2 18 Pa.C.S.A. § 3125(a)(8).

J-S16011-25

and three counts of indecent assault-person less than 16 years of age3 for

illegal sexual acts he performed on his minor niece, E.B. On July 16, 2019,

the trial court sentenced Velasquez to an aggregate term of 26 to 52 years’

incarceration.

Velasquez filed a timely notice of appeal and, on July 9, 2021, this Court

affirmed his judgment of sentence. See Commonwealth v. Velasquez, 260

A.3d 132 (Pa. Super. 2021) (Table). Velasquez did not seek review of this

Court’s decision until October 22, 2021, when he filed a petition for leave to

file a nunc pro tunc petition for allowance of appeal. See Petition, 10/22/21,

at 1-3. On January 27, 2022, our Supreme Court denied Velasquez’s petition.

See id., 122 MM 2021 (Pa. 2022) (unpublished decision).

On July 11, 2022, Velasquez timely4 filed the instant counseled PCRA

petition, his first, asserting several claims of ineffective assistance of counsel.

In particular, Velasquez argued that his trial counsel rendered ineffective

assistance by: (1) failing to conduct proper pre-trial investigation into the

Children and Youth Services file; (2) falsely identifying Velasquez to the jury

____________________________________________

3 Id. at § 3126(a)(8).

4 Velasquez had one year from the date his judgment of sentence became final to file a timely PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1) (any PCRA petition “shall be filed within one year of the date the judgment becomes final”). Notably, Velasquez’s petition to file a nunc pro tunc petition for allowance of appeal does not apply to our calculation because it was not timely filed and was, importantly, not granted. Consequently, Velasquez’s judgment of sentence became final on August 8, 2022, when the time to seek review in our Supreme Court expired. See id. at §§ 9543(b)(1), (3). Thus, Velasquez’s petition, filed on July 11, 2022, is timely. See id.

3

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as Hispanic when he is Puerto Rican, a United States citizen; (3) inartfully

phrasing admissions and not zealously advocating for Velasquez; (4) failing to

call Joan Patterson, Velasquez’s wife, as a witness; and, (5) failing to impeach

E.B. with a prior inconsistent statement. See PCRA Petition, 7/11/22, at 1-

29 (unpaginated). On October 31, 2022, the Commonwealth filed a response

and, on November 1, 2022, the Commonwealth filed a motion to dismiss

Velasquez’s PCRA petition. On December 19, 2022, Velasquez filed a response

to the Commonwealth’s motion to dismiss.

On April 12, 2023, the PCRA court conducted a hearing. Velasquez

testified, as well as Patterson and Andrew Shubin, Esquire, Velasquez’s trial

counsel. Subsequently, Velasquez and the Commonwealth filed proposed

findings of fact and conclusions of law. On May 29, 2024, the PCRA court

denied Velasquez’s petition.

Velasquez filed a timely notice of appeal and a court-ordered Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal. Velasquez now

raises the following claims for our review:

1. Whether the [PCRA] court erred in not finding that trial counsel was ineffective for failing to conduct a proper pre-trial investigation and/or obtain full and complete discovery including Brady[5] material from the pertinent CYS files by not obtaining and/or securing these materials?

2. Whether the [PCRA] court erred in not finding that [] trial counsel was ineffective during voir dire when he identified [Velasquez] as being Hispanic, not being Mexican, and not

____________________________________________

5 Brady v. Maryland, 373 U.S. 83 (1963).

4

J-S16011-25

providing res gestae since he is Puerto Rican and[,] therefore[,] was, at all times relevant hereto, an American citizen no matter where he was born, which provided information includ[ing] reference to trial counsel’s own political views, which was irrelevant, incomplete, racist, inflammatory, and prejudicial?

3. Whether the [PCRA] court erred in not finding that trial counsel was ineffective in making numerous judicial admissions during his cross-examination, which conceded the happening of the indecent assaults and were the equivalent of admissions of the guilt of [Valesquez] given the inartful phraseology of his questions, which was the antithesis of zealous advocacy at [Velasquez’s] trial?

4. Whether the [PCRA] court erred in not finding that trial counsel was ineffective in failing to [call] Patterson, the only pre-incident, contemporaneously auditory and post-incident witness to the third indecent assault at trial?

5. Whether the [PCRA] court erred in not finding that trial counsel was ineffective in failing to present the best evidence of the prior inconsistent statement (denial) by an admission of the lone minor eyewitness to the first alleged indecent assault in Pennsylvania and to having been influenced by suggestibility of others?

Brief for Appellant, at 4-5 (unnecessary capitalization omitted).

Our standard of review of a trial court order granting or denying relief under the PCRA calls upon us to determine whether the determination of the PCRA court is supported by the evidence of record and 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.

Commonwealth v. Barndt, 74 A.3d 185, 191-92 (Pa. Super. 2013)

(citations and internal quotation marks omitted).

Velasquez’s claims challenge the effectiveness of his trial counsel.

Generally, counsel is presumed to be effective and “the burden of

demonstrating ineffectiveness rests on [the petitioner].” Commonwealth v.

Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). Our Supreme Court has

5

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stated that, in order to “merit relief based on an ineffectiveness claim under

the PCRA, a petitioner must show that such ineffectiveness[,] 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.” Commonwealth v. Collins, 957 A.2d 237, 244 (Pa. 2008) (quotation

and citation omitted).

To satisfy this burden, [a petitioner] must plead and prove by a preponderance of the evidence that: (1) his underlying claim is of arguable merit; (2) the particular course of conduct pursued by counsel did not have some reasonable basis designed to effectuate his interests; and, (3) but for counsel’s ineffectiveness[,] there is a reasonable probability that the outcome of the challenged proceeding would have been different. Failure to satisfy any prong of the test will result in rejection of the [petitioner]’s ineffective assistance of counsel claim.

Commonwealth v. Holt, 175 A.3d 1014, 1018 (Pa. Super. 2017) (internal

citations omitted).

Regarding Velasquez’s claim that trial counsel was ineffective for failing

to call Patterson as a witness, we note that it is well-settled that a PCRA

petitioner cannot prevail on a claim of trial counsel’s ineffectiveness for failure

to call a witness unless the petitioner shows that:

(1) the witness existed; (2) the witness was available to testify for the defense; (3) counsel knew or, or should have known of, the existence of the witness; (4) the witness was willing to testify for the defense; and (5) the absence of the testimony of the witness was so prejudicial as to have denied the defendant a fair trial.

Commonwealth v. Washington, 927 A.2d 586, 599 (Pa. 2007). To satisfy

the prejudice prong of this analysis, a PCRA petitioner “must show how the

6

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uncalled witnesses’ testimony would have been beneficial under the

circumstances of the case.” Commonwealth v. Gibson, 951 A.2d 1110,

1134 (Pa. 2008) (citations omitted).

Mindful of the record, the applicable standard of review, the relevant

case law, and the parties’ briefs, we conclude that Velasquez’s claims have

been comprehensively addressed by Judge Oliver and, thus, we affirm on the

basis of the PCRA court’s May 29, 2024 opinion and order denying Velasquez’s

PCRA petition. See PCRA Court Opinion and Order, 5/29/24, at 1-17.

Consequently, we afford Velasquez no relief. The parties are directed to attach

a copy of the PCRA court’s opinion in the event of further proceedings.

Order affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 6/24/2025

Circulated 06/09/2025 03.05 03:05 PM

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IN THE COURT OF COMMON PENNsVBA « COMMON PLEAS OF CENTRE COUNTY, PENNSYXVg As = CRIMINAL

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COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA ))

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V. )) No.

No. CP-14-CR-0625-2018

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WILLIAM M.

M. VELASQUEZ, VELASQUEZ, ))

Defendant Defendant ))

Attorney for Commonwealth Commonwealth: Sean P.

P McGraw,

MeGraw, Esq.

Esq

Attorney Defendant: Attorney for Defendant Wayne E.E Bradburn, Bradburn, Esq.

Esq

Opinion and Opinion and Order

Presently before the Court is Defendant's Post-Conviction Relief Act ("PCRA") Petition Aet(P€RA") Petition.

A A hearing 2023. The hearing was held on April 12, 2023. The record was transcribed, and the parties parties thereafter

filed post-hearing post-hearing submissions. On consideration of the evidence and arguments arguments of the parties, parties,

for the reasons set forth below, the Court concludes Defendant is ts not entitled to PCRA relief.

relief

L I. Brief Brief Background

Background

On March March 29, 2019, following aatwo-day day trial, William M.

M. Velasquez

Velasquez ("Defendant")

("Defendant")

was convicted by by aajury of one count of Aggravated Indecent Assault/Person Assault Person Less Than 16 Years of Age, I8 18 Pa.C.S.A.

Pa.CS.A. §$3125(a)(8)

3125(a)(8) and three counts of Indecent Assault Person Less Than Than 16

Years of Age, 18 Pa.C.S.A. §$3126(a(8).

I8Pa.CS.A. 3126(a)(8). A A verdict of not guilty

guilty was returned as to two charges charges

of Unlawful Contact or Communication with aaMinor, 18 Pa.CS.A. §$ 6318(a(1).

I8 Pa.C.S.A. 6318(a)(1). On July 16,

2019, Defendant was sentenced to not less than twenty six years and not more than fifty fifty two

years to be served in in aaState Correctional Institution.

Institution

In his PCRA PC.A Petition, Defendant asserts he s is entitled to relief under 42 Pa.C.S.A Pa.CS.A

§9543(2)(i), (ii) $9543(2¥), (ii) and and (iii).

(iii). In

In his proposed

proposed Findings

Findings of Fact and Conclusions of Law Law and

accompanying brief accompanying (hereinafter "Defendant's briefi(hereinafter Defendant's Post Post Hearing

Hearing Submission"),

Submission"), Defendant

Defendant limits

limits his

Pa.C.S.A. §$ 9543(2Xii).

arguments to claims of ineffective assistance of counsel under 42 Pa.CS.A. 9543(2)(ii). To

that end, Defendant alleges multiple Defendant alleges multiple instances instances of ineffective

ineffective assistance of his his trial

trial counsel which

which

he claims so undermined he claims the truth undermined the determining process truth determining that no process that no reliable adjudication of guilt reliable adjudication guilt or or

IAlthough Defendant does nor not label the argument portion of his post hearing submission separately, the Court considers this portion to o be aabrief and.

and, thus, refers to t

it as such

such.

10 RD llo ❑RD ❑S s

2

innocence innocence could have taken taken place.

place. Defendant

Defendant requests

requests that

that the

the underlying

underlying judgment

judgment be reversed,

reversed,

that that his his judgment judgment of sentence be vacated, vacated, and that he

he be awarded a

a new

new trial.

trial

The Commonwealth filed a a Response

Response to Defendant's PCRA PCRA Petition,

Petition, as well

well as aamotion

to dismiss certain of the PCRA claims without aahearing.

hearing. The Court denied the Commonwealth's motion to dismiss by Order dated February February 13, 2023.

2023. The Court thereafter The Count

conducted proceedings proceedings related to

to Defendant's request for production of third party party records from

Centre County Children and Youth Services Services ("CYS")

(CYS") regarding CYS's investigation regarding (YS's investigation of certain

allegations underlying the criminal case case. After an in camera review, pursuant pursuant to an Order

entered April 10, 2013.

2013, redacted portions of the CYS records were produced to the parties.

parties

A A PCRA hearing hearing was held on April April 12, 2023.

2023. Andrew Shubin, Esq., ("Trial Counsel"), Esq.,(Trial Counsel"),

Joan Patterson, and Defendant testified at the the PCRA hearing.

hearing

II. Ii. Applicable Applicable Standards

A A defendant may be eligible eligible for relief under the PCRA if his conviction or sentence

resulted from from "ineffective assistance of counsel which, in the circumstances of the particular particular

case, so undermined the truth-determining truth-determining process that no reliable adjudication of guilt guilt or

innocence could have taken place." 42 Pa.C.S.A.

Pa.C.S.A. §8$9543(2(ii)

9543(2)(ii). Counsel is presumed to be

effective. Commonwealth v. effective. v. Collins, 545 A.2d 882, 885 885 (Pa.

(Pa. 1988).

1988) To obtain relief on a a claim

that counsel was that counsel was ineffective ineffective under the PCRA, under the PCRA, a

a defendant

defendant must overcome the must overcome the presumption presumption of

of

show that counsel's performance was competence and show was deficient and resulted resulted in

in prejudice

prejudice to

to the

the

defendant. See Commonwealth v. Dennis, 17 A.3d 297, 301 defendant. 301 (Pa. 2011) (citing (Pa 2011) (citing Strickland v.

v

Washington, Washington, 466 U.S. 668 ((1984))

US. 668 1984)). In Pennsylvania, this requires aadefendant to demonstrate demonstrate:

"(1) the underlying (I)the underlying claim is of arguable merit; (2)

arguable merit; (2) no reasonable basis existed for counsel's and (3)

action or inaction; and () counsel's error caused prejudice prejudice such

such that there

there is

is aareasonable

probability probability that the result of the proceeding proceeding would have been different absent such error error."" Id.

Ad

(citing Commonwealth v. Pierce, 527 A.2d 973, 975 (citing 975 ((Pa.

Pa. 1987)). appellate courts have 1987)). Our appellate have defined a "reasonable probability"

probability" in this context as "a "aprobability

probability sufficient to undermine confidence in the outcome." Commonwealth v. Sandusky, 203 A.3d 1033, 1044 1044 (Pa. Super.

(Pa. Super

2019) (quoting 2019) (quoting Commonwealth v.

v. Stewart, 84 A.3d

A 34 701, 707

707 (Pa.

(Pa. Super.

Super 2013)).

2013))

The The first prong prong of

of the

the ineffective questions whether ineffective assistance of counsel test questions whether the asserted asserted

claim is of arguable merit because because "counsel cannot be considered ineffective for failing to assert fro failing

a a meritless claim." Commonwealth vv. Durst, 559 A.2d 504, 505 505 (Pa.

(Pa 1989).

1989). Arguable

Arguable merit

exists when the factual statements, "if accurate, could establish cause for relief.

relief."" Stewart,

Sewart, 84

A.3d 707. A.3d at 707 The second second prong

prong concerns whether

whether counsel's conduct lacked aareasonable basis.

basis. In

In

deciding whether deciding whether counsel acted reasonably, the the question is not

not whether

whether counsel could have have

pursued pursued more logical, other courses of action, more logical, action; rather, rather, the question is

the question is whether

whether counsel's actions actions or

inactions have any reasonable basis. See Commonwealth v.

v. Mason, 130 A.3d 601,618 601, 618 (Pa.

(Pa

2015). 2015). "Where matters of strategy strategy and tactics are concerned, aafinding finding that a strategy a chosen strategy

lacked a a reasonable basis is not warranted unless it it can be concluded that an alternative not

chosen offered aapotential for success substantially greater than the course actually pursued." pursued." Commonwealth v.v. Spotz, 84 A.3d 294, 311-12 311-12 (Pa. 2014) (internal (Pa. 2014) (internal citations omitted)

(emphasis added).

added). A

A court will not find

find counsel to be ineffective if counsel's particular particular action

has "some reasonable basis designed to basis designed to effectuate his interest," and ""was his client's interest,"and was not not the

the result

result of

sloth or ignorance See ignorance of available alternatives." See Commonwealth v.v. Rivera, 773 773 A.2d

A.2d 131, 140

(Pa. 2001); (Pa. 2001); Collins, 545 545 A.2d at 886.

886. Trial

Trial counsel will

will be determined to

to be effective "if any

any

reasonable basis basis for his or her actions is apparent from the is apparent the record." Commonwealth vv.

Hancharik, 633 A.2d A.2d 1074, 1079 (Pa.

1074, 1079 (Pa. 1993);

1993) see

see also Commonwealth v.v. Washington, Washington, 927 A.2d

A.2d

606 (Pa.

586, 606 (Pa. 2007); Commonwealth v. Twiggs, 331 A.2d 440, 443 443 (Pa. 1975). A

(Pa. 1975). A defendant's failure to provide an evidentiary basis on which to find unreasonableness in trial counsel's alleged ineffectiveness will result in rejection of that ineffectiveness claim. See Commonwealth

•v. Reyes-Rodriguez, 111 A.3d 775, H A.d 783-4 (Pa.

775,783.4 Super. 2015)

(Pa. Super 2015) (holding (holding the defendant failed to satisfy satisfy the reasonable basis prong prong where the record did not establish trial counsel's basis for not requesting requesting aajury jury instruction); see also Commonwealth v.

v Koehler, 36

6 A.3d 121, 146

146 (Pa.

(Pa. 2012)

2012)

(holding the defendant failed to demonstrate that trial counsel lacked aareasonable basis where opportunity to question

the defendant had an opportunity question trial counsel about his strategy strategy at the

the PCRA hearing

hearing

but failed to do so)

so).

The The third prong prong of the ineffective assistance test examines examines whether

whether counsel's error caused prejudice. prejudice. Strickland v.

v Washington, 466 U.S. 668, 694 694 ((1984).

1984). When evaluating evaluating allegations

allegations of

prejudice, prejudice, the question is whether there exists "a "a reasonable probability probability that the result of the proceeding proceeding would would have

have been different" but

but for

for counsel's error. Commonwealth v.v. Robinson, 82 A.3d 998, 1005 1005 (Pa.

(Pa, 2013).

2013)

Counsel is presumed to be effective, and it is the defendant's burden to prove each prong prong

of the test for ineffectiveness by by aapreponderance evidence. See Collins, 545 A.2d at 886.

preponderance of the evidence. 886 "A A failure to satisfy satisfy any prong

prong ... will require

require rejection

rejection of the claim." Commonwealth vv.

Martin, Martin, 55A.3d 177, 182-3 182-3 (Pa.

(Pa. 2010)

2010) (emphasis

(emphasis added); Commonwealth •v. Wharton, 81 811 A.2d

978, 986 (Pa. 2002). 978,986(Pa. 2002). The Court is not required required to analyze the ineffective assistance of counsel test test prongs prongs in any any particular order; "if particular order, if a

a claim fails under any necessary under any necessary element of the the

ineffectiveness test, the court may may proceed

proceed to that element first"

first." Commonwealth v.

v. Tharp, 101

I9l

A.3d 736, 747 747 (Pa. 2014).

(Pa. 2014)

III. Ii. Defendant's Claims

In the present present case, Defendant claims his convictions and resulting resulting sentences are the direct result of Trial Counsel's ineffective assistance in in various particulars.

particulars. Specifically, Defendant makes seven claims of ineffective assistance of counsel, alleging Trial Counsel was by: ( 1) failing

ineffective by:() failing to conduct aaproper proper pre-trial investigation investigation and/or obtain full and complete discovery discovery from pertinent pertinent CYS files; (2) making making inappropriate comments regarding regarding

ethnicity during

Defendant's ethnicity during voir dire;

dire; (3)

() making inappropriate comments regarding making inappropriate regarding Trial Trial

ability to be impartial

Counsel's own ability during voir impartial during (4) asking voir dire; (4) asking leading leading questions on cross-

examination of the victim victim that

that purportedly

purportedly confirmed that that the occurred; (5)

the assaults had occurred: (5) failing failing to

call Defendant's wife, Joan Patterson, as aawitness at trial, trial; (6) failing

failing to present

present "best evidence"

of prior prior inconsistent statements of the lone minor eye witness, witness; and

and (7)

(7) improperly bolstering bolstering the

credibility of certain Commonwealth witnesses during closing argument.

argument. Each of these claims is

below.

addressed below IV. Analvsis Analysis

A. A Failure Failure to conduct a_aproper proper pre-trial

pre-trial investigation and/or full and complete and'or obtainfull complete discoveryProm discover {i-om the pertinent CYS files pertinent CS

Defendant first claims that Trial Counsel performed an inadequate or deficient pre-trial

investigation investigation when he failed to secure full and complete discovery'

discovery. 2 Specifically, Defendant

claims Trial Trial Counsel did not fulfill his duty to his duty to undertake aareasonable investigation when he reasonable investigation

Although Defendant devotes multiple Although 2 multiple paragraphs of his Post Hearing Submission to a a discussion of Pa.R.Crim.P.

Pa R Crim.P

573 and Brady v. $73and v Maryland, Maryland, 373 U.S. 83 ( 1963), Defendant expressly states he is not pursuing aaPCRA 730S.83(196.)), CRA claim based on an alleged discovery discovery violation by the Commonwealth.

Commonwealth. (See

(See Def.'s Post Hr'g. Subm., at unnumbered pp.

Hr'g Subm, pp. 16-18).

16.18)

Indeed, the record would not not support such aaclaim in any event.

event. Neither Defendant nor the Commonwealth had the CYS records at CY$records at issue nor were they in in the Commonwealth's control control.

failed to secure CYS files pertaining to an investigation investigation CYS conducted as part determining part of determining

whether certain of the abuse allegations allegations at issue were within CYS jurisdiction jurisdiction under the Child Law. 3(See

Protective Services Law.' ( See Def.'s

Def.'s Post Hr'g. Subm.,

Post Hr'g. at unnumbered Subm, at unnumbered pp.

pp. 20-22).

20-22). Defendant

Defendant

argues the CYS files contained exculpatory argues exculpatory material and inconsistent statements that could have been impeach Commonwealth witnesses. been used to impeach (See id, witnesses. (See id., at

at unnumbered p.

p. 20, j

i 1).

20,I)

Defendant's primary primary argument ostensibly inconsistent statement made by argument concerns an ostensibly by the victim, victim, E.B., during aaCYS E.B., during CYS interview interview in which

which she stated that

that Defendant would

would stop assaulting

stop assaulting

her if aathird her if third party party was in close

was in close proximity

proximity. (See

(See id.). Specifically, Defendant id).a Specifically, Defendant relies on the relies on the

following reported in the CYS records following statement as reported records to support support his claim: "[E.B.]

his claim: "[E.B.] said

said that

that if

someone got someone close to got close to them them he would stop

he would stop because

because he didn't want

he didn't to get

want to get caught."

caught." (Id,

(Id., at

at

unnumbered unnumbered pp.

pp. 5,

S, 20-22;

2022, Pet.

Pet. Exh.

Exh. 1, at p.

I, at 6). Defendant

p. 6). Defendant claims

claims this

this statement could have statement could have been been

used to impeach impeach the victim and the victim's younger younger sister, M.B., because the victim's sister was in close proximity proximity to Defendant and the victim during during aaportion

portion of one of the alleged alleged assaults,

and Defendant's wife was in close proximity proximity to Defendant and the victim for another incident.

(See id., id, at unnumbered pp.

pp. 20-22).

20-22). Defendant also points points to aastatement attributed to an spoke with E.B. about the incidents after interview with E.B.'s mother to the effect that when she spoke they initially they initially came to light, hight, she had to ask questions questions because E.B.

E.B. was not sure she could come right out and right out and say say things, and aastatement things, and statement by M.B. that by M.B. that her mother told her mother told her Defendant was her Defendant was hurting hurting

other girls girls and had had done inappropriate things to E.B.

inappropriate things (See id., E.B. (See id., at

at unnumbered pp.

pp. 5, 20)

20).

Defendant Defendant argues Trial Counsel's argues Trial Counsel's failure to secure failure to the CYS secure the CYS files

files meets all three

meets all three prongs of prongs of

the test test for ineffectiveness, as the claim has arguable merit, has arguable merit, there was was no

no reasonable

reasonable basis for

basis fot

Trial Counsel's inaction, and the outcome of the trial would have been different had the Ta! statements contained statements contained in in the CYS file

the CYS file been

been offered at trial.

offered at trial. (See

(See id.

id. at unnumbered p.

at unnumbered 22, 111).

p. 22,1)

agrees, that there is arguable The Commonwealth concedes, and the Court agrees, arguable merit menit to the

claim that defense counsel should have attempted attempted to procure

procure the CYS files as possibly containing possibly containing

statements of witnesses, witnesses, including

including the minor victim, about the alleged alleged incidents giwing

giving rise to the

charges. There charges. There can be legitimate dispute be no legitimate dispute that defense counsel has has a

a duty to reasonably

reasonably

investigate investigate in representing representing aacriminal defendant. See Commonwealth v. Johnson, 966 A.2d 523,

3After preliminary preliminary investigation_ investigation, cys

CYS concluded the allegations allegations did not give

give rise to aaclaim within CYS jurisdiction. jurisdiction °The statement at sue 'The issue is actually that of a aCYS worker reporting on an interview with E.BE.B.

535 (Pa. 2009) 535(Pa. ("Counsel has a 2009)(Counsel ageneral general duty to

to undertake reasonable investigations or make reasonable decisions that render particular unnecessary. "). A particular investigations unnecessary."). A reasonable

investigation includes an attempt to secure any potential potential statements about the alleged incidents made by the victim made by victim and and other

other witnesses.

witnesses. Id.

Id at 535-36.

535-36. Thus,

Thus, Defendant satisfies the the first

first prong

of an ineffective assistance claim claim.

Here, it appears appears Trial Counsel was aware CYS had conducted some type of investigation

of the incidents incidents at issue, yet he issue, yet he did not

not attempt to CYS files via to secure the YS via subpoena or other court process.

process. Trial Counsel's recollection was vague at the time of the PCRA hearing; based on his file notes, he believed he had spoken spoken to aaCYS representative as part part of his investigation, and that he had been lead to believe there were no documents responsive to his request.

request. The nature

any request of any as may request as may have been made was not identified.

identified. Trial Counsel could not explain with any certainty any certainty why why he did not pursue any potential witness statements within the CYS file materials beyond beyond an informal conversation, and the record does not reflect any reasonable basis for failing failing to so. Accordingly, to do so. Accordingly, the Court finds the second prong prong of the ineffective test is met met.

Despite meeting the Despite meeting the first first two

two elements

elements of an

an ineffective assistance claim, Defendant's Defendant's

PCRA PCR A claim fails fails because

because he

he has

has not demonstrated the required required prejudice,

prejudice, Le,

ie, that there is

is aa

reasonable reasonable probability probability that,

that, but for

for counsel's error, the result result of the

the proceeding

proceeding would have

have been

been

different. As to one of the statements Defendant points to in support of his claim -— the statement different. attributed to M.B.

M.B. that she had learned from her mother about Defendant doing inappropriate things to E.B. things E.B. --— Defendant fails to identify identify how

how he was prejudiced by not having the CYS file available to him for use at trial. Moreover, Defendant concedes in his Post Hearing Submission that this same information was was introduced

introduced at trial through an alternative source.

qr trial source. (See (See Def.'s Post

Hr'g. p. 5, T32). Hr'g. Subm., at unnumbered p. 32). Thus, even assuming the written statement of the CYS worker worker as to what what M.B.

M.B. reportedly

reportedly told her would would otherwise have

have been admissible,

admissible, the evidence

would would have cumulative, such that there is no reasonable probability have been cumulative. that the trial probability that trial outcome outcome

would have have been different had had Defendant

Defendant had the CYS materials before trial.

the (YS trial. Similarly, Similarly,

regarding regarding the interview statement by E.B.'s I B.'s mother about having to ask E.B.

E.B. questions to elicit

information when the allegations allegations initially

initially came to light, Defendant does not articulate how having this statement by having by E.B.'s E.B.'s mother would have changed the outcome of the trial, and the Court finds no reasonable basis for so concluding concluding.

77

Finally, Finally, as to the statement attributed to the minor victim, E.B., that Defendant would stop his assaultive behavior when someone got stop got close to them, Defendant argues argues this statement

was inconsistent with E.B.'s trial testimony testimony and that the jury jury might

might have seized on this inconsistency to apply inconsistency to apply the ""false false in one false in

in all" principle

principle and disbelieve her testimony testimony in

in its

entirety. (See entirety. (See Def.'s Post Hr'g.

Hr'g. Subm., at unnumbered p. 19, ¶ 4). The Court does not agree p. 19,4). agree that

the statement attributed to E.B.

E.B. is necessarily testimony or any necessarily inconsistent with E.B.'s testimony any other trial

evidence. As the Commonwealth emphasizes, emphasizes, the statement attributed to E.B.

E.B. was in the context

of responding responding to the interviewer's question question about what would make the abuse stop.

stop. (C.W.

(C.W. Br., at

p.7, citing Pet. p.7,citing Pet. Exh. 1, at Exh. I, at unnumbered

unnumbered p. 6). In

p. 6). In addition, as to the addition, as the incident incident that

that began

began when E.B.

when E.B

and M.B. and were both present, M.B. were present, E.B. testified at trial testified at trial that

that Defendant did not

Defendant did not touch

touch her

her breast

breast until

until

M.B. left the room. M.B left (1d., at room. (Id, at 9,

9, citing

citing Jury

Jury Trial

Trial Tr.

Tr. 1,I, 3-28-19, at p.

3-28-19,at p. 74).

74)5 As to the incident

As to incident when

when

Joan Patterson, who moved slowly slowly due to physical

physical limitations, was in in the vicinity,

vicinity, E.B.

LB. testified

that the assault took place place when Ms.

Ms. Patterson was in the bathroom behind aaclosed door. ( Id. at

door (Id

pp. pp. 9-10, citing citing Jury

Jury Trial Tr., IIat pp.

pp. 81, 147).

147) The Court finds no reasonable basis, let alone a

a

reasonable probability, to conclude that the jury probability, to jury would have found E.B.'s response response to the CYS

interviewer so inconsistent with her trial testimony testimony that it

it would have led the jurors jurors to reject

reject her

testimony altogether and lead to an acquittal, testimony altogether acquittal. Defendant's Defendant's claim thus fails.

thus fails

B. B Voir Dire Dire Proceeding

Proceeding Claims

1. ! Trial counsel counsel improperly or concepts

improperly interjected concepts of race.

race, ethnicity, heritage and during voir dire_

citizenship during direofof the prospective jurors.

furors

Voir dire is properly properly limited to "questions that attempt to "questions attempt to disclose aapotential potential juror's

juror's lack

qualification or of qualification opinion regarding or fixed opinion regarding the defendant's guilt guilt or

or innocence."

innocence." Commonwealth

v. v. Scott, 212 212 A.3d

A.34 1094,

1094, 1103

1103 (Pa. Super. 2019).

(Pa. Super 2019). Generally, Generally, our appellate

appellate courts have

have cautioned

against voir dire against dire questioning questioning on

on racial except in cases involving racial issues except involving racially racially sensitive issues issues.

See e.g., e.g, Commonwealth v. Richardson, 473 A.2d 1361 (Pa. 1984). Such questions (Pa. 1984) questions risk "creating "creating

racial racial issues in a issues mn case where a case where such

such Issues

issues would

would not otherwise have

not otherwise have existed existed ... ", id. at

" id at 1364, and

1364, and

might might "give[] credence to base stereotypic "give[]credence stereotypic racial fallacies, serving serving no purpose

purpose but to exacerbate

5 The Court notes Te Count notes that testimony on this issue that E.B.'s testimony issue was was uncertain respects. When uncertain in some respects When asked by the asked by

Commonwealth to clarity clarify whether M.B. present when MB. was present whe Defendant touched her breast, E.B. responded breast,E.B. responded that she was not. (See Jury not, (See Jury Trial Tr Tr. 1, 3-28-19,

I,3-78-1 p. 74). On cross-examination, she was less certain as to whether 9, at p. M.B. had whetherM.

witnessed Defendant touch her breast at all, but felt certain she had seen Defendant kiss her, which lead M.B. M B. to run upstairs. (Id. at pp. upstairs. (/d pp. 125-26).

12S-26)

88

prejudices which the law prejudices law should combat with all its vigor."

vigor " Id.

Id Nonetheless, limited questioning questioning

regarding racial matters is permissible regarding permissible if "sufficiently "sufficiently specific

specific and probing

probing to reveal prejudices prejudices

which might might have bearing bearing upon

upon the

the case." Id.

Id. In

In addition, Pennsylvania Pennsylvania courts have

have recognized

recognized

that inquiry into that inquiry into highly highly publicized matters that publicized matters that have have the

the potential

potential to

to prejudice

prejudice jurors is

jurors is

permissible. permissi ble. See e.g.

e.g., Capoferriv.

Capoferri v. Children's Hosp.

Hosp. of Phila., 893 A.2d 133 Phila.,893 133 (Pa.

(Pa. Super.

Super. 2006).

2006)

In the case at bar, Defendant contends Trial Counsel Counsel "needlessly

"needlessly interjected

interjected concepts of

ethnicity, Mexican race, ethnicity, Mexican heritage, heritage, American citizenship, citizenship, aapresumption presumption of guilty criminality guilty or criminality

and U.S. politics politics into the voir dire process process....to

to the absolute prejudice of [Defendant]

prejudice of [Defendant] simply for the purposes purposes [sic] directing certain pejoratives at then President Donald J.

[sic] of directing J. Trump." (See Trump." (See

Def.'s Post Hr'g.

Hr'g. Subm., at unnumbered p.

p. 22, ¶ 4). He claims that, but for this ostensible error, 22,4). different. (Id,

the outcome of the trial would have been different. (Id., at unnumbered p. 26, ¶ 29).

p. 26," 29)

The voir dire at ssue issue was limited n

in fashion.

fashion. Trial

Tnal Counsel addressed the issue as follows: follows Mr. Mr Velazquez

Velazquez is Latino, Hispanic.

Hispanic. II wish I

I didn't have to get

get into this,

but we're now in an era where our president says that people people who come

across the borders are rapists, rapists, they're murders [sic], they're murders [sic], they're they're this, they're

they 're

that. that

Mr. Velasquez

Velasquez is not from Mexico.

Mexico. He's an American citizen.

citizen. He

grew up grew up here, was born here, raised here.

here. He's always been an American American

citizen, not that that should matter, but there are now now people who may

have have this system and may this belief system may be be uncomfortable

uncomfortable because

because the

the defendant

in this case is Hispanic

Hispanic.

Does anyone

anyone have that belief, and it's okay, we need you to be honest because you

you shouldn't be sitting in be sitting in the jury if you do, but the jury but does anyone have that belief, that because because Mr.

Mr Velazquez

Velazquez is Hispanic

Hispanic that that would be aaproblem

problem for

for you?

you

I

l see no hands.

hands

(Tr. of Proceedings, (Tr Proceedings, Jury Selection, 2-4-19, at pp.

pp. 42-43).

42-43)

Defendant's Post Hearing Hearing Submission on this issue is set forth in 29 separately numbered paragraphs, most, paragraphs, most, if not not all,

all, of

of which

which include

include multiple assertions, some multiple assertions, some citing citing legal

legal principles,

principles,

some including including speculative assumptions, and some containing conclusory statements in support

argument that Defendant was prejudiced of an argument by Trial Counsel's voir prejudiced by vor dire on this sensitive topic. topic. The Court does not find within these many paragraphs paragraphs any meritorious issue with respect

9

to the specific voir dire questions about which Defendant complains. Although, Although, as the

authorities set forth above demonstrate, voir voir dire regarding

regarding racial or ethnic issues must be approached carefully, there is no across-the-board prohibition on inquiry into potential biases on matters. In fact, limited inquiry on such issues has been upheld when appropriate in the such matters. context of the case. See Commonwealth v.v. Richardson, Richardson, supra.

supra, In addition, limited inquiry inquiry into

highly publicized issues that might unduly influence potential jurors is proper.

proper. See Capoferri, See supra. supra. Here, it is beyond dispute that, in the timeframe when jury jury selection was taking place, February February of 2019, there was substantial media attention regarding ideas espoused by the then- President that illegal immigration immigration from Mexico

Mexico was fueling crimes of violence.

violence.6 The Court does not agree agree that Trial Counsel's limited questioning regarding this topic is inconsistent with the parameters of voir dire our appellate courts have found permissible in cases involving analogous parameters types of issues and circumstances.

circumstances. See Richardson (addressing racially sensitive inquiry) and Richardson (addressing

Capoferri (addressing Capoferri (addressing potential prejudice prejudice due to highly

highly publicized issues), supra.

supra. Thus, the

Court concludes Defendant's claim lacks merit.

menit

Assuming, arguendo, that Defendant's Assuming, arguendo, Defendant's claim has merit, Defendant fails to meet the second prong of an ineffective assistance claim because he failed to prove Trial Counsel lacked any reasonable basis for the voir dire inquiry any inquiry regarding regarding potential ethnicity bias.

potential ethnicity bias. At the PCRA hearine, Trial Counsel testified that he addressed the issue in voir hearing, voir dire because he wanted to be able to use for-cause strikes to eliminate prospective jurors who might harbor invidious biases that would be harmful to to Defendant. (See PCRA

Defendant. (See PCRA Hr'g.

Hr'g. Tr., AN pp. 38-42).

A.M at pp. 38.42). Particularly Particularly

given that these types of biases were so prevalent in media coverage at the time, the Court believes Trial Counsel's approach as a a means to try and eliminate biased jurors was reasonable.

reasonable

Finally, although the Court need not address the third prong given that Defendant's claim

fails on prongs one and two, the Count Court is not persuaded that Defendant demonstrated any

prejudice by Trial Counsel's limited voir dire questioning on the bias issue.

issue. Defendant asserts

that potential jurors jurors might

might have been so offended by by the suggestion that they would be biased

that they developed animus toward Defendant and his counsel, or that such animus developed

because the jurors may have felt their politics were being directly challenged.

challenged. (See

(See Def.'s Post

Hr'g. Hr'g. Subm., at unnumbered p.

p. 24, T•i 14-16).

14-16). In addition, he argues the voir dire questioning

pere was no request for the Court to take judicial notice of this fact at the PCRA hearing, party 6 There was no request for the Court to take judicial notice of this fact at the PCRA hearing, but neither party

suggested there was any dispute Suggested dispute that media coverage coverage of this topic was permeating the press.

press

may have impacted his emotional state and lead him to present present"insecurely

insecurely to the Jury

Jury at Trial

while sitting sitting at counsel Table." (Id (Id. at unnumbered p. 25, ti 24). According p. 25,24). According to Defendant, but for Trial Counsel's error in attempting attempting to eliminate biased trial jurors, the outcome of his trial would have been different.

different. (Id.

(Id. at unnumbered p.

p. 26, •i29). There is no basis in the record to support 26_429).

these contentions, and the Court finds them to be without merit.

menit

2. 2 Trial counsel engaged in improper personalization personalization during voir dire

Defendant claims Trial Counsel improperly stated during voir dire that he would have aa

problem problem being aafair and impartial impartial juror for Defendant in aacase involving child sexual abuse allegations allegations because he is aafather and had minor children.

children. (See

(See Def.'s Post Hr'g.

Hr'g. Subm., at

unnumbered pp.

pp. 27-28).

27.28). According

According to Defendant, this constituted an improper personal appeal to the prospective jurors, permitted prospective jurors, permitted them to to be

be ""less

less scrutinizing" of children and permitted permitted

jurors jurors who would have been more favorable to Defendant to exclude themselves from service because Trial Counsel set such a a low bar. (Id

low bar (Id. at unnumbered p. 28, Tl¶ 8-9).

p. 28, 8-9)

The Court finds no merit in Defendant's claim. Although Although it is arguably improper for a

a

lawyer lawyer to interject interject personal

personal information in aajury jury proceeding,

proceeding, Defendant's argument that Trial Counsel's remarks lead the the jurors

jurors to evade their duty to serve as fair fair and

and impartial

impartial jurors

jurors has

has no

no

basis basis in in law law or or in fact. The

in fact. Court instructed The Court instructed the jurors of the jurors of the

the duty

duty to

to be fair and impartial

fair and impartial

throughout the trial, and regarding throughout the course of the regarding the presumption of innocence. (See (See e.g,

e.g., Jury

Jury

Tr. I, Trial Tr 1, 3-28-19, at pp.

pp. 8, 10-11, and 17, and II, 3-29-19, at pp. 83-84). "`ht pp. 83-84). It is well settled that

the jury jury is presumed presumed to follow the trial court's instructions[.]'."

instructions[]" Commonwealth v.

v. Lamont, 308

08

A.3d 304, 312 (Pa. Super.

04, 312(Pa. Super. 2024). the 2024). Here, the voir dire questioning at issue did not elicit an affirmative response response by any prospective juror;

juror, i.e.,

ie., not one of the prospective jurors responded

that they they would be unable to abide by by the duty to be fair and impartial or to honor the presumption presumption of innocence.

innocence. (Tr.

(Tr of Proceedings, Jury

Jury Selection, 2-4-19, at pp.

pp. 37-42).

37-42). The Court

thus concludes that Defendant fails to meet the first prong of the ineffective assistance test.

Defendant also fails to meet the second prong prong of the test.

test. Trial Counsel explained that he chose to relate to the prospective jurors jurors as a

afather and aaperson who would find jury jury service in a

a

involving child sexual abuse charges difficult because he case involving he wanted to encourage individuals who may may have entrenched biases harmful to to his client to acknowledge that fact.

fact. (See

(See PCRA

Hr'g. Tr., A.M. Hr'g.Tr, A.M. at pp.

pp. 43-45, and P.M.

PM. at pp. 4-5). Trial Counsel endeavored, through his own pp. 4-5).

acknowledgement, to make any acknowledgement, any such individuals comfortable admitting they could not be fair so he could move to strike them for cause.

cause. (Id).

(Id.). Clearly

Clearly, Trial Counsel had aareasonable basis for

this strategy strategy and it was designed designed to protect

protect Defendant's interest.

interest. Therefore, the second prong of

the test test for for ineffectiveness fails. Given that ineffectiveness fails. that Defendant Defendant failed to

to establish the first

first two prongs

prongs of

the ineffective assistance test, Defendant's claim fails, and the Court need not address the third prong. prong C. Trial counsel's ostensible admissions during cross-examination ot C of the victim the yictim

argues that Trial Counsel's method of In his next claim for PCRA relief, Defendant argues asking a asking aseries series of leading questions of the victim amounted to leading cross-examination questions to judicial judicial

admissions, thereby effectively conceding Defendant's guilt to the jury. ( See De£'s

jury.(See Def.'s Post Hr'g.

Hr'g

Subm., at unnumbered pp. Subm, pp. 8-9, T•l51-52 and pp.

pp. 29-31).

29-31)

The Court finds no merit merit in

in the argument

argument that Trial Counsel made binding judicial admissions in conducting conducting cross-examination of E.B.

E.B. or any

any other witness, or that the jury jury

perceived perceived Trial Counsel's questions questions as such.

such. Defendant cites no authority for the proposition

that a aquestion by counsel can serve as a "judicial admission, admission,"" and there is no reasonable basis

for concluding concluding that a jury would find Trial Counsel's questions to be admissions by Defendant, a jury

let alone conclude let alone conclude that that they

they were

were binding and could

binding and could not

not be rejected. Indeed,

be rejected. jurors are Indeed, jurors are routinely routinely

informed that questions informed that questions put put to

to witnesses

witnesses by

by counsel are not

counsel are not evidence and may evidence and may not

not be

be considered

considered

such. This instruction was given as such. given to the jury during Defendant's trial.

jury during trial. (See (See Jury Trial Tr.

Tr. I,

I. 3-

28-19, at p. 28-19,at p. 24).

24). As noted above, it

it is presumed

presumed that jurors follow follow the instructions of the court in performing duties. Thus, the argument performing their duties. argument that the jurors jurors at Defendant's trial not only considered the purported purported "admissions," but also concluded they they were binding,

binding, lacks merit.

merit

Furthermore, Furthermore,"'trial "trial decisions, especially especially those pertaining to the nature and extent of cross-examination, are matters of style and tactics involving subtle stratagems which ordinarily are within the exclusive province Commonwealth v.

province of the trial counsel."Commonwealth v. Petras, 534 54 A.2d 483,

487 (Pa. Super 487(Pa. Super. 1987). Trial Trial Counsel testified as to his strategy with respect to his chosen cross-examination. Trial Counsel attempted, method of cross-examination. attempted, through through the use of leading questions

framing allegations, to create reasonable doubt in framing the allegations, in the jurors'

jurors' minds that the events could truly truly

as E.B.

have unfolded as claimed. (See E.B claimed. (See PCRA Hr'g.

Hr'g. Tr.,

Tr, A.M. p. 57). The Count A.M. at p. Court finds that Trial

Counsel's method of cross-examination was aareasoned, strategic choice.

choice. Assuming

Assuming the choice

was reasonable, and the Court finds that it it was, it

it is not for the Court to second-guess Trial

strategy in

Counsel's trial strategy hindsight or opine in hindsight opine as

as to

to whether

whether a

a different strategy might have been been

11

"

employed. See, e.g., Commonwealth v. employed. v. Perry, Perry, 128

128 A.3d

A.3d 1285, (Pa. Super.

1285, 1290 (Pa. Super. 2015). Thus, 2015) Thus,

Defendant's claim also fails on the send prong prong of the ineffective assistance test, and his PCRA claim fails. claim fails.

D. Trial_counset D Trial counsel failed failed to call Joan Patterson as aatrial witness witness

Defendant claims Tnal Defendant next clams Trial Counsel was was ineffective

ineffective because

because he

he failed

failed to call Joan

Patterson as a a witness at trial.

trial Defendant contends Ms. Patterson could have offered testimony testimony

that would have been instrumental in securing securing Defendant's acquittal acquittal. (See

(See De£'s

Def 's Post Hr'g.

Hr'g

Subm., at unnumbered pp.

pp. 31-33).

31-33). Thus, Defendant argues argues this claim is of arguable merit, Trial

Counsel had no reasonable basis for failing failing to call Ms.

Ms. Patterson, and Trial Counsel's failure to call Ms.

Ms. Patterson Patterson caused such prejudice prejudice that

that there was

was a

a reasonable probability the reasonable probability jury could the jury

have come to aadifferent verdict.

verdict. (See

(See id.

id at unnumbered p.

p. 33, ¶ 12).

12)

When claiming counsel was When claiming was ineffective ineffective for failing

failing to

to call a

a witness,

witness, aadefendant satisfies the "reasonable basis" and and "prejudice"

"prejudice" prongs of the ineffective assistance of counsel test by establishing establishing that:

that

(

(1) the witness existed; (2)2) the the witness

witness was

was available to testify for for the

the

defense; defense; (3)(3) counsel counsel knew

knew of,

of, or

or should

should have

have known

known of,

of, the

the existence

existence of

of the

the

witness; witness; (4)(4) the witness was willing willing to testify

testify for the defense,

defense; and (5)

( 5) the absence

testimony of the witness was so prejudicial of the testimony prejudicial as to have denied the defendant aafair fair trial.

trial. ... To demonstrate . To demonstrate ... prejudice prejudice aapetitioner "must show petitioner "must show how the how the

uncalled witnesses' testimony testimony would have been beneficial under the circumstances of the case." ...Thus, Thus, counsel will not be found ineffective for failing to call aa witness unless the petitioner petitioner can show that the witness' testimony would have been helpful defense. ... "A helpful to the defense. A failure to call aawitness is not per se ineffective assistance assistance of counsel for for such decision usually usually involves

involves matters

matters of trial

trial

strategy." .. . strategy."

Commonwealth v.

• Sneed, 45 A.3d

A.3d 1096, 1108-09 (Pa.

(Pa. 2012) (internal

(internal citations omitted).

omitted). It

It is

clear from clear the record from the record that that the

the first

first four elements have

four elements have been satisfied. Ms.

been satisfied. Ms. Patterson existed, she Patterson existed, she

was available to testify, testify, Trial Counsel knew of her existence, and she was willing to testify testify.

Accordingly, Accordingly, this claim turns turns on whether the of Ms.

the absence of Ms Patterson's Patterson's testimony was was so

prejudicial prejudicial as to have denied Defendant aafair trial.

trial. Based on the PCRA record, the Court concludes Defendant Defendant has

has failed to

to prove

prove the

the required

required prejudice,

prejudice, such

such that his

his ineffective

ineffective

claim fa1ls

assistance clam fails.

During During the PCRA hearing, hearing, Trial Counsel testified he had considered calling Ms.

Ms

Patterson as a Patterson as awitness witness and

and had

had prepared

prepared her

her for

for testimony.

testimony He

He believed

believed she could have

she could have testified

testified

that she was in the basement where the 2017 assault occurred, that she stepped stepped into a

a bathroom

and closed the door for aavery very brief period

period of time and tthat, hat, when she stepped back into the room, she did not observe any indication that something was amiss.

amiss. She could have testified that

E.B.'s E.B.'s demeanor did did not

not demonstrate that

that anything

anything had in the short had occurred in short time she was was not

not

present present in the room. (See (See PCRA Hr'g Tr., A.M.

A.M. at p. 64). Trial Counsel also thought p. 64). thought testimony from Joan Patterson that Defendant and E.B.

E.B. had aapositive

positive relationship might might be beneficial.

(1d.). (Id).

Joan Patterson testified at the PCR.A PCRA hearing

hearing as well.

well, In brief summary, Ms.

Ms. Patterson

would would have have relayed relayed to

to the jury that

the jury that she had

had been

been in

in close proximity

proximity to

to one of the assaults,

assaults,

although she did not observe Defendant and E.B. at the time of the alleged the assault because although door. Ms.

she was behind the closed bathroom door that, when she re-

Ms. Patterson would have testified that.

entered the space space occupied

occupied by Defendant and E.B., it it did not appear that anything untoward had

occurred, occurred, and that Defendant did not appear to have an erection or show any other signs of arousal. (See PCRA Hr'g. arousal. (See Hr'g. Tr., P.M. at at pp.

pp. 46, 48).

48)

Although Although he had prepared prepared Ms.

Ms. Patterson to testify, testify, Trial Counsel testified at the PCRA

hearing hearing that that he reserved his his decision as to

to whether to actually call her as to actually as a a witness

witness because

because there

were were downsides to to her testimony as

her testimony as well.

well. In

In particular,

particular, Trial

Trial Counsel was concerned about the the

likelihood that Ms.

Ms. Patterson would testify testify to her perception that.B., that E.B., age 12

I and 14

I4 at the time

of the assaults, had been the sexual aggressor aggressor pursuing Defendant, and that L.B.

E.B. had fabricated

charges after Ms.

the sexual assault charges Ms. Patterson insisted that Defendant tell E.B.

E.B. she must stop her

sexual pursuit pursuit of him. (See PCRA Hr'g.

him. (See Tr., A.M.

Hr'g. Tr, A.M. at pp. 94-100). Trial Counsel felt this pp. 94-100).

testimony testimony would not have been at all helpful helpful to Defendant's case, and was concerned that he

would not be able to prevent prevent Ms. Patterson from testifying testifying to her theory on direct, and would not

have been able to protect protect her from cross examination about the theory theory and regarding other damaging statements she had damaging had made made about E.B. (Id.). To E.B. (Id). To that end,

end, pretrial communications between counsel introduced into evidence at the PCRA hearing hearing showed that the Commonwealth was prepared prepared to cross examine Ms.

Ms. Patterson by

by use of statements she had made during taped jailhouse telephone jailhouse telephone conversations she had with Defendant before trial occurred.

occurred. (See

(See PCR

PCRAA

Hr'g. Tr., C.W. Exh. Hr'g. Tr.,CW 1). A Exh. I). A partial transcript of one such conversation was admitted at the partial transcript the PCRA

trial, and additional portions portions of the audiotapes were played played as aapredicate

predicate for cross examination of Ms.

Ms. Patterson.

Patterson, The evidence established that, that, in

in addition to

to victim

victim blaming,

blaming, Ms.

Ms. Patterson

Patterson

13

I)

made numerous disparaging statements about E.B., such as calling calling her ""fat"

fat" and

and "not attractive,"

claiming E.B. was "always groping" Defendant and was E.B. was was "constantly "constantly on" him, and that the day she was told she had to stop was what lead to the accusations and charges.

charges. (PCRA

(PCRA Hr'g.

Hr'g. Tr.,

A.M. at p. 98).

98). On cross at the PCRA PCR hearing,

hearning, Ms. Patterson admitted to having called E.B.

E.B. aa

'vengeful little brat" during one of the recorded conversations and having vengeful . having stated that E.B.

E.B. was

going going to suffer for this, and that God "God doesn't like fake; God doesn't like ugly." (PCRA Hr'g.

ugly." (PCRA Hr'g

Tr., P.M. at p. Tr,PAM. 61). These p.6l). These are only examples are only examples of the

the various

various negative

negative comments Ms.

Ms. Patterson

Patterson

made regarding E.B. during audiotaped conversations with Defendant.

regarding E.B.

The Court believes the decision not to call Ms.

\Ms Patterson at trial was more than

reasonable under the circumstances, and that Defendant failed to prove that Ms.

Ms. Patterson's

somehow prejudiced by its testimony would have been beneficial to his case, or that he was somehow absence. Ms. absence. Ms. Patterson's proffered testimony about her whereabouts during the 2017 basement incident and her observations that there was no outward appearance of an assault when she

returned was established through other trial evidence, (see (see Jury

Jury Trial

Trial Tr.,

Tr,IIat pp

pp. 147-48), and

was also consistent with the testimony testimony E.B.

E.B. had given

given at the preliminary hearing. ( See PCRA

hearing. See

Hr'g. Tr., P.M. at pp. Hr'g.Tr,PM. pp. 18-19) (Trial Counsel explaining 18-19)(Trial explaining that Ms.

Ms. Patterson would have been an important important impeachment impeachment witness if victim had testified that things things were actually amiss when Ms Ms.

Patterson returned from the bathroom, but victim had previously testified that Ms Ms. Patterson

wouldn't have noticed anything anything abnormal so Ms.

Ms. Patterson's testimony would have have just been

duplicative and her testifying testifying would have opened her up to negative cross-examination from the

Commonwealth). Evidence of Commonwealth). of the close relationship between E.B. and Defendant was also

presented. (See Jury Trial Tr presented. (See Tr. 1, I, 3-28-19, at pp.

pp. 116-18).

1H6-18). Furthermore, without any other evidence to corroborate Ms.

Ms. Patterson's theory that the minor victim was, in reality, the sexual aggressor, aggressor, (and (and Defendant points

points to none), it

it is doubtful that the jury would have accepted Ms.

Ms

Patteson's testimony in Patteson's testimony in this vein. Her this vein. testimony regarding Her testimony regarding this this theory, as well

well as the disparaging

disparaging

comments about E.B., could very well have alienated the jury and invoked aasense of hostility toward Defendant.

Defendant 7

Defendant argues Defendant 7 argues Trial Counsel was surely persuasive enough enough to convince Ms.

Ms. Patterson not to testify as to the motivations of the victim, and argues, argues, without supporting authority authority or further explanation of the applicable law, that the damaging damaging evidence the Commonwealth sought to introduce had Ms. Ms. Patterson testified would not have been permitted under the Pennsylvania Rules of Evidence.

Evidence, The Court observes that, at the PCRA pCRA hearing, Ms.Ms. Patterson indicated indicated she wanted to share her thoughts thoughts of the victim's motivation with the jury. (See PCRA Hr'g.

jury, (See Tr., P.M. alp Hr'g. Tr,PM at p.

60). 60)

In sum.

sum, Defendant has not demonstrated that Joan Patteson's testimony would have been beneficial to to his case.

case. Accordingly,

Accordingly, Defendant failed to meet the prejudice prejudice element of his PCRA claim, and Defendant's fifth ineffective assistance of counsel claim is rejected.

rejected

E. E. Failure to present present "best

"best evidence ofprior

evidence""_ot of lone minor eve prior inconsistent statement ot witness wtress

Defendant argues Trial Counsel was ineffective for failing failing to present "best evidence" at trial of witness witnessM.B.'s prior statement. Specifically, Defendant contends Trial prior inconsistent statement.

Counsel was ineffective for not playing aarecorded video of an interview M.B.

M.B. had with the

Children's Advocacy Center ('*CAC")

Advocacy Center (CAC") regarding regarding the allegations against against Defendant. M.B.

M.B was

called as aaCommonwealth witness at trial, and and Trial tCounsel

ounsel read portions

portions of a

a transcript

transcript of the

interview during cross-examination of M.B.

CAC interview M.B. rather than playing playing the videotape.

videotape

As a a threshold matter, the Court agrees with the Commonwealth that the "best evidence rule," rule." Pa.R.E. 1002, is not properly at issue here.

Pa.R.E. 100, (See C.W. Br., here. (See€.w. Br, at p. 22).

22) Trial

Tal Counsel

introduced introducedM.B.'s prior statements for impeachment purposes during cross examination to show inconsistencies with her testimony at trial, and not for purposes of establishing establishing the contents of

the video interview.

interview. Furthermore, there was no suggestion at trial or at the PCRA hearing hearing that

the transcript Trial Counsel used for cross-examination was inaccurate in any any manner.

manner Whether

Whether

to play an actual recording recording of a

a witnesses' prior interview during cross-examination or to confront the witness by by using aatranscript of the interview is aamatter of trial strategy and tactics, and Defendant has failed to prove that there was no no reasonable basis for proceeding proceeding by

by use of the

transcribed interview interview alone, and has failed to show show how he was prejudiced.

prejudiced. The content -— the inconsistency between the trial testimony and the interview statements -— was presented to the jury jury and reiterated by by Trial Counsel several times throughout the trial trial.. (See,

(See, e.g.,

e.g, Jury

Jury Trial Tr

Tr.

II, I, 3-29-19, at pp.

3.-29.19,at 11, 16).

pp. 1H, 16). Defendant has not demonstrated that playing playing the actual recording recording of

the interview offered aasubstantially greater potential for success, and the Court concludes

Defendant Defendant has has failed

failed to

to meet the second

meet the second prong of an prong of an ineffective

ineffective assistance

assistance claim.

claim.

Finally, Finally, although the Court need not address the third prong prong of the test, the Court observes that Defendant made no showing that a a reasonable probability

probability exists that the outcome of the trial would have been different had the tape of of M.B.'s interview

interview been used instead of the

transcription of the interview.

interview. Thus, Defendant failed to to prove

prove the prejudice

prejudice required for aa successful PCRA claim.

PCRA clam

FF. Trial counsel improperly improperly bolstered the credibility_of credibility of certain Commonwealth witnesses during closing argument

In his final claim, Defendant argues Trial Trial Counsel improperly

improperly bolstered the credibility of certain Commonwealth witnesses during closing argument.

during closing argument. Defendant Defendant first

first takes issue

issue with

Trial Counsel's depiction of the victim, claiming claiming Trial Counsel bolstered her credibility by by

commenting on her excellent character and his own discomfort in challenging her claims claims.

Defendant also argues Trial Counsel improperly improperly bolstered the eredibility credibility of E.B.'s

E.B.'s teachers, who

were called as Commonwealth witnesses, by praising their by praising their actions.

actions

Trial decisions regarding closing argument regarding closing argument are "matters of style style and tactics involving involving

stratagems which ordinarily subtle stratagems ordinarily are within within the

the exclusive province counsel."

province of counsel"

Commonwealth v.

v. Petras, supra. (applying principles supra. (applying principles regarding regarding trial strategy

strategy in

in context of

challenge to cross-examination choices). challenge choices). Absent aashowing that Trial Counsel lacked any any

reasonable basis for aaparticular strategy, strategy, it is not for the Court to second-guess the chosen methods in the context of aaPCRA claim.

claim. See id

id. Here, the Court finds there was aareasonable

basis for Trial Counsel's strategy strategy in both of the challenged instances.

instances

At the PCRA hearing, Trial Counsel testified he chose to include the comments regarding

E.B. E.±. in closing argument inclosing argument because because she had

had presented

presented at

at trial

trial as aastrong,

strong, effective, and

sympathetic witness, sympathetic witness, and jury would connect with her and want and he believed the jury want to believe believe her.

her

Trial Counsel wanted the jury jury to still feel comfortable finding finding reasonable doubt despite liking

wanting to believe the victim, and to understand it was permissible to do so.

and wanting so. (See (See PCRA

Hr'g.Tr., P.M. atp. Hr'g.Te,PM. at p. 11).

1H). Further, Trial Counsel testified there was little evidence presented at trial for the jury to conclude that the witness had a a history

history of lying or other dishonest behaviors;

behaviors,

thus, Trial Counsel felt he could not outright call the witness aaliar without alienating the jury.

jury

(See PCRA Hr'g. Tr., P.M. at pp.

Hr'g. Tr,P.M. 11-12). The Court observes that, pp. I1-12). that, in an apparent attempt to undermine E.B.'s testimony and version of events in a a more subtle manner, just Just after making

making the

comments challenged by by Defendant, Trial Counsel did point point out various inconsistencies between E.B.'s E.B's trial testimony testimony and

and testimony given by

testimony given teachers.

by her teachers

Similarly, as to the teacher-witnesses, Trial Counsel testified that he believed the jury jury

would have felt felt the simply telling the teachers were simply telling the truth as they they knew

knew it

it — i.i.e.,

e, as itit had

had been

been

told to them.

them. (See (See PCRA Hr'g. Tr,

Tr., A.M.

A.M. at pp.

pp. 76-78).

76-78). Trial Counsel testified that the teacher-

witnesses had had presented as credible witnesses, and that acknowledging that fact did not

contradict Trial Counsel's theory theory that E.B.'s testimony testimony did not prove

prove her account of the incidents at issue beyond aareasonable doubt.

doubt. (Id

(Id. at pp. 78-79). Trial Counsel also believed attacking pp. 78.79). attacking these witnesses would not have been effective and, indeed, could have been harmful to the defense. (Id defense. (Id. at pp.

pp. 78-80).

78.80)

Court believes Trial Counsel's strategic choices were reasonable and designed The Count designed to

effectuate Defendant's best interest in both instances.

instances. Accordingly,

Accordingly, Defendant's seventh ineffective assistance of counsel claim must be rejected.

rejected ORDER

AND AND NOW, this NOW,ii. ln4a of May, 2024, for the reasons set fonth in the accompanying

r

ilday

of May, 2024, for the reasons set forth in the accompanying

M. Velasquez's PCRA Petition is DENIED in its entirety.

Opinion, Petitioner William M. entirety

COURT:

BY THE COURT

'

YIU> Katherine V.

V Oliver, Judge