J-S69003-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
DENNIS LEE WALLS, SR.,
Appellant No. 766 MDA 2018
Appeal from the PCRA Order Entered April 4, 2018 In the Court of Common Pleas of Adams County Criminal Division at No(s): CP-01-CR-0000288-2015
BEFORE: BENDER, P.J.E., LAZARUS, J., and MURRAY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 28, 2018
Appellant, Dennis Lee Walls, Sr., appeals from the post-conviction
court’s April 4, 2018 order denying his first, timely petition filed under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review,
we affirm.
In December of 2015, Appellant was tried before a jury for various
offenses, including rape. The testimony of the victim in this case, J.D., can
be summarized as follows. J.D. testified that she was in a relationship with
Appellant for approximately two years, but they had broken up on March 2,
2015. N.T. Trial, 12/8/15, at 36, 37. Nevertheless, Appellant was still living
with J.D. on March 7th of that year. Id. at 37. That day, J.D. went to work
and when she got home, she lay in bed with Appellant, who was watching a
movie. Id. at 38, 39. J.D. testified that Appellant began rubbing her stomach J-S69003-18
and she told him to stop. Id. at 39. At that point, Appellant got up and
walked out of the room, and J.D. went to sleep. Id.
J.D. claimed that she awoke a short time later and saw Appellant “sitting
… oddly” on the bed like he was “lost.” Id. at 40. J.D. asked Appellant what
he was doing, and Appellant “got angry. He leaned down and came up with a
gun[,]” which he “put … to the side of [J.D.’s] head.” Id. Appellant cocked
the gun and repeatedly said, “didn’t I tell you not to fuck with me[?]” Id. at
42. J.D. testified that she was terrified for her life. Id. Appellant then “told
[J.D.] that [she] had a choice to be with him or to be dead[,]” at which point
she “started to cry, but [she] told him that [she] would be with him.” Id. at
43.
Appellant then “put the gun in his own mouth and said that he was going
to kill himself.” Id. J.D. tried to calm Appellant down, but she “started crying
bad.” Id. at 44. Appellant put the gun on his lap and tried to comfort J.D.
Id. J.D. claimed that Appellant eventually put the gun on the floor, hugged
her, and told her that “his boys” - whom J.D. believed meant members of a
gang to which Appellant belonged - “knew who [J.D.] was, where [she] lived,
who [her] son was, where [her] parents lived, and that if [she] told someone,
that they’d come after [her], that they were going to be calling and checking
in on him and if he didn’t answer his phone, then they would know [J.D.] called
the cops and they’d come after [her].” Id. at 45.
J.D. testified that Appellant then moved the gun underneath the
nightstand about three to four feet away from her and told her “that he wanted
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to have sex.” Id. at 48. J.D. told Appellant that she did not want to have
sex, but he continued his advances by “trying to take her pants off.” Id. at
49. J.D. then “told [Appellant] to just get it over with.” Id. J.D. testified that
she relented because she “was scared,” based on Appellant’s having put a gun
to her head, and she was “not going to fight him.” Id. at 50. Appellant and
J.D. had intercourse, during which J.D. “had [her] hands over [her] eyes
crying.” Id. at 51. J.D. claimed that she did not consent to the sexual
encounter with Appellant. Id. at 52. After intercourse, J.D. testified that
Appellant received “two phone calls” that “[h]e said … were from his boys.”
Id. at 54. Appellant told J.D. that he was “going to meet one of them to give
the gun back” at a Sheetz gas station. Id. at 54, 55. Appellant “got the gun
and put it in a plastic bag,” after which he took J.D.’s phone “so [she] wouldn’t
try anything stupid like calling the police.” Id. at 55.
The next day at work, J.D. told a coworker, Brittany Eline, about the
incident, and the coworker called the police. Id. at 61. Littlestown Police
Officer Gary Gearhart responded to the report. Id. J.D. gave Officer Gearhart
consent to search a truck that was owned by both J.D. and Appellant, and in
the truck, the officer “found the gun in the plastic bag under the driver’s
seat….” Id. at 64, 85. J.D. testified that it was the same gun that Appellant
had pointed at her head. Id. Upon further inspection of the gun, Officer
Gearhart determined that it “was more of a toy gun” that would “shoot little
white BBs out.” Id. at 86. However, the officer testified that the gun looked
like a real handgun. Id.
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Additionally, on March 9, 2015, J.D. reported to police that she was
“clearing out possessions in [her] apartment and in the nightstand drawer in
a common used bedroom she had discovered a small cloth bag that she
thought may have contained drug paraphernalia and some controlled
substance.” Id. at 95. J.D. informed police that the drawer where she
discovered the contraband was exclusively used by Appellant. Id. at 96.
Police ultimately retrieved the bag from J.D., and later testing of several “clear
capsules” discovered in the bag revealed that they “contained Fentanyl, a
Schedule II controlled substance….” Id. at 97, 104. Based on these facts,
Appellant was arrested and charged with various offenses.
On December 8, 2015, Appellant’s jury trial was conducted. At the close
thereof, Appellant was convicted of rape by forcible compulsion, 18 Pa.C.S. §
3121(a)(1); sexual assault, 18 Pa.C.S. § 3124.1; intimidation of a witness, 18
Pa.C.S. § 4952(a)(1); terroristic threats, 18 Pa.C.S. § 2706(a)(1); indecent
assault, 18 Pa.C.S. § 3126(a)(1); and simple assault, 18 Pa.C.S. §
2701(a)(3).1 Appellant was sentenced on April 18, 2016, to an aggregate
term of 16 to 34 years’ incarceration.
Appellant did not file a direct appeal. Instead, on April 13, 2017, he
filed a timely, counseled PCRA petition raising various claims of ineffective
assistance of counsel (IAC). On October 23, 2017, the PCRA court conducted
____________________________________________
1Appellant was acquitted of possession of a controlled substance, 35 P.S. § 780-113(a)(16), and possession of drug paraphernalia, 35 P.S. § 780- 113(a)(32).
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an evidentiary hearing. On April 4, 2018, the court issued an order and
opinion denying Appellant’s petition. Appellant filed a timely notice of appeal,
however he failed to timely comply with the PCRA court’s subsequent order to
file a Pa.R.A.P. 1925(b) statement. Accordingly, on May 30, 2018, the PCRA
court issued a Rule 1925(a) opinion concluding that Appellant’s issues were
waived, but noting that its reasons for denying his petition were fully set forth
in its April 4, 2018 opinion. See Trial Court Opinion, 5/30/18, at 1.
On June 7, 2018, Appellant filed a “nunc pro tunc” Rule 1925(b)
statement. Therein, he claimed that he never received the order directing him
to file a concise statement. He then reiterated the same IAC claims raised in
his PCRA petition, and which were addressed by the court in its April 4, 2018
opinion. Given this record, we decline to remand under Rule 1925(c)(3);
instead, we will address the merits of Appellant’s claims. See
Commonwealth v. Burton, 973 A.2d 428, 433 (Pa. Super. 2009) (holding
that, “if there has been an untimely filing, this Court may decide the appeal
on the merits if the trial court had adequate opportunity to prepare an opinion
addressing the issues being raised on appeal”).
Herein, while Appellant sets forth one IAC issue in his Statement of the
Questions,2 in his Argument section, he divides that issue into fourteen sub-
2 Specifically, Appellant states:
Whether the trial court erred in refusing to grant [Appellant’s] request for PCRA relief on the basis of ineffective assistance of
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claims of trial counsel’s ineffectiveness. Initially, “we note that it has been
held that when an appellant raises an extraordinary number of issues on
appeal, as in this case, a presumption arises that there is no merit to any of
them.” Estate of Lakatosh, 656 A.2d 1378, 1380 n.1 (Pa. Super. 1995).
“Appellate advocacy is measured by effectiveness, not loquaciousness.” Id.
We also observe that, aside from citing the general legal principles
concerning IAC claims at the start of his Argument, Appellant does not cite or
discuss any legal authority to support his fourteen claims of counsel’s
ineffectiveness. We remind Appellant that,
[w]hen briefing the various issues that have been preserved, it is an appellant’s duty to present arguments that are sufficiently developed for our review. The brief must support the claims with pertinent discussion, with references to the record and with citations to legal authorities. Citations to authorities must articulate the principles for which they are cited.
This Court will not act as counsel and will not develop arguments on behalf of an appellant. Moreover, when defects in a brief impede our ability to conduct meaningful appellate review, we may dismiss the appeal entirely or find certain issues to be waived.
Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007) (citations
omitted; emphasis added).
[Appellant’s] prior counsel, where prior counsel’s multiple failures and deficiencies so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
Appellant’s Brief at 2.
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Notwithstanding the inadequacy of Appellant’s brief, we were able to
conduct a meaningful review of his appellate claims. We have also reviewed
the Commonwealth’s brief, the certified record, the applicable legal authority,
and the well-reasoned decision of the Honorable Thomas R. Campbell of the
Court of Common Pleas of Adams County that was filed on April 4, 2018. We
conclude that Judge Campbell’s rationale for rejecting Appellant’s
ineffectiveness claims is supported by the record, and Appellant’s legally-
unsupported arguments do not demonstrate any error by Judge Campbell in
denying his petition. Commonwealth v. Morales, 701 A.2d 516, 520 (Pa.
1997) (citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa.
1995)) (“This Court’s standard of review from the grant or denial of post-
conviction relief is limited to examining whether the lower court’s
determination is supported by the evidence of record and whether it is free of
legal error.”). Accordingly, we adopt Judge Campbell’s decision as our own,
and affirm the order denying Appellant’s PCRA petition on that basis.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 12/28/2018
-7- Circulated 12/18/2018 08:37 AM
IN THE COURT OF COMMON PLEAS OF ADAMS COUNTY, PENNSYLVANIA CRIMINAL
COMMONWEALTH OF PENNSYLVANIA CP-01-CR-288-2015
vs. DENNIS LEE WALLS, SR.
OPINION ON DEFENDANT'S MOTION FOR POST CONVICTION COLLATERAL RELIEF
Before this Court is Defendant Dennis Lee Walls Sr. 's PCRA Petition filed on
April 13, 2017. For the reasons stated herein, Defendant's request for Post-Conviction
Relief is denied.
On December 8, 2015, Defendant was found guilty1 by jury verdict of Rape by
Forcible Compulsion, as a felony of first degree (Count 1)2; Sexual Assault, as a felony
of the second degree (Count 2)3; Intimidation of a Witness, as a felony of the third
degree (Count 3)4; Terroristic Threats, as a misdemeanor of the first degree (Count 4)5;
Indecent Assault, as a misdemeanor of the second degree (Count 5)6; and Simple
Assault, as a misdemeanor of the second degree (Count 6)7. On April 18, 2016, this
Court sentenced Defendant to serve no less than ten years nor more than twenty years
in a State Correctional Institution designated by the State Department of Corrections8.
On Count 3, this Court sentenced Defendant to serve no less than three and one half
1 This Court notes that Defendant was found not guilty of Possession of a Controlled Substance, 35 P.S. 780- 113(a)(16J, and Possession of Drug Paraphernalia, 35 P.S. 780-113(a)(32). 2 18 Pa. c.s. § 3121(a)(1). 3 18 Pa. C.S. § 3124.1,
4 18 Pa. c.s. § 4952(a)(l). 5 18 Pa. c.s. § 2706(a)(l). 6 18 Pa. C.S. § 3126(a)(t). 7 18 Pa. c.s. § 2701(a)(3). 8 For sentencing purposes, Counts 2 and 5 merge with Count 1.
1 years nor more than seven years in a State Correctional Institution designated by the
State Department of Corrections. The sentence on Count 3 will run consecutively to the
sentence on Count 1. On Count 4, this Court sentenced Defendant to serve no Jess
than one and one half years nor more than five years in a State Correctional Institution
running consecutively to the sentence on Count 3. On Count 6, this Court sentenced
Defendant to serve no less than one year nor more than two years in a State
Correctional Institution designated by the State Department of Corrections. The
sentence on Count 6 wlll run consecutively to the sentence on Count 4. All sentences
imposed in this case will run consecutively to any other sentences Defendant may be
serving. Defendant filed his PCRA Petition on April 13, 2017 and an Amended PCRA
Petition on June 30, 2017. Two PCRA pre-hearing conferences took place on June 19,
2017 and August 24, 2017. A PCRA hearing occurred on October 23, 2017.
Defendant's Brief was filed on February 2, 2018 and Commonwealth's Brief was filed on
February 22, 2018.
To be eligible for relief under the Post-Conviction Relief Act (PCRA), 42 Pa. C.S.
§ 9541, et seq., a petitioner must plead and prove by a preponderance of the evidence,
inter alia, that his or her conviction or sentence resulted from one or more of the
circumstances enumerated in 42 Pa. C.S.A. § 9543(a)(2) and that his or her claims
have not been previously litigated or waived. Commonwealth v. Keaton, 45 A.3d 1050,
1060 (Pa. 2012); Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011 ).
Petitions for Post-Conviction Relief must be filed within one year of the date the
judgment of sentence becomes final, unless the petitioner can show that one of the
statutory exceptions is applicable. 42 Pa. C.S. § 9545(b)(1). The PCRA specifies that "a
2 judgment becomes final at the conclusion of direct review ... or at the expiration of time
for seeking the review." 42 Pa. C.S. § 9545(b)(3). The limitation on the time that a
PCRA petition may be filed implicates the court's jurisdiction; thus, a court may not
amend or ignore the statutory limitation in order to address the merits of an untimely
petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007);
Commonwealth v. Johnson, 803 A.2d 1291, 1294 (Pa. Super. 2002). Here, the
petition is clearly timely, so this Court has jurisdiction to consider it.
Defendant alleges that ineffective assistance of counsel "so undermined the
truth-determining process that no reliable adjudication of guilt or innocence could have
taken place."9 Defendant alleges that his trial counsel, Attorney Jason Gary Pudleiner,
was ineffective during pre-trial proceedings and during trial. The Sixth Amendment of
the United States Constitution guarantees a defendant the right to assistance of
counsel. U.S. CONST. amend. VI. A defendant has a right to effective assistance of
counsel during pre-trial proceedings as well as during a trial. Commonwealth v.
Hickman, 799 A.2d 136, 141 (Pa. Super. 2002); Commonwealth v. Bedell, 954 A.2d
1209, 1212 (Pa. Super. 2008). Counsel is presumed effective, and it is the burden of the
defendant to produce evidence to prove that counsel was ineffective. Commonwealth
v, Pierce, 527 A.2d 973, 975 (Pa. 1987). See also Commonwealth v. Murray, 305
A.2d 33, 36 (Pa. 1973). To prevail on a claim for ineffective assistance of counsel, the
defendant must plead and prove by a preponderance of the evidence: 1) that his
underlying claim has arguable merit; 2) that counsel has no reasonable basis for his or
her action or inaction; and 3) that Defendant suffered prejudice because of counsel's
9 42 Pa. S.C.A. §9543(a)(2)(ii).
3 action or inaction. Commonwealth v. Hutchinson, 25 A.3d 277, 285 (Pa. 2011).
Prejudice, in regards to ineffective assistance of counsel, means that "there must be a
. reasonable possibility that but for counsel's unprofessional errors, the result of the trial
would have been different." Commonwealth v. Craver, 688 A.2d 691, 694 (Pa.
1997)(citations omitted). Failure to satisfy any prong of the test of ineffectiveness
requires rejection of the claim. Commonwealth v. Hill, 42 A.3d 1085, 1090 (Pa. Super.
2012) (citation omitted).
In Counts A, C, D, and E, Defendant alleges that Attorney Pudleiner failed to call
several witnesses both as fact witnesses and as character witnesses. Defendant
alleges that Attorney Pudleiner was ineffective for failing to interview and call as
witnesses William Walls, Sr.; William Walls, Jr.; Heidi Meek; the Complainant's parents,
Jeffrey and Debra Dillman; and Michael Boslett, Defendant's state parole officer.
"Generally, 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." Commonwealth v.
Howard, 719 A.2d 233, 23 7 (Pa. 1998). "Trial counsel will not be deemed ineffective for
failing to assert a claim that would not have been beneficial, or for failing to interview or
present witnesses whose testimony would not have been helpful." Id. See also
Commonwealth v. Williams, 732 A.2d 1167, 1189 (Pa. 1999). "Failure of trial counsel
to conduct a more intensive investigation or to interview potential witnesses does not
constitute ineffective assistance of counsel, unless there is some showing that such
investigation or interview would have been helpful in establishing the asserted defense."
Commonwealth v, Pursell, 724 A.2d 293, 306 (Pa. 1999)(citations omitted).
4 Here, the clear trial strategy was to show that the sexual encounter was
consensual. Instantly, Attorney Pudleiner made a strategic decision not to call several
witnesses, including character witnesses, because their testimony was either irrelevant
or unhelpful to Defendant's case. At the PCRA hearing, Attorney Pudleiner testified that
he wrote a letter to Defendant, prior to trial, and specifically stated why he felt that the
testimony of Complainant's parents and other witnesses was not relevant." Defendant,
on cross-examination, testified that in his letter to Attorney Pudleiner11 he stated that the
Complainant's parents could testify that he was good to their daughter and never put his
hands on her.12
In essence, Defendant suggested Complainant's parents would testify to his
peaceful character as directed to the victim. Defendant admitted that he did not include
any factual information, pertaining to the case, to which the Complainant's parents could
testify in his letter."
Furthermore, Defendant has a long criminal history with 32 arrests and 26
convictions. Attorney Pudleiner testified that he did not call witnesses to testify to
Defendant's character because he felt that due to Defendant's long list of convictions for
violent crimes, character evidence stating that Defendant was peaceful would not be
helpful to Defendant's case.14 Defendant himself admitted that he had been convicted of
these violent crimes, including a felony law enforcement assault and a felony robbery
with a deadly weapon.15 While evidence of Defendant's crimes constituting crimen falsi
10 PCRA Hearing Tr., pg. 41, October 23, 2017. 11 See Commonwealth's Exhibit 1. 12 PCRA Hearing Tr., pg. 28, October 23, 2017.
13 ld, 14 id. at 64·65. 15 Id. at 22-23.
5 was admitted for a limited purpose, if character evidence of Defendant's supposed
peaceful treatment of complainant had been introduced by Defendant then the door
would have been opened to admit evidence of Defendant's crimes of violence as well.
Attorney Pudleiner was wise to be sure the jury did not hear of Defendant's violent
history.
With regard to complainant's alleged reputation for untruthfulness, evidence of a
victim's reputation in the community for untruthfulness is a valid line of attack.
Commonwealth v. Butler, 621 A2d 630, 632 (Pa. Super. 1993). This may be
particularly important where, like here, the Commonwealth's case on the central issue of
consent is limited to the credibility of one witness, i.e., the Complainant. See, generally,
Commonwealth v. Harris, 785 A.2d 998 (Pa. Super. 2001), citing Commonwealth v.
Weiss, 606 A.2d 439, 442 (Pa. 1992). Therefore, this Court must conclude that the
issue has arguable merit as the failure to call available character witnesses may
constitute ineffective assistance of counsel. Id. So, inquiry turns to whether there was
any reasonable basis for trial counsel's decisions to not call Mr. or Mrs. Dillman to testify
to Claimant's reputation for untruthfulness. Critically, as explained at the PCRA
hearing, Defendant never told Attorney Pudleiner that the Complainant's parents would
testify to Complainant's bad reputation for truthfulness. That alone constitutes a
reasonable basis for not calling these witnesses. Even if Attorney Pudleiner had called
Complainant's parents, they would have only testified to Complainant's general
reputation of "sometimes good, sometimes bad" truthfulness.16 This "in between"
reputation for truthfulness by Complainant is not the same as saying she is untruthful.
16 td. at 92
6 The alleged "reputation" evidence is unequivocal at best. Therefore, even if Attorney
Pudleiner had been made aware that Claimant's parents might believe her reputation
for truthfulness was "in between" it is unlikely that this testimony would have had any
impact on the rape by forcible compulsion conviction.
Based on the information or lack of information provided by Defendant to
Attorney Pudleiner, in regards to how the Complainant's parents' testimony could help
his case, Attorney Pudleiner strategically balanced the pros and cons of having
Complainant's parents testify and decided that the information was not relevant or
helpful. Thus, Defendant has failed to prove the second prong of the test for
ineffectiveness.
In regards to Heidi Meeks, Attorney Pudleiner did converse with her and she was
aware of the trial date and indicated to Attorney Pudleiner that she would appear.
However, Ms. Meeks never appeared as promised. Attorney Pudleiner had every belief
that Heidi Meeks was a friendly witness to the Defendant. Therefore, it was reasonable
for Attorney Pudleiner to not subpoena her as a witness for trial. Attorney Pudleiner
stated that he may have had her testify regarding the affair between herself and the
Defendant but he was going to see how the testimony went and make the decision
regarding having her testify then. Also, Heidi Meeks indicated to Attorney Pudleiner that
she overheard the Complainant state that "she was going through with the charges
because [the Defendant] was cheating on her.17 Attorney Pudleiner explained that he
did not think the jury would find this testimony credible because Heidi Meeks has a bias
in favor of the Defendant because she is his girlfriend.
17 Id. at 63
7 In regards to Defendant's father, Defendant asserts in his Amended Petition for
Post-Conviction Relief that Williams Walls, Sr. would testify to Defendant's good
character. At the PCRA hearing Attorney Pudleiner testified that he felt that having
character witnesses testify to Defendant's reputation in the community would be
detrimental because this testimony could be counteracted by Defendant's history of
violent convictions. Therefore, Attorney Pudleiner had a reasonable basis for not calling
these witnesses, and these Counts are meritless.
Defendant also alleges that Attorney Pudleiner was ineffective for failing to call
Defendant's state parole officer, Michael Boslett, as a witness. Defendant asserts that
Mr. Boslett could have testified in regards to Defendant's negative drug tests while on
state parole. Attorney Pudleiner testified that he did not want to call Defendant's parole
officer because that would highlight to the jury that Defendant was on state parole.18
Therefore, Attorney Pudleiner had a reasonable basis not to call Mr. Boslett as a ·
witness. This Court notes that Defendant was charged with Possession of a Controlled
Substance and Possession of Drug Paraphernalia. A clean drug test history does not
necessarily prove Defendant did not possess controlled substances or paraphernalia. In
any event, the jury apparently did not believe the portion of complainant's testimony
regarding the drugs and paraphernalia being Defendants. "The weight of the evidence is
exclusively for the finder of fact, which is free to believe all, part, or none of the
evidence, and to assess the credibility of the witnesses." Commonwealth v. DeJesus,
860 A.2d 102 (Pa. 2004). Therefore, this issue is without merit.
18 PCRA Hearing Tr., pg. 60, October 23, 2017.
8 Ultimately, Defendant was acquitted of both drug charges, so even if Defendant
could show that this issue has arguable merit and that Attorney Pudleiner had no
reasonable basis for his inaction, Defendant cannot show that he was prejudiced by
Attorney Pudleiner's decision not to call Mr. Boslett as a witness.
Defendant next alleges that Attorney Pudleiner was ineffective for failing to
investigate and introduce as evidence Defendant's telephone records. Defendant further
alleges that these telephone records would have contradicted the Complainant's
testimony regarding phone calls made before, during, and immediately after the alleged
incident. However, Attorney Pudleiner had no obligation to present evidence that he
believed was unhelpful to Defendant's case. Howard, 719 A.2d at 237; see also
Williams, 732 A.2d at 1189. At the PCRA hearing, Attorney Pudleiner testified that he
did not believe that Defendant's phone records would have been helpful to Defendant's
case because the Complainant testified in regards to whom she believed Defendant
was talking.19 Complainant believed Defendant was speaking to fellow DMI gang
members in a way that was threatening to her. Attempting to prove whether Defendant
was actually speaking with his brother as he suggests and just pretending to be
speaking to gang members would not have helped Defendant's case because the issue
was what the Complainant believed she heard and whether the words were
communicated with the intent to terrorize the Complainant. It is irrelevant whom
Defendant was actually speaking to if the words that he was saying were communicated
with the intent to terrorize the Complainant. The phone records would not have
disproven complainant's belief of what she heard.
is PCRA Hearing Tr., pg. 65, October 23, 2017.
9 Focusing solely on the issue of consent, which Attorney Pudleiner viewed as the
strongest defense, Attorney Pudleiner testified that he did not want to distract the jury
from the good evidence that they had.20 Despite Attorney Pudleiner's belief that the
phone records would not be helpful he, nonetheless, did discuss the phone records with
Defendant's brother and attempted to obtain the records from him. Attorney Pudleiner
testified that Defendant's brother told him that he was going to get the phone records
and send them, but he never did.21 Again, like with Heidi Meeks, it is Defendant's
potential witness who failed to come through for him, not Attorney Pudleiner. Therefore,
this issue is meritless.
Defendant alleges that Attorney Pudleiner was ineffective for failing to introduce
evidence regarding the Complainant's medical treatment following the incident. Any
such evidence is completely irrelevant. The Defendant's theory of the case was that the
sexual intercourse in question was consensual. Any medical treatment that the
Complainant received would not have contributed to Defendant's defense that the
intercourse was consensual, which is why Attorney Pudleiner did not present it. Again,
Attorney Pudleiner had no obligation to present evidence that was not helpful to
Defendant's case. Howard, 719 A.2d at 237. At the PCRA hearing, Attorney Pudleiner
testified that all the parties agreed that Defendant and Complainant had sex. 22 Further,
Attorney Pudleiner testified that he believed that Complainant's testimony when she told
Defendant to "just get it over with" showed consent.23 Based on Attorney Pudleiner's
analysis of the facts of the case and Complainant's testimony, he had a reasonable
zo Id. 21 Id. at 74. 22 PCRA Hearing Tr., pg. 66, October 23, 2017. 23 td.
10 basis for not obtaining Complainant's medical records. Therefore, Defendant has failed
to prove ineffectiveness of Counsel.
In regards to Counts G, J and M, Defendant asserts that Attorney Pudleiner was
ineffective for failing to adequately cross-examine the Commonwealth witnesses.
Defendant attempts to analyze Attorney Pudleiner's actions with the benefit of hindsight,
which distorts the trial counsel's actions in question. Attorney Pudleiner may have
utilized an alternative strategy than another counsel might have in regards to cross-
examination, but this does not render him ineffective.
In Count G1 Defendant alleges that Attorney Pudleiner was ineffective for failing
to cross-examine the affiant regarding unfairly prejudicial bias against Defendant.
Defendant alleged that the Affiant had a bias against the Defendant because after the
assault was reported, including Complainant's perceived threats regarding Defendant's
gang connections, and before Defendant was arrested the Affiant offered for the
Complainant to stay at his house in case she felt unsafe and showed overall concern for
the Complainant's well-being.
In evaluating the series of claims in this issue, [the Supreme Court of Pennsylvania is] mindful that attorney performance is to be assessed without the distortion of hindsight; rather, [it] must reconstruct the circumstances under which counsel's decisions were made and evaluate counsel's conduct from his perspective at that time.
Commonwealth v. Birdsong, 24 A.3d 319, 333 (Pa. 2011 ). The mere existence of an
alternative strategy not pursued by trial counsel does not make counsel's actions or
inactions ineffective. Williams, 732 A.2d at 1189. "Scope and vigor of cross-
examination is a matter which falls particularly within the ambit of sound trial strategy to
be exercised by trial counsel alone. That attorneys disagree on trial strategy does not
11 mean that the course chosen amounts to incompetence." Commonwealth v. Ramsey,
393 A.2d 806, 812 (Pa. Super. 1978)(internal citations omitted).
In this case, the Affiant did not witness the crimes being committed. He was a
relatively minor witness testifying to what happened during the course of his
investigation. The Affiant's testimony was consistent with his investigation report.
Attorney Pudleiner had no reason to believe that the affiant would have any prejudice
against the Defendant. The source of information about potential bias was the
Complainant's parents. However, Defendant never indicated to Attorney Pudleiner prior
to trial that Complainant's parents had any factual information regarding the affiant's
possible biases. Further, nothing presented would indicate that the Affiant had a bias
towards the Defendant at the time of investigation or at any time prior to the date of the
incident. The Defendant has failed to satisfy his burden of proof with regard to this
allegation as it does not have arguable merit.
Counts J and M both discuss Attorney Pudleiner's alleged ineffectiveness
for failing to adequately cross-examlne any of the Commonwealth's witnesses and the
police officers. Defendant does not specifically allege how cross-examination should
have been different. Rather, he makes a bald allegation that the cross-examination was
ineffective. "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. Paddy, 15 A.3d 431, 443 (Pa. 2011). Defendant has
not proven the claim has merit. The fact that an attorney would have pursued different
trial strategies regarding cross-examination does not make Attorney Pudleiner
ineffective. Williams, 732 A.2d at 1189. Furthermore, as the central issue on defense
12 was whether or not the acknowledged sexual encounter was consensual, and none of
the suggested witnesses had information relevant to that defense, Attorney Pudleiner,
hoping to keep matters simple for the jury, chose not to engage in lengthy cross-
examination that would distract from the defense theory or alter the jury's focus from
that defense. Therefore, Counts G, J, and Mare meritless.
Defendant alleges that Attorney Pudleiner was ineffective for failing to secure
Sheetz convenience store surveillance video, which supposedly would have shown the
interactions between Defendant and Complainant immediately before and after the
alleged incident. At the PCRA hearing, Defendant testified that the Complainant had
testified at trial that she and Defendant broke up on March 2, 2015.24 According to
Defendant's claims, the Sheetz surveillance video would have shown that on March 5th,
61h, and 71h, he and the Complainant were at Sheetz together kissing.25 Defendant
further argues that if this video were obtained and introduced at trial, the video would
have discredited the Complainant's testimony and overall credibility. 26
This issue is meritless. A careful review of the record leads to the conclusion
that Attorney Pudleiner did indeed investigate the Sheetz video footage issue when
Defendant asked him to do so. On cross-examination at the PCRA hearing, the
Commonwealth questioned Defendant about a letter that Attorney Pudleiner had sent
him in regards to the Sheetz video. In his October 16, 2015 letter to Defendant. Attorney
Pudleiner informed Defendant that the Sheetz footage had been overwritten and was no
24 PCRA Hearing Tr., pg. 7, October 23, 2017. 25 /d. 26 Jd.
13 longer available. Attorney Pudleiner cannot be deemed ineffective for not obtaining
video footage that no longer existed.
In addition, in his letter, Attorney Pudleiner explained to Defendant that the
footage in the Sheetz video would not disprove anything to which the Complainant was
going to testify with regard to whether the sex was consensual. Importantly, at the
PCRA hearing, Attorney Pudleiner testified that Defendant never told him that the
Sheetz video would have shown that Defendant and Complainant were still together. 27
Also, Attorney Pudleiner added that even if the video showed that, he is unsure of how
the video would have been helpful, and by the time he was made aware of the possible
footage it was no longer in existence. Again, Defendant has failed to prove the claim
has arguable merit.
Defendant alleges that Attorney Pudleiner was ineffective for failing to object to
the hearsay testimony of Commonwealth witness Brittney Eline. Hearsay is generally
inadmissible unless the statement(s) fall into one of the exception categories.28 An
excited utterance is one such exception and is "[a) statement relating to a startling event
or condition, made while the declarant was under the stress of excitement that it
caused."29
Instantly, the Commonwealth witness Brittney Eline testified in regards to
Complainant's excited utterance shortly after the rape. If Attorney Pudleiner would have
objected, this Court would have overruled that objection and would have admitted the
statements under the excited utterance exception to the rule against hearsay. Because
21 td, at 67. 28 Pa. R. E. 802. 29 Pa. R. E. 803(2).
14 Defendant has failed to show that he was prejudiced by Attorney Pudleiner's inaction,
this issue fails to satisfy that prong and Defendant is not entitled to relief.
Defendant alleges that Attorney Pudleiner was ineffective for failing to conduct a
proper opening statement to the jury. As stated supra, the mere existence of an
alternative strategy does not mean counsel was ineffective. Williams, 732 A.2d at 1189.
"Trial counsel's strategic decision to introduce defendant's prior crimen falsi convictions
... to preempt Commonwealth's less favorable introduction of matters, was
reasonable ... " Pursell, 724 A.2d at 311. At the PCRA hearing, Attorney Pudleiner
testified that his strategy in his opening statement was to "develop credibility with myself
with the jury ... we already decided [the Defendant] would be testifying ... so it was going
to be coming out that [the Defendant] had a lengthy record.'?" Attorney Pudleiner went on to state that:
Our whole theory to the case was that he was cheating on [the Complainant] and that [the Defendant] took a toy gun and threw it against a [head board] while (the Complainant] was sleeping. So I wanted to get this stuff out, you know, deal with it ourselves instead of having it be a surprise throughout the trial. 31
Attorney Pudleiner explained his reasoning and his trial strategy. In accordance
with Williams, supra, the fact that another attorney may have chosen a different
strategy regarding opening statements, does not mean that Attorney Pudleiner was
ineffective. Therefore, this issue is meritless.
Defendant alleges that Attorney Pudleiner was ineffective for failing to adequately
investigate the Complainant's allegations and background prior to trial. Attorney
Pudleiner testified that Defendant did not request him to interview or speak to anyone
30 PCRA Hearing Tr., pg. 69, October 23, 2017. ,I Id.
15 regarding the Complainant's credibility. 32 The only way Attorney Pudleiner would have
been aware of any witnesses, who could testify regarding Complainant's credibility,
would be if Defendant told him about such witnesses. However, as was previously
discussed, Defendant only told Attorney Pudleiner that Complainant's parents would
testify that the Defendant "was always good to and for his daughter and ... that [the
Defendant] never put [hisJ hands on (the Complainant]."33 Defendant never told
Attorney Pudleiner Complainant's parents would testify to alleged untruthfulness and
Defendant has not identified any other witnesses on the issue. Therefore, it was
reasonable for Attorney Pudleiner to not interview Complainant's parents because to
Attorney Pudleiner's knowledge, Complainant's parents would only testify to
Defendant's character.
Defendant alleges that Attorney Pudleiner was ineffective for failing to adequately
consult with Defendant nor discuss possible evidence and witnesses prior to trial.
In Commonwealth v. Johnson, the trial counsel represented the Defendant "at
his preliminary hearing and criminal arraignment, conducted a face-to-face meeting at
his preliminary hearing, conducted another face-to-face meeting at the prison ... prior to
trial, and performed at least one telephone consultation." The Court found that that this
was a sufficient amount of contact between the trial counsel and the Defendant and
therefore was effective assistance of counsel. Commonwealth v. Johnson, 51 A.3d
237, 243-44 (Pa. Super. 2012). Similarly, Attorney Pudleiner testified that he conducted
seven phone conferences with Defendant and met with Defendant on four other
32 Id. at 40 33 Commonwealth Exhibit 1 from PCRA hearing on October 23, 2017.
16 occasions prior to trial.34 There were multiple letters exchanged between them. This is
more than adequate and is effective assistance of counsel. Therefore, this issue is
meritless.
Defendant alleges that Attorney Pudleiner was ineffective for failing to
adequately discuss and prepare Defendant to testify in his own defense at trial. At the
PCRA hearing. both Defendant and Attorney Pudleiner testified that the decision for
Defendant to testify at trial was discussed and that ultimately the decision was up to
Defendant.35 Again, the Defense theory was that the sexual encounter was consensual.
There is no suggestion here as to what more Attorney Pudleiner should have or could
have done to prepare Defendant to testify. Again, Defendant's bald assertio� of
ineffectiveness does not support his burden of proof. Paddy, at 443.
Therefore, this issue has no merit. Attorney Pudleiner had at least eleven
conversations with the Defendant prior to trial and discussed the fact that Defendant
would be testifying. The pros and cons of Defendant testifying were discussed and
Defendant still decided to testify.
Lastly, Defendant alleges that all of the cumulative errors complained of should
permit Defendant to be successful on his petition. However, "no number of failed claims
may collectively attain merit if they do not do so individually." Commonwealth v.
Williams, 615 A.2d 716, 722 (Pa. 1992). Since this Court finds that none of Defendant's
individual issues complained of are meritorious, the cumulative amount of alleged errors
cannot merit relief.
34 PCRA Hearing Tr., pg. 57-58, October 23, 2017. 35 Id. at 24-25 and 45-46 and 71.
17 Trial Counsel is presumed to have been effective. Defendant has failed to meet
his burden of proving trial counsel was ineffective such that the truth determining
process was so undermined that no reliable adjudication could have taken place.
Therefore, for all the reasons stated herein, Defendant's Motion for Post Conviction
Collateral Relief is denied. Accordingly, the attached Order is entered.
BY THE COURT:
L(le;L THOMAS R. CAMPBELL Judge
Date: April 4, 2018