Com. v. Wheeler, M.

• Court: Superior Court of Pennsylvania
• Decided: October 4, 2021
• Docket: 488 EDA 2021
• Status: Unpublished

Opinion

J-S23006-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MATTHEW WHEELER : : Appellant : No. 488 EDA 2021

Appeal from the PCRA Order Entered February 10, 2021 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0006522-2018

BEFORE: LAZARUS, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 4, 2021

Matthew Wheeler appeals from the order, entered in the Court of

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

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

review, we affirm.

The PCRA court set forth the underlying facts of the case as follows:

In the fall of 2012, [E.C.] (Victim) was twelve years old and living half of the time with her mother, [] (Mother), and [] half [] with her father, [] (Father). Victim’s parents divorced outside of court and began the fifty-fifty custody arrangement when Victim was about three years old. Around October-November of 2009, after six months of dating, [Wheeler] moved in with Mother. At some point in August of 2012, [Wheeler] was fired from his job at a nuclear power plant for abusing alcohol, [which] escalated [Wheeler]’s drinking.

[D]uring the fall of 2012, [Wheeler] entered Victim’s bedroom while heavily intoxicated and sat down on her bed. [According] ____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-S23006-21

to Victim, [Wheeler] slid his hand down Victim’s back . . . then pulled down the front of Victim’s pajama pants, placed that hand on Victim’s knee and ran it up her thigh [and] eventually digitally penetrated her. At the same time, with his other hand, [Wheeler] unzipped his jeans and masturbated. [Wheeler] continued [his actions] for about twenty minutes, until [he] ejaculated, [] stood up[,] and left Victim’s room.

In September of 2012, [Wheeler] left Victim’s household at Mother’s request due to several reasons, [including, inter alia, Wheeler’s] alcohol consumption. In March of 2016, Victim informed Mother that [Wheeler] had molested her after [Victim] f[ou]nd[] out that Mother [considered permitting Wheeler] back around the house. [Despite Victim’s disclosure of Wheeler’s assault to Mother,] Mother continued seeing [Wheeler]. However, around November of 2016, Mother [sought therapy services for] Victim [] with James P. Delpino[, a licensed therapist], who had previously [provided services to] Victim [between] forty to fifty times since 2003 following Mother and Father’s divorce. It took Victim several months to discuss [Wheeler’s actions with Delpino], and, despite being a mandated reporter, [] Delpino did not immediately report [Victim’s] allegations[ on the theory that] trauma affects an affected person’s memory.

On May 18, 2017, Victim texted Mother that she was “fairly certain” she was going to be kicked out of Father’s house after she received several “mean” text messages from Father indicating that Victim was no longer welcome at his house, as well as a picture of her belongings in the trash. At that time, Father, who was extremely verbally abusive to Mother and Victim, had made it clear that he “hated” [Wheeler]. The day after she received those texts [from Father], Victim told Father that [Wheeler] had molested her back in 2012 and Father took Victim back into his house.

On May 22, 2017, Father set Victim up with a different therapist, Deborah Meyrowitz-Weiss[.] Victim once again recounted the incident with [Wheeler to Weiss]. The next day,[] both [] Weiss and [] Delpino reported Victim’s statements to ChildLine. A few days later, Detective Peter Stark and Jennifer Lannetti, an investigator for Children and Youth Services (CYS), [visited] Victim’s school and discussed the specifics of the ChildLine report with Victim.

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PCRA Court Opinion, 4/19/21, at 1-3 (internal citations and footnote omitted;

edited for clarity).

Northampton Township Police arrested Wheeler on August 30, 2018. On

June 21, 2019, following a three-day trial, a jury convicted Wheeler of

aggravated indecent assault of a child, aggravated indecent assault without

consent, aggravated indecent assault of a person less than 16, indecent

assault without consent of other, indecent assault of a person less than 13,

and indecent exposure.1

On September 30, 2019, the court sentenced Wheeler to a period of

sixty to one-hundred-twenty months’ state incarceration, which sentence fell

in both the mitigated and standard ranges. The court awarded Wheeler credit

for time served, ordered him to comply with sexual offender registration and

supervision, prohibited him from contacting Victim, and ordered him to pay

$700 in restitution. Paul G. Lang, Esquire, represented Wheeler at trial, and

Todd Mosser, Esquire, represented Wheeler for post-trial and direct appeal

matters.

On October 11, 2019, Wheeler filed a post-sentence motion, challenging

the weight of the evidence, which the court denied as untimely on October

31, 2019. On November 12, 2019, Wheeler filed a notice of appeal; however,

on April 30, 2020, Wheeler withdrew the appeal. On July 1, 2020, Wheeler,

____________________________________________

1 See 18 Pa.C.S.A. §§ 3125(b), 3125(a)(1), 3125(a)(8), 3126(a)(1), 3126(a)(7), 3127(a), respectively.

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through Sara M. Webster, Esquire, filed a PCRA petition requesting the grant

of a new trial, or discharge, on seven different grounds.

On October 29, 2020, the PCRA court held an evidentiary hearing on

Wheeler’s petition. Attorney Lang, along with six other witnesses, testified at

the hearing. On February 10, 2021, the PCRA court issued an order denying

Wheeler’s PCRA petition. On February 25, 2021, Wheeler filed a notice of

appeal. Both Wheeler and the court subsequently complied with Pa.R.A.P.

1925.

On appeal, Wheeler raises the following issues for our review:

1. The PCRA court erred in dismissing the PCRA petition and denying the relief sought, a new trial, as the issues raised by [Wheeler] in his [petition] are all issues of arguable merit; [] counsel had no reasonable basis for his action or inaction; and[,] the PCRA court applied erroneous legal standards as to every claim. The specific errors made by [Attorney Lang] are:

a. Failing to move in limine to preclude[,] or object[,] when [trial witnesses] testi[fied] regarding [Victim]’s character as an honest person who does not lie and [Victim’s] numerous inadmissible prior consistent statements.

b. Eliciting information that [Wheeler] consulted with counsel upon hearing that this matter was being investigated and thereafter failing to object when the prosecutor asked questions highlighting that [Wheeler] remained silent and never spoke with police.

c. Failing to object to impermissible [lay witness] testimony as to how child victims of sexual abuse behave.

d. Failing to object to the prosecutor’s closing argument, which included the prosecutor linking the instant case to that of notorious offenders including Bill Cosby and Jerry Sandusky, attacking defense counsel as trying to “distract” the jury, and calling for jurors to convict [Wheeler] to permit Victim to begin to “heal.”

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2. The prejudice suffered by [Wheeler] was both individual and cumulative and the PCRA court erred in finding no prejudice.

Appellant’s Brief, at 6-7 (re-ordered for ease of disposition).

In order to be eligible for PCRA relief, the petitioner must prove by a

preponderance of the evidence that his conviction or sentence resulted from

one or more of the enumerated circumstances found in section 9543(a)(2),

which includes the ineffective assistance of counsel. 42 Pa.C.S.A. §

9543(a)(2)(i). A petitioner also must establish that his claims have not been

previously litigated or waived. 42 Pa.C.S.A. § 9543(a)(3). An issue is

previously litigated if “the highest appellate court in which the petitioner could

have had review as a matter of right has ruled on the merits of the issue.” Id.

at § 9544(a)(2). “[A]n issue is waived if the petitioner could have raised it

but failed to do so before trial, at trial, . . . on appeal or in a prior state

postconviction proceeding.” Id. at § 9544(b). Additionally, “the failure to

litigate the issue prior to or during trial . . . or on direct appeal could not have

been the result of any rational, strategic[,] or tactical decision by counsel.”

Id. at § 9543(a)(4).

The well-settled appellate standard of review for the PCRA court’s grant

or denial of a PCRA petition is for an abuse of discretion:

This Court analyzes PCRA appeals in the light most favorable to the prevailing party at the PCRA level. Our review is limited to the findings of the PCRA court and the evidence of record and we do not disturb a PCRA court’s ruling if it is supported by evidence of record and is free of legal error. Similarly, we grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions.

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Where the petitioner raises questions of law, our standard of review is de novo and our scope of review is plenary. Finally, we may affirm a PCRA court’s decision on any grounds if the record supports it.

Commonwealth v. Benner, 147 A.3d 915, 919 (Pa. Super. 2016).

Our Supreme Court has explained the method by which a PCRA

petitioner may prove an ineffectiveness of counsel claim:

To be entitled to relief on an ineffectiveness claim, a PCRA petitioner must establish: (1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel’s action or failure to act; and (3) he suffered prejudice as a result of counsel’s error, with prejudice measured by whether there is a reasonable probability the result of the proceeding would have been different. Commonwealth v. Chmiel, [] 30 A.3d 1111, 1127 (Pa. 2011) (employing ineffective assistance of counsel test from Commonwealth v. Pierce, [], 527 A.2d 973, 975-76 (Pa. 1987)). [See also Strickland v. Washington, 466 U.S. 668, 694 (1984).] Counsel is presumed to have rendered effective assistance. Commonwealth v. Ali, [], 10 A.3d 282, 291 (Pa. 2010). Additionally, counsel cannot be deemed ineffective for failing to raise a meritless claim. Commonwealth v. Jones, [] 912 A.2d 268, 278 ([Pa.] 2006). Finally, because a PCRA petitioner must establish all the Pierce prongs to be entitled to relief, we are not required to analyze the elements of an ineffectiveness claim in any specific order; thus, if a claim fails under any required element, we may dismiss the claim on that basis. Ali, at 291.

Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015). See also

Commonwealth v. Housman, 226 A.3d 1249, 1260-61 (Pa. 2020).

“With regard to ‘reasonable basis,’ the PCRA court ‘does not question

whether there were other more logical courses of action which counsel could

have pursued; rather, [the court] must examine whether counsel’s decisions

had any reasonable basis.’” Commonwealth v. Bardo, 105 A.3d 678, 684

(Pa. 2014) (citing Commonwealth v. Roney, 79 A.3d 595, 604 (Pa. 2013)).

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“Where matters of strategy and tactics are concerned, a finding that a chosen

strategy lacked a reasonable basis is not warranted unless it can be concluded

that an alternative not chosen offered a potential for success substantially

greater than the course actually pursued.” Commonwealth v. Spotz, 84

A.3d 294, 311–12 (Pa. 2014) (citation, quotation marks, and brackets

omitted). “A court may not substitute its judgment for trial counsel’s. The

reasonableness of the choice may not be judged with the benefit of hindsight,

but only from trial counsel’s perspective.” Commonwealth v. Hawkins, 894

A.2d 716, 731 (Pa. 2006) (quoting Commonwealth v. Garrity, 500 A.2d

1106, 1110 (Pa. 1985)).

Wheeler first alleges that Attorney Lang was ineffective for failing to

object to testimony of specific instances of Victim’s character for truthfulness,

in violation of Treiber, supra at 457, and Pa.R.E. 608(b)(1), which prohibit

the use of evidence of specific instances of conduct to support or attack a

witness’s credibility. Wheeler argues that Attorney Lang had no reasonable

basis for failing to object to testimony by witnesses at trial that Victim was

very reliable, had no history of lying, and maintained good grades before and

after the sexual assault.2 Wheeler claims that Attorney Lang’s “post-hoc

justification” for permitting this testimonial evidence—that it would provide a

basis for arguing that nothing traumatic ever happened to Victim—has no

relation to Victim’s good grades, and provides “no explanation for allowing the

2 See N.T. Jury Trial, 6/20/19, at 19, 71, 223.

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separate and distinct testimony and argument that [Victim] remains truthful.”

Appellant’s Brief, at 24. Essentially, Wheeler claims that evidence of the

absence of Victim’s behavior problems is unrelated to Victim’s character for

never lying, and therefore, Attorney Lang should have objected to witness

testimony that Victim had never lied. See Appellant’s Reply Brief, at 4.

Wheeler concludes that he suffered prejudice and relies on our Supreme

Court’s decision in Commonwealth v. Weiss, 606 A.2d 439 (Pa. 1992).

Wheeler is entitled to no relief on this claim.

The Commonwealth concedes—and we agree—that the testimony at

issue was presented to the jury in an improper form, see Appellee’s Brief, at

15, since it was not elicited in the form of reputation evidence. See Pa.R.E.

608(a); see also Treiber, supra at 457 (citing Pa.R.E. 608(b)(1)).

Nevertheless, we find that Attorney Lang had a reasonable basis for permitting

the testimony to be heard by the jury because that evidence advanced his

own theory of the case.

Specifically, Attorney Lang’s trial theory, which was consistent

throughout opening and closing argument, was that Victim’s sexual assault

allegations were “atypical,” did not make sense, and thus rendered the

allegations incredible, given that Victim maintained an exemplary record in

school and apparently suffered no outwardly noticeable negative

consequences. See N.T. Jury Trial, 6/19/19, at 14-15 (opening argument);

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id., 6/21/19, at 11 (closing argument).3 Attorney Lang relied on the

admission of evidence of Victim’s behavior before and after the alleged

assault, including evidence that Victim did not have any history of lying to the

adults in her life at the relevant times. Id. at 20 (closing argument). Attorney

Lang posited that Victim fabricated the allegations to persuade Father to

permit her to move back into his home after Father sent Victim the text

messages that indicated that she was no longer welcome there, since Victim

knew Father “hated” Wheeler. Id., 6/19/19, at 16, 18, 22 (opening

argument); id., 6/21/19, at 8-10 (closing argument). Attorney Lang further

theorized that Victim continued to allege the fabricated story because she felt

pressured to do so for fear of disappointing those around her. Id., 6/19/19,

at 19-22 (opening argument).

Here, we find that the PCRA court’s analysis that Attorney Lang had a

reasonable basis for not seeking to preclude the challenged testimony is

supported by the record. See Benner, supra; see also PCRA Court Opinion,

5/12/21, at 11. Indeed, we conclude that the admission into evidence of

testimony of Victim’s lack of negative expressed behavior, including that

Victim did not lie to the adults in supervisory roles in her life, reasonably

advanced Attorney Lang’s theory that the case was atypical of other child sex

assault cases and that the assault sub judice never took place. See Bardo,

supra. Moreover, contrary to Wheeler’s claim, the evidence elicited of specific ____________________________________________

3 The notes of testimony of the parties’ opening and closing remarks to the

jury are excerpted separately in the certified record.

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instances of the minor Victim’s lack of history of lying to the adult witnesses

demonstrated Victim’s behavior at the relevant times—i.e., prior to, and

after, Wheeler’s alleged sexual assault—and was not admitted merely for the

purpose of providing evidence that supported a finding that Victim had, and

maintains, a character for truthfulness. We find that, because the

reasonableness of Attorney Lang’s theory may not be judged by hindsight,

see Hawkins, supra, and it was, in fact, reasonable, Wheeler’s

ineffectiveness claim must fail. See Chmiel, supra; Ali, supra.

Next, Wheeler alleges Attorney Lang’s ineffectiveness at trial on the

basis that Attorney Lang failed to object to the admission of numerous

consistent statements made by the Victim, which she allegedly made after her

corrupting motive to fabricate arose. Wheeler suggests that Attorney Lang

should have objected to the admission of statements Victim made to two

therapists, to police, and Victim’s testimony at the preliminary hearing. See

Appellant’s Brief, at 28-30. Specifically, Wheeler claims these now-challenged

statements were inadmissible pursuant to Commonwealth v. Hutchinson,

556 A.2d 370 (Pa. 1989), Commonwealth v. Bond, 190 A.3d 664 (Pa.

Super. 2018), and Pa.R.E. 613. Wheeler is not entitled to any relief on this

claim.

Pennsylvania Rule of Evidence 613(c) governs the admissibility of a

witness’s prior consistent statements for rehabilitation purposes, and states:

(c) Witness’s Prior Consistent Statement to Rehabilitate. Evidence of a witness’s prior consistent statement is admissible to rehabilitate the witness’s credibility if the opposing party is given

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an opportunity to cross-examine the witness about the statement and the statement is offered to rebut an express or implied charge of:

(1) fabrication, bias, improper influence or motive, or faulty memory and the statement was made before that which has been charged existed or arose; or

(2) having made a prior inconsistent statement, which the witness has denied or explained, and the consistent statement supports the witness’s denial or explanation.

Pa.R.E. 613(c). Further, the comment to the rule clarifies that

[Rule] 613(c)(2) is arguably an extension of Pennsylvania law, but is based on the premise that when an attempt has been made to impeach a witness with an alleged prior inconsistent statement, a statement consistent with the witness’s testimony should be admissible to rehabilitate the witness if it supports the witness’s denial or explanation of the alleged inconsistent statement.

Pa.R.E. 613, cmt.

At trial, Victim testified on direct examination that Wheeler assaulted

her in the fall of 2012. See N.T. Jury Trial, 6/19/19, at 52, 54. On cross-

examination, Attorney Lang—in accordance with his theory of Victim’s motive

to fabricate, which was based on Father kicking her out of his home, Father’s

hatred for Wheeler, and the mounting pressure from investigators to maintain

her criminal allegations against Wheeler—questioned Victim about why she

had initially told police and Lannetti that the assault occurred in the fall of

2013. Id. at 119. On redirect examination, Victim insisted upon the version

of the allegations that were consistent with her testimony on direct

examination, i.e. the fall 2012 timeline for the assault, and she again denied

fabrication. Id. at 123-24.

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Here, we find that the PCRA court’s analysis pursuant to Rule 613(c)(2)

is supported by the record. See Benner, supra; see also PCRA Court

Opinion, 5/12/21, at 12. Indeed, we conclude that Victim agreed on cross-

examination that she made an inconsistent statement as it relates to her

present allegations when she told investigators the assault took place in 2013.

Id. at 119. Victim explained, during cross-examination, that through the

course of that conversation with investigators, she discovered that Wheeler

had moved out of her home in 2013 and, therefore, she pinpointed the year

of the assault to 2012. Id. We find that the prior consistent statements

Victim testified to on redirect examination were admissible pursuant to Rule

613(c)(2) and its comment, since Victim explained the inconsistent 2013

statement and the consistent statements admitted on redirect examination

supported that explanation and denial of fabrication. See Pa.R.E. 613(c)(2).

Attorney Lang cannot be found ineffective for failing to raise a meritless

objection to admissible evidence.4 See Jones, supra.

Moreover, to the extent prior consistent statements were admitted on

Victim’s direct examination, which preceded Attorney Lang’s raising of the

inconsistent 2013 statement, we find that Attorney Lang had a reasonable

basis for not objecting given his trial strategy, which was evidenced by his

opening argument to the jury that requested the jurors rely upon the ____________________________________________

4In this regard, Wheeler’s reliance on Bond, supra is misplaced, since, in Bond, this Court found Rule 613(c)(2) was inapplicable because the victim never explained the inconsistencies in her testimony. See id. at 670.

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inconsistencies in the varying versions of Victim’s allegations to deem Victim

incredible. See Bardo, supra. Indeed, although Wheeler now characterizes

the statements at issue as impermissibly admitted as “prior consistent

statements,” Attorney Lang, at trial, requested the jury draw its attention to

the inconsistencies between the statements now at issue. Additionally, to the

extent that all of the admitted prior consistent statements were made after

Victim’s alleged motive to fabricate,5 Rule 613(c)(2) applies to those

statements regardless. See Commonwealth v. Harris, 852 A.2d 1168,

1176 (Pa. 2004) (pursuant to Rule 613(c)(2), prior consistent statements are

admissible to rebut charge of having made prior inconsistent statement

regardless of whether statement predates motive to fabricate). Given that we

have already found Attorney Lang’s trial theory was reasonable, and since his

pointing out inconsistencies in Victim’s versions of events reasonably

advanced his theory that Victim fabricated the allegations, see Bardo, supra,

Wheeler’s ineffectiveness claim based on the admission of prior consistent

statements must fail.6 See Chmiel, supra; Ali, supra. ____________________________________________

5 As we noted previously, Attorney Lang argued to the jury that Victim had

multiple motives to fabricate the allegations against Wheeler, which arose at differing times, including Victim’s motive to: move back into Father’s home, appease Father by appealing to his “hatred” of Wheeler, and avoid facing perjury charges once the police investigation into her allegations commenced.

6 Even assuming, arguendo, that the challenged statements were admitted in

error, we would decline to find the necessary prejudice. See Chmiel, supra. In Commonwealth v. Busanet, 54 A.3d 35 (Pa. 2012), our Supreme Court found that where trial counsel meticulously cross-examined the witness with (Footnote Continued Next Page)

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Next, Wheeler claims that Attorney Lang was ineffective for affirmatively

offering evidence that Wheeler consulted with counsel prior to his arrest

regarding the matter, and further argues that Attorney Lang should have

objected when the prosecution highlighted his pre-trial silence. Wheeler

suggests that Attorney Lang was ineffective for failing to file a motion in limine

rather than constructing a “straw man” to knock down. See Appellant’s Brief,

at 34. Wheeler relies on our Supreme Court’s decisions in Commonwealth

v. Turner, 454 A.2d 537 (Pa. 1982), and Commonwealth v. Molina, 104

A.3d 430 (Pa. 2014), to establish prejudice. Wheeler is entitled to no relief.

At the PCRA hearing, Attorney Lang explained that he was concerned

with the jury drawing negative inferences from Wheeler being located in North

Carolina at the time of Victim’s disclosure and the start of the criminal

investigation because jurors might infer Wheeler was avoiding the matter and

was not prepared to defend his innocence. To rebut this possible negative

evidence of a motive to fabricate, and painstakingly pointed out to the jury that specific motive, and the jury only considered such evidence for purposes of credibility of the witness rather than substance, the PCRA petitioner failed to establish prejudice. Id. at 67. Wheeler’s case is on all fours with Busanet insofar as Attorney Lang vigorously cross-examined Victim regarding her motives to lie, argued in opening and closing arguments that the jury should pay particularly close attention to the varying versions of the allegations which supported a finding that Victim was incredible, and the consistent statements were only relied upon by counsel in closing argument for purposes of establishing credibility. Moreover, if Attorney Lang had challenged the admissibility of Victim’s prior consistent statements, he could not have relied on them when highlighting inconsistencies to the jury during his closing argument, which would have been contrary to his theory of the case that Victim is incredible.

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inference—what Wheeler refers to as the aforementioned “straw man”—and

demonstrate to the jury that Wheeler took the allegations seriously from their

inception, Attorney Lang elicited testimony on direct examination of Wheeler

that Wheeler sought Attorney Lang’s services, via phone call while out-of-

state, prior to his arrest. See N.T. Jury Trial, 6/20/19, at 201-02. While

Wheeler was testifying on direct examination, Wheeler suggested that he was

given no opportunity to assert his innocence. Id. (“I’m states away. I’m

beginning to realize this has been going on for quite some time and I’ve had

no input.”). On cross-examination, the Commonwealth relied on the theory

of “fair response,” see, e.g., Commonwealth v. Copenhefer, 719 A.2d 242,

251-52 (Pa. 1988), and inquired into the exact date Wheeler had retained

counsel. N.T. Jury Trial, 6/20/19, at 205. The Commonwealth argues that it

sought to impeach Wheeler using his version of the “investigative timeline,”

see Appellee’s Brief, at 30, as well as Wheeler’s claim that he wished to assert

his innocence but that police did not fairly investigate his case. Id. The

Commonwealth’s cross-examination of Wheeler proceeded as follows:

Q. Okay. So, sir, normally I wouldn’t comment on this, but since Mr. Lang brought it up on direct [examination,] with regard to your retaining an attorney[—you] are in fact on the stand right now[—y]ou maintain that you didn’t [commit the alleged crimes], correct?

A. That’s correct.

Q. And that’s the first time anybody is hearing this, correct?

A. That’s incorrect.

Q. Okay. So[,] you told Detective Stark?

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A. Detective Stark has never bothered to talk to me.

Q. Okay. And so[,] you, of course, said[, “]I didn’t do this thing; I got to tell somebody that I absolutely didn’t do it,[”] right?

A. I don’t believe I’ve ever said that.

Q. Okay. So[,] you didn’t go and assert your innocence, did you?

A. I wanted to. That was my initial reaction.

Id. at 208 (emphasis added).

The Commonwealth contends that it permissibly used the above

questioning to impeach Wheeler’s complaint that he had “no input” in the

investigation into his case but wished to “confront the[] allegations.” Id. at

201-02. We agree.

Here, we conclude that the PCRA court’s determination that the

Commonwealth’s cross-examination of Wheeler was conducted in fair

response is supported by the record. See Benner, supra; see also PCRA

Court Opinion, 5/12/21, at 19. After our independent review, we find that the

court properly allowed the Commonwealth’s questions in fair response to

Wheeler’s grievance regarding the thoroughness of the investigation into his

case and conclude that the Commonwealth did not rely on the evidence for its

substance. See Commonwealth v. Reed, 42 A.3d 314, 323-24 (Pa. Super.

2012) (Fifth Amendment does not preclude prosecutor from fairly responding

to defense argument by referencing testifying defendant’s prior silence).

Further, we are satisfied that Attorney Lang had a reasonable basis for eliciting

testimony from Wheeler that Wheeler had retained Attorney Lang’s services

from North Carolina to rebut the aforementioned subtle inference of guilt.

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Attorney Lang reasonably elicited that testimony for the purpose of relying

upon it in closing argument to demonstrate that Wheeler indeed took the

allegations seriously and asserted his innocence from the beginning. See

Bardo, supra; see also N.T. Jury Trial, 6/21/19, at 13-14 (closing

argument). Because we find Attorney Lang’s trial strategy was reasonably

based, Wheeler’s ineffectiveness claim must fail.7 See Chmiel, supra; Ali,

supra. Insofar as Wheeler argues that Attorney Lang should have pursued a

motion in limine to effectuate this trial strategy, we conclude that we may not

review the reasonableness of Attorney Lang’s theory in hindsight. See

Hawkins, supra.

Next, Wheeler cites to our Supreme Court’s decision in Commonwealth

v. Jones, 240 A.3d 881 (Pa. 2020), to support his claim that Detective

Timothy Perkins testified impermissibly as a lay witness regarding the

behavior of child victims of sexual assault. See N.T. Jury Trial, 6/20/19, at

136-37. Nevertheless, we find that because Wheeler’s claim had no arguable

merit at the time of his trial, Attorney Lang had a reasonable basis for not

objecting. See Jones, 912 A.2d at 278.

In Jones, supra, our Supreme Court held testimony from a law

enforcement officer concerning child victims’ typical behaviors and responses

7 Though we need not address the issue of prejudice, see Ali, supra, we find

none resulted since the Commonwealth’s questioning was brief and contextual and because it did not rely on the reference to Wheeler’s pre- or post-arrest silence as substantive evidence. See Commonwealth v. Rivera, 1788 MDA 2019, at *14-*15 (Pa. Super. filed May 24, 2021); see also Reed, supra.

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to sexual abuse falls within the realm of expert testimony and testimony on

such topic is admissible subject to proper expert qualification. 240 A.3d at

891. Wheeler claims that his case is on all fours with Jones.

Although the cases are factually similar, appellate courts of this

Commonwealth review ineffective assistance of counsel claims under the PCRA

according to the standards and legal precedents in effect at the time of

counsel’s representation. See Commonwealth v. Smith, 995 A.2d 1143,

1172 (Pa. 2010) (assessing reasonableness of trial attorney’s stewardship

under prevailing professional norms at time of representation). Additionally,

the Supreme Court has clarified that counsel will not be faulted for failing to

predict a change in the law. See Commonwealth v. Bennett, 57 A.3d 1185,

1201 (Pa. 2012).

Here, Attorney Lang’s opening argument referred to Victim’s case as

atypical and called on the jury to infer that Victim’s allegations are incredible

based on that atypicality. N.T. Jury Trial, 6/19/19, at 14-15 (opening

argument). Prior to seeking its admission, the Commonwealth informed the

court and Wheeler that it intended to introduce Detective Perkins’ lay witness

testimony regarding “typical sex assault cases[,]” which would be based on

the detective’s experience and training, and which was intended to rebut

Attorney Lang’s opening statement and theory of atypicality. See N.T. Jury

Trial, 6/19/19, at 129. The court agreed to permit Detective Perkins’ brief lay

testimony on that topic. Id. (“[I]n light of [Attorney] Lang’s opening

argument[, the court wi]ll allow some leeway. Don’t go too far.”). As

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previously noted, the Commonwealth later introduced Detective Perkins’ now-

challenged testimony. Id., 6/20/19, at 136-37.

After our independent review, we find that the PCRA court’s

determination that Jones, 240 A.3d at 891, is inapplicable to Wheeler’s case

is supported by the record. See Benner, supra; see also PCRA Court

Opinion, 5/12/21, at 17. We conclude that, here, Attorney Lang cannot be

faulted for failing to object to Detective Perkins’ lay testimony since such

objection would have been premised on Jones, 240 A.3d at 891, and thus,

would have required Attorney Lang to predict a future change in the law. See

Bennett, supra. Moreover, in light of Attorney Lang’s opening statement,

the Commonwealth’s subsequent notice to the court and Wheeler of its intent

to admit Detective Perkins’ lay testimony, and the court’s indication that it

would grant minimal leeway for such admission, we are satisfied that Attorney

Lang had no reasonable basis for objecting at that time since the objection

would have been meritless and there was no alternative that offered a

potential for success substantially greater than the course Attorney Lang

actually pursued. See Jones, 912 A.2d at 278; Spotz, supra.

Next, Wheeler contends that Attorney Lang was ineffective for failing to

object to the prosecution’s: (1) closing argument, which included the

prosecutor mentioning “notorious offenders” including Nassar, Cosby, and

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Sandusky;8 (2) “attacks” on Attorney Lang, which distracted the jury;9 and

(3) call for jurors to convict Wheeler to permit Victim to begin to “heal.” 10

Our “stringent” standard of review for a claim of prosecutorial

misconduct stemming from improper argument to the jury is well-settled:

“Comments by a prosecutor constitute reversible error only where their

unavoidable effect is to prejudice the jury, forming in their minds a fixed bias

and hostility toward the defendant such that they could not weigh the evidence

objectively and render a fair verdict.” Chmiel, supra at 1147.

Further, this Court has previously delineated the appellant’s heavy

burden for proving an ineffective assistance of trial counsel claim based on

counsel’s failure to object to the prosecution’s remarks to the jury:

8 The prosecutor stated to the jury: “There is no typical sexual assault investigation. In today’s day and age, in the day and age of Larry Nassar, of Bill Cosby, of Jerry Sandusky, I can’t imagine why a child would delay the report. I can’t explain that to you. But it happens. And that’s what happened here.” N.T. Jury Trial, 6/21/19, at 28 (closing argument).

9 The prosecutor argued to the jury:

[Attorney Lang i]s asking you to focus on literally anything that is not [from the Victim], that is not the words that came out of her mouth on that stand. He’s asking you to do that because he wants to distract you from [Victim]. He wants to distract you from how [Victim] courageously told a room full of strangers about how this grown man violated her, how he penetrated her, how he exposed himself.

N.T. Jury Trial, 6/21/19, at 31 (closing argument).

10 The prosecution asked the jury to “close the door on that trauma so [Victim]

can start to heal[.]” N.T. Jury Trial, 6/21/19, at 43 (closing argument).

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the remarks must first be genuinely prejudicial to the defendant; this prejudice must be serious enough that it could not be cured by the court’s instructions; counsel must have had no reason for failing to object to the remarks; and finally, it must appear that objecting would have done some good—that is, counsel’s failure to object denied the defendant a fair trial.

Commonwealth v. Thompson, 660 A.2d 68, 75 (Pa. Super. 1995) (citing

Commonwealth v. Baker, 614 A.2d 663, 673 (Pa. 1992)).

In Chmiel, supra, our Supreme Court explained how appellate courts

review allegations of prosecutorial misconduct in argument to the jury:

In accord with the long-standing principle that a “prosecutor must be free to present his or her arguments with logical force and vigor,” this Court has permitted prosecutorial advocacy “as long as there is a reasonable basis in the record for the prosecutor’s comments.” Commonwealth v. Robinson, [] 864 A.2d 460, 516-17 (Pa. 2004). Prosecutorial comments based on the evidence or reasonable inferences therefrom are not objectionable, nor are comments that merely constitute oratorical flair. [Commonwealth v.] Tedford, 960 A.2d [1,] 33 [(Pa. 2008)]. Furthermore, the prosecution must be permitted to respond to defense counsel’s arguments. Id. Any challenged prosecutorial comment must not be viewed in isolation, but rather must be considered in the context in which it was offered. Robinson, supra at 517.

It is improper for a prosecutor to offer his or her personal opinion as to the guilt of the accused or the credibility of any testimony. Commonwealth v. DeJesus, [] 860 A.2d 102, 112 ([Pa.] 2004). However, it is well within the bounds of proper advocacy for the prosecutor to summarize the facts of the case and then ask the jury to find the accused guilty based on those facts. See id.

Chmiel, supra at 1146-47 (brackets omitted). Additionally, the prosecutor’s

insinuation during closing argument that defense counsel is attempting to

divert a jury’s attention from the totality of the evidence is not improper where

the remark “constitutes an appeal to the jury to use its collective intelligence

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and logic in assessing all of the evidence.” Commonwealth v. Hennigan,

753 A.2d 245, 261-62 (Pa. Super. 2000) (quoting Commonwealth v. Smith,

467 A.2d 1307, 1321 n.20 (Pa. Super. 1983)).

Here, we conclude that Wheeler’s complaints of ineffectiveness are

overstated, and that he is entitled to no relief on any of his prosecutorial

misconduct claims since the PCRA court’s determination that no relief is due

is supported by the record. See Benner, supra; see also PCRA Court

Opinion, 5/12/21, at 23-24. First, as it relates to all three challenged remarks,

we are satisfied that the court instructed the jury twice over the course of the

trial that the attorneys’ arguments are not evidence and ought not be

considered as such. The jury is presumed to follow the court’s instructions.

See Chmiel, supra at 1147.

As to the prosecution’s references to Nassar, Cosby, and Sandusky, we

have already mentioned that Attorney Lang’s theory of the case included that

Victim was incredible based on the fact that her allegations were atypical of

other child sex assault cases. Given Attorney Lang’s opening argument to the

jury, we conclude that the prosecution was permitted to respond by asserting

that, in essence, there is no such “typical” child sex assault case. We find that

the Commonwealth’s closing remarks were reasonably based in the record

where they challenged Attorney Lang’s comment on the typicality of Victim’s

case. See Robinson, supra at 516-17. Additionally, the prosecutor merely

said the names of the “notorious” offenders in passing, and we conclude it was

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fair response to Attorney Lang’s charge of “atypicality,” see Tedford, supra,

making use of permissible oratorical flair. Id.

As to the prosecution’s “attacks” on Attorney Lang, see supra at n.9,

we find that this case is on all fours with Hennigan, where the prosecutor’s

remarks constituted an appeal to the jury to use its collective intelligence and

logic in assessing all of the evidence for and against Wheeler. See Hennigan,

supra.

Finally, as to the prosecution’s closing argument asking the jury to

“close the door on that trauma so [Victim] can start to heal,” see N.T. Jury

Trial, 6/21/19, at 43 (closing argument), we find that the Commonwealth was

merely summarizing the facts of the case and asking the jury to find Wheeler

guilty based on those facts, again making use of permissible oratorical flair.

See DeJesus, supra; see also Tedford, supra. See also Commonwealth

v. Carson, 913 A.2d 220, 238 (Pa. 2006) (“If [prosecutor’s] arguments

[based on the evidence] were improper, the Commonwealth would be hard-

pressed to make any argument in response to the defense.”). Our Supreme

Court has previously declined to find prosecutorial misconduct under similar

circumstances. See Commonwealth v. Marshall, 633 A.2d 1100, 1107 (Pa.

1993) (prosecutor’s statement to jury in closing to “do your duty and close

the eyes of the dead” within bounds of permissible oratorical flair and not

deliberate attempt to destroy factfinder’s objectivity). Since any objections

to Wheeler’s now-challenged closing remarks would have been meritless, we

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cannot find Attorney Lang was ineffective for failing to raise those objections.

Jones, 912 A.2d at 278.

Last, Wheeler asserts that the cumulative prejudice that he suffered

from all of the above-alleged errors entitles him to a new trial. See Appellant’s

Brief, at 44-47. We disagree.

Our Supreme Court has previously explained the method by which

appellate courts review a claim of cumulative error:

[N]o number of failed ineffectiveness claims may collectively warrant relief if they fail to do so individually. Commonwealth v. Johnson, [] 966 A.2d 523, 532 ([Pa.] 2009). Thus, to the extent claims are rejected for lack of arguable merit, there is no basis for an accumulation claim. Commonwealth v. Sattazahn, [] 952 A.2d 640, 671 ([Pa.] 2008). When the failure of individual claims is grounded in lack of prejudice, however, then the cumulative prejudice from those individual claims may properly be assessed. Johnson, [supra] (citing Commonwealth v. Perry, [] 644 A.2d 705, 709 ([Pa.] 1994)[).]

Commonwealth v. Hanible, 30 A.3d 426, 483 (Pa. 2011).

Here, we conclude that the PCRA court’s determination that Wheeler is

not entitled to a cumulative error claim is supported by the record. See

Benner, supra; see also PCRA Court Opinion, 5/12/21, at 24-25. None of

the analyses herein denying Wheeler relief is grounded in a lack of prejudice.

See Johnson, supra. Indeed, we have declined to grant Wheeler relief on

each of his errors raised on appeal because Attorney Lang’s action was either

reasonably based or there was a lack of arguable merit to Wheeler’s claim.

Therefore, Wheeler has no basis for an accumulation claim. See Sattazahn,

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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/4/2021

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