J-S18022-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    WILLIAM LEE RAUCH,                         :
                                               :
                       Appellant               :      No. 1201 WDA 2017

                    Appeal from the PCRA Order July 21, 2017
               in the Court of Common Pleas of Clearfield County,
              Criminal Division at No(s): CP-17-CR-0000251-2013

BEFORE: STABILE, J., MUSMANNO, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MUSMANNO, J.:                               FILED JUNE 15, 2018

        William Lee Rauch (“Rauch”) appeals from the Order dismissing his first

Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”). 1

We affirm.

        This Court previously summarized the factual history of this case as

follows:

        This case was initiated by the filing of a Criminal Complaint on
        April 5, 2013[,] by Patrolman Ralph Nedza of the Clearfield
        Borough Police Department. Said Complaint alleged that [Rauch]
        robbed, at knifepoint, the Domino’s Pizza, located in the Borough
        of Clearfield, Pennsylvania, on April 4, 2013. It was purported,
        and ultimately established at [Rauch’s] trial, that [he] had entered
        the pizza shop bedecked in a gray “hoodie” sweatshirt, a knitted
        hat made into a mask, and blue jeans with a gold embroidery
        embellished on the back pocket. After entering into Domino’s,
        [Rauch] wielded a green-handled knife, approximately four inches
        in length, and demanded money from the store manager. While
        brandishing the knife approximately one foot away from the
        manager, [Rauch] arrogated that the manager turn over all of the
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1   See 42 Pa.C.S.A. §§ 9541-9546.
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       currency contained in the store’s cash register. The manager,
       fearing for her life, complied with [Rauch’s] nefarious demand by
       handing over the monies, which was comprised of numerous one
       and five dollar bills.

              Multiple Domino’s employees witnessed the hold-up, and
       the business surveillance system recorded, both visually and
       audibly, the robbery. The employees immediately reported the
       incident to law enforcement. After receiving news of the crime,
       officers were dispatched to canvass the area surrounding the pizza
       joint. Officers quickly found [Rauch] walking in the vicinity and
       stopped [him] to inquire about the robbery. When the policemen
       observed [Rauch], he was wearing the same embroidered pants
       observed at the crime scene and a black tee-shirt. After arresting
       [Rauch] for an unrelated crime [that same evening (public
       drunkenness)], it was later revealed that [he] was the same
       individual who earlier [had] robbed the Domino’s Pizza.

             The police also discovered the articles of clothing, worn in
       the robbery, and the knife, displayed to the store manager,
       abandoned behind a building close to where [Rauch] was
       apprehended. Some of the articles were later determined to have
       [Rauch’s] DNA present on them. Police also found a large amount
       of low-denominational currency on [Rauch’s] person after he was
       arrested.

Commonwealth v. Rauch, 116 A.3d 682 (Pa. Super. 2014) (unpublished

memorandum at 1-3) (citation, footnote, and ellipses omitted).

       The Commonwealth thereafter charged Rauch with two counts of

robbery, and one count each of terroristic threats, theft by unlawful taking,

and simple assault.2 The matter proceeded to a jury trial, wherein Rauch was

represented by Michael Marshall, Esquire (hereinafter, “Attorney Marshall”),

and Curtis Irwin, Esquire (hereinafter, “Attorney Irwin”) (both counsel


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2See 18 Pa.C.S.A. §§ 3701(a)(1)(ii), 3701(a)(1)(iv); 2706(a)(1), 3921(a),
2701(a)(3).

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collectively hereinafter referred to as “trial counsel”). At the close of trial, the

jury found Rauch guilty of all counts. Thereafter, the trial court sentenced

Rauch to an aggregate term of eight to sixteen years in prison. Rauch filed a

Motion for reconsideration of sentence, which the trial court denied.          This

Court affirmed Rauch’s judgment of sentence, after which the Pennsylvania

Supreme Court denied Rauch’s Petition for allowance of appeal, nunc pro tunc.

See Rauch, 116 A.3d 682, appeal denied, 121 A.3d 496 (Pa. 2015).

      On April 26, 2016, Rauch timely filed the instant PCRA Petition, his first.

The PCRA court appointed Rauch PCRA counsel, who thereafter filed an

Amended PCRA Petition, raising claims of trial counsels’ ineffectiveness. After

an evidentiary hearing (hereinafter, the “PCRA Hearing”), wherein trial

counsel and Rauch testified, the PCRA court dismissed Rauch’s Petition by an

Opinion and Order entered on July 21, 2017.          Thereafter, Rauch filed the

instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise

Statement of errors complained of on appeal.

      Rauch now presents the following issues for our review:

      I.    Whether [Attorney Marshall,] who significantly participated
            in the trial[,] was ineffective for failing to properly prepare
            for trial by not communicating with [Rauch] and preparing
            adequate defenses?

      II.   Whether [Rauch’s] constitutional rights under the Sixth
            Amendment were violated by [trial] counsel[s’] ineffective
            failure to call Robert Elsavage [(“Elsavage”),] and to
            stipulate to the entry of his report without consulting
            [Rauch,] and depriving the jury of the opportunity to
            properly weigh [Elsavage’s] testimony?



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      III.   Whether [trial] counsel [were] constitutionally ineffective
             under the Sixth Amendment for failing to object to portions
             of the prosecutor’s closing statement[,] which instructed the
             jury to judge the case as though [Rauch] was the only
             person present at the scene[,] and further to find [Rauch]
             guilty if they believed he did commit the crime?

      IV.    Whether [Rauch’s] rights under the Constitution were
             violated based upon the cumulative impact of the above
             errors?

Brief for Appellant at 4 (capitalization omitted).

      The applicable standards of review regarding the dismissal of a PCRA

petition and ineffectiveness claims are as follows:

             This Court’s standard of review regarding an order
      [dismissing] a petition under the PCRA is 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.

                                  ***

             To prevail on a claim alleging counsel’s ineffectiveness
      under the PCRA, [a petitioner] must demonstrate (1) that the
      underlying claim is of arguable merit; (2) that counsel’s course of
      conduct was without a reasonable basis designed to effectuate his
      client’s interest; and (3) that he was prejudiced by counsel’s
      ineffectiveness [(hereinafter referred to as the “prejudice
      prong”)], i.e.[,] there is a reasonable probability that but for the
      act or omission in question[,] the outcome of the proceeding
      would have been different.

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (citations and

brackets omitted); see also Commonwealth v. Solano, 129 A.3d 1156,

1162-63 (Pa. 2015) (stating that failure to establish any prong of the test will

defeat an ineffectiveness claim). Finally, “[w]hen evaluating ineffectiveness

claims, judicial scrutiny of counsel’s performance must be highly deferential.”

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Commonwealth v. Lesko, 15 A.3d 345, 380 (Pa. 2011) (citation and

quotation marks omitted).

      In his first issue, Rauch argues that Attorney Marshall rendered

ineffective assistance of counsel, which prejudiced Rauch and deprived him of

a fair trial. See Brief for Appellant at 9-12. Specifically, Rauch avers that

Attorney Marshall failed to adequately prepare for trial due to his (1)

undisputed failure to meet with Rauch and discuss the case prior to jury

selection; and (2) resultant inability to “prepare an adequate defense without

communicating personally with [] Rauch.” Id. at 11. Rauch further contends

that “at no time was [Attorney Marshall] able to give a reasonable explanation

as to why the proper communication did not occur.” Id. at 12.

      In its Opinion and Order, the PCRA court addressed Rauch’s claim as

follows:

      Despite Attorney Marshall’s minimal involvement in the case at its
      early stages, the [PCRA] [c]ourt believes that Attorney Marshall,
      who acted as co-counsel to Attorney [] Irwin, was well prepared
      and was ultimately effective in [Rauch’s] criminal trial. During the
      [PCRA H]earing on this matter, Attorney Irwin testified that he
      met with [Rauch] more than a standard client, which included
      meeting on nights and weekends.           Further, Attorney Irwin
      indicated that [Rauch] had written numerous letters to Attorney
      Irwin’s office, approximately one letter per day, which allowed
      Attorney Irwin to better understand [Rauch’s] case. Attorney
      Marshall also testified at the May 22, 2017 [PCRA H]earing that in
      order to prepare for [Rauch’s] criminal trial, Attorney Marshall
      went over the case with Attorney Irwin[,] who had worked closely
      with [Rauch,] and who had a very good working knowledge of the
      case. Thus, given the extent to which Attorney Irwin met with
      [Rauch] and reviewed [Rauch’s] case, and because Attorney
      Marshall consulted with Attorney Irwin as co-counsel, the [PCRA]
      [c]ourt believes that Attorney Marshall was adequately prepared


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      for trial, that his actions were reasonable, and that [Rauch] did
      not suffer any prejudice therefrom.

PCRA Court Opinion and Order, 7/21/17, at 2-3.

      The PCRA court’s foregoing analysis is supported by the record, and we

agree with its determination that Rauch failed to meet his burden to prove

that Attorney Marshall was ineffective. First, it is well settled that, in reviewing

a claim of ineffectiveness of counsel, 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.” Commonwealth v. Henkel, 90 A.3d 16, 20

(Pa. Super. 2014) (en banc) (citation omitted). Accordingly, here, we defer

to the factual finding of the PCRA court, which had considered the testimony

at the PCRA Hearing, that Attorney Marshall was adequately prepared and was

ultimately effective. See id. Second, even if Attorney Marshall had met with

Rauch prior to jury selection, there is no reasonable possibility that the

outcome of Rauch’s trial would have been different. See Wah, supra. Aside

from a bald assertion of prejudice, Rauch does not plead or prove any specific

allegation of prejudice. Rather, he merely articulates a desire in hindsight to

speak with one of his co-counsel more than the other prior to trial.

Accordingly, Rauch’s first issue entitles him to no relief.

      In his second issue, Rauch contends that trial counsel were ineffective

for failing to call Elsavage as an expert witness to testify as to a report




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(hereinafter, the “Report”) that he had prepared concerning Rauch’s case.3

See Brief for Appellant at 13-15. According to Rauch, “[t]he [R]eport … was

extremely significant as it indicated [that] cornmeal, a substance used by

Domino’s Pizza, was not found on the money. This was a key piece of evidence

that could have exonerated [] Rauch.” Id. at 13. Rauch points out that the

parties stipulated to the admission of the Report, but complains that trial

counsel were ineffective for failing to consult with Rauch concerning the

stipulation and its consequences. Id. at 15.

       In its Opinion and Order, the PCRA court addressed Rauch’s claim as

follows:

       [] Elsavage, although not called to testify, had drafted an expert
       [R]eport as part of his position with the Pennsylvania State Police
       Bureau, Erie Regional Laboratory, which was ultimately admitted
       into evidence. Further, the [R]eport was admitted into evidence
       per a stipulation by the Commonwealth and [trial] counsel, and
       was read into the record by Attorney Marshall. During the [PCRA]
       [H]earing on this matter, Attorney Marshall indicated that[,] in his
       opinion, having the [R]eport admitted without [] Elsavage’s
       testimony was actually more favorable to [Rauch]. However, the
       [PCRA] [c]ourt would [] note that pursuant to Pennsylvania case
       law, counsel need not discuss all strategic options with his or her
       client. [See Commonwealth v. Glover, 619 A.2d 1357, 1359
       (Pa. Super. 1993) (stating that “[w]hen reviewing an
       ineffectiveness claim, we do not require the highest caliber of
       criminal defense skills; a minimum level of competency is the
       standard by which we judge counsel’s performance[,]” and that
       “[c]ounsel need not discuss all strategic options with his or her
       client.”)]. Moreover, because the [R]eport of [] Elsavage was
       admitted into evidence, the [PCRA] [c]ourt does not believe that
____________________________________________


3 Specifically, Elsavage, in his capacity as a lab technician with the
Pennsylvania State Police Bureau, Erie Regional Laboratory, prepared the
Report concerning a test he performed on the U.S. currency that the police
had seized from Rauch’s person following his arrest.
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      [Rauch] suffered any real prejudice due to [] Elsavage’s failure to
      testify. Therefore, this claim too is ultimately meritless.

PCRA Court Opinion and Order, 7/21/17, at 4. We agree with the PCRA court’s

rationale and thus affirm on this basis in rejecting Rauch’s second

ineffectiveness claim. See id.; see also Wah, supra.

      In his third issue, Rauch argues that trial counsel were ineffective to the

extent that they failed to object to portions of the District Attorney’s closing

argument. See Brief for Appellant at 16-17. Specifically, Rauch contends

that trial counsel should have objected to the District Attorney’s following

statement (which we will hereinafter refer to as the “guilt statement”): “If

you see it at all, you might say, we don’t think [Rauch] did it, in which case

you say guilty.” Id. at 16 (quoting N.T., 10/18/13, at 247). Rauch also urges

that trial counsel should have objected to the District Attorney’s statement to

the jury that they must judge the case as though Rauch was the only person

in downtown Clearfield on the night of the robbery (hereinafter referred to as

the “Clearfield statement”).      Brief for Appellant at 16; see also N.T.,

10/17/13, at 241. Rauch contends that trial counsel were

      unable to provide any reasonable basis for not objecting to the
      District    Attorney’s   [above-mentioned]         comment[s,]      and
      permitting an extremely misleading and confusing statement[,
      i.e., the guilt statement,] [to] be told to the jury[, which] indicated
      they had no choice but to find [Rauch] guilty[,] and further[,
      concerning the Clearfield statement,] trial counsel permitted the
      District Attorney to misinform the jury on how they should
      evaluate the evidence.

Brief for Appellant at 17.



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       In its Opinion and Order, the PCRA court addressed this ineffectiveness

claim as follows:

       It is first important to note that the jury was instructed by the
       [trial] [c]ourt that the arguments of counsel are not evidence and
       that they should not be considered as such.[4] [See N.T.,
       10/18/13, at 17.] Further, the District Attorney began his closing
       by stating that should he misstate something, the jurors should
       rely on their own memories and judgments. [See N.T., 10/17/13,
       at 194.]

              With regards to the [] aforementioned [guilt] statement, it
       would appear that[,] in context, this was a misstatement amongst
       a much longer closing argument. While the [PCRA] [c]ourt agrees
       that this [guilt] statement, without more, may send a confusing
       message, the [c]ourt does not believe that the District Attorney
       was indicating to the jurors that they had no choice but to find
       [Rauch] guilty. Rather, the jurors would likely have realized the
       error in this statement in light of the other portions of the closing,
       as well as th[e] [trial c]ourt’s instructions to them. Moreover, had
       trial counsel objected to the [guilt] statement, the outcome of the
       proceedings would very likely have been the same, and thus, the
       [PCRA] [c]ourt does not believe that [Rauch] was prejudiced due
       to trial counsel[s’] inaction.

             With regards to the [] aforementioned [Clearfield]
       statement, the [PCRA] [c]ourt must again view the instruction in
       context. The [Clearfield] statement alone may send a misleading
       message; however, after putting the [statement] to the jurors into
       the broader context of the closing, it is readily apparent that the
       [Clearfield statement] is simply a concluding statement to a logical
       argument. Prior to instructing the jury to judge the case as
       though [Rauch] had been the only person in downtown Clearfield
       on the night of the incident, the District Attorney had asked the
       jury to consider various pieces of evidence that, when viewed
____________________________________________


4 It is well established that “[t]he law presumes that the jury will follow the
instructions of the court.” Commonwealth v. Spotz, 18 A.3d 244, 296 (Pa.
2011) (citation omitted); see also Commonwealth v. Harris, 884 A.2d 920,
930-31 (Pa. Super. 2005) (stating that cautionary instruction to jury indicating
statements made during closing argument are not evidence to be considered
by the jury, and the fact that the jury is presumed to follow instructions,
muted any undue prejudice caused by the prosecution’s statements).
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      together, would place [Rauch], and [Rauch] alone, at the scene of
      the crime. Further, during the [PCRA] [H]earing in this matter,
      Attorney Marshall testified that after hearing the [Clearfield]
      statement in context, he likely would not have objected to the
      statement.      Accordingly, the [PCRA] [c]ourt finds Attorney
      Marshall’s failure to object to be reasonable, and does not believe
      that Attorney Marshall’s inaction prejudiced [Rauch] in any way.

PCRA Court Opinion and Order, 7/21/17, at 4-5 (footnote added).

      Our review discloses that the PCRA court’s sound rationale is supported

by the record. Moreover, we agree with its determination that Rauch failed to

meet his burden to prove that trial counsel were ineffective for failing to object

to the District Attorney’s challenged statements. Regardless of whether trial

counsel objected to these statements, there is no reasonable probability that

the outcome of the trial would have been different.          See Wah, supra;

see also Commonwealth v. Bishop, 936 A.2d 1136, 1140 (Pa. Super.

2007) (stating that where, as here, “the evidence of guilt is overwhelming,

counsel’s purported ineffectiveness fails the prejudice prong.”) (citation

omitted). Accordingly, Rauch’s third issue fails.

      In his fourth and final claim, Rauch asserts that he is entitled to relief

based upon the cumulative effect of all of his prior ineffectiveness claims. See

Brief for Appellant at 18.

      The Pennsylvania Supreme Court

      has repeatedly held that no number of failed ineffectiveness
      claims may collectively warrant relief if they fail to do so
      individually. Commonwealth v. Johnson, 600 Pa. 329, 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, 597 Pa. 648, 952 A.2d
      640, 671 (Pa. 2008). When the failure of individual claims is

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      grounded in lack of prejudice, however, then the cumulative
      prejudice from those individual claims may properly be assessed.
      Johnson, 966 A.2d at 532 (citing Commonwealth v. Perry, 537
      Pa. 385, 644 A.2d 705, 709 (Pa. 1994), for the principle that a
      new trial may be awarded due to cumulative prejudice accrued
      through multiple instances of trial counsel’s ineffective
      representation).

Commonwealth v. Koehler, 36 A.3d 121, 161 (Pa. 2012); see also

Commonwealth v. Bomar, 104 A.3d 1179, 1216 (Pa. 2014) (same).

      Here, we conclude that none of Rauch’s ineffectiveness claims are of

arguable merit.   See Sattazahn, supra. Nevertheless, “to the extent we

have individually rejected [Rauch’s] claims of ineffectiveness based on a lack

of prejudice, we now hold that they do not prejudice him when considered in

the aggregate.” Commonwealth v. Smith, 2018 PA Super 60, at *40 (Pa.

Super. 2018); see also Commonwealth v. Busanet, 54 A.3d 35, 75 (Pa.

2012). Accordingly, Rauch’s final issue fails, and we thus affirm the PCRA

court’s Order dismissing Rauch’s first PCRA Petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/15/2018




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