J-S52021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    NICKALAUS B. STOUTZENBERGER                :
                                               :
                       Appellant               :   No. 944 MDA 2018

               Appeal from the PCRA Order Entered June 5, 2018
     In the Court of Common Pleas of Lancaster County Criminal Division at
                        No(s): CP-36-CR-0002801-2015


BEFORE:      BENDER, P.J.E., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY McLAUGHLIN, J.:                        FILED OCTOBER 29, 2018

        Nickalaus Stoutzenberger appeals from the order entered June 5, 2018,

dismissing his petition for collateral relief filed under the Post Conviction Relief

Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        We derive the following statement of the factual and procedural

background in this matter from the certified record, including the PCRA court’s

comprehensive opinion.         See PCRA Ct. Opinion, filed May 29, 2018.         In

January 2016, following a bench trial, Stoutzenberger was convicted of

involuntary deviate sexual intercourse with a child, as well as two counts of

indecent assault of a person less than 13 years old. 1 In part, the evidence

against Stoutzenberger consisted of testimony from the victim (his sister) and

____________________________________________


* Retired Senior Judge assigned to the Superior Court.

1   Respectively, 18 Pa.C.S.A. §§ 3123(b), 3126(a)(7).
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a printout of an Internet chatroom conversation between Stoutzenberger and

an individual named “Anna,” in which he described a sexual encounter similar

to that alleged by the victim.          In April 2016, the trial court imposed an

aggregate sentence of 16½ to 40 years of incarceration.           Stoutzenberger

timely appealed, and this Court affirmed the judgment of sentence.

Commonwealth v. Stoutzenberger, 168 A.3d 309 (Pa.Super. 2017)

(unpublished memorandum). Stoutzenberger did not seek further appellate

review.

       In July 2017, Stoutzenberger filed pro se a PCRA petition asserting

ineffective assistance of trial counsel. See PCRA Petition, 07/06/2017. The

PCRA court appointed counsel, who thereafter filed a petition to withdraw and

a Turner/Finley letter analyzing Stoutzenberger’s claims and concluding they

were without merit.2 The PCRA court denied counsel’s petition and scheduled

an evidentiary hearing.

       In January 2018, the PCRA court held an evidentiary hearing.            In

relevant part, Stoutzenberger provided testimony asserting that (1) the victim

had a motive to fabricate her allegations against him, (2) the victim fabricated

a claim against him during the investigation that preceded the filing of criminal

charges, and (3)         excerpts from a chat log, admittedly written by




____________________________________________


2 See Commonwealth v. Turner, 544 A.2d 927                          (Pa.   1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988).


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Stoutzenberger, were misleading.           See Notes of Testimony, PCRA Hearing

(N.T. PCRA), 01/25/2018, at 4-23.

         Regarding   the   victim’s    alleged   motive   to   falsely   accuse   him,

Stoutzenberger acknowledged that he could not “remember specifically if

there was a specific incident.”         Id. at 11.   Nevertheless, Stoutzenberger

described an incident in which the victim became “fairly angry” with him. Id.

at 12. According to Stoutzenberger, after he refused to visit with the victim

at their grandmother’s home, he returned to discover that the victim had

“poured baby oil all over my room and ruined a couple of video game

controllers and paperwork and some CDRs that I had next to my Play Station

II with the controllers.” Id.3

         Stoutzenberger also testified that the victim fabricated a specific claim

against him, i.e., that an abusive incident took place at his mother’s store.

Id.    According to Stoutzenberger, the incident could not have happened

because “the store didn’t come into being until after the alleged incident took

place.”      Id. at 11.       However, on cross-examination, Stoutzenberger

acknowledged that the Commonwealth did not charge him for any alleged

incident that occurred at his mother’s store.             Id. at 21-22.      Further,

Stoutzenberger was not sure if he informed trial counsel of this concern. Id.

at 22.




____________________________________________


3   Stoutzenberg lived with his grandmother for several years. Id. at 13.

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      Finally, regarding the excerpts from the chat log, Stoutzenberger

renewed assertions first made during his trial, that a sexual encounter

described therein was fictional. Id. at 7-10. According to Stoutzenberger,

the excerpts lacked proper context, and moreover, trial counsel should have

highlighted inconsistencies between the chat log and the victim’s accusations.

Id. at 7-8, 18-20. On cross-examination, Stoutzenberger acknowledged that

the abbreviated form of the chat log was discussed at trial.       Id. at 23.

Stoutzenberger also conceded that he was unsure whether “the unedited

version exists.” Id.

      Stoutzenberger’s trial counsel also testified at the hearing.   Counsel

could not recall whether Stoutzenberger had voiced concern over the apparent

discrepancy between when his mother had opened a store and when an

alleged incident had occurred there. Id. at 28. Nevertheless, counsel testified

that he would have raised this concern if Stoutzenberger had told him. Id.

      Following briefing by the parties, the PCRA court denied relief.

Stoutzenberger timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement.    In response, the PCRA court directed our attention to its

previously issued opinion.

      Stoutzenberger raises the following issues on appeal:

      [1.] Did the PCRA court err by failing to find that trial counsel
      provided ineffective assistance by failing to adduce evidence from
      [Stoutzenberger] tending to show that the complaining witness
      had a motive to lie?




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      [2.] Did the PCRA court err by failing to find that trial counsel
      provided ineffective assistance tending to show that the
      complaining witness lied to investigators?

      [3.] Did the PCRA court err by failing to find that trial counsel
      provided ineffective assistance by failing to present evidence of
      [Stoutzenberger’s] conversation on a chat log in its entirety, but
      rather allowed the Commonwealth to present only portions of the
      conversation?

Stoutzenberger’s Br. at 4 (unnecessary capitalization omitted).

      We review an order denying a petition under the PCRA to determine

whether the findings of the PCRA court are supported by record evidence and

free of legal error. Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa.

2007). We afford the court’s factual findings deference unless there is no

support for them in the certified record. Commonwealth v. Brown, 48 A.3d

1275, 1277 (Pa.Super. 2012) (citing Commonwealth v. Anderson, 995 A.2d

1184, 1189 (Pa.Super. 2010)).       Further, we may affirm the PCRA court’s

decision on any grounds if the record supports it. See Commonwealth v.

Reed, 107 A.3d 137, 140 (Pa.Super. 2014).

      In each of his issues, Stoutzenberger asserts trial counsel was

ineffective. To be eligible for relief for an ineffectiveness claim, a petitioner

must establish that counsel’s deficient performance “so undermined the truth-

determining process that no reliable adjudication of guilt or innocence could

have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(ii).      We presume counsel is

effective.   Commonwealth v. Cox, 983 A.2d 666, 678 (Pa. 2009).               To

overcome this presumption, a petitioner must establish that: (1) the

underlying claim has arguable merit; (2) counsel lacked a reasonable basis for


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his   act   or   omission;   and   (3)   petitioner    suffered   actual    prejudice.

Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015).                     In order to

establish prejudice, a petitioner must demonstrate “that there is a reasonable

probability that, but for counsel's error or omission, the result of the

proceeding would have been different.”          Commonwealth v. Koehler, 36

A.3d 121, 132 (Pa. 2012). A claim will be denied if the petitioner fails to meet

any one of these prongs. See Commonwealth v. Jarosz, 152 A.3d 344,

350 (Pa.Super. 2016) (citing Commonwealth v. Daniels, 963 A.2d 409, 419

(Pa. 2009)). In particular, it is well settled that “[c]ounsel cannot be deemed

ineffective for failing to pursue a meritless claim.” Commonwealth v. Loner,

836 A.2d 125, 132 (Pa.Super. 2003) (en banc).

      First, Stoutzenberger asserts that trial counsel was ineffective for failing

to adduce evidence tending to show that the victim had a motive to fabricate

the allegations against him.       Stoutzenberger’s Br. at 8.         According to

Stoutzenberger, as inculpatory evidence came primarily from the victim, it

was vital to impeach her testimony.            Id.   He suggests that an incident

described in his PCRA hearing testimony, in which the victim allegedly poured

baby oil all over his room, demonstrated her animosity for him.              Id. at 9.

According to Stoutzenberger, had counsel presented this evidence at trial, the

victim’s credibility would have suffered, and the outcome of the proceeding

would have been different. Id.

      The PCRA court rejected this claim, noting that (1) Stoutzenberger’s

current testimony contradicts statements previously given to police, (2)

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Stoutzenberger failed to establish any temporal relevance to the baby oil

incident, and (3) Stoutzenberger failed to establish that he had informed

counsel of the incident. See PCRA Ct. Opinion at 8. We agree. There is no

apparent relevance to this incident. Even if we assume that the victim at one

time vandalized Stoutzenberger’s room in retribution because he refused to

visit with her, Stoutzenberger has failed to establish any temporal proximity

between this incident and her allegations against him. Further, counsel is not

ineffective for failing to impeach the credibility of a witness for the

Commonwealth, absent some indication that counsel knew or should have

known impeachment evidence exists. See, e.g., Commonwealth v. Bond,

819 A.2d 33, 45-46 (Pa. 2002) (“Counsel cannot be found ineffective for failing

to introduce information uniquely within the knowledge of the defendant and

his family which is not provided to counsel.”).      Thus, this claim is without

merit.

      Second, Stoutzenberger asserts that trial counsel was ineffective for

failing   to   present   evidence   that   the   victim   lied   to   investigators.

Stoutzenberger’s Br. at 9. According to Stoutzenberger, the victim claimed

that he had assaulted her inside a store leased by Stoutzenberger’s mother.

Id. However, Stoutzenberger argues, this allegation was demonstrably false

because his mother did not lease the store until at least three years past the

time frame of the alleged assaults. Id.

      Again, we agree with the PCRA court’s analysis:



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      [I]t must be recognized that the minor victim never testified at
      trial to allegations of sexual abuse as having occurred at the
      mother’s store. To the contrary, during her trial testimony, the
      minor victim testified to three separate instances of sexual abuse
      at locations other than the store of the mother. [Stoutzenberger]
      was never charged with any instance of purported sexual abuse
      alleged to have occurred at the mother’s store. As such, [trial]
      counsel cannot be deemed to be ineffective for failing to introduce
      evidence of other uncharged instances of alleged sexual abuse at
      trial.

PCRA Ct. Opinion at 9 (internal citation to trial testimony omitted).

Accordingly, we conclude that this claim is without merit.

      Finally, Stoutzenberger preserved a claim asserting that trial counsel

was ineffective for failing to present evidence of [Stoutzenberger’s] Internet

chatroom conversation in its entirety, but rather allowed the Commonwealth

to present only portions of the conversation. However, Stoutzenberger has

failed to develop any argument in support of this assertion. See generally

Stoutzenberger’s Br.   Accordingly, we deem the claim waived.       See, e.g.,

Commonwealth v. Spotz, 18 A.3d 244, 282 (Pa. 2011) (concluding

ineffectiveness claim waived where appellant failed to meaningfully discuss

elements of claim); see also Pa.R.A.P. 2119. Absent waiver, we note further

that Stoutzenberger conceded during his testimony at the PCRA hearing that

a complete transcription of the chat log may not exist. Thus, this claim too is

without merit.

      As each of his claims is without merit, Stoutzenberger has failed to

establish that trial counsel was ineffective.     Loner, 836 A.2d at 132.




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Accordingly, we     discern no   error   in the   PCRA court’s dismissal of

Stoutzenberger’s petition. Ragan, 923 A.2d at 1170.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/29/2018




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