J-S09022-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA
                         Appellee

                    v.

ROBERT C. ELLIOTT, JR.,

                         Appellant              No. 1111 WDA 2014


                 Appeal from the PCRA Order June 5, 2014
          In the Court of Common Pleas of Westmoreland County
            Criminal Division at No(s): CP-65-CR-0001544-2001


COMMONWEALTH OF PENNSYLVANIA,               IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA
                         Appellee

                    v.

ROBERT C. ELLIOTT, JR.,

                         Appellant              No. 1112 WDA 2014


                 Appeal from the PCRA Order June 5, 2014
          In the Court of Common Pleas of Westmoreland County
            Criminal Division at No(s): CP-65-CR-0001543-2001


BEFORE: FORD ELLIOTT, P.J.E., BOWES, and ALLEN, JJ.

MEMORANDUM BY BOWES, J.:                    FILED FEBRUARY 10, 2015

     Robert C. Elliott, Jr., appeals from the order entered June 5, 2014,

denying his PCRA petition. We affirm.

     Appellant pled guilty at two separate case numbers to a host of sex

offenses in 2002.   The court imposed an aggregate sentence of four and
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one-half to nine years imprisonment to be followed by five years probation.

The probationary sentences were imposed at two separate counts of

indecent assault.     Appellant was also determined to be sexually violent

predator. After serving his maximum sentence of nine years, Appellant was

released on probation.     Appellant subsequently violated the terms of his

probation. The court conducted a violation of probation hearing on August

27, 2009. The testimony therein revealed that Appellant was observed by

his probation officer sitting in a park area watching children play at a large

water fountain. According to the probation officer, Appellant admitted that

he was sexually aroused by a young girl that he had fixated on at that park.

The court revoked Appellant’s probation and resentenced him to consecutive

sentences of two and one-half to five years incarceration.

      This Court initially vacated the judgment of sentence and the

Commonwealth     appealed.      Commonwealth v. Elliott,            4   A.3d   180

(Pa.Super.   2010),    appeal   granted,   17   A.3d   331   (Pa.   2011).      In

Commonwealth v. Elliott, 50 A.3d 1284 (Pa. 2012), our Supreme Court

reversed the original panel decision and remanded the case to this Court for

further consideration.   The panel then affirmed Appellant’s direct appeal.

Commonwealth v. Elliott, 63 A.3d 831 (Pa.Super. 2012).                  Thereafter,

Appellant timely filed the underlying pro se PCRA petition.             The court

appointed counsel, who filed an amended petition.             The PCRA court

conducted an evidentiary hearing and denied Appellant’s petition, issuing an




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opinion in support of that denial.             Appellant timely appealed.    Appellant

raises three issues for our review.1

        1. Does the evidence of record support the determination of the
           PCRA court that probation revocation counsel was not
           ineffective in failing to offer evidence that would have
           contradicted the testimony of a Commonwealth witness—the
           Appellant’s state probation officer—and thus would have
           impeached said witness?

        2. Does the record support the determination of the PCRA court
           that probation revocation counsel was not ineffective in failing
           to offer mitigating evidence at the sentencing phase of the
           probation revocation hearing so as to avoid imposition of the
           maximum sentence?

        3. Is the lower court’s ruling that probation revocation counsel
           was not ineffective free of legal error?

Appellant’s brief at 4.

        In conducting review of a PCRA matter, we consider the record “in the

light   most    favorable    to   the    prevailing    party   at   the   PCRA   level.”

Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc).

Our review is limited to the evidence of record and the factual findings of the

PCRA court.      Id.    This Court will afford “great deference to the factual

findings of the PCRA court and will not disturb those findings unless they

have no support in the record.”          Id.     Thus, when a PCRA court’s ruling is

free of legal error and is supported by record evidence, we will not disturb its

____________________________________________


1
  The PCRA court did not direct Appellant to file and serve a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal.



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decision.   Id.   Of course, if the issue pertains to a question of law, “our

standard of review is de novo and our scope of review is plenary.” Id.

      Each of Appellant’s issues challenge the effectiveness of his probation

revocation counsel. We comprehensively discussed the law regarding

ineffectiveness    claims   in   Commonwealth        v.   Stewart,   84   A.3d

701 (Pa.Super. 2013) (en banc). Therein, we opined, “To plead and prove

ineffective assistance of counsel a petitioner must establish: (1) that the

underlying issue has arguable merit; (2) counsel's actions lacked an

objective reasonable basis; and (3) actual prejudice resulted from counsel's

act or failure to act.” Id. at 706. The failure to meet any of these aspects

of the ineffectiveness test results in the claim failing. Id.

      Arguable merit exists when the factual statements are accurate and

“could establish cause for relief.” Id. at 707. Whether the “facts rise to the

level of arguable merit is a legal determination.” Id. In considering whether

counsel acted reasonably, we look to “whether no competent counsel would

have chosen that action or inaction, or, the alternative, not chosen, offered a

significantly greater potential chance of success.” Id. “Counsel's decisions

will be considered reasonable if they effectuated his client's interests. We do

not employ a hindsight analysis in comparing trial counsel's actions with

other efforts he may have taken.” Id. (citations omitted). Lastly, prejudice

exists where “there is a reasonable probability that, but for counsel's errors,

the result of the proceeding would have been different.” Id. This probability


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is sufficient when it “undermines confidence in the outcome of the

proceeding.” Id.

      Appellant argues that revocation counsel was ineffective in failing to

impeach his probation officer.     Specifically, Appellant’s probation officer

testified that Appellant was refused parole on four occasions because he had

failed to successfully complete his sex offender treatment program.

Specifically, Appellant allegedly failed to develop a relapse prevention plan.

While Appellant’s parole was denied four times, Appellant submits that he

did complete the sex offender program offered to him in prison. According

to Appellant, had counsel impeached the probation officer with certificates of

completion it would have called into question the credibility of the entirety of

the officer’s testimony.

      The Commonwealth echoes the PCRA court opinion and replies that

revocation counsel provided a reasonable basis for his inaction and that

Appellant cannot establish prejudice. With respect to the reasonable basis

prong of the ineffectiveness test, revocation counsel testified at the PCRA

hearing that he sought to avoid whether Appellant completed his treatment

because the court might consider him incapable of rehabilitation if he had

undergone treatment and reoffended. Instead, counsel elected to focus on

the fact that Appellant did not actually come into contact with any children

and the area he was in was not a prohibited area. Counsel also accurately

noted that Appellant had not completed sex offender treatment, though he


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did complete treatment in prison.        He pointed out that, at the time of

Appellant’s violation, he was waiting for his sex offender treatment to begin

in the nearby courthouse.

      As to prejudice, the Commonwealth highlights that Appellant admitted

to his probation officer that he was watching a young girl in a bathing suit

and knew that he was in a forbidden area.           The PCRA court found that

Appellant did not establish actual prejudice because Appellant essentially

admitted the truth of the allegations made against him by his probation

officer.

      Instantly, Appellant testified on his own behalf at the revocation

proceeding.   He acknowledged being at the park many times.          Appellant

admitted that, on occasion, there had been kids swimming or running in the

water at the park.      Importantly, Appellant stated that he had told his

probation officer that he was watching a young girl who was approximately

five or six years old. However, he denied informing the officer that he was

sexually aroused by looking at the little girl.

      Revocation    counsel   objected   to   the   Commonwealth’s   questions

regarding whether Appellant’s failure to complete a relapse prevention

program was the reason he served his maximum sentence.               The court

sustained that objection after Appellant stated that he tried to finish a

relapse program.     Appellant maintained at the PCRA hearing that he did




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complete such a program and that he was denied parole because he did not

develop a home plan.

      Counsel’s decision not to highlight that Appellant completed some sex

offender treatment in prison was sound insofar as he was concerned that

such testimony would reflect poorly on Appellant’s ability to be rehabilitated

if determined to have violated his probation.        Counsel’s strategy to argue

that Appellant did not violate his probation by coming into contact with any

minors and was not in a playground, youth recreation center, youth club,

arcade, amusement park, daycare center, or by a school or boy scout or girl

scout meeting did effectuate his client’s interests.          Indeed, although

ultimately unsuccessful, revocation counsel’s strategy led to one initial

successful appeal.

      Moreover, we agree that Appellant cannot establish actual prejudice.

A minor discrepancy between whether Appellant failed to complete a relapse

prevention program or a home plan would not result in such devastating

cross-examination as to completely call into question the probation officer’s

testimony. Appellant himself corroborated much of the critical information.

Specifically, he admitted that he was in the park, that he was watching a

child, and he knew he was not supposed to be in areas where children

congregated. Accordingly, we find that the PCRA court’s ruling is supported

by the evidence of record and free of legal error.

      Order affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/10/2015




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