J-S19007-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 TYRONE WIGGINS                          :
                                         :
                   Appellant             :    No. 744 EDA 2017
                                         :

               Appeal from the PCRA Order January 30, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0000591-2010


BEFORE:    SHOGAN, J., NICHOLS, J., and PLATT*, J.

MEMORANDUM BY SHOGAN, J.:                               FILED MAY 11, 2018

      Appellant, Tyrone Wiggins, appeals from the order entered on

January 30, 2017, that denied his petition filed pursuant to the Post Conviction

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

      The PCRA court summarized the procedural history of this case as

follows:

            On December 14, 2010, a jury convicted [Appellant] on
      charges of involuntary deviate sexual intercourse, aggravated
      indecent assault, statutory sexual assault, and corruption of a
      minor. On March 25, 2011, the court sentenced [Appellant] to an
      aggregate term of 17.5 to 35 years of incarceration in a state
      correctional facility. On April 4, 2011, [Appellant] filed a post-
      sentence motion which was denied on September 9, 2011.
      [Appellant] filed a notice of appeal on September 21, 2011. This
      court issued an opinion on January 19, 2012. On September 27,
      2013, the Superior Court affirmed [Appellant’s] judgment of




____________________________________
* Retired Senior Judge assigned to the Superior Court.
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       sentence.[1] On June 28, 2015, [Appellant] filed [a timely] Post
       Conviction Relief Act (PCRA) petition [and counsel filed] an
       amended PCRA petition on October 15, 2015. This court issued a
       notice of intent to dismiss the petition pursuant to Pa.R.Cr.P. 907
       on December 19, 2016. The petition was formally dismissed on
       January 30, 2017. [Appellant] filed a Notice of Appeal on
       February 14, 2017. This court ordered [Appellant] to file a new
       statement of errors complained of on appeal, and he complied on
       March 6, 2017.

PCRA Court Opinion, 8/29/17, at 1.

       On appeal, Appellant raises the following issues for this Court’s

consideration:

       I. Did the PCRA court err in dismissing said petition without an
       evidentiary hearing, where Appellant raised genuine issues of
       material fact as to whether trial counsel was ineffective for failing
       to impeach [the] complaining witness with a prior inconsistent
       statement, specifically an interview she gave to Detective Owens
       of the Philadelphia Police Department Special Victims Unit on
       January 12, 2006?

       II. Did the PCRA court err in dismissing said petition without an
       evidentiary hearing, where Appellant raised genuine issues of
____________________________________________


1    As noted, this Court affirmed Appellant’s judgment of sentence on
September 27, 2013. Commonwealth v. Wiggins, ___A.3d___, 2457 EDA
2011 (Pa. Super. filed September 27, 2013) (unpublished memorandum).
However, counsel was not aware of this court’s decision until November 14,
2013, due to a filing error, and at that juncture, counsel filed a petition for
allowance of appeal nunc pro tunc. Petition for Allowance of Appeal Nunc Pro
Tunc, 184 EM 2013, 11/27/13. Our Supreme Court granted Appellant’s
petition and provided Appellant thirty days in which to file a timely petition for
allowance of appeal nunc pro tunc. Order, 184 EM 2013, 1/28/14. Appellant
filed a timely petition for allowance of appeal nunc pro tunc on February 21,
2014, and the Supreme Court ultimately denied the petition. Order, 79 EAL
2014, 7/2/14. Appellant’s judgment of sentence became final ninety days
later on September 30, 2014. U.S. Sup.Ct. R. 13; 42 Pa.C.S. § 9545(b)(3).
Thus, Appellant had until September 30, 2015, to file a timely PCRA petition.
42 Pa.C.S. § 9545(b)(1). Therefore, Appellant’s June 28, 2015 PCRA petition
was timely.

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      material fact as to whether trial counsel was ineffective for failing
      to challenge the complainant’s testimony that the original sexual
      encounter took place in Fairmount Park when she was twelve
      within a thirty minute time frame?

      III. Did the PCRA court err in dismissing said petition without an
      evidentiary hearing, where Appellant raised genuine issues of
      material fact as to whether trial counsel was ineffective for failing
      to impeach testimony of two witnesses who claimed that the
      complainant reported the sexual assault to them prior to going to
      police, when complainant testified that she did not ever report the
      assault previously?

Appellant’s Brief at 3 (full capitalization omitted).

      Our standard of review is well settled:

            In reviewing the denial of PCRA relief, we examine whether
      the PCRA court’s determination is supported by the record and
      free of legal error. The scope of review is limited to the findings
      of the PCRA court and the evidence of record, viewed in the light
      most favorable to the prevailing party at the trial level. It is well-
      settled that a PCRA court’s credibility determinations are binding
      upon an appellate court so long as they are supported by the
      record. However, this Court reviews the PCRA court’s legal
      conclusions de novo.

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (internal

citations and quotation marks omitted). “We also note that a PCRA petitioner

is not automatically entitled to an evidentiary hearing.” Id. (citation omitted).

“We review the PCRA court’s decision dismissing a petition without a hearing

for an abuse of discretion.” Id. (citation omitted).

      The right to an evidentiary hearing on a post-conviction petition
      is not absolute. It is within the PCRA court’s discretion to decline
      to hold a hearing if the petitioner’s claim is patently frivolous and
      has no support either in the record or other evidence. It is the
      responsibility of the reviewing court on appeal to examine each
      issue raised in the PCRA petition in light of the record certified
      before it in order to determine if the PCRA court erred in its

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      determination that there were no genuine issues of material fact
      in controversy and in denying relief without conducting an
      evidentiary hearing.

Id. (internal citations and quotation marks omitted).

      Additionally, when considering an allegation of ineffective assistance of

counsel, counsel is presumed to have provided effective representation unless

the PCRA petitioner pleads and proves that: (1) the underlying claim is of

arguable merit; (2) counsel had no reasonable basis for his conduct; and (3)

petitioner was prejudiced by counsel’s action or omission. Commonwealth

v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “In order to meet the prejudice prong

of the ineffectiveness standard, a defendant must show that there is a

‘reasonable probability that but for counsel’s unprofessional errors, the result

of the proceeding would have been different.’” Commonwealth v. Reed, 42

A.3d 314, 319 (Pa. Super. 2012). A claim of ineffective assistance of counsel

will fail if the petitioner does not meet any one of the three prongs.

Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013). The burden of

proving ineffectiveness rests with the petitioner. Commonwealth v. Rega,

933 A.2d 997, 1018 (Pa. 2007).

      In his first two issues, Appellant avers that the PCRA court erred in

dismissing his PCRA petition because his trial counsel was ineffective.

Specifically, Appellant alleges that his trial counsel was ineffective for failing

to impeach the victim with statements she made during an interview she gave

to the Special Victims Unit and the victim’s inconsistent statements regarding


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details of the first sexual assault, including where in Fairmount Park the

assault occurred.

      We conclude that Appellant’s claims merit no relief because Appellant

cannot establish that counsel’s failure to impeach the victim caused prejudice.

The record reveals that the victim recounted at trial, in striking detail, the

years that Appellant, who was a Philadelphia police officer and the victim’s

karate instructor, spent grooming her, inserting himself into her family’s life,

gaining their trust, and all the while engaging in a years-long pattern of

involuntary deviate sexual intercourse, aggravated indecent assault, and

statutory sexual assault. N.T., 11/30/10, at 7-94. We are mindful that this

sexual abuse occurred over the course of nine years, beginning when the

victim was twelve years old. As the PCRA court noted:

      Here, it was reasonable to expect that [the victim] would have
      difficulty remembering dates of sexual assaults that occurred
      thirteen years prior to trial. The jury chose to credit [the victim’s]
      version of events and [Appellant] has not established that
      impeachment on the Special Victims interview would have
      changed the outcome of this case. Commonwealth v. Rainey,
      928 A.2d 215, 233 (Pa. 2007) (“If it is clear that Appellant has not
      demonstrated that counsel’s act or omission adversely affected
      the outcome of the proceedings, the claim may be dismissed on
      that basis alone and the court need not first determine whether
      the first and second prongs of the ineffectiveness test have been
      met”).

PCRA Court Opinion, 8/29/17, at 10; see also Commonwealth v. Solano,

129 A.3d 1156, 1172 (Pa. 2015) (where there is a reasonable explanation for

an inconsistency between a prior statement and trial testimony, counsel was

not ineffective for failing to impeach the witness).

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      Moreover, Appellant’s counsel thoroughly cross-examined the victim

and attempted to illustrate inconsistencies in her testimony. N.T., 11/30/10,

at 7-94.   Counsel also highlighted the victim’s conflicting statements and

inconsistencies in his closing remarks to the jury. N.T., 12/9/10, at 20, 45-

60. Nevertheless, the jury found Appellant guilty beyond a reasonable doubt.

We discern no error in the PCRA court’s conclusion that any inconsistency in

the recollection of dates and specific times or locations was reasonable in light

of the duration and frequency of the abuse Appellant inflicted upon the victim.

Accordingly, there is no prejudice as Appellant has failed to establish that

impeachment of the victim with prior inconsistent statements concerning

dates and locations of specific sexual assaults would have resulted in a

different outcome at trial.

      In his third issue on appeal, Appellant avers that trial counsel was

ineffective for failing to impeach the testimony of two witnesses who claimed

that the victim told them about the sexual abuse prior to the victim reporting

the assaults to the police. Appellant’s Brief at 26. Appellant avers that trial

counsel should have impeached the witnesses’ testimony with the victim’s

previous statement that she did not report the assault to anyone prior to going

to the police in January of 2006. Id.

      After review, we agree with the PCRA court’s conclusion that counsel

had a strategic basis for not highlighting this issue: the testimony which




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revealed that the victim informed two confidants about the abuse corroborates

the victim’s testimony. As the PCRA court noted:

             The fact that [the victim] had told her friends about the
      history of sexual assaults prior to reporting it to the police
      strengthens her testimony.           The testimony from the two
      Commonwealth witnesses established that [the victim] had
      confided in close friends about the sexual assaults …. This lent
      credibility to [the victim’s] claim that the sexual assaults did occur
      and were not merely fabricated as an act of revenge on
      [Appellant] for attempting to sabotage [the victim’s career].
      Instead of emphasizing this damaging point, trial counsel argued
      that [the victim’s] two friends were biased in his closing argument.
      N.T., 12/9/2010, at 36. Trial counsel was not ineffective for
      declining to further probe witness testimony that was damaging
      to his client’s case. Commonwealth v. Rivers, 786 A.2d 923, 930
      (Pa. 2001) (counsel will not be deemed ineffective for pursuing a
      particular strategy as long as the course chosen was reasonable).
      Because trial counsel’s strategy was in his client’s best interests,
      [Appellant’s] claim is meritless.

PCRA Court Opinion, 8/29/17, at 12. After review, we conclude that counsel

had a reasonable basis for not pursuing this line of questioning, and Appellant

is entitled to no relief.

      For the reasons set forth above, we discern no error of law or abuse of

discretion in the PCRA court denying Appellant’s petition without a hearing.

Accordingly, we affirm.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/11/18




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