J-S46023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 JOSEPH C. VIGNOLA,                       :
                                          :
                   Appellant              :   No. 1832 EDA 2017

                Appeal from the PCRA Order April 27, 2017
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                    No(s): CP-51-CR-0012131-2008


BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

MEMORANDUM BY SHOGAN, J.:                         FILED OCTOBER 15, 2018

     Appellant, Joseph C. Vignola, appeals from the order denying his petition

filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-

9546. We affirm.

     The PCRA court summarized the relevant facts of this case as follows:

            [Appellant] was enrolled as an Emergency Medical
     Technician student at Jefferson University Hospital in May of 2008.
     After class one day, [Appellant] asked an instructor to explain how
     to slice someone’s throat. A few days later, [Appellant] went onto
     Craig’s List’s ‘erotic services’ on the internet and found the phone
     number of a young prostitute. [Appellant] arranged to meet Ms.
     India Brown at a motel on City Avenue in Philadelphia. Following
     sex an argument ensued and [Appellant] punched the young
     woman in the throat, knocking her to the floor. [Appellant] sat on
     the girl’s chest until she was no longer breathing. Feeling no pulse,
     [Appellant] pulled out a knife and slit the woman’s throat, got
     dressed, stole the money he had paid her and left the motel,
     leaving the young woman for dead. (N.T. 9-20-10, pp. 12-13, 17).
     Motel employees found the unconscious girl and called police
     rescue. Ms. Brown was rushed into surgery at Jefferson Hospital
J-S46023-18


        where, miraculously, the doctors were able to repair her wounds
        and save her life. (N.T. 9-20-10, pp. 13-17).

              Police detectives interviewed [Appellant] the next day
        wherein he claimed that Brown had been attacked by [a third-
        party,] a twenty year old bald black male with facial hair,
        approximately two hundred and forty pounds. (N.T. 9-20-10, pp.
        17-23, 28-29). [Appellant] submitted to a polygraph test the
        following day, which he failed. [Appellant] then gave another
        statement to the detectives, again describing the same black
        male, but in this version, contended that he was in the room but
        [this other man ordered Appellant] to hold the victim on the
        ground while that [other] man slit Brown’s throat. [Appellant]
        further claimed that after the black male left the room he checked
        the victim’s pulse and finding none, left the motel. (N.T. 9-20-10,
        pp. 12-14). Following the second statement, [Appellant’s] parents
        arrived at the police station. After being allowed to consult with
        his parents, [Appellant] gave a third statement confessing that he
        was the sole perpetrator of the attack on the young girl.
        [Appellant] admitted that he discarded the knife a short distance
        away from the motel. Police recovered the used condom from the
        motel room, which matched [Appellant’s] DNA.

              A motion to suppress was heard and denied by the trial court
        and four months later [Appellant] entered an open plea to the
        charges of aggravated assault, unlawful restraint and possession
        of the instruments of a crime.[1]

              The original sentencing hearing was held on November 3,
        2010. The court had reviewed the pre-sentence investigation
        report [(“PSI”)], a mental health evaluation and sentencing
        memoranda from both sides. Ms. Brown provided victim impact
        and the parties stipulated to testimony that less than ten hours
        before the attack, [Appellant] had questioned his paramedic
        instructor [about] breaking and cutting someone’s neck. (N.T. 11-
        3-2010, pp. 6-9, 22-23). The Commonwealth asked for a sentence
        of twelve to twenty-four years because of the heinousness of the
        crime; the fact that [Appellant] planned the crime, including
        asking his paramedic instructor how to inflict the wounds he
        exacted; that he left the young woman on the motel floor to die;
        and his repeatedly lying to the police. [Appellant] presented the
____________________________________________


1   18 Pa.C.S. §§ 2702(a)(1), 2902(a)(1), and 907(a), respectively.

                                           -2-
J-S46023-18


     testimony of a licensed clinical psychologist, Dr. Steven Samuel,
     who diagnosed [Appellant] as having an adjustment disorder with
     symptoms of post-traumatic disorder, which was attributed to
     atrocious events allegedly suffered while attending Valley Forge
     Military Academy. (N.T. 11-3-2010, pp. 65-66, 143-145).
     According to Dr. Samuel, [Appellant] had told him that while at
     school he had been physically and psychologically abused. Dr.
     Samuel recounted the events at school that he believed to be the
     root of [Appellant’s] Post-traumatic Stress Disorder (hereinafter
     referred to as “PTSD”) and mental illness: [Appellant] told the
     doctor that cadets threw him down a flight of stairs and broke his
     ankle which needed a cast; that upon his return to school
     [Appellant] claims that other students put Vaseline on the
     stairway railing preventing [Appellant] from ascending or
     descending the stairway; that they urinated on his person and
     belongings; and that he was beaten so badly that … he needed to
     go to the infirmary several times due to having blood in his urine
     and several other incidents. The one event that [Appellant]
     relayed to Dr. Samuel that was sufficient to be the cause of his
     PTSD was when the cadets threw him out of a third story window.
     (N.T. 11-3-2010, pp. 55-96, 123-126; Dr. Samuel’s report, pp. 6-
     7). The doctor opined that this was the only event that was
     traumatic enough to [Appellant] to cause his PTSD. Dr. Samuel
     ran a battery of tests and came to the diagnoses that [Appellant]
     suffered from ADHD and adjustment disorder, and displayed
     symptoms of PTSD. The doctor stated that although [Appellant]
     did not meet the current diagnosis of PTSD, he had the symptoms
     as of the date of the testing, and that he believed [Appellant] had
     PTSD at the time [of] the slashing of the young woman’s throat,
     and that [Appellant] still had residual symptoms of the disorder.
     (N.T. 11-3-2010, pp. 65-69, 70-77, 106-108). Accordingly, Dr.
     Samuel opined that [Appellant] should not be imprisoned, but sent
     to a mental health program, preferably at Gaudenzia House.

           [Appellant’s] mother testified as to the trauma her son
     endured as a result of the events at Valley Forge, although the
     tales were quite different than what [Appellant] told Dr. Samuel.
     (N.T. 11-3-2010, pp. 55-96). Lastly, at the sentencing hearing,
     [Appellant] read a prepared statement, but was not subjected to
     questioning by either the prosecutor or the sentencing judge.

           The trial court credited [Appellant’s] contention that he
     suffered from PTSD, reiterated that the sentencing guidelines
     were fifty-four to seventy-two months and that the guidelines

                                    -3-
J-S46023-18


       were appropriate. However, the judge sentenced [Appellant] to
       twenty-four to forty-eight months incarceration followed by ten
       years’ probation. (N.T. 11-3-2010, pp. 154-15[9]).

             The Commonwealth filed a motion for reconsideration on
       November 12, 2010, which was granted and a hearing was
       scheduled for March 2, 2011. Counsel stipulated to the
       authenticity of several documents, including [Appellant’s] medical
       records from Bryn Mawr Hospital and Valley Forge Military
       Academy as well as copies of the email communications between
       [Appellant’s] parents and the school. (N.T. 3-2-2011, pp. 2-4).
       The prosecution argued that those documents unequivocally
       proved that [Appellant] and his mother had lied to both the court
       and Dr. Samuel; that [Appellant] had not been thrown out of a
       third-story window, had not been put in a cast, nor had he suffered
       the other allegedly traumatizing events at Valley Forge Military
       Academy he had claimed. As such, the Commonwealth argued,
       the diagnosis that at the time [Appellant] slit Brown’s throat he
       suffered from PTSD and that he still had symptoms of that
       disorder was baseless, ergo the court’s reason for imposing a
       mitigated sentence was negated.

             [Appellant’s] counsel asked to again present the testimony
       of Dr. Samuel but the court continued the matter to review the
       documents presented by the prosecution, remarking that she had
       given [Appellant] four to eight years[2] thinking he suffered from
       PTSD. (N.T. 3-2-2011, pp. 11, 30-31). The matter resumed on
       March 8, 2011. At that time, the prosecutor asked to admit the
       documents, to which defense counsel objected, moving to strike
       them from the record. The objection was overruled, [and] the
       motion [was] denied. (N.T. 3-8-2011, pp. 3-5).[3] The court
____________________________________________


2Although the notes of testimony reveal that the Honorable Renee Cardwell
Hughes did say “four to eight years,” this was a misstatement. As noted above
and reflected in the record, Judge Cardwell Hughes originally sentenced
Appellant to twenty-four to forty-eight months of incarceration followed by ten
years of probation. N.T. 11/3/10, at 159.

3 As this Court noted in our decision on Appellant’s direct appeal, although
Appellant’s counsel ultimately objected, the objection was on the second day
of the hearing, long after the trial court had considered the documents in
question.    Thus, this Court deemed the untimely objection waived.



                                           -4-
J-S46023-18


       disclosed that she had read all of the previously submitted
       documents and provided the parties copies of a report from the
       Department of Corrections, including the results of psychological
       testing of [Appellant].

             Dr. Samuel again testified for the defense, admitting that
       the psychological findings by the Department of Corrections did
       not substantiate a finding of PTSD. Dr. Samuel further conceded
       that [Appellant] did not suffer from PTSD and that his prior
       conclusion was as a result of the information provided to him by
       [Appellant] and his family. The doctor did however testify that he
       had visited [Appellant] while incarcerated as well as reviewed his
       prison medical records and described for the court the lack of any
       counselling or treatment, a lack of any consistent medication and
       essentially that the prison setting [Appellant] was being subjected
       to was not rehabilitation in any sense. (N.T. 3-08-2011, pp. 8-
       13). Additionally, letters from Ms. Caroline Dupont and her son,
       Justin Maverick Kerakov, were submitted concerning abuse the
       son had suffered at Valley Forge Military Academy. Although
       specifically given the opportunity to address the court, [Appellant]
       elected not to say anything.

             The judge vacated the sentences, noted that the guidelines
       called for a sentence of six to twelve years’ incarceration, and
       addressed [Appellant’s] presentation of false and misleading
       information to the court as well as to Dr. Samuel, the particular
       viciousness of the crime, the callousness of leaving the young
       woman with her throat slashed to die as well as [Appellant’s] need
       for rehabilitation. (N.T. 3-8-2011, pp. 29-32). Accordingly, the
       court imposed a sentence of four to sixteen years’ incarceration
       on the charge of aggravated assault, two and one-half to five
       years’ incarceration for possessing the instrument of a crime and
       two and one-half to five years for unlawful restraint, all
       consecutive to one another for an aggregate sentence of nine to
       twenty-six years of incarceration.

PCRA Court Opinion, 9/5/17, at 2-7.


____________________________________________


Commonwealth v. Vignola, 53 A.3d 937, 921 EDA 2011 (Pa. Super. filed
June 22, 2012) (unpublished memorandum at 10), appeal denied, 64 A.3d
632, 360 EAL 2012 (Pa. 2012).


                                           -5-
J-S46023-18


      On March 30, 2011, Appellant filed a timely appeal with this Court. On

June 22, 2012, this Court affirmed Appellant’s judgment of sentence, and the

Pennsylvania Supreme Court denied allowance of appeal on April 10, 2013.

Commonwealth v. Vignola, 53 A.3d 937, 921 EDA 2011 (Pa. Super. filed

June 22, 2012) (unpublished memorandum), appeal denied, 64 A.3d 632, 360

EAL 2012 (Pa. 2013).

      Appellant timely filed a counseled PCRA petition on April 3, 2014. On

August 31, 2015, counsel filed an amended PCRA petition. The PCRA court

held evidentiary hearings on Appellant’s petition in February of 2017. On April

27, 2017, the PCRA court denied Appellant’s PCRA petition. This timely appeal

followed. On appeal, Appellant presents the following issue for this Court’s

consideration: “Whether the Post-Conviction Relief Act Court erred when it

found that sentencing counsel provided effective assistance of counsel during

the resentencing proceedings[?]” Appellant’s Brief at 4.

      When reviewing the propriety of an order denying PCRA relief, we

consider the record in the light most favorable to the prevailing party at the

PCRA level. Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015). This

Court is limited to determining whether the evidence of record supports the

conclusions of the PCRA court and whether the ruling is free of legal error.

Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016).

      When considering an allegation of ineffective assistance of counsel, we

presume that counsel provided effective representation unless the PCRA


                                     -6-
J-S46023-18


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

merit; (2) counsel had no reasonable basis for his action or inaction; and (3)

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

v. Johnson, 179 A.3d 1105, 1114 (Pa. Super. 2018) (citing Commonwealth

v. Pierce, 527 A.2d 973, 975-976 (Pa. 1987)). “An [ineffective-assistance-

of-counsel] claim will fail if the petitioner’s evidence fails to meet any one of

the three prongs.”    Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa.

2013). Because courts must presume that counsel was effective, the burden

of proving ineffectiveness rests with the petitioner. Commonwealth v.

Montalvo, 114 A.3d 401, 410 (Pa. 2015). Additionally, to be eligible for relief

under the PCRA, Appellant must also establish that the issues raised in the

PCRA petition have not been previously litigated or waived. 42 Pa.C.S. §

9543(a)(3). The PCRA court’s findings will not be disturbed unless there is no

support for them in the certified record. Commonwealth v. Lippert, 85 A.3d

1095, 1100 (Pa. Super. 2014).

      Appellant was initially sentenced to a term of twenty-four to forty-eight

months of incarceration, followed by ten years of probation. N.T., 11/3/10, at

154-158. However, the Commonwealth filed a motion for reconsideration of

Appellant’s sentence.     At hearings on the motion, the Commonwealth

introduced evidence that refuted Appellant’s claim of PTSD and established

that Appellant and his mother had lied to Dr. Samuel and the trial court. N.T.,

3/2/11, at 6-30; N.T., 3/8/11, at 6-32.     Although Appellant’s argument on


                                      -7-
J-S46023-18


appeal is vague and conclusory, part of his assertion appears to be that

counsel was ineffective for failing to challenge the admissibility of those

documents.

      However, in his direct appeal, Appellant challenged the admissibility of

the documents evidencing Appellant’s and his mother’s untruthful statements.

After finding Appellant’s challenge to the admissibility of documents waived

for failing to object, this Court provided the following alternative holding:

            Furthermore, the sentencing court found the evidence to be
      within the scope of the post-sentence motion, which specifically
      raised the issue of unsupported leniency. The leniency in question
      was based solely on the evidence regarding hazing and PTSD,
      which was the evidence refuted by the Commonwealth. Moreover,
      Appellant could not claim that he was surprised by the evidence.
      Prior to the hearing, the Commonwealth supplied Appellant’s
      counsel with the documentation and Appellant stipulated to its
      authenticity. Dr. Samuel was present in court on March 2, 2011,
      and Appellant intended to offer his testimony at that time.
      However, the court continued the hearing so that it could review
      the documents, which also afforded the defense the benefit of
      additional time to address their contents.

            The purpose of Pa.R.Crim.P. 720[,] formerly Rule 1410[,] is
      to give the trial court the first opportunity to modify sentence and
      to give the appellate court the benefit of the trial court’s views.
      Commonwealth v. Anderson, 450 A.2d 1011 (Pa.Super. 1982);
      Commonwealth v. Broadie, 489 A.2d 218, 220 (Pa.Super.
      1985). The same rationale applies to Pa.R.Crim.P. 721, which
      requires that the Commonwealth file a post-sentence motion to
      preserve its challenge to a discretionary aspect of a defendant’s
      sentence. Herein, the motion was sufficiently specific to apprise
      Appellant and the court that the Commonwealth believed the
      sentence was too lenient in light of the circumstances surrounding
      commission of the crime. The purpose of the evidentiary hearing
      was to adduce additional facts. To that end, evidence that
      Appellant and his mother provided false information to Dr.
      Samuel, which the psychologist relied upon in rendering his
      opinion that Appellant demonstrated symptoms of PTSD, was

                                      -8-
J-S46023-18


        properly admitted. In addition, evidence that Appellant falsified
        such information was probative as to his character and clearly
        within the scope of the Commonwealth’s motion requesting that
        the court reconsider the guidelines and general sentencing
        principles. We find no abuse of discretion.

Vignola, 53 A.3d 937, 921 EDA 2011 (unpublished memorandum at 10-12).

        Because this Court ruled that the documents supporting the trial court’s

order granting reconsideration were admissible, that decision is law of the

case.    See Commonwealth v. Reed, 971 A.2d 1216, 1220 (Pa. 2009)

(“[W]here a decision rests on two or more grounds equally valid, none may

be relegated to the inferior status of obiter dictum.”). In other words, where

this Court has issued a decision stating that even if the issue was not waived,

it is meritless, that alternate basis is a valid holding and the law of the case.

Id. Therefore, even if Appellant’s counsel had objected, the documents would

have been admitted and considered by the trial court. Thus, Appellant’s claim

is meritless, and it is well settled that counsel cannot be deemed ineffective

for failing to raise a meritless claim. Commonwealth v. Tilley, 595 A.2d

575, 587 (Pa. 1991).

        What remains in Appellant’s brief is a conglomeration of claims that

counsel failed to consult with Appellant prior to resentencing and abandoned

Appellant in order to rehabilitate Dr. Samuel as opposed to advocating for

Appellant.    Appellant’s Brief at 11-30.   After review, we conclude that the




                                      -9-
J-S46023-18


PCRA court thoroughly addressed these claims of error, and we affirm on the

basis of that opinion.4 PCRA Court Opinion, 9/5/17.5

       We expound on the PCRA court’s opinion only to underscore that

Appellant has not established prejudice. The original sentence was imposed

when the trial court believed that there were mitigating factors including

PTSD. After the Commonwealth’s motion for reconsideration was granted, the

trial court admitted new evidence uncovering Appellant’s dishonesty, and

these documents vitiated the earlier mitigation and leniency.    See Vignola,

53 A.3d 937, 921 EDA 2011 (unpublished memorandum at 11) (“The leniency

in question was based solely on the evidence regarding hazing and PTSD,

which was the evidence refuted by the Commonwealth.”).            As discussed

above, this Court concluded that the documents were admissible and were the

sole basis upon which Appellant was resentenced.          There is nothing in

Appellant’s brief that establishes there was any evidence, argument, or

advocacy that could have altered the trial court’s decision once it was revealed

that Appellant and his mother had lied about his PTSD. Accordingly, Appellant

cannot establish prejudice, and therefore, his claim fails. Johnson, 179 A.3d

at 1114.


____________________________________________


4We are cognizant that the sentencing judge, the Honorable Renee Cardwell
Hughes, retired from the bench and that the PCRA court opinion was drafted
by the Honorable J. Scott O’Keefe.

5The parties are directed to attach a copy of the PCRA court’s opinion in the
event of future proceedings.

                                          - 10 -
J-S46023-18


     For the reasons set forth above, we conclude that no relief is due.

Accordingly, we affirm the order denying Appellant’s PCRA petition.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/15/18




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                                 Fm.ST JUDICIAL DISTRICT OF PENNSYLVANIA      Appeals/Post Trfal



              COMMONWEALTH OF PENNSYLVANIA                                        CRIMINAL TRIAL DIVISION


                            v.                                                    1832 EDA 2017


                        JOSEPH VIGNOLA                                            CP-51-CR-0012131-2008
                                                                             I'     -    ----- -- -- -----
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                                                                         '
                                                         OPINION
                                                                         ;              1111 EU /Ill 111111
                                                                         '----- -- ?����50711 -                     --- _.,,
                        Defendant, Joseph Vignola, appeals from the order denying his Post-Conviction Relief Act

              Petition (hereinafter referred to as "PCRA'' for the sake of brevity) pursuant to 42 Pa.C.S. § 9541

              et seq.


              PROCEDURAL HISTORY

                        The defendant was arrested on May 31, 2008, and charged with attempted murder of Ms.

              India Brown and related offenses. Vignola was held for court on all charges after a preliminary

              hearing on September 24, 2008. A motion to suppress the defendant's statement was heard and

              denied on May 25, 2010. Four months later, the defendant entered into an open plea to the charges

              of aggravated assault, unlawful restraint and possessing the instruments of a crime. A lengthy

              sentencing hearing was held on November 3, 2010, at the conclusion of which Mr. Vignola was

              sentenced to an aggregate sentence of two to four years' incarceration, followed by ten years of



                                                                1
probation. The Commonwealth filed a motion for reconsideration of sentence on November 12,

2010, which the trial court granted. Hearings were held on March 2nd and March 81h, 2011, result-

ing in the defendant being sentenced to an aggregate incarceration of nine to twenty-six years.

       Timely appeal was taken to the Superior Court, who affirmed on June 22, 2012. The peti-

tion for allowance of appeal to the Supreme Court wasdenied on April 10, 2013.

       A counseled PCRA petition was filed on April 3, 2014. The undersigned was assigned the

matter on February 11, 2016, and evidentiary hearings were held February 22"d, 2Yd,        rr, and
281h. The petition was dismissed on April 27111 and a notice of appeal filed with the Superior Court

on May 17, 2017, the subject of this opinion.

STANDARD OF REVIEW:


       When reviewing an order denying a PCRA petition, an appellate court looks to whether

the PCRA court's decision is supported by the evidence of record and is free of legal error. Com-

monwealth v Spotz, 624 Pa. 4, 84 A.3d 294 (2014). On questions of law, the standard of review

is de novo and the scope of review is plenary. Commonwealth v Henkel, 90 A.3d 16, 20 (Pa.Super.

2014). The appellate court will grant great deference to the factual findings of the PCRA court

and will not disturb those facts unless they have no support in the record. Commonwealth v

Rykard, 55 A.3d 1177, 1183 (Pa.Super 2012)


FACTS


       The defendant was enrolled as an Emergency Medical Technician student at Jefferson Uni-

versity Hospital in May of 2008. After class one day, Vignola asked an instructor to explain how



                                                2
to slice someone's throat. A few days later, the defendant went onto Craig's List's 'erotic services'

on the internet and found the phone number of a young prostitute. Vignola arranged to meet Ms.

India Brown at a motel on City Avenue in Philadelphia. Following sex an argument ensued and

the defendant punched the young woman in the throat, knocking her to the floor. Vignola sat on

the girl's chest until she was no longer breathing. Feeling no pulse, Vignola pulled out a knife and

slit the woman's throat, got dressed, stole the money he had paid her and left the motel, leaving

the young woman for dead. (N.T. 9-20-10, pp. 12-13, 17). Motel employees found the uncon-

scious girl and called police rescue. Ms. Brown was rushed into surgery at Jefferson Hospital

where, miraculously, the doctors were able to repair her wounds and save her life. (N.T. 9-20-10,

pp. 13-17).

       Police detectives interviewed the defendant the next day wherein he claimed that Brown

had been attacked by a twenty year old bald black male with facial hair, approximately two

hundred and forty pounds. (N.T. 9-20-10, pp. 17-23, 28-29). Vignola submitted to a polygraph

test the following day, which he failed. This defendant then gave another statement to the

detectives, again describing the same black male, but in this version, contended that he was in the

room but ordered by the black male to hold the victim on the ground while that man slit Brown's

throat. Vignola further claimed that after the black male left the room he checked the victim's

pulse and finding none, left the motel. (N.T. 9-20-10, pp. 12-14). Following the second statement,

the defendant's parents arrived at the police station. After being allowed to consult with his par-

ents, Vignola gave a third statement confessing that he was the sole perpetrator of the attack on

the young girl. The defendant admitted that he discarded the knife a short distance away from the

motel. Police recovered the used condom from the motel room, which matched the defendant's


                                                 3
 DNA.


        A motion to suppress was heard and denied by the trial court and four months later the

defendant entered an open plea to the charges of aggravated assault, unlawful restraint and posses-

sion of the instruments of a crime.


        The original sentencing hearing was held on November 3, 2010. The court had reviewed

the pre-sentence investigation report, a mental health evaluation and sentencing memoranda from

both sides. Ms. Brown provided victim impact and the parties stipulated to testimony that less

than ten hours before the attack, the defendant had questioned his paramedic instructor concerning

breaking and cutting someone's neck. (N.T. 11-3-2010, pp. 6-9, 22-23). The Commonwealth

asked for a sentence of twelve to twenty-four years because of the heinousness of the crime; the

fact that the defendant planned the crime, including asking his paramedic instructor how to inflict

the wounds he exacted; that he left the young woman on the motel floor to die; and his repeatedly

lying to the police. The defense presented the testimony of a licensed clinical psychologist, Dr.

Steven Samuel, who diagnosed Vignola as having an adjustment disorder with symptoms of post-

traumatic disorder, which was attributed to atrocious events allegedly suffered while attending

Valley Forge Military Academy. (N.T. 11-3-2010, pp. 65-66, 143-145). According to Dr Samuel,

the defendant had told him that while at school he had been physically and psychologically abused.

Dr. Samuel recounted the events at school that he believed to be the root of Vignola's Post-trau-

matic Stress Disorder (hereinafter referred to as "PTSD") and mental illness: The defendant told

the doctor that cadets threw him down a flight of stairs and broke his ankle which needed a cast;

that upon his return to school the defendant claims that other students put Vaseline on the stairway

railing preventing the defendant from ascending or descending the stairway; that they urinated on

                                                 4
his person and belongings; and that he was beaten so badly that there he needed to go to the infir-

mary several times due to having blood in his urine and several other incidents. The one event

that the defendant relayed to Dr. Samuel that was sufficient to be the cause of his PTSD was when

the cadets threw him out of a third story window. (N.T. 11-3-2010, pp. 55-96, 123-126; Dr. Sam-

uel's report, pp. 6-7). The doctor opined that this was the only event that was traumatic enough to

the defendant to cause his PTSD. Dr. Samuel ran a battery of tests and came to the diagnoses that

Vignola suffered from ADHD and adjustment disorder, and displayed symptoms of PTSD. The

doctor stated that although Vignola did not meet the current diagnosis of PTSD, he had the symp-

toms as of the date of the testing, and that he believed Vignola had PTSD at the time the slashing

of the young woman's throat, and that he still had residual symptoms of the disorder. (N.T. 11-3-

2010, pp. 65-69, 70-77, I 06-108). Accordingly, Dr. Samuel opined that the defendant should not

be imprisoned, but sent to a mental health program, preferably at Gaudenzia House.

       The defendant's mother testified as to the trauma her son endured as a result of the events

at Valley Forge, although the tales were quite different than what the defendant told Dr. Samuel.

(N.T. 11-3-2010, pp. 55-96). Lastly, at the sentencing hearing, the defendant read a prepared

statement, but was not subjected to questioning by either the prosecutor or the sentencing judge.


       The trial court credited the defendant's contention that he suffered from PTSD, reiterated

that the sentencing guidelines were fifty-four to seventy-two months and that the guidelines were

appropriate. However, the judge sentenced Mr. Vignola to twenty-four to forty-eight months in-

carceration followed by ten years' probation. (N.T. l l-J-2010, pp 154-158).


       The Commonwealth filed a motion for reconsideration on November 12, 20 I 0, which was



                                                5
granted and a hearing was scheduled for March 2, 2011. Counsel stipulated to the authenticity of

several documents, including the defendant's medical records from Bryn Mawr Hospital and Val-

ley Forge Military Academy as well as copies of the email communications between the defend-

ant's parents and the school. (N. T. 3-2-2011, pp. 2-4). The prosecution argued that those docu-

ments unequivocally proved that the defendant and his mother had lied to both the court and Dr.

Samuel; that Vignola had not been thrown out of a third-story window, had not been put in a cast,

nor had he suffered the other allegedly traumatizing events at Valley Forge Military Academy he

had claimed. As such, the Commonwealth argued, the diagnosis that at the time Vignola slit

Brown's throat he suffered from PTSD and that he still had symptoms of that disorder was base-

less, ergo the court's reason for imposing a mitigated sentence was negated.

       Defense counsel asked to again present the testimony of Dr. Samuel but the court continued

the matter to review the documents presented by the prosecution, remarking that she had given the

defendant four to eight years thinking he suffered from PTSD. (N.T. 3-2-2011, pp. 11, 30-31).

The matter resumed on March 8, 2011. At that time, the prosecutor asked to admit the documents,

to which defense counsel objected, moving to strike them from the record. The objection was

overruled, the motion denied. (N.T. 3-8-2011, pp. 3-5). The court disclosed that she had read all

of the previously submitted documents and provided the parties copies of a report from the De-

partment of Corrections, including the results of psychological testing of the defendant.

       Dr. Samuel again testified for the defense, admitting that the psychological findings by the

Department of Corrections did not substantiate a finding of PTSD. Dr. Samuel further conceded

that Vignola did not suffer from PTSD and that his prior conclusion was as a result of the infor-

mation provided to him by the defendant and his family. The doctor did however testify that he

                                                 6
 had visited Vignola while incarcerated as well as reviewed his prison medical records and de-          (·


                                                                                                        I
 scribed for the court the lack of any counselling or treatment, a lack of any consistent medication

and essentially that the prison setting the defendant was being subjected to was not rehabilitation     I
in any sense. (N.T. 3-08-2011, pp. 8-13). Additionally, letters from Ms. Caroline Dupont and her

son, Justin Maverick Kerakov, were submitted concerning abuse the son had suffered at Valley

Forge Military Academy. Although specifically given the opportunity to address the court, Mr.

Vignola elected not to say anything.

        The judge vacated the sentences, noted that the guidelines called for a sentence of six to

twelve years' incarceration, and addressed the defendant's presentation of false and misleading

 information to the court as well as to Dr. Samuel, the particular viciousness of the crime, the cal-

 lousness of leaving the young woman with her throat slashed to die as well as the defendant's need

· for rehabilitation. (N.T. 3-8-2011, pp. 29-32). Accordingly, the court imposed a sentence of four

 to sixteen years' incarceration on the charge of aggravated assault, two and one-half to five years'

 incarceration for possessing the instrument of a crime and two and one-half to five years for un-

 lawful restraint, all consecutive to one another for an aggregate sentence of nine to twenty-six

 years of incarceration.

 LEGAL DISCUSSION:


                                  Ineffective Assistance of Counsel

        All of defendant's complaints involve the reconsideration of sentence and counsel's action

 or inaction in response thereto. The law is clear that counsel is presumed effective and a defendant

 claiming ineffective assistance of counsel bears the burden of proving otherwise. Commonwealth


                                                  7
v Fears, 624 Pa. 446, 86 A.3d 795 (2014); Commonwealth v Cross, 535 Pa. 38, 634 A.2d 173

(1993). In order to overcome this presumption, a defendant must meet a three component standard:

First, the underlying claim must have arguable merit. Commonwealth v Rollins, 558 Pa. 532, 542,

738 A.2d 435, 441 (1999); Commonwealth v Travag/ia, 541 Pa. 108, 661 A.2d 352, 356 (1995).

Second, no reasonable basis must exist for counsel's actions or failure to act. In making this de-

termination, the appellate court does not question whether there was a more logical course of action

which counsel could have pursued, but rather did counsel's decision have any reasonable basis.

Commonwealth v Rollins, supra, 558 Pa. at 542, 738 A.2d at 441. Lastly, the defendant must

establish that the he suffered prejudice because of counsel's error, such that there is a reasonable

probability that the outcome of the proceeding would have been different absent such an error.

Commonwealth v. Fears, supra 642 Pa. at 461, 86 A.3d at 804; Commonwealth v Lesko, 609 Pa.

128, 15 A.3d 345, 373-74 (2011) (citing Commonwealth v Pierce, 515 Pa. 153, 527 A.2d 973,

975 (1987)). It is not enough for the defendant to claim that counsel could have taken different

steps, but rather, he must prove that counsel's strategy was "so unreasonable that no competent

lawyer would have chosen it." Commonwealth v Dunbar, 503 Pa. 590, 470 A.2d 74, 77 (1983);

Commonwealth v. Albrecht, 510 Pa. 603, 511 A.2d 764, 775 ( 1986).

                                    Failure to Consult with Client

        Vignola contends that sentencing counsel was ineffective for failing to meet with him prior

to either the March 2nd or March 8th resentencing hearings. There is no claim that counsel failed

to adequately consult with his client prior to the first sentencing, nor any complaint about counsel

filing an appeal after the resentencing. The law is clear that the amount of time an attorney spends

with his client before a hearing is not, by itself, a legitimate basis for inferring counsel's ineffective

                                                    8
assistance. Commonwealth v Harvey, 57 l Pa. 533, 812 A.2d 1190, 1196-97 (2002). In order to

establish ineffective assistance resulting from the failure of an attorney to consult with his client,

the defendant must establish that counsel inexcusably failed to raise issues that, had they been

raised would have entitled the defendant to relief. Commonwealth v Porter, 556 Pa. 301, 728

A.2d 890, 896 ( 1999). The defendant has failed to demonstrate that counsel failed to raise any

issue that would have entitled the defendant to relief In the case sub judtce, counsel was asked

why he didn't discuss with his client the difference between the hospital and school records and

the tale he had told the psychologist, to which counsel responded:


                      "I had a reason for not doing that with Joe Junior. And the
               simple reason is, that I was afraid the Joe Junior would say I'll tes-
               tify.
                        Now, that would have been a disaster. For us because Judge
               Hughes had handled the suppression and throughout the suppres-
               sion, it was quite obvious to her that Joe Junior did not tell the truth,
               that he blatantly lied to any number of people. He lied to his father
               or else his father wouldn't have taken him in to give a statement to
               police.
                      He lied to police. He blamed the crime on a large baldheaded
              black man, which had infuriated Judge Hughes. And he basically
              lied in his statement to police as to a number of things, including
              what went on in the motel room with the young lady.
                     And Judge Hughes knew him to be someone who would lie,
              especially when he thought it was in his own interests and to have
              him go on the stand would have, I think, put her through the ceiling.
                      Q. And you explained all that to Mr. Vignola?
                      A. No, I didn't.
                      Q. You made the judgment that that's what was in his best
              interests?
                      A. I did.
                      (N.T. 2-22-2017, pp. 39-40).



                                                  9
        The law is clear, that a defendant's claim of ineffectiveness cannot be, with the benefit of

hindsight, that counsel should have taken a different approach. Instead, the defendant must prove

that counsel's strategy was "so unreasonable that no competent lawyer would have chosen it."

Commonwealth v Dunbar, 503 Pa. 590, 470 A.2d 74, 77 (1983), Commonwealth v Albrecht, 510

Pa. 603, 511 A.2d 764, 775 (1986). In order to show the required prejudice, the defendant must

prove that, but for counsel's arguably ineffective act, there is a reasonable probability that the

result of the proceedings would have been different. Commonwealth v Neal, 713 A.2d 657, 662

(Pa.Super. 1998). Trial counsel had consulted with his client as well as his parents several times

prior to the original sentencing. Vignola's complaint that counsel did not meet with him between

the time of the original sentence and the resentencing alleges no prejudice. Nor does the defendant

adequately explain what should have been presented that would have resulted in a different result.

During the PCRA hearings, the defendant presented the testimony of Mr. Theodore Daniels, which

was of no aid to the petitioner Mr. Daniel's credibility was sorely lacking and his personnel file

depicting his inappropriate conduct with cadets was somewhat disturbing. The defendant also

testified during these hearings, he was present during the resentencing hearings, and neither he nor

his family asked for copies of any of the documents presented at those hearings. Furthermore,

Vignola admitted that he was given the opportunity to speak at the re-sentencing but that he

refused. (N.T. 2-27-2017, pp. 30-31). Vignola further admitted that throughout the proceedings,

he had consulted with his father, a lawyer as well as his trial lawyer; that between March 2"d and

March 81h he had met with his father; that although his father had been in contact with trial counsel

through the course of the proceedings, that he doesn't recall telling his father that they needed to

contact the lawyer to present evidence contrary to the reports being presented by the


                                                 10
Commonwealth. (N.T. 2-27-2017, pp. 144-160). This court specifically found the testimony of

the defendant to be less than credible.


        Assuming arguendo that counsel was deficient in failing to consult with his client between

the original sentence and the resentencing, Vignola has shown no prejudice as a result of that

failure. See Commonwealth v Green, 2017 Pa.Super. 243, --A.3d-- (2017); Commonwealth v.

Touw, 781 A.2d 1250 (Pa.Super. 2001); Roe v Flores-Ortega, 528 US. 470, 120 S.Ct. 1029, 145

L Ed.2d 985 (2000). There was no credible evidence that counsel failed to produce. There was

no credible documentation neglected by the attorney. Clearly, the defendant had lied to the police

and Dr. Samuel, and his credibility when testifying before this court is extremely suspect. The

defendant suffered no prejudice as a result of any perceived lack of consultation with his counsel

and as such this claim also fails.

                                      Abandonment of Client

       Vignola's main ineffective assistance claim against his sentencing counsel is that his attor-

ney 'abandoned' him in order to protect the reputation of the psychologist engaged by the attorney.

(Statement of Matters Complained of on Appeal, p.I). The defendant bases this accusation in that

his sentencing attorney had no contact with him during the time between the original sentence on

November 3, 2010 and the final sentence, imposed on March 8, 2011. Defense counsel had been

retained since at least October I 0, 2009. (N.T. 2-22-2017, pp. 7-8). On February 28, 2011, defense

counsel received a considerable amount of documentation from the prosecution, including the

defendant's records from Valley Forge Military Academy, from Bryn Mawr Hospital and emails

from both the defendant's mother and father to be presented at the initial reconsideration hearing.



                                                11
(N.T. 2-22-2017, pp. 20-24, 28). Although sentencing counsel stipulated to the authenticity of

those records, he objected to their admission and asked they be stricken from the record         The

objection was overruled. (N.T. 2-22-2017, pp. 24-27).

          Sentencing counsel testified at the first PCRA hearing and the following exchange oc-

curred·

                 "Q. Why did you bring him back for the sentencing on the 2nd of
                 March? Him, being Dr. Samuels?
                 A. Because he was able to say that given the medical records, vari-
                 ous assertions that he made in his report were no longer valid and he
                 was able to say that aside from some anxiety, which Joe Junior suf-
                 fered from, there was no medication.
                 Q. So you brought him back, you brought Dr. Samuels back to show
                 no mitigation?
                 A. I brought him back to clarify the record. I brought him back, so
                 he could save what was left of his reputation.
                 Q. His reputation, Dr. Samuels?
                 A. Yes.'' (N.T. 2-22-2017, p. 33).

          The defendant contends that counsel abandoned his client by failing to authenticate the

documents sent by Valley Forge and Bryn Mawr Hospital as well as not reviewing them with his

client. Counsel explained that it did not make any sense to review them with his client in that he

already had a record of what the defendant had said in the reports from Dr. Samuel. (N.T. 2-22-

2017, pp. 30-31). Counsel further stated that he had been skeptical of the defendant's claims when

he received the original report from Dr. Samuel, prior to the original sentencing. (N.T.2-22-2017,

pp. 30-32). In spite of that, trial counsel again presented the testimony of Dr. Samuel at the recon-

sideration hearing, who testified that Vignola was receiving no treatment although he seriously

needed therapy for a variety of psychiatric problems that were documented long before court, that

the defendant's behavior in prison had been without infraction and that the defendant was a bright


                                                  12
person with a high IQ and that as such much more receptive to treatment and rehabilitation. (N.T.

3-08-2011, pp. 13-16).

       Counsel did not abandon his client. An attorney has a duty to undertake reasonable inves-

tigations or to make decisions that render particular investigations unnecessary. Commonwealth

v Johnson, 600 Pa. 329, 966 A.2d 523 (2009); Commonwealth v Basemore, 560 Pa. 258, 744

A.2d 717 (2000). Trial counsel continued with an investigation, although unsuccessful, to obtain

the testimony of others, specifically Megan Mann, the defendant's girlfriend atthe time, and Adam

Lord, a prior roommate. (N.T. 2-23-2017, pp. 143·155). Counsel's investigator located Ms.

Mann's father. The result was that Vignola had never told Megan, or her family, about being

thrown out of a third story window or any of the other alleged abuses, that none of the Manns

would be willing to testify on the defendant's behalf and if called to the stand their testimony

would be extremely harmful to the defendant. (N.T. 2-23·2017, pp. 148-153).      Counsel's actions

in hiring an investigator to seek other witnesses, consulting with the investigator as to the wit-

nesses' statements, consulting and bringing in the testimony of Dr. Samuel in mitigation all show

decisively that counsel did not abandon his client. Accordingly this claim is without merit.

                              Failure to Ob1ect To Reconsideration

       The defendant further complains that counsel was ineffective in failing to object to the

reconsideration as the prosecutor did not specify any new reasons for resentencing. This issue was

already addressed by the Superior Court on direct appeal.

               "The purpose of Pa.R.Crim.P. 720 is to give the trial court the first
               opportunity to modify sentence and to give the appellate court the
               benefit of the court's views. Commonwealth v. Anderson, 450 A.2d
               IOI I (Pa. Super. 1982); Commonwealth v Broadie, 489 A.2d 218,

                                                13
                                Failure to Obiect to Documentation

        Vignola complains that sentencing counsel was ineffective in failing to object to the intro-

duction of documentation that counsel had received the day before the hearing which the defense

attorney had not reviewed with his client. On March 2, 2011, the Commonwealth presented vari-

ous records including those from Valley Forge Military Academy and Bryn Mawr Hospital. (N.T.

3-02-2011, pp. 2-3). Counsel stipulated to the authenticity of the records only, not to their admis-

sion. (N.T. 3-02-2011, pp. 2-3). On March 8, 2011, the prosecution moved into evidence that

documentation and counsel objected, moving to strike the evidence on the basis that since the

motion to reconsider did not specifically challenge the accuracy of the diagnosis or testimony con-

cerning the defendant's time at the school, that the evidence was outside the confines of the

pleading. (N.T. 3-8-2011, pp. 4-5). The objection was overruled and the motion to strike denied.

As such, defendant's claim that counsel was ineffective in failing to object to the admission of the

exhibits is without merit.


            Failure to Correct Judge as to her Belie(Defendant Su(fered from PTSD

       Vignola further complains that counsel was ineffective in failing to correct the court as to

her belief that the defendant suffered from PTSD. The testimony of Dr. Samuel at the first sen-

tencing hearing was crystal clear. He diagnosed the defendant as suffering from ADHD and ad-

justment disorder, and displaying symptoms of PTSD. The doctor stated that although Vignola

did not meet the current diagnosis of that (PTSD), he had the symptoms as of the date of the testing,

and that he believed Vignola had PTSD at the time the event occurred and that he still had residual

symptoms of the disorder. (N.T. 11-3-2010, pp. 65-69, 70-77, 106-108). The court accepted this


                                                 15
diagnosis. For the defendant to now claim that trial counsel was ineffective in not correcting the

court, for accepting the diagnosis his expert had presented defies all logic. In order to succeed on

an ineffective assistance claim, one of the elements the defendant must establish is that no

reasonable basis existed for counsel's actions or inaction. Commonwealth v. Fears, 624 Pa. 446,

86 A.3d 795 (2014); Commonwealth v Lesko, 609 Pa. 128, 15 A.3d 345 (2011); Commonwealth

v Pierce, 515 Pa. 153, 527 A.2d 973 ( 1978). Vignola' s argument fails completely as to this aspect.

Trial counsel presented an expert psychologist who diagnosed the defendant, based upon what the

defendant had told him. To now claim that counsel was ineffective in getting the court to adopt

his expert's opinion is meritless.


                        Failure to Obiect to lmtial Re-Sentencing Hearing


       Lastly the defendant claims counsel was ineffective in failing to object to the initial resen-

tencing hearing in that he had not met with his client or reviewed any of the records with his client.

This issue has been more than adequately addressed in previous sections of this opinion, which

demonstrate that this claim is also without merit.


       Accordingly, the court acted within its discretion in dismissing the PCRA petition and

should be affirmed.




                                                            BY THE COURT:



DATE: September 5, 2017




                                                  16
