J-S34022-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

ROBERTO MONTALVO

                         Appellant                  No. 1652 MDA 2014


               Appeal from the PCRA Order August 28, 2014
             In the Court of Common Pleas of Lebanon County
            Criminal Division at No(s): CP-38-CR-0001253-2011


BEFORE: BOWES, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.:                         FILED SEPTEMBER 09, 2015

      Roberto Montalvo appeals from the order entered on August 28, 2014,

in the Court of Common Pleas of Lebanon County denying him relief on his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §

9541 et seq. In his underlying trial, Montalvo was convicted of a variety of

crimes associated with the sexual assault of a minor as well as a variety of

drug charges related to the police having discovered 51 grams of cocaine

and 28 grams of marijuana hidden in Montalvo’s apartment.           Montalvo

received an aggregate sentence of ten years, three months to thirty-two

years’ incarceration.    In this timely appeal, Montalvo raises three issues,
J-S34022-15



none of which is meritorious.1 We affirm based upon the sound analysis of

the PCRA court’s 1925(a) opinion, dated November 4, 2014.

        Our standard of review for this matter is well settled.

        This Court's standard of review regarding an order granting or
        denying a petition under the PCRA is whether the determination
        of the PCRA court is supported by the evidence of record and is
        free of legal error. Commonwealth v. Ragan, 592 Pa. 217, 923
        A.2d 1169, 1170 (2007). The PCRA court's findings will not be
        disturbed unless there is no support for the findings in the
        certified record. Commonwealth v. Carr, 768 A.2d 1164, 1166
        (Pa.Super.2001). “However, this Court applies a de novo
        standard of review to the PCRA court's legal conclusions.”
        Commonwealth v. Spotz, 610 Pa. 17, 18 A.3d 244, 259
        (2011).

Com. v. Cristina, 114 A.3d 419, 421 (Pa. Super. 2015)

        The facts and procedural history of this matter are thoroughly

recounted in the PCRA court’s opinion, and do not need to be restated

herein.2 Montalvo has raised three issues in this appeal. They are:

        1) Was trial counsel’s failure to (A) interview proffered character
        witnesses and (B) eyewitnesses, (C) to [sic] seek to impeach the
        complainant, or (D) to [sic] file a pre-trial motion “ineffective
        assistance” such that the trial court erred in failing to make this
        finding?

        2) Did the Court abuse its discretion in finding that the plea offer
        was properly communicated to [Montalvo]?

        3) Was [Montalvo’s] right to trial by jury compromised under
        these circumstances?
____________________________________________


1
    Montalvo’s first issue contained four subparts.
2
 Montalvo was denied relief in his direct appeal at Commonwealth v.
Montalvo, 82 A.3d 467 (Pa. Super. 2013) (unpublished memorandum).



                                           -2-
J-S34022-15



Montalvo’s Brief at 5.

       As noted above, the PCRA court has thoroughly addressed all the

properly preserved claims in its Pa.R.A.P. 1925(a) opinion.   We rely upon

that analysis in denying Montalvo relief.

       We write separately to note that two of the four sub-issues raised in

this appeal were not in the amended PCRA petition filed by counsel nor were

they argued before the PCRA court at the August 28, 2014 PCRA hearing.

The two issues are 1(B) and (D), as listed in the Appellant’s Brief, supra.

Because neither claim was presented to or developed before the PCRA court,

they have been waived.3          See Commonwealth v. Knox, 105 A.3d 1194,

1199 (Pa. 2014) (Issues not raised before the lower court are waived and

cannot be raised for the time on appeal.)

       The parties are directed to attach a copy of the PCRA court’s

November 4, 2014 Pa.R.A.P. 1925(a) opinion in the event of further

proceedings.




____________________________________________


3
  At the beginning of the PCRA hearing, Judge Bradford H. Charles asked
counsel to identify all the issues Montalvo wished to pursue. See N.T. PCRA
Hearing, 8/28/2014, at 4. As noted, these issues were not identified or
argued.



                                           -3-
J-S34022-15



     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/2015




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:   ''··.
                        IN THE COU~T .e,nMMrl<i·~~EAS LEBANON COUNTY
                                      · ·· PE·NN.SYLVANIA
                                                       u A        1\i   Zb   I


                                           lU\'c~MINAL DIVISION
                                            e~~R~:.9f~i?~lS
    COMMONWEAL TH OF                           'LB~:1*'~-~ ,-'· ...
    PENNSYLVANIA
                                                                        NO. CP-38-CR-1253-2011
                   v.
    ROBERTO MONTALVO



    APPEARANCES
            . t.


    Megan Ryland-Tanner, Esquire                              For Commonwealth of Pennsylvania
    DISTRICT ATTORNEY'S OFFICE

    John Gragson, Esquire                                     For Robertc Montalvo


    OPINION BY CHARLES. J .• Novemb!3r 4. 2014


                   Roberto         Montalvo (hereafter        "DEFENDANT")              filed     a Petition       for

    Post-Conviction Relief                 on June 13,        2014, after which we concluded                      that

    his averments were wholly meritless.                                 When we denied           DEFENDANT's

    Petition            In an Order dated August 28, 2014, DEFENDANT appealed                                      our

    decision.             We author today's Opinion in support of our conclusion                                  that

    DEFENDANT received                      effective assistance                 of counsel at his trial and

    throughout               his     proceedings,     and is therefore                not   entitled       to   post-

    conviction relief.




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                                .......
I.   FACTS

     On September 13, 2011, DEFENDANT was charged with multiple

sexual assault and drug charges stemming from incidents that occurred

from June 18, 2011 to.June 21, 2011.                On June 21, 2011, a 17-year old

male (hereafter "A.T.") reported that he was sexually assaulted by a man

he knew as Roberto. He identified Roberto as DEFENDANT.

     A.T. reported that he knew DEFENDANT for approximately three or

four months.     He stated that he went to DEFENDANT's house on either

-June 18 or June 19 of 2011, and stayed with him until June 21, 2011. · He

reported that during the overnight hours of June 20, 2011 into June 21,

2011, DEFENDANT supplied him with beer and cocaine. He claimed that

he   consumed      approximately          12       beers   and   used   cocaine       with

DEFENDANT.

     A.T.     stated that while he was under the influence of alcohol and

drugs, DEFENDANT grabbed him and removed his clothing.                     He reported

that DEFENDANT licked his genitals and anal area, inserted A.T.'s penis

into his mouth, and inserted his penis into A.T.'s                 anus and mouth.

DEFENDANT also directed A.T. to touch his penis with his hand.                    He told

DEFENDANT that he did not want to do these acts, but DEFENDANT told

him to put a pillow over his face and "pretend he was with a woman."

     A.T.'s    parents transported        him to the Good Samaritan Hospital,

where he was inspected by SAFE Nurse Vanessa Smith.                         The nurse

observed tears to A. T's anus.            She performed a rape kit examination




                                          A    2
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(Exh. 28), which indicated      the presence of semen in A.T.'s anus.                         The

parties stipulated that the DNA profile rendered from the rape kit test

reflected a mixture of DNA "made up of [A.T.J             and Roberto Montalvo."

N.T. p. 65.       The stipulation further        set forth that the probability                of

randomly selecting an unrelated individual           other than DEFENDANT who

possessed       the DNA type he examined            was "approximately                   1 in 61

quintillion    from   the Caucasian      population;     approximately           1        in 3.3

sextillion from the African American population;             and 1 in 27 quintillion

from the Hispanic population."        N.T. p. 65; Exh. ·3,         ·•    « :         •    •




       Officers with the Lebanon City Police Department were called to

the hospital in order to interview A.T.            As a result of the Interview, a

search warrant was obtained for DEFENDANT's residence, located at

1421 Willow Street, Apt. 3, Lebanon, PA               17046.    The purpose of the

search warrant was to look for evidence related to the sexual assault

described by A.T.

       The search was conducted by Detective Keith Ulrich and Detective

Jonathan       Hess on June     21,    2011.      In the residence,            the officers

encountered       DEFENDANT and an individual             by the name of Miguel

Lopez.        During the search, the police         located what appeared to be

cocaine, crack-cocaine,      marijuana, and drug paraphernalia.                 Most of the

drugs were found hidden in the ceiling of the apartment:                       Additionally,

small street delivery-sized     baggies were found in the apartment, as well

as a digital scale.     Ultimately.   51 grams of cocaine were located within




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DEFENDANT's       apartment,    with   an estimated        value   between      $4, 1   oo.oo
and $5,000.00.     Officers also retrieved 28 grams of marijuana behind a

ceiling tile.

       Attorney   Elizabeth    Judd (hereafter          "TRIAL     COUNSEL") of the

Lebanon County Public Defender's Office was appointed to represent

DEFENDANT at his trial.         His trial was conducted on February 9 and 1 O

of 2012, after which a jury rendered the following verdicts:

Count                          Offense                              Verdict
   1       Sexual Assault                                            Guilty

   2       Sexual Assault                                            Guilty
           Possession   with   Intent   to Deliver                   Guilty
   3
           Cocaine - In Excess of 1 O Grams
           Conspiracy to Commit Possession with                      Guilty
   4       Intent to Deliver Cocaine - In Excess of
           10 Grams
           Possession    with      Intent         to   Deliver     Not Guilty
   5       Marijuana
           Conspiracy to Commit Possession with                    Not Guilty
   6       Intent to Deliver Marijuana

           Indecent Assault                                          Guilty
   7
           Corruption of Minors                                      Guilty
   8

   9       Possession of Cocaine                                     Guilty

  10       Conspiracy to Possess Cocaine                             Guilty

  11       Possession of Marijuana                                   Guilty

  12       Conspiracy to Possess Marijuana                           Guilty

  13       Possession of Drug Paraphernalia                          Guilty



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            Conspiracy  to Commit            Possession       of     Not Guilty
  14        Drug Paraphernalia

            Furnishing   Alcohol to Minor                              Guilty
  15

        On March 27, 2012, this Court granted               TRIAL COUNSEL's               Motion

for Appointment       of Conflict     Counsel,     and we appointed        Attorney        John

Ferry to represent       DEFENDANT          al his sentencing.       On Ma.y 2, 2012, we

sentenced      DEFENDANT        to an. aggregate        sentence    of 1 O years 3 months

to 32 years       in prison.     Conflict     counsel     for DEFENDANT           filed    Post-

Sentence Motions on May 14, 20·12.               That sarneday,      DEFENDANT filed a

prose    petition with this Court, requesting an extension of time to file his

Post-Sentence       Motions.        Noting that his attorney already filed these

Motions,       we denied       DEFENDANT's         request.        We ultimately          denied

DEFENDANT's Post-Sentence               Motions in an Order dated October 15,

2012.      DEFENDANT appealed to the Superior Court on November 9,

2012, and the Superior Court affirmed our judgment of sentence on June

21, 2013.

        On April 10, 2014, DEFENDANT filed a Petition for Post-Conviction

Relief, alleging ineffective assistance of counsel.                He claimed that TRIAL

COUNSEL:

(1)     Did not meet with DEFENDANT and did not fully discuss his

        case with him;

(2)     Did not advise him of a plea offer and discuss said offer with

        him;
                                                                    Circulated 08/14/2015 03:37 PM




(3)    Denied him the use of an interpreter;

(4)    Denied him the right to help pick a jury in his case;

(5)    Failed to impeach the victim with his prior criminal       record; and

(6)    Ref used to call the following       witnesses,   who were present       at trial

       and willing to be called as character       witnesses:

       (a)      Ms. Ana Cruz

       (b)      Ms. Edme Alvarado

       After    Hearing,    this Court concluded    that DEFENDANT's        averments

were meritless,      and we Issued an ·Orde·r on August 28, 2014 denyrn·g             hls'

Petition.      DEFENDANT       filed this appeal on September   29, 2014.


II.    THE POST-CONV.ICTION RELIEF ACT

       The Post-Conviction         Relief Act (PCRA) provides for an action by

which innocent persons convicted of crimes that they did not commit and

persons serving illegal sentences can obtain relief.            42 Pa.C.S.     § 9542.

The PCRA is the exclusive method by which collateral                  relief may be

obtained in Pennsylvania.           Commonwealth v. Chester, 733 A.2d 1242,

1250 (Pa. 1999).           To be eligible for relief under the PCRA, a defendant

must prove the following elements by a preponderance of the evidence:

(1) He must.prove that he has been convicted of a crime under the laws of

this Commonwealth and that he is serving a sentence of imprisonment,

probation or parole for a crime; (2) he must prove that the conviction

resulted from one of the enumerated errors listed in § 9543(a)(2); (3) he

must prove that the allegation of error has not been previously litigated or


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waived; and (4) he must prove that the failure to litigate the issue prior to

or during trial could not have been the result of any rational, strategic or

tactical decision by counsel. 42 Pa.C.S.        ·§ 9543(a).

       When a claim       of ineffective assistance           of counsel   is raised,

additional principles apply. Trial counsel is presumed to be effective, and

the Defendant bears the burden of proving otherwise. Commonwealth                       v.

Lewis, 708 A.2d 497 (Pa.Super. 1998); Commonwealth                  v. Williams, 570

A.2d 75 (Pa. 1990).        In order for a petiti.one r to establish a claim of

ineffectiveness of counsel, he 'must satisfy a three· prong test set forth by

the Pennsylvania Supreme Court in Commonwealth                   v. Pierce, 527 A.2d

973 (Pa. 1987). The Defendant must demonstrate that: (1) the underlying

claim is of arguable merit; (2) counsel's particular course of conduct did

not have some reasonable basis designed to effectuate the petitioner's

interests;   and   (3)   but   for counsel's      ineffectiveness,    a    reasonable

probability exists that the outcome of the proceeding would have been

different.   Commonwealth· v. Pierce, 527 A.2d 973 (Pa. 1987).                     If the

claim is without arguable merit, the Court's inquiry ends, because counsel

cannot be deemed ineffective        for failing to pursue a meritless issue.

Commonwealth       v. DIN/cola, 751 A.2d 197, 198 (Pa.Super. 2000).


Ill.   DISCUSSION

       We note at the outset that shortly after his first meeting with TRIAL

COUNSEL, DEFENDANT began petitioning this Court without TRIAL

COUNSEL'S .knowledge.          On August 26, 2011, DEFENDANT signed a


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Waiver of Preliminary Hearing.' Despite this waiver, DEFENDANT filed a

pro se Motion on September 15, 2011, which he self-titled "Appeal of

Imposed Waiver of Preliminary Hearing."         Therein, he complained about

TRIAL COUNSEL and lamented that she "took unwarranted advantage of

[DEFENDANT's] Inability       to speak, read,    and understand the English

language".   DEFENDANT remained difficult throughout the proceedings,

and it therefore comes as no surprise to us that he files this rnerltless

appeal today by which he blames his conviction on TRIAL COUNSEL.


      A.     TRIAL COUNSEL did not meet with DEFENDANT and fully
             discuss the case with him.     ·

     DEFENDANT initially argues that TRIAL COUNSEL "never met with

him," and that she did not fully discuss his case with him so that he could

be fully informed of his circumstances and options.        After review of the

documentation and in light of the Hearing testimony, we conclude that

this averment is meritless.

     At his Hearing,   DEFENDANT testified that he met with his lawyer

twice in prison, and discussed the case with. her one time before trial.

He claimed that TRIAL COUNSEL "never              met with me."         However,

DEFENDANT later .testified       that    he met with TRIAL       COUNSEL on·

December 20.     They discussed     what he knew about the victim, other

witnesses, and the plea bargain.         On cross examination,     he explained

that he met with TRIAL COUNSEL "two times."          He testified that the first




                                        fg
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 meeting lasted approximately             15 minutes, and the second meeting lasted

 approximate    5-1 O minutes.

      TRIAL COUNSEL            referenced        her notes and scheduling              record,     and

 explained     that she met wlth DEFENDANT                       four times     before trial.      The

 scheduling    record indicates         that she first met with DEFENDANT                    on July

 18, 2011, at which time he requested                    that bail be reduced.        When TRIAL

 COUNSEL       met with DEFENDANT                on November          20, 2011,     she discussed

 the plea offer with DEFENDANT.                   At their December           20, 2011 meeting,

· DEFENDANT       and TRIAL COUNSEL                 discussed        the trial strategy.        TRIAL

 COUNSEL       first mailed    DEFENDANT             a copy of his discovery            on October

 13, 2011,     and later mailed DEFENDANT                   a letter on December            27, 2011

 with supplemental       discovery.

      While     DEFENDANT's            testimony         was unclear      with    respect     to how

 many times he and TRIAL COUNSEL                         met and discussed        his case, TRIAL

 COUNSEL         based        her      testimony           on      scheduling       records        and

 correspondence,      which         indicate     that     she    met with       DEFENDANT          four

 times and discussed          the pertinent        matters       of his case.      We find TRIAL

 COUNSEL's       chronology     of events to be credible.               We therefore·conclude

 that TRIAL     COUNSEL        allotted        adequate      time to discuss        the case with

 DEFENDANT        and prepare         DEFENDANT'S               case for trial.    DEFENDANT'S

 statements    to the contrary are simply not supported                   by the record.




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         B.   TRIAL COUNSEC did not advise 'DEFENDANT of a plea
              offer and discuss said offer with him.

         DEFENDANT      claims        that   TRIAL      COUNSEL         did      not     advise

DEFENDANT of the possibility of a plea agreement.                       DEFENDANT was

ultimately sentenced to 10 years and 3 months to 32 years in prison.

DEFENDANT claims that he did not realize that there was a plea offer

available to him, pursuant to which he would serve 8 to 20 years in

prison in lieu of taking the matter to trial.                  He argues that TRIAL

COUNSEL did not inform
                    _ .... ... him . of this.• .agreement,
                                                       .   and that
                                                                ,.  she. ... ,....should
                                                                                    ..   . _      .
have explained      all possibilities and circumstances to him so he could

make an informed decision of whether he wanted to take his case to trial

or plead.

         TRIAL COUNSEL        tells     a different story.           According     to TRIAL

COUNSEL, DEFENDANT               claimed that there was no sexual                      contact

between the victim and him, and that he insisted on going to trial even

after .TRIAL COUNSEL explained the plea offer to him.                         After the DNA

test indicated the presence of DEFENDANT's bodily fluids on the victim,

TRIAL COUNSEL "explained at great length what this all meant."                             She

explained the possibility of 10-20 years or more of prison if convicted,

and she also        described     to     him the       possibility     of 8-20     years     of

imprisonment      pursuant     to the plea           agreement.        Despite     the     DNA

evidence, DEFENDANT insisted that he wanted to take the matter to

trial.




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        DEFENDANT's         filings and .testimony       repeatedly              indicate     that TRIAL

COUNSEL         "never" communicated"          the     plea      bargain            to     DEFENDANT.

However,     the exhibits     and correspondence           from TRIAL COUNSEL                            show

that DEFENDANT           was aware      of the plea offer             at least by January                   of

2012.     TRIAL    COUNSEL's         testimony       indicates       that ·She explained                   the

plea    bargain    to    DEFENDANT        as     early     as     her           initial    meeting       with

DEFENDANT         on July 18, 2011.        DEFENDANT's                averments             conflict with

the evidence      before us, and we find that TRIAL ·COUNSEL's                              testimony       to

be cred·ible.
                                                                          .~.
                                                                  • r, •• ,..




        Because     we     conclude     that     DEFENDANT                      was       aware     of     the

Commonwealth's plea offer at least by January of 2012, we determine as

a fact that DEFENDANT chose to reject the Commonwealth's plea offer

and proceed to trial. DEFENDANT's argument therefore has no merit.


        C.      TRIAL · COUNSEL denied                   DEFENDANT the                        use     of    an
                Interpreter.

        DEFENDANT argues that TRIAL COUNSEL denied him the use of an

interpreter during his court proceedings.                  At the Hearing, DEFENDANT

explained that an interpreter was not present at his initial meeting with

TRIAL COUNSEL.             However, he later testified that there was a translator

present. for his second meeting, and he further                                  mentioned that his

translator was present with him at trial.

        We find that, other than the initial meeting at which DEFENDANT

communicated        with     TRIAL COUNSEL               in English,               OEFENDANT was




                                           /\ 11
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afforded      an interpreter       tor altot      his meetings          with TRIAL COUNSEL                and

at all subsequent           court    proceedings,             including       his trial.        Exhibit   E is

instructive     in support of this conclusion.                   On September            12, 2011,· TRIAL

COUNSEL         wrote a two-page              letter to DEFENDANT,                explaining        that she

was "glad        {DEFENDANT]              clarified     [his]     understanding            of the     English

language,"        and      that     she     was       "surprised"         by     this      news     because

DEFENDANT           had written to her twice in English and spoke to her for 15

minutes       in English    at the Preliminary               Hearing.      Additionally,         he "applied

for    Public    Defender         .servrces    · usin·g . an        English      application        ... When   a.   i



Spanish application was made available to [him]."                               She explained that in

the future, she would communicate with him through a translator.

       Additionally,       TRIAL COUNSEL testified that at her initial meeting

with DEFENDANT, TRIAL COUNSEL was clearly under the impression

that    DEFENDANT             spoke        and        understood          English        based      on their

conversation.           However, in the interest                   of caution, TRIAL COUNSEL

provided        DEFENDANT            with      an      interpreter        through         all    subsequent

proceedings at his request.

       We conclude           that TRIAL COUNSEL followed                                through     with her

statement and provided a translator for DEFENDANT. The testimony and

exhibits all clearly reveal that DEFENDANT had a translator                                           present

through       all proceedings             except       for      his initial     meeting         with TRIAL

COUNS~L, during which time TRIAL COUNSEL was under the justified

impression that DEFENDANT spoke sufficient English.                                             DEFENDANT



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                                      .             .. ~    .
himself referred to his translator several times throughout his Hearing.

To conclude that DEFENDANT was "denied the use of an interpreter"

during his court proceedings would totally belie .the record of this case.

As such, we find that this allegation is meritless.


         0.     TRIAL COUNSEL denied DEFENDANT the right to help pick
                 a iury.
                                 .                                    .
     DEFENDANT argues that he was denied the right to help participate

In selecting       the jurors.       He testified          that TRIAL COUNSEL and his

interpreter- told him to ·"be ·quiet" _dl:Jting the voir-;di·,e               process, and 'that

some of the older Hispanic jurors could have helped him at his trial had

they been selected.

     TRIAL COUNSEL is a skilled attorney who has tried hundreds of

criminal cases in Lebanon County on both the prosecutorial and defense

sides.        Accordingly, TRIAL COUNSEL has extensive experience in the

voir dire process.         TRIAL COUNSEL recalled that DEFENDANT was

agitated and combative during the jury selection process, and that she

had to ask him to calm down.                 She feared that his client's agitated

demeanor likely would not have helped him choose a favorable jury.                               We

cannot find TRIAL COUNSEL ineffective                           for telling    DEFENDANT to

essentially "shut up" during th·e voir dire process.

     We conclude that DEFENDANT 'was agitated during jury selection.

To the extent that he may not have actively participated in the voir dire

process, that was his own fault and not the responsibility                              of TRIAL
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COUNSEL.            At     no . time .did        TRIAL     ~OUNSEL        hinder      or prevent

DEFENDANT           from         having    input    into   the   jury     selection      process.

Accordingly,     we ·cannot . find              TRIAL COUNSEL           ineffective     on these

grounds.


      E.       TRIAL COUNSEL failed to impeach the victim with his prior
               criminal record.

      DEFENDANT argues that TRIAL COUNSEL failed to impeach the

victim. by presenting his prior criminal record to the Court.                      DEFENDANT

explains ·that the· victim in this case was found in New York wiUf a gun,

and that this was never reported in New York.                    He also explained that the

victim was guilty of a theft or robbery in Lebanon, and that the victim's

neighbor caught him selling                 drugs on camera.            He argues that this

information would have impeached the credibility of the victim.

      We note that. at no point did DEFENDANT testify that he relayed this

information to TRIAL COUNSEL.                      A criminal background check of the

victim indicated no criminal history.                  TRIAL COUNSEL indicated that she

was not aware of these supposed charges, and that had DEFENDANT

mentioned them, it might have been "helpful."                       Both TRIAL COUNSEL

and DEFENDANT testified that they discussed what DEFENDANT knew

of   the   victim        prior    to   trial,    and     TRIAL   COUNSEL           testified   that

DEFENDANT did not mention these potential charges against the victim.

The mere fact that DEFENDANT may have been aware of past allegedly




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           i
       I

bad   acts      committed      by    the    victini   does    not    create    admissible

impeachment evidence.

      Even _if TRIAL COUNSEL would have presented this Court with the

victim's criminal record to impeach his credibility, we conclude that this

would have had no bearing on the verdict.               The DNA test indicated that

DEFENDANT's         DNA was present inside of the minor                  victim's     anus.

Additionally, pursuant to a valid search. police recovered large amounts

of drugs and drug paraphernalia              from DEFENDANT's home.                We are

confident that this strong evidence would have bsen-sutflctent for the jury

to find DEFENDANT guilty even if the victim's prior bad acts would have

been known and even if they would have been admissible.

      We       conclude     that    TRIAL     COUNSEL         gave    DEFENDANT           the

opportunity to provide information            on the victim's criminal background.

DEFENDANT failed to do so, and this failure does not in,pugn TRIAL

COUNSEL's preparation for trial.                We further conclude that, even if

DEFENDANT          would      have     provided       TRIAL    COUNSEL         with     such

information, it would have had no effect on the outcome of his trial.                      As

such, we cannot conclude that TRIAL COUNSEL was ineffective on these

grounds.


      F.        TRIAL COUNSEL refused to call character witnesses.

      Finally, DEFENDANT argues that he tried to tell TRIAL COUNSEL

the names of the potential character witnesses. but she would not allow

him to do so. DEFENDANT explained in his filings and his testimony that
                                                                              Circulated 08/14/2015 03:37 PM




his character     witnesses. would .. have shown· that DEFENDANT                       was not ·a

sexual      predator.       Because      TRIAL       COUNSEL        failed    to      call     these

witnesses,     DEFENDANT          argues    that she provided · him with ineffective·

assistance     of counsel.

      The     character      witnesses     proffered       by DEFENDANT              would      have

merely communicated           the self-serving       opinion     that DEFENDANT              is not a

sexual   predator.        Such testlmony      is not proper character               evidence     and

would not have been admissible              at trial (.see Pa.R.·E.     404, "[e]vidence of

a person's character-or ·character trait is not admissible to prove- that ·on

a particular occasion the person acted in accordance with the character

or trait").     Additionally, we do not see how testimony suggesting that

Miguel Lopez was only residing with DEFENDANT for a short time would

have affected the outcome of DEFENDANT's case.

      TRIAL       COUNSEL          stated         that     the    information          to      which

DEFENDANT's character witnesses would have testified was improper
                                              .                                 .

and they would not have been able to testify.                     It is for this reason that

she did not exchange contact information with them.                          We believe that

TRIAL COUNSEL came to the appropriate conclusion.                            Accordingly, we

will not declare her to be Ineffective.


IV.   CONCLUSION

      Frankly, DEFENDANT must realize that it was his own actions that

brought him into his prison cell today.                  In addition to everything outlined

above, this Court cannot forget that DEFENDANT'S DNA was found
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within    semen located      on the body of the minor victim.            DEFENDANT'S

current    protestation· that his conviction     was the fault of TRIAL COUNSEL

is both legally    unsupportable    and completely       contrary     to the mountain       of

evidence     that was presented against        him at trial.   DEFENDANT         must now

take responsibility      for his wrongdoings       and stop blaming       others     for his

current incarceration.

         Having determined    that DEFENDANT's          allegations    are meritless,     we

reject his arguments       and conclude   that his appeal should be denied.                 A

Court Order ·will      be entered   on today's     date to 'transmlt      DEFENDANT's

file to the Superior    Court for their review.
