J-S85036-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

RALPH HERBERT DEEP, JR.

                          Appellant                  No. 1149 WDA 2017


        Appeal from the Judgment of Sentence Entered July 7, 2017
          In the Court of Common Pleas of Westmoreland County
             Criminal Division at No: CP-65-CR-0005035-2014


BEFORE: BOWES, PANELLA, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                            FILED APRIL 16, 2018

      Appellant, Ralph Herbert Deep, Jr., appeals from the July 7, 2017

judgment of sentence imposing an aggregate two to four years of

incarceration for aggravated assault and related offenses. We affirm.

      The trial court’s opinion provides a brief summary of the pertinent facts:

            The charges in this case arose out of an investigation of
      [Appellant] in connection with two incidents that occurred in a
      Trafford neighborhood, in Westmoreland County, on October 11,
      2014. The first incident involved [Appellant] entering the front
      yard of his neighbor’s property holding a rifle and saying that,
      ‘When I find you, I’m going to shoot you.’ The second incident
      involved [Appellant’s] refusal to comply with police officers’
      commands to drop his weapon and he continued to advance
      towards the officers while pumping a shotgun.

Trial Court Opinion, 9/18/17, at 1.

      After Appellant pled guilty and then successfully withdrew his plea, this

case proceeded to a jury trial that occurred on September 12-14, 2016. The
J-S85036-17


jury found Appellant guilty of two counts of aggravated assault, terroristic

threats, institutional vandalism, and public drunkenness.1            The trial court

imposed a two to ten year sentence on January 26, 2017, and Appellant filed

post-sentence motions seeking reconsideration of the sentence and alleging

ineffective assistance of counsel.2            In order to obtain review of counsel’s

effectiveness on direct review, Appellant agreed to waive his right to seek

collateral relief. The trial court denied a new trial based on counsel’s alleged

ineffectiveness, but granted reconsideration and imposed a sentence of two

to four years of incarceration on July, 7, 2017. This timely appeal followed.

       Appellant presents the following question for our review:



____________________________________________


1    18 Pa.C.S.A.       §§ 2702(a)(6),         2706(a)(3),   3307(a)(3),   and   5505,
respectively.

2   Appellant did not file his post-sentence motions within ten days of the
January 26, 2017 sentence, as required under Pa.R.Crim.P. 720. Appellant
nonetheless sought and received permission to file post-sentence motions
nunc pro tunc. According to counsel’s handwritten date at the end of his nunc
pro tunc motion, the motion was filed on Monday, February 27, 2017, the
thirtieth day of the appeal period. A handwritten date on the trial court’s order
indicates that the court granted relief on the same date. Another handwritten
notation on the order indicates that the assistant district attorney consented
to the order on February 27, 2017. We observe that the motion and order are
time-stamped March 7, 2017, and the certified docket indicates March 7, 2017
as the date of receipt of Appellant’s motion. Given the agreement among the
prosecution, defense, and trial court that the motion was filed and granted on
February 27, we will treat the March 7 time stamp as the result of a breakdown
in the court’s filing system. Because Appellant sought and received, within
thirty days of the January 26, 2017 judgment of sentence, the trial court’s
express permission to file post sentence motions nunc pro tunc, the court’s
jurisdiction did not lapse. Commonwealth v. Dreves, 839 A.2d 1122, 1128
(Pa. Super. 2003).

                                           -2-
J-S85036-17


             Whether the court below erred in finding that Appellant was
       not entitled to a new trial due to the ineffective assistance of trial
       counsel in the following particulars:

              a. Referring to Appellant as an ‘idiot’ and ‘stupid drunk’ in
                 his closing;

              b. Advising the jury that Appellant’s actions were reckless
                 during his closing;

              c. Encouraging the jury to convict [Appellant] of certain
                 offenses; and

              d. Failing to call Donna DiCesare as a witness.

Appellant’s Brief at 3.       As noted above, Appellant’s ineffective assistance

claims   were    the    subject of a       hearing before   the   trial court.   In

Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), our Supreme Court

held that a defendant can obtain review of claims of ineffective assistance of

counsel on direct appeal if he executes a waiver of his subsequent right to

seek relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-46. Appellant requested direct review of his ineffective assistance

claims because of his short sentence.3 The Holmes Court acknowledged short

____________________________________________


3   In his brief, Appellant states that he will likely be paroled before the
conclusion of his direct appellate review. Appellant’s Brief at 5 n.1. We remind
Appellant that parolees are eligible for PCRA relief.               42 Pa.C.S.A.
§ 9543(a)(1)(i). Regardless, we will not disturb the trial court’s decision to
accept Appellant’s waiver and conduct a hearing on his ineffective assistance
claims. The trial court explained: “At the time of filing post-sentence motions,
[Appellant] had already served 1½ years [of] incarceration.” Trial Court
Opinion, 9/18/17, at 6. “As [Appellant’s] case involves a short sentence, and
he has expressly, knowingly, and voluntarily waived PCRA review, this Court
is of the opinion that [Appellant’s] claims of ineffective assistance of counsel
are appropriately before this court on direct appeal.” Id.



                                           -3-
J-S85036-17


sentences as good cause to request direct review of ineffective assistance

claims. Holmes, 79 A.3d at 578-79. The Holmes Court further specified

that a PCRA waiver must acknowledge (1) the exhaustion of a defendant’s

first PCRA petition and (2) that any further collateral attack is subject to

§ 9545(b) of the PCRA.4 Id. at 579. Appellant’s waiver, attached as “Exhibit

A” to his nunc pro tunc post sentence motion, complies with Holmes. We will

therefore review the merits.

       To succeed on a claim of ineffective assistance of counsel, the defendant

must plead and prove that (1) the underlying claim is of arguable merit; (2)

counsel had no reasonable strategic basis for the action or inaction; and (3)

that but for counsel’s error, the outcome of the proceeding would have been

different. Commonwealth v. Reyes-Rodriguez, 111 A.3d 775 ,780 (Pa.

Super. 2015 (en banc), appeal denied, 123 A.3d 331 (Pa. 2015).                A

petitioner must establish all three prongs of this test, and must discuss all

three factors son appeal. Id. Failure to do so will result in rejection of the

claim. Counsel is presumed effective, and the petitioner bears the burden of

proving otherwise. Id.

              Generally, where matters of strategy and tactics are
       concerned, counsel’s assistance is deemed constitutionally
       effective if he chose a particular course that had some reasonable
       basis designed to effectuate his client’s interests. Trial counsel
____________________________________________


4 Section 9545(b) permits PCRA petitions where the failure to raise the claim
was the result of government interference; is based on newly discovered facts;
or is based on a right newly recognized by the United States or Pennsylvania
Supreme Courts. 42 Pa.C.S.A. § 9545.

                                           -4-
J-S85036-17


       will not be deemed ineffective for failing to assert a claim that
       would not have been beneficial, or for failing to interview or
       present witnesses whose testimony would not have been helpful.
       Nor can a claim of ineffective assistance generally succeed
       through comparing, by hindsight, the trial strategy employed with
       alternatives not pursued. A finding that a chosen strategy lacked
       a reasonable basis is not warranted unless it can be concluded
       that an alternative not chosen offered a potential for success
       substantially greater than the course actually pursued.

Commonwealth v. Howard, 719 A.2d 233, 237 (Pa. 1998) (citations

omitted).

       Upon review of the applicable law, the parties’ briefs, the record, and

the trial court opinion, we conclude that the trial court’s September 18, 2017

opinion accurately addresses paragraphs “a,” “b,” and “c” of Appellant’s

ineffective assistance of counsel argument. In particular, we agree with the

trial court that counsel had a reasonable strategic basis for portraying

Appellant as drunk and foolish. Counsel hoped to develop credibility with the

jury and procure a conviction for recklessly endangering another person

(“REAP”)5 rather than aggravated assault. We reject Appellant’s argument on

the basis of the trial court opinion.

       Next, Appellant argues that counsel was ineffective for failing to call

Donna DiCesare as a witness.

              [R]egarding the failure to procure a witness’s testimony, a
       petitioner must demonstrate: (1) the witness existed; (2) counsel
       was either aware of or should have been aware of the witness’
       existence; (3) the witness was willing and able to cooperate with

____________________________________________


5 18 Pa.C.S.A. § 2705. The jury acquitted Appellant on the REAP charge but
found him guilty of aggravated assault.

                                           -5-
J-S85036-17


      the defense; and (4) the defendant was prejudiced by the absence
      of the witness testimony.

Commonwealth v. Simpson, 66 A.3d 253, 271 (Pa. 2013).

      DiCesare, a witness at the ineffective assistance hearing, would have

testified that police were pressuring her to testify, falsely, that Appellant stole

from DiCesare’s father the weapon he brandished during the offenses. N.T.

Hearing, 5/8/17, at 24.       DiCesare also would have testified that police

threatened her after she refused to offer fabricated testimony.        Id. at 26.

Appellant cites no law in support of this argument, nor does he explain how

DiCesare’s testimony was in any way relevant to his defense against any of

the charges pending against him. We could find Appellant’s argument waived

for this reason alone. Pa.R.A.P. 2119(b); Commonwealth v. Williams, 959

A.2d 1252, 1258 (Pa. Super. 2008).

      In any event, counsel testified that he did not call DiCesare because she

was not a witness to the incidents in question and therefore had no relevant

testimony to offer. N.T. Hearing, 5/8/17, at 7. Furthermore, counsel testified

that it was an argument between Appellant and DiCesare that precipitated his

conduct on the day in question. Id. at 6. Appellant wanted the keys to a car,

and DiCesare refused because Appellant was drunk. Id. Finally, presenting

DiCesare as a character witness would have opened the door to Appellant’s

prior record. Id. at 7-8. In summary, counsel concluded that DiCesare had

nothing relevant to offer, and that in some ways her testimony could be

detrimental to the defense. We further observe that DiCesare testified that

                                       -6-
J-S85036-17


she was romantically involved with Appellant and that, at the time of the

offenses, Appellant was growing marijuana in DiCesare’s basement. Id. at

24, 27.

     Based on all of the foregoing, we conclude that Appellant was not

prejudiced by the absence of DiCesare’s testimony.          She was not an

eyewitness to the charged conduct, her testimony about the police

misconduct, even if credited by the jury, was not directly relevant to any of

the charges Appellant was defending, and her testimony could have opened

the door to unfavorable evidence. The trial court did not error in finding no

merit to Appellant’s argument.

     For all of the foregoing reasons, we conclude that Appellant’s ineffective

assistance of counsel arguments lack merit.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/16/2018




                                    -7-
,,                                                                                     Circulated 03/20/2018 01:43 PM




            IN THE COURT OF COMMON PLEAS OF 'WESTMORELAND COUNTY,
                       PENNSYLVANIA- CRIMINAL DIVISION


     COMMONWEALTH OF PENNSYLVANIA                          )
                                                           )
                            vs.                            )       No.    5035 C 2014
                                                           )
            RALPH HERBERT DEEP, JR.,                       )
                           Defendant.                      )

                                   OPINION AND ORDER OF COURT
                             ISSUED PURSUANI' TO PA.R.A.P. RULE 1925(A}

            The Defendant, Ralph Herbert Deep, Jr., appeals from the Order of Court entered July 7,

     2017 wherein the Court granted in part and denied in part the Defendant's Post-Sentence

     Motions. The Court granted the Defendant's Motion to Modify Sentence and imposed an

     aggregate sentence of two (2) to four (4) years incarceration at a State Correctional Institution.

     The Court denied the Defendant's Motion for Judgment of Acquittal and Motion for a New Trial

     and/or Sentencing based upon allegations of ineffective assistance of counsel. This Opinion is

     issued in compliance with Pa.R.A.P. Rule 1925.

                              FACTUAL AND PROCEDURAL IDSTORY

            The charges in this case arose out of an investigation of the Defendant, Ralph Herbert

     Deep, Jr. in connection with two incidents that occurred in a Trafford neighborhood, in

     Westmoreland County, on October 11, 2014. The :first incident involved Mr. Deep entering the

     front yard of his neighbor's property holding a rifle and saying that, "When I find you, I'rn going

     to shoot you." The second incident involved Mr. Deep's refusal to comply with police officers'

     commands to drop his weapon and be continued to advance towards the officers while pumping

     a shotgun.

            As a result of the investigation, Mr. Deep was charged with the following offenses:


                                                       1
            1. Count One: Criminal Attempt-Assault of Law Enforcement Officer, in violation
               of 18 Pa.C.S.A. § 90l(a);
            2. Count Two: Aggravated Assault, in violation of 18 Pa.C.S.A. § 2702(a)(6);
            3. Count Three: Aggravated Assault, in violation of 18 Pa.C.S.A. § 2702(a)(6);
          · 4. Count Four: Aggravated Assault, in violation of 18 Pa.C.S.A. § 2702(a)(6);
            5. Count Five: Aggravated Assault, in violation of 18 Pa.C.S.A. § 2702(a)(6);
            6. Count Six: Terroristic Threats-Cause Serious Public inconvenience, in violation
               of 18 Pa.C.S.A. § 2706(a)(3);                        ·
            7. Count Seven: Recklessly Endangering Another Person, in violation of 18
               Pa.C.S.A. § 2705;
            8. Count Eight: Institutional Vandalism of an Educational Facility, in violation of
               18 Pa.C.S.A. § 3307(a)(3); and
            9. Count Nine: Public Drunkenness and Similar Misconduct, in violation of 18
               Pa.C.S.A. § 5505.

       On September 12-14, 2016, Mr. Deep proceeded to a jury trial before this Court and was

found guilty at Count Two: Aggravated Assault, Count Three: Aggravated Assault, Count Six:

Terroristic Threats, Count Eight: Institutional Vandalism, and Count Nine: Public Drunkenness

and Similar Misconduct.1 Sentencing was deferred pending a Pre-Sentence Investigation. On

January 26, 2017, Mr. Deep was sentenced as follows: at Count Two, Mr. Deep was sentenced

to a term of incarceration of two (2) to ten (10) years at the DOC; at Count Three, Mr. Deep was

sentenced to a term of incarceration of two (2) to ten (10) years concurrent to Count Two; at

Count Six, Mr. Deep was sentenced to a term of one (1) to two (2) years incarceration concurrent

to Count Two; and at Counts Eight and Nine, there was no· further sentence. Mr. Deep was

represented at trial and sentencing by Attorney Brian Aston.

       On February 15, 2017, Attorney Michael DeMatt was appointed to represent Mr. Deep.

On March 9, 2017, Mr. Deep filed Post Sentence Motions Nurre Pro Tune including a Motion to

Modify Sentence, a Motion for Judgment of Acquittal, and a Motion for a New Trial and/or

Sentencing based upon allegations of ineffective assistance of counsel. On May 8, 2017 a Post-



1On July 8, 2015, Mr. Deep previously entered a guilty plea to the above-referenced charges;
however, he was subsequently permitted to withdraw his guilt plea and proceed to trial.
                                                 2
Sentence Motions Hearing was conducted before this Court. Mr. Aston, who has been licensed

to practice law in the Commonwealth of Pennsylvania for 22 years, testified relative to his

representation of Mr. Deep at Trial. (Post Sentence Motions "PSM" 5/8/17; 4).

       Mr. Aston testified that the theory of the case that he intended to present at trial was that

"[Mr. Deep] didn't intend to cause problems to anybody that day." (PSM; 5). He further testified

that "[Mr. Deep] was extremely intoxicated" and "Mr. Deep had basically put himself more in

danger than [he] did anybody else." (PSM; 5). Mr. Aston testified that he attempted to focus the

jury's attention "on Mr. Deep and not so much on the feelings of the officer and/or neighbors

that were involved in the incident." (PSM; 5).

       During the hearing, Mr. Aston testified that he and Mr. Deep's fiance, Donna DiCesare

talked about her testifying on Mr. Deep's behalf at trial; however, Ms. Di Cesare was never called

as a witness at trial or during sentencing. (PSM; 6-7). When asked why he did not call her as a

witness in either of those proceedings, Mr. Aston testified

           Because she had already left the residence when the incident involving the
           police occurred, and so we were focused mostly on that particular moment
           in time ... I don't believe that she would've been able to add or take away
           anything in reference to what occurred.

            (PSM; 7).


        Mr. Aston testified that he did not call Ms. DiCesare as a character witness because, ifhe

did so, Mr. Deep's prior criminal record would have been admissible. (PSM; 7-8). Further, Mr.

Aston testified that he did not call Ms. Di Cesare as a witness at sentencing because "we had

inundated the Court with quite a number of letters of support" of individuals that Mr. Deep had

met through the years" and "I didn't believe that her testimony would have made any

difference." (PSM; 8).


                                                  3
       When questioned why he referred to Mr. Deep as an "idiot" and "stupid drunk" in his

closing argument, Mr. Aston testified that he was trying to "paint this picture that Mr. Deep,

through consumption of alcohol and poor decisions, had really placed himself in peril and not the

police officers." (PSM; 10-11). Further, Mr. Aston testified that he advised the jury that Mr.
                                                                               I

Deep' s actions were "reckless" during his closing argument because he was "trying to show that

[Mr. Deep's] actions weren't intentional, it wasn't a conscious decision." (PSM; 12). Mr. Aston

testified that "through consumption of alcohol and very poor decisions that day, [Mr. Deep] put

himself more at risk than anybody else." (PSM; 12-13).

       When questioned why he encouraged the jury to find Mr. Deep guilty of Recklessly

Endangering Another Person, he stated that "the guideline range is probably low enough either

for probation and/or a time served type sentence, instead of the 5-and-a-half to 30 years that [Mr.

Deep] had previously been sentenced to under this case." (PSM; 14). Mr. Aston indicated that

he and Mr. Deep had previously discussed this strategy. (PSM; 14). Additionally, Mr. Aston

agreed with the Commonwealth's rationale that by encouraging the jury to find Mr. Deep       guilty
of Recklessly Endangering Another Person and characterizing Mr. Deep's actions as "reckless",

he was essentially attempting to sway the jury away from a conviction of Aggravated Assault

and he maintained credibility with the jury as he argued for. them to find Mr. Deep guilty of a

less serious offense. (PSM; 19-20).

       At the conclusion of the hearing, the Court took the case under advisement and ordered

the parties to submit briefs in support of their respective positions. Mr. Deep filed a Brief in

Support of Post-Sentence Motions on or about June 8, 2017. On July 7, 2017, this Court granted

Mr. Deep's Motion to Modify Sentence and, in consideration of the efforts made by Mr. Deep to




                                                  4
address his issues pertaining to sobriety, the Court reduced Mr. Deep's original sentence to an

aggregate sentence of two (2) to four (4) years incarceration at a State Correctional Institution.

       The Court denied the Defendant's Motion for Judgment of Acquittal and Motion for a

New Trial based upon allegations of ineffective assistance of counsel. On August 3, 2017, Mr.

Deep filed a Notice of Appeal to the Pennsylvania Superior Court. On August 11, 2017, this

Court entered an Order of Court directing Mr. Deep to file a Concise Statement of Errors

Complained of on Appeal within twenty-one days. On September 12, 2017, this Court received

Mr. Deep's Statement of Matters Complained of on Appeal, which was dated August 28, 2017.

Mr. Deep raises the following issue: (1) Whether the Defendant is entitled to a new trial due to

ineffective assistance of trial counsel in the following particulars:

       a. Referring to the Defendant as an "idiot" and "stupid drunk" in his closing;


       b. Advising the jury that the Defendant's actions were reckless during his closing;


       c. Encouraging the jury to convict the Defendant of certain offenses; and


       d. Failing to call Donna DiCesare as a witness.


       This appeal is before the Pennsylvania Superior Court at 1149 WDA 2017.


                             ISSUE{S} PRESENTED ON APPEAL

       I.      WHETHER THE DEFENDANT IS ENTITLED TO A NEW TRIAL
               BASED UPON ALLEGATIONS OF JNEFFECTIVE ASSISTANCE OF
               TRIAL COUNSEL.

       Mr. Deep's sole allegation of error asserts that he is entitled to a new trial due to

ineffective assistance of trial counsel. "[A]s a general rule, a defendant should wait to raise

claims of ineffective assistance of trial counsel until collateral review. Thus, any ineffectiveness

claim will be waived only after a petitioner has had the opportunity to raise that claim on

                                                   5
collateral review and has failed to avail himself of that opportunity." Commonwealth v. Grant,

813 A.2d 726 (Pa. 2002). There are two exceptions to the general rule. A trial court has

discretion to review ineffective assistance of counsel claims on direct appeal if (1) there are

extraordinary circumstances and immediate consideration will best serve the interests of justice;

and (2) when a defendant seeks to litigate multiple or prolix claims for good cause and it is

accompanied by a waiver ofPCRA review, Commonwealth v. Holmes. 79 A.3d 562 (Pa. 2013).

       In the present case, Mr. Deep was sentenced to a minimum term of two (2) years

incarceration with credit for time served. At the time of filing Post-Sentence Motions, Mr. Deep

had already served 1 Y2 years incarceration. As Mr. Deep's case involves a short sentence, and

as he has expressly, knowingly, and voluntarily waived PCRA review, this Court is of the

opinion that Mr. Deep's claims of ineffective assistance of counsel are appropriately before this

Court on direct appeal.

       "To obtain relief on a claim of ineffective assistance of counsel, Appellant is required to

show that there is merit to the underlying claim; that counsel had no reasonable basis for his

course of conduct; and finally, that there is a reasonable probability that but for the act or

omission in question, the outcome of the proceeding would have been different."

Commonwealth v. Jones, 683 A.2d 1181 (Pa. 1996.) "Generally, trial counsel is presumed to be

effective and the defendant bears the burden of proving otherwise." Id. "Generally, where

matters of strategy and tactics are concerned, counsel's assistance is deemed constitutionally

effective if he chose a particular course that bad some reasonable basis designed to effectuate his

client's interests. [A] claim of ineffective assistance [cannot] generally succeed through

comparing, by hindsight, the trial strategy employed with alternatives not pursued."

Commonwealth v. Howard, 719 A.2d 233 (Pa. 1998).



                                                   6
          In Mr. Deep's Statement of Matters Complained of on Appeal, he alleges that Mr. Aston

was ineffective when he (1) referred to Mr. Deep as an "idiot'' and "stupid drunk" in his closing;

(2) advised the jury that Mr. Deep's actions were "reckless" during his closing; (3) encouraged

the jury to convict Mr. Deep of Recklessly Endangering Another Person, and (4) failed to call

Donna Di Cesare as a witness.

          Upon a thorough review of the record in this case, this Court is of the opinion that Mr.

Deep is not entitled to a new trial for the reasons that trial counsel had a reasonable basis for his

course of conduct and trial counsel's actions were not prejudicial. During the Post-Sentence

Motions Hearing, Mr. Aston testified that he referred to Mr. Deep ·as an "idiot" and "stupid

drunk" in his closing argument because he was trying to paint a picture to the jury that Mr. Deep,

through consumption of alcohol and poor decisions, had placed bimself in peril rather than the

police officers and neighbors involved. Further, Mr. 'Aston testified that he advised the jury that

Mr. Deep's actions were "reckless" during his closing argument because he was trying to show

that Mr. Deep's actions were not "intentional". This is supported by the fact that Mr. Aston

specifically asked for the jury to find Mr. Deep guilty of Recklessly Endangering Another

Person.

          Mr. Aston confirmed that by encouraging the jury to find Mr. Deep guilty ?f Recklessly

Endangering Another Person and characterizing Mr. Deep's actions as "reckless", he was

essentially attempting to sway the jury away from a conviction of Aggravated Assault, which

required a finding that Mr. Deep's actions were "intentional" as opposed to "reckless." Likewise,

Mr. Aston testified that he encouraged the jury to find Mr. Deep guilty of Recklessly

Endangering Another Person for the reason that Mr. Deep would likely receive a lesser sentence




                                                    7
than what was previously imposed. Of note, the jury did not convict Mr. Deep of Recklessly

Endangering Another Person.

       The Court finds that Mr. Aston's actions, albeit unusual, were part of his trial strategy

and in line with the defense's theory that Mr. Deep was more of a harm to hlmselfthan to anyone

else on the date of the incident. Additionally, the Court finds that by presenting a consistent

theory and urging the jury to :find Mr. Deep guilty of a less serious offense, Mr. Aston

maintained credibility with the jury and effectuated Mr. Deep's interests.

       Lastly, Mr. Deep alleges that trial counsel was ineffective when he failed to call Ms.

DiCesear as a witness at trial and during sentencing. "In order to prevail on a claim of,

ineffective assistance of counsel for failure to call a witness, a defendant must prove: (1) that the

witness existed; (2) the witness was available; (3) counsel was informed of the existence of the

witness; (4) the witness was prepared to cooperate and would have testified on the appellant' s

behalf; and (5) the absence of the testimony prejudiced the appellant." Commonwealth v.

Brown, 767 A.2d 576 (Pa. Super. 2001) (quoting Commonwealth v. Fletcher, 750 A.2d 261

(2000)). "Trial counsel will not be deemed ineffective for failing to assert a claim that would not

have been beneficial, or for failing to interview or present witnesses whose testimony would not

have been helpful." Howard, 719 A.2d 233.


        Although this Court has already taken into account Mr. Aston decision to not call Ms.

DiCesare as a witness during sentencing and has accordingly reduced Mr. Deep's maximum

sentence, this Court finds that the absence of Ms. Di Cesare's testimony did not prejudice Mr.

Deep. Ms. DiCesare was not present when the incident occurred and, despite her willingness to

testify at trial, she was not called as a character witness because her testimony could have opened

the door to other unfavorable ·evidence. Additionally, Mr. Aston did not call Ms. Di Cesare as a


                                                   8
witness at sentencing because he had already provided the Court with quite a number ofletters of

support from individuals that Mr. Deep had known, and the Court did consider Mr. Deep's

efforts at sobriety before sentencing him. It is clear from trial counsel's testimony that he had a

reasonable strategic basis for not presenting Ms. DiCesare as a witness during the trial or

sentencing phase and, Mr. Deep was not prejudiced as a result.


       For the foregoing reasons, the issues raised on appeal are meritless, and the Court enters

the following Order:




                                                  9
       IN THE COURT OF COMMON PLEAS OF WESTMORELAND COUNTY,
                  PENNSYLVANIA- CRIMINAL DIVISION

 .
COMMONWEALTH OF PENNSYLVANIA                             )
                                                         )
                        vs.                              )      No.   5035 C 2014
                                                         )
       RALPH HERBERT DEEP, JR.,                          )
                                Defendant.               )

                                        ORDER OF COURT

       AND NOW, to wit, this 18th day of September, 2017, it is hereby ORDERED,

ADJUDGED, and DECREED that the foregoing Opinion shall constitute the Court's brief

statement ofreasons for the July 7, 2017 Order of Court pursuant to Pa. R.A.P. 1925.




ATTEST:


Clerk of Courts

cc:    File
       Jacquelyn Knupp, Esq., Assistant District Attorney
       Michael DeMatt, Esq., Counsel for the Defendant
       Pamela Neiderheiser,Esq., Court Administrator's Office
       Law Clerk




                                                    10
