J-S28018-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                :      IN THE SUPERIOR COURT OF
                                             :           PENNSYLVANIA
                                             :
                v.                           :
                                             :
                                             :
 JACKIE S. KAUFFMAN                          :
                                             :
                       Appellant             :      No. 339 MDA 2020

          Appeal from the PCRA Order Entered February 14, 2020
    In the Court of Common Pleas of Mifflin County Criminal Division at
                     No(s): CP-44-CR-0000653-2016


BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.:                   FILED: AUGUST 28, 2020

     Appellant, Jackie S. Kauffman, appeals from an order entered on

February 14, 2020, which dismissed her petition for collateral relief filed

pursuant   to    the   Post   Conviction   Relief   Act   (“PCRA”),   42   Pa.C.S.A.

§§ 9541-9546. We affirm.

     On a previous appeal, we summarized the facts of this case as follows:

     In 2016, [Appellant’s] nine-year-old daughter (hereinafter,
     [“A.H.”]), a special needs child, resided in a trailer home with
     [Appellant], [her] older brother (who was also a minor), and
     [Appellant’s] paramour, Adam Stidfole (“Stidfole”). Notably,
     Stidfole was a registered sexual offender (related to his sexual
     abuse of children and possession of child pornography in 2006),
     and [Appellant] admittedly knew of Stidfole’s status as such prior
     to cohabitating with him and her minor children. [Appellant] did
     not warn [A.H.] of Stidfole’s status as a sexual offender or of a
     need to protect herself when around him. [Appellant] stated that
     she tried to always arrange for either another adult or [A.H.’s]
     older brother to be in the trailer when [Appellant] was not present.
     Between approximately June 2016 and September 2016,
     [however,] Stidfole repeatedly sexually assaulted [A.H.].
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       [Appellant] testified at her trial that [A.H.] was lying about the
       sexual assaults.

       [In October 2016,] the Commonwealth charged [Appellant] with
       one count of [endangering the welfare of a child.] The matter
       proceeded to a jury trial, at the close of which the jury found
       [Appellant] guilty. On May 11, 2018, the trial court sentenced her
       to serve one to two years in a state correctional facility, plus costs
       and a $250.00 fine. Additionally, the trial court determined that
       [Appellant] was eligible for the Recidivism Risk Reduction
       Incentive program.

Commonwealth v. Kauffman, 2019 WL 2564538, at *1 (Pa. Super. June

21, 2019) (footnotes omitted). This Court affirmed Appellant’s judgment of

sentence on June 21, 2019. Id. Appellant did not seek further review.

       On August 27, 2019, Appellant filed a timely, pro se PCRA petition and

the PCRA court subsequently appointed counsel to represent Appellant in the

proceedings.      On November 14, 2019, court-appointed counsel filed an

amended PCRA petition on Appellant’s behalf.          In her petition, Appellant

claimed that trial counsel was ineffective because he failed to “make a

reasonable closing argument.” Appellant’s Amended PCRA Petition, 11/14/19,

at *2 (un-paginated). The PCRA court held an evidentiary hearing on February

7, 2020, during which trial counsel testified.      Thereafter, on February 14,

2020, the PCRA court denied Appellant’s petition.        Trial Court Opinion and

Order, 2/14/20, at 1. This timely appeal followed.1
____________________________________________


1 Appellant filed a notice of appeal on February 24, 2020. On February 26,
2020, the PCRA court entered an order directing Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b)(1). Appellant timely complied. On March 6, 2020, the PCRA court
issued a statement pursuant to Pa.R.A.P. 1925(a), in which it expressly
incorporated an opinion that accompanied its February 14, 2020 order.

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      Appellant raises the following issue on appeal:

      Did [Appellant] receive effective assistance of counsel when [trial
      counsel] failed to make a reasonable closing argument to the jury?

Appellant’s Brief at 4.

      Our standard of review is as follows:

      Our review of a PCRA court's decision is limited to examining
      whether the PCRA court's findings of fact are supported by the
      record, and whether its conclusions of law are free from legal
      error. We view the findings of the PCRA court and the evidence
      of record in a light most favorable to the prevailing party. … The
      PCRA court's credibility determinations, when supported by the
      record, are binding on this Court; however, we apply a de novo
      standard of review to the PCRA court's legal conclusions.

Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015) (internal quotation

marks and citations omitted).

      The statutory requirements for PCRA relief are set forth in Section 9543,

which states, in relevant part, as follows:

      (a) General rule.--To be eligible for relief under this subchapter,
      the petitioner must plead and prove by a preponderance of the
      evidence all of the following:

         (1) That the petitioner has been convicted of a crime under
         the laws of this Commonwealth and is at the time relief is
         granted:

            (i) currently serving a sentence of imprisonment,
            probation or parole for the crime;

42 Pa.C.S.A. §§ 9543(a)(1)(i).       Pennsylvania “[c]ase law has strictly

interpreted the requirement that [a PCRA] petitioner be currently serving a

sentence for the crime to be eligible for relief.” Commonwealth v. Plunkett,



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151 A.3d 1108, 1109 (Pa. Super. 2016).         Thus, once a PCRA petitioner’s

sentence is completed, she “becomes ineligible for relief, regardless of

whether [she] was serving [her] sentence when [she] filed the petition.”

Commonwealth v. Hart, 911 A.2d 939, 942 (Pa. Super. 2006).

      In the case at bar, it appears that Appellant is ineligible for PCRA relief.

As stated above, on May 11, 2018, the trial court sentenced Appellant to serve

one to two years in a state correctional facility, plus pay costs and a $250.00

fine. While the “record does not indicate the exact date on which Appellant

began serving her sentence” it also does not include any “request for a delayed

sentence.”   Commonwealth v. Auchmuty, 799 A.2d 823, 825-826 (Pa.

Super. 2002).     We therefore assume that Appellant began serving her

sentence on the date of sentencing. Id. Accordingly, it would appear that

Appellant completed her sentence in May 2020 and is no longer “currently

serving a sentence of imprisonment, probation or parole for the crime.” 42

Pa.C.S.A. §§ 9543(a)(1)(i). Thus, despite the fact that Appellant completed

her sentence after she filed her PCRA petition and after the PCRA court

conducted the evidentiary hearing and dismissed her petition, she appears

ineligible for PCRA relief. See also Commonwealth v. Ahlborn, 699 A.2d

718, 720 (Pa. 1997); Hart, supra. Because the record seems to establish

that Appellant is no longer eligible for collateral relief, the dismissal of her

petition is subject to affirmance on procedural grounds.

      Notwithstanding the above, as the record does not expressly confirm

whether Appellant continues to serve her sentence, and thereby remain

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eligible for collateral relief, we shall, out of an abundance of caution, briefly

address the merits of her claims. Herein, Appellant argues that trial counsel

was ineffective.   In particular, Appellant claims that trial counsel’s closing

argument failed to “sharpen or clarify the issues . . . for the jury to decide, []

present [Appellant’s] version of the [entire] case, [] point out the weaknesses

of the Commonwealth’s case, and [] attempt to persuade the jury.”

Appellant’s Brief at 16. Based upon these alleged failures, Appellant asserts

that trial counsel was ineffective because he essentially “abandoned [her] at

the time of the closing argument.” Id. at 24.

      Our Supreme Court previously explained:

      In order to obtain relief under the PCRA based on a claim of
      ineffectiveness of counsel, a PCRA petitioner must satisfy the
      performance and prejudice test set forth in Strickland v.
      Washington, 466 U.S. 668 (1984). In Pennsylvania, we have
      applied the Strickland test by requiring a petitioner to establish
      that: (1) the underlying claim has arguable merit; (2) no
      reasonable basis existed for counsel's action or failure to act; and
      (3) the petitioner suffered prejudice as a result of counsel's error,
      with prejudice measured by whether there is a reasonable
      probability that the result of the proceeding would have been
      different. Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa.
      2001).     Counsel is presumed to have rendered effective
      assistance, and, if a claim fails under any required element of the
      Strickland test, the court may dismiss the claim on that basis.
      Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010).

Commonwealth v. Vandivner, 130 A.3d 676, 680 (Pa. 2015) (parallel

citations omitted).

      Relating to the reasonable basis prong, [g]enerally, 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

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      interests. Courts should not deem counsel's strategy or tactic
      unreasonable unless it can be concluded that an alternative not
      chosen offered a potential for success substantially greater than
      the course actually pursued. Also [a]s a general rule, a lawyer
      should not be held ineffective without first having an opportunity
      to address the accusation in some fashion. … The ultimate focus
      of an ineffectiveness inquiry is always upon counsel, and not upon
      an alleged deficiency in the abstract.

      Relating to the prejudice prong of the ineffectiveness test, the
      PCRA petitioner must demonstrate that there is a reasonable
      probability that, but for counsel's error or omission, the result of
      the proceeding would have been different.

Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012) (internal quotation

marks and citations omitted).

      The right to effective assistance of counsel extends to closing

arguments.    Commonwealth v. Bryant, 855 A.2d 726, 742 (Pa. 2004),

quoting Yarborough v. Gentry, 540 U.S. 1, 5–6 (2003).            However, the

“selection of arguments” by counsel is recognized as a “core exercise of . . .

discretion.” Yarborough, 540 U.S. at 7. As such, an appellate court’s review

of a defense counsel’s summation is highly deferential:

      [C]ounsel has wide latitude in deciding how best to represent a
      client, and deference to counsel's tactical decisions in his closing
      presentation is particularly important because of the broad range
      of legitimate defense strategy at that stage. Closing arguments
      should “sharpen and clarify the issues for resolution by the trier
      of fact,” but which issues to sharpen and how best to clarify them
      are questions with many reasonable answers. Indeed, it might
      sometimes make sense to forgo closing argument altogether.
      Judicial review of a defense attorney's summation is therefore
      highly deferential.

Id. at 5–6 (citations omitted). In recognition of the deference due to counsel,

this Court previously explained that counsel need not discuss every legal

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definition or “legal questions relevant to the case being tried in his

summation.” Commonwealth v. Crawford, 427 A.2d 166, 181 (Pa. Super.

1981).   Instead, counsel may decide, as a matter of strategy, how to

“marshal[] the evidence and [how] to present it, along with the permissible

inferences arising therefrom, to the jury in the best possible light on behalf of

his client.” Id.

      Herein, we conclude that trial counsel had a reasonable basis for

formulating a brief, coherent, closing argument. See N.T. Trial, 3/19/18, at

25-26. At the evidentiary hearing, trial counsel explained that “when he made

his closing[,] the room felt tense” and, as such, he believed that “an emotional

speech was not a viable option.” Trial Court Opinion and Order, 2/14/20, at

2.   Further, trial counsel recognized that, because Appellant continuously

testified that A.H. lied about the sexual assaults, the “case hinged on whether

the jury believed [A.H.] or [Appellant].” Id.; see also N.T. Trial, 3/19/18, at

111, 115, 123-125, 129-130.        Trial counsel, therefore, decided to avoid

“points that [he] knew that the Commonwealth [could counter].”              N.T.

Evidentiary Hearing, 2/7/20, at 11-12. Instead, “he opted to state that it was

up to the jury, [that] they should remove emotion from their deliberation, and

carefully weigh the evidence presented before them.” Trial Court Opinion and

Order, 2/14/20, at 2.     In light of our deference to trial counsel’s tactical

decisions, we conclude that counsel followed a reasonable strategy designed

to effectuate Appellant’s interest in making his closing argument and that




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unchosen alternatives did not offer a potential for success substantially

greater than the course actually pursued.

     Because it appears that Appellant is no longer eligible for collateral relief

and, alternatively, because Appellant’s ineffectiveness claim fails, we affirm

the PCRA court’s order dismissing her PCRA petition.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/28/2020




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