J-S38009-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 JERRY LYNN SHOEMAKER                      :
                                           :
                    Appellant              :   No. 716 WDA 2017

              Appeal from the PCRA Order December 15, 2016
   In the Court of Common Pleas of Allegheny County Criminal Division at
                      No(s): CP-02-CR-0015512-2008


BEFORE:    BOWES, J., NICHOLS, J., and STRASSBURGER*, J.

MEMORANDUM BY BOWES, J.:                         FILED NOVEMBER 28, 2018

      Jerry Lynn Shoemaker appeals from the order denying his petition filed

pursuant to the Post-Conviction Relief Act (“PCRA”). We affirm.

      In 2010, a jury convicted Appellant of rape of a child, involuntary deviate

sexual intercourse with a child (“IDSI”), aggravated indecent assault of a

person less than thirteen years old, indecent assault of a person less than

thirteen years old, endangering the welfare of children, and corruption of

minors, all in relation to the sexual abuse of his minor step-daughter, K.B. At

a hearing conducted on September 1, 2010, Appellant was determined to be

a SVP, and was sentenced to the following consecutive terms: ten to twenty

years incarceration for rape; ten to twenty years incarceration for IDSI; and




____________________________________
* Retired Senior Judge assigned to the Superior Court.
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five to ten years incarceration for aggravated indecent assault.1 No further

penalty was imposed on the remaining convictions.           This Court affirmed

Appellant’s judgment of sentence and our Supreme Court denied allowance of

appeal. See Commonwealth v. Shoemaker, 46 A.3d 811 (Pa.Super. 2012)

(unpublished memorandum), appeal denied, 63 A.3d 1246 (Pa. 2012).

       Appellant filed the instant timely PCRA petition. Following an evidentiary

hearing, the PCRA court denied the petition on December 15, 2016. Appellant

filed a timely notice of appeal,2 and a concise statement of errors complained

of on appeal.

       Appellant raises the following issues for our review:

       I.     Did the PCRA court err or abuse its discretion when it denied
              Appellant’s claim of ineffective assistance of counsel where
              trial counsel failed under the Sixth Amendment to
              adequately investigate an alternate theory or motive for
              why allegations of molestation were brought against the
              Appellant?

       II.    Did the PCRA court err or abuse its discretion when it denied
              Appellant’s claim of ineffective assistance of counsel where
              trial counsel failed to present any evidence to dispute the
              Commonwealth’s expert witness at the Sexually Violent
              Predator [(“SVP”)]/Sentencing hearing held on September
              1, 2010?
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1 The sentences imposed on the rape, IDSI and aggravated indecent assault
convictions were mandatory sentences.

2Appellant’s direct appeal counsel filed a notice of appeal and a praecipe for
substitution of counsel. Appellant filed a pro se notice of appeal. The appeal
was dismissed based on confusion as to whether Appellant was represented.
The appeal was reinstated nunc pro tunc, and Appellant was ordered to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b).

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      III.   Did the PCRA court err or abuse its discretion when it denied
             Appellant’s claim of ineffective assistance of counsel where
             trial counsel failed to properly discuss the pre-sentencing
             report with the Appellant and was ill[-]prepared to conduct
             the [SVP] hearing and sentencing?

      IV.    Did the PCRA court err or abuse its discretion when it denied
             Appellant’s claim of ineffective assistance of counsel where
             trial counsel failed to inform the Appellant of an offer for a
             plea made by the assistant district attorney prior to the start
             of trial?

Appellant’s brief at 5 (unnecessary capitalization omitted).

             We review an order dismissing a petition under the PCRA in
      the light most favorable to the prevailing party at the PCRA level.
      This review is limited to the findings of the PCRA court and the
      evidence of record. We will not disturb a PCRA court’s ruling if it
      is supported by evidence of record and is free of legal error. This
      Court may affirm a PCRA court’s decision on any grounds if the
      record supports it. Further, we grant great deference to the
      factual findings of the PCRA court and will not disturb those
      findings unless they have no support in the record. However, we
      afford no such deference to its legal conclusions. Where the
      petitioner raises questions of law, our standard of review is de
      novo and our scope of review plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.Super. 2012) (citations

omitted).

      Additionally, as each of Appellant’s issues involves a claim of

ineffectiveness of counsel, we review the applicable legal principles. When a

petitioner alleges counsel’s ineffectiveness in a PCRA petition, he must prove

by a preponderance of the evidence that his conviction resulted from

ineffective assistance of counsel “which, in the circumstances of the particular

case, so undermined the truth-determining process that no reliable


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adjudication of guilt or innocence could have taken place.”           42 Pa.C.S.

§ 9543(a)(2)(ii). Further, the petitioner must demonstrate:

       (1) that the underlying claim has arguable merit; (2) that no
       reasonable basis existed for counsel’s actions or failure to act; and
       (3) that the petitioner suffered prejudice as a result of counsel’s
       error.    To prove that counsel’s chosen strategy lacked a
       reasonable basis, a petitioner must prove that an alternative not
       chosen offered a potential for success substantially greater than
       the course actually pursued. Regarding the prejudice prong, a
       petitioner must demonstrate that there is a reasonable probability
       that the outcome of the proceedings would have been different
       but for counsel’s action or inaction. Counsel is presumed to be
       effective; accordingly, to succeed on a claim of ineffectiveness[,]
       the petitioner must advance sufficient evidence to overcome this
       presumption.

Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016) (internal

citations and quotation marks omitted). A failure to satisfy any prong of the

test for ineffectiveness will require rejection of the claim. Commonwealth

v. Martin, 5 A.3d 177, 183 (Pa. 2010).

       In his first issue, Appellant contends that counsel was ineffective

because he failed to investigate an alternate theory or motive for why K.B.

made allegations against him. According to Appellant, “[trial counsel] believed

that there was only one [viable defensive] theory involving DNA evidence.”3

Appellant’s brief at 17; see also N.T. PCRA Hearing, 10/6/16, at 51-52


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3 Police recovered an unlaundered pair of Appellant’s boxer shorts on which
they found both Appellant’s and K.B.’s DNA. Counsel pursued a theory that
Appellant’s boxer shorts could have been cross-contaminated with K.B.’s DNA
in the family laundry basket. See N.T. PCRA Hearing, 10/6/16, at 51-55.



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(wherein trial counsel testified that “the DNA doesn’t indicate the [Appellant]

in fact did it, because of cross-contamination. That’s the theory straight up.”).

Appellant points to his own testimony that he “told [counsel] what my theory

was, as to why all of this was happening.” 4 Appellant’s brief at 18 (quoting

N.T. PCRA Hearing, 10/6/16, at 87-88). Appellant faults counsel for his belief

that he could not prove an alternative motive for why K.B. brought the

allegations against the Appellant. Appellant’s brief at 17; see also N.T. PCRA

Hearing, 10/6/16, at 51-52 (wherein counsel testified that “I could never

prove it.”).

       Under Pennsylvania jurisprudence, “[c]ounsel will not be deemed

ineffective where the strategy employed had some reasonable basis designed

to effectuate his or her client’s interests.” Commonwealth v. Perry, 128

A.3d 1285, 1290 (Pa.Super. 2015) (citation omitted).          To establish that

counsel’s chosen strategy lacked a reasonable basis, Appellant must prove

that an alternative not chosen offered a potential for success substantially

greater than the strategy actually pursued. Johnson, supra.

       Here, counsel’s testimony at the evidentiary hearing makes clear his

belief that the strongest theory available to Appellant was that the DNA

evidence was inconclusive due to cross-contamination. The strategy pursued

by counsel had some reasonable basis, as Appellant’s expert testified that


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4While Appellant claims that he provided counsel with an alternate theory, he
does not identify any such alternate theory in his brief.

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transference “was a very real possibility” if Appellant’s boxer shorts were

placed in a laundry basket containing clothes from other family members. See

N.T. Trial, 4/12-14/10, at 313-14. Further, while Appellant faults trial counsel

for not pursuing an alternate theory, Appellant has identified no other

defensive theory which offered a potential for success substantially greater

than the course actually pursued.           See Johnson, supra; see also

Commonwealth v. Wharton, 811 A.2d 978, 986 (Pa. 2002) (“Claims of

ineffective assistance of counsel are not self-proving.”). Therefore, the PCRA

court did not abuse its discretion in denying relief.

      In his second issue, Appellant contends that counsel was ineffective in

failing to present a rebuttal expert to counter the Commonwealth’s expert at

the SVP hearing. He further argues that counsel could not effectively cross-

examine the Commonwealth’s expert without additional evidence to support

a contrary determination.      Appellant asserts that the lack of evidence

presented by counsel at the hearing, coupled with counsel’s advice that

Appellant not participate in the Sexual Offender Assessment Board evaluation,

had no rational strategic basis. According to Appellant, the sentencing court,

having been presented with only the testimony of the Commonwealth’s

expert, had no option but to rule that Appellant is a SVP.

      Initially, we must determine whether Appellant’s second issue is

cognizable under the PCRA.          As the Commonwealth points out, In

Commonwealth v. Masker, 34 A.3d 841 (Pa.Super. 2011), this Court, en


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banc, held that a challenge to the process by which an SVP determination is

made, independent of a challenge to a conviction or sentence, is not

cognizable under the PCRA. Id. at 844-45. In making this determination,

this Court relied on our Supreme Court’s conclusion in Commonwealth v.

Leidig, 956 A.2d 399 (Pa. 2003), and stated:

     To the extent that there was any confusion . . . that the
     registration requirements of Megan’s Law are collateral and not
     direct consequences of a plea or other conviction, we settle the
     issue here: such requirements are collateral consequences.

Masker, supra at 844 (quoting Leidig, supra at 406).

     Since the decision in Masker, however, Megan’s Law III was replaced

with SORNA, which became effective on December 20, 2012.          Moreover,

during the pendency of this appeal, our Supreme Court issued its decision in

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), announcing that

SORNA registration requirements are tantamount to punishment.       As this

Court has explained: “[i]n light of our Supreme Court’s announcement in

Muniz, we are constrained to hold that SORNA’s registration requirements are

no longer merely a collateral consequence, but rather punishment. As such,

the Commonwealth no longer can rely upon Leidig as dispositive.”

Commonwealth v. Hart, 174 A.3d 660, 667 (Pa.Super. 2017). We further

noted that “[a]lthough Leidig is not specifically mentioned by the Muniz

Court, it appears that the Muniz decision impliedly overrules Leidig to the

extent that Leidig determined sex offender registration requirements to be a

collateral consequence.” Id. at 667 n.10. Following the Muniz ruling, the

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Masker/Leidig line of cases no longer supports the conclusion that SORNA

claims are outside the confines of the PCRA. Hart, supra.

      We are mindful that Muniz addressed SORNA, and did not specifically

address a claim challenging a SVP designation under the pre-SORNA sexual

offender statute in effect at the time of Appellant’s sentencing. However, even

assuming that a challenge to Appellant’s SVP designation is cognizable under

the PCRA pursuant to Muniz, utilizing a theory that his pre-SORNA SVP

designation constitutes punishment, no relief is due on his ineffectiveness

claim.

      As our Supreme Court noted in Commonwealth v. Chmiel, 30 A.3d

1111 (Pa. 2011),

      The mere failure to obtain an expert rebuttal witness is not
      ineffectiveness. Appellant must demonstrate that an expert
      witness was available who would have offered testimony designed
      to advance appellant’s cause. Trial counsel need not introduce
      expert testimony on his client’s behalf if he is able effectively to
      cross-examine prosecution witnesses and elicit helpful testimony.
      Additionally, trial counsel will not be deemed ineffective for failing
      to call a medical, forensic, or scientific expert merely to critically
      evaluate expert testimony [that] was presented by the
      prosecution. Thus, the question becomes whether or not [defense
      counsel] effectively cross-examined [the Commonwealth’s expert
      witness].

Id. at 1143.

      Here, Appellant has not demonstrated that an expert witness was

available who would have offered testimony designed to advance his cause in

light of the evidence of record and the particular criminal conduct in question.

Id.

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       Moreover, the mere fact that counsel did not present an expert rebuttal

witness does not constitute ineffectiveness where counsel is able to effectively

to cross-examine prosecution witnesses and elicit helpful testimony. Chmiel,

supra. Appellant neither points to the SVP hearing record, nor explains how

any aspect of counsel’s cross-examination was deficient.      As noted above,

counsel is presumed to be effective; accordingly, to succeed on a claim of

ineffectiveness, Appellant was required to advance evidence to overcome this

presumption.      Johnson, supra; Wharton, supra.        As Appellant failed to

meet this burden, the PCRA court did not abuse its discretion in denying relief.

       In his third issue, Appellant contends that counsel was ineffective in

failing to prepare for the sentencing hearing, citing a “lack of legal arguments

and case research.” Appellant’s brief at 22. In support, Appellant points to

counsel’s argument at the sentencing hearing that counts three, four, five,

and six should merge with counts one and two, and the sentencing court’s

rejection of that argument on the basis that “there has been consistent case

law to the contrary.” Appellant’s brief at 23 (quoting N.T. Sentencing, 9/1/10,

at 16-17).5

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5Notably, K.B. testified that Appellant engaged in a multitude of separate acts
of sexual abuse, including acts that would constitute aggravated indecent
assault (count three), distinct from acts constituting rape (count one) and
distinct from acts constituting IDSI (count two). See Commonwealth v.
Yeomans, 24 A.3d 1044, 1050 (Pa.Super. 2011) (when determining whether
a defendant committed a single act, such that multiple criminal convictions
should be merged for sentencing, the proper focus is whether “the actor



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       At the evidentiary hearing, counsel testified that he met with Appellant

and reviewed the presentence investigation report in preparation for the

sentencing hearing, but did nothing to prepare for the mandatory sentences

that would be imposed (i.e., on the rape, IDSI, and aggravated indecent

assault conviction convictions). See N.T. PCRA Hearing, 10/6/6, at 57, 62.

As noted previously, to prove that counsel’s chosen strategy lacked a

reasonable basis, Appellant must prove that an alternative not chosen offered

a potential for success substantially greater than the strategy actually

pursued.     See Johnson, supra.           Appellant has identified no other legal

argument or case law which counsel should have raised such that the outcome

of Appellant’s case would have been different.           See Commonwealth v.

Michaud, 70 A.3d 862, 867 (Pa.Super. 2013) (to demonstrate prejudice,

appellant must show there is a reasonable probability that, but for counsel’s

error, the outcome of the proceeding would have been different). As counsel

is presumed to be effective, and Appellant has not advanced evidence to

overcome this presumption, his third ineffectiveness claim warrants no relief.

See Johnson, supra; Wharton, supra.




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commits multiple criminal acts beyond that which is necessary to establish the
bare elements of the additional crime”). Moreover, even if Appellant’s
remaining convictions for indecent assault of a person less than thirteen years
old, endangering the welfare of children, and corruption of minors should have
merged, the sentencing court imposed no penalty on those convictions.

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      In his final issue, Appellant claims that counsel was ineffective for failing

to communicate two plea offers from the Commonwealth. Appellant quotes

testimony from the evidentiary hearing wherein counsel was questioned about

the first plea offer, and testified that upon relaying it to Appellant, Appellant

adamantly rejected it. Appellant’s brief at 24. Appellant then points to his

own testimony at the hearing that counsel communicated neither plea offer to

him. Id. at 25.

      At the evidentiary hearing, counsel testified that he communicated both

guilty plea offers to Appellant, and that Appellant rejected both offers. N.T.

PCRA Hearing, 10/6/16, at 40, 41-42. According to counsel, the first guilty

plea offer was for fourteen to twenty-eight years incarceration, and the second

offer was for twelve to twenty-four years incarceration. Id. at 40. Counsel

stated “Appellant made it very clear to me from the very beginning, that even

if this were down to five to ten, he wasn’t accepting it, he was going to trial.”

Id. at 42.

      The PCRA court was free to reject as incredible Appellant’s testimony,

and to credit counsel’s testimony that he communicated both plea offers to

Appellant, and that Appellant rejected both of them. See Commonwealth

v. Spotz, 84 A.3d 294, 313 (Pa. 2014). This credibility determination was

within the PCRA court’s fact-finding authority and is entitled to great

deference.   Id.   We cannot set aside the PCRA court’s credibility findings

unless they have no support in the record. Ford, supra. Given that counsel’s


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testimony supports the PCRA court’s determination, we will not disturb its

ruling.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/28/2018




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