J-S75004-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 RONALD CICERON                          :
                                         :
                   Appellant             :   No. 733 EDA 2017

              Appeal from the PCRA Order February 24, 2017
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0013263-2010


BEFORE: PANELLA, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.:                           FILED JUNE 11, 2019

     Appellant, Ronald Ciceron, challenges the order entered in the

Philadelphia County Court of Common Pleas, denying his timely petition filed

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

9546. We affirm.

     Appellant was charged with multiple crimes of sexual violence against

the minor victim in this case. The Commonwealth presented evidence that

when the victim was eleven years old, she was reunited with her father,

Appellant, and began living in his home. Appellant moved out of the home

shortly thereafter, when the victim’s mother obtained a protection from abuse

order against him. The victim continued to visit Appellant in an apartment he

rented. Around that time, Appellant began to sexually abuse the victim.

Appellant bribed her to conceal the abuse by purchasing expensive electronics

for her. This molestation continued for several years. The victim ultimately
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told her pastor and her mother about Appellant’s exploitation. The victim’s

mother reported the abuse to the authorities, who arrested Appellant.

       Following trial, the jury convicted Appellant of rape, involuntary deviate

sexual intercourse, aggravated indecent assault, endangering the welfare of a

child, incest, and unlawful contact with a minor. The trial court sentenced

Appellant to an aggregate of twenty-five to fifty years’ incarceration. Appellant

filed a timely notice of appeal, but discontinued the appeal before the Superior

Court filed a disposition.

       Appellant then filed a pro se PCRA petition. The court appointed counsel,

who filed an amended petition. The court issued notice of its intent to dismiss

the petition without a hearing, pursuant to Pa.R.Crim.P. 907. Appellant did

not file a response, and the court dismissed his petition. He timely filed a

notice of appeal, and this case is now properly before us.1

       Appellant raises a single issue on appeal, objecting to the PCRA court’s

denial of relief. According to Appellant, trial counsel did not introduce

testimony indicating that the victim and her mother continued to spend time

with Appellant even after the victim informed her mother of the alleged sexual

abuse. Appellant believes he established trial counsel’s ineffectiveness for

failing to call witnesses who would have undermined the victim’s credibility,

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1 Once before this Court, Appellant filed a motion requesting remand in order
to file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). We granted his motion, Appellant filed his statement, and
the PCRA court filed a supplemental opinion.



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and should have been granted PCRA relief on this issue.2 We disagree.

       We proceed by determining whether the PCRA court’s factual findings

are supported by the record. See Commonwealth v. Ford, 44 A.3d 1190,

1194 (Pa. Super. 2012). In doing so, we read the record in the light most

favorable to the prevailing party. See id. If this review reveals support for the

PCRA court’s credibility determinations and other factual findings, we may not




____________________________________________


2 As part of this claim, Appellant also alleges the victim and her mother
accused him of abusing the victim after Appellant complained about the
victim’s relationship with her pastor. See Appellant’s Petition for Post
Conviction Collateral Relief, filed 4/24/13, at 4; Appellant’s Amended PCRA
Petition; Appellant’s Brief at 10-13. Appellant believes trial counsel was
ineffective by failing to question the victim about this relationship.

Evidence must be relevant before it is admitted in a criminal proceeding. See
Commonwealth v Nevels, 203 A.3d 229, 245 (Pa. Super. 2019). Appellant’s
brief is laden with sinister, irrelevant, and wholly unsupported insinuations
regarding “[A]ppellant’s concern about [the victim] spending time alone with
[her pastor].” Appellant’s Brief at 11. Appellant fails to even cursorily show
how these allegations are in any way relevant to his own guilt. Further, the
Rape Shield Law deems inadmissible “[e]vidence of specific instances of the
alleged victim’s past sexual conduct, opinion evidence of the alleged victim’s
past sexual conduct, and reputation evidence of the alleged victim’s past
sexual conduct[.]” 18 Pa.C.S.A. § 3104(a). Improbably, Appellant asserts that
any questioning by counsel on this subject would not have violated the Rape
Shield Law. We are inclined to reject this self-serving claim.

However, even if we accept the seemingly disingenuous assertion that this
line of questioning would not have violated the Rape Shield Law, Appellant
also wholly fails to explain how such evidence, if admitted, would have
resulted in a different outcome at trial. See Commonwealth v. Chmiel, 30
A.3d 1111, 1127-1128 (Pa. 2011) (holding petitioner must “show that there
is a reasonable probability that the outcome of the proceedings would have
been different but for counsel’s ineffectiveness” in order to obtain PCRA relief).
As such, he is due no relief on this claim.

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disturb them. See id. We, however, afford no deference to the PCRA court’s

legal conclusions. See id.

      We presume counsel’s effectiveness, and an appellant bears the burden

of proving otherwise. See Commonwealth v. Brown, 161 A.3d 960, 965

(Pa. Super. 2017). To establish ineffectiveness of counsel, a PCRA petitioner

must plead and prove: his underlying legal claim has arguable merit; counsel’s

actions lacked any reasonable basis; and counsel’s actions prejudiced the

petitioner. See Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011).

Failure to satisfy any prong of the ineffectiveness test requires dismissal of

the claim. See Commonwealth v. O’Bidos, 849 A.2d 243, 249 (Pa. Super.

2004).

      “Arguable merit exists when the factual statements are accurate and

could establish cause for relief. Whether the facts rise to the level of arguable

merit is a legal determination.” Commonwealth v. Barnett, 121 A.3d 534,

540 (Pa. Super. 2015) (citations and internal quotation marks omitted).

      When raising a failure to call a potential witness claim, the PCRA
      petitioner satisfies the performance and prejudice requirements of
      the Strickland test by establishing that: (1) the witness existed;
      (2) the witness was available to testify for the defense; (3)
      counsel knew of, or should have known of, the existence of the
      witness; (4) the witness was willing to testify for the defense; and
      (5) the absence of the testimony of the witness was so prejudicial
      as to have denied the defendant a fair trial.

Commonwealth v. Johnson, 966 A.2d 523, 536 (Pa. 2009) (citation

omitted). Trial counsel will not be deemed ineffective for failing to call a




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witness where the appellant is unable to show how that witness’s testimony

would have benefitted his defense. See id.

       Finally, we note that “an evidentiary hearing is not meant to function as

a fishing expedition for any possible evidence that may support some

speculative claim” for PCRA relief. Commonwealth v. Roney, 79 A.3d 595,

605 (Pa. 2013) (citation and internal quotations omitted). A claim based on

pure speculation must fail. See id. at 607.

       Here, Appellant believes trial counsel erred by failing to present witness

testimony to show the victim and her mother attended a wedding with

Appellant after the victim allegedly told her mother about Appellant’s abuse.

Appellant proffers affidavits from his sister, sister-in-law, and cousin as proof

that counsel failed to impeach the credibility of the victim. The affidavits all

state that Appellant, the victim, and the victim’s mother attended a wedding

together on August 21, 2010, and appeared to enjoy themselves. The affiants

assert they later discovered the victim’s mother told police she learned of the

abuse on August 20, 2010. These witnesses also aver that after learning of

the allegations against Appellant, they immediately informed trial counsel

about the congenial interactions they observed between Appellant, the victim,

and the victim’s mother at the wedding.3 Appellant summarily concludes that,

____________________________________________


3 One of the affidavits reiterates the belief Appellant espoused in his PCRA
petition, that the victim’s mother was unhappy about a trip Appellant was
taking to the Dominican Republic and convinced the victim to falsely report
the sexual abuse. In his appellate brief, Appellant entirely abandons this



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if counsel had presented the affiants’ testimony in court, it would have

undermined the credibility of the victim and her mother and changed the jury

verdict.

       The PCRA court aptly identifies a critical flaw in Appellant’s logic –

namely, he fails to present any evidence that the victim actually informed her

mother of the abuse before the wedding, as the affiants claim. See PCRA Court

Opinion, filed 7/18/17, at 4. Despite each affidavit’s citation of August 20,

2010, as the date that the victim’s mother complained of the abuse to police,

no other evidence supports that assertion. The only mention of any disclosure

date is the victim’s statement at trial, where she explained that she told her

mother about the abuse during “the last week of August” in 2010. N.T. Trial,

10/12/11, at 77. Further, the criminal complaint filed in this case identified

September 20, 2010, as the date the victim was interviewed by police.

       Appellant provides no documentary evidence to support the witnesses’

assertion that the victim’s mother knew of the abuse on August 20, 2010. Nor

does he assert that the proposed witnesses were present at either the time

where the victim told her mother or the time that the mother filed a police

report. Under these circumstances, the proposed witnesses’ testimony on this

issue would be inadmissible hearsay. “Hearsay is an out-of-court statement

____________________________________________


argument regarding the victim’s mother’s purported displeasure over his
vacation. Thus, we decline to review it. See Commonwealth v. Rodgers,
605 A.2d 1228, 1239 (Pa. Super. 1992) (deeming issue abandoned “where it
has been identified on appeal but not properly developed in the appellant’s
brief”).

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offered to prove the truth of the matter asserted in the statement.”

Commonwealth v. Laich, 777 A.2d 1057, 1060 (Pa. 2001). Hearsay is

generally inadmissible. See Commonwealth v. Dargan, 897 A.2d 496, 500

(Pa. Super. 2006).     (“evidence of a declarant’s out-of-court statements is

generally   inadmissible    because    such    evidence    lacks   guarantees    of

trustworthiness…”).

      Additionally, the victim testified that she was motivated to conceal the

abuse for several years before telling her mother. See id., at 77, 96. She

indicated that at family gatherings like weddings and birthdays, she would act

as though the abuse was not occurring, because she did not want Appellant

to go to jail. See id., at 77, 92. She told the court Appellant had threatened

her, saying that if anyone found out about the abuse, the victim’s church

community would condemn her for it. See id., at 77. The victim also admitted

that she wanted Appellant to keep giving her expensive electronics in

exchange for her silence. See id., at 95-96.

      As there is no record support for the disclosure date given in the

affidavits, Appellant cannot show the victim’s mother was aware of the abuse

at the time she and the victim attended the August 21, 2010 wedding with

Appellant. Without such proof, statements about the victim’s mother’s

behavior at the wedding lack relevance. Further, the victim herself admitted

that she acted normally toward Appellant while the abuse was ongoing, as she

did not want him to go to jail. Thus, Appellant cannot prove trial counsel was

ineffective for failing to introduce the affiants’ testimony at trial. Appellant has

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therefore failed to establish his claim of ineffective assistance of counsel has

arguable merit. Accordingly, we affirm the PCRA court’s order denying relief.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/11/2019




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