J-S31025-17


                                  2017 PA Super 242

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    KERRY CHARLES SMITH,                       :
                                               :
                      Appellant                :   No. 1397 WDA 2016

                  Appeal from the PCRA Order August 31, 2016
                In the Court of Common Pleas of Bedford County
               Criminal Division at No.: CP-05-CR-0000303-2011

BEFORE: PANELLA, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

OPINION BY DUBOW, J.:                                     FILED JULY 24, 2017

        Appellant, Kerry Charles Smith, appeals from the August 31, 2016

Order entered in the Bedford County Court of Common Pleas dismissing his

first Petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. He challenges the effectiveness of trial counsel’s assistance.

After careful review, we affirm.

        The Commonwealth charged Appellant with Rape of Child, Involuntary

Deviate Sexual Intercourse with a Child, Aggravated Indecent Assault on a

Child, Indecent Assault on a Child, Indecent Exposure, Corruption of Minors,

and Attempted Indecent Assault on a Child1 related to Appellant’s sexual

abuse of two young girls2 while babysitting for their family.
____________________________________________


1
  18 Pa.C.S. §§ 3121(c) (5 counts), 3123(b) (5 counts), 3125(a)(7) (10
counts), 3126(a)(7) (15 counts), 3127(a) (31 counts), 6301(a) (1 count),
and 901(a) (2 counts), respectively.
(Footnote Continued Next Page)
J-S31025-17



      On direct appeal, this Court adopted the trial court’s statement of facts

as follows:

      The charges arose when Ch.J., an eleven-year-old girl, told her
      family that Appellant had attempted to kiss her and touched her
      chest. Upon hearing this complaint, Ch.J.’s older sister, Ca.J.,
      came forward with allegations that she too had been assaulted
      by Appellant numerous times when she was seven [to ten years
      old], several years before.     During their investigation, the
      Pennsylvania State Police conducted a consensual intercepted
      phone call between Appellant and Ca.J., in which Appellant made
      several incriminating statements.

                                       *         *   *

      Ca.J. testified that Appellant babysat her from the time she was
      seven years of age to ten years of age. Ca.J. narrowed the
      babysitting periods to times when both of her parents were
      working for the night or her father would go out on a fire call.
      She testified that Appellant would make her watch pornographic
      movies with him while she sat on Appellant’s lap. Appellant then
      progressed to ma[s]turbating in front of the child, and then had
      Ca.J. masturbate him. Appellant ejaculated in both scenarios.
      Ca.J. testified that Appellant had her masturbate him over thirty
      times. Ca.J. testified that the masturbation incidents occurred
      near radio towers close to Appellant’s home, inside Appellant’s
      home, and on motorcycle trips with Appellant.          Ca.J. also
      testified that Appellant digitally penetrated her genitals … over
      ten times. Ca.J. testified that these incidents occurred in her
      parents’ bedroom, on her couch, at Appellant’s home, and
      sometimes her bedroom. As she got closer to ten years of age,
      Appellant had Ca.J. perform oral sex on him and Appellant would
      sometimes ejaculate in her mouth. Ca.J. testified that the
      incidents of oral sex occurred in her bedroom while Appellant sat
      at her desk, and happened at least five times.

                       _______________________
(Footnote Continued)


2
  Due to the age of the victims and the nature of the offenses, we will refer
to the victims only by their initials: Ch.J., and her older sister Ca.J.



                                            -2-
J-S31025-17


                                 *       *   *

      Ch.J., who was eleven years of age at the time of trial, testified
      that she visited Appellant during the summer of 2011. Appellant
      took her to an antenna tower on a nearby mountain and
      attempted to kiss her in what she described as a “boyfriend” or
      “girlfriend” kiss. Ch.J. also testified that when she was seven-
      years-old, Appellant came to her home and attempted to touch
      her chest.

                                 *       *   *

      Ch.J. testified that while Appellant was working on computers at
      her home he tried to make her watch “strange videos” with
      “boys and girls.” She described the videos as “disgusting” and
      “inappropriate.”

Commonwealth v. Smith, No. 410 WDA 2013, unpublished memorandum

at 2-3 (Pa. Super. filed Sept. 12, 2014) (footnote omitted).

      Ch.J.   provided   a   statement   describing   Appellant’s   abuse   to   a

Pennsylvania State Trooper in the presence of her grandmother and her

sister Ca.J. Appellant’s counsel did not file any pre-trial motions challenging

the victims’ competency or alleging taint of Ch.J.’s testimony.

      Appellant personally found and hired a forensic engineer expert,

Dennis Walsh, before trial counsel Thomas A. Crawford Jr., Esquire, entered

his appearance, in order to challenge the authenticity of the recording.

Counsel reviewed Walsh’s resume and spoke with him numerous times

before trial. “At trial, Walsh admitted to lying under oath in a previous court

proceeding, falsifying his resume, and being diagnosed with a paranoia

disorder[,] which led Walsh to believe balloons were ‘speaking to him’ on




                                     -3-
J-S31025-17


one occasion.” PCRA Court Opinion, 8/31/16, at 2. The trial court provided

a special cautionary jury instruction regarding Walsh’s expert testimony.

       On July 30, 2012, a jury convicted Appellant of Rape of Child and

numerous other sexual offenses.            On November 8, 2012, the trial court

imposed an aggregate term of 80 to 195 years’ incarceration.

       Appellant filed a timely Post-Sentence Motion, which the trial court

denied on November 20, 2012. After the reinstatement of his appeal rights

nunc pro tunc, Appellant filed a timely Notice of Appeal on March 4, 2013.3

This Court affirmed the Judgment of Sentence on September 12, 2014.

Commonwealth v. Smith, supra. Our Supreme Court denied allowance of

appeal on March 24, 2015. Commonwealth v. Smith, 112 A.3d 652 (Pa.

2015).      Appellant did not seek review by the U.S. Supreme Court.

Appellant’s Judgment of Sentence, therefore, became final on June 22,

2015. See 42 Pa.C.S. § 9545(b)(3); U.S. Sup. Ct. R. 13.

       On January 11, 2016, Appellant filed the instant timely pro se PCRA

Petition, his first, later amended by appointed counsel, alleging ineffective

assistance of trial counsel. The PCRA court held an evidentiary hearing on

May 20, 2016, at which Appellant testified and presented testimony from his



____________________________________________


3
   On February 20, 2013, the PCRA court reinstated Appellant’s appellate
rights nunc pro tunc pursuant to a PCRA Petition alleging ineffective
assistance of counsel for failing to file a requested appeal.



                                           -4-
J-S31025-17


trial counsel Thomas A. Crawford Jr., Esquire, and Lesley R. Childers-Potts,

Esquire.

      On August 31, 2016, the PCRA court dismissed Appellant’s Petition in a

Memorandum Opinion and Order. On September 20, 2016, Appellant filed a

Notice of Appeal.         Both Appellant and the PCRA court complied with

Pa.R.A.P. 1925.

      Appellant presents the following issues for our review:

      I. Whether the PCRA court erred in finding that trial counsel,
      Thomas Crawford, was not ineffective for failing to properly
      address and challenge the competency of Ch.J.

      II. Whether the PCRA court erred in finding that trial counsel,
      Thomas Crawford, was not ineffective for failing to file a “taint”
      motion.

      III. Whether the PCRA court erred in finding that trial counsel,
      Thomas Crawford, was not ineffective regarding vetting and
      calling “expert” Dennis Walsh to testify on the Appellant’s behalf
      at trial.

Appellant’s Brief at 4.

      We review the denial of a PCRA Petition to determine whether the

record supports the PCRA court’s findings and whether its order is otherwise

free of legal error.      Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014). This Court grants great deference to the findings of the PCRA court if

they are supported by the record. Commonwealth v. Boyd, 923 A.2d 513,

515 (Pa. Super. 2007). We give no such deference, however, to the court’s

legal conclusions.     Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.

Super. 2012).


                                      -5-
J-S31025-17


      To be eligible for relief pursuant to the PCRA, Appellant must establish,

inter alia, that his conviction or sentence resulted from one or more of the

enumerated errors or defects found in 42 Pa.C.S. § 9543(a)(2). Appellant

must also establish that the issues raised in the PCRA petition have not been

previously litigated or waived.   42 Pa.C.S. § 9543(a)(3).    An allegation of

error “is waived if the petitioner could have raised it but failed to do so

before trial, at trial, during unitary review, on appeal[,] or in a prior state

postconviction proceeding.” 42 Pa.C.S. § 9544(b).

      Each of Appellant’s issues in this appeal avers that he received

ineffective assistance of trial counsel.    The law presumes counsel has

rendered effective assistance.    Commonwealth v. Rivera, 10 A.3d 1276,

1279 (Pa. Super. 2010). The burden of demonstrating ineffectiveness rests

on Appellant. Id. To satisfy this burden, Appellant must plead and prove by

a preponderance of the evidence that: “(1) his underlying claim is of

arguable merit; (2) the particular course of conduct pursued by counsel did

not have some reasonable basis designed to effectuate his interests; and,

(3) but for counsel’s ineffectiveness, there is a reasonable probability that

the outcome of the challenged proceeding would have been different.”

Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003).               Failure to

satisfy any prong of the test will result in rejection of the appellant’s

ineffective assistance of counsel claim.    Commonwealth v. Jones, 811

A.2d 994, 1002 (Pa. 2002).


                                     -6-
J-S31025-17


      First, Appellant must meet the “arguable merit” prong. “The threshold

inquiry in ineffectiveness claims is whether the issue/argument/tactic which

counsel has foregone and which forms the basis for the assertion of

ineffectiveness is of arguable merit[.]”   Commonwealth v. Pierce, 645

A.2d 189, 194 (Pa. 1994) (quotation and citation omitted). “Counsel cannot

be found ineffective for failing to pursue a baseless or meritless claim.”

Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa. Super. 2004)

(quotation and citation omitted).

      Second, Appellant must meet the “no reasonable basis” prong.       We

apply the “reasonable basis” test to determine whether counsel’s chosen

course was designed to effectuate his client’s interests.   Pierce, supra at

194-95. “If we conclude that the particular course chosen by counsel had

some reasonable basis, our inquiry ceases and counsel’s assistance is

deemed effective.” Id. (quotation and citation omitted).

      Third, Appellant must meet the “prejudice” prong.         “Prejudice is

established when a defendant demonstrates that counsel’s chosen course of

action had an adverse effect on the outcome of the proceedings.”

Commonwealth v. Chambers, 807 A.2d 872, 883 (Pa. 2002) (quotation

marks and citation omitted).    “The defendant must show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.”           Id. (quoting

Strickland v. Washington, 466 U.S. 668, 694 (1984)).           “A reasonable


                                    -7-
J-S31025-17


probability is a probability sufficient to undermine confidence in the

outcome.”     Id. “[A] criminal defendant alleging prejudice must show that

counsel’s errors were so serious as to deprive the defendant of a fair trial, a

trial whose result is reliable.” Id. (quotation marks and citation omitted).

        In his first issue on appeal, Appellant contends that trial counsel was

ineffective for failing to challenge the competency of Ch.J., who was eleven

years old when she testified at Appellant’s trial. Appellant’s Brief at 9-13.

Relatedly, Appellant also claims that counsel was ineffective for failing to

object when the Commonwealth asked questions in front of the jury that

established the Ch.J.’s competency.            Id. at 11-13.4   Appellant claims this

____________________________________________


4
    The following excerpt is the entirety of the purported competency colloquy:

        [Commonwealth:] [D]o you know you just took an oath; right?

        [Ch.J.:] Uh-huh.

        [Commonwealth:] Do you know that means you have to tell
        the truth?

        [Ch.J.:] Uh-huh.

        [Commonwealth:] Do you know the difference between telling
        the truth and telling a lie?

        [Ch.J.:] (Nodded head in the affirmative).

        [Commonwealth:] All right. If I said that wall was red, would
        that be a truth or a lie?

        [Ch.J.:] A lie.

(Footnote Continued Next Page)


                                           -8-
J-S31025-17


questioning violated the dictates of Commonwealth v. Washington, 722

A.2d 643 (Pa. 1998).5

      The competency to testify is presumed where the witness is more than

fourteen years of age.         See Rosche v. McCoy, 156 A.2d 307, 310 (Pa.

1959).    See also Pa.R.E. 601(a); Daniel J. Anders, Ohlbaum on the

Pennsylvania Rules of Evidence § 601.10[2] (2017 ed. LexisNexis Matthew

Bender). However, the presumption does not arise where a child witness is

under age fourteen.         Rosche, supra at 310.       “Under 14 there must be

judicial inquiry as to mental capacity, which must be more searching in

proportion to chronological immaturity.”          Id.   However, this Court has

previously held that any error in the failure to conduct a separate formal

competency hearing constitutes harmless error in light of a minor victim’s

testimony at trial where the trial court had the opportunity to observe the

minor’s demeanor. See Commonwealth v. Harvey, 812 A.2d 1190, 1199
                       _______________________
(Footnote Continued)

      [Commonwealth:] Okay. And if I said you’re wearing a pink
      flowered shirt there, would that be a truth or a lie?

      [Ch.J.:] The truth.

      [Commonwealth:] Okay. So you know the difference?

      [Ch.J.:] (Nodded head in the affirmative).

N.T. Trial, 7/26/12, at 104-05.
5
  In Washington, our Supreme Court established a per se rule requiring
that child witness competency hearings be conducted outside the presence
of the jury.



                                            -9-
J-S31025-17


(Pa. 2002), abrogated on other grounds, Commonwealth v. Elliott, 80

A.3d 415 (Pa. 2013).

     In his direct appeal, Appellant presented several challenges to the

victim’s competency.     This Court first deemed Appellant’s competency

challenges waived because he failed to challenge the victim’s competency or

to object to the victim’s testimony at trial in any way. Commonwealth v.

Smith, No. 410 WDA 2013, unpublished memorandum at 5 (Pa. Super. filed

Sept. 12, 2014).    Significantly, this Court also observed that “[a]bsent

waiver, and in consideration of the discretion afforded the trial court, we

note that the Commonwealth elicited sufficient testimony from [the victim]

Ch.J. to establish her competency.” Id. at 5 n.3 (citations omitted).

     Appellant’s claim has arguable merit under the clear guidance provided

in Pa.R.E. 601(a) and our case law pertaining to child witnesses under

fourteen years of age.     Appellant’s counsel also failed to articulate a

reasonable basis for his failure to challenge Ch.J.’s competency by

requesting a proper colloquy outside the presence of the jury. Nevertheless,

Appellant is not entitled to relief because he cannot demonstrate prejudice

under the circumstances.

     Appellant has failed to carry his burden to prove that there is a

reasonable probability that the result of the trial would have been different

without counsel’s error. We note that nowhere in his Brief does Appellant

even allege that Ch.J. is or was incompetent. See Appellant’s Brief at 9-13.


                                    - 10 -
J-S31025-17


Moreover, Appellant has not directed this Court to any evidence submitted in

support of his PCRA Petition regarding Ch.J.s incompetence.

      Further, Appellant cannot demonstrate that there is a reasonable

probability that the trial court would have sustained his objection to Ch.J.’s

competency. Appellant fails to develop and explain what questions he would

have asked about Ch.J.’s competency had the trial court conducted a

separate competency hearing outside the presence of the jury.             Appellant

has failed to show a reasonable probability that the competency hearing

would have resulted in a finding of Ch.J.’s incompetence resulting in the

preclusion of her testimony, let alone that the outcome of his trial would

have been different.

      Turning to Appellant’s related claim regarding counsel’s failure to

object to the Commonwealth’s asking competency questions in front of the

jury, we note that the trial court never issued an express or formal ruling in

front of the jury that Ch.J. was competent to testify. Ch.J.’s answers to the

Commonwealth’s questions about the distinction between truth and a lie

flowed seamlessly into her testimony regarding Appellant’s crimes. As such,

no   impermissible     bolstering   occurred   in   this   case   in   violation   of

Washington. See Commonwealth v. Hutchinson, 25 A.3d 277, 294-95

(Pa. 2011) (finding harmless error in conducting colloquy before the jury

where the trial court did not vouch for or endorse child’s testimony).




                                      - 11 -
J-S31025-17


      In addition, the trial court expressly instructed the jury that the jury

was the sole fact-finder and sole judge of credibility. N.T. Trial, 7/30/12, at

161-67.    The jury is presumed to follow the trial court’s instructions.

Hutchinson, supra at 296. Appellant has provided not the slightest

evidence that the jury did not do so in this case.

      Appellant’s first ineffectiveness claim, thus, fails.

      In his second issue on appeal, Appellant claims that his trial counsel

was ineffective for failing to file a “taint” Motion alleging the victim’s memory

had been tainted as a result of her interview with the Pennsylvania State

Police.   Appellant’s Brief at 13-18.     Appellant avers “that Ch.J. did not

initially state that the Appellant did anything inappropriate to her and it is

only after the [Pennsylvania State Police] Trooper turns the questioning over

to Ca.J. that Ch.J. remembers improper things occurring[.]”          Id. at 16.

Appellant claims the questioning was, therefore, suggestive. Id. at 17.

      Generally, a court evaluates an allegation of taint at a competency

hearing. Commonwealth v. Delbridge, 855 A.2d 27, 40 (Pa. 2003). The

proponent of the claim first bears the burden of establishing “some

evidence” of taint. Id. Once the party meets that threshold requirement,

he then must meet the ultimate burden of demonstrating taint by clear and

convincing evidence. Id. The critical inquiry in deciding the issue of taint at

a competency hearing is whether the memory of the child has been

corrupted. Id.


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J-S31025-17


      In analyzing whether a party has met the “some evidence of taint”

standard, the trial court considers the totality of the circumstances around

the child’s allegations.   Id at 41.     This Court has identified some of the

common considerations relevant to this analysis as follows:

      (1) the age of the child; (2) the existence of a motive hostile to
      the defendant on the part of the child’s primary custodian; (3)
      the possibility that the child’s primary custodian is unusually
      likely to read abuse into normal interaction; (4) whether the
      child was subjected to repeated interviews by various adults in
      positions of authority; (5) whether an interested adult was
      present during the course of any interviews; and (6) the
      existence of independent evidence regarding the interview
      techniques employed.

Commonwealth v. Judd, 897 A.2d 1224, 1229 (Pa. Super. 2006) (citation

omitted).

      In addressing Appellant’s ineffectiveness claim, the PCRA court

observed:

      Here, [Attorney] Crawford testified that he was aware of the
      holding in [Commonwealth v. Delbridge, 855 A.2d 27 (Pa.
      2003),] and of the possibility of filing a “taint” motion to exclude
      Ch.J.’s testimony. Crawford also acknowledged that he was
      aware that the Trooper interviewed Ch.J. in the presence of the
      other victim and their grandmother. Crawford testified that he
      did not pursue a “taint” motion because he did not believe such
      a challenge was warranted. After a careful review of the record,
      we find Crawford had a reasonable basis for such a conclusion.

      In support of his argument, [Appellant] admitted the transcript
      of the Trooper’s interview with Ch.J. At the beginning of the
      interview, Ch.J. tells the Trooper that [Appellant] attempted to
      kiss her and have her watch videos with “girls and boys.” All of
      this information was elicited by open-ended questions given only
      by the Trooper.6 In fact, it is only after Ch.J. tells the Trooper
      the above information that her family and the Trooper attempt
      more leading questioning.        However, despite the more

                                       - 13 -
J-S31025-17


      suggestive methods attempted by Ca.J. and her
      grandmother, Ch.J. repeatedly denies their suggestions
      and refuses to implicate [Appellant] in any further
      conduct than she already had in response to the non-
      leading questions. Therefore, while we are inclined to agree
      with [Appellant] that the questioning methods shift to being
      suggestive in nature later in the interview, Ch.J.’s responses
      nonetheless remain consistent and—in fact—resilient against
      suggestions even by her own family members. Moreover, Ch.J.’s
      testimony at trial was limited strictly to the information she gave
      in response to the Trooper’s open-ended questions at the
      beginning of the interview, which we find would not trigger
      additional scrutiny under Delbridge. We therefore find that
      Crawford had a reasonable basis for declining to pursue a “taint”
      motion and accordingly deny [Appellant’s] requested relief on
      this argument.
          6
            We find it important to note that the information given in
          response to non-leading questions comprised essentially
          the entirety of Ch.J.’s testimony at trial.

PCRA Court Opinion, 8/31/16, at 8 (citations omitted; emphasis added).

      As noted above, in order for a taint hearing to be warranted, the

burden would have been on Appellant to come forward with evidence of

taint. Judd, supra. There appears to be no dispute in this case that the

Trooper interviewed the minor victim while her grandmother and sister were

in the room.       However, the presence of an interested adult during

questioning is only one factor for a court to consider as “some evidence of

taint.”   Delbridge, supra at 41; Judd, supra at 1229.              Our cases

unequivocally require a court to review a taint motion utilizing a totality of

the circumstances test. See id.

      Appellant does not point to any other concerning factors supporting his

argument regarding Ch.J.’s purportedly “corrupted” memory. Appellant fails

                                     - 14 -
J-S31025-17


to point to any evidence of hostile motive on the part of Ch.J., her

grandmother, or her sister. Appellant also fails to show repeated interviews,

or   other    independent    evidence    of   coercive   or   suggestive   interview

techniques that have corrupted Ch.J.’s memory.

         Based on the totality of the circumstances presented in this case, we

conclude Appellant would not have met his burden to warrant a taint

hearing. It is axiomatic that counsel cannot be ineffective for failing to raise

a meritless issue. Fears, supra at 804. Thus, Appellant fails to satisfy the

first prong of the ineffectiveness test, and he is not entitled to relief on this

issue.

         In his third claim, Appellant avers that his trial counsel was ineffective

for calling Walsh as an expert witness at trial and failing to vet Walsh.

Appellant’s Brief at 19. Appellant also claims that counsel was ineffective for

failing to call a different expert witness without “credibility and truthfulness”

issues. Id. at 20-21. We address each issue in turn.

         We initially note that the certified record does not support Appellant’s

averment that counsel failed to vet the expert.           Appellant’s Brief at 20.

Counsel testified at the PCRA hearing that he obtained and reviewed the

expert’s resume and spoke to the expert numerous times, even though

Appellant had personally hired and paid the expert for his services before

counsel entered his appearance and without counsel’s advice or assistance.

See N.T. PCRA, 5/20/16, at 23-24.


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J-S31025-17


     The PCRA court addressed Appellant’s claims as follows:

     [Appellant] next argues that Crawford was ineffective in not
     adequately “vetting” [Appellant’s] expert witness, Dennis Walsh.
     While we may agree that Crawford could have handled Walsh’s
     deficiencies in a more discrete manner, we nonetheless find that
     Crawford had a reasonable basis for using Walsh given the facts
     of the case and find that [Appellant] has failed to prove that he
     was prejudiced by Crawford’s decision.

     Primarily, we highlight that Crawford’s overall assessment of
     [Appellant’s] case was—and is—directly on point. In Crawford’s
     view, success at trial depended almost entirely upon the
     admissibility of [Appellant’s] incriminating recorded statements
     in his consensual call with one of the victims.11       Crawford
     testified that, once he knew the recorded statement was coming
     in at trial, he needed to address the recording in some way.
     And, despite Walsh’s deficiencies, Crawford did not seek another
     expert nor request a trial continuance because a prior search for
     another expert was fruitless and because he did not believe
     [Appellant] could afford a second expert. We therefore find that,
     given the circumstances Crawford found himself in at trial, he
     had a reasonable basis for calling Walsh as an expert witness
     and that his decision was made in furtherance of [Appellant’s]
     interests. Crawford was presented with the binary decision of:
     1) calling no expert to rebut the key piece of evidence that was
     “fatally damaging to his case,” or 2) challenging said evidence
     with an expert, however problematic his credibility may be.
     While neither option is optimal, at the very least Crawford’s
     decision provided [Appellant] with a defense.
       11
           We note that [Appellant] seemingly agrees with
       Crawford’s assessment, as [Appellant] calls the recording
       “fatally damaging to his case.” The question that naturally
       arises, then, is what would [Appellant] now have done
       differently if placed in Crawford’s position again? If the
       answer is to call a credible alternative expert witness, we
       have no evidence that one exists. As we discuss, infra,
       [Appellant] has made no showing that another expert that
       shares Walsh’s opinion is available.          Therefore, if
       Crawford’s choice at trial was limited to no expert or
       damaged expert, we fail to see how [Appellant] was
       prejudiced by the choice that provided some defense, no
       matter how hampered it may have been. Nor do we see

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J-S31025-17


          how Crawford’s decision had no reasonable basis in
          furthering his client’s interests at trial.

PCRA Court Opinion, 8/31/16, at 11-12 (citations omitted; emphasis in

original).

       We agree with the PCRA court’s analysis. Appellant hired Walsh before

counsel’s involvement. See N.T. PCRA, 5/20/16, at 23-24. Given counsel’s

alternative choice of not contesting the recording, a key piece of evidence,

we conclude that counsel had a reasonable basis designed to effectuate

Appellant’s interests in deciding to call Walsh at trial.6

       With respect to Appellant’s claim that counsel should have called a

different expert witness, it is well settled that the “failure to call [an expert]

witness is not per se ineffective assistance of counsel as such decision

generally involves a matter of trial strategy.”     Commonwealth v. Lauro,

819 A.2d 100, 105 (Pa. Super. 2003) (citation omitted).            A claim that

counsel was ineffective for failing to call a potential expert witness to testify

at trial requires a petitioner to “establish that the witness existed and was

available, that counsel was informed of the witness’ existence, that the

witness was ready and willing to testify[,] and that the absence of the
____________________________________________


6
  Moreover, Appellant concedes that he “was unable to find any case directly
on point[.]” Appellant’s Brief at 22. His reference to Commonwealth v.
Penrose, 669 A.2d 996 (Pa. Super. 1995), for its instructiveness provides
no support. See id. (concluding that counsel was not ineffective when
refusing to emphasize a diminished capacity defense during closing
arguments when weak and diluted expert testimony supported that
defense).



                                          - 17 -
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witness prejudiced the defendant to a point where the defendant was denied

a fair trial.”   Commonwealth v. Moser, 921 A.2d 526, 531 (Pa. Super.

2007) (citation omitted).

      The PCRA court addressed Appellant’s claim as follows:

      Moreover, [Appellant] has failed to make any showing that an
      expert witness alternative to Walsh even exists. Noticeably
      lacking in [Appellant’s] petition is any averment that he has
      located an expert who shares Walsh’s opinion but lacks Walsh’s
      baggage. Indeed, such a[n] expert may not exist, which lends
      credence to Crawford’s testimony that his search for an
      alternative expert was fruitless.12 Therefore, we also find that
      [Appellant] has failed to prove prejudice where there is no
      showing that a more palatable expert witness who shares
      Walsh’s opinion even exists.

          12
            We also note that[] the possibility that no other expert
          exists may be indicative of the strength of Walsh’s opinion
          and his problems as a witness. That is, Walsh may be the
          only “expert” in existence that would be willing to give his
          opinion due, at least in part, to his problems as a witness.

PCRA Court Opinion, 8/31/16, at 12-13 (citations omitted; emphasis in

original).

      Our review supports the PCRA court’s analysis.         The PCRA court

correctly noted that Appellant failed to demonstrate that an alternative

expert exists, or that that unknown expert was available and willing to

testify at trial.   As a result, Appellant has failed to show that counsel’s

conduct lacked a reasonable basis designed to effectuate his interests and

his final ineffectiveness claim fails.




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J-S31025-17


      The record supports the PCRA court's findings and its Order is

otherwise free of legal error. Accordingly, we affirm.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/24/2017




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